text
stringlengths 9
720k
| embeddings
sequencelengths 128
128
|
|---|---|
The opinion of the court was delivered by
Horton, C. J.:
S. H. Fuller as sheriff of Osage county was amerced in the sum of $11,770, for neglecting and refusing to execute a special writ of execution issued to him by the clerk of the district court of Sumner county, on the 22d day of April, 1886, which was returned by him without service on the 28th day of July, of the same year. The proceeding to amerce was commenced July 25,1887 — more than a year after the time the sheriff should have returned the execution. Fuller claims that the order of amercement is erroneous and should be reversed, because the proceeding at its commencement was barred by the statute of limitations, and also because the execution or indorsements thereon did not follow the judgment. It is contended that a proceeding to amerce is within the spirit, if not within the letter of subdivision 4, §18 of the code, which provides that an action for penalty or forfeiture must be brought within one year. On the part of Wells, Fargo & Co., it is claimed that there is not any statutory limitation against a motion to amerce; that §18 of the code applies to civil actions only, and that a motion to amerce is not a civil action, but a special proceeding.
Technically and strictly the language of §18 does not embrace a proceeding to amerce, because it refers to civil actions exclusively, but its spirit and intent does apply to such a proceeding. An action is defined by §4 of the code as an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. The proceeding to amerce is in the nature of an action to redress a wrong. The object of the proceeding is to give the judgment creditor satisfaction, or a penalty for the omission of the official duty of a sheriff. In saying that a motion to amerce is in the nature of an action to redress a wrong, we do not intimate that special findings are to be allowed on the hearing thereof. The motion is to be heard and disposed of as provided by the terms of the statute. (Armstrong v. Grant, 7 Kas. 296, 297.) If an ordinary action at law had been brought by Wells, Fargo & Co. against Fuller for damages for his omission of official duty, it is not and cannot be denied that the statute of limitations would apply. It is said in Chick v. Willetts, 2 Kas. 384, that—
“The statute of limitations of this state is wholly unlike the English statute, and differs materially from the limitation laws of those states, which have adhered to the common-law forms of action and modes of procedure. Those statutes apply, in terms, to the form of the action at law, and contain no provisions concerning an equitable proceeding. If a party had concurrent remedies, one at law, the other in equity, courts of equity applied the limitation prescribed for the action at law. But iu all other cases they were said to act merely in analogy to the statutes, but not in obedience to them. In this state the case is entirely different. The distinction between actions at law and suits in equity is abolished; and the statutes of limitation apply equally to both classes of cases. They are made to apply to the subject-matter, and not to the form of the action.”
The statute of limitations is regarded iu this state as a statute' of repose; it is designed for peace and quiet. (Sibert v. Wilder, 16 Kas. 176.) Sheriffs would find little benefit in the statute of limitations which protected them from the consequences of an action after the running of the statute, but left them exposed to the more summary and severe remedy of a motion for the same cause.
In Seymour v. Cooper, 26 Kas. 539, the exemption statute was construed to apply to the personal services or earnings of a debtor in attachment or garnishment proceedings. The statutes do not anywhere in express terms create such an exemption, and yet an exemption was declared in such a case, because within the evident spirit and intent of the legislature.
Again, the statute of limitations in a narrow and a technical sense applies only to civil actions commenced by the filing of a petition, but the statute has always been extended to a plea of set-off, on the ground that the spirit and intent of the act embraces an outlawed claim which the party attempts to avail himself of by a set-off as much as the same claim, when the party attempts to enforce it by a direct action, and therefore a set-off is within the spirit and intent of the statute, but not within its letter.
We think the statute of limitations should apply in such a case as this, and that the courts have the power to withhold and should withhold the exercise of their jurisdiction in summary proceedings, whenever an action for penalty or forfeiture sought to be enforced is barred by the statute. (Van Tassel v. Van Tassel, 31 Conn. 521; Merritt v. Parks, 6 Humph. 332; Butler v. Winters, 2 Swan, 91; Prewitt v. Hilliard, 11 Humph. 425.) In this state all amercements are entered on the record of the court, and have the same force and effect as a judgment. (Civil Code, §477.) In special proceedings, which are ancillary, like attachments, temporary injunctions, etc., no statute of limitations is necessary, because such proceedings are subservient to the principal case and cannot be prosecuted if the main action is barred. Not so with a motion to amerce. It is a proceeding, prosecuted for official misconduct, or omission.
Against this conclusion we are referred to The State v. Crowell, 1 W. L. Jour. 305. That decision was rendered by the common pleas court of Sandusky, Ohio, in 1848, and is not very high authority.
The decision in Chinn v. Trustees, 32 Ohio St. 236; construing a proceeding by mandamus not a civil action, and therefore not within the statute of limitations of the code, is contrary to the decisions of this' court, and therefore cannot be followed. (Judd v. Driver, 1 Kas. 455; The State v. Marston, 6 id. 524; The State v. Jefferson Co., 11 id. 66.)
As the statute of limitations applies, the next question is, which section is applicable? Counsel for Fuller claims that the limitation of one year controls. The opposite counsel insist that three years, or five years, is the time. Subdivision 4 of §18 reads:
“Within one year: An action for libel, slander, assault, battery, malicious prosecution, or false imprisonment; an action upon a statute for a penalty or forfeiture, except where the statute imposing it prescribes a different limitation.”
The statute in express terms provides that when a sheriff is amerced, the order or judgment must be entered against him for the debt, damages and costs, with ten per cent, thereon. (Civil Code, § 472.) It is said in Bond v. Weber, 17 Kas. 410, that § 472 of the code, which provides for the amercement of sheriffs, “is summary and penal in its nature.”
In Fisher v. Franklin, 38 Kas. 252, it is said:
“ The statute under which this motion was made is of a penal character, and, like all other penal proceedings, strict compliance with the requirements of law must be observed in its enforcement; and when a person desires to avail himself of this proceeding, he caunot complain if he is required to strictly conform to the letter of the law, for when it is enforced it works in many instances great hardship to the officer who, while being negligent in doing some duty required of him, yet out of that negligence no injury has resulted to others.”
An action brought to recover damages for the failure of a mortgagee to satisfy a chattel mortgage is an action for a penalty, and barred within one year. (Hall v. Hurd, 40 Kas. 374; and also Hall v. Hurd, 40 id. 740; Joyce v. Means, 41 id. 234.) In our opinion, the motion ' 1 ... to amerce comes within the 4th subdivision of said §18 of the code, and the statute of limitations of one year controls; therefore this proceeding was commenced too late.
The objection to the form of the special execution need not be specially commented upon. It appears, however, that the execution had improperly indorsed thereon the words “ without appraisement of lands.” The judgment did not authorize the lands to be sold without appraisement. It is said in Fisher v. Franklin, supra, that where a “plaintiff is seeking to amerce a sheriff, he must show a valid judgment, and the execution must conform strictly to that ^ J judgment.” If the indorsement upon the back of the special execution is considered a part of the execution, or in any way connected with it, the execution in this case did not. conform strictly to the judgment.
The order and judgment of the district court will be reversed, and the case remanded for further proceedings, in accordance with the views herein expressed.
Valentine, J., concurring. | [
112,
110,
-48,
28,
-117,
96,
42,
56,
83,
-30,
-92,
83,
-87,
-53,
20,
127,
-29,
109,
85,
121,
67,
-77,
87,
113,
-45,
-77,
81,
87,
50,
109,
-26,
71,
72,
-80,
66,
-43,
-58,
-88,
-123,
-44,
14,
-128,
-119,
108,
-47,
-120,
48,
43,
18,
11,
97,
44,
-29,
43,
20,
-61,
-23,
40,
122,
-66,
-48,
-80,
-70,
13,
125,
20,
-79,
-89,
-38,
7,
72,
62,
-104,
57,
18,
-8,
114,
-90,
-122,
-44,
109,
91,
44,
114,
99,
35,
69,
-17,
-72,
-120,
15,
-98,
-115,
-89,
-112,
25,
43,
41,
-74,
-99,
55,
20,
6,
-2,
-18,
-115,
89,
44,
7,
-114,
-106,
-123,
-49,
52,
-104,
95,
-13,
-125,
48,
113,
-51,
-30,
29,
87,
114,
-101,
-114,
-111
] |
Opinion by
Simpson, C.:
The defendant in error appealed from the award of the commissioners appointed by the judge of the district court to condemn a right-of-way for the plaintiff in error, to the district court of Dickinson county. The town-site company filed an appeal bond, which was approved by the county clerk, and was in the following form:
“Whereas, the above named, the Abilene Town-Site Company, a corporation duly organized under the laws of the state of Kansas, intends to appeal to the district court of said county from an award of damages made on the 16th day of April, 1887, by commissioners duly appointed and qualified to condemn a right-of-way for said the Chicago, Kansas & Western Railroad Company, for a right-of-way for said railroad company through the south half of the northeast quarter and the west half of the southeast quarter of section No. 17, in township 13 south, of range 2, east of the sixth principal meridian, in said county of Dickinson : now, therefore, we, the Abilene Town-Site Company as principal and Geo. A. Rogers as surety, do hereby undertake to said the Chicago, Kansas & Western Railroad Company, in the sum of $500, that said the Abilene Town-Site Company will prosecute its said appeal to effect and without unnecessary delay, and pay all costs and damages that may be awarded against said the Abilene Town-Site Company.
“The Abilene Town-Site Company, by G. W. Hurd, its president, duly authorized. Geo. A. Rogers.
“ The foregoing bond taken and approved by me, this 25th day of April, 1887. [Seal.] Richard Waring,
Cownty Clerk”
The plaintiff in error appeared specially in the district court for the purposes of the motion only, and filed the following motion, which was overruled:
“Now comes the Chicago, Kansas & Western Railroad Company, by C. S. Bowman, its attorney, for the purpose of this motion only, and moves the court to quash and dismiss the appeal in the above-entitled cause, for the following reasons, to wit:
“1. No sufficient bond has ever been executed and filed in said cause, to give the court jurisdiction in the matter.
“ 2. The pretended appeal bond is insufficient in form, in amount, and in law.”
The plaintiff in error then filed a demurrer, raising substantially the same question as the motion, and this was overruled. Exceptions were duly saved, and the case brought here for review.
The only question presented and insisted upon is, that by reason of the appeal bond not being in double the amount of the award, the district court acquired no jurisdiction of the subject-matter of the action — the contention of counsel being, •that in all cases of appeal from a judgment of a justice of the peace to the district court, that court acquires no jurisdiction unless the amount of the appeal bond is double the amount of the judgment in the justice’s court. This contention is based upon a strict construction of §121 of the justices code, that reads:
“Sec. 121. The party appealing shall, within ten days from the rendition of judgment, enter into an undertaking to the adverse party with at least one good and sufficient surety, to be approved by such justice, in a sum not less than fifty dollars in any case, nor less than double the amount of the judgment and costs, conditioned: First, that the appellant will prosecute the appeal to effect and without unnecessary delay; and second, that if judgment be rendered against him on the appeal, he will satisfy such judgment and costs. Said undertaking need not be signed by the appellant.”
Section 86 of chap. 23, Comp. Laws 1885, p. 225, gives the right of appeal from an award of commissioners for the value of and damages to the land of a person appropriated to the right-of-way of a railroad company, and provides that the appeal shall be granted in the same manner as appeals are granted from a judgment of a justice of the peace to the district court, but that said appeal, and all subsequent proceedings, shall only affect the amount of compensation to be allowed. The appeal is then limited to the siugle question of the amount of compensation, and is to be taken in the same manner as from a judgment of a justice of the peace. These are all the statutory provisions granting the right of appeal and prescribing the manner in which the appeal is to be taken. We have given the question of jurisdiction thorough consideration, and there is no view of the subject in which it can or ought to be held that the district court acquires no jurisdiction, by reason of the fact that an appeal bond is defective in form, or insufficient in amount. On the •contrary, there is a statutory provision that expressly determines otherwise, and cannot be given expression and force if such a theory be adopted. Section 131 of the justices code expressly provides that—
“In proceedings on appeal, when the surety in the undertaking shall be insufficient, or such undertaking may be insufficient in form or amount, it shall be lawful for the court, on motion, to order a change or renewal of such undertaking, .and direct that the same be certified to the justice from whose judgment the appeal was taken, or that it be filed in said court.”
Under this section it does not make any difference how defective in form or amount, or how insufficient the surety of the appeal bond may be, it can be changed or renewed, either by the justice or by the district court, if complaint is made. This seems' to be absolutely conclusive on the question of jurisdiction. If the bond is insufx , ° ficient in form or amount, the party against whom the appeal is taken has the right to have it corrected in these particulars, or the appellant may strengthen his appeal bond, to guard against such a motion by the opposite party. In either or any event contemplated by § 131, the district court retains the case, and has the power to hear and determine it, or to dismiss it for non-compliance with an order to file a better bond in form and amount. We see no other solution of this question in view of these statutory enactments. This court has decided in the case of St. J. & D. Rld. Co. v. Orr, 8 Kas. 419, that § 131 of chapter 81, Comp. Laws of 1885, page 225, has application to appeals of this character. In that case the bond was approved by the county commissioners instead of the county clerk, and the order of the district court permitting a new bond to be filed was affirmed, as •being authorized by that section of the justices code.
So in the case of Gates v. Sanders, 13 Kas. 411, it is said by Mr. Justice Brewer that—
“While the district court has ample power to permit an .amendment of the appeal bond, when insufficient in form or -amount, (Justices Act, §131,) yet an amendment is not a mat ter of right upon which in all cases of insufficiency a party may insist. The court must exercise a sound discretion in deciding whether under the circumstances of the particular case, the party .should be allowed to amend.”
It is said in Lovitt v. W. & W. Rld. Co., 26 Kas. 297:
“Doubtless where an appeal bond is simply irregular or defective, under §§139 and 140 of the code, and 131 of the justices act, the appellant should be permitted to supply-a new bond in place of the defective bond.”
In this case of Lovitt, the bond was not simply defective, or irregular, or insufficient in amount, or insufficient in security, but a bond which, running tó a party entirely a.stranger, to the record, was a perfect nullity.
The case of the St. L. K. & A. Rly. Co. v. Quinn, 24 Kas. 370, is one in which an appeal bond was not filed in time, but the court held that the filing of pleadings and the proceedings had in the case operated as a waiver of any question as to whether it was filed in time or not. (The logic of all these cases is against the theory of the plaintiff in error. The bond in this case was filed in time, runs to the right party, was approved by the county clerk, is in the exact form prescribed by the statute, except as to the amount, but is in an amount amply sufficient to protect the railway company from the payment of all costs that could be adjudged against the appellant. No possible contingency could arise in which any judgment could be rendered against the appellant, except for costs, as the only question to be determined on the appeal is confined by the statute to the amount of the compensation. If it was entitled to no greater compensation than allowed by the commissioners, it must pay the costs, and this was the extent of any judgment that could be rendered against the town-site company. It did not appeal from a personal judgment, as in ordinary cases on which an execution could issue, (17 Kas. 247,) but an award of damages only, which the railroad company may either pay or refuse to pay, according as it determined to maintain or abandon its right-of-way over the land in controversy. Hence, it does not fall within the strict letter of the statute, requiring a bond in double the amount of the judgment, as in an ordinary case of a money judgment.
But we are not to be technical in dealing with questions arising out of the sufficiency of appeal bonds, because this court has declared in the case of Haas v. Lees, 18 Kas. 449, that “appeals are favored, and mere technical defects or omissions are to be disregarded as far as possible without obstructing the course of justice.” We have no lingering doubt but that the bond was such as to give the court jurisdiction over the subject-matter of the action, and that the motion so far as it went to the jurisdiction of the court, was properly overruled. The second cause enumerated in the motion, to wit, “that the bond is insufficient in form, in amount, and in law,” was not made the basis of an application in the court below for an order to require the appellant to make his bond more perfect in these respects, and is not commented upon by counsel, who rest their case on the sole ground of want of jurisdiction.
The record shows that after the ruling of the court below on the motion for which a special appearance was entered, the railroad company appeared generally, and tried the case upon its merits. The jury returned a verdict much larger than the amount awarded by the commissioners, and a judgment was rendered on the verdict, and as the district court acquired jurisdiction, even if the bond was insufficient in amount or form, (but that we do not now decide,) the subsequent general appearance of the plaintiff in error, and a trial of the case on itá merits, waived any irregularity.
We do not agree with counsel in their construction of §131 of the justices code, that it is only for the benefit of the appellant. It is a statute framed more in the interest of the appellee than of the party who gives the bond; but be that as it may, it is very clear that if the appellee is dissatisfied with the surety, or the form of the bond, he can file his motion and have it perfected, and thus protect his own interest, and make the payment of his judgment, if it is affirmed, a reasonable certainty.
The writer of this opinion has examined some of the cases now pending, and a few that have been decided in this court, wherein appeals have been taken from the award of commissioners, and finds that in no one of the cases examined has the land-owner given a bond in double the amount of the award, but the amount of the bond has invariably been fixed in a sum that would reasonably cover all the costs likely to accrue on the appeal. This accords with the general understanding of the profession in this state. This practical construction has some weight in the determination of this question, especially when it is urged at this late day, that in all these cases wherein bonds were not given in double the amount of the award, the courts rendering judgments on such appeals were without jurisdiction and their proceedings necessarily void. In an early case it was said as to- such a bond:
“There is no case where a bond fairly and regularly executed, and comprising substantially all the requisites of the statute, has been adjudged void because it departed in some one or more particulars from the exact words of the statute authorizing it to be taken. It has been the uniform objects of our courts to support bonds executed under the provisions of law, where, by a reasonable interpretation, such bonds can be made to meet the intention for which they are required and taken.” (Gardner v. Woodyear, 1 Ohio, 170.)
We recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
-16,
98,
-71,
31,
-54,
-64,
50,
10,
67,
-15,
-89,
83,
-83,
-54,
24,
123,
-21,
61,
52,
122,
-62,
-73,
7,
35,
-14,
-77,
31,
95,
-77,
77,
-10,
-42,
73,
112,
74,
21,
6,
-56,
-59,
28,
-114,
-124,
-87,
-20,
-55,
8,
52,
127,
54,
14,
81,
46,
-13,
42,
24,
-29,
-23,
44,
-17,
-87,
-111,
-15,
-78,
-51,
124,
4,
1,
-60,
-104,
7,
64,
58,
-104,
53,
1,
-8,
114,
-90,
-122,
-10,
45,
-117,
12,
-26,
99,
33,
-99,
-17,
-24,
-88,
30,
-68,
13,
-25,
-94,
24,
-5,
41,
-106,
-99,
85,
-42,
-121,
-4,
-18,
5,
88,
92,
-125,
-53,
-80,
-43,
-33,
52,
-128,
23,
-21,
-128,
50,
113,
-51,
-94,
93,
70,
50,
27,
-49,
-72
] |
Opinion by
Holt, C.:
The plaintiff in error raises two questions for our determination: First, had the probate court any authority to incorporate the village of La Cygne ? Second, can a city assess and collect taxes on farming land within its limits, when such land has never been platted or divided into streets, alleys, etc.? The defendant in error, while contending that both these questions should be determined against the plaintiff’s claim, further argues that the power of the probate court to incorporate the village of La Cygne in January, 1870, cannot be inquired into on a question of the legality of the taxes levied on plaintiff’s land; that the only way that the validity of the incorporation of the village can be questioned is by the state, through its proper officers, in a direct proceeding. The power given the probate court to incorporate towns and villages is found in §1, chapter 108, General Statutes of 1868, which provides:
“Whenever a majority of the inhabitants of any town or village within this state shall present a petition to the probate court of the county, setting forth the metes and bounds of their village and commons, and praying that they may be incorporated, and a police established for their local government, and for the preservation and regulation of any commons appertaining to such town or village, and the court shall be satisfied that a majority of the taxable inhabitants of such town or village have signed such petition, and that the prayer of the petitioners is reasonable, the probate court may declare such town or village incorporated, designating, in such order, the metes and bounds thereof.”
The plaintiff contends that the word “town” has a recognized meaning as used in this statute; i.e., a tract of land divided into lots, blocks, streets, alleys, squares, etc., upon which habitations and business houses have been erected, and which is inhabited by a community living near each other, requiring local government and control, and the land being so occupied by dwelling-houses and other buildings that it makes farming thereon impracticable; that it must, in fine, be an actual town. The defendant contends that- more land might be embraced within the limits of a village to be incorporated than was actually occupied by dwellings and business houses; that it might reasonably be expected in a new country that there would be an increase in the population and a growth of the town, and that buildings would be extended beyond the town thus occupied; and further says that the law did not contemplate necessarily that the original metes and bounds of the town should be the metes and bounds of the village or town to be incorporated by the probate court., as the law itself gave to the probate court the authority of designating in its order of incorporation the metes and bounds of the proposed village.
The view we take of this case will not require a discussion of this question. The plaintiff contends that the city tax upon his property is illegal, for the reason that the city itself was not regularly incorporated. We think that the corporate character of a city cannot be questioned by a private citizen in an action to prevent the city from collecting its taxes, when it is acting under color of law. When La Cygne was incorporated, a law was in force under which it might have been organized. It has ever since been and now is a city defacto, claiming to exist by virtue of its incorporation under that law. Whether it was regu-
larly incorporated might be determined in an action brought by the state through the proper officers, but cannot be inquired into collaterally by private citizens. We think this rule is well established. (Krutz v. Paola Town Co., 20 Kas. 397; St. Louis v. Shields, 62 Mo. 247; Tisdale v. Town of Minonk, 46 Ill. 9; Geneva v. Cole, 61 id. 397; Cooley, Const. Lim. 254; Dill. Mun. Corp., § 43; Blanchard v. Bissell, 11 Ohio St. 96.)
The plaintiff says, however, that it is not a mere irregularity that he complains of, but that the probate court acted in excess of its powers and without authority of. law, and to that extent its acts were void. The probate court ^ ^ * had authority under section 1, supra, to declare town of La Cygne incorporated as a village. Under our constitution, (art. 12, §1,) it could not have been incorporated by a special act of the legislature. Instead of attempting to incorporate villages, towns and cities by special enactments, the legislature had by a general law fully defined what their corporate powers should be whenever one should be declared incorporated by the probate court. The court could not have added to or diminished the powers, privileges and immunities granted, or made the least change in the law governing villages; it did not attempt to create or define any corporate powers whatever. It simply determined and declared that a majority of the taxable inhabitants of the town had signed a petition praying that it should be incorporated, that the prayer was reasonable, and fixed the metes and bounds of the proposed village. This is no unusual exercise of authority in Kansas by the courts. (Comp. Laws 1885, ch. 19a, § 2.) Nor does Kansds stand alone in this method of incorporating cities. (The State v. Goodwin, 69 Tex. 55; Hill v. City of Kahoka, 35 Fed. Rep. 32; Mayor etc. v. Shelton, 1 Head, 24; Woods v. Henry, 55 Mo. 560. See also as to authority conferred upon probate courts and probate judges: Kirkpatrick v. The State, 5 Kas. 673; In re Johnson, 12 id. 102; Intoxicating-Liquor Cases, 25 id. 760. Contra: Shumway v. Bennett, 29 Mich. 451; Burgoyne v. Supervisor, 5 Cal. 9; Dickey v. Hurlburt, 5 id. 343.) Where no protest is made against the manner of the incorporation of a city until more than fifteen years have passed, it will be received as strong proof that the public generally had acquiesced in the action of the probate court. Mere irregularities, which might have been investigated within a short time after the village was incorporated, will not now be inquired into. (Sherry v. Gilmore, 58 Wis. 324; Worley v. Harris, 82 Ind. 493.)
Davis, the former owner of the land now sought to be relieved from taxation, was one of the original petitioners for the incorporation of the village, and for a long time paid taxes upon this property; and although there may be nothing in the payment of taxes that would estop this plaintiff from the claim that he makes, yet it shows a long acquiescence of his grantors in the boundaries of the village. The fact that Davis signed the petition for the incorporation of the village is more of the nature of an estoppel; it would probably be to him, and might be to the plaintiff.
The remaining question is, can a city assess and collect taxes upon farming land within its corporate limits, when such land has never been platted or divided into streets, alleys, etc.? The only provision in chapter 19a, Laws of 1885, exempting any property within the limits of a city of the third class from taxation is § 93, which provides:
“All lands, houses, moneys, debts due the city, and property and assets of every description belonging to any city or municipal corporation under this act, shall be exempt from taxation.”
This is in line with the exemptions named in §1, article 11, of the constitution. That section also provides for a uniform and equal rate of assessment-and taxation; it applies to a city of the third class, for the reason that the city constitutes a taxing district, and all property hot. exempt must bear its equal burden of taxation;- under that provision alone we would be willing to rest the decision of this phase of the case. (Weeks v. City of Milwaukee, 10. Wis. 242; Cary v. City of Pekin, 88 Ill. 154; Desty on Taxation, 1100; Cooley, Const. Lim., 5th ed., 622. See also Powell v. City of Parkersburg, 28 W. Va. 698.)
This tract, now owned by plaintiff, is wholly within the city, and on its main street,, lying between the old town of La Cygne, incorporated in '.1869, and Foote & Beach’s addition, both of which are platted, and meet all the requirements of a city of the third ‘class; there is a sidewalk on that side of the tract abutting the main'street; the tract itself contains only 13.34 acres; the .plaintiff is a physician; his residence is a comfortable one; -a'good part of this land is orchard and grounds surrounding his residence, although a part of it is in corn, and used distinctively as farming land. The authorities relating to the taxation of agricultural lands in cities for municipal purposes, are not' uniform. The courts of Iowa hold that under certain circumstances they are exempt from municipal taxation, and the Kentucky and Pennsylvania courts follow the same rule, thóuglñ.somewhat modified. We will briefly state the facts of the more important cases decided by the Iowa supreme court. The first time the subject was presented to that tribunal was in Moreford v. Unger, 8 Iowa, 82, when a body of laud containing 103 acres, about one mile from any laid-out blocks, though -Within the limits of the city, was held to be exempt from taxation. The facts in Langworthy v. City of Dubuque, 13 id. 86, show that a large tract — several thousand acres — was added to the city for the sole purpose of increasing the revenue of the city; the land was used exclusively for mining, horticultural, grazing, and agricultural purposes; the court held that the land. Was not subject to city taxation. In Fulton v. City of Davenport, 17 id. 404, sixteen acres were exempted from city taxation; no street having been opened, and no road touching it anywhere. Also in Buell v.Ball, 20 id. 282, 230 acres were held exempt from city taxes, it being about one-quarter to three-quarters of a mile from any city lots. It was decided in the case of O’Hare v. City of Dubuque, 22 id. 144, that forty-seven and one-half acres of mining and agricultural land were subject to city taxation, for the reason that it was on a street; but in the same case nineteen and one-half acres were held not taxable, not being on any principal street and were hardly accessible, certainly not by any street leading to the business part of the city. In 34 id. 199, several cases are reported together, under the head of Kaufman v. Durant. One tract of 80 acres and another of 50, used for agricultural purposes, were held to be taxable on the theory that they were made valuable, and might be divided and sold at an advantage for city lots; one body of 16 acres and another of 17 were also held to be subject to city taxes, because they were each occupied by the owners as their residences, the land being in orchards, lawns, etc. In Brooks v. Polk County, 52 id. 460, 120 acres of undedicated land were held to be taxable for city purposes, although occupied as a pasture, because the land had been enhanced in value by its location in the city, and could be sold for city lots ^ an a¿vancec] prjce because of the street and other city improvements near them. Even if we take the law as established in Iowa as our guide, this tract is liable to taxation in the city of La Cygne.
Where land is added to a city solely for the purpose of lessening the taxes of the city proper or increasing its revenue, it has been held in some of the states that taxes levied upon such land may be enjoined; but that rule would not apply to the facts in this case. On the other hand, it has been generally held in this country that cities have full power given them to impose taxes on agricultural and rural land within their boundaries. (Weeks v. City of Milwaukee, supra; Cary v. City of Pekin, supra; Arbegust v. City of Louisville, 2 Bush, 271; Hewitt’s Appeal, 88 Pa. St. 55; Kelly v. City of Pittsburg, 85 Pa. St. 170; Martin v. Dix, 52 Miss. 53; Hill v. City of Kahoka, supra.)
We believe the judgment of the court was correct, and recommend that it be affirmed..
By the Court: It is so ordered.
All the Justices concurring. | [
115,
125,
-40,
-84,
-102,
-32,
58,
-96,
104,
-79,
-93,
63,
-17,
-38,
16,
57,
-26,
-83,
85,
59,
71,
-74,
23,
67,
-10,
-13,
-25,
-35,
-80,
-51,
-12,
-51,
76,
52,
-54,
-43,
71,
7,
-99,
-34,
-122,
-114,
11,
77,
-48,
80,
52,
113,
90,
78,
117,
-49,
-78,
42,
62,
-29,
-88,
46,
73,
-67,
83,
120,
-66,
-51,
93,
7,
-80,
102,
-104,
-93,
-22,
10,
-128,
25,
-126,
-24,
115,
-74,
-122,
84,
11,
-103,
12,
98,
98,
1,
45,
-17,
-16,
-117,
14,
-34,
61,
37,
-76,
25,
-5,
10,
-74,
-97,
116,
80,
70,
-2,
-18,
-44,
30,
124,
5,
-58,
-42,
-75,
-105,
56,
-104,
1,
-33,
7,
48,
97,
-19,
14,
89,
-64,
49,
-37,
-114,
-47
] |
Opinion by
Clogston, C.:
The claim made by the plaintiff in error, and upon which a reversal of this judgment is asked, is that the notes and mortgages executed to Harpster under a resolution of an informal meeting of the board of directors is absolutely void, not only in the hands of Harpster, but in the hands of the savings bank. First, for the reason that as to Harpster, he having full knowledge of the manner in which the special meeting of the board of directors was called, and the fact that only a part of the board had knowledge of the meeting, the notes and mortgages in his hands would be void; that, as the savings bank obtained no interest or possession of the notes and mortgages until after the commencement of the action to close up the corporation and to appoint a receiver, and for the cancellation of the notes and mortgages, it was bound to take notice of the fact of the pendency of the action, and could acquire no interest during the litigation. On the part of the defendants in error, Harpster and the savings bank, it is insisted that the court erred in rendering judgment for only $20,000, including the claim of the bank; that, under the finding of the court, a valid indebtedness existed for more than $50,000 from the company to him; that the mortgages were given to secure that sum, and that he was entitled to a judgment for the entire amount, and for a foreclosure of the mortgages upon, the property of the company.
One fact over which there is no dispute, or which at least is conclusive so far as the court is concerned, is that the indebtedness actually existed between the corporation and its president, B. F. Harpster. It -is also clear that the old indebtedness of some $57,974.32, due from the old company to him, was authorized by the board of directors, and that a first lien was given upon their property for its security. It is also shown that the advances of $60,000 made to the new company were made with the full knowledge of the directors of the new corporation, and that they were so made upon the strength of the old arrangement by which he was to have a lien upon the property for security. This much may.fairly be said to be conclusively established by the findings of the court. If this be true, the new’company, having received the proceeds and property of the old company, tacitly or mutually assuming its liabilities and allowing the business of the company to go on unchecked and unchanged, and advances to be made under the new arrangement as they were made under the old, without objection or complaint, is in no condition to deny the existence of a first lien upon its property for the payment of this claim; and if this be true, then it is of very little importance whether the mortgage be foreclosed and the property sold thereunder, or whether a judgment be rendered and such judgment be declared a first lien upon the property of the corporation. In either event, as far as the State Savings Bank of St. Joseph is concerned, it'would give it complete protection. Whether it had knowledge, or was bound to take knowledge of the pendency of the action seeking to cancel and set aside the mortgage and notes, would be immaterial. . Its security would be the same, a first lien upon the property of the corporation; and if this is true as to the bank, it would be equally true in the case of Harpster; he, having a first lien upon the property for the security of his claim, would be in no better condition by having a foreclosure of his mortgage than he would to have the judgment made a first lien thereon.
.But we are not prepared to say that these mortgages are void even as to Harpster, and perhaps it is not necessary to decide whether they are or not. The result will be the same in either event. The meeting of the directors was at least voidable, and upon this direct attack would have to fall; but beyond that, might not the officers of the corporation, knowing of this indebtedness to Harpster, carry out the spirit and intent of the contract under which the money had been furnished, and make the equitable contract and mortgage a specific or a legal one? If they could do that, then they had the power to execute the mortgages and notes — the evidences of that debt. It was creating no new lien upon the property, or placing the company under any greater obligations, nor was it placing its property in any new position or danger. They had power under the contract to make the notes, and these notes were to be secured by a first lien upon all the property of the company, and under all the findings made by the court we are compelled to hold that the officers of the company, under said contract and arrangement, had ample authority to execute the notes and mortgages sued on.
With this view the judgment of the court below must be set aside, and upon the findings of fact we feel called upon to direct such judgment as ought to have been rendered by the court below: that the State Savings Bank of St. Joseph, Missouri, have and recover a judgment against the plaintiff for the sum of $17,525.41, with interest at the rate of ten per cent, per annum from the 20th day of February, 1887; that B. E. Harpster have and recover a judgment against the plaintiff for the sum of $50,000, less the judgment of the State Savings Bank of St. Joseph, Missouri; and that this judgment bear interest at the rate of twelve per cent, per annum from the 7th day of November, 1884, and the mortgages to secure said sum be foreclosed.
By the Court: It is so ordered.
All the Justices concurring. | [
48,
124,
-40,
-84,
2,
-32,
42,
-102,
73,
-96,
-93,
-13,
-23,
-53,
16,
45,
-28,
27,
-15,
106,
87,
-77,
7,
105,
-46,
-109,
-15,
-123,
-79,
79,
-12,
-35,
76,
32,
-54,
-11,
102,
-125,
-57,
-44,
78,
-121,
24,
100,
-7,
80,
48,
27,
-48,
77,
113,
-100,
-13,
44,
-103,
79,
105,
40,
127,
61,
-48,
-8,
-118,
-123,
95,
5,
33,
85,
-100,
71,
-24,
44,
-120,
-79,
1,
-24,
122,
-74,
-122,
84,
35,
25,
13,
98,
98,
-128,
-27,
111,
-68,
-99,
46,
-18,
29,
-122,
-111,
89,
-125,
47,
-73,
-99,
80,
66,
-122,
-2,
-18,
-100,
29,
108,
5,
-54,
-42,
-109,
-113,
124,
-102,
-117,
-9,
-93,
48,
97,
-52,
32,
93,
-84,
58,
27,
-114,
-7
] |
Opinion by
Holt, C.:
The defendant in error, C. N. Ela, through his agents Riley & Burge, entered into a contract with George West, plaintiff in error, of which the following is the written evidence:
“Received of George West fifty dollars, on lots number 509, 511, 513 and 515, Lincoln street, Williams & Dillon’s addition, city of Topeka, Kansas; the purchase-price to be twelve hundred dollars, to be paid as follows: Fifty dollars cash down, eleven hundred and fifty dollars to be paid upon the delivery of a good warranty deed, sufficient to convey the property clear of all incumbrances. C. N. Ela.
Riley & Burge, Agents.”
Ela refused to convey; West then brought this action against Ela and his wife, Jennie N. Ela, for specific performance of contract. His averment in the petition concerning Jennie N. Ela is, “that the defendant, Jennie N. Ela, is the wife of her co-defendant, O. N. Ela, and claims to have some interest adverse to this plaintiff in said property; wherefore she is made a party defendant herein, to answer to any claim she may have therein.” To this petition the defendant answered by a general denial, but admitted that Jennie N. Ela was his wife, and denied under oath that Eiley & Burge had any power to make this contract for him. Jennie N.' Ela in her separate answer admitted she was the wife of her co-defendant, and claimed an interest in the property described in plaintiff’s petition; she denied every other allegation therein. The cause was tried by a jury May 5, 1887, which returned the following verdict:
“We, the jury impaneled and sworn, do upon our oaths find for the plaintiff, and against the defendant C. N. Ela.”
The action was passed until the 11th of June, 1887, when a motion for a new trial, which had been filed by defendant in due time, was overruled. The plaintiff then offered to prove the present value of the inchoate right or interest of the defendant Jennie N. Ela, as the wife of defendant, to the property described; and also at the same time, and after the court had given judgment in favor of Jennie N. Ela, asked the court to refer the case to a referee to be appointed by the court, to take proof and report the value of such right and interest; also at the same time asked the court to frame, direct, and submit to a jury the question of its value. These motions and offer to introduce testimony were denied and refused. Plaintiff excepted, filed his motion for a new trial, and brings the case here properly for review.
It is conceded that this property is not the homestead of the defendants. It is claimed by the plaintiff that the interest that defendant Jennie N. Ela had as the wife of co-defendant, was an incumbrance on the land in question, and that its value was a proper subject for judicial investigation and determination; and after having ascertained by proper evidence the value of her interest, whatever it may have been, should have been deducted from the purchase-price to be paid by plaintiff, if she refused to convey. Before we can pass upon the correctness of the claim of plaintiff, we are called upon to decide whether the testimony was offered in due time, and whether the court erred in refusing to refer this subject to a referee, or submit this question to a jury. By the record it fairly appears that the jury which tried the case had been discharged ; that there was no offer or effort to produce testimony at the trial of the value of this supposed inchoate right or interest of Mrs. Ela. It was offered after the motion for a new trial by defendants had been overruled and judgment rendered in favor of Jennie N. Ela. Ordinarily it is largely within the discretion of the trial court to open the case for the purpose of admitting evidence, provided the pleadings are sufficient to justify it. In this action there was nothing in the pleadings to raise even an inference that the question of the value of the wife’s supposed interest would be litigated; the only allusion to her interest being that part of the petition cited above; the prayer of the petition was that both husband and wife be required to execute a warranty deed, and be forever barred hereafter from interfering with said real estate or the plaintiff in his possession thereof; nor was there an application for leave to amend the petition so that any issue on this question could be formed and tried; but after the trial, after the jury had been discharged, and after a judgment in favor of defendant Jennie N. Ela had been rendered, without any change in the pleadings, without any reason being given why the testimony was not introduced before, the plaintiff then offered to introduce evidence concerning the value of this supposed interest of Mrs. Ela. The court declined to litigate that question at that time, or to appoint a referee, or to submit questions to another jury. In this we see no abuse of judicial discretion. In fact, we think the ruling, of the court was proper under the pleadings.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
19,
104,
-19,
79,
-56,
96,
40,
-118,
43,
-128,
37,
87,
-115,
-60,
20,
121,
-25,
109,
-11,
107,
68,
-77,
39,
37,
-46,
-109,
-47,
-51,
-79,
-51,
-11,
-41,
76,
48,
-54,
-99,
3,
-62,
-59,
28,
-114,
-120,
9,
100,
-37,
-56,
52,
125,
20,
73,
81,
-66,
-13,
42,
60,
75,
-20,
42,
-21,
41,
-48,
-71,
-94,
-41,
125,
22,
-128,
36,
-100,
7,
78,
14,
-112,
53,
9,
-24,
123,
-74,
-122,
116,
5,
-117,
72,
102,
102,
49,
-124,
-87,
-8,
-100,
47,
115,
-115,
39,
-80,
72,
41,
8,
-74,
-103,
117,
18,
39,
-10,
-24,
21,
28,
104,
11,
-85,
-108,
-110,
-113,
118,
-114,
27,
-1,
15,
37,
81,
-49,
-96,
93,
7,
56,
-101,
31,
-68
] |
Opinion by
Simpson, C.:
Cuykendall commenced his action in the district court of Anderson county, alleging that he was the owner in fee simple of the north half of lots 9,10,11 and 12, in block 76, in the city of Garnett; that said lots front 70 feet on Main street and 180 on Seventh avenue, are improved by a dwelling-house, fencing and otherwise, and are occupied by plaintiff and his family as a residence; that the dwelling-house faces on Main street, and the outlet and inlet to the property is over and upon these two streets; that the railroad company, on or about the 1st day of March, 1886, constructed, and has ever since operated, its line of road in and upon said Main street, and made an embankment six feet in height near the east side of said Main street, and directly up to and fronting against the west side of plaintiff’s property; that said embankment and line of railroad are so constructed as to obstruct the street, and are illegally and improperly made and maintained; and he prays for a judgment for damages. The railroad company pleads a city ordinance granting it the right-of-way over and upon said street and others, and that the line was constructed in accordance with the terms and conditions of the ordinance. At the trial the following special interrogatories were answered by the jury, and a verdict returned in favor of Cuykendall for $190:
“ 1. Is the defendant’s railway constructed along and upon Main street west of plaintiff’s property ? Ans.: Yes.
“2. What is the distance from plaintiff’s lots to the railroad on Main street? A. Northwest corner, 33|- feet more or less; southwest corner, 27 feet more or less.
• “ 3. How many feet on Main street is there on the east side of defendant’s railroad and between the railroad and plaintiff’s property that is now open for use? A. Outside of sidewalk fifteen feet more or less.
“4. Does the defendant’s railroad obstruct the means of ingress to and egress from plaintiff’s premises to and upon Main street? A. Yes.
“5. Does the defendant’s railroad obstruct the means of ingress to and egress from plaintiff’s premises upon Seventh street? A. No.
“ 6. If the defendant’s railroad obstructs the plaintiff’s ingress and egress to and from Main street, state in what such obstruction consists. A. By defendant’s railroad embankment.
“ 7. If defendant’s railroad obstructs the plaintiff’s ingress and egress to and upon Seventh avenue, state in what such obstruction consists. A. Nothing.”
The question involved in this case has been the subject of much consideration in this court, and three opinions have been rendered which mark with some degree of reasonable certainty the line between the liability and non-liability of railroad companies whose lines are constructed along public streets, to abutting owners for damages. These cases are: A. & N. Rld. Co. v. Garside, 10 Kas. 552; C. B. U. P. Rld. Co. v. Andrews, 30 id. 590; O. O. C. & C. G. Rld. Co. v. Larson, 40 id. 301. The rule to be deduced from these cases, and from what has been said by the court in the eases of C. B. Rld. Co. v. Twine, 23 Kas. 585; K. C. & O. Rld. Co. v. Hicks, 30 id. 288; and Heller v. A. T. & S. F. Rld. Co., 28 id. 625, is that in order to justify a recovery for damages by the abutting lot-owner, there must be such a practical obstruction of the street in front of the lots that the owner is denied ingress to and egress from them. While the title to the streets is in the county, the legislature has given to the city government the power of full control. The abutting lot-owner has no greater right to the use of the public street than a railroad company that has been authorized to construct its line along it. Each must respect the use of the other, but nothing short of a practical obstruction of the use by one will be a cause of action to the other. A railroad is not an unreasonable obstruction to the free use of a street, but rather a new and improved method of using the same, and germane to its principal object as a passage-way, like the electric, steam motor, and horse-car lines. (Mills, Em. Dom., §199; Briggs v. Horse Rly. Co., 4 N. E. Rep. 546, 79 Me. 363; Slatten v. D. M. V. Rly. Co., 29 Iowa, 149.) So that if the location and construction of the line of railroad are authorized by the city council, and its location in the street is such as to give the lot-owner ingress to and egress from his lots, such use of the street by the railroad company does not interfere with the use of the lot-owner, and consequently he cannot recover for those remote and indirect inconveniences “ arising from smoke, noise, offensive vapors, sparks, fires, shaking of the ground,” and other annoyances. (Garside Case, 10 Kas. 552.) But where the location of the track is such that space enough is left in the street in front of the lots of the abutting owner, so that he can pass between the sidewalk and track, and the railroad is operated in a legal and proper manner, the lot-owner cannot recover because the space within which he has heretofore passed from and to his lots is restricted.
There are cases in which a different rule would be applied, as where the city council has not authorized the use of the street by the railroad company; or where the railroad is operated in an illegal or wrongful manner; or where the railroad company has practically obstructed the whole street so that no one can pass and repass: but the facts in this case call for the application of the rule as laid down above. The jury specially find that there is a part of the street immediately in front of the lots owned and occupied by the defendant in error, and outside of the sidewalk fifteen feet in width between the sidewalk and the side of the railroad which is open for use, and this gives him reasonable ingress and egress. ' There is another reason why the defendant in error cannot recover: his property is situated on the corner of Main street and Seventh avenue, fronting on Main street seventy feet and fronting on Seventh avenue one hundred and sixty feet. The jury specially find that the railroad does not obstruct the means of ingress to and egress from plaintiff’s premises to and upon Seventh avenue, the law being that “although one public way to property is closed, if there is another left, the property-owner sustains no actionable damage.” See the Garside case, and the following authorities cited therein: Feering v. Erwin, 55 N. Y. 486; Castle v. Berkshire, 11 Gray, 26; Ingram v. Rld. Co., 38 Iowa, 669; Burr v. Oskaloosa, 45 id. 275; Petition of Concord, 50 N. H. 530; Lutterloh v. Mayor, 15 Fla. 306.
If the plaintiff in error could recover in this action at all, it would be on the theory that there- was such a departure by the railroad company from the terms and conditions of the ordinance of the city authorizing its location and construction, that the railroad track and embankment was a nuisance; that while the city gave the railroad company the use of a part of the street, it did not authorize the use of the particular portion of the street, and that the road was not constructed and operated in a legal manner. If these facts had appeared in the record, what would be the measure of damages ? Proof of damages at the trial was confined in the evidence to the difference in market value before and after the construction of the road, and while the intructions of the court approached nearer to the right basis, the true measure was not reached. It is doubtful under the supposed state of facts, whether-the plaintiff below could recover only such damages as had occurred up to the commencement of the action. ( Uline v. N. Y. C. Rld. Co., 101 N. Y. 98; and authorities cited in that case.) “ Where one creates a nuisance, and permits it to remain, so long as it remains it is treated as a continuing wrong, and giving rise over and over again to causes of action.” (K. P. Rly. Co. v. Mihlman, 17 Kas. 224.)
It is recommended that the judgment- of the district court be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
-16,
-4,
-36,
-52,
-70,
-32,
56,
-54,
73,
-95,
-28,
87,
-83,
-54,
25,
33,
-90,
111,
-43,
59,
-28,
-93,
67,
-29,
-112,
-45,
115,
69,
-74,
73,
-28,
-41,
76,
48,
-56,
85,
70,
64,
-57,
28,
-114,
-83,
-87,
72,
-127,
96,
36,
123,
68,
79,
49,
-113,
-13,
42,
24,
-29,
73,
45,
-49,
43,
-47,
121,
44,
23,
124,
12,
-127,
102,
-103,
3,
-22,
56,
-104,
53,
0,
-8,
115,
-90,
-122,
118,
9,
-37,
12,
-30,
99,
1,
73,
-17,
-24,
-40,
15,
-2,
-117,
-89,
-78,
1,
-53,
46,
-73,
-99,
113,
80,
6,
-8,
-26,
68,
25,
108,
7,
-113,
-108,
-111,
-113,
32,
-124,
23,
-29,
3,
17,
96,
-49,
-86,
95,
70,
48,
27,
15,
-15
] |
The opinion of the court was delivered by
Johnston, J.:
This was an action to recover the sum of $45.24. There is a corresponding importance in the amount involved and the questions presented here for decision. C. B. Codding seeks to recover from Kock Creek township, in Pottawatomie county, the price of certain material furnished for the completion of two bridges on a highway of that township. The jury awarded him the amount of his claim, and the verdict has the sanction of the court. The principal contention is, that the verdict is not sustained by the evidence. That the material was furnished there is no doubt, and most of it was used for the purpose named. A. H. Eoberts, the road overseer of that district, procured the material for the township. He testifies that he applied to the township board for material to construct the bridges, and thus make the highway passable. The board at first refused to furnish the material because it thought it could not afford the expense, but finally the inhabitants of the district proposed to build the abutments of the bridges at their own cost, and then the township board on that condition agreed to furnish the material to complete them, and directed him to buy the material when the abutments were built; and, upon this authority, he made the purchase. The authority to purchase is disputed by some of the township officers, but this dispute has been settled by the jury, and there being sufficient testimony, its conclusion upon that point is final. It is claimed, however, that the testimony of Eoberts and others as to the action of the township board was incompetent. In §4, chapter 168 of the Laws of 1885, it is provided : “ The clerk of said board shall keep a record of all the official acts and proceedings of the board, in a well-bound book, to be provided by the township for that purpose, which record shall be signed by the chairman and clerk.” Plaintiff in error urges that as the proceedings of the board are required to be recorded, oral evidence cannot be substituted to show that which the records should contain, or anything that would vary or add to the same. The record of the township meeting at which the action was taken was offered in evidence, and is shown to be only a synopsis of the proceedings of the board. That portion of the record which refers to the matter in issue is as follows: “Board by motion agreed that if Road District No. 1 put in abutments for two bridges, 10 and 20 feet span, township would furnish plank for the same.” The form of the motion or resolution upon which the action was taken is not given in the record, and it is apparent that only an abstract of the proceedings of the board was committed to writing. The testimony of Roberts does not in fact contradict the record, but only supplements it as to facts which occurred but were not entered in the record book. "We think it was competent to show by parol evidence the resolution which was adopted, and also to show who was directed to purchase the material for the bridges. Neither the statute quoted nor any other renders any act or proceeding of the board void because it is not recorded, nor makes the records of the board the only evidence of their actions. (Gillett v. Comm’rs of Lyon Co., 18 Kas. 410; Rld. Co. v. Tontz, 29 id. 460; Rld. Co. v. Comm’rs of Stafford Co., 36. id. 121; The State, ex rel., v. Comm’rs of Pratt Co., just decided; same case, 22 Pac. Rep. 722.)
-' Complaint is made because the court instructed the jury that it was unnecessary to consider the testimony as to whether or not Codding had presented his claim to the township board. There would be some cause for the complaint were it not that the board had declined payment for other reasons. Demands against the township when itemized and verified are to be presented to the township board for audit and allowance, and ordinarily claims should be so presented before the action is brought thereon. (Laws of 1885, ch. 168, § 9.) The claim was presented to the township board in this case, but it is disputed whether or not it was verified. No objection was made at the time of presentation on account of the lack of verification, and the claim was refused upon the alleged ground that there was no authority in the overseer to obligate the township for the material furnished. In this state of the, case the testimony relating to the presentation of the claim was unimportant, and hence the instruction was not error.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
-16,
110,
-8,
-35,
74,
-32,
58,
26,
89,
-95,
-12,
83,
-83,
-62,
25,
99,
-25,
125,
-32,
106,
-58,
-77,
55,
-53,
-106,
-13,
-5,
-57,
-79,
77,
-12,
-41,
76,
48,
74,
-99,
102,
96,
-59,
92,
-50,
-114,
-117,
76,
89,
64,
60,
63,
98,
79,
49,
-114,
115,
42,
24,
-61,
-23,
40,
79,
-85,
65,
-16,
-68,
-123,
127,
4,
-112,
6,
-104,
3,
-56,
46,
-104,
49,
-107,
-8,
115,
-74,
-122,
-12,
1,
-103,
8,
102,
98,
33,
-108,
-19,
-4,
-36,
14,
-2,
-115,
-90,
-110,
89,
-61,
9,
-74,
-35,
116,
82,
4,
-10,
-25,
5,
89,
44,
7,
-113,
-96,
114,
-113,
60,
-102,
3,
-57,
-87,
50,
97,
-51,
-46,
77,
71,
59,
27,
-97,
-72
] |
Opinion by
Holt, C.:
On the 29th day of December, 1888, in the Montgomery district court, G. C. Jackson, the defendant, was convicted of obtaining money under false pretenses, and was sentenced to confinement in the penitentiary for four years. From that judgment he appeals to this court. The only question we can consider under the record, is whether such verdict aud sentence were supported by sufficient evidence.
In the summer and fall of 1887, G. C. Jackson, J. C. Price and Daniel Wilson owned about 380 or 390 head of yearling steers, kept at Hayden’s ranch, on Lightning creek in the Indian Territory. About the middle of November, 1887, the defendant, Jackson, entered into some negotiations looking to the sale of his interest in the cattle to Daniel Sanders, a colored man living in the territory, and at that time went with him and showed him 175 or 180 head of them. There was no def inite understanding arrived at between them at that time. After some further parley, on the 2d of December, 1887, Jackson made a conditional sale of 383 head of cattle to Daniel Sanders and one G. C. Funk, for the price of $2,900. This sale was contingent upon the finding of at least 300 head of cattle, and the approval of Sanders and Funk after they had made an examination of the stock in the territory. For various reasons neither Sanders nor Funk saw the cattle after this conditional sale, and upon the 9 th of December, Funk failing to appear, a sale of the same cattle was effected by Jackson, Price and Wilson to Daniel Sanders. On the 2d of December, when the conditional sale was made to Sanders and Funk, a bill of sale was executed by Jackson, Price and Wilson for 383 head of cattle in the Indian Territory, to Sanders, and delivered to him; and when this new sale was made, it was agreed by them all that the bill of sale made on the 2d of December should remain as the evidence of this sale. On the 9th of December, the same time the sale was made, Sanders executed a bill of sale to Bridges of a part of the cattle, and Bridges furnished a portion of the money to pay Jackson, Price, and Wilson. At this time there was $2,645 paid to the First National Bank of Coffeyville, Kansas, to extinguish a debt of Jackson, Price, and Wilson. There is a little uncertainty as to the amount paid in money and the amount settled for by note signed by Sanders and Bridges; the cashier of the bank testified that $2,027 was paid in cash, and a note executed for $618.35; another witness testified that there was $2,200 paid in cash. At the same time there was a note for $254.65 executed by Sanders and Bridges and delivered to Jackson.
Jackson stated at the time of the sale that the cattle were in the Indian Territory; that they might be a little scattered, but were all there; that four or five of them might have died, out of the original herd, but at least 383 head were in the territory belonging to them. Sanders and Bridges found after search and investigation only about 50 head of steers, and a part of those were claimed at first by Harrison, Turner and Henry C. Hayden as their own property. Their claim was soon after abandoned.
It appears in evidence that on the 20th of November, 1887, twelve days before the conditional sale to Sanders and Funk, and nineteen days before the sale to Sanders upon which the money was paid, 202 head of cattle bearing the same description as the cattle owned by Jackson, Price and Wilson were driven from Hayden’s ranch, in the Indian Territory, to Montgomery county, Kansas, and there shipped to Kansas City, Missouri, and sold. They were shipped in the name of Harry Still and Henry Clay; they were really shipped by Harrison Turner and Henry C. Hayden, but in the deposition introduced at the trial, Turner stated that his name was Harry Still, although he was known as Harrison Turner, and Hayden stated that his real name was Henry Clay, but that he was often called Henry C. Hayden.
We think this shipment was with the knowledge at least, of the defendant Jackson. James Thornton testified that on the 20th of November, 1887, that Hayden, Still, Jackson the defendant, Price, three colored boys and himself, went to the Indian Territory and cut out of the herd of cattle belonging to Jackson, Price and Wilson 202 head of steers and drove them to the railroad; they drove first to Russell creek and then to Chetopa, thence back to Russell creek, where they were put on the cars and billed for Kansas City. He testified that he knew the Jackson, Price and Wilson cattle, and these were cut out of that herd, and only 50 head left on the ranch. Pie stated that at the time he was at work for Jackson, and went with the cattle from Chetopa to Kansas City.
This was the substance of the testimony upon which the verdict of guilty was found. To be sure there was the deposition of Still and Hayden, taken in the Indian Territory, that the cattle shipped at that time were their own cattle, and not the property of Jackson, Price and Wilson at all; but we are fully satisfied from all the evidence in the case, that the 202 head of steers shipped to Kansas City were the cattle that belonged at that time to Jackson, Price and Wilson, and that Jackson himself knew of, and probably was a party to that shipment and the subsequent sale. When he made the statement to Sanders and Bridges at the time of the sale, December 9, 1887, that the cattle described in his bill of sale were at Hayden’s ranch, Lightning creek, in the Indian Territory, it was a false statement, and he knew it to be such when he made it, and he made it for the purpose of obtaining from Sanders and Bridges the money to pay Jackson, Price and Wilson’s indebtedness to the bank. He said the cattle were in the Indian Territory and belonged to them, when he knew they were not there, and had been sold. By this false statement he induced Sanders and Bridges to pay over $2,000 cash to the bank, and give their note thereto for over $600, to liquidate the indebtedness of the firm to which he belonged.
After a consideration of all the testimony, we believe that the verdict was amply sustained by the evidence, and recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
112,
-29,
-36,
77,
58,
-32,
8,
-102,
75,
-94,
-74,
83,
-23,
82,
4,
125,
-89,
69,
85,
105,
-26,
-105,
15,
113,
-78,
-45,
89,
-35,
49,
77,
-92,
-43,
9,
48,
10,
29,
-94,
-30,
-63,
30,
-50,
-123,
-71,
-60,
95,
0,
52,
111,
22,
74,
-11,
-81,
-9,
42,
28,
99,
73,
42,
43,
42,
-48,
-15,
-78,
-57,
-67,
22,
18,
98,
-100,
7,
-54,
62,
-104,
53,
9,
-8,
123,
-74,
-122,
116,
45,
-115,
-88,
102,
102,
33,
-36,
-19,
32,
-120,
47,
93,
-115,
-26,
-112,
72,
3,
45,
-106,
-99,
96,
22,
14,
-4,
-13,
13,
28,
104,
-124,
-98,
-74,
-93,
45,
61,
-98,
27,
-45,
-89,
51,
97,
-51,
-30,
77,
71,
124,
27,
-113,
-11
] |
Opinion by
Simpson, C.:
On the relation of the county attorney of Shawnee county, an alternative writ of mandamus was issued out of the district court of Shawnee county on the 14th day of November, 1888, directed to the board of county commissioners of said county. It recited that on the 12th day of May, 1888, H. D. Rice filed with the said board of county commissioners a petition signed by a majority of the resident landholders within one-half mile on either side along the line of the county road on the township line between townships eleven and twelve, of range sixteen, in said county, asking for the improvement of said road between the points enumerated therein, and the assessment in payment thereof to be made for five years in accordance with the provisions of chapter 214, Laws of 1887. That upon the filing of said petition the said board caused an entry to be made on its journals, commanding the county surveyor to make an accurate survey and careful estimate and specifications for the improvement of said road as petitioned for, as provided for in § 3, ch. 214, Laws of 1887; that on the 5th day of July, 1888, the surveyor filed with the board his report of the survey, with profile map and specifications as directed; that on the first day of October, 1888, application was duly made to the board to have appointed road commissioners for the improvement of said road as prescribed by the statute, but that the board refused and still refuses to appoint said commissioners.
The board for its answer and return to the alternative writ says:
“1. The petitioners have a plain and adequate remedy at law in this, that any one of them, or all of them, have the right to appeal from the order of the board refusing to appoint commissioners.
“2. The board refused because there was not a sufficient amount of money in the general fund to pay the current expenses of the county and make such improvements on said road, and that the levy to meet current expenses of the county was so large that if it made a levy to make the improvements petitioned for in addition to the levy to meet current expenses, it would exceed the limit allowed by law, or if the amount of the levy to meet current expenses was reduced in order to allow the levy for improvements, there would not be funds sufficient to pay the current expenses.
“3. The board was advised and believed that the law of 1887 providing for the improvement of county roads is unconstitutional.
“4. There was quite a number of petitions presented to the board under the law of 1887, that came up for action at the same time of this petition, and to make the improvements petitioned for by all to be made, would more than exhaust the general fund of Shawnee county.”
To this return there was a special demurrer filed as to each answer, and this demurrer was sustained. Standing on its return, the board brings the case here for review.
Numerous questions are discussed in the briefs of the plaintiff in error: among them is that of the unconstitutionality of the legislation of 1887; the insufficiency of the petition in not particularly designating the kind of road, whether state or county; and some other alleged errors. "We think that when a writ of mandamus is applied for against the board of county commissioners, for the performance of a public duty, which is accompanied by the expenditure of public money out of the general revenue fund of the county, or any specific fund, the alternative writ is fatally defective if it does not allege that there is a sufficient amount of the specific or general fund that can be appropriated to the purpose. The alternative writ in this case does not contain such an allegation. The answer to the writ does allege that there is not a sufficient amount of money in the general fund to pay the current expenses of the county and make such improvements. To this defense there was a demurrer interposed, and the truth of the answer is admitted by it. The theory upon which the demurrer was sustained by the court below must have been that the legislature of 1887 did not require any immediate payment of money out of the county treasury. It seems to us that the act in question contemplates that the improvements of the public roads made under its provisions shall be paid for in the following manner: First, the fees of the county surveyor for a survey of the road, the estimate of the cost, and the specifications of the improvement, and the map showing the several tracts of land within one-half mile on either side of the proposed improvements, at the end of the quarter within which the services are rendered by the surveyor. Second, the per diem of the commissioners and superintendent under §§ 4, 5, 6 and 7 of the act. It is not now necessary to decide whether the one-third of the cost of the improvement, to be paid out of the general fund of the county, means an immediate payment on the completion of the work, or that it can be paid in installments, at such times as may be designated in the petition, for the reason that the other payments above recited are plainly directed to be made out of the county funds as soon as the services are rendered. These cannot be postponed for future levies and collection. Hence, the performance of the duty must be accompanied by a provision for the payment of these necessary expenses, and as-it is alleged in the answer that there is not sufficient money that can be appropriated to these purposes, a good defense was pleaded. (See The State, ex rel., v. Comm’rs of Cloud Co., 39 Kas. 700.)
In this view it is not necessary to notice the very vigorous attack upon the validity of the act of 1887. There was error in the order of the court below in sustaining the demurrer to the answer, and because of it we recommend that the case be reversed, and remanded to the district court for further proceedings.
By the Court: It is so ordered.
All the Justices concurring. | [
-76,
-24,
-68,
92,
-22,
-64,
8,
-122,
65,
-71,
-11,
83,
-17,
-30,
0,
51,
-82,
61,
68,
123,
-59,
-77,
119,
97,
-78,
-13,
-11,
93,
-15,
-51,
-10,
-46,
74,
52,
-102,
-99,
70,
0,
15,
-36,
-114,
-117,
43,
-60,
-47,
-64,
52,
109,
6,
11,
21,
46,
-93,
40,
24,
99,
-56,
108,
89,
-85,
25,
-77,
-66,
-33,
126,
12,
-112,
-122,
16,
3,
-54,
47,
-72,
53,
20,
-8,
83,
-90,
-90,
118,
15,
-119,
8,
-10,
6,
17,
-91,
-17,
-72,
-83,
30,
-38,
-119,
38,
-126,
89,
74,
9,
-74,
-99,
93,
86,
75,
-2,
-19,
5,
82,
44,
6,
-117,
-80,
-77,
-49,
100,
-120,
3,
-25,
47,
48,
113,
-51,
-10,
95,
71,
49,
27,
-114,
-72
] |
Opinion by
Simpson,- C.:
This case was tried by the court at the December term, 1886, a jury being waived. All the principal facts are embodied in the following findings of fact:
“ 1. On September 1,1885, the plaintiff, Benj. R. Hillmer, was engaged in building and constructing a small dwelling-house on his farm near Topeka, in this county, when one Olney, the then duly-authorized soliciting agent of the Continental Insurance Company, defendant, came to where the plaintiff was building his house, and solicited the plaintiff to insure his house and other property described in plaintiff’s petition, and the plaintiff was induced by Olney, and did make the application hereinafter referred to, for the insurance of said dwelling house, and the personal property described in plaintiff's petition.
“ 2. At the time the said application was made, the building insured was in course of construction; the floor joists were in, studding set up; the floor or floor sills were on some kind of support, but there was no foundation under said contemplated house; there was no floor, roof, windows, doors, chimneys, or porches, and the intended house was not painted, lathed or plastered, all of which was then well known to said Olney, the soliciting agent of the defendant insurance company.
“ 3. At the time the said application was made, the said Hillmer, plaintiff, was working on the building, putting on rafters, and Olney was within fifteen or twenty ieet of the building, and the time was in the forenoon of September 1st, 1885, at about ten o'clock of said day.
“4. At the date of the taking of the application aforesaid, to wit, in the forenoon of September 1, 1885, by the plaintiff j no one occupied, nor had any one ever occupied, the said structure, nor could said building then be occupied by any person, all of which was then and there known to the said Olney.
“5. Said Olney, agent as aforesaid, at the time and place aforesaid,, in full view of said structure, wrote and filled out himself the application aforesaid.
“6. Olney, agent aforesaid, in filling out said application, knowingly made and wrote into said application for said insurance, false answers to the following questions, to wit:
“‘Ques.: If not completed, what remains to be done? Ans.: Painting, lathing and plastering.
“‘Q. Number of rooms plastered? A. Three.
‘“Q. Are there any porches? A. One.
“‘Q. Chimneys: material of same? A. Brick.
‘“Q. Condition? A. Good.
*“Q. What do they rest on? A. Foundation.
‘“Q. Stovepipes: how secured? A. In chimney in same room.
“‘Q. Occupancy: is the house occupied for private dwelling only? A. Yes.
“‘Q. By owner? A. Yes.
“ ‘Q. Title: have you a fee-simple title? A. Yes.
“‘Q. Is the property incumbered? A. No.’
EXHIBIT A.
“1. The application so made for the purpose of obtaining insurance on said property is in words and figures as follows, viz.:
“1 Gasoline permit desired for the full term, and assured will pay three dollars therefor on delivery of policy. There is no t.wo-thirds or three-fourths clause in the policy to be issued on this application.
‘“Application of Benjamin K. Hillmer for indemnity by the Continental Insurance Company of New York, against loss or damage by fire and lightning or tornado, in the sum of one thousand dollars, for the term of five years from the 10th of September, 1885.
“ ‘ Present cash value, $650.
“ ‘Amount asked for, $500.
“ ‘ $500. On my one-story, shingle roof, frame dwelling-house, 18x38 feet, built in 1885, with stone foundation.
“ ‘ $300. On household and kitchen furniture while therein; beds and bedding while therein; on sewing machine while therein; on family wearing apparel while therein; on family provisions and produce while therein, or in cellar; on silver plate or plated ware, or jewelry in use while therein; on printed books, engravings and paintings while therein; on piano, organ or other musical instrument while therein.
“ ‘ $200. On working horses and mules, not exceeding $100 on any one animal, while in barn or on farm, and against lightning while on or off the premises, in use or otherwise. On colts or cattle, not exceeding $50 on any one animal while in barn or on farm, and against lightning while on or off the premises. On farming utensils (other than reaper and thresher) while therein. On wagons, buggies, carriages, harness, robes and saddles while therein, or under cover on the farm. On grain in stacks on farm. On hay in stacks on the farm, or on cultivated field only, on farm herein described, (hay on marsh land not insured.) On roof, barn No. 2, •— feet by —, built in 18 — , with shed attached and including foundation. On-roof,-granary. On hogs on farm herein described. Total amount, $1,000.
“ ‘ Situated in the township of Soldier, and the county of Shawnee, state of Kansas. No. section 17, No. township 11, range 16. Dwelling-house: height on post from sill to eave, 10 feet.
“‘Q. Completed? A. No.
“‘Q. Condition? A. Good; to be painted in 1885.
“‘Q. If not completed, what remains to be done? A. Painting, lathing, and plastering.
“ ‘ Q. Number of rooms, exclusive of halls and closets? A. One hall, pantry and closet.
“ ‘Q. Are there blinds to windows? A. Will be.
“ ‘Q. Are there any porches? A. One.
“‘Q. Number of plastered rooms? A. Three.
“‘Q. Number of ceiled rooms? A. None.
“‘Q. Chimneys: material of same? A. Brick.
“‘Q. Condition? A. Good.
“ ‘Q. On what do they rest? A. On foundation.
“ ‘Q. Stove pipes: do they pass through the roof? A. No.
“‘Q. Or floor? A. No.
“‘Q. Stovepipes: Do they pass through partition? A. No; none near wood.
“‘Q. How secured? A. Enter chimney in same room.
“ ‘Q. Does the chimney enter garret or unoccupied room. A. No.
“ ‘Q. Occupancy: Is the house occupied for private dwelling only? A. Yes.
“ ‘Q. By owner? A. Yes.
“‘Q. Title: Have you fee-simple title? A. Yes.
“ ‘Q. If not, what kind of title have you? A. —.
“‘Q. Incumbrance: Is the property incumbered? A. No.
“‘Q. If so, what amount? A. —.
“‘Q. When due? A. —.
“ ‘Q. Have there been any proceedings for foreclosure? A. —.
“ ‘Q. Other insurance: Is there any other insurance? A. No.
“ ‘Q. Cash value of land and buildings? A. $1,300.
“‘Q. Number of acres? A. Five.
“ ‘ Q. How long have you owned the premises ? A. About two months.
“ ‘Q. Loss by fire: Have you ever had a loss by fire? A. No.
“‘Q. Incendiarism: Have you any fear of incendiarism? A. No.
“‘Q. Barn: Condition? A. —.
“‘Q. Granary: Condition? A. —.
“ ‘Q. Is it occupied for private barn only? Distance from occupied dwelling ?
“‘The foregoing is my own statement, and the questions are answered by me, or by my authority, and will be assumed as my act, and the statements are warranted to be a correct description of the risk. Also a correct valuation of the property named, and of all incumbrances. No exposure within 150 feet. Signed, Benj. B. Hillmer, applicant. Dated September 1, 1885.
“ ‘ State-, date, Chicago,-188 — .
“ 1 Indorsement: Permission is hereby granted to complete the within described dwelling-house, it being conditioned that the building is now occupied as stated in assured’s application. If the building is a new one in course of completion, and not occupied, this permit to terminate within thirty days from date hereof. All shavings and refuse to be removed daily. Signed by Sup’t.
“‘Tornado. 4-85-22. 500. Edition January, 1884. Installment application. Tobe used only for dwellings and farm property, churches and school-houses. 520733. 520734. Continental Insurance Company of New York. Benjamin B. Hillmer, applicant. North Topeka P. 0., Shawnee county, Kansas. Amount of indemnity, $1,000 rk. Pull term. $5. O. P. We have no yearly rate on this plan. Amount of installment note, $40. Amount of first installment, $10. Premium, $50. Policy fee, $3. Note. Note due December 1,1885, for first installment of $10. Amount cash paid, none.
“‘Questions for solicitors:
“‘1. How long has applicant resided in the place? A. Six years in the vicinity.
“‘2. Has this company any other risk within 150 feet? If so, give the name of insured, number of policy, and amount insured. A. No.
“‘3. Is this diagram strictly correct?
“ ‘4. Did you carefully examine stove-pipes and chimneys?
“ ‘5. Do you regard them as perfectly safe?
“‘6. Did you survey the risk personally?
“ ‘7. Do you fully recommend the risk?
“ ‘ O. Olney, Solicitor at Topeka, Kansas.
“ ‘Q. Shall we send the policy to you, or assured? A. To me.
“‘Jas. P. Tannee.
“ ‘ SPECIAL INSTBTJOTIONS TO SOLIOITOBS.
“‘Note below any explanations material to or peculiar feature of the risk, such as particulars of any loss by fire; date of same; cause of fire; on what property, whether insured; if so, in what company, etc. Or if property is incumbered, note applicant’s resources and ability to meet mortgage at maturity, etc., etc. B. J. Taylob, Supt.
“ ‘ Deab Sib: The diagram below gives all buildings named in application on the other side, and also all other buildings within 150 feet. In addition, I also make the following comments on the risk: Applicant expects to have all done except lathing, plastering and blinds, and be living in the house, as early as September 10th; so I made application accordingly. O. Olney, Solicitor.
“ ‘Make diagram showing buildings insured and all exposures within 150 feet, giving size, height and number of feet between them; say on each building what it is used for.’
[Blank diagram.]
“8. Olney, agent as aforesaid, at the time he wrote out said application for this insurance, asked the plaintiff Hillmer, in substance, the following questions, namely: ‘Have you any notes outstanding against the land?’ ‘Are there any notes that are liens on the property ?’ To these questions Hillmer answered in substance: ‘There are notes outstanding against the land;’ and thereupon said Olney made no further inquiry as to the incumbrances on the property, or to who held these notes, their amount, when due, or by what instrument or instruments they were secured on the property about to be insured. After such questions and answers as aforesaid, said Olney wrote into the application the answer to question number 6, ‘Is the property incumbered?’ the word ‘No.’ That after Olney had filled up the application, Olney asked Hillmer to sign it, and stated that it was all right; as an inducement to Hillmer to sign it at once, Olney stated that he was in a hurry to go and see other parties that day and secure reinsurance or renewals for his, Olney’s, company; and thereupon Hillmer signed the application without reading it over after Olney had filled in the blanks.
“ 9. Hillmer signed the- application in good faith, relying on the statements of the said Olney that said application was correct.
“10. Olney acted in bad faith with Hillmer in filling up the blanks in this application for insurance.
“11. Immediately after the application had been signed by Hillmer, Olney, as agent aforesaid, forwarded said application to J. E. Taylor, superintendent of the insurance for the defendant, the Continental Insurance Company of New York; and the said Taylor aforesaid, acting as superintendent for said company, as its general agent for the western states, returned to said Olney for delivery to the plaintiff, the policy of insurance sued on in this action.
“12. About the middle of September, 1885, the said Olney, acting as the duly-authorized agent of the said defendant insurance company, delivered the said policy of insurance to Hillmer, and Olney then collected from Hillmer $3 additional fee for a gasoline permit for the full term of said policy.
“13. Before the said application for insurance was made by Hillmer as aforesaid, to wit, July 8, 1885, Hillmer had obtained a loan on the land from Elizabeth L. Jarrett, de fendant, for three hundred dollars, through one Jonathan Thomas, who was the agent of Elizabeth L. Jarrett, at Topeka, in this county; and Hillmer had executed his note and mortgage to her for that amount, and which mortgage was held by Thomas as her agent, when this application for insurance was made; the mortgage above referred to provided in one of its conditions that Hillmer should insure the property for the benefit of said mortgagee, or secure such insurance for her benefit, as additional security for this loan of three hundred dollars; and which mortgage was, before the making of such application for said insurance, duly recorded in the register of deeds’ office for this county.
“ 14. Soon after the said policy of insurance was delivered by the agent of the insurance company defendant to Hillmer, he delivered the same to Thomas, the agent of Mrs. Jarrett, and afterward, and before the loss by fire of the property insured, Hillmer assigned the policy of insurance to Mrs. Elizabeth L. Jarrett.
“15. Before the assignment of said policy of insurance was made by Hillmer to Mrs. Jarrett, the said insurance company defendant, by its soliciting agent Olney, had taken an application for insurance for one McIntosh on a dwelling-house situated on a small tract of land adjoining Hillmer’s land, and this policy of insurance had been issued to McIntosh, and Thomas had as agent made a small loan of money to McIntosh, which loan was secured by a mortgage on McIntosh’s land, and which latter mortgage contained a condition similar to the Hillmer mortgage for a policy of insurance for the benefit of the mortgagee. The McIntosh insurance policy was also delivered to Thomas by said Olney, who was then acting as the agent of the mortgagee named in the McIntosh mortgage; Olney called at Thomas’s office, in North Topeka, for the purpose of collecting the first premium on the McIntosh policy from Thomas; Thomas then called Olney’s attention to the fact that the McIntosh policy was not made payable to the mortgagee named in the McIntosh mortgage, when Olney told Thomas that it would answer the same purpose if McIntosh, or the holder of a policy, would change the blank printed on the policy, and 'assign the same to the mortgagee; that he had practiced law for more than twenty years, and that he had never heard this proposition disputed; and thereupon Olney received from Thomas the first premium due on the McIntosh policy, and left the office. Afterward the said Thomas procured both the said McIntosh and the said Hill mer, though on different days, to assign their respective policies to the persons who held their respective mortgages, in pursuance of Olney’s suggestion, as Thomas supposed.
“16. On October 22,1885, the dwelling-house and personal property insured were totally destroyed by fire; the damage sustained by the plaintiff by reason of said dwelling-house being so destroyed by fire is |400; and the damage sustained by the plaintiff by reason of the personal property covered by said policy being destroyed by said fire is $300. A copy of said policy, with all its conditions and indorsements, including assignment, is hereto attached, marked ‘A,’ and made a part of these conclusions of fact.
“17. At and before the making of the application by said Hillmer for said insurance, the said Hillmer, plaintiff, had procured and purchased the lumber and material from the defendant, Jonathan Thomas, of which the dwelling-house described in said policy of insurance was then being constructed, and from which said dwelling-house was completed. Thomas, as a lumber merchant and material-man, and for which afterward the said Thomas formally filed the declaration of a mechanics’ lien, under the statute of the state in respect to mechanics’ Heos, by filing his declaration of such Hen in the office of the clerk of the district court of this county, November 19, 1885, on said dwelling-house and premises on which it was then situated, for the sum of $170.39, the balance then and there due to him for said lumber and material, and which sum is still unpaid for such material by said Hillmer, and which Hen, at the time of signing said application for said material, was then in law, and now is, an incumbrance on said property and premises.
“18. Before and at the time of making the application by Hillmer and the delivery to him of the policy in suit, a chattel mortgage had been given by Hillmer and wife to Millspaugh & Thompson for $133.25, of date August 17, 1885, due November 14, 1885, and filed for record in chattel-mortgage record book No. 7, for Shawnee county, Kansas, on the live stock covered by said insurance, and described in the application and policy herein; and which is still due and unpaid, and an incumbrance on said property.
“19. Before and at the time of the making of said application by Hillmer and the delivery to him of the policy in suit, a chattel mortgage had been given by Hillmer and wife to W. Ledeburg, which was written and filled up by Hillmer himself, for $125, of date December 6, 1883, due August 15, 1884, on the personal property and household goods situated in the dwelling-house, and described in the application and policy herein, and insured thereby, and filed for record in the chattel-mortgage record book of Shawnee county, vol. 5, December 8, 1883. Said Ledeburg, on August 9, 1884, filed affidavit of renewal on said mortgage, and on April 15, 1885, assigned said mortgage to one Elmer Hanson, who on August 15, 1885, filed affidavit of renewal thereto, and which mortgage is still due and unpaid, and was and is an incumbrance on said property.
P l.“20. At the time of the signing of said application by Hillmer and the delivery to him of the said policy, he knew of the existence of the several incumbrances above stated.
“21. Defendant insurance company never gave its consent to the assignment of said policy of insurance, by indorsement in writing.
“ 22. Within a few days after the loss by fire of the property so insured and covered by said policy, one Kneutson, the then special agent and adjuster of the defendant company, then living at Topeka, in this county, and having notice of the fire and the loss by the said plaintiff,- went to the office of Jonathan Thomas and made a full examination of the policy in the case, and of the assignment to Mrs. Jarrett, and also went to the place of the fire and examined the loss; and after the examination the said Kneutson, agent as aforesaid for defendant company, returned to the office of the said Thomas, and then agreed that said loss was a total loss, and promised the same should be adjusted and paid. Afterward, the defendant company having failed to adjust said loss, the plaintiff made formal proof to the defendant company of the loss by fire of the said property, and transmitted the same to the defendant insurance company at Chicago, Illinois, on the 21st day of November, 1885.
“23. When Hillmer signed the application for insurance, the said Olney executed and delivered to him the following receipt, namely:
“ ‘Installment Receipt, Westeen Depabtment, Chicago, III.— Received of Benjamin R. Hillmer an application for insurance by the Continental Insurance Company of New York, on property to the amount of one thousand dollars, for the term of five years, subject to the approval of the company; also a note or notes for the payment of the premium in five installments, as represented on the back of this receipt; also all to be returned if policy is not issued. Dated at North Topeka, this thirty-first day of August, 1885. O. Olnet, Agent.’
[ Over.]
“And upon the back of this receipt was the following contract, partly written and partly printed:
“ ‘You have given note amounting to ten dollars for first installment upon your premium and for the payment of policy and survey fee, which will fall due on the first day of December, 1885, also a note of four installments, due as follows: <§10, due on the first day of September, 1886; $10, due on the first day of September, 1887; $10, due on the first day of September,'1888; $10, due on the first day of September, 1889.
“ ‘A printed notice will be mailed you fifteen days before each installment falls due, directing you how to remit the money, but the failure of such notice to reach you will not relieve you of your obligation to pay each installment at maturity, in order to keep your policy in force. If you fio not receive the polioy within thirty days from the date of this receipt, or a notice to pay installments at the proper time, address R. J. Taylor, Sup’t, Chicago, 111.’
“At the time of the loss by fire of the property described in the petition of plaintiff, Hillmer had not paid any installments of the premium for the insurance, except $3 paid at the time of receiving the policy from Olney for the gasoline permit. The payments which he was to pay for the said premium are all described in the above contract here copied. The first note, falling due December 1, 1885, was sent with the other notes by Olney, to the home office for collection, and according to the contract of employment between Olney and the insurance company, the note of ten dollars belonged to Olney, and the company was collecting this note for Olney in the transaction hereinafter set forth.
“24. Some time after Kneutson, the adjusting agent of the defendant company, had examined the loss sustained by plaintiff by reason of said fire, and Thomas and Hillmer not hearing from said company, Thomas wrote again to the home office at Chicago, Illinois, on or about November 28,1885, as agent of Hillmer and Mrs. Jarrett; this letter was answered by Taylor, superintendent of defendant company, November 3, 1885, as follows:
[Loss Department. No. 28,256.]
Office Western Department, Continental Insurance Co., j Corner Clark and Adams Sts. — R. J. Taylor, Sup’t. [■ November 3d, 1885.)
J. Thomas, Esq., North Topeka, Kansas — Dear Sir: We have yours of October 31, asking us if any action has been taken by the company relative to an adjustment of loss on property belonging to Benjamin R. Hillmer. In reply would say we forwarded papers in this case October 28, to our special agent, K. Kneutson, of Topeka; we have no report from him as yet, and we do not know whether he has investigated the case or not. If he has not, he will do so as soon as he can reach it.
Yours truly, R. J. Taylor, Sup’t.
“25. On the 18th day of November, 1885, the home office at Chicago, Illinois, wrote the following letter to F[illmer, which was received by him by due course of mail at Topeka, Kansas, and which letter Hillmer delivered to Thomas, for Thomas to send the money therein asked for, and to answer the same, which letter was as follows, to wit:
Oi~xoE WESTEBN DEPA1~TMENT, CONTX~NTA~ I~SU1~ANOE Co., N. V. LAIG SIDE BUILDING, COB. OLAB~ AND ADAMS STS., OBECAGO, ILL., November 18, 1885.
B. R. HiUmer, North Topeka, Kansas-DEAR Sin: Your note given for the first premium for insurance in this company, under policy No. 520,733, will fall due on the first day of December - 4, 1885. Remittances may be made by post-office order, bank draft, or registered letter, or express, at the risk of this company. Post-office orders are safest and cheapest. We send you herewith envelope addressed to us, in which please inclose this sheet, and the amount due as stated below, and forwaid to us. We feel assured you will take pleasure in paying the above note, thus setting an example for our imitation in the faithful payment of any loss which may occur under your policy. We invite your attention to the inclosed statement of this company after paying all losses, by which you will see proof of our ability to theet our obligations.
R. J. TAILOR, Sup't. Respectfully yours,
R. J. TAyLOR. Sup't. Amount of note, $1O~ Amount of interest, ~-. Total,
$10. 0. Olney, 9993. "26. On December 2c1, 1885, the said Thomas, in pursu- ance of the request of said Hilimer, wrote the said home office a letter and inclosed therein ten dollars in money, as requested by said company in its letter of November 18th, 1885, which letter was duly registered and mailed at Topeka, Kansas, and which letter was received by said defendant insurance com- pany at its home office in Chicago, Illinois, on the 4th day of December, 1885. At the time of the sending of said letter on November 18th, 1885, to Thomas by said company defend- ant, and the sending of said letter by Thomas and the ten dol- lars therein in money, and its reception at said home office of said insurance company defendant, at Chicago, Illinois, on the 4th day of December, 1885, Kneutson, the duly-author- ized adjusting agent of the said company defendant, had full knowledge of the Jarrett mortgage, and the assignment of the policy to Mrs. Jarrett by said Hilimer, and of all incnrn- brances that were placed on said land and property before the
insurance of said property. "27. Hillmer, ~hep1aiutiff, made due proof of loss to said company defendant, prior to the commencement of this action, and within the time and in the manner required by the
terms of said policy. "28. The actual loss under said policy to the plaintiff was in the sum of seven hundred
“29. There is due the defendant, Elizabeth L. Jarrett, from the said Benj. R. Hillmer, on account of the note and mortgage set up in the answer of the said Elizabeth L. Jarrett, the sum of $347.40, with interest from this date at the rate of 12 per cent, per annum, and said sum of money is a first lien on the premises described in her answer.
“ 30. • There is due to Jonathan Thomas from the defendant, Benj. R. Hillmer, on account of the mechanics’ lien described in the answer of the said Thomas, the sum of $183.31, with interest from this date at the rate of seven per cent, per annum, and said sum of money is a second lien on the premises.”
We shall discuss only one question, deeming all the others as having been the subject of so much discussion that the law respecting them is well settled. We are satisfied that the trial court erred in overruling the motion for a new trial. The defendant in error brought his action to recover on the insurance policy; the insurance company answered, alleging many acts of the defendant in error that would render the policy void; the defendant in error replied, that the insurance company, its agents and servants, had full knowledge of all these things set forth in its answer, and fully assented to and fully waived the same. At the trial the defendant in error was allowed to prove, over the objection of the plaintiff in error, the payment of an installment of the premium due on the 2d day of December, 1885, this being after the loss, and after proof thereof had been made. The reception by the insurance company of a part of the premium after the loss, or after non-compliance with some express stipulation, combined with the knowledge of the underwriters, is such an admission of liability as amounts to a waiver of many things; and while the defendant in error had pleaded waiver by knowledge of all things set forth in the answer of the company that rendered the policy void, no waiver by payment was put in issue by the pleadings, and for this reason the ruling was wrong. The truth is, that Jonathan Thomas and his clerk both testified to having sent the installment of the premium, by registered letter, to the general agent of the company at Chicago, but suppressed the fact established on the hearing of the motion for a new trial, that it had been promptly returned, and had been received by Thomas. These witnesses were attempting to prove payment of the premium, and the fact which they suppressed naturally inhered in, and was an essential part of their statement. It may be admitted, that, ordinarily, a witness is compelled to answer only the questions asked, and is not required to volunteer any statement outside of a direct answer; but when they must have known that the effect of their statement was to prove a payment, they were compelled by their oaths, and by every rule of fair dealing, not to suppress the fact that the money they sent had been returned to them. Thomas was a party to this action, having a material lien on the insured property, and claiming his portion of the proceeds to be recovered on the policy. As a party, his suppression of the truth,- under the circumstances of this case, was misconduct; and this is designating it in very mild terms. This issue not having been made by the pleadings, the plaintiff in error could meet it in no other manner than by the showing that was made in support J g of a motion for a new trial, and we think this motion ought to have been sustained. All the special facts of waiver are not found by the court; that is to say, the acts of the company constituting a waiver of each express stipulation are not enumerated and set forth in the special findings, while the twenty-sixth finding of fact and the second conclusion of law seem to have been produced by the evidence of Thomas and his clerk, respecting the payment of an installment of the premium and its reception, long after the knowledge of the loss had been brought home to the company, and hence was very prejudicial to the plaintiff in error.
It is recommended that the case be reversed, and remanded with instructions to the district court to sustain the motion for a new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
51,
104,
-68,
-114,
-118,
-32,
120,
114,
99,
-95,
-89,
95,
-17,
-62,
4,
61,
-92,
37,
-59,
114,
-123,
-77,
51,
-101,
-46,
-77,
-79,
-43,
-80,
-23,
116,
-2,
12,
32,
66,
-47,
-58,
66,
-59,
28,
-98,
-60,
-88,
-28,
-103,
64,
48,
-33,
84,
75,
85,
-66,
-77,
42,
16,
-53,
9,
44,
-22,
-67,
-15,
-16,
-121,
7,
-19,
-121,
-95,
103,
-104,
67,
-22,
12,
-104,
-79,
0,
-87,
115,
-90,
-42,
116,
69,
-119,
8,
98,
102,
34,
1,
-81,
-24,
-119,
39,
84,
13,
-89,
-74,
88,
-109,
44,
-65,
-97,
117,
16,
7,
120,
-19,
85,
29,
104,
7,
-117,
-106,
-73,
-49,
-14,
-103,
-89,
-17,
9,
-93,
112,
-49,
-78,
79,
68,
50,
27,
31,
-56
] |
Opinion by
Simpson, C.:
On the 28th day of March, 1889, the district court of Lyon county rendered a judgment in favor of Smith and against the city of Emporia, perpetually restraining the authorities of said city from collecting or attempting to collect the tax levied for the year 1889 by said city against lot No. 1 of F. E. Smith’s subdivision of the N.E. of the N.E.-J of section 16, township 19, of range 11, and restraining the officers of said city from exercising any municipal or corporate authority over said lot 1, by ordinance or otherwise. The judgment is in effect, that lot No. 1 in Smith’s subdivision is no part of the city of Emporia. The facts are undisputed, and are as follows: On the 9th day of May, 1883, the defendant in error Julia A. Smith, and F. E. Smith her husband, Caroline George, and T. J. George, being the then owners of certain land lying adjacent to the city of Emporia, made, executed, acknowledged, and filed for record in the proper office, a plat of said land, subdivided into lots and blocks by streets and alleys, and called it F. E. Smith’s subdivision of the land therein described. This plat was made, acknowledged and recorded in accordance with the law in force at the time, requiring such plats to be filed whenever any city or town, or an addition to a city or town, shall be laid out. On the 31st day of March, 1884, the mayor and common council of the city of Emporia, by ordinance duly passed, approved, and published, declared F. E. Smith’s subdivision, as surveyed, subdivided, platted, and recorded, a part of the city of Emporia, and attached it to the third ward. On the 1st day of March, 1889, another ordinance of the city seems to have been passed, annexing this land to the city. The defendant in error, ever since the 8th day of September, 1886, has been the owner and in possession of lot No. 1.
The questions raised and discussed here and probably involved in the controversy are, that the city council had no power or authority to annex this land and make it a part of the city of Emporia, for several reasons. The first proposition is, that the law authorizing the city council of a city of the second class to extend the limits of the city, is unconstitutional. The second is, that as the five acres of land embraced within lot No. 1 of Smith’s subdivision is the homestead of the defendant in error, the city council cannot, without her consent, take from her four acres of her homestead by extending the limits of the city, so as to bring her land within the cor porate boundaries. The third proposition is, that the limits of the city can only be extended so as to embrace the land in controversy, under the facts in this case, by the order of the judge of the district court of Lyon county.
I. The pith and marrow of the first proposition is, that in accordance with § 21, article 2, of the constitution of this state, the board of county commissioners is the only body to which the legislature can delegate the power to extend the limits of a city of the second class. That section reads: “ The legislature may confer upon the tribunals transacting the county business of the several counties such powers of local legislation and administration as it shall deem expedient.” This language is too plain to admit of misconstruction, or to cause any diversity of opinion to arise in the minds of lawyers as to its meaning. Under this section the legislature may, if it deem it expedient, confer upon the tribunals transacting the county business, such local legislative and administrative powers as may aid in the transaction of the business of the various counties. The attorney for the defendant in error would have it read, that the legislature shall confer upon the tribunals transacting the county business, all powers of local legislation and administration. Under the section as we construe it, only such local legislative and administrative powers as pertain to the transaction of county business can be conferred, and only such of these powers as the legislature may deem it expedient to confer. So that a proper construction would not compel the legislature to confer upon such tribunals all the powers of local legislation or administration pertaining to the transaction of county business. But aside from all alphabetical tinkering of the constitution, it is positively certain that the legislature of this state has not deemed it expedient to confer on tribunals transacting county business, the power to extend the limits of a city of the second class. This power in some instances is conferred upon the city, itself where the adjacent owner has subdivided his land into blocks and lots by streets and alleys, while in other instances resort is had to the judge of the district court. It has long been the law in this state, that the mayor and city council of a city of the second class have the power to extend the limits of the city, to include land adjacent thereto, that has been subdivided into lots and blocks. This power is conferred by a general law, and not by special act, as claimed in this case. No good reason has been given, and we do not believe that a good reason can be given, why the law complained of is unconstitutional.
II. It is only necessary to say on the second proposition urged, that the city takes away a part of the homestead right of the defendant in error without her consent, that she was one of the owners of the platted land at the time it was subdivided, and by her own voluntary act placed it in such a condition that it became a part of the city by the ordinance. She knew then as well as she knows now, that a city homestead embraces only one acre of land. For the purposes of profitable sale, or to increase the value of the remainder, or for some other reason, she and the other owners of a piece of farming land adjacent to the city of Emporia subdivide it into blocks and lots, dedicate the streets and alleys to public use, and by their own premeditated act create the very conditions under which this land can be easily embraced within the limits of the city. Lands are only authorized to be platted, and these plats acknowledged, filed and recorded, by proprietors of cities and towns, or by owners of additions to cities or towns. If this land was not intended for an addition to the city of Emporia, there would have been no necessity or purpose in subdividing it into blocks and lots by streets and alleys. So that the defendant in error deliberately selects a lot in an incorporated city for a homestead instead of a body of farming land. But this annexation has not threatened her homestead; she is within the city in the enjoyment of her homestead of five acres. No city ordinance can reduce the limits of her lot, and the only possible contingency in which she will ever lose four of the five acres of her homestead, is her inability or refusal to pay her debts. The size of a block or lot in a city, town, or addition, is determined solely by the proprietors who file the plat. If the defendant in error chooses the luxury of a lot of five acres in a city numbering several thousand people, and is willing to pay all the taxation and the special assessments incident to such property, instead of the moderate taxation of purely farming land, how can it be said that her choice involves a homestead right to the five acres, or to four of them? If she was one of the original proprietors of the platted land she voluntarily placed the property in such condition that she could hold only one acre as a homestead. If she acquired the property after it was platted, she voluntarily chose one acre in the city, or in an addition, instead of the full measure of farming land, and in either event her homestead rights have not been infringed. (See generally on this subject, the case of Sarahas v. Fenlon, 5 Kas. 592.)
We think the trial court erred in its conclusion of law, on the facts stated. We believe that when the proprietors of the land described as adjacent to the city of Emporia subdivided it into lots and blocks, acknowledged, filed and recorded their plat, the city council had the power to annex it to and make it a part of the city, and that lot No. 1, owned and occupied by the defendant, became subject to city taxation, and that so far as the questions raised and discussed here are concerned, they are not sufficient to relieve it from such liability.
We recommend that the judgment be reversed, and the case remanded for a new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
-15,
-20,
-80,
-33,
30,
-59,
12,
-104,
66,
-29,
-91,
83,
109,
-54,
17,
57,
-21,
61,
85,
73,
-28,
-73,
87,
35,
-78,
-45,
-13,
-33,
-6,
77,
-12,
-59,
94,
48,
74,
-99,
70,
-28,
-123,
-36,
-50,
-96,
-87,
72,
-35,
-32,
52,
43,
34,
79,
85,
14,
-14,
46,
56,
99,
41,
46,
-53,
-93,
-32,
-77,
-66,
-52,
79,
30,
17,
116,
-102,
-125,
72,
10,
-80,
49,
-16,
-24,
115,
-90,
-122,
118,
5,
-117,
12,
34,
103,
1,
-23,
-81,
-24,
-116,
14,
-5,
-115,
-89,
-121,
89,
123,
42,
-74,
-111,
125,
82,
67,
122,
-26,
5,
28,
124,
-121,
-114,
-74,
-79,
-113,
-72,
-128,
3,
-5,
-125,
33,
112,
-49,
126,
92,
96,
56,
-101,
-49,
-8
] |
The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal from a judgment of the district court affirming an order of the probate court admitting to probate the last will and testament of the late R. A. Williams of Ellsworth county.
R. A. Williams, otherwise known as Arthur Williams, was a bachelor who had resided for many years on his Ellsworth county farm of 400 acres. At the time of his death he was about eighty years of age. He was a man of considerable means, owning 640 acres of land in Lincoln county in addition to his Ellsworth county farm, and he likewise possessed considerable cash and other personalty. In his last years he lived alone in filth and wretchedness. He had an aged sister, Mrs. Minnie Hoss, who resided in Wallace county. His other relatives were nephews and nieces, the children of three deceased sisters. Two of these nephews, William C. Williams and Arthur Hoyt, had somehow fallen out of the good graces of their aged uncle.
About two miles from Williams’ farm home there lived a tenant farmer,.Arch Little. His family consisted of his wife, Aneita Little, and his daughter, Lola Little. On December 12,1941, a few months before Williams’ death he called at the home of Arch Little and requested him to draw his will. Little complied, and drew the will as follows:
“This is my last will and I want all my debts paid. Then I want Mrs. Aneita Little to have my farm in Ellsworth Co. in Seo 4 Twp 14 Range 6, 400 acres and $5,000. I give this to her for being so good to me and taking-care of me.
“What is left of my property give % to Minnie Hoss and % to Ada Hoyt children V2 to Harvey Hoyt and V2 to Beatrice Nager and % to Hanna Williams daughter Hanna Driscoll and % to Nellie Miller’s daughters that are living.
“Dont give anything to William C. Williams or Arthur Hoyt.
“I want Dr. B. H. Mayer to divide my property in my will.”
Williams subscribed the will thus:
“I sign this Dec-12-1941. R. A. Williams.”
Arch Little and his daughter signed the will as witnesses thus:
“We both saw Arthur Williams sign his name here and he asked both of us to sign our name.
Arch Little
Lola Little”
Arch Little kept the will in his possession until after the death of Williams which occurred on July 31, 1942, following which it was offered for probate by Mrs. Minnie Hoss (since deceased). A written defense raising various objections to its probate was filed by certain relatives who were direct heirs of the testator. These objections were that the instrument offered for probate was not the last will of the decedent, that it was not signed by him at the end thereof nor at all, that it was not signed by the decedent in the presence of each other or either of the attesting witnesses, that his signature was not acknowledged by the decedent to each or either of the witnesses, that decedent did not declare that the instrument was his last will, nor did the witnesses sign it at his request nor in his presence.
It was further alleged as an objection to the will that it was brought about by a conspiracy of Little and his wife and daughter to induce the decedent to make the purported will largely in favor of Little’s wife, and thus to cheat and defraud the objecting relatives and heirs of the decedent; and that at the time of the making of the will, decedent was confined and detained in the home of Arch Little, in poor health, infirm mentally and physically, and not in sound mind nor capable of making a disposition of his property.
A further legal objection to the probate of the will was based on the challenged qualification of Arch Little as an attesting witness, on the ground that he had a beneficial interest in the devise to his wife.
The probate judge heard such evidence as the proponents of the will and the objectors thereto chose to offer, and on September 28, 1942, admitted the will to probate. .
The objectors appealed to the district court. In a new pleading, designated a petition, they raised all the issues of fact and of law which they had unsuccessfully urged in the probate court. Formal answers thereto were filed by Aneit'a Little and by Mayer, executor; and the cause was tried at length. The pleadings, papers and transcript of proceedings from the -probate court were examined, and oral testimony was presented in behalf of the proponents of the will. Objection was again made to the competency of Arch Little as an attesting witness. This objection was overruled. A motion was then made by the appellants that Aneita Little be required to elect whether she would relinquish the devise and bequest to her and thus make her husband a competent attesting witness. This motion was overruled.
At the conclusion of the evidence for the proponents of the will, the appellants filed a demurrer thereto. This demurrer was overruled. Appellants offered no evidence; the trial court upheld the will, affirmed the judgment of the probate court, and directed it to proceed with the administration of the estate.
Separate, appeals are brought here by various heirs who include some who were named as beneficiaries under the decedent’s will. The important question pressed on our attention is whether Arch Little was a competent attesting witness. The will devised to Aneita Little, wife of Arch Little, a 400-acre farm valued at $7,000, and a bequest of $5,000 in cash. The pertinent statute, in part, reads:
“A beneficial devise or bequest made in a will to a subscribing witness thereto shall be void, unless there are two other competent subscribing witnesses who are not beneficiaries thereunder.” (G. S. 1943 Supp. 59-604.)
Appellants contend that the devise of the decedent’s farm and the bequest of $5,000 to Arch Little’s wife had the legal effect of making Arch Little a beneficiary of the will; that the devise to his wife created a substantial beneficial interest to himself which disqualified him as an attesting witness. Our own decisions recognize that where husband and wife are or have been residents of this state during some period of their marriage each spouse has what is called a.n “inchoate” interest in all the real estate of the other, even although such real estate may have been voluntarily conveyed by its title holder without the written consent of the other spouse. This inchoate interest does not mature in the other spouse until the death of the one who had been the title holder (G. S. 1943 Supp. 59-505); but we have repeatedly held that this “inchoate” interest of the nonconsenting spouse has sufficient potency that he may invoke the assistance of the courts for its protection. Thus in Overman v. Hathaway, 29 Kan. 434, a wife was sued for her refusal to join in a conveyance of land belonging to her husband which he had sold to the plaintiff. The wife had full knowledge of the contract of sale and had made no objection thereto although the circumstances were such as to require her to object if she did not approve the bargain. This court, speaking by Mr. Justice Valentine, said:
“The defendant, at the time of the contracts of sale, had an interest in the land in question. It is true that her interest in such land was only contingent and inchoate; but still it was an interest which might at some time become absolute and complete. (Madigan v. Walsh, 22 Wis. 501.) Her interest, we think, was undoubtedly sufficient to enable her to sue or be sued with reference thereto.” (p. 437.)
In Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 245, Mr. Chief Justice Horton discussed the nature of a Kansas wife’s interest in the real property owned by her husband thus:
“A wife residing in this state is entitled, upon the death of her husband, to the half of all the real estate owned by him during the marriage which has not been sold on judicial sale, and is not necessary for the payment of debts, and of which the wife has made no conveyance; so that there is an inchoate interest to the extent of one-half given to the wife in the real estate of the husband. It is true that this interest in the real estate of the husband is inchoate and uncertain, yet, according to the authorities, it possesses the. elements of property. It is an interest and right of which she can be divested only by her consent, or crime, or her dying before her husband. It is. an interest which may be, in connection with the husband, the subject of contract and bargain, and is by many of the authorities denominated a contingent but valuable interest. ... We now go further, and declare that although the wife’s right and interest in the real estate of her husband not occupied as a homestead is inchoate and uncertain, yet it possesses the element of property to such a degree that she may maintain an action during the life of her husband for its protection, and for relief from fraudulent alienation by her husband, (citation.)” (pp. 576, 577.)
See, also, Putnam v. Putnam, 104 Kan. 47, 52 et seq., 177 Pac. 838, and citations.
The new code provision, G. S. 1943 'Supp. 59-604, quoted in part, above, is somewhat different from the language of the earlier text, of 1868. The former text read:
“If a devise or bequest be given to a person who is a witness to the will,, and the will cannot otherwise be proved than by the testimony of such witness, the devise or bequest shall be void, and the witness shall be competent to give testimony of the execution of the will in like manner as if such devise or bequest had not been made; . . .” (G. S. 1935, 22-212.)
Can it be said that this change in the disqualification of an attesting witness who is the recipient of a devise or bequest indicates a legislative intention to alter the substance of the law on that point? In the earlier statute a devise or bequest to -a witness was void unless the will was sufficiently proved by other witnesses. In the later-statute a “beneficial” devise or bequest.to a subscribing witness was. void unless there were two other competent witnesses to the will. Does the adjective’“beneficial” which qualifies the noun “devise" or-“bequest” in the later text change the nature or significance of the “devise or bequest?” A devise is a testamentary gift of real property. A bequest is a testamentary gift of personal property. Any such gift would reasonably be construed to be beneficial to the testamentary donee. We can discern no distinction between a devise and a beneficial devise, insofar as concerns the case at bar. The devise of an Ellsworth county farm of 400 acres, and the bequest of $5,000 in cash, with no restrictions attached were certainly beneficial to the devisee. However, the devise and bequest were to Aneita Little. She was not an attesting witness to the will. The devise and bequest — “beneficial” devise and bequest — were not made to Arch Little, husband of the devisee, who was the attesting witness. This court has held that—
“A husband who is one of the subscribing witnesses to a will is not disqualified from giving testimony before the probate court to establish its due execution because of the fact that his wife is a legatee.” (Lanning v. Gay, 70 Kan. 353, 78 Pac. 810, syl. ¶ 1.)
From a perusal of the opinion in the case just cited, counsel for appellants discern a possible distinction between it and the case at bar. It is true that the opinion deals at some length with the limitations of a husband or wife to testify for or against each other, and it is not precisely clear from the opinion that the husband of the beneficiary was an attesting witness. Resort to the case-made in the archives of this court, however, leaves no doubt on that point. The pertinent part of the Lanning will read thus:
“I, Mabel Lanning, of Clay Center, ... do make and publish this my last will and testament.
“Fifth: To my dear friend Mrs. Mary Gay (wife of Frank V. Gay) of Clay Center aforesaid, I give and bequeath the sum of One Hundred dollars ($100) to be by her expended as and for such purposes as by me privately directed.
“Sixth: All the rest and residue of my said estate both real and personal of which I may die seized I give, devise and bequeath to my said friend Mrs, Mary Gay.”
Then followed the usual testimonium clause which was signed thus:
“Mabhl Lanning.”
Then came the usual recitals of the attestation clause by subscribing witnesses and signed thus:
“Hy W. Stackpol®
“Frank Y. Gay.”
The trial court held that Frank V. Gay was not a competent witness and that the will of Mabel Lanning was not executed in conformity with the statutes. But the trial court further held that John B. Lanning, father and sole heir of Mabel Lanning, with knowledge of the facts constituting such invalidity in attestation, “waived all objection, on the ground of the invalidity of said will, by reason of imperfect attestation, accepted .the sufficiency of probate thereof, and is now estopped from asserting the invalidity of said will on that ground.” Judgment was entered for defendants.
It was on such a record and such an appeal, which squarely raised the question of the qualification of Frank V. Gay as an attesting witness to the will which bequeathed $100 in cash to his wife and named her as residual beneficiary of the remainder estate of the testatrix, that the rule in Lanning v. Gay quoted above was announced. An examination of the briefs in that case (in the bound files of the state library) clearly shows that the qualification of Frank Gay as an attesting witness was urged as of prime importance in the action. Eminent counsel appeared on both sides — two of them, who opposed each other served this state as attorneys-general. The trial court held that—
“Frank V. Gay was not a competent witness for the attestation of the will in question, and that said will was not executed or attested in conformity with the statutes of Kansas.” (Case made p. 476.)
However, the trial court also held that for reasons which are irrelevant here Lanning was estopped from asserting the invalidity of the will, and it was on the latter ground that this court affirmed the judgment.
But it is clear that this court did not agree with the trial judge’s conclusion of law that Frank Gay was not a competent attesting witness, and syllabus 1 quoted above is squarely to the contrary.
The rule announced in Lanning v. Gay has stood unmodified for forty years. Until the present appeal, it has not been questioned. In 1 Bartlett’s Kansas Probate Law and Practice, 318, the rule announced in Lanning v. Gay is regarded as the settled law, not only in this state but in some other jurisdictions as indicated in the notes to Bartlett’s text. Thus in In re Holt’s Will, 56 Minn. 33, 57 N. W. 219, 22 L. R. A. 481, 45 Am. Rep. 434, Bartlett’s annotation to section 335 of his text reads:
“The only devises or legacies which the statute annuls are those made to subscribing witnesses, which clearly does not apply to the husband or wife of •a legatee. This construction is in conformity with the spirit of modem legislation on the general subject of the rights of husband and wife.”
The diligence of counsel for the present litigants has brought together respectable authorities which hold that the spouse of a beneficiary of a will is not a competent witness, and our attention is directed to 68 C. J. 679-680, 28 R. C. L. 136, and 1 Page on Wills, Lifetime ed., 615-619, where the former state of the law and its later development, sometimes by statute but frequently by matured change of judicial viewpoint, are discussed. See annotation to Hayden v. Hayden, 107 Neb. 806, 186 N. W. 972, in 25 A. L. R. 308-312; Gore v. Dace, 157 Miss. 221, 127 So. 901; In re Hartman’s Estate (Cal. App.), 68 P. 2d 744.
Space will not permit quotation from these texts and authorities from other jurisdictions, but it is a fair summary of them to say that the modern tendency is to concede rather than deny the qualification of one spouse to serve as an attesting witness in a will where the other spouse is a beneficiary thereof. Cynical reformers of half a century ago used to say that the law of evidence was just a treatise on the exceptions to the rules touching the inadmissibility of testimony !
We cannot doubt that the want of any later case in our own reports, together with the modern tendency to relax the old rules which stressed the inadmissibility of evidence strengthens the view that the rule announced in the first paragraph of the syllabus of Lanning v. Gay should be adhered to. Moreover, in drafting and enacting the new probate code it is difficult to believe that the many talented lawyers in and out of the legislature who participated in that notable work would have permitted the rule of Lanning v. Gay to stand unmodified, if they were not satisfied with the clear-cut statement of the law as announced in that case. This court therefore adheres to and applies to the case at bar the rule of law announced in the first section of the syllabus in Lanning v. Gay, 70 Kan. 353, 78 Pac. 810.
Noting other objections to the sufficiency of the will, the contention is made that the testimonium and attestation clauses of the will do not conform to the formalities used by good lawyers. But the statute does not prescribe those formalities. It merely provides that—
“Every will, . . . shall be in writing, and signed at the end thereof by the party making the same, . . . and shall be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe or heard him acknowledge the same.” (G. S. 1943 Supp. 59-606.)
In the case at bar the testator did sign the will at the end thereof, and the attestation is that both the subscribing witnesses saw him sign his name thereto. We think it must be held that this was a sufficient compliance with the statute. (In re Estate of Wallace, ante, p. 633, 149 P. 2d 595, decided June 10, 1944; 1 Bartlett’s Kansas Probate Law and Practice, 325-333. See, also, Kitchell v. Bridgeman, 126 Kan. 145, 267 Pac. 26.)
Error is also urged on the overruling of appellants’ motion that Aneita Little be required to elect whether she would relinquish the devise and bequest to her and thus make her husband a competent attesting witness to the will, but since we are holding that her husband was a competent attesting witness, the ruling on appellants’ motion was obviously correct.
And while it is trae that in the district court appellants pleaded various objections to the probate of the will, they offered no evidence to support their objections. They relied altogether on their demurrer to the evidence adduced by its proponents; and without recapitulating that evidence we feel bound to hold that appellants’ demurrer to its sufficiency was properly overruled. •
The judgment is affirmed. | [
113,
108,
-36,
29,
10,
-32,
11,
-118,
83,
-29,
-79,
83,
-21,
106,
17,
105,
115,
13,
85,
105,
103,
-77,
22,
-95,
82,
-13,
-17,
-35,
51,
-39,
-92,
87,
76,
48,
-118,
29,
-26,
8,
-59,
84,
-116,
12,
11,
-16,
-35,
16,
53,
47,
54,
15,
-11,
30,
-73,
42,
60,
-29,
41,
44,
107,
-86,
88,
-15,
30,
-121,
-34,
19,
32,
66,
-110,
-85,
74,
106,
-112,
49,
-126,
-24,
83,
-90,
22,
85,
11,
-117,
44,
118,
103,
33,
-35,
-17,
-56,
-104,
14,
-6,
-99,
-89,
-106,
88,
51,
97,
-76,
-99,
123,
-48,
6,
-12,
-18,
-59,
92,
40,
4,
-49,
-108,
-127,
-125,
60,
-120,
-41,
-13,
45,
49,
113,
-115,
-30,
77,
67,
112,
-101,
-122,
-74
] |
The opinion of the court was delivered by
Thiele, J.:
Defendant was charged with offenses under G. S. 1941 Supplement, 47-421, reading:
"On and after July 1, 1940, any person who shall willfully and knowingly brand or cause to be branded with his brand, or any brand not the recorded brand of the owner, any livestock being the property of another, or who shall willfully or knowingly efface, deface or obliterate any brand upon any livestock, shall be deemed guilty of felony, and upon conviction thereof shall be punished by confinement in the penitentiary for a period not exceeding five years.”
The information contained fifteen counts varying only as to description of the animal branded, each count charging in substance that defendant Morton “did . . . willfully and knowingly and unlawfully and feloniously efface, deface and obliterate a brand, theretofore placed and existing on the left hip of” a described steer, “the property of the said Rea Morton by then and there placing upon and over the then existing brand, a 7M brand belonging to the said Rea Morton, contrary to the statutes '. . .” The offense thus charged is commonly known as overbranding.
Defendant filed his motion asking the court to quash the information and each count thereof for the reason the facts stated did not constitute a public offense in that it affirmatively appeared the animals alleged to have been overbranded were at all times the property of the defendant, and for the further reason the statute quoted above and upon which the information was grounded offends against article 2, section 16 of the state constitution in that the title of the act contains more than one subject.
The motion to quash was sustained, and the state appeals. It may be noted the record does not disclose the particular reason relied on by the trial court. Both reasons are discussed in the briefs and will be considered.
In a preliminary way it may be said that the statute on which the action is based, as quoted above, is a part of Laws 1939, chapter 222, now appearing as G. S. 1943 Supp. 47-414 et seq., and containing a total of sixteen sections. The title of the act reads:
"An Act relating to livestock, creating the state brand board and brand commissioner, providing for the recording of livestock brands and prescribing penalties for violations, and repealing sections 47-401 to 47-413, both sections inclusive, of the General Statutes of 1935.”
A brief résumé of the act shows that section 1 contains definition of words used in the act and that “(b) The term ‘livestock’ means cattle, sheep, horses, mules or asses, (c) The term ‘brand’ means any permanent identifying mark upon the surface of any livestock, except upon horns and hoofs, made by any acid, chemical or a hot iron.” Section 2 creates a state brand board, and specifies certain duties. Section 3 makes the state livestock sanitary commissioner the state brand commissioner and prescribes his duties. Section 4 provides for adoption and recording of brands. Section 5 provides that livestock may be branded according to rules and regulations laid down by the board “but livestock shall be so branded that they may be readily distinguished should they become intermixed with other herds.” Section 6 provides that where a brand is recorded the owner thereof shall be entitled to one certified copy of the record and also for additional copies upon payment made. Section 7 makes it an offense to use any brand not duly recorded, and provides a penalty. Section 8 has been quoted above. Section 9 pertains to property rights in brands. Section 10 pertains to brands on cattle brought into the state. Section 11 provides for publication of recorded brands from time to time. Section 12 makes it the duty of the attorney general to enforce the act. Section 13 authorizes the board to make necessary rules and regulations to carry out provisions of the act. Section 14 is a separability clause. Section 15 repeals sections specified in the title and section 16 provides for effect of the act on publication in the statute book.
The primary purpose of branding laws generally and of the above statute particularly is to permit identification of livestock. Perhaps the foremost reasons for identification are to make it possible for an owner to recognize his own animals, to facilitate separation where herds become intermixed, to prevent honest but mistaken claims of ownership and to act as a deterrent to theft. In the act here involved it is expressly provided the branding shall be such that livestock may be readily distinguished should they become intermixed with other herds.
In support of the trial court’s ruling appellee does not contend that the legislature may not enact legislation that an owner shall not overbrand his livestock, but does contend that the statute is to be so interpreted that it does not denounce overbranding of one’s own animals. He contends first that the statute uses the words “willfully and knowingly” and that such words in a criminal statute such as is under consideration imply a deliberate purpose and intent to deceive, and that such purpose and intent cannot exist with respect to a person’s own property.
Although it has been held the use of the word “willfully” in a statute is to be interpreted as implying a wrongful motive (State, ex rel., v. Wilson, 108 Kan. 641, syl. ¶ 7, 196 Pac. 758), it does not follow the statute must be so construed as to hold that an owner could overbrand his livestock without regard to his motive in so doing. Conceivably the owner might quite innocently efface, deface or obliterate an existing brand on his own livestock, and conceivably he might do it'with the most corrupt and illegal motive. In an effort to have the statute read that one might overbrand his own animal, appellee urges that the word “such” has been inadvertently omitted immediately before the last use of the word “livestock” in the section of the statute, and that under the law, when it appears from the context the word has been inadvertently omitted, the court should supply the word to complete the sense (59 C. J. 992, § 593). We cannot agree there is any inadvertently omitted word. Taking a narrow view perhaps it might be said that brand marks serve no purpose of identification because a person could not steal his own livestock and therefore he is at liberty to change the brands at will. But as we read the statute, that is not the full purpose to be served, as is disclosed by what has been said heretofore. Identification of livestock is expedited by leaving brand marks undefaced and unobliterated, and not by altering or changing them by over-branding. The sole purpose of the statute is not to identify stolen animals, but to aid in identification in caring for livestock, to permit separation when intermixed, to prevent dispute as to ownership, to aid in recovery when theft occurs, and to assist in proof when a thief is being tried in a criminal action for theft.
In a supplemental brief, appellee contends that the section of the statute under which the prosecution was brought, had its origin in the state of Colorado, and that under the decisions of that state an owner commits no offense in overbranding his 'own animals, and that under usual canons of statutory construction, when Kansas adopted the section, it did so as it had been interpreted in Colorado. Assuming that the section of our statute now under consideration was suggested by the Colorado statute, the following appears: By Revised Statutes of Colorado of 1868, chapter 58, section 8, it was provided that if any person willfully brand or mark with his own brand any animal being the property of another, or willfully deface or obliterate any mark or brand upon any such animal, with intent to convert such animal to his own use or to prevent the owner thereof from recovering the same, he should be deemed guilty of larceny. Although no decision from Colorado interpreting that particular statute is mentioned, it seems clear the statute did not cover the animals of the owner. In 1880 the statute was amended to read quite like our present statute, with these exceptions — the Colorado statute does not contain the words “willfully and knowingly” as does ours, and it uses the word “larceny” where ours uses “felony.” In the amended act of Colorado the word “any” was omitted, but there was added a provision that the person offending should be liable to the owner for three times the value of the animal, and that the animal should be surrendered to the owner. Our attention is directed to Bradley v. People, 8 Colo. 599, 9 Pac. 783, wherein the last act was interpreted. We shall not review that decision here for it is quite clear that our act and the Colorado act, although alike in some particulars, are radically different in others. The use of the word “larceny” connotes something entirely different from “felony” as the words are used in the two acts. Further, the provisions of the Colorado act about recovery of damages of necessity refer to property ‘other than that of the offender. Our statute varies in material particulars from the Colorado statute and it may not be said we adopted it or any construction placed on it.
The motion to quash should not have been sustained for the asserted reason that the information failed to charge a public offense.
Two constitutional questions are presented, which will be considered in the order presented.
While appellant contends the act is wholly constitutional, appellee contends that the subject matter of section 8 is not expressed in the title of the act, as the same has been heretofore quoted. Appellee directs our attention to decisions from other states, which will not be reviewed and to 59 C. J. 811, § 393, and especially to 59 C. J. 814, § 395, reading as follows:
“Under a constitutional requirement that the subject of an act shall be expressed in its title, a statute may ordinarily include provisions giving a remedy or prescribing a penalty for a violation of or noncompliance with the principal requirements of the act, although such provisions are not expressly indicated in the title, but no penalty can validly be imposed for an act other than those included within or suggested by the title.”
The only Kansas case cited by appellee is State v. Barrett, 27 Kan. 213. In that case the constitutionality of Laws 1881, chapter 128, section 19, was in question. The title of that act was:
“An Act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes.”
It is to be noted the title made no reference to any penalties. Section 19 in effect made it an offense to get and be found in a state of intoxication and imposed a penalty therefor. Space prevents a full review of that case. The court, after stating ten rules of statutory construction, all of which are included in the syllabus, held that the title of the act did not in the slightest or most remote degree refer to the use of liquor and was wholly silent thereon. The particular section was held to violate article 2,. section 16 of the constitution. Among the rules for statutory construction as against attack for unconstitutionality were the following:
“The action of the lawmaking power must in all cases be upheld, unless its action is manifestly in contravention of the constitution.
“In order to correctly interpret that provision of § 16, article 2 of the constitution, which provides that ‘No bill shall contain more than one subject, which shall be clearly expressed in its title,’ its object must be taken into consideration; and the provision must not be construed or enforced in any narrow or technical spirit, but must be construed liberally on the one side, so as to guard against the abuse intended to be prevented by it, and liberally on the other side, so as not to embarrass or obstruct needed legislation.
“Under this provision of the constitution, the title of an act may be as broad and comprehensive as the legislature may choose to make it; or it may be as narrow and restricted as the legislature may choose to make it. It may be so broad and comprehensive as to include innumerable minor subjects, provided all these minor subjects are capable of being so combined and united as to form only one grand and comprehensive subject; or it may be so narrow and restricted as to include only the smallest and minutest subject.
“In construing the title to an act as well as the act itself, reference must be had to the object of the act, and to the evil sought to be remedied by it.
“It is not necessary that the title to an act should be a synopsis or abstract of the entire act in all details; it is sufficient if the title indicates clearly, though in general terms, the scope of the act.
“Where a section of an act is assailed as being in contravention of said provision of § 16, article 2 of the constitution, it is sufficient if it is germane to the single subject expressed in the title and included therein, provided the act itself does not contain more than this single subject.” (Syl. ¶¶ 1,3,4,6,7,8.)
In State, ex rel., v. Everhardy, 75 Kan. 851, 90 Pac. 276, it was contended an act entitled “An act relating to intoxicating liquors, and amendatory of and supplemental to” certain specified acts was not broad and comprehensive enough to include a provision for ouster of a mayor of a city for failure to observe the same. In the course of the opinion it was said:
“Under numerous decisions upon the limitation of section 16 of article 2-of the constitution . . . it is clear that the act contains no more than one general subject; that its provisions bear a natural relation to each other; and that the one challenged is fairly included within the title of the act.” (Citing cases.) (1. c. S52.)
In State, ex rel., v. Beggs, 126 Kan. 811, 271 Pac. 400, the validity of a portion of the election laws was in question. We shall not review the facts but it was there contended that parts of the act were not clearly expressed in the title. It was there held:
“Where tbo subject of the legislation in question is assimilated to the other provisions of the act and is germane and pertinent thereto it cannot be said to be in violation of .section 16 of article 2 of the constitution.” (Syl. ¶[ 1.)
Without reviewing other decisions to the same effect, we think that it may be said the legislature gave consideration to the problem confronting owners of livestock, especially those having large numbers in large pastures, to know and identify their own livestock, and if any strayed away, became intermixed with others, or were stolen, to be able to trace and identify them, and passed the act under consideration to give relief in the circumstances; that in forming the act it gave consideration not only to the creation of the state brand board and the recording of brands but to matters assimilated, germane and pertinent thereto and to the full purpose to be attained thereby, and that the provision for overbranding does not appear to be distinct from nor foreign to the matters under consideration as evidenced by the title to the act. Bearing in mind our oft repeated statement that we will not declare a statute violative of the state constitution unless invalidity is manifest, we must hold that section of the act is not unconstitutional for the reason asserted.
The other ground of unconstitutionality asserted by appellee is that section 8 quoted above and hereafter referred to as the brand act, amended G. S. 1935, 21-539, hereafter referred to as the section of the crimes act, but did not repeal the amended section as required by article 2, section 16 of the constitution. It may be noted that the title of the brand act did include repeal of a former statute other than the section of the crimes act, and the act contained a repealing section. Shortly stated, appellee’s contention is that the brand act does not expressly repeal the section of the crimes act; that the brand act does not pretend to cover the entire field of operation of the section of the crimes act and therefore there is no repeal by implication; that the brand act does in fact amend the section of the crimes act but does not repeal it and therefore violates the constitutional prohibition. The subject of the section of the crimes act is the branding or altering of brands on any stolen animal and on no other, and one who violates that section shall be deemed guilty of larceny. The subject of the section of the brand act is the willfully and knowingly branding or altering the brand of any livestock, either the property of another or his own, and one who violates this section shall be deemed guilty of felony. Theft may be present in the latter case, but it is not an element necessary to guilt. We think the legislature was at liberty to denounce two distinct offenses and that it did so, and that it may not be said the latter enacted act was in any sense an amendment of the act first enacted.
In view of what has been said we conclude the trial court erred in quashing the information and the various counts thereof. Its ruling is reversed and the cause remanded with instructions to deny the motion to quash. | [
114,
108,
92,
13,
10,
96,
42,
-102,
83,
-87,
-73,
83,
-17,
-58,
4,
49,
-21,
45,
85,
121,
-11,
-77,
49,
-61,
22,
-37,
-128,
-41,
49,
111,
-28,
125,
73,
52,
2,
85,
-25,
-72,
-63,
30,
-54,
4,
25,
-43,
-24,
64,
60,
57,
22,
-49,
97,
15,
-25,
46,
31,
67,
41,
40,
-21,
45,
-24,
-7,
-69,
-51,
125,
18,
-77,
34,
-88,
5,
-40,
46,
-104,
49,
-127,
-24,
114,
-74,
-118,
116,
75,
25,
12,
38,
-30,
0,
77,
-25,
8,
-56,
47,
127,
-119,
-89,
24,
80,
-63,
32,
-97,
-99,
114,
82,
-121,
106,
-41,
-107,
21,
104,
1,
-121,
20,
-73,
79,
-20,
-100,
-33,
-37,
-93,
1,
117,
-51,
-94,
93,
87,
92,
-97,
-124,
-42
] |
The opinion of the court was delivered by
Parker, J.:
This was an action to recover damages for an alleged breach of covenants of warranty in an assignment of an oil and gas lease.
The petition alleges that on August 22, 1939, Thomas L. Stewart, hereinafter referred to as defendant, and his wife Ada B. Stewart who is not involved in this appeal and will not for that reason be subsequently referred to, became the owners of a 240-acre oil and gas lease located in Vernon county, Missouri, the terms of which granted such lessees the right to assign their interest in whole or in part and required them to drill a well for oil or gas on the land described therein on or before August 22, 1940, or on failure so to do to pay rental at an annual rate of $240 payable quarterly. It then states that on January 1, 1941, the lessees executed an assignment whereby they sold and assigned to the plaintiff a part of their interest in such lease to the extent of 140 acres containing the producing oil wells. It further states that on such date plaintiff entered into possession of the 140-acre lease for a period of ten days and pumped oil therefrom after which a suit was filed to cancel and forfeit the lease for nonpayment of deferred rentals and nonperformance of agreements by the owners thereof and the leased property and personalty referred to were attached and taken over by the sheriff under proceedings instituted in the circuit court of Vernon county, Missouri. Such petition further alleges the defendant under the terms of the assignment had warranted his title and ownership to all property referred to therein and that all deferred rentals on the lease had been fully paid. It then charges breach of covenants of warranty of the assignment in that on September 21, 1941, defendant had not commenced a well as provided in the lease, had not paid deferred rentals then due in the sum of $50, was not the owner of the personalty described therein and had failed to defend his title to and ownership of any of the property when notified of the pend-ency of the attachment action, with the result that in defending his interest the plaintiff had suffered loss and incurred expense amounting to more than $3,100.
What we have related is to be found in the body of the petition and a copy of the assignment which was made a part thereof. But that was not all. Attached to and made a part of such petition by the plaintiff was a copy of the judgment rendered on November 17, 1941, in the Missouri attachment proceeding. An understanding of the significance of this portion of the petition can be obtained from the language to be found therein,’ which we quote:
“The Court after hearing the evidence finds that the attachment herein should be dissolved and as between plaintiffs and defendant, Wordie Wood, all claims of every kind and character are waived, cancelled and settled.
“That court further finds that defendants, G. L. Barham, Thomas L. Stewart and W. E. Tate have no right, title or interest in the lease described in the petition and to the following described land situate in Vernon County, Missouri, to-wit:
“The East Vi of the N. W. Vi and the West % of the N. W. % of the N. E. Vi and the S. W. Vi of the N. E. Vi of Section 28 Township 36 Range 33
“Nor any of the machinery, equipment or personal property thereon used or connected therewith.
“And the defendant, Wordie Wood, is the sole owner thereof and that said lease is valid and binding between plaintiffs and defendant Wordie Wood.
“Wherefore it is ordered and adjudged by the Court that the attachment herein be dissolved, and that all claims for damages between plaintiffs and defendant, Wordie Wood, be and are waived, settled and cancelled, and that defendants, G. L. Barham, Thomas L. Stewart, and W. E. Tate have no right, title or interest in the lease herein described or any machinery,' equipment or personal property thereon used or connected therewith, and that defendant Wordie Wood is the sole owner thereof, and that said lease is valid and bind-' ing between plaintiffs and defendant Wordie Wood.
“It is further ordered that all costs herein be taxed against plaintiffs.”
With the plaintiff’s petition in the condition just related the defendant demurred thereto on the ground it did not state facts sufficient to constitute a cause of action for breach of covenants of warranty either express or implied. The trial court sustained the demurrer and the plaintiff then served notice of appeal and submits the propriety of such ruling for appellate review.
In our examination of the question raised by the appellant’s sole specification of error wherein it is charged the trial court erred in sustaining the demurrer to the petition we have been without the benefit of a brief setting out the appellee’s views and the appellant has failed to indicate the reasons given by the trial court for its action. Either or both would have been helpful.
Preliminary to our discussion of other matters we recognize the force of our decisions holding that a sale of personal property in the seller’s possession for a fair price implies an affirmation by him that the property is his own, and implies also a warranty of title by him'unless the contrary is shown (Paulsen v. Hall, 39 Kan. 365, 18 Pac. 225), also that the sale and written assignment of an oil and gas lease, under terms and conditions containing a covenant that the assignor is the owner of such lease, implies a warranty of title to the lease in such assignor. (Ratcliff v. Paul, 114 Kan. 506, 220 Pac. 279, and Daggett v. Four Hundred Oil Co., 119 Kan. 788, 241 Pac. 467.) For all purposes of this appeal they compel us to proceed on the assumption, and we do so, the covenants to be found in the assignment warranted title and ownership in the appellee as charged in the petition.
So, also, we take note of the general rule with respect to what constitutes a breach of a covenant of warranty found in 14 Am. Jur. 532, § 69, and 21 C. J. S. 976, § 111, where it is stated thus:
“In order to constitute a breach of the covenant of warranty the title or right under which the covenantee is evicted or to which he yields must be paramount and have been in existence at the date the warranty .was made. A title or right is superior and paramount where it prevails in an action or is successfully asserted. Conversely, a covenantor ordinarily is not liable to the covenantee for damages sustained by the latter by reason of an unsuccessful attack upon his title by a third person, although it has been held that if the hostile title asserted is a legal title in fact outstanding against the grantee, but for equitable reasons not enforceable against him, he is entitled to recover from the covenantor the expenses incurred in defending his title. A covenantee who, voluntarily or without suit, yields to an alleged paramount title' or claim assumes the risk of its turning out not to be so.”
Turning now to consideration of the principal issue. At the outset it should be stated there are certain fundamental principles of law which must be applied in testing the sufficiency of a petition when attacked by a demurrer on the ground it fails to state facts sufficient to constitute a cause of action. One of them, as suggested by appellant and of which we are fully cognizant, is that the averments of the petition must be liberally construed in favor of the pleader. (See G. S. 1935, 60-736; Downey v. Phillips, 137 Kan. 326, 20 P. 2d 453; Kirwin v. McIntosh, 151 Kan. 289, 98 P. 2d 160, and Owens v. Deutch, 156 Kan. 779, 137 P. 2d 181.) Another is that on the trial of a case the whole of the pleadings are considered together and where any two allegations of the same party are inconsistent with each other, the allegation most unfavorable to such party will be deemed to override the other. (Board of Education v. Shaw, 15 Kan. 33, and Krehbiel v. Voth, 140 Kan. 594, 598, 37 P. 2d 1022.) Still another, and equal in importance with those just referred to, is the doctrine announced in Zane v. International Hod Carriers B. & C. L. Union, 155 Kan. 87, 122 P. 2d 715, where it was held:
“Where one asserts a cause of action upon a written instrument or document attached to and made a part of his petition, and not alleged to be incorrect, allegations of the petition at variance with the provisions of the instrument or document, or not justified by it, cannot be considered by the court.” (Syl. H 1.)
To the same effect, although differently stated, is Sharp v. McColm, 79 Kan. 773, 101 Pac. 659.
With these pertinent rules in mind and giving each of them the force and effect to which they are entitled, can it be said the petition meets the test to which the demurrer subjects it? Our examination of the pleadings and the authorities convinces us the answer to the question must be in the negative. Notwithstanding, the allegations with respect to breach of the covenants of warranty to be found in the body of the petition, which standing alone might be sufficient under the rule of liberality in construction of pleadings, it contained the further and additional averments on which appellant relied to support his cause of action to be found in the copy of the Missouri judgment attached thereto as an exhibit. Once attached the recitals in that judgment became as much a part of the petition as any other allegations to be there found, and in fact, under our decisions, if contradictory to or at variance with allegations to be found in the petition proper took precedence over and controlled them. To give the heretofore quoted recitals of the judgment precedence impels but one conclusion, and that is, that at the end of the Missouri litigation, irrespective of what may have happened to the leasehold interest remaining in the appellee, the appellant wound up the litigation with a decree giving him full title, ownership and interest in and-to everything that the appellee had sold to him under the assignment and' a search of the recitals of the judgment and other portions ©f-.jthe petition fails to disclose any statement or allegation, .either express or implied, justifying a construction that the title which the. appellant obtained thereunder sprang from any source other than that'emanating from the appellee’s assignment or that so far as his retention of the title to property assigned to him by appellee was concerned he was required to pay out anything in resisting rightful claims to it made by other persons. It may well be that he did but if so the judgment on which he relies for recovery is to the contrary and he is caught in a dilemma of his own choosing from which there is no escape at this stage of this proceeding. Having included in his petition recitals of a judgment which preclude recovery for an alleged breach of covenants of warranty under the assignment referred to therein the demurrer was properly sustained.
In passing we note appellant’s contention that if the petition be held to be demurrable in other particulars the inclusion therein of a short paragraph to the effect that after rendition of the judgment referred to he again took possession of the property and found the personalty was not then on the lease and was not the appellee’s property at the time of executing the assignment, is sufficient to compel a reversal of the judgment. The point is not well taken and requires little, if any, further discussion. Under all the circumstances disclosed by recitals in the petition and the exhibits the allegations of this paragraph fell far short of stating a cause of action.
The judgment is affirmed. | [
-16,
106,
-15,
12,
-102,
96,
40,
-69,
89,
-79,
-73,
87,
-19,
78,
4,
107,
-22,
61,
117,
104,
-105,
-77,
20,
82,
-42,
-77,
57,
-43,
-80,
93,
-12,
-41,
72,
36,
-54,
-107,
-58,
10,
-59,
-36,
-114,
37,
-103,
-27,
-39,
0,
48,
58,
16,
15,
17,
-113,
-30,
44,
21,
71,
40,
44,
-21,
33,
-39,
-16,
-70,
13,
127,
6,
1,
5,
-44,
69,
-24,
30,
-104,
49,
41,
-20,
115,
38,
-58,
116,
7,
-101,
44,
38,
102,
33,
21,
-17,
-20,
-104,
46,
-14,
-115,
-90,
-14,
88,
35,
98,
-74,
-100,
124,
84,
-123,
118,
-28,
5,
95,
45,
7,
-53,
-44,
-95,
11,
-15,
-104,
9,
-17,
3,
37,
116,
-51,
-90,
92,
71,
115,
27,
7,
-72
] |
The opinion of the court was delivered by
Smith, J.:
This is an action for money. Judgment was for the defendant sustaining the demurrer to the plaintiffs’ evidence. The plaintiffs appeal.
The petition alleged that on November 27, 1940, the plaintiffs entered into a written contract with defendant whereby they agreed to sell to the defendant a half section of land; that this contract involved the allotment and parity payments upon this land; that about December 31, 1941, the defendant collected $348.69 in conservation payments upon this land for the year 1941 and for crops harvested during the year 1941 and this amount should have been immediately paid by him to the plaintiffs, but defendant had appropriated this sum to his own use and refused to pay it to plaintiffs.
Two contracts were attached to this petition. One was under date of the 27th of November, 1940. It provided for the sale of a section of land and contained the following provision:
“All allotment and parity payments that have been earned and signed up for by Grant Black and Chester Black is to go to Grant Black.”
Apparently this contract was not entirely satisfactory because on December 2, 1940; the same parties entered into a supplemental contract which referred to the contract of November 27, 1940, and contained the following two provisions:
“1st. That the allotment and parity payments shall involve those earned and signed up for and including the allotment and parity payments for the wheat now growing upon this land.
“2nd. That it is understood and agreed that said allotment and parity payments shall be divided between Grant Black and Chester Black or their heirs according to the divisions now in existence with said allotment board of Haskell County, Kansas.”
For an answer to this petition, the defendant alleged that he received what he called a conservation payment in the amount of $348.69 about December 31, 1941, and that this payment was earned by the defendant subsequent to the harvest of the 1941 crop by defendant operating the land in accordance with the approved methods and that no part of this payment was earned by plaintiffs, or either of them, in the planting or production of the 1941 crop.
When the case came on for trial the contracts were introduced. No question was raised about them. The parties agreed that all of the 1941 parity payments covering this section were paid to the plaintiffs on July 14, 1941, and that the conservation payments were paid to the defendant and retained by him. There was no question raised regarding the parity payment having been made to the proper parties or its retention by plaintiffs. It was admitted that the conservation payment was made to defendant on December 30, 1941, in the amount for which the action was brought. It is also admitted that until March 17, 1941, the allotment board of Haskell county had nothing before it regarding to whom to make payments other than to pay them to plaintiffs.
A young lady clerk from the agricultural administration office of the county testified for the plaintiff that the office first heard about defendant being interested in the payments on August 20, 1941. Counsel thereupon admitted that until March 17, 1941, the allot-’ ment board had nothing before it to indicate that the payment should .not be made to Grant and Chester Black, the plaintiffs. The young lady testified that the 1941 parity and conservation payments were made during the year 1941. There was testimony then that the farmers in Haskell county used the term “allotment,” “payment” and “parity” almost interchangeably. The young lady from the .department then testified as follows:
“Q. You. have about three different terms that are used in your allotment office with reference to what you call different payments; one is parity and one is conservation and I don’t know whether you still use the old allotment word or not, but could you tell us what parity means? A. Well, we have the parity payments which are paid in the spring which is a part of the wheat payment; it is made on wheat alone, on the wheat base, and is part of the wheat payments, and we have the conservation payment, which is made in the fall, which is the finish of the parity payment and paid on all other practices performed on that land.”
Upon this record the court sustained the demurrer to the evidence of plaintiff.
Our problem is first: What did the parties intend should be paid to the plaintiffs when they made their contract? It is agreed that as far as the payment by the government agency is concerned it should be made to whoever owned the record title to the land. On December 31,1941, the record title was in the defendants. However, if the parties agreed that certain payments when they were received by the holder of the record title should be paid by him to the plaintiffs and instead of their being so paid by him the defendant retained them, then the plaintiffs were entitled to recover.
It will be noted that the language used to clarify the first agreement refers to “allotment and parity payments” for the wheat then growing upon the land. The wheat growing upon the land in December, 1940, would be the wheat that was to be harvested in 1941. The young lady testified, as we have pointed out, that the payment made in the fall was the finish of the parity payment. She seemed to know about as much about this as anybody in the county. At any rate it is some evidence that the payment made in the fall of 1941, which would be the payment that went to the defendant and which plaintiffs claim should have been paid by the defendant to them, was at least a parity payment in part and certainly covered by the language of the supplemental agreement.
We have said many times' that on a demurrer to the evidence, the evidence of the plaintiffs should be regarded as true, and all reasonable inferences, which went to sustain the position of the plaintiffs, should be drawn. See Trezise v. State Highway Comm., 150 Kan. 845, 96 P. 2d 637. When we do that in this action we reach the' conclusion that the demurrer to this evidence should not have been sustained.
The judgment of the trial court is reverséd and the cause is remanded with directions to proceed with the trial of the case.
Thiele, J., dissents. | [
80,
110,
-8,
29,
10,
-32,
40,
-102,
81,
-87,
-90,
83,
-23,
19,
4,
121,
-29,
61,
68,
104,
-58,
-77,
23,
-64,
-78,
-13,
-39,
-51,
-71,
77,
-92,
-44,
76,
48,
66,
-107,
-26,
-62,
67,
28,
-114,
-128,
9,
-51,
-39,
0,
-72,
43,
54,
75,
53,
30,
-5,
44,
25,
67,
105,
46,
123,
43,
65,
-15,
-86,
-123,
125,
26,
17,
6,
-98,
-61,
-40,
110,
-104,
49,
9,
72,
114,
-92,
-122,
116,
15,
-103,
12,
-90,
102,
32,
-108,
-17,
88,
-40,
46,
-5,
-115,
-90,
-48,
88,
67,
-96,
-66,
-98,
117,
80,
6,
126,
-29,
5,
29,
104,
3,
-53,
-12,
-93,
-113,
60,
-102,
11,
-21,
-94,
16,
101,
-51,
-94,
92,
71,
122,
27,
-121,
-112
] |
The opinion of the court was delivered by
Wedell, J.:
This appeal involves two actions, one against the county treasurer and the other against the board of county commissioners of Barton county. Each action was framed in two counts. Each count sought the recovery of a real-estate mortgage registration fee paid under protest to the register of deeds of Barton county for the recording of a mortgage. The actions presented the same questions of law and were consolidated by agreement in the district court. We need therefore consider only the petition in one case. The appeal is from an order sustaining a general demurrer to each count of the amended petition.
The first question presented is whether the register of deeds erroneously required the payment of a real-estate mortgage registra tion fee before recording the mortgages which were tendered to him by the mortgagee, appellant, for recording.
It appears the form of the mortgages was the same or similar to that used generally in the state of Oklahoma, appellant’s principal place of business, where oil and gas leases are held to be an interest in real estate. Appellant concedes that if the mortgages were actually on real estate a registration fee was properly required on each mortgage under the provisions of G. S. 1935, 79-3102, but it contends these were mortgages on oil and gas leases which are taxed as personal property in Kansas.
It is conceded the two mortgages are substantially the same in form and character. By agreement only the mortgage involved in the second count, and attached to the petition, is abstracted. Pertinent portions of that mortgage read:
“Mortgage
(Oil and Gas Special)
“This Indenture, Made this 12th day of December, 1942, between Black-Marshall Oil Company
(hereinafter referred to, jointly and severally if more than one, as ‘Mortgagor,’ and so called herein, whether one or more) and The First National Bank and Trust Company of Oklahoma City, Oklahoma City, Oklahoma (hereinafter referred to as ‘Mortgagee’),
“WITNESSETH :
“That, Whereas, The Mortgagor Black-Marshall Oil Company is justly indebted to the mortgagee in the sum of
Seven Hundred Twenty Thousand Dollars, (1720,000.00) and, as evidence of such indebtedness, has made and delivered the following described promissory note(s), payable to the Mortgagee’s order at its banking rooms in Oklahoma City, Oklahoma, to-wit:
“1. Note dated December 12, 1942, in the principal sum of $520,000.00, due August 20, 1943, payable in installments as therein provided.
“2. Ten identical notes, each dated December 12, 1942, in the principal amount of $20,000.00 each, due August 20, 1943, payable in installments as therein provided.
“Now, Therefore, In consideration of the making of the above loan, and to secure, assure and provide for the prompt payment thereof, as well as of all other sums which may from time to time be secured hereby as hereinafter provided, and the full performance by the Mortgagor of every covenant and agreement contained herein, the Mortgagor has and does by these presents grant, sell, assign, transfer, set over, convey, pledge, hypothecate and mortgage unto the Mortgagee all of the following described, property (hereinafter called ‘mortgaged property’), to-wit:
“All those properties described in the Exhibit ‘A’ hereto attached and made a part hereof.
“Exhibit ‘A’
“Aug. 7, 1941
“1. The Krier Lease. All the right, title, interest and estate of Mortgagor in and to the following described property situate in Barton County, Kansas, to-wit: The NWlá, Section 18, Township 16 South, Range 11 West, arising from or by virtue of any oil and gas mining lease or leases, and particularly in and to the oil, gas and other minerals, developed or undeveloped, and located on, in and under said property, Mortgagor now owning the full %ths working interest created by and existing under and by virtue of a lease, dated January 2, 1940, from Peter J. Krier and wife to Deering J. Marshall, Inc., subject only to an oil payment in the amount of $8,000, payable from of %ths of all the oil or gas produced.” (Emphasis supplied.)
Nineteen other properties located in either Barton, Rice or McPherson counties were embraced in the mortgage. The description of the other nineteen properties, insofar as material on the point in issue, was the same as that contained in the last above quoted paragraph.
With respect to the security for the indebtedness the mortgage, however, further provided:
“And, in addition, all further rights, interests and estates of whatsoever kind or character (whether in the nature of fee simple title; leasehold, mineral or royalty interests; franchise or easement rights; or otherwise) now held, and all hereinafter acquired, by the Mortgagor in and to each and every tract of land above mentioned and all oil, gas and other minerals therein and thereunder or which may be produced therefrom;
“Together with all and singular the tenements, hereditaments and appurtenances now or hereafter in anywise belonging or appertaining unto the Mortgagor’s present and future rights, interests and estates in and to each and every such tract of land and all such oil, gas and other minerals, including (but not confined to) all right, title and interest now held, and all hereafter acquired, by the Mortgagor in and to (a) any and all buildings, structures, fixtures and other improvements now or hereafter located on said land or any part thereof and (b) . . . [Here were specified the oil in storage, machinery, equipment, fixtures and all personal property located on the premises and used in connection with the development and operation of the leasehold estates.] (c) any and all replacements of, substitutions for and additions to each and all of the foregoing;
“And together with all right, title, interest and claim now held, and all hereafter acquired, by the Mortgagor in and to all income and proceeds of every kind and character (whether in the nature of bonuses, rentals, royalties or otherwise) produced by, attributable to or arising from all property herein-above mentioned or described (real, personal or mixed) and each and every part thereof at any time subsequent to 7:00 o’clock A. M., on the 1st day of January 1943 including the proportionate share or shares of, all moneys and proceeds realized from the sale or marketing of all oil, gas and other minerals produced, saved, marketed or sold subsequent to such date and time from the above mentioned land or any part thereof which (share or shares) 'may be attributable to or payable by virtue of the Mortgagor’s present or future ownership of any right, title, interest, estate or claim in or to said land or the production therefrom, whether by virtue of contract, agreement or otherwise; and a lien upon all of the above property, including all such income and proceeds, is hereby expressly created and granted unto the Mortgagee.
“To Have and to Hold All of said mortgaged property unto the Mortgagee, forever; . . .
“All terms, conditions, covenants, warranties and agreements contained herein shall be binding upon the heirs, executors, administrators, personal representatives, successors and assigns of the Mortgagor, and shall be deemed and construed to be covenants running with the estate or interest in the land; . . . ” (Emphasis supplied.)
An examination of the terms of the mortgage clearly discloses it was intended to pledge as security for the indebtedness not only the oil and gas leases described but also all other rights, interests and estates of the mortgagor in the lands described or mentioned whether real, personal or mixed and whether such interests, rights or estates in the lands were presently owned or subsequently acquired in any manner.
It is true the amended petition alleged:
“That all the property particularly described and designated in said petition and in the exhibits attached thereto, was at t-he time of the execution of the said mortgage and at the time of the offering of the said mortgage for recordation in the office of the Register of Deeds of Barton county, Kansas, personal property; and since the said execution of the said mortgage, said property has been, now is, and remains personal property; that the said mortgagor in said mortgage has never at any time since the execution of the said mortgage owned any real estate interest embraced within the terms of said mortgage:”
Manifestly the decision of the register of deeds, with respect to the fees, had to be made on the basis of the instruments tendered for recording, and not on the basis of a petition filed subsequently which alleged the mortgagor had, and has, no interest in the real estate described in the mortgage. The mortgages purported to cover all rights and interests in the real estate described which the mortgagor presently owned and which it might subsequently acquire. It is not the official duty of the register of deeds to conduct an investigation and examination of instruments and conveyances, whether recorded or not, in order to ascertain whether a mortgagor actually has some present interests or rights in real estate described in a mortgage. Surely that official is not required to record mortgages which purport to cover also such future interests in the real estate as the mortgagor may acquire without exacting the statutory fees.
Appellant argues that for the purpose of a demurrer the allegations of the amended petition should be accepted as true and that it is therefore now conceded appellant had, and has, no interest in the real estate described in the mortgages. One trouble with that contention is the mortgages were also a part of the amended petition and they speak for themselves with respect to the nature and character of the instruments tendered to the register of deeds for recording. His duty was determined by the instruments which pledged real estate as well as personal property as security for the mortgage indebtedness. The amended petition also concedes the mortgages were not tendered to that official merely for filing, as is done in the case of a chattel mortgage, but that they were tendered for recording, were recorded, and were withdrawn by the mortgagee as are mortgages on real estate generally. It appears appellant placed its own construction upon the nature and character of the instruments when it tendered them for recording. It desired and obtained the protection which the recording of such instruments affords. It was properly required to pay registration fees for the recording of the mortgages pursuant to the requirements of G. S. 1935, 79-3102.
Appellant next contends that if any fee was properly exacted under the statute it is entitled to a refund on the fees paid on each mortgage by reason of the fact that a similar fee previously had been paid on a part of the mortgage indebtedness. Appellant directs our attention to the mortgage provisions which disclose that the new mortgages were in a much larger amount than the former mortgages and that the new mortgages, to the extent of the amount of the old mortgages which amount was stated in the new mortgages, were substitutions for the former mortgages.
Does the statute provide an exception under these circumstances and require payment of the mortgage registration fee only upon the amount by which a new note and mortgage exceed the old mortgage indebtedness? G. S. 1935, 79-3102, provides:
“Before any mortgage of real property, or renewal or extension of the same ■ shall be received and filed for record on and after the first day of March, 1925, there shall be paid to the register of deeds of the county in which such property or any part thereof is situated, a registration fee for each one hundred dollars and major fraction thereof, of the principal debt or obligation which is secured by such mortgage, the sum of 25 cents; that no registration fee whatsoever be paid, collected or required for or on any mortgage or other instrument, given solely for the purpose of correcting or perfecting a previously recorded mortgage or other instrument, or for the purpose of providing additional security for the same indebtedness, where the registration fee herein provided for has been paid on the original mortgage or instrument: Provided, however, That the register of deeds shall receive no additional fees or salary by reason of the receipt of fees as herein provided: Provided further, That after the payment of the registration fees as aforesaid the mortgage and the note thereby secured shall not otherwise be taxable.” (Emphasis supplied.)
It will be observed the fee is required to be paid on any mortgage of real property, or renewal or extension of the same, before it is received and filed for record. The only exceptions are in cases where a mortgage or instrument is given solely for the purpose (1) of' correcting or perfecting a previously recorded mortgage or other instrument; or (2) for the purpose of providing additional security for the same indebtedness where the registration fee has been paid on the original mortgage or instrument.
It is not contended the new mortgages in question were given for the purpose indicated in exception (1) above. Appellant argues that in the new mortgage in the sum of $720,000, involved in the second count, it was required to and did pledge all of the oil and gas leases owned by it at the time and that the new mortgage, as a matter of fact, was an additional mortgage in the sum of $200,000. There is nothing in that mortgage which discloses the additional security pledged therein was pledged solely for the purpose of providing additional security for the “same indebtedness” represented by the old mortgage note. Moreover, in the absence of such a showing it would rather appear the additional property was not pledged solely to secure the “same indebtedness” represented by the old mortgage note but that it was required and pledged to secure the larger and entire indebtedness represented by the new mortgage note. There is nothing before us which requires a contrary conclusion with respect to the mortgage involved in the other count of the petition.
Language relied upon as creating an exemption from taxation must be strictly construed and the party claiming the exemption must bring himself clearly within the exemption. (Clinton v. State Tax Commission, 146 Kan. 407, 423, 71 P. 2d 857, and cases therein cited.) This, appellant has not done.
In view of the conclusions reached other matters suggested by appellant need not be treated. The order sustaining the demurrer to the amended petition is affirmed. | [
112,
-21,
-15,
76,
-54,
-32,
40,
-118,
88,
-79,
-25,
83,
111,
-54,
4,
109,
-42,
57,
117,
104,
-57,
-73,
119,
72,
-48,
-69,
-39,
-43,
-75,
95,
-28,
-43,
76,
48,
-54,
-107,
-122,
-126,
-57,
92,
78,
-123,
-119,
69,
-39,
0,
48,
107,
118,
9,
21,
-89,
-13,
40,
60,
67,
73,
44,
-37,
40,
-47,
-80,
-102,
7,
95,
3,
17,
6,
-104,
-63,
-8,
-70,
-104,
57,
0,
-24,
119,
38,
-122,
116,
15,
27,
41,
62,
102,
35,
-123,
-21,
-4,
-120,
14,
-37,
-99,
-90,
-110,
24,
35,
32,
-106,
-99,
124,
2,
71,
-2,
-18,
5,
93,
108,
-124,
-53,
-42,
-77,
-113,
101,
-104,
27,
-26,
-125,
-112,
117,
-63,
-74,
93,
71,
50,
27,
-114,
-8
] |
The opinion of the court was delivered by
Parker, J.:
This appeal involves the result of garnishment proceedings in a case, which so far as it concerns liability of Stanley N. Chambers, the principal defendant, was determined in Herd v. Chambers, 155 Kan. 55, 122 P. 2d 734, where a default judgment as to such defendant was reinstated, subject to determination of liability of the garnishee defendant Wheeler-Kelly-Hagny Trust Company in the garnishment action on the issue there framed and undisposed of by the garnishment pleadings. The facts on which such judgment was based may be found in the foregoing opinion and will not be here restated except as they are pertinent to the trial of the garnishment issue.
On the trial of the garnishment action in district court the sole issue between plaintiff and the defendant company, as joined by their affidavits which constituted the pleadings in that proceeding, Was whether the company had property in its possession or' under its control belonging to defendant Chambers or whether it Was 'indebted to him. After a trial on that issue, the district court found that on the date of service of the garnishment summons the company had in its hands under the terms of a void trust agreement executed by Chambers, a sum far in excess of the judgment for $25,000 rendered in Herd v. Chambers, supra, which was subject to garnishment, and rendered judgment in favor of the plaintiff and against the garnishee for that amount with interest and attorney fees, from which judgment the defendant company appeals.
Many questions are raised and discussed by the able and distinguished counsel for both appellant and appellee but a careful examination of the briefs as well as the record readily discloses that the arguments advanced in support of most of them are premised upon the assumption the construction to be given the trust instrument is that placed upon it by the respective' parties. Since it is apparent, if in fact it is not conceded by all concerned, the determination-of the principal issue necessitates a judicial interpretation of the trust agreement and that once it is construed many subordinate matters urged and relied upon cease,to be of importance, wc turn first to consideration of that .subject.
Unimportant for our purpose, at least for the moment; are any questions pertaining to the motive actuating the execution of the instrument, the conditions under which it was executed, or thé circumstances under which the corpus of the estate created by,its-terms was acquired by and delivered into the hands of the appellant. What we are concerned with is the fact the agreement, on which appellee bases its contention the appellant had money in its possession, belonging to Chambers, was duly executed, that pursuant to its provisions funds far in excess of the amount of appellee’s judgment were turned over to the appellant and that such funds remained and were in its possession and under its control on the date of the' service of garnishment process. With this conceded, as it is, an interpretation of the terms and conditions of the instrument itself will be determinative of the issue of whether funds belonging to the' trust estate were subject to garnishment.
The agreement was quite lengthy. It will be necessary to .quote ’ some of its terms and provisions verbatim and suffice to relate the substance of others. Its prelude states:
' “This agreement, made and entered into this 27th day of August, 1931, by and between Stanley N. Chambers, of Wichita, Kansas', (hereinafter generally called the ‘Grantor’), and The Wheeler Kelly Hagny Trust Company, a Kansas corporation having its principal place of business in the City of Wichita in said State (hereinafter called the ‘Trustee’),
•'“Witnesse'th:
“That the Grantor has contemporaneously herewith delivered to the Trustee cash in the amount of Fifty-three Thousand Two Hundred Eighty-three' and 01/100 Dollars ($53,283.01); that the Grantor intends by subsequent additions to the trust to increase the value of the corpus.of the estate to a sum of about One Hundred Twenty-five Thousand Dollars ($125,000.00); that such corpus, together with any and all securities later deposited hereunder by the Grantor or purchased by the Trustee with cash held héreunder, shall be held in trust for the use and benefit of the Grantor upon the conditions and for the time and purpose hereinafter set forth, to wit:”
Following the prelude is article 1, which reads:
“The Trustee shall pay and distribute from income on hand in installments convenient to the Grantor, beginning as soon as practicable after the date of this Agreement, the entire net annual income of the trust estate to Stanley N. Chambers, such payments to continue so long as he shall live. After the death of Stanley N. Chambers, the Trustee shall in like manner pay the net income to Myrtle L. Chambers, wife of the Grantor, if she be living and shall continue such payments until her death. After the death of Myrtle L. Chambers, if the Grantor predeceases her, the Trustee shall make distribution of the principal and all earnings in the hands of said Trustee, in accordance with the Last Will and Testament of said Myrtle L. Chambers, and upon the death of the Grantor, if Myrtle L. Chambers predeceases him, the Trustee shall make distribution of the principal and all accumulated income in the hands of said Trustee, in accordance with the Last Will and Testament of the said Grantor. If the Grantor and his wife die in a common accident or under other circumstances giving rise to question as to which shall have died first, it shall be conclusively presumed, for the purpose of distribution of the Estate hereunder, that the Grantor survived his wife, Myrtle L. Chambers. If no valid Last Will and Testament be left disposing of the trust estate herein by the survivor of Stanley N. Chambers and Myrtle L. Chambers, or if there be no such will exhibited to the Trustee and filed for probate within six months after the date of the death of the survivor of the Grantor and his wife, the Trustee shall, unless otherwise directed by later supplemental agreements which may from time to time be entered into between the Grantor and the Trustee amending the following distribution clauses hereunder, divide the trust estate hereundei into four equal parts to be held and distributed as follows: . . . [Here follows instructions with respect to distribution on the contingencies just referred to] . . . Notwithstanding the provisions hereinabove made, it is understood and agreed by the parties hereunder that the Grantor may, from time to time by supplemental writings delivered to the Trustee during the Grantor’s lifetime direct that distribution of the estate, either principal or Income be made to other persons or corporations designated in such supple mental writings. It is further agreed that such directions may be changed as frequently as the Grantor elects, the only limitation on such reserved power being that the Grantor shall not execute any instrument in the future restricting or limiting the rights herein reserved to the Grantor. It is understood by and between the parties hereto that E. P. Villepigue, of Wichita, Kansas, shall be and is the duly authorized attorney of the Grantor and/or the Grantor’s wife, during the life of the said E. P. Villepigue, and upon the death of the said E. P. Villepigue the Grantor and/or his wife is to have the sole power to choose his successor.”
Ensuing terms and conditions of the agreement may be stated in substance as follows: Article 2 contains twenty-one clauses dealing with the investment of the trust estate by the trustee and authorizing action by it in that respect subject to disapproval of the grantor or by his attorney.
Provisions of article 3 relate to compensation to be paid the trustee.
Terms of article 4 prohibit the making of income payments until their accrual from investment of the principal, incumbrances of any part of the principal or income, and its subjection to claims of creditors of any beneficiary.
In article 5 the grantor is authorized to withdraw principal up to 20 percent of that originally deposited plus 20 percent of principal accretions or gains realized from the management of the corpus of the estate.
Further payments from the principal in such amounts as they may deem necessary are authorized by article 6 in the event the trustee and the grantor’s attorney determine income from the principal is insufficient for the general welfare and best advantage of the grantor and/or the grantor’s wife.
Articles 7 and 8 relate to appointment of a successor to the trustee in the event that action is necessary.
Article 9 permits removal of the trustee by the grantor (and after his death his wife) and the naming of a new trustee in the event management of the trust estate by the trustee results in losses aggregating an amount equal to 5 percent of the value of the principal.
The final article, No. 10, directs the trustee to make annual reports to the grantor and/or his wife, and their attorney and authorizes inspection by them at all times of the book records of the trustee.
Subsequent to the execution of the original trust agreement Chambers delivered to the trustee, garnishee herein, a supplemental writing dated March 9, 1932, which in part reads:
“To The Wheeler Kelly Hagny Trust Company, Wichita, Kansas:
“Take Notice that, pursuant to the provisions of a certain trust agreement in writing, made and entered into the 27th day of August, 1930, by and between Stanley N. Chambers, of Wichita, Kansas (thereinafter generally called the ‘Grantor’) and The Wheeler Kelly Hagny Trust Company, a Kansas corporation, having its principal place of business in the city of Wichita in said State (thereinafter called the ‘Trustee’), and particularly Article 1 thereof, the undersigned, the said Stanley N. Chambers, does hereby cancel, terminate and hold for naught, all of the terms and provisions of said paragraph wherein and whereby the said Grantor provides for the division of the trust estate created by said trust agreement into four (4) equal parts to be held and distributed after the death of the survivor of the Grantor and his wife as follows : . . . [Here appear the provisions in the original instrument relating to distribution of the trust estate in event of the happening of any of the contingencies referred to in the third paragraph of article 1 thereof.]”.
Further provisions of this supplemental agreement read:
“Take Further Notice that the foregoing provisions are, and each of them is, deemed struck out from said trust agreement pursuant to the authority so to do reserved to said Grantor in said Trust agreement, and that this instrument is, and shall be deemed to be a supplemental writing delivered to the Trustee during the Grantor’s lifetime directing a distribution of said estate as to principal and income within the terms and provisions of said trust agreement, and, in particular, paragraph 1 thereof.
“Take Further Notice that in lieu of the said provisions hereby struck out from said trust agreement, the said Grantor hereby directs that the distribution of the said estate be made to the estate of him, the said Stanley N. Chambers, to be disposed of in accordance with the Last Will and Testament, if any, of the said Stanley N. Chambers, or in the event that he shall die intestate, then according to the statutes of the state of his domicile, or of the state having jurisdiction of said trust estate, as the case may be, relating to intestacy.
“Take Further Notice that nothing herein contained shall be deemed to alter in any way any term or provision of said trust agreement relating to Myrtle L. Chambers, wife of the said Stanley N. Chambers, and/or to any right, title, benefit, use or interest of the said Myrtle L. Chambers in and to the trust estate created by said trust agreement.
“Take Further Notice that the undersigned in executing this agreement and doing the acts therein recited is not deemed to have exhausted or impaired any right reserved him under said paragraph 1 of said trust agreement to direct the distribution of the estate, either principal or income, or to amend the distribution clauses in said paragraph contained by further instruments, but reserves to himself all such rights with full vigor and force and effect.”
Mindful of the rule (65 C. J. 500, § 248; Restatement, Trusts, § 38; 1 Scott on Trusts, § 38; 26 R. C. L. 1254, 1256, §§ 101, 103; Bayless v. Wheeler-Kelly-Hagny Trust Co., 153 Kan. 81, 109 P. 2d 108) that in the construction of a trust the purpose and intent of the creator must be determined from the terms of the instrument itself, if it be plain and unambiguous, we have carefully examined the language of the instrument under consideration, and to which we have heretofore made reference, for the purpose of determining whether any such ambiguity exists in clauses pertaining to use, disposition and control of the trust estate as to require a consideration of the evidence in order to properly construe them. We do not think so. Whatever other purposes the grantor may have had in view in executing the agreement in question one of its provisions clearly indicates his intention in those respects. We refer to the next to the last paragraph of article 1 (referred to in the supplemental writing as paragraph 1) which for the sake of emphasis we requote:
“Notwithstanding the provisions hereinabove made, it is understood and agreed by the parties hereunder that the Grantor may, from time to time by supplemental writings delivered to the Trustee during the Grantor’s lifetime direct that distribution of the estate, either principal or income, be made to other persons or corporations designated in such supplemental writings. It is further agreed that such directions may be changed as frequently as the Grantor elects, the only limitation on such reserved power being that the Grantor shall not execute any instrument in the future restricting or limiting the rights herein reserved to the Grantor.”
The language just repeated clearly and succinctly evidences an intent and purpose on the part of the grantor to retain full and complete control over the trust estate, both as to principal and income. In that language there is no ambiguity or uncertainty which would permit this court to go beyond the four corners of the instrument in determining the intention, neither is there room or cause for doubt as to the construction which must be placed upon it. It is our view the words speak for themselves. A statement that the settlor of a trust estate may from time to time direct distribution of that estate to other persons or corporations means just that and nothing less. And, included therein, as we view it, is the right and power to direct that the entire estate, both principal and interest be turned back to him, thereby abrogating entirely the provisions of the original instrument. If there be doubt as to the soundness of this view we direct attention to the last paragraph of the supplemental writing, heretofore quoted, where in no uncertain terms the grantor clearly demonstrated the construction he placed upon the original instrument, and reemphasized his intent and purpose to retain full use and control under its terms. Indeed, the trustee itself recognized that construction by accepting an instrument reserving those rights in clear and concise terms. True enough, as suggested, other provisions with respect to management and control of the estate might seem to contemplate there would be no change and give space to the argument they precluded any such action. Likewise, that both the grantor’s attorney and the trustee were granted certain powers which they could exercise irrespective of the desires or requests of the grantor, but on analysis it is apparent such provisions are all dependent upon the clause in the original instrument reserving the grantor the right to otherwise direct the distribution of the entire estate by supplemental writings. True also, as urged, some provision was made for Mrs. Chambers out of income but her rights such as they were also depended upon the provisions of the instrument creating them which permitted the grantor to dispose of the estate as he saw fit. Further discussion of the subject would serve no useful purpose. We have carefully examined the trust agreement and have concluded that the only proper construction to place upon its provisions, when considered as a whole, is that it created nothing more than a revocable trust with full power in tlie grantor to do with the trust estate as he saw fit, including the right, at any time he deemed it to his interest during his lifetime to direct its distribution either to himself or to others. So construed, since it is conceded the consideration for the creation of the trust consisted entirely of money, it follows its delivery to the trustee pursuant to the terms of the instrument was a conveyance in trust for the sole use and benefit of the grantor named therein and such title and possession as was acquired thereunder by the trustee was subject to existing provisions of our statute of frauds (G. S. 1935, 33-101) prohibiting gifts and conveyances of goods and chattels in trust for the use of the person or persons making them.
We pause here to note there is some dispute between the parties as to the force and effect to be given the terms of the supplemental agreement, the appellee contending one paragraph thereof took away from Chambers’ wife all power of appointment with respect to the trust estate after his death and appellant insisting another, both paragraphs being quoted at length herein, specifically provided that nothing contained in such instrument should be construed as altering any term or provision of the original with respect to her right, title, benefit, use or interest therein. We think something could be said for both contentions if it became necessary to decide the question but we shall not labor the point for we regard its determination as of little,"if any, importance. Irrespective of what the supplemental agreement accomplished the fact remains that even if the grantor did not intend and failed by its provisions to take unto himself exclusive power of appointment with respect to distribution of the estate he still had and retained not only the power to take that action but likewise the right to make distribution of the corpus and; income under the terms of the original. That in our opinion, is 'the determining factor in reaching a conclusion the trust was for the settlor’s use and benefit.
The applicable section of our statute of frauds, to which we have recently referred, is G. S. 1935, 33-101. It reads:
“All gifts and conveyances of goods and chattels, made in trust to the use of the person or persons making the same, shall be void and of no effect.”
Appellant contends even if the statute is applicable, as we have found it to be, that the trust under consideration is valid notwithstanding. It points out there was no evidence establishing fraudulent intent on the part of Chambers with respect to his creditors or others and directs attention to the fact that so far as liability to appellee is concerned there could have been no intention of that character for the facts upon which such liability was predicated came into existence long after execution of the trust agreement. Briefly stated appellant’s position is that the conveyances referred to in the statute just quoted are limited to those where the grantor making them does so with intent to defraud his creditors, and all other conveyances, even though it be conceded they are made for the use of the grantor, are valid. A determination of the question raised by appellant is not devoid of difficulty.
In approaching the subject it should perhaps be stated that our statute had its origin in Stat. 3 Hen. 7, ch. 4, enacted in 1487, which contained language of identical import. The object of this early statute Was to render ineffectual nominal transfers of personalty where its use by the declaration of trust remained in him who made the transfer. While fraudulent practices may have been responsible for its enactment it was not a statute against frauds and had no reference to intentions whether fraudulent or honest. Much could be said regarding the subsequent history and development of this statute insofar as it has affected American jurisprudence but time and space will not permit an extended discourse on the subject. It will suffice to say it has been reenacted with immaterial differences in phraseology in many jurisdictions, in others has been enacted in substance, and in those jurisdictions where it has not been made a part of the statutory law the courts have adopted it in principle with the result it can be said, as a general proposition based on public policy, the American doctrine supported by the great weight of federal and state authorities is, that irrespective of statute an individual cannot create out of his own property for his own benefit a trust for himself and thereby defeat his creditors of their lawful demand's.
A concrete, yet complete and comprehensive, statement of the doctrine is to be found in 37 C. J. S. 1048, § 219, which reads:
“The general rule is well settled both at common law and under statute that a person cannot settle his estate, in trust for his own benefit, so as to be free from liability for his debts. The intention of the parties to such transfer, whether honest or fraudulent, is wholly immaterial. The rule is founded on the self-evident proposition that a man’s property should be subject to the payment of his debts, although he has vested a nominal title thereto in some other persons. To bring a case within the operation of the rule, it is not necessary that the deed in so many words should express that it is in trust for the use of the grantor, but, if such is the legal effect of it as gathered from the language, the court will as a matter of law declare it void. It is of no importance whether the reservation of the use is contained in the instrument of transfer or rests in parole; it is the fact that property is actually conveyed in trust for the use of the person making the conveyance, whether the declaration of trust1 is open or secret — expressed in the conveyance, or the subject of a private understanding — which enables creditors to avoid the transfer. Property so settled is assets in the hands of the trustee for the payment of debts, and the giving of unlimited discretion to the trustee does not take the case out of the general rule. That the grantor is solvent at the time of the creation of the trust is immaterial, as is also the fact that the grantor is a spendthrift. . . . While many statutes which invalidate conveyances in trust for the grantor are limited by their terms to goods and chattels, the principle on which they rest1 is a part of the common law and applies to realty as well as personalty.”
To the same effect, but in slightly different form, the rule is stated in other well-recognized textbooks and legal treatises, see 65 C. J. 558, § 308; Restatement, Trusts, § 156; 25 R. C. L. 355, § 6; 24 Am. Jur. 189, 190, §§ 30, 31; 1 Scott on Trusts, 782, § 156; 1 Moore on Fraudulent Conveyances, 417, and 44 Harvard Law Review, 209.
As indicated, this legal principle is almost universally followed by American courts. Reference to the opinions of the following well-considered decisions examined by us, and which are but few of the many that could be cited, will disclose the reasoning responsible for its application; Mackason’s Appeal, 42 Pa. 330; Phila delphia v. Meredith, 49 Pa. Sup. Ct. 600; Ghormley v. Smith, 139 Pa. 584, 21 Atl. 135; Nolan v. Nolan, 218 Pa. 135, 67 Atl. 52, Rienzi v. Goodin, 249 Pa. 546, 95 Atl. 259; Benedict v. Benedict, 261 Pa. 117, 104 Atl. 581; Pacific National Bank v. Windram, 133 Mass. 175; Jackson v. Von Zelditz, 136 Mass. 342, Greenwich Trust Co. v. Tyson, 129 Conn. 211, 27 A. 2d 166; Sargent v. Burdett, 96 Ga. 111, 22 S. W. 667; Brown v. MacGill, 87 Md. 161, 39 Atl. 613; Jamison v. Mississippi Valley Trust Co. (Mo.) 207 S. W. 788; McColgan v. Magee, Inc., 172 Cal. 182, 155 Pac. 995, and McAlvay v. Consumers Salt Co., 112 Cal. App. 383, 297 Pac. 135. See, also, 119 A. L. R. Anno. 19, 35, and 93 A. L. R. Anno. 1211. For other decisions dealing specifically with statutes making conveyances of personalty in trust for the use of the person making them void as against creditors, see Ward v. Marie, 73 N. J. Eq. 510, 68 Atl. 1084; Dillon v. Spilo, 275 N. Y. 275, 9 N. E. 2d 864; Sandlin et al., Adm’rs, v. Robbins et als., 62 Ala. 477, 484, 485, Wetherill v. Canney, 62 Minn. 341, 345, and Geary v. Cain, 79 Utah 268, 9 P. 2d 396.
The doctrine just discussed and most of the decisions referred to are not determinative of the appellant’s contention under circumstances where, as here, the trust has been found to be for the use of the person making it and a statute is in force and effect making conveyances void but they are indicative of what our decision might’ be irrespective of such statute and present forceful and additional reasons why, when its provisions must be applied, this court'will give its terms a liberal rather than a strict construction.
Directing our attention to the construction to be placed upon the specific language found in G. S. 1935, 33-101, it should be stated at the outset that our examination of the statutes of other states has disclosed very few statutory enactments identical in form and' we fail to find — and if there are any counsel neglected to cite them — any foreign decisions directly in point. We can, however, see no reason why decisions dealing with statutes making void as to creditors transfers of personal property made in trust for the use of the grantor should not be helpful and to the point. With that in view we direct specific attention to a number of those cases, where it was held:
“A trust, the object of which is to yield to the settlor monthly installments for his support during his life out of the entire corpus of the estate, and to effect a disposition of any residue at his death as he may appoint by will, and, failing such appointment, then on the further trust to pay to - settlor’s wife monthly installments, and on the death of both to‘pay the balance to their children, and if there be none, then to pay the balance to the next of kin, so far as it transfers personalty is a conveyance ‘for the use of the person making the same,’ notwithstanding that after the making of the trust settlor cannot immediately subject the entire estate to his use, within 2 Gen. St., p. 1604, § 11, declaring conveyances of personalty for the use of the person making the same void as against creditors.” (Ward v. Marie, 68 Atl. 1084, headnote 3, supra.)
“Insufficiency of income of trust fund, established by judgment debtor for her own use, for support and maintenance of herself and infant son, was no defense to action brought under statute by judgment creditor against judgment debtor and trustee to reach income from trust fund and apply it on judgment until paid (Personal Property Law, §34; Civil Practice Act, §§684, 685, 793, 1189, 1196).” (Dillon v. Spilo, 9 N. E. 2d 864, headnote 5.)
And said:
“. . . Bump on Fraud. Con. 2d ed. 208, spealdng of the Stat. 3 Hen. 7, ch. 4, which in substance constitutes § 2120, Code 1876, says, ‘It is not directed against trusts made with fraudulent intent, but against trusts themselves. There is not one word about intent, or object, or purpose, or excluding, injuring, or delaying creditors. The effect of the trust is not a subject for consideration. Its mere existence avoids the transfer, and destroys the title as against creditors existing or subsequent. A conveyance by the owner of property to another,,in trust for himself, is in effect a conveyance to himself, and such a measure can never be necessary for any legal or honest purpose. . .’
“Section 2120 of the Code of 1876, and the statute of 3 Henry, 7, speak alone of goods, chattels, and things in action. It is a common law doctrine, however, and is applicable alike to realty. There never was a time when a debtor could convey his property directly, or in secret trust, for his own benefit, or for the use of his family, and thereby defeat his creditors of their lawful demands—Huggins v. Perrine, 30 Ala. 396.” (Sandlin et al., Adm’rs, v. Robbins et als., 484, 485, supra.)
“If we understand the claim of plaintiff’s counsel, it is that the deed, when read with the agreement, is void as to the plaintiff, as a matter of law, under the provisions of G. S. 1894, § 4218, and that no finding of fact to the effect that the deed was made to delay or defraud creditors was necessary. This section of the statute is limited by its terms to goods and chattels, but the principle upon which it rests is a part of the common law, and applies to realty as well as personalty. It is founded on the self-evident proposition that a man’s property should be subject to the payment of his debts, although he has vested a nominal title thereto in. some other person. For that purpose the law declares the title to be in the debtor, and no transfer which is entirely nominal can stand in the way. The intentions of the parties to such a transfer, whether honest or fraudulent, are wholly immaterial, for the reason that the property in fact belongs to the grantor, and his creditors are entitled tp subject it to the payment of their demands, without reference to when .these debts were contracted or the motive for placing the naked nominal title to the property in the name of the grantee. . .” (Wetherill v. Canney, 345, supra.)
In a discussion of the construction placed by the courts upon Stat. 3 Hen. 7, ch. 4, supra, we find the following statement in 44 Harvard Law Review, 204:
“. . . In its original form the statute applies in terms only to gifts of goods and chattels, and it has been held that it applies only to gifts made for the sole benefit of the settlor. It was not directed against trusts made with fraudulent intent, but was a prohibition of trusts for the benefit of the settlor on the ground that such a trust was against public policy. Under this statute all trusts to which it applies are invalid, whether the trusts are spendthrift trusts or not.”
In a similar discussion but pertaining to present-day statutes, such as our own, the following statements are found in Restatement, Trusts, §§ 114c, 156 (Kan. Anno.):'
“In some States there are statutes which provide that a transfer in trust for the benefit of the settlor is void. Such statutes are interpreted as applicable only where the intended trust is for the sole benefit of the settlor. Under such statutes creditors of the settlor can reach the property although there was no intention to defraud creditors.” (114c.)
“Thus, there is no interest of the beneficiary to reach where the trust is A to B for A because such a gift or conveyance is void and of no effect. The creditors can reach A’s interest outside of any question of trusts. It should be noted, however, that the statute only applies to ‘goods and chattels’ and not to land. All the cases in which the above statute has been cited concern conveyances in fraud of creditors, but the terms of the statute include all trusts of personal property where A conveys to B in trust for A.” (§ 156 Kan. Anno.)
See, also, 1 Scott on Trusts, 782, § 156, and Restatement, Trusts, § 156b.
So far as our own decisions directly construe the force and effect of the statute under consideration, both appellant and appellee agree there are none in which a trust has been held invalid under the factual situation here involved. We agree with their conclusion in that respect, but are not in accord with the inference to be deduced from some of the argument that the question has not been given any consideration.
In the early case of Kayser v. Heavenrich, 5 Kan. 324, involving the validity of a voluntary assignment by an insolvent in trust for his creditors this court said:
“. . . In the first of these classes is the amount to be paid Loewenthal, and one-half of this amount is of right the property of one of the assignors, and is a secret trust for his benefit. Does this trust for the benefit of one of the assignors vitiate the whole dfeed of assignment? Section 1 of chapter 102 of the Compiled Laws declares that ‘all gifts and conveyances of goods and chattels made in trust to the use of the person or persons making the same, shall be and are hereby declared to be void and of no effect.’ It is not denied that a part of the trust for which this assignment was made was for the benefit of the maker thereof, and was so far void; but it is contended that it is only void as to such case, and that the property assigned must be distributed pro rata among the other persons named as creditors, as directed by the instrument of assignment. ... It can make no difference that this claim was but small compared with the general indebtedness. It was an essential part of the whole trust, pervading every part, as much as though it constituted nineteen-twentieths of the trust estate. The conveyance was in trust for the maker’s use, and it cannot make any difference that others were interested in the trust when any person, having a right so to do, contests the validity of the conveyance. It comes within the provisions of the section of the statute above quoted, and must be held void.” (pp. 336, 337.)
So, also, in Clark v. Robbins, 8 Kan. 574, 578, we find the following language:
“In whatever aspect this assignment may be viewed, it is void. If it be considered that the assignment transferred all the said goods to Clark for the purpose that he should hold them in trust for the Robb Bros, [the assignor] until they should receive $800 worth of the same, and then that he should hold the remainder, if there should be any remainder, in trust for the creditors, of the Robb Bros., such assignment would be void. (Gen. St. 504, § 1; Kayser v. Heavenrich, 5 Kan. 324.)”
Likewise, in Mullinville State Bank v. Olson, 134 Kan. 497, 500, 7 P. 2d 37, in a proceeding in aid of execution connected with a garnishment proceeding, this court after specific reference to the statute under consideration made this statement:
“Aside from the illegal reservation for the benefit of the debtor, there is the general finding of the court on the issue that it was done for the purpose of defrauding and delaying creditors of Olson, . . .”
See, also, Manley v. Larkin, 59 Kan. 528, 531, 53 Pac. 859, wherein the statute is likewise referred to and Kayser v. Heavenrich, supra, is quoted with approval.
It is true in the cases just cited as urged by the appellant that under the allegations of the pleadings fraud was one of the issues involved and that in some of them the opinions discussed that question and based the decision at least in part on the fact fraud was found to exist, but that fact, in our judgment, in no sense detracts from the import of the language therein found with respect to the force and effect to be given the statute referred to.
From our examination of all the legal authorities herein referred to, and giving the language to be found in G. S. 1935, 33-101 (section 1 of the statute of frauds) the liberal interpretation to which we think it is intended, we have no difficulty in reaching the conclusion that where-a conveyance of personalty is made in trust for the -use of the person making the same it is void irrespective of any fraudulent intent on the part of the grantor.
Since it must be conceded the legislature had power to enact the statute and must be assumed that in its enactment that body did not intend to do a useless and senseless thing, we believe, that aside from the authorities heretofore cited, our conclusion is not only fortified but justified because of another reason to which we have not heretofore referred. Reference to the statute discloses that section 2 of our statute of frauds, now G. S. 1935, 33-102, was passed at the same session of the legislature as section 1. It reads:
“Every gift, grant or conveyance of lands, tenements, hereditaments, rents, goods or chattels, and every bond, judgment or execution, made or obtained with intent to hinder, delay or defraud creditors of their just and lawful debts or damages, or to defraud or to deceive the person or persons who shall purchase such lands, tenements, hereditaments, rents, goods, or chattels, shall be deemed utterly void and of no effect.”
Scrutiny of the section just quoted reveals that it, among other things, prohibits conveyances of goods and chattels with intent to hinder, delay or defraud creditors. To hold that the provisions of G. S. 1935, 33-101, are only applicable in cases where there is an intention to defraud requires a judicial finding that the legislature did a useless and senseless thing in placing it on the statute books. This, under the plain language of the statute and the authorities, we are unwilling to do. We prefer to hold, as in fact we feel the language of the statute requires, that the provisions of section 1 of the statute of frauds applies to conveyances in trust for the use of the persons making them irrespective of fraudulent intent and that the provisions of section 2 apply to conveyances made with intent to defraud creditors.
Nor do we feel our decision in Bennett v. Christy, 137 Kan. 376, 379, 20 P. 2d 813, which is relied upon by appellant in support of its position, can be regarded as contrary to the conclusion just announced. The principal question under consideration in that case and determined by the court was as stated in paragraph 1 of the syllabus which reads:
“The fact that the value of an interest in an oil and gas lease assigned to secure a note, given for a valuable consideration, amounts to more than the debt secured by the assignment and would leave a residue for the assignor, a judgment debtor, does not in and of itself make the assignment fraudulent, nor does the fact that there is or will be such residue make such assignment, in the absence of fraud, a gift or conveyance in trust for the assignor as mentioned in R. S. 33-101.”
In support of the finding the court in the opinion said:
. “The fact that the value of the interest assigned amounted to more than the debt secured thereby, which would naturally leave a residue for the assignor, does not in and of itself make the assignment fraudulent, but it is in harmony with the usual and general rule in securing obligations. Neither does the fact alone that there is or will be such residue make such assignment a gift or conveyance in trust for the assignor as mentioned in the statute above quoted.” (p. 379.)
If in some other portion of the opinion there appears language which can be construed as indicating a view on the part of this court that a fraudulent intent to defraud creditors was necessary to avoid a conveyance subject to the provisions of G. S. 1935, 33-101, such language as is susceptible of that interpretation is disapproved.
For convenience and because it requires a discussion of evidence involved in another contention advanced by appellant, presently to be referred to, we now direct our attention to its argument that if the trust is void there is, nevertheless, a resulting trust in favor of L. M. Miller.
We turn directly to well-established definitions of resulting trusts. In Restatement, Trusts, section 404, we find the following definition:
“A resulting trust arises where a person makes or causes to be made a disposition of property under circumstances which raise an inference that he does not intend that the person taking or holding the property should have the beneficial interest therein, unless the inference is rebutted or the beneficial interest is otherwise effectively disposed of.”
In 65 C. J. 222, 363, 364, 366, it is stated thus:
“. . . a resulting trust has been defined to be one raised by implication of law and presumed always to have been contemplated by the parties, the intention as to which is to be found in the nature of their transaction, but not expressed in the deed or instrument of conveyance. . .” (§ 13.)
“. . . To state it differently, the two general types are: (1) Those where property is conveyed or transferred by one person to another but a third person either furnishes the consideration for the transfer or has such an interest in the property that it is considered as held for his benefit. (2) Those where property is transferred without any consideration coming from the donee or grantee and under circumstances such that, he is considered as holding the property for the benefit of the donor or grantor or those holding under him. . (§139.)
. .A resulting trust cannot arise where property is given to a person for his own use, and it has been said that it never arises in the hands of one who is the real owner of the property. . (§ 140.)
“The doctrine of resulting trusts is founded upon the presumed intention of the parties; and, as a general rule, it arises where, and only where, such may be reasonably presumed to be the intention of the parties, as determined from the facts and circumstances existing at the time of the transaction out of which it is sought to- be established. In a resulting trust there is always the element of an intention to create a trust, which is not expressed but is implied or presumed by law from the attendant circumstances and without regard to the particular intention of the parties, so, in a proper case, the trust may exist notwithstanding the party to be charged as trustee may never have agreed to the trust and may have really intended to resist it. However, since a resulting trust is designed to carry the presumptive intention of the parties into effect, not to defeat it, it must be consistent with the intention of the parties at the time of the acquisition of the property and will not be presumed or implied unless taking all the circumstances together it is the fair and reasonable interpretation of their acts and transactions. . .” (§ 141.)
Practically all of our decisions dealing with resulting trusts pertain to real estate but that fact in no sense precludes reliance on or detracts from their force and effect as precedents in disposing of a situation where personalty is involved. We direct attention to Allbert v. Allbert, 148 Kan. 527, 531, 83 P. 2d 795, which quotes with approval the definition to be found in 65 C. J. 222, supra, also to Brown v. Brown, 62 Kan. 666, 64 Pac. 599, involving, except for the fact the corpus was real estate, a somewhat similar situation, where it was held:
“Where a son purchases a farm with funds furnished to him by his mother for that purpose, and takes title in his own name, without any agreement or understanding as to how the title shall be taken, or as to any interest of the mother in the land, and when the mother, with full knowledge of the facts, speaks of and treats the farm for many years as belonging to her son, and makes no complaint to him or to others regarding the title, but acquiesces in that which has been done, it will be presumed, after the death of the son, that the deed conformed to the intention of the parties, and a resulting trust in favor of the mother will not be inferred.” (Syl. U 5.)
In the instant case Miller Was called as a witness and an attempt was made to establish that money deposited by him with appellant to the credit of Chambers was placed there under the trust agreement for the trust purposes only and that no part of it was given to Chambers personally. Contradicting this evidence was a written instrument signed by Miller himself under date of September 25, 1930, which it should be noted was executed approximately a month subsequent to the date of the execution of the original instrument and expressly , stated that in consideration of Chambers having placed $53,283.01 of “said Chambers own money” in the trust, he’ agreed to deposit with “said trust company” for inclusion in the trust an additional sum of $60,000. As to this last amount and other money given to Chambers in the past, some of which it must be conceded found its way into the original deposit made by the latter totaling some $90,000, this witness admitted the entire sum was turned directly to Chambers or deposited with appellant to his credit as a gift or gratuity. But this was not all. The evidence of Miller and other witnesses revealed beyond question that it was not until this litigation was commenced that Miller ever made any contention the money given by him to Chambers had any strings attached to it, nor does it appear, that either Chambers or the appellant had any such idea up to that time. Moreover, it is apparent from all the testimony that from August, 1930, until February, 1940, at the earliest all parties concerned, including Miller, regarded and treated the money placed in the purported trust as coming from Chambers’ own funds and subject to his use and control irrespective of the source from which it sprang. The terms of the original instrument itself, with which Miller was absolutely familiar, evidence that situation if in fact they cannot be regarded as conclusively establishing it. Under all the circumstances we do not think there was any room for the application of the doctrine of resulting trusts or the trial court committed error in failing to find one existed.
The next two propositions advanced by appellant lose most of their forcefulness by our conclusion the trust was void but we have given them consideration. It is strenuously urged the trial court erred in holding the corpus of the trust estate subject to garnishment, and in overruling the appellant’s demurrer to appellee’s evidence. With respect to the first contention it can be said the void and ineffective trust left the corpus of the estate in the hands of appellant as the property of Chambers. Whether his interest was legal or equitable need not here be determined, for under our statutes any interest a person may have in property, legal or equitable, is subject to garnishment (Koelliker v. Denkinger, 148 Kan. 503, 83 P. 2d 703). As for the contention the trial court erred in overruling the demurrer, appellant’s argument is predicated upon the theory it was sued as garnishee in its corporate name, that the evidence disclosed it received the corpus of the estate in its fiduciary, not its corporate, capacity and that, therefore, since it had not been sued as trustee no property belonging to the trust could be subject to garnishment in this proceeding. We are not impressed with the force of such argument. During the trial appellant admitted the Wheeler Kelly Hagny Trust Company was a Kansas corporation authorized to do trust business and with trust powers given by the laws of Kansas. Moreover, it should be noted the original agreement was with the appellant in its corporate name, while the supplemental was directed to it in that capacity. Under such conditions appellant is in no position to deny liability as garnishee and the trial court’s ruling was proper. Aside from the reasons just stated another and additional ground for this conclusion exists. The attempted trust being void,' no title vested in the trustee (65 C. J. 526, § 271), the property remained a part of the grantor’s estate and was held by appellant for him as a corporate entity authorized under the law of this state to receive and accept money under the circumstances heretofore related.
Appellant next points to a former judgment rendered in a divorce proceeding between Chambers and his wife, wherein the latter was given a certain interest in the income from the trust estate and insists that under its terms Mrs. Chambers acquired such interest in the corpus as to preclude the judgment rendered here and require that she be made a party before there can be any determination of any rights in the property held by it. We are not disposed to go into the validity of the divorce judgment or determine its effect, if any, upon the interest of the parties in the estate. That judgment was directed toward income only and did not purport to affect the principal. It is certain that provisions of the original instrument itself show Mrs. Chambers had no vested rights which would preclude the application of the corpus of the estate to pay the instant judgment. Certain also it is that thé amount of such corpus far exceeds any amount necessary to pay it. It follows there was no error in the trial court’s ruling that Mrs. Chambers was not a necessary party.
Other objections urged by appellant have been considered but they either do not require answer or have been disposed of by conclusions heretofore announced.
The judgment is affirmed. | [
-12,
-8,
-4,
31,
10,
96,
34,
-102,
97,
-91,
39,
87,
105,
-118,
20,
105,
-14,
57,
-47,
106,
-59,
-77,
23,
73,
-46,
-69,
-37,
-43,
-80,
93,
-28,
-42,
12,
48,
74,
-43,
-26,
-94,
-63,
92,
-50,
7,
9,
-19,
-39,
-96,
48,
107,
22,
75,
33,
-36,
-13,
32,
57,
79,
77,
46,
-21,
-67,
-16,
-8,
-86,
7,
127,
23,
49,
36,
-100,
71,
-40,
46,
-128,
52,
1,
-24,
122,
54,
-122,
116,
107,
-101,
9,
102,
98,
-128,
21,
-19,
-104,
-104,
46,
-33,
-115,
-25,
-110,
88,
33,
45,
-106,
-99,
126,
86,
-121,
-4,
-18,
-99,
27,
-20,
3,
-50,
-42,
-125,
-115,
126,
-40,
11,
-17,
-109,
50,
112,
-50,
-96,
92,
71,
122,
-97,
-114,
-4
] |
The opinion of the court was delivered by
Horton, C. J.:
This was an action to recover the possession of a small tract of land in Kansas City, Wyandotte county, brought by George W. Tourtellott et al. against Charles Wilkins et al. The action was commenced October 23, 1879. The case was originally tried before the district court of Wyandotte county, and special findings of fact and of law made, and judgment rendered in favor of the plaintiffs below. This judgment was reversed in this court at its January term, 1883. (28 Kas. 825; 29 id. 513.) The judgment was reversed solely upon the ground that the sheriff’s returns on the orders of attachment were not signed by him. This court said:
“A return to be complete requires the signature of the officer, authenticating the statement of facts made in it. The mere fact that a paper is filed containing a recital of certain acts, which paper is unsigned by anyone, contains no evidence either that the acts so stated were in fact done, or if done, by whom they were done. Process in the nature of an order of attachment must not only be executed in a certain way, but also by a certain officer, and the signature of the officer is essential to show both what was done and by whom it was done. This return in no manner discloses by whom the acts stated in it were in fact done — whether by the sheriff, or the plaintiff's attorney, or an entire stranger to the court or the case. Now without the signature of an officer, is it evidence that anything was in fact done ? Counsel argue that because the statutes of some states explicitly require that the return be signed by the officer, while ours does not, the failure to attach such signature is an immaterial omission. We cannot concur with this argument, because we think the signature is inherently an essential part of the return. . . .
“Nevertheless, the defect is one which is amendable. It is something which does not affect the fact of service, but simply the evidence of it. And generally amendments are permissible when they simply run to perfecting the proof of a service which was in fact made. But still the amendment is one which should be made. As the recoi’d stands, it fails to show service. We may not presume that service was in fact made; the record should show it. The return may be amended, but until amended we cannot presume that the facts were done and by the proper officer."
Subsequently, with the consent of the district court of Wyandotte county and upon due notice, the returns on the orders of attachment were amended with the signature of the officer executing the orders. The action was taken on a change of venue to the district court of Shawnee county, and tried by the court without a jury. That court made lengthy special findings of fact and of law, and rendered judgment in favor of the plaintiffs below — defendants in error. That court also handed down an elaborate written opinion. (4 Kas. L. J. 376-385.) In the opinion delivered in this court in this case at its July term, 1882, Mr. Justice Brewer, speaking for the court, said:
“As to the other defect, the failure to state in so many words that the officer left with the occupant, or if there were no occupant, in a conspicuous place on the real estate, a copy of the order, the case of Sharp v. Baird, 43 Cal. 577, is an authority directly in point, and holding the defect fatal. Notwithstanding this authority and the great ability of the court by which it was pronounced, we are not prepared to yield full assent to it. The return states that the officer took possession of the property. The code, § 226, declares that ‘ From the time of the issuing of the order of attachment, the court shall be deemed to have acquired jurisdiction, and to have control of all subsequent proceedings under the attachment/ Now if the attachment was properly issued, and the officer in fact took possession of the property, we are inclined to think that the failure to leave with the occupant, or on the place, a copy of the order, is a mere irregularity, and not a fatal defect. At any rate, if the officer did in fact so leave the order, the return may be so amended as to state the fact, and thus all question removed as to the regularity of the service.” (28 Kas. 835.)
At the January term of this court for 1883, when this case was again considered, Mr. Justice Brewer further said:
“The argument of counsel has caused us to doubt whether we were well advised in expressing in the opinion, as we did, dissent from the case of Sharp v. Baird, 43 Cal. 577; and therefore we desire to withdraw such expression of dissent. We shall not attempt now definitely to decide the question, inasmuch as counsel for defendants in error failed to make any argument thereon, or present any further authorities. We simply leave the matter open for further consideration, if occasion shall require. As to all other matters in the opinion, we see nothing that demands any correction. We are satisfied with the conclusion reached upon the facts and law, except as above indicated, and think that if upon the new trial the returns on the writs of attachment are such as to vest jurisdiction, and no new facts appear, the judgment should be for the plaintiffs.” (29 Kas. 515.)
In view of the careful consideration that the facts and the law of this case have already received at the hands of this court, and also in view of the carefully prepared opinion of the learned judge of the trial court, we deem it unnecessary to discuss at any great length the volume of testimony taken.
Counsel contend with great force and some plausibility that upon the new trial new facts were developed, and therefore that the facts are changed so as to call for new and different conclusions of law.
We have carefully read the one thousand pages of written record, and find that with the exception, of the amended returns, and some minor but unimportant testimony connected with the alleged bankrupt title, the case is the same now as when first presented. The trial judge in his written opinion said:
“The facts and questions of law presented and insisted upon by the parties are numerous, but the issues of fact here presented are not different from the facts as presented in the case when it was before the supreme court, and there is but one question which we now propose to examine here, and we shall regard all other questions of law as settled in this case by the supreme court. A full statement of the questions which we regard settled will be found in the report of the case in 28 Kas. supra. And as the facts are the same now, and the law has been applied to them, these questions are settled as the law of this case.
“The question unsettled in this case arises on the returns of the sheriff indorsed on the two orders of attachment, and through which the plaintiff claims title to the premises in question. Since this action was tried in the district court of Wyandotte county and heard in the supreme court, the sheriff has amended his returns to these orders of attachment by affixing his signature to the same.”
The plaintiffs below, defendants in error, claim title, as upon the former hearing, under judicial sales had upon attachment proceedings against Joseph E. Snyder. The defendants below, plaintiffs in error, claim title, as upon the former hearing, under a deed from the bankrupt court in which Joseph E. Snyder had filed his voluntary petition in bankruptcy. The deed from the assignee in bankruptcy was dated October 20,1871, and recorded October 27 of that year. The attachment proceedings against Snyder were commenced May 16, 1874. The deed of Joseph E. Snyder for the land in dispute was not executed until April, 1869, more than a year after he filed his voluntary petition in bankruptcy. The law of the case as to the bankrupt title is clearly stated in ~ . . . T_ _ _ _ _ the report or this case, m 28 Kas. 825, and we are inclined to follow the law as there applied.
It is urged that the opinion heretofore delivered in relation to the bankruptcy proceedings and the title thereunder, was extra-judicial. When the case was here in 1882, the only defect apparent in the title of plaintiffs was the omission of the signature of the officer on the returns of the orders of attachment. We held that the Returns might be amended, but reversed the case. In order to direct the court below as to the law of the case, if the returns were amended as suggested, it became the duty of this court to discuss and apply the law upon the facts then presented concerning the bankruptcy proceedings and the title claimed thereby.
As the bankrupt title was prior in time to the title claimed under the attachment proceedings, it was necessary for this court to examine that title, because if that title were valid, then there was no necessity of entering upon any consideration of the title under the attachment proceedings, so the bankruptcy proceedings were in the record and the discussion of the title derived thereby was not wholly dictum or extrajudicial.
Again, it is urged that this court should follow the decision of Mr. Justice Miller in the suit of McAlpine v. Tourtellott, decided in the United States circuit court on June 8, 1885. (1 Kas. L. J. 330.) The opinion was delivered upon the dismissal of a bill in chancery to quiet the title to this and other land. The opinion is somewhat conflicting with the views expressed concerning the bankrupt title in 28 Kas., but the bill in that case did not disclose all the facts testified to and found by the trial court in this case, and we believe when this case is fully examined and considered by the United States supreme court, the views expressed in 28 Kas. will not be dissented from by the able and distinguished justice who decided the case in the United States circuit court. This court, however, is not bound to follow the opinion of a judge of the United States circuit court, even if that judge be a member of the supreme court of the United States. The United States circuit court is a court of inferior, not of superior jurisdiction to this court. Upon the findings of the trial court concerning the bankrupt title, notwithstanding the opinion of Mr. Justice Miller, we perceive no good reason to change or modify the views previously expressed by this court of that title. Among others, the following are the conclusions of the trial court that relate more specifically to the title under the bankrupt proceedings:
“3. That on December 2, 1867, when the said Snyder filed his petition in bankruptcy in the district court of the United States for the district of Missouri, the said Snyder was not the owner of the legal or equitable title, or any estate in the premises described in the plaintiffs’ petition.
“4. That on April 13, 1869, after the said Snyder had been adjudged a bankrupt in the court of competent jurisdiction aforesaid, Snyder acquired the legal and equitable title to the premises described in the plaintiffs’ petition from the said David E. James, by virtue of the deed of conveyance described in conclusion of fact No. 8, and that the said premises were no part of the estate of the said Snyder at the time he was adjudged a bankrupt, and that therefore the district court of the United States for the district of Missouri, sitting as a court of bankruptcy, had no jurisdiction to sell or dispose of the said premises to Byron Judd, and the sale of said premises described in the deed of conveyance, made by the assiguee in bankruptcy to Judd, conveyed no title, legal or equitable, to said Judd or to those holding under him.”
It is claimed by counsel for defendants below, that as thpy claim under a sale in bankrupt proceedings, and as they purchased, as they allege, bankrupt assets, that the decision of this court upon that title can be reviewed by the supreme court of the United States. In order to facilitate this result, we make the express ruling that upon the facts contained in the record and the findings of the trial court, the defendants below have no valid claim or title, legal, equitable or otherwise, from the assignee in bankruptcy of Joseph E. Snyder. If a federal question is involved it will be ultimately decided by the supreme court of the United States, and if we have committed any error it can easily be corrected. This brings us to a consideration of the attachment proceedings. We may premise before discussing these, that we are not called upon and cannot reverse or modify the attachment proceedings in the cases of Seegar v. Snyder, and Welland v. Snyder. These cases have never been brought to this court for review or reversal. The district court of Wyandotte county permitted the returns on the orders of attachment to be amended, and the signature of the officer has been affixed thereto. We must therefore take these returns for what they are worth. They stand before this court exactly in the same condition as if the officer had signed the returns on the orders of attachment when he first filed them with the district clerk. The reasons that the district court of Wyandotte county gave for not allowing further amendments are wholly unimportant at this time, and the attachment actions stand or fall upon the record and the returns as amended. We may also, in this connection, remark that the attachment actions are not attacked directly, but only collaterally, and collateral attacks upon judicial proceedings are not favored. Irregularities alone are not sufficient to destroy the validity of judicial proceedings, nor are mere omissions from the record. (Head v. Daniels, 38 Kas. 1.)
In the case of Seegar v. Snyder, one of the cases upon which the plaintiffs’ title rests, the return of the officer, after the statement of receipt of the order, is as follows:
“On the 16th day of May, 1874, at my county, I attached as the property of the within-named Joseph E. Snyder, as described in the appraisement hereto attached and made part of this return, by declaring on the premises that I attached said property at the suit of the within-named Henry R. Seegar, and by taking the same into my possession, and now hold the same subject to the order of the court; and with F. W. Drought and S. Bolmer, two householders of my county, who were by me on the same day first duly sworn to make a true inventory and appraisement of all the property so attached, I made a true inventory and appraisement of all the property so attached; and which said inventory and appraisement is signed by the said householders and by myself, and is returned with this order; and on the same day I left a true copy of this order.”
The return in the case of Welland v. Snyder is precisely the same as the foregoing, except as to the name of the plain tiff, and that the attachment was subject to the attachment in the case of Seegar v. Snyder.
In Head v. Daniels, supra, it was said by Mr. Justice Valentine, speaking for the court:
“In conclusion, we would say that collateral attacks upon judicial proceedings are never favored; and when such attacks are made, unless it is clearly and conclusively made to appear that the court had no jurisdiction, or that it transcended its jurisdiction, the proceedings will not be held to be void, but will be held to be valid. Irregularitieg aioae are not sufficient to destroy the validity of judicial proceedings; nor are mere omissions from the record. On the contrary, it will generally be presumed, in the absence of anything to the contrary, that all that was necessary to be done with respect to any particular matter, by either the court or its officers, was not only done, but rightly done.”
In that case, the officer did not state in his return on the order of attachment that there was no occupant of the premises, and it was claimed under §§ 198-205 of the civil code, that thereby the proceedings were void.
Upon the presumption that an officer does his duty, and in the absence of anything to the contrary, that he did his duty in serving the order of attachment in that case, it was held, that although the officer in his return omitted to state that there was no occupant upon the premises attached, the proceedings were valid.
In Dunlap v. McFarland, 25 Kas. 488, it was said, among other things, that —
“ It is also claimed that the sheriff did not leave with the occupant of the premises, or, if there was no occupant, then in some conspicuous place on the premises, a copy of the order of attachment. Now it is not shown that the sheriff failed in this particular; nor does it appear that the matter was called to the attention of the court below. The motion to set aside the service did not specifically point out this objection. Under such circumstances, it will be presumed that the sheriff did his duty. But even if he did not, still no harm was done, nor any loss suffered on account thereof, for the defendant seems to have known that his property was attached, and must have known from the return of the sheriff precisely what property was attached.”
Notwithstanding the case of Sharp v. Baird, 43 Cal. 577, referred to in the 28th Kas. and also in the 29th Kas., the later decisions of the supreme court of California tend strongly to uphold the validity of the attachment proceedings.
In Porter v. Pico, 55 Cal. 165, it was held that—
“A return upon an attachment [or other mesne process] that the officer duly levied the same, is defective in not stating the acts done by the officer in making the service; but such a return is prima facie sufficient to show a due execution, though the presumption may be controverted.”
In Anderson v. Goff, 72 Cal. 65, it was decided:
“The regularity of the levy of an attachment is sufficiently shown, as against a collateral attack, by the return of the attaching officer reciting that he had duly levied the same upon all the right, title and interest of the defendant in and to certain described real estate.”
And in Davis v. Baker, 72 Cal. 494, the syllabus reads as follows:
‘“Under section 542 of the code of civil procedure, the levy of a writ of attachment upon real property may be made by posting the attachment papers in a conspicuous place on the land, if the sheriff, at the time of visiting the land for the purpose of making the levy, cannot find any one visibly oc'cupying the property.
“The return of the sheriff to the writ of attachment in question recited that the sheriff, on a specified day, duly levied the same upon the land thereinafter described, by posting a copy of the writ, attached to a notice, notifying the defendant that said property was attached, on the premises.’ On the trial, the sheriff testified that the papers were posted on a building which was on the land. Held, That the return was prima facie sufficient to support the levy, although it did not state that the papers were posted in a conspicuous place on the land.”
The facts in that case were substantially as follows: The California statute requires the'sheriff in attachments to leave a copy of the writ, description of the land attached, and notice, with an occupant of the property, if there be one; if not, then by posting in a conspicuous place on the property attached. One-half of a town lot 33 feet front by 132 feet deep was attached. One Ashbrook had at the time of the levy an office on the lot in a small building 12 by 15 feet. The sheriff testified that when he went to the property there was a table and a chair or two, and a light burning in the office, but he found no one in the house; that he waited awhile, but no one came in, and then he posted the papers on the house. The trial court on the collateral attack held the levy bad, and that no title passed under the attachment.
The upper court reversed the decision, and in the opinion said:
“The officer is required to execute the writ without delay. Promptness is generally essential to the beneficial use of the writ at all. The sheriff would be held responsible for any lack of diligence by which loss would accrue. It is not always easy to find out who is in possession of property. In view of the promptness required it must have been intended that the occupant should be easily discoverable, in fact, some one visibly occupying the property, so that when the officer visits the property for the purpose of completing the levy he can determine then by what he can see whether he shall serve the copies by leaving with an occupant, or by posting. If the word ‘ occupant’ means simply one in the actual possession of land, there would be a large amount of such property not declared to be exempt, and yet which could not be levied upon. One may be in the actual possession, and yet not be in the county or state, and there might be no other occupant. In such case there could be no levy if the position of respondent be correct. One fearing an attachment would have but to lock up his place and go out of the county to be beyond, the reach of the writ so far as his real estate is concerned, of which there was no other occupant. . . . The provision as to an occupant is a direction to the officer as to posting when he goes upon the land to complete his levy: if he find an occupant, he must leave the copies of the papers with such occupant; but if he can find no such occupant, he must post them in a conspicuous place upon the land.”
Without referring to other authorities, it seems to us sufficient to say, that as the orders of attachment were properly issued, and as the returns on the orders of attachment show that the officer attached the property, that he in fact took possession of the same and left a true copy of the orders of attachment, no fatal defects appear in the attachment proceedrr ^ L ings. We must presume, in the absence of anything t0 the contrary, that all that was necessary to be done with respect to the service of the orders of attachment by the officer, was not only done, but rightly done. [Head v. Daniels, supra.)
Within the case of Davis v. Baker, supra, if there was no one visibly occupying the property attached at the time of the service of the orders, copies of the orders might have been left in a conspicuous place thereon. (4 Kas. L. J., supra.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
-80,
108,
-16,
93,
-118,
-32,
51,
-70,
-14,
-95,
-74,
83,
-87,
-118,
17,
121,
98,
47,
112,
120,
70,
-77,
7,
-53,
22,
-77,
-39,
85,
53,
77,
-28,
-64,
76,
48,
-54,
-11,
70,
-24,
-123,
92,
-50,
5,
9,
69,
81,
0,
52,
33,
16,
11,
-47,
-66,
-5,
42,
16,
-61,
-19,
44,
111,
-71,
-47,
-112,
-97,
87,
127,
22,
3,
6,
-112,
7,
88,
42,
-112,
57,
1,
104,
115,
54,
-122,
-12,
105,
25,
40,
102,
98,
49,
61,
-23,
-72,
-100,
47,
-2,
23,
-89,
-112,
25,
43,
45,
-74,
-99,
45,
84,
7,
-12,
-30,
5,
25,
110,
14,
-113,
-108,
-123,
61,
112,
-102,
75,
-17,
-93,
-112,
113,
-59,
-30,
93,
71,
49,
-101,
-114,
-104
] |
The opinion of the court was delivered by
Horton, C. J.:
Oliver Leisure was elected county clerk of Seward county on the 6th day of November, 1886, and subsequently duly qualified as such officer. The charge in the action pending against him for removal from office is that as county clerk he signed a'county warrant of $5,100 for G. S. Stein, and that he did so unlawfully and corruptly, without any account being filed or verified as prescribed by law. The petition alleges, however, that a majority of the board of county commissioners of Seward county, viz., T. A. Scates, chairman, and W. W. Kimball, allowed the claim of $5,100 to G. S. Stein, and therefore the county clerk simply obeyed the direction of the board in issuing the order. It appears from the evidence that G. S. Stein made a proposition to the board of county commissioners to furnish money to aid in funding the floating indebtedness of Seward county, and for his services and the furnishing of certain funds he was to receive fifteen per cent. This proposition was accepted by the board of county commissioners, and upon the alleged contract, Scates, the chairman of the board, directed the county clerk to issue the order of $5,100. The signing of this order by Leisure is complained of.
Section 44, chapter 25, Comp. Laws 1885, page 270, provides :
“ It shall be the general duty of the county clerk: First, to record in a book to be provided for that purpose, all proceedings of the board. Second, to make regular entries of their resolutions .and decisions in all questions concerning the raising of money. Third, to record the vote of each commissioner on any question submitted to the board, if required by any member. Fourth, sign all orders issued by the board for the payment of money. Fifth, to preserve and file all accounts acted upon by the board, with their action thereon; and he shall perform such special duties as are required of him by law.”
In The State v. Allen, 5 Kas. 213, it was decided that—
“It is the duty of the county clerk to attend the sessions of the board of county commissioners, keep a record of their proceedings, sign the record, and attest the same with the county seal. He is merely a clerk in such cases for the board; having no supervisory control over, and not responsible for their action, it is not for him to determine whether they act wisely or unwisely, prudently or imprudently, legally or illegally, at least so long as they keep within the scope of their authority.”
There is not any testimony that Leisure received any part of the $5,100 allowed, or that he was in any way benefited thereby.
We do not think upon the testimony that the action against him can be sustained, and therefore judgment will be rendered in his favor with costs.
All the Justices concurring. | [
52,
108,
-40,
94,
-86,
-32,
58,
58,
72,
-87,
-89,
115,
-21,
96,
20,
35,
-5,
-83,
-44,
107,
-57,
-14,
87,
66,
54,
-13,
-15,
-107,
-75,
-51,
-4,
-59,
73,
-80,
10,
20,
86,
34,
79,
-112,
-122,
2,
-88,
-31,
89,
96,
48,
40,
114,
-37,
113,
94,
-13,
56,
6,
67,
44,
44,
89,
-87,
-48,
-15,
-69,
-115,
121,
11,
-126,
38,
-100,
71,
-56,
46,
-104,
49,
-62,
-8,
59,
-90,
-106,
92,
15,
-71,
40,
118,
66,
49,
-75,
-27,
-96,
-55,
-114,
-74,
29,
103,
-65,
121,
43,
40,
-108,
-99,
80,
18,
35,
117,
-30,
-107,
31,
110,
3,
-98,
-44,
-125,
-50,
-65,
-116,
54,
-25,
-87,
20,
113,
-114,
-28,
126,
-57,
56,
31,
-114,
96
] |
Per Ouriam:
Upon the authority of The State, ex rel., v. Malo, just decided, the application for the peremptory writ of mandamus will be denied, and judgment rendered in favor of the defendant for costs. | [
-76,
105,
-12,
-68,
26,
96,
18,
27,
65,
-95,
117,
-45,
-17,
-30,
16,
119,
-73,
109,
116,
123,
-51,
-94,
23,
-63,
114,
-45,
-48,
85,
56,
-17,
-18,
59,
76,
-16,
-94,
-107,
102,
-125,
-127,
-48,
14,
-91,
-119,
-59,
-31,
27,
48,
-31,
18,
7,
49,
15,
-29,
12,
25,
65,
-24,
44,
-40,
-91,
-56,
-40,
-98,
13,
93,
4,
-126,
-77,
-102,
-57,
88,
62,
0,
25,
5,
-24,
115,
-74,
-121,
116,
107,
123,
-96,
-94,
98,
-126,
117,
-17,
-40,
-22,
15,
94,
31,
-121,
90,
24,
107,
97,
-105,
-8,
108,
53,
-113,
-10,
-17,
-107,
111,
108,
2,
79,
-44,
-73,
-113,
124,
-84,
65,
-17,
62,
112,
84,
-115,
48,
92,
66,
55,
23,
31,
-66
] |
Opinion by
Simpson, C.:
This is a controversy submitted to the district court of Eranklin county under § 525 of the code. The agreed case, containing the facts upon which the controversy depends, is as follows:
“1. On August 29, 1870, Albert W. Shaw and Henry H. Ludington filed in the office of the register of deeds of said county a plat of a certain tract of land in section 25, township 16, of range 19, which plat was entitled ‘Shaw & Ludington’s Main street addition to the city of Ottawa, Kansas/ said plat being duly acknowledged and certified as required by law, and designating thereon all the streets, alleys, lots and blocks in said addition. A copy of said plat is hereto attached, marked ‘A/ and made a part of this agreed statement.
“2. The said addition contained, among other streets, a street designated on said plat as ‘ Massasoit street/ extending cast and west across said addition; which street was of the width of sixty feet from Main street on the east of the right-of-way of the L. L. & G. Railway Company, as shown by exhibits A-l and A — 2.
“3. In 1871 the said addition was duly accepted as a part of said city, as a part thereof; and the territory embraced in said plat has ever since remained within the incorporate limits, said city being ever since the year 1867 a city of the second class.
“4. That the 8th day of April, 1878, George W. Hamblin, (having been the owner of said addition from March 27, 1877,) then being the owner, petitioned the board of county commissioners of said county of Pranklin to vacate all streets and alleys in said addition.
“5. On the 8th day of April, 1878, the board of county commissioners granted the petition in part, to wit, ‘ vacating all streets and alleys in said addition north of the north line of Powhattan street, and west of the west line of Main street.’ A copy of the order of vacation by said board is hereto attached, marked ‘B,’ and is made a part hereof.
“6. On the 14th day of May, 1884, a copy of the said proceedings of said board of county commissioners was filed and recorded in the plat-book of the towns and cities, in the office of the register of deeds of the said county, and said streets in said addition marked ‘vacated’, on said recorded plat.
“7. On December 15, 1879, the said George W. Hamblin and his wife sold and conveyed to Willis Johnson the following-described portion of said addition, to wit, the north half of the following-described piece of laud: Commencing at the southeast corner of lot number 35, block 3, of Shaw & Ludington’s Main street addition to Ottawa, (streets and alleys vacated,) and running thence north one hundred feet, thence west to west line of said addition, thence southeasterly to southwest corner of lot 35, block 4, thence east to place of beginning.
“8. On January 14, 1880, Willis- Johnson and wife sold and conveyed by same description, the above-described premises to S. E. Rohrbough.
“9. The above-described premises included a strip fifty feet in width from Main street on the east, and extended west across said addition to the right-of-way of the L. L. & G. Railroad Company, and lies within the boundary-lines of Massasoit street, named in exhibit ‘A.’
“10. In the summer of 1877 the whole of said addition lying north of Powhattan street, and then being owned by said Geo. W. Hamblin, was inclosed and cultivated as a field ; on the east side trees were planted; on the west side of Main street across all streets north of said Powhattan street and east of King street, Massasoit street to Main, has ever since remained unopened and obstructed by improvements; while that portion of Massasoit street west of King street has for several years past remained uninclosed or obstructed until as stated, as follows:
“11. That by an ordinance of said city dated September, 1885, a sidewalk was required to be constructed on the west side of King street, and the defendant on or about the first day of November, 1885, constructed a sidewalk in front of the premises claimed by him, situated on the west side of King street, and also.on the west side of such sidewalk built a firm and substantial post-and-board fence, thereby obstructing Massasoit street, if any street there be running from King street to said railroad right-of-way, to the damage of said city (if illegal) in the sum of one dollar.
“12. From and ever since the assessment and collection of taxes in the year 1880, the premises have been subject to taxation, described as follows: Commencing five feet north of the northeast corner of lot 37, in block 3, north fifty feet, west to railroad right-of-way, south to a point five feet north of the northwest corner of lot 37, in block 4, thence east to the beginning; and so remains upon the tax duplicate, which said description includes that portion of Massasoit street claimed to be obstructed.
“13. From the year 1881, all the streets except Massasoit street in said addition have been opened and unobstructed, and sidewalks and improvements of said unobstructed streets been made and ordered from time to time by the corporate authorities of the city of Ottawa.”
The trial court rendered a judgment in favor of the defendant, and the city brings the case here for review. It appears that in 1867 the city of Ottawa become a city of the second class; that in August, 1870, Shaw & Ludington platted an addition thereto, and in 1871 this addition became a part of the city. George W. Hamblin, having become the owner of said addition, did, on the 8th day of April, 1878, petition the board of county commissioners of Franklin county to vacate all streets and alleys in said addition; this petition was granted in part, by vacating all streets and alleys in said addition north of the north line of Powhattau street and west of the west line of Main street. This order of vacation was filed and recorded in the plat-books of towns and cities in the office of the register of deeds of said county, and this part of the addition marked “Vacated” on the 14th day of May, 1884. On the 15th day of December, 1879, Hamblin and wife conveyed the premises in controversy to Willis Johnson, and on the 14th of January, 1880, Johnson and wife conveyed them to the defendant in error. They include fifty feet in width of Massasoit street, and on the west line of the premises on that street the defendant in error built a substantial post-and-board fence, thereby obstructing the street. In September, 1885, a sidewalk was required by the city to be constructed on the west side of King street, and the defendant in error constructed a walk in front of the premises claimed by him. In the summer of 1877 the whole of said addition lying north of Powhattan street was inclosed and cultivated as a field, and trees planted along the west side of Main street and across all streets north of Powhattan. Since 1880 the land has been assessed for taxation by metes and rounds as in the conveyance to Johnson and Bohrbough.
It is claimed by the city that the board of county commissioners had no power or authority to vacate that part of the addition; and this is the only question in the case. Whether the board had or not, depends upon the construction to be given to chapter 115a, Comp. Laws of 1885, an act providing for the vacation of streets, alleys and other public reservations. The particular act complained of is the obstruction to Massasoit street by the erection of the fence, and our remarks are to be confined to the question of the legality of the vacation of that street. The chapter of the Laws of 1885, now under consideration, repeals in express terms chapter 155, Laws of 1873, and article 3 of chapter 109, Gen. Stat. of 1868. The repealed chapters were an act vacating town-sites, and an act to vacate town-sites and additions thereto. The act of 1868 recited that—
“All lands which have been either by individual owners, town companies, or other incorporated bodies, set apart, surveyed, laid out, or platted into towns, cities, or villages, or additions thereto, but upon which in fact no town, city or village shall have been or exists, but are unoccupied for the purposes of a town, city, or village, are hereby declared to be vacated as such,” etc.
Another section provides a mode of procedure by which it can be determined whether or not a town-site comes within the provisions of the section above quoted. That proceeding was by petition by the owners to the board of county commissioners. A notice published for three weeks, stating that on a certain day an inquiry and determination will be made by the board. A descriptive map, filed by the board with the register of deeds, showing the land vacated. The act of 1873 provided by the first section that- — ■
“All lauds which have been subdivided into lots and laid off and platted as town-sites or additions thereto, whether belonging to the original owner or their assigns, and unoccupied for the purposes of a town or addition thereto, the streets and alleys therein may be vacated as provided in section two.” That section reads as follows: “The county commissioners upon being satisfied by the owner or owners, by affidavit or otherwise, that they are the only interested parties therein, shall cause the word ‘Canceled’ to be written upon the margin of such record in the office of the register of deeds.”
These two acts remained in force until the act of 1876, being chapter 115a, Comp. Laws of 1885, was passed, it being in our judgment a substitute for the proceedings required by both of these acts. We gather this not only by reason of the express repeal of the former statutes, but by the object, reason and letter of the statute we are considering. The word town-site, used in this act, is explained by reference to the repealed statutes. It means a'tract of land subdivided into lots and blocks by streets and alleys, that has never been improved by occupancy or buildings, or has been so partially improved, but not to the extent as would authorize the organization of a city, town, or village. There being no corporate authorities, the power to vacate the streets, alleys and public reservations is vested in the board of county commissioners. In an organized city, town, or village, the power to vacate streets and alleys has been invariably vested in the city and town authorities, usually, if not uniformly, in the council. This has been a universal rule with the legislature of this state, at least ever since the passage of the act to incorporate cities of the state of Kansas, passed in 1862, (ch. 46, Comp. Laws of 1862.) It will be noticed that chapter 115a does not treat of streets and alleys"in cities of either class. At the time it took effect (1876), all municipal corporations of this state were cities of the first, second or third class, the latter class embracing what before had been denominated as towns and villages. The first act providing for cities of the third class was passed in 1869. The act does not therefore in express terms, or by necessary implication, embrace cities of either class. We conclude, therefore, that the laws in force vest in the city council of cities of the second class the power to vacate streets and alleys in said cities, and vest in the board of county commissioners the power to vacate streets and alleys in tracts of land subdivided and platted as town-sites, but which have never been improved by occupancy to an extent that would warrant an organization under any of the statutes as cities, towns, or villages.
This construction obviates all conflict between the city authorities and the board of county commissioners; gives the city that measure of control of its public streets so often declared by this court, without interference by the other tribunal; and conforms to the accepted theory of county and city control. We think that the board of county commissioners did not have the power to vacate Massasoit street, in the city of Ottawa, it being a city of the second- class; that the street is illegally obstructed; and recommend the judgment of the district court be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
-16,
105,
-72,
94,
-22,
-52,
12,
-88,
89,
-79,
-75,
83,
-113,
-38,
9,
57,
-13,
125,
-39,
9,
-59,
-109,
87,
10,
-112,
-13,
-9,
-27,
-80,
77,
-12,
-41,
72,
32,
74,
-67,
-121,
4,
-51,
-36,
-50,
6,
-119,
88,
-41,
64,
36,
45,
2,
78,
117,
58,
-9,
47,
56,
-13,
-55,
46,
-33,
46,
-111,
-14,
-86,
-43,
-20,
30,
1,
4,
-104,
-125,
72,
-118,
-112,
117,
60,
104,
87,
-90,
-122,
118,
5,
-119,
12,
34,
98,
1,
-111,
-89,
-80,
-36,
14,
-8,
-115,
-27,
-91,
1,
99,
8,
-66,
-39,
117,
82,
7,
-6,
-17,
5,
25,
104,
-124,
-18,
-74,
-79,
79,
-68,
-128,
21,
-5,
-105,
48,
97,
73,
102,
95,
124,
56,
58,
30,
-15
] |
Opinion by
Simpson, C.:
On the 1st day of June, 1886, Allen Woodcock went to the union depot, at Kansas City, Mo., for the purpose of taking a train to Wilder, Johnson county, Kansas, a station on the Atchison, Topeka & Santa Eé Railroad seventeen miles west of Kansas City, Mo. He purchased a ticket at the union depot ticket office near 10 o’clock A. M. of said day, entitling him to ride on a passenger train of the A. T. & S. F. Rid. Co. from Kansas City, Mo., to Wilder. The ticket was not restricted or limited upon its face to any particular train. It seems that two trains of the A. T. & S. F. Rid. Co. departed from the union depot every morning, both of which ran through the town of Wilder — one train called the “local” and the other a “through train.” The “local” usually departed at 9:30 A.M., and the other train left at 10:40 A. M., according to schedule time. At the time Woodcock purchased his ticket he asked the ticket agent, “How soon can I go to Wilder?” and the agent replied, “You can go right away; the train is ready.” Woodcock immediately started out of the depot building to get upon the train, and as he passed out of the door facing the platform where the trains stood he met a man dressed in a gray uniform, with gilt buttons on his coat and a badge on his cap, of whom he asked, “Which is the Santa Fé train?” and he replied by pointing to the train that Woodcock got upon. Mr. W. proceeded directly to that train, and got on the side of the train next to the depot. He walked up the steps of the front end of the rear coach with his heavy grip in his hand and took a seat, and remained there for fifteen or twenty minutes before the train started. At the time he got upon the train there were none of the servants of the railroad company to be seen of whom he could make inquiry. Just before the train reached Wilder the conductor took up his ticket, and informed him that he was on the wrong train, and that this train did not stop at Wilder. Woodcock insisted that he was ignorant of any other train, earlier or later; that he had been misled by the ticket agent and the union depot usher; and he demanded that the train be stopped at Wilder, and he be given an opportunity to get off; but the conductor refused so to do, and demanded that he pay fare from Wilder to Lawrence, that being the first station at which the train stopped after leaving Kansas City, Mo. The conductor said if he refused to pay to Lawrence he would have to stop the train and put him off. The train was run some distance west of Wilder and there stopped. Woodcock was put off the train without violence, and walked back to Wilder, a distance of some two or three miles. Woodcock alleges that he was not well at the time, and that the walk back to Wilder in the hot sun aggravated his illness. He attempted to transact his business at Wilder and in that vicinity, but rapidly grew worse, went home, and was laid up for a couple of months. Pie was at this time in the employment of a nurseryman of Wyandotte county, and was receiving a salary of $50 per month and his expenses.
This statement of the case is taken literally from the brief of his attorney, and embraces a fair statement of the facts as given in evidence on the trial. The jury gave him a verdict for $55, and judgment was rendered in his favor for that amount, with costs. The jury returned answers in writing to special interrogatories, and among such answers are the following :
“8. Woodcock did not know, at the time he got upon said train, or at any time before it took its departure from Kansas City, Mo., that by the rules and regulations of the defendant company it was forbidden to stop at Wilder and discharge passengers.”
“20. Woodcock was not guilty of any negligence, or the want of ordinary care, or of any fault upon his part in the premises, which in any manner contributed to his alleged injuries.”
“23. Woodcock entered the train by reason of none of the servants being then at the car to forbid his entering and taking a seat on that ticket.”
“25. The plaintiff, Woodcock, exercised reasonable diligence to ascertain the proper train for him to get upon.”
To the ninth special interrogatory submitted by the railroad company, in these words: “By the use of ordinary diligence could the plaintiff have ascertained that the train which he was about to take passage on did not stop at Wilder?” the jury answered, “Yes.”
There is an irreconcilable conflict between these two special findings, and we are at a loss to determine how a judgment can be rendered while they remain in the record. At least we shall not undertake the task. As neither party made any attempt to have the conflict removed, by sending the jury back, or in any other manner correcting the error, the court of its own motion ought to have had the jury return such intelligent answers to these special interrogatories as would enable a judgment to be pronounced upon them, and made them consistent with each other and with the general verdict.
This court has said, in the case of A. T. & S. F. Rld. Co. v. Gants, 38 Kas. 608, that —
“It is the duty of a person about to take passage on a railroad train to inform himself when, where and how he can go or stop, according to the regulations of the railroad company.”
And again it is held in that same case—
“ Where a person purchases a railroad ticket for a designated station upon a railroad, without making any inquiries, or ascertaining what train stops at the station to which he desires to go; and subsequently takes his seat upon a car of a train which, according to the regulations of the company, does not stop at the station for which he has the ticket; and such person refuses to pay his fare, on demand of the conductor, to the next station at which the train is to stop; and also refuses to leave the train when requested so to do by the conductor, after he has stopped the train at a suitable place for that purpose, such person is a trespasser upon the train.”
In the same volume, page 507, in the case of S. K. Rly. Co. v. Hinsdale, it is held that—
“ It is the duty of a passenger to inform himself of the regulations governing the transit and conduct of the trains, if such rules are reasonable. If a passenger disregards the regulations adopted by a company as to the purchase of tickets, or the running of trains, by failure upon his part to make any inquiries, and such neglect is not induced by the company’s agent having authority in the matter, the company is not liable therefor.”
These cases were carefully considered, and we regard the law arising on the state of facts presented in this record well settled, and against the right of Woodcock to recover in this action. He did not make any inquiry as to the running of the trains. It was his duty to inform himself, before he entered the train, as to whether it stopped at Wilder. Failing to make any such inquiry, either of the ticket agent or of the employés upon the platform, he did not exercise ordinary diligence, and the result was due to his own negligence and carelessness. We make this statement of the law that must govern a new trial of this case, if one is ever had. One of these special findings is inconsistent with the general verdict, and directly conflicts with another special finding upon the same question. When the jury returned their verdict into court, either party could have called the attention of the court to the inconsistency, and objected to their reception. This was not done, but the questions presented on a motion for a new trial, and on a motion by the railroad company for judgment on the findings.
This case falls within the rule announced in Harvester Co. v. Cummings, 26 Kas. 367, and C. I. & K. Rld. Co. v. Townsdin, 38 id. 78. We are unable to enter judgment, because of the inconsistency of the special findings with the verdict and with each other.
It is recommended that the judgment be reversed, and the cause remanded with instructions to grant a new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
52,
96,
-124,
127,
-8,
-27,
44,
26,
67,
-79,
-90,
19,
-51,
-64,
17,
57,
-2,
47,
-108,
43,
-32,
-105,
87,
-90,
18,
83,
115,
-49,
55,
124,
54,
-58,
78,
16,
10,
25,
103,
73,
69,
28,
-114,
36,
-87,
-30,
-110,
-119,
46,
110,
6,
78,
17,
46,
-13,
42,
24,
83,
77,
127,
-1,
-86,
-112,
114,
-45,
-57,
116,
14,
35,
54,
-75,
7,
69,
31,
-112,
21,
114,
-8,
90,
-90,
-112,
-1,
5,
-55,
-64,
102,
99,
37,
-116,
-81,
-92,
45,
126,
16,
-113,
-89,
-90,
72,
103,
37,
-66,
93,
19,
-106,
11,
-8,
-31,
0,
16,
48,
-126,
-86,
-76,
3,
-35,
36,
-114,
31,
-21,
117,
35,
96,
77,
-94,
94,
68,
-80,
27,
-97,
-68
] |
The opinion of the court was delivered by
Valentine, J.:
The Frick Company, a corporation, holding a mortgage upon all the real estate of Knut Ketels, including his homestead occupied by himself and wife and family, and the company prosecuting an action in the district court of Douglas county to foreclose such mortgage as against all such real estate, attempted, without the consent and against the will of the mortgagors, Ketels and wife, to release the mortgage of record as to that portion of the real estate not included in the homestead, and moved the court to dismiss its foreclosure action as to that portion of the real estate, so that it might proceed in its foreclosure action as against only the homestead, which motion the court overruled and required the Frick Company to proceed in its foreclosure action as against all the mortgaged property, and rendered a judgment requiring that the Frick Company in satisfying its foreclosure judgment should first exhaust all the mortgaged property not included in the homestead before resorting to the homestead, although such a procedure might leave Ketels7 other creditors who were asking for a marshaling of the securities, without any security for their debts. This attempted release and dismissal above mentioned were originated for the purpose that Frick & Company, another corporation, different from the Frick Company, might enforce a judgment lien which it had against the land which the Frick Company desired to release. This judgment lien extended only to the property not included in the homestead, and was also inferior and' subsequent to the mortgage lien. We do not think that the court below committed any error in its aforesaid rulings. (Butler v. Stainback, 87 N. C. 216, 220; Wilson v. Patton, 87 id. 318, 324; Dickson v. Chorn, 6 Iowa, 19; Foley v. Cooper, 43 id. 376; Bartholomew v. Hook, 23 Cal. 277; McLaughlin v. Hart, 46 id. 638; Brown v. Cozard, 68 Ill. 178; McArthur v. Martin, 23 Minn. 74; Ray v. Adams, 45 Ala. 168; Marr v. Lewis, 31 Ark. 203; Colby v. Crocker, 17 Kas. 527; La Rue v. Gilbert, 18 id. 220.)
Mr. Freeman, in his work on Executions, uses the following language:
“ The more reasonable view is, that the equity of the homestead claimants to retain their home is at least equal to that of their creditors to have it sold, and therefore that chancery will not aid the latter by compelling the judgment creditor to first resort to the homestead. Perhaps a more difficult question is, may one who has a lien on homestead and other property be compelled by the homestead claimants to first resort to the latter? On- the one side, it is insisted that the right to compel a marshaling of assets never existed in favor of judgment debtors, but only in behalf of persons claiming under them, and that the creation of the lien by the homestead claimants was, in effect, an agreement on their part that the lien-holder might at his discretion sell any of the property which was subject to such lien, and that such agreement precludes such claimants from exercising any control over such discretion. But homestead laws should be liberally construed, and no intention should be presumed, nor should any interpretation be indulged which is at variance with the natural and obvious purpose of the parties. The claimants, in the absence of any expression of a contrary intent, should be presumed to intend no further peril to their homestead than necessity demands, while he who received a mortgage from them should be regarded as obtaining a mere security for his debt, and not the right to employ that security in such a mode as to needlessly imperil the homestead. Hence a mort gage on a homestead and other property may fairly be interpreted as a waiver of the homestead right only so far as may be necessary to secure the debt; or, in other words, as a stipulation that the homestead may be sold, if the other property proves inadequate to satisfy the mortgagee’s demand. Under this interpretation, the homestead claimants are entitled to compel the sale of the other property in preference to the homestead, and need not submit to the sale of the homestead until the other securities have been exhausted, without fully discharging the debt.” (2 Freeman on Executions, §440.)
It is also said in the case of Wilson v. Patton, supra, among other things as follows:
“Lest it may be supposed we have overlooked the point raised in the argument before us with regard to marshaling the fund, we take occasion to say, that in our opinion that rule of equity has no application to a case where the homestead is involved. It is a ‘consecrated right’ granted by the constitution, and is an equity superior to all other equities.”
See also the reasoning in the case of Colby v. Crocker, 17 Kas. 530, et seq. If anything is said or decided in the case of Chapman v. Lester, 12 Kas. 592, contrary to the views herein expressed, the same is hereby overruled. But this decision is not in conflict with that, as the following language, used in the opinion of the court in that case, will show, to wit:
“It may also be proper to say that we do not deny that a court of equity may in a decree of foreclosure of a mortgage upon a homestead and other property, direct that the homestead be the last property offered for sale by the sheriff.”
We think no error was committed by the court below. In our opinion where a mortgage upon the homestead and other real estate is being foreclosed, the mortgagor has the right, as against the mortgagee and all other creditors and lien-holders whose rights are not prior or superior to those of the holder of the mortgage, to require that before the homestead shall be resorted to for the purpose of satisfying the mortgage debt, all the other mortgaged property shall first be exhausted.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
-14,
-4,
-39,
-66,
10,
-32,
42,
-40,
90,
-92,
-73,
83,
79,
-117,
4,
109,
-10,
45,
-11,
120,
-43,
-77,
55,
-95,
82,
-77,
-47,
-35,
-79,
76,
116,
71,
76,
49,
-54,
-43,
-26,
-96,
65,
80,
78,
-122,
24,
-59,
-47,
0,
52,
-69,
80,
74,
81,
-115,
-13,
40,
29,
-61,
40,
40,
-53,
61,
-16,
-8,
-85,
15,
95,
23,
-79,
37,
-72,
-29,
-24,
-114,
-104,
49,
2,
-24,
83,
52,
-106,
124,
73,
27,
44,
38,
99,
50,
25,
-17,
-12,
-103,
14,
-41,
-115,
-90,
-107,
88,
67,
32,
-66,
-99,
124,
18,
5,
-2,
-26,
-107,
29,
-20,
15,
-57,
-10,
-109,
-113,
112,
-104,
-125,
-9,
-121,
32,
113,
-113,
-88,
93,
69,
25,
59,
-114,
-12
] |
The opinion of the court was delivered by
Valentine, J.:
This case was decided by this court on March 9, 1889, and the judgment of the court below was affirmed. Afterward a motion was made by the plaintiff in error to set aside the judgment of affirmance, and for a rehearing upon two grounds: First, that the judgment of affirmance was erroneous; and second, that the plaintiff in error did not have a hearing before the supreme court. The first question involves only the following question: When the owner of land through which a railroad company by condemnation proceedings procures a right-of-way, appeals from the award of the commissioners, which gives to him as damages the sum of $1,480, and the appeal bond executed in the case is in the amount of $500 only, must the appeal itself when attacked by a motion to quash, be treated as utterly void for the reason only that the appeal bond is not in double the amount of the award, or may it be treated as sufficiently valid to authorize a trial upon the merits, where no possible harm can result to the appellee by reason of the appeal bond being in a less sum than double the amount of the award ? The counsel for the plaintiff in error, in their original brief filed in this court, stated among other things as follows:
“ The only error to which we desire to call the attention of the court is the ruling of the court below upon the motion to quash the appeal. This error is such as demands a reversal of the judgment. The record is insufficient to present other errors which were committed. We therefore only present to the court that which of itself demands a reversal of the judgment.”
This claim of error was the only one discussed in the original brief. After the decision of the case by this court, and upon the motion for the rehearing, a second brief was filed, which presented and discussed only this one general question along with various incidental questions. A third brief, however, was also filed, which presented the second question above mentioned.
We think the decision of this court heretofore rendered upon the question of the validity of the appeal is correct, and for the reasons given in the opinion of Commissioner Simpson, heretofore filed by this court; . - . . ™rk‘ier question still remains to be considered-: Has the plaintiff in error had a rehearing before this court? The plaintiff in error filed in this court a full and complete transcript of all the proceedings had and record made in the court below; and with this transcript it filed a petition in error setting forth all the rulings of the court below of which it complains. Afterward the case was submitted to this court upon printed briefs and an oral argument as follows: One of such briefs was furnished for each judge of the court and one for each commissioner, and each brief contained eight pages, discussing the single question of the validity and invalidity of the appeal above mentioned. The oral argument, however, was made before the commission only, and not before the court. The order of submission was made by the court, and no order was made by the commission. The commission afterward reported to the members of the court, in full consultation, their views and their conclusions with reference to the case, and the members of the court approved the aforesaid views and conclusions, and ordered an opinion in the case to be prepared. Afterward Commissioner Simpson prepared the opinion, and delivered it to the judges of the court, and the judges read and approved the same; and afterward, while in session as a court, filed the same and rendered a judgment thereon affirming the judgment of the court below, which judgment of affirmance is the one now complained of. Afterward a motion for a rehearing was filed and presented to the court, upon which presentation printed briefs were filed, one for each member of the court, and each containing sixteen pages, devoted entirely to the single question of the validity of the aforesaid appeal and such incidental questions as might be connected with this main or principal question. Counsel also made a full oral argument to the court upon this main or principal question, and the questions incident thereto. The plaintiff in error also at the same time filed another brief, and made an additional oral argument upon the following question or proposition, which is stated in their brief as follows:
“Because the said plaintiff in error has not had a hearing before the supreme court, and because the hearing had before the commissioners was without force or effect; that the act creating the commission is unconstitutional and void, and this plaintiff in error has been deprived of its right to be heard before a duly-constituted and legal court.”
It would seem that the plaintiff in error has had a pretty full hearing before the supreme court. The supreme court has had the full transcript of the record from the court below, the petition in error assigning all the rulings of the court below complained of by the plaintiff in error, the original briefs of counsel for the plaintiff in error upon the merits, their second briefs upon the merits, and their oral argument made before the court upon the merits upon the motion for the rehearing. Now without reference to what was done before the commission or by the commission, it would be the duty of this court, in accordance with the universal practice of the court from its organization to the present time, and ■certainly since the creation and organization of the commission in March, 1887, to the present time, to render just such a judgment as should be rendered in the case upon the merits; More than one hundred cases have been sent to the commission for oral argument in the very same manner that this case was sent to them, and final judgments have been rendered in all such cases by this court before any oral argument was heard by the court. If upon the merits of this case the judgment of the court below ought to be affirmed, then, in accordance with the universal practice in this court, we should affirm our decisions heretofore made, and let the judgment already rendered remain. If, however, the judgment of the •court below ought to be reversed, or in any respect modified, then we should reverse or modify our own judgment so as to require the judgment of the court below to be reversed or modified accordingly. This has been the universal practice in this court from the beginning. This case has taken the ■usual course that other cases have taken since the organization •of the commission. The commission was organized in March, 1887, and from that time up to the present time this court has .assigned various cases to the commission for consideration. The commission, however, has never rendered any judgment nor made any order in any one of such cases, nor in any other ■case. All that they have ever done has been to examine the •cases sent to them, upon the records, the evidence and the briefs furnished to them, and in some cases upon oral arguments, and to make a report to the court recommending what judgment or order should in their opinion be rendered or made in the case by the court, and furnishing to the court an opinion in each case. All cases brought to this court are, when brought, filed in the court, and on the final hearing all cases are submitted to the court, and not to the commission; but the court assigns many of them to the commission for the hearing of the oral arguments, and for their preliminary examination and recommendation. With respect to oral arguments, the practice of the court has been to call the cases on the day on which they are set for hearing, and when it is ascertained which cases are to be argued orally and which not, the court makes the order for their submission to the court, and takes a portion of the briefs in each case and in all cases, but assigns a portion of the cases with a portion of the briefs in each case, for the hearing of the oral argument and for examination,'to the commission; and the court keeps a portion of such cases for the hearing of the oral arguments itself, and keeps briefs in all cases. It is always announced, at the time of the submission of the cases, which cases are to be argued orally before the commission, and which are to be argued orally before the court; and in any case where an expression is made by counsel on either side of a preference to have the case argued orally before the court, the court itself hears the oral argument. No case has ever yet been sent to the commission to be argued orally before them where any preference has been expressed by any person interested in the case that the court itself should hear the oral argument; and'it is certainly not disrespectful to the court for counsel or anyone else interested in a case to express to the court a preference for the court itself to hear the oral argument; indeed, such a thing would seem more like a compliment to the court than otherwise.
In about thirty-seven of the cases which have been assigned to the commission for oral arguments, and decided by this court, motions for rehearings have been made; and on the-hearing of many of such motions, suggestions have been made that the hearing had in each particular case before the com mission .was a nullity, for the reason that the legislature has no power to create a commission, but we have never yet considered such a suggestion or question as a material one in the ease. Of course, if the commission in legal contemplation is a nullity, then it is a great irregularity to send a case to such commission for oral argument; but up to this time the irregularities thus committed, if they are irregularities, have been without prejudice. In every case which has been or may be decided by this court the parties have a right under our rules to present it again upon its entire merits upon a motion for a rehearing, both upon briefs and upon oral arguments. In sending cases to the commission for oral argument, it is not because of any dislike on the part of any member of this court to hear oral arguments. Oral arguments by able counsel who have thoroughly considered their cases, are great helps to the supreme court, and enable the court to understand the cases much more readily than it could possibly do from briefs alone. As to what this court shall do in the future with respect to the commission, the members of the court have not yet agreed. Up to the time of the decision by the supreme court- of Indiana in the case of The State, ex rel., v. Noble, 21 N. E. Rep. 244, this court had but little doubt as to the validity of the law creating the commission. But suppose that such law is void, and that the commission is void, and that the hearing had before the commission is void, still the parties to this case have had a full hearing before the court itself; and it has always been believed that when parties L have had a full hearing before the court that they could not ask for anything more in that respect. It is then immaterial to them whether some other body is valid or invalid, or whether it has any power to act or not.
In the case of The State v. Coulter, 40 Kas. 673, (20 Pac. Rep. 525, 526,) this court used the following language:
“The objection that the opinion was filed by a commissioner is not well taken. The opinion was prepared by a commissioner, under the direction of the court, but was filed by the court, and not by any commissioner. Under these circumstances, the motion for a rehearing will be denied.”
The original opinion in the Coulter Case was prepared by Commissioner Clogston, and will be found reported in 40 Kas. 88; (19 Pac. Rep. 368.) The opinion on the rehearing was prepared by the Chief Justice, and was concurred in by the other Justices. It will be found reported in 40 Kas. and 20 Pac. Rep., as above stated. It is really not necessary that anything further should be said in this case than was said on the rehearing in the Coulter case; for both cases, as to oral arguments and other things, have taken in this court and before the commission precisely the same course, and in this respect the two cases are exactly parallel. The Coulter case, however, was a criminal case, while this is a civil case. Now while it is not necessary in this case to say more than was said in the Coulter case, yet, for reasons not necessary now to mention, we have chosen to do so. Many other cases have been sent by this court to the commission for oral argument; in all of which cases except a few remaining cases final judgments have been rendered by this court before any oral argument has been heard by the court, and in many of such cases motions for rehearings have afterward been presented. The rule on the hearing of such motions is to decide the cases finally on such motions. In some of such cases we reverse our former judgments, in others we modify them, and in still others we affirm them; and then, without any further argument or submission, we direct finally, where a direction is necessary, what the lower court shall do. In the most of such cases we do not file any additional opinion. In others of such cases, however, we do file an additional opinion. Among the cases of this kind in which additional opinions have been filed, are the following: C. B. U. P. Rld. Co. v. Andrews, 37 Kas. 641; same case, 16 Pac. Rep. 338; Ashmore v. McDonnell, 39 Kas. 669; same case, 18 Pac. Rep. 821; Markin v. Priddy, 40 Kas. 684; same case, 20 Pac. Rep. 474; Mawhinney v. Doane, 40 Kas. 681; same case, 20 Pac. Rep. 488; Life Association v. Lemke, 40 Kas. 661; same case, 20 Pac. Rep. 512; The State v. Coulter, 40 Kas. 673; same case, 20 Pac. Rep. 525; English v. Woodman, 40 Kas. 752; same case, 21 Pac. Rep. 283; K. C. Ft. S. & G. Rld. Co. v. Burge, 40 Kas. 736; same case, 21 Pac. Rep. 589. In the case of Durkee v. Gunn, 41 Kas. 496, 21 Pac. Rep. 637, the oral argument was all before the commission, and the court decided the case upon an opinion prepared by one of its members without any additional argument. Afterward a motion for a rehearing was made and argued orally before the court, and the court has just overruled the motion and decided the case finally upon its merits. (41 Kas. 503, 21 Pac. Rep. 1,054.)
There are now just four acts of the legislature having relation to a commission for the supreme court, to wit: Laws of 1887, chapters 47 and 148; Laws of 1889, chapters 49 and 246. No two of the judges have yet agreed with reference to all the questions involved in or concerning the validity or invalidity of these acts; hence at the present time we could not well decide any such questions; but even if we were agreed, would it be proper to decide these questions in this case? Judge Cooley, in his work on Constitutional Limitations, uses the following language:
“ It must be evident to anyone that the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously, and with due regard to duty and official oath, decline the responsibility.” (Cooley, Const. Lim., p. 159.)
“Neither will a court, as a general rule, pass upon a constitutional question, and decide a statute to be invalid, unless a decision upon that very point becomes necessary to the determination of the cause. While courts cannot shun the discussion of constitutional questions when fairly presented, they will not go out of their way to find such topics. They will not seek to draw in such weighty matters collaterally, nor on trivial occasions. It is both more proper and more respectful to a codrdinate department to discuss constitutional questions only when that is the very lis mota. Thus presented and determined, the decision carries a weight with it to which no extra-judicial disquisition is entitled. In any case, therefore, where a constitutional question is raised, though it may be legitimately presented by the record, yet if the record also presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when consequently a decision upon such question will be unavoidable.” (Cooley, Const. Lim., p. 163.)
It makes no difference in this case whether the acts relating to the commission or the commissioners are valid or invalid, for in whatever way any question concerning such acts might be decided, the decision of this case upon its merits must be the same as it would be if a different decision upon any question growing out of the aforesaid acts were made. • The validity or invalidity of the aforesaid acts, or of any portion of any one of them, has no relation whatever to the merits of this this case. What we shall do in the future with reference to the commission we have not yet agreed upon.
The motion for the rehearing will be overruled, and the judgment already rendered by this court will be permitted to stand.
Johnston, J., concurring. | [
-80,
126,
-12,
-98,
42,
-32,
34,
-104,
69,
-95,
-73,
115,
-83,
-62,
20,
123,
-10,
63,
113,
58,
-42,
-77,
22,
-93,
-45,
-109,
-45,
-43,
-79,
-51,
-26,
-34,
76,
32,
-54,
-43,
102,
72,
-59,
86,
-50,
-121,
-120,
-20,
-39,
104,
52,
123,
82,
75,
113,
-98,
-29,
45,
24,
-61,
41,
40,
-5,
57,
-48,
-8,
-86,
-51,
127,
4,
33,
54,
-100,
5,
-8,
46,
-104,
53,
1,
-8,
114,
-90,
-122,
-12,
105,
-69,
12,
98,
102,
1,
77,
-17,
-8,
-104,
62,
-2,
-115,
-90,
-110,
24,
-53,
5,
-106,
-99,
125,
18,
7,
-2,
-18,
93,
89,
108,
3,
-113,
-78,
-75,
-1,
60,
-104,
3,
-53,
-93,
50,
112,
-52,
-24,
92,
102,
50,
-101,
-113,
-74
] |
The opinion of the court was delivered by
Valentine, J.:
This is an action of mandamus, brought originally in this court by the Chicago, Kansas & Western Railroad Company against the board of county commissioners and the county clerk of Chase county, to compel the defendants to issue to the plaintiff certain county bonds; and in such action an application is made, by the plaintiff for a writ of prohibition to restrain and enjoin the county attorney and the district court of Chase couuty while this action is pending in this court, from further proceeding in an action pending in that court, instituted by the county attorney in the name of the state of Kansas, for the purpose of restraining and enjoining the county commissioners and the county clerk of that county from issuing to the railroad company the aforesaid bonds. The principal question presented by this application is, whether the supreme court under the constitution and the statutes of this state has the power to grant the relief sought by the aforesaid application. The constitutional jurisdiction of the supreme court is fixed and defined by §§ 1 and 3 of article 3 of the constitution, which read as follows:
“ Section 1. The judicial power of this state shall be vested in a supreme court, district courts, probate courts, justices of the peace, and such other courts, inferior to the supreme court, as may be provided by law.”
“Sec. 3. The supreme court shall have original jurisdiction in proceedings in quo warranto, mandamus, and habeas corpus; and such appellate jurisdiction as may be provided by law.”
It will be seen from an inspection of these sections that the supreme court of Kansas is “a supreme court,” and that it has “original jurisdiction in proceedings in quo warranto, mandamus, and habeas corpus, and such appellate jurisdiction as may be provided by law; ” and it would therefore seem that whenever such court acts within the rightful and proper range of either its original or appellate jurisdiction as prescribed by the constitution and the statutes, its action would be supreme and conclusive, so far as the state of Kansas is concerned. But can the supreme court exercise jurisdiction not coming within the terms or provisions of the constitution and the statutes? The original jurisdiction given by the constitution to the supreme court is specific and named, while the appellate jurisdiction is such as may be provided by law. Hence, with respect to the original jurisdiction that may be exercised by the supreme court, it would seem that it was the intention of the authors of the constitution that the supreme court should exercise only just such original jurisdiction as is prescribed by the constitution, and not any more nor any less; and that as neither prohibition nor injunction is named or mentioned in the constitution, such matters cannot rightfully come within the original jurisdiction of the supreme court. But this will not prevent the supreme court from exercising jurisdiction with regard to such matters, where they are mere incidents or auxiliaries necessary for the rightful and proper exercise of the jurisdiction actually conferred upon the supreme court by the constitution and statutes. Inherently the supreme court must have the power to protect its own jurisdiction, its own process, its own proceedings, its own orders, and its own judgments; and for this purpose it may, w^en necessary, prohibit or restrain the performance of any act which might interfere with the proper exercise of its rightful jurisdiction in cases pending before it. It can hardly be supposed that the action of the supreme court may be thwarted, impeded or embarrassed by the unwarranted intermeddling of others without any power in the supreme court to prevent it. This power, however, probably has some limitations and exceptions. It may be that the supreme court could not properly prohibit or restrain any person from doing any act which he might rightfully and properly do in the protection or the fostering of his own rights or interests, and rights and interests which could not be affected by any judgment or final order which might eventually be rendered or made in the action pending in the supreme court, although by the doing of such act he might render such judgment or order wholly ineffectual or worthless. And in many cases where two persons are litigating concerning the same thing, as the same office or the same property, a subsequent election might be held or a subsequent act might be performed, or a subsequent judgment might be rendered in some other action, which would give such office or property to still another person claiming the same independently and adversely to the two first-named litigants, and certainly this third person could not properly be prohibited or restrained from asserting any rightful claim or performing any rightful act for the maintenance of his own rights. But it is not necessary in this case to consider the exceptions or limitations to the general rule, for we think the present case falls within the general rule and not within any of the exceptions, and that the acts sought to be prohibited and restrained by the plaintiff in this action may be prohibited and restrained. Of course in all that we have said we have assumed that the supreme court has the rightful, proper, and paramount jurisdiction to hear and determine all questions involved in this case. This, however, is denied by the defendants in this case, upon the following facts: This action was commenced in this court on Friday, April 5, 1889, by filing in this court a proper application for a writ of mandamus, and obtaining an allowance and issuance of such writ, and by having the writ served upon the defendants on Monday, April 8,1889. The action in the district court of Chase county was commenced in that court by filing the proper papers, and obtaining the issuance of a summons on Saturday, April 6, 1889, and having the same served upon the agents of the defendant in that case — the agents of the plaintiff in this case — on Monday, April 8, 1889, before 7 o’clock in the morning, and before such agents had arisen from their beds. Now while the processes in the two cases were served on the same day, yet it seems to be admitted that the process issued from the district court of Chase county was served prior to the process issued from the supreme court. Upon these facts the plaintiff claims that the action in the supreme court was commenced on April 5, 1889, the date of the process served upon the defendants ; while the action commenced in the district court of Chase county was commenced on April 6, 1889, the date of the process served upon the defendants in that case, and therefore that the supreme court necessarily obtained the first and paramount jurisdiction to hear and determine all matters involved in the controversy; while it is claimed on the other hand and by the defendants that jurisdiction could be obtained only by the service of the process, and therefore that as the process from the district court of Chase county was served prior to the process from the supreme court, the district court obtained the first and paramount jurisdiction. We are inclined to think that the plaintiff is correct so far as any question involved in this case is concerned. Although actual jurisdiction of a defendant cannot be obtained without service of summons or original process upon him, nor until the service actually made, yet when the service is actually made the case must then be considered as having been commenced at the date of the process served upon the defendant; (Civil Code, §§ 20, 57, 81; 1 Am. and Eng. Encyc. of Law, 184;) and, by relation, the date of such process will determine the time from which the right of the court to take jurisdiction to hear and determine the case, must be computed. We can therefore decide this question of jurisdiction without reference to the trick resorted to by counsel for the defendants in this case, to obtain service of summons at the untimely hour at which they did obtain service. The authorities cited by defendants’ counsel relating to the seizure of property, can have no application to this case.
An order for the prohibition and restraint asked for by the plaintiff will be granted.
All the Justices concurring. | [
-76,
-26,
-16,
62,
10,
-32,
50,
-112,
99,
-15,
-27,
115,
-87,
-53,
5,
119,
-34,
-83,
55,
123,
-60,
-41,
23,
-63,
18,
-13,
-45,
-51,
-78,
88,
-26,
-58,
12,
-80,
10,
85,
70,
-53,
-63,
-100,
-114,
12,
-56,
-24,
-56,
73,
-76,
107,
82,
74,
113,
15,
-13,
42,
89,
-29,
-23,
60,
91,
-116,
17,
-47,
-114,
-59,
124,
6,
33,
37,
-100,
-89,
104,
62,
-104,
57,
1,
-8,
115,
-90,
-122,
-10,
15,
-101,
40,
38,
99,
-95,
53,
-17,
-68,
-104,
14,
-21,
-97,
-25,
-110,
88,
107,
9,
-106,
-99,
125,
22,
-121,
-4,
-29,
4,
23,
124,
5,
-117,
-78,
-89,
-113,
118,
-110,
87,
-21,
-91,
32,
96,
-52,
-80,
95,
103,
57,
27,
-113,
-100
] |
The opinion of the court was delivered by
Johnston, J.:
The appellant was convicted of grand larceny upon an information which charged that “John Rook . . . on the — day of March, A. D. 1889, did then and there unlawfully, willfully and feloniously take, steal and carry away one set of double harness of the value of $26, the personal property of P. Johnson; contrary to the statute,” etc.
The principal objection urged against the conviction is, that the information does not set forth the full Christian name of the owner of the property stolen, and in this connection it is urged that there was a variance between the allegations and the proof. It is charged to have been the property of P. Johnson, while the proof discloses that it was owned by Peter Johnson. The information was defective. In a charge of larceny the full Christian name, as well as the surname, of the owner should be stated, if known, and in cases where they are unknown that fact should be alleged. The defendant, however, is not in a position to avail himself of the defect, as it was not brought in question until after the verdict, and only upon a motion in arrest of judgment. If the sufficiency of the information had been challenged by a motion to quash, or other proper objection, the information could have been amended in this particular; but he chose to accept the chances of a trial, and only raised the question after an adverse verdict had been given. “P” is the initial letter and abbreviation of “Peter,” and the evidence on the trial indicated plainly enough that P. Johnson and Peter Johnson are one and the same person. This was taken for granted during th'e trial by all the parties, and naturally enough, too, as in the ordinary affairs of life the initials, instead of the full Christian name, are generally used. As said by Mr. Justice Valentine in Ferguson v. Smith, 10 Kas. 402:
“The full Christian name is now seldom written anywhere Search the records of our courts, our statutes, the lists of members of the legislature, election returns, written contracts, and ■other written instruments, newspapers, etc., and everywhere it will be found that as a rule the initials only of the Christian name are used.”
It appears that no prejudice was suffered by the defendant from the omission during the trial, and none can be, so far as a future prosecution is concerned, because he may show that the names stood for one and the same person. The motion in arrest of judgment only raised the question of whether the facts alleged constituted a public offense, and defects like this which might have been availed of by a motion to quash or to amend, cannot be taken advantage of after trial and verdict. It is also claimed that the description of the property stolen was not sufficiently full; but this objection, like the other, comes too late. (The State v. Knowles, 34 Kas. 393; City of Kingman v. Berry, 40 id. 625. See also The State v. Jackson, 27 Kas. 582; The State v. Harp, 31 id. 498.)
Complaint is made that no special instructions with regard to the testimony of an accomplice and the credit to be placed upon his testimony, were given by the court. No such instructions were asked for by the defendant, and hence no reversible error was committed by its failure to give them. (Douglass v. Geiler, 32 Kas. 499; The State v. Pfefferle, 36 id. 96; The State v. Peterson, 38 id. 204.)
Further complaint is made of an instruction in respect to the value of the property. It is as follows:
“The value of the property is not necessarily what Johnson may have paid for it, nor is it necessarily what it might have been sold for at a second-hand store or pawn-shop, or what it might bring at a forced sale, or at any sale at public auction, but the real test is, what was the property worth in the neighborhood where it was taken at the time it was taken?”
The appellant fails to point out what the fault is in the instruction, and, under the testimony, we fail to find that there was any error committed in giving it. The case was fairly presented to the jury, and manifestly a correct result was reached.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
-80,
-24,
-52,
63,
56,
36,
-86,
-102,
-111,
-95,
-90,
115,
77,
-62,
0,
105,
-13,
109,
-47,
123,
-52,
-77,
63,
-94,
-14,
-5,
-21,
-44,
-79,
77,
-28,
-43,
76,
48,
-54,
117,
102,
72,
-63,
84,
-50,
1,
56,
-62,
-37,
96,
36,
57,
84,
11,
85,
-98,
-13,
62,
26,
87,
-87,
44,
75,
-83,
-48,
-16,
-97,
93,
79,
22,
-77,
55,
-72,
5,
-8,
13,
-104,
17,
0,
-8,
51,
-106,
2,
-44,
45,
-65,
-127,
98,
98,
0,
-27,
-81,
56,
-120,
111,
62,
-107,
-89,
-112,
64,
-63,
9,
-66,
-99,
103,
16,
-89,
124,
-25,
29,
21,
106,
39,
-49,
-108,
-93,
13,
44,
-114,
19,
-9,
37,
48,
113,
-60,
98,
92,
115,
114,
-109,
-113,
-16
] |
The^ opinion of the court was delivered by
Hoch, J.:
This appeal presents, primarily, this question: May the owner of grain stored in a public warehouse (G. S. 1935, ch. 34, art. 2) whose grain has been destroyed by fire recover on a fire insurance policy issued to the warehouseman under section 34-236, G. S. 1935, although the fire had been caused, without connivance or knowledge of the owner, by the felonious act of the warehouseman?
Brief statement of the facts will suffice. F. L. Bunds was licensee and operator of a local public warehouse at Scranton, Kan. As such licensee he obtained a policy from the Millers National Insurance Company to cover loss by fire and other hazards both to his own property and to the grain of others stored in the warehouse.. The warehouse was destroyed or partially destroyed by fire and Bunds filed a claim, under the policy, for $9,715.92, covering among other losses that of the grain stored in the warehouse, and for which warehouse receipts had been issued. Pending action upon the claim Bunds admitted that he set fire to the elevator for the purpose of collecting the insurance, was prosecuted, pleaded guilty, was convicted, and given a prison sentence. Some time thereafter the insurance company, appellee here, filed its petition for a declaratory judgment, naming Bunds as defendant. After reciting the facts hereinbefore stated, it averred that an actual controversy existed between it and the defendant as to liability under the policy; that uncertainty existed owing to the fact that the defendant might bring action upon the policy at any time within five years and that on account of the delay its rights might be prejudiced by the disappearance of material witnesses or otherwise. Other averments made for the purpose of establishing a right to maintain the action for a declaratory judgment need not be recited. No question has been raised as to whether the case was a proper one for invoking the declaratory judgment statute and we will not discuss that question.
In its petition the insurance company asked that the policy be declared null and void. Separate motions were filed by the United States of America and Gus St. Louis as executor of the estate of Caroline Mohr, deceased, asking leave to intervene, as defendants. The motions were allowed and answers and cross-petitions substantially alike were filed. The averments covering matters not in issue need not be recited. The United States claimed as holder of warehouse receipts taken by the Commodity Credit Corporation, a fed eral agency, the grain so represented being valued at $8,461.74. St. Louis, executor, asserted ownership by the Mohr estate of grain valued at $1,313, represented by warehouse receipts. In the answers St. Louis admitted that Bunds unlawfully caused the fire, and the United States stated that it neither admitted nor denied it. Both answers denied any responsibility for Bunds’ unlawful act. Both cross petitions asked recovery on the ground that by virtue of the policy and the statute under which it was issued there was a valid contract between them and the plaintiff, and that they could not be held liable for the unlawful act of Bunds. Further recital of the allegations in support of a cause of action based upon that theory is unnecessary. Upon motion of the plaintiff the trial court struck out all parts of the cross petitions in which the intervenors asserted their right to recover under the policy in spite of the unlawful act of Bunds. From that order this appeal was taken.
The question may be divided into two parts: First, were appellants, as owners of the stored grain, entitled under any circumstances to bring action on the policy; second, if so entitled, is recovery barred by the act of Bunds which voided the policy as to him.
We have no difficulty with the first question. Our code of civil procedure provides:
“Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 27.” (G. S. 1935, 60-401.)
Section 60-403 provides, in part, that “a person with whom or in whose name a contract is made for the benefit of another . . . may bring an action without joining with him the person for whose benefit it is prosecuted.” Appellee -concedes that if Bunds had collected the insurance he would have held the proceeds for the benefit of the appellants and other owners of the stored grain. Clearly the insurance contract, as far as the wheat involved is concerned, was for the benefit of appellants. Under section 60-403 Bunds might have maintained the action although they were the real parties in interest. But section 60-403 is permissive and not mandatory. (47 C. J. 38; Wilson Company v. Hartford Fire Insurance Co., 300 Mo. 1, 39, 254 S. W. 266.) Certainly the owner of stored grain, covered by insurance, is the real party in interest under the policy. As such he is entitled, as well as the person to whom the policy is directly issued, to bring action. (Annotation 61 A. L. R. 720; 26 C. J. 484.)
The second question is not free from difficulty. In an action on the policy by the owners of stored grain does the insurance carrier have available all defenses it would have had in an action by the warehouseman? Otherwise stated, do the owners, as plaintiffs, simply step into the shoes of the warehouseman?
At the outset it may be said that cited cases and others dealing with contracts between private persons relating to matters not affected with a public interest have little, if any, bearing upon the issue here. It may be conceded that as to such matters the general rule is that in an action by a third person in whose interest or for whose benefit a contract has been made, such person has no greater rights than those by whom the contract in his interest was made, unless subsequent to the execution of the contract and in reliance upon it, he has been led to alter his position to his disadvantage if the contract is voided. But we are not here dealing with a contract . unrelated to the public interest. We are dealing with a policy issued under specific statutory requirement. Accordingly the issue must be approached in the light of the terms and the intent of the statute.
It requires no citation of authority to support the proposition that warehouses maintained for the storage of goods and merchandise offered for such purpose are proper subjects for state regulation, as being affected with a public interest. Early in the history of this state the storage of grain in public elevators or warehouses became the subject of regulatory legislation. The history of such legislation is sketched in considerable detail in Kipp v. Goffe & Carkener, 144 Kan. 95, 101, 102, 58 P. 2d 102, and need not be repeated here. The present statute, chapter 194 of the Laws of 1931 (G. S. 1935, 34-223 to 34-2,103), is entitled “An Act to provide for storage of grain in state licensed warehouses and under state supervision and issuance of warehouse receipts therefor, and providing penalties for offenses thereunder, and repealing,” etc. Some provisions of the act, here pertinent, may be summarized as follows:
Public warehouse defined as an elevator or other building adjacent to a railroad in which grain is received for storage or transfer for the public;
State license required before transacting such business;
State inspection required before issuance of license to determine whether building is suitable for storage of grain;
Bond required by the applicant in such sum, not less than $5,000 nor more than $50,000, and at not less than 10 cents per bushel upon the capacity of the warehouse, as may be fixed by the chief inspector, the bond being conditioned upon “the faithful, performance of his duties” as a public warehouseman;
License to be posted in a conspicuous place in the office room of the warehouse;
All grain, suitable for storage, and tendered in the usual manner to be accepted up to capacity, without discrimination;
Warehouse receipts to be issued, embodying full information and terms as set out in the statute, including clear indication as to whether the receipt is negotiable or nonnegotiable.
Warehouseman required to keep all stored grain insured against fire and other hazards “for its full market value.”
Maximum charges fixed “for receiving, insuring, handling, storage and delivery of grain.”
In case of loss by fire and upon demand by holders of warehouse receipts warehouseman required to make settlement upon the basis of market value of the stored grain.
Various requirements as to drying, cleaning, and safekeeping of grain.
Extensive provisions as to transfer or negotiation of warehouse receipts, including various provisions in protection of the rights of purchasers for value in good faith of negotiable receipts.
These and other provisions of the statute which might be noted indicate how broadly and specifically the legislature has imposed regulation upon grain warehouses. In the light of such regulatory statutes the appellee issued its policy — -it cannot be heard to say otherwise. The rule is well established that in such a case the statute must be read into the contract. (85 A. L. R. 20, 28-32; 106 A. L. R. 516, 518.) J Although, as appellee contends, the case of Dunn v. Jones, 143 Kan. 218, 53 P. 2d 918, may not be persuasive on other aspects of this case it is clearly in point upon the proposition that the provisions of a statute providing for compulsory insurance in a matter affecting the public interest must be written into the policy, and that no provision of the policy can be effective in contravention of the statute. We are therefore only concerned, in this connection, with the question of what the nature of the policy is when construed in connection with the terms and clear intent of the statute.
We first consider briefly appellee’s contention that the policy protects no one’s interests except Bunds’ for the reason that it does not contain the words “for whom it may concern” or their equivalent. In the first place, the policy itself recites that it covers “grain . . . handled or used by the insured in their business, their own, or held by them in trust or on storage, if in' case of loss the insured is legally liable therefor.” In the second place it is too clear to require discussion that the primary purpose of the statute, in the matter of insurance, is to protect the public, the depositors of stored grain, and the bona fide holders of warehouse receipts. To hold that the policy does not cover the grain itself, or that it is only intended to indemnify Bunds against nlainis"against him by the storers of grain would distort the policy and undermine the statute. (29 Am. Jur. 214, 215; Wilson Company v. Hartford Fire Insurance Co., 300 Mo. 1, 254 S. W. 266; Utica Canning Co. v. Home Ins. Co., 116 N. Y. S. 934, 937, 938.)
Appellee further contends that since the statute provides that in case' of loss by fire the warehouseman shall make settlement with grain depositors on the basis of market value, and that the depositors have right of action on the warehouseman’s bond, those are the exclusive remedies and grain owners have no right of action against the -insurance carrier. Adoption of that view would result, practically, in leaving the public unprotected save by the general credit and good faith of the warehouseman and by the bond. We think it ■was clearly the legislative intent to provide greater protection than that. The bond is conditioned upon faithful performance of all the many duties imposed upon the licensee by the statute — proper handling and care of the grain, keeping the grain insured, etc. We are advised that in the instant case the amount of the bond is $'5,000— far less than the losses alleged by appellants, to say nothing of losses by other depositors. The maximum bond, under the statute, is for $50,000. The fact that the maximum bond would in countless cases be wholly inadequate coverage is another indication that the bond was not intended as the only public protection supplementary to the credit and good faith of the licensee — the latter being at times valueless. Again the fact that warehouse receipts are generally negotiable — as they were in the instant case — and that the receipts-— upon forms prescribed under the act — recite upon their face that the grain they represent is covered by fire insurance, is persuasive indication that the owners were not to be left solely to recovery from the licensee or upon the bond.
Another indication of legislative intent is that the bond may bé written on the basis of only ten cents a bushel, while the insurance must cover full market value.
■One further and significant provision of the statute is to be noted -^•the cost ■ of the insurance is in fact paid by the owners who store the grain. The statute specifically and properly provides for its inclusion in the warehouse fees. (G. S. 1935, 34-235.)
Neither appellants nor appellees have called our attention to cases involving precisely the situation here presented and our own research has discovered none. But the principle which we think is here controlling has been often stressed. The case of Ott v. American Fidelity & Casualty Co., 161 S. C. 314, 159 S. E. 635, 76 A. L. R. 4, involved a public liability policy given by a motor carrier under a statute similar to ours. The policy required as a condition for recovery that the assured give immediate written notice of an accident with fullest information then obtainable. In an action brought against it by an injured person the insurance company resisted upon the ground that no such notice had been given, and that it had no knowledge that the accident had occurred until summons was served. The court said:
“This position would undoubtedly be correct in a suit brought against the insurer by the insured, but the same rule would not necessarily apply in a suit by an injured member of the public. We must assume that the policy was intended not to evade, but to effectuate the purposes of the statute in compliance with which it was filed and it must be construed in the light of such statute.” (Cases cited.) (p. 317.)
There is equal reason, here, why a defense as against the licensee should not bar recovery by the owners of the grain. In the Ott case, supra, the court also called attention to the general principle that a policy issued under the statutory requirement, for protection of the public “must be construed most strongly against the insurer.”
Appellee argues that Farney v. Hauser, 109 Kan. 75, 198 Pac. 178, supports its contention that appellants have no right to sue upon the policy. We cannot agree. It was said in that case that it is the duty of the warehouseman, in case of loss, to collect the insurance not only on his own property but upon the “property entrusted or bailed to him.” Cases may readily be imagined where the depositors might have occasion to hold him personally liable for having failed to do so. But the fact that the warehouseman has a right and duty to collect does not preclude direct action by the real parties in interest.
..Before concluding we take note of section 34-2,103, G. S. 1935, tile ■ last paragraph of the act, which provides: “This act shall be liberally interpreted and construed to effectuate its general purpose.”
We briefly summarize. Grain warehouses have been impressed with a public interest and on that basis subjected to thoroughgoing regulation. Among the protective provisions is the requirement that grain be insured at full market value. This insurance is primarily for the benefit of those whose grain is received for storage and who pay the cost of carrying the insurance. Warehouse receipts are in most cases negotiable and holders are entitled to protection incident to negotiability.
Construing the warehouse contract, as we must, in connection with the above and other provisions of the statute, we are impelled to the conclusion that it establishes not only a contractual relationship between the insurance carrier and the warehouseman, but also between the carrier and those whose grain is covered by the policy. To hold otherwise would deny to holders of warehouse receipts the protection' which the legislature intended they should have and which the insurance carrier in effect agreed to when it issued the policy.’ It follows that the appellants were entitled to bring action upon the contract and that recovery is not barred by the felonious act of Bunds.
The judgment is reversed and the cause remanded for further proceedings in harmony with this opinion. | [
-80,
-8,
-8,
45,
10,
96,
42,
-38,
86,
-27,
-89,
83,
-19,
-42,
21,
45,
-13,
121,
-47,
58,
-41,
-89,
19,
66,
-42,
-69,
-109,
-59,
-72,
95,
126,
-58,
76,
32,
10,
-43,
-90,
-62,
-59,
28,
-118,
13,
-71,
-31,
-35,
80,
48,
106,
116,
79,
113,
-98,
-13,
42,
-104,
-57,
41,
44,
107,
-87,
-47,
-71,
-85,
13,
119,
22,
-127,
4,
-106,
7,
-64,
10,
-112,
49,
0,
-24,
115,
-90,
-122,
117,
111,
-87,
33,
102,
103,
17,
13,
-17,
-24,
-120,
39,
-51,
-81,
-89,
-112,
24,
51,
32,
-65,
-99,
116,
20,
6,
126,
-20,
21,
95,
108,
7,
-122,
-12,
-79,
-21,
96,
-100,
-117,
-17,
-125,
51,
81,
-49,
-88,
92,
69,
119,
31,
70,
-60
] |
The opinion of the court was delivered by
PIarvey, J.:
This was a proceeding to determine the venue for the administration upon the estate of William R. Summerfield deceased, late of Ellsworth county. The trial court held the venue was in Wyandotte county. The mother and sole heir of decedent and his administrator appointed in Ellsworth county have appealed.
The facts were stipulated in writing. The pertinent ones are not numerous and may be stated as follows: William R. Summerfield died on February 2,1943, at a hospital in Kansas City, where he had been a patient eleven days. For seven years prior thereto he had been the agent of the Union Pacific Railroad Company at Black Wolf in Ellsworth county, where he maintained a home. His wife’s death had preceded his. They had no children. His mother, Bertha Summerfield, was living at Manning, Iowa, and was his sole heir at law. On the next day an undertaker advised C. Clyde Myers, who was the public administrator in Wyandotte county, of the death of Mr. Summerfield. Mr. Myers investigated and found that the deceased had with him at the time of his death $39.32 cash, a watch, some personal effects and papers, including a bank book of the Black Wolf State Bank showing a balance to his credit of $5,341.11. Mr. Myers called the bank by telephone and learned William R. Summerfield had no heirs in Kansas, and the address of his mother. He then called Mrs. Bertha Summerfield and advised her of the death of her son and stated that he was proceeding to look after everything and handle the estate, and on the same day, February 3, 1943, he filed in the probate court of Wyandotte county a petition asking that he be appointed temporary administrator, which order was made.
Thereafter and on February 10, 1943, Mr. Myers filed in the probate court of Wyandotte county a petition to be appointed administrator of the estate of William R. Summerfield, in which petition he alleged, among other things:
“That your petitioner does not know the place of residence of such deceased at the time of his death, but that he died at and in Wyandotte county. . . .”
Thereupon the court made an order fixing March 8, 1943, as the date for the hearing of the petition. The date of the hearing was continued from time to time to April 22,1943.
In the meantime and on February 10, 1943, Albert Summerfield, brother of the deceased, filed in the probate court of Ellsworth county a petition for the appointment of an administrator for the estate of William R. Summerfield alleging, among other things, that the deceased was a resident of Ellsworth county at the time of his death; that he died intestate, leaving an estate to be administered and leaving as his only heir at law his mother, Bertha Summerfield. She signed a waiver of notice of the hearing of the petition, which was in fact heard by the court on February 16, 1943. The probate court of Ellsworth county found that William R. Summerfield was a resident of Ellsworth county at the time of his death; that he died intestate -leaving an estate to be administered, and appointed John F. Novak as administrator of such estate and fixed his bond at $15,000. Mr. Novak duly qualified as such administrator and letters of administration were issued to him. Bertha Summerfield and John F. Novak each filed in the probate court of Wyandotte county their written defenses to the petition of C. Clyde Myers to be appointed administrator of the estate, in which they alleged that William R. Summerfield was a resident of Ellsworth county at the time of his death; that he died intestate; that his mother, Bertha Summerfield, of Manning, Iowa, was his only heir at law; that he had an estate to be administered; and further alleged the proceedings in the probate court of Ellsworth county by which Novak was appointed administrator; attached to their defenses copies of petition, waiver of notice and order of the court making the appointment; alleged there had been no appeal therefrom, and that it was final and conclusive. They asked the probate court of Wyandotte county to find that it had no venue oyer the administration of such estate, and that the venue had been finally adjudicated by a court of competent jurisdiction to be in Ellsworth county.
The hearing in the probate court of Wyandotte county on April 22, 1943, was upon the written stipulation of the parties, which embodied the above facts much more in detail than is here stated. Among other things it contained the following:
. . and for the purpose of determining the venue it is stipulated that Mr. William R. Summerfield, at the time of his death, was a resident of Black Wolf, Ellsworth county, Kansas.”
The probate court held that the venue for the administration of the estate of the decedent was in Wyandotte county. Mrs. Summer-field and Mr. Novak appealed to the district court, where the matter was heard upon the pleadings and stipulation previously filed. The district court made findings which embodied the facts stipulated and found that the venue for the administration of the estate of the decedent was in Wyandotte county. The appeal is from that judgment. We take note of the fact that the procedure in this case followed that portion of G. S. 1943 Supp. 59-2203 which reads:
“If proceedings are instituted in more than one county, they shall be stayed except in the county where first commenced until final determination of venue'. If the proper venue is determined to be in another county, the court, after making and retaining a true copy of the entire file, shall transmit the original to the proper county.”
Prior to the adoption of the new probate code it was difficult to get the question of venue in any one-court where there could be a final determination. (See Ewing v. Mallison, 65 Kan. 484, 70 Pac. 369, and cases cited therein; Dresser v. Bank, 101 Kan. 401, 168 Pac. 672; Edington v. Stine, 135 Kan. 173, 10 P. 2d 27.) We take note also of the fact that the new code clarifies the distinction between venue and jurisdiction. Jurisdiction is the power of the court to hear and determine a matter, while venue, in the sense here used, relates to the particular county of the state in which the proceeding must be heard, and when the proceeding is adversary, as under the new probate code, and all parties are before the court, the court will have jurisdiction to hear where the venue is, even though it does not have venue to administer the estate. (See Bartlett’s Kansas Probate Law and Practice, §§ 997 to 1001.)
Our statute (G. S. 1943 Supp. 59-2203) very definitely fixes the venue as follows:
“Proceedings for the' probate of a will or for administration shall be had in the county of the residence of the decedent at the time of his death; . . .”
This of course refers to one who died while a resident of this state. Throughout the history of our state a similar statute has been in force. See Laws 1862, ch. 91, § 2 (enacted in 1859); G. S. 1868, ch. 37, § 1; G. S. 1935, 22-301. The decisions of this court throughout the history of the state have been uniform in holding in effect that but one court is possessed of the power or authority to administer the estate of a resident decedent, and that that court is the probate court of the county of his residence at the time of his death.
(Brubaker v. Jones, 23 Kan. 411; Perry, Adm’r, v. St. J. & W. Rld. Co., 29 Kan. 420; Meyers v. Smith, 50 Kan. 1, 31 Pac. 670; Estate of Mallory v. B. & M. R. Rld. Co., 53 Kan. 557, 36 Pac. 1059; Ewing v. Mallison, supra; Anderson v. Walter, 78 Kan. 781, 99 Pac. 270; Ekblad, Adm’r, v. Hanson, 85 Kan. 541, 117 Pac. 1028; In re Miller’s Estate, 90 Kan. 819, 136 Pac. 255; Metrakos v. Railway Co., 91 Kan. 342, 147 Pac. 953; Dresser v. Bank, supra; Ford, Adm’x, v. Peck, 116 Kan. 74, 225 Pac. 1054; Edington v. Stine, supra; and see Bartlett’s Kansas Probate Law and Practice, § 1001.)
There is nothing in our present general statute on this subject, or any of the earlier ones, to suggest that it is not in force in Wyandotte county as well as in all the other counties of the state; neither do any of the decisions cited contain such a suggestion.
Appellee, however, contends that notwithstanding the general statutes and decisions above mentioned he has authority to administer the estate in question by virtue of chapter 199 of the Laws of 1903, and the trial court’s decision was predicated upon that view. We are unable to find that this act was ever published in the General Statutes of the state. In the General Statutes of 1909, following section 3436, is a note which reads: “Law providing for public administrator in Wyandotte county — see L. 1903, ch. 199.” There is a similar note following section 4485 of the General Statutes of 1915. In the Revised Statutes of 1923, section 19-1104 reads:
"Public administrator, Wyandotte county. Laws 1903, chapter 199. Included by reference. (The title to this act is, ‘An Act providing for a public administrator in Wyandotte county, specifying the cases in which he shall have authority to act as administrator of the estates of deceased persons, and defining his powers, duties and liabilities as such.’ Act omitted as not of general application.)”
This is repeated in General Statutes, 1935, under the same section number.
In the probate code it was provided (G. S'. 1943 Supp. 59-2601):
“Nothing in this act contained shall be construed to repeal or modify . . . the' special administrator act for Wyandotte county (Laws 1903, chapter 199, being section 19-1104 of the General Statutes of 1935), and acts amendatory thereof or supplemental thereto.”
As the title indicates, the statute is a local one, being limited to Wyandotte county. Section 1 of the act creates the office of public administrator for the county and fixes his term of office at two years, and provides for his election. Section 2 of the act reads:
“It shall be the duty of the public administrator to take into his charge and custody the estates in said county of all deceased persons in the following cases: First. Where any stranger or unknown person dies intestate in said county, or dies therein leaving a will and the executor therein named fails to qualify as such executor within thirty days after the death of such person. Second. When any person dies intestate in said county without any known heirs. Third. When any person dies intestate in said county, or in any other state or foreign country, leaving no known heirs in this state. Fourth. When any person dies in said county, or in any other state or foreign country, leaving no known heirs in this state, and leaving a will, and the executor therein named is not a resident of this state, or, being a resident thereof, fails to qualify as such executor within thirty days after the death of such person. Fifth. When any money, property, papers or other estate of any deceased person are left in said county in a situation exposed to loss or damage and no other person administers on the same. Sixth. When any estate of any person who dies intestate in said county or elsewhere is left in said county liable to be injured, wasted, or lost, when said intestate does not leave any known heirs in this state. Seventh. In any case in which the person or persons who, under the laws of this state, are entitled to letters of administration upon the estate of any intestate, shall appear before the probate' court of said county and request said court to grant letters of administration upon such estate to the public administrator. Eighth. When from any other good cause the probate court of said county shall order him to take possession of any estate to prevent its being injured, wasted, purloined, or lost.”
Section 3 requires the public administrator to apply to the probate court for authority and to give bond before he takes charge of any estate. Section 4 authorizes him, after having been appointed, to continue the administration of the estate until it is settled or he is discharged. Section 5 reads:
“The public administrator shall receive for his services the same compensation allowed by law to other administrators of the estates of deceased persons.”
Section 6 provides that all the laws of the state relating to the administration of the estates of deceased persons shall apply to the administration of such estates by the public administrator. Sections 7 and 8 provide for the appointment of the officer until an election can be held and for the filling of vacancies. The statute does not. purport to repeal any law of the state.
In 1908 the attorney general brought an action in quo warranto in the name of the state to have the statute declared invalid as being in violation of section 17, article 2 of our constitution, and alleging that it was being misused by defendant for the purpose of gaining fees to himself. The allegations with respect to such misuse were denied and were not determined. The decision was upon the plaintiff’s motion for judgment on the pleadings. The court held (State, ex rel., v. Cox, 79 Kan. 530, 99 Pac. 1128) that since the statute was enacted prior to the amendment of section 17, article 2 of the constitution in 1906, the “court is not required to determine” whether the statute was in violation of the constitutional provision.
In Cox, Adm’r, v. Kansas City, 86 Kan. 298, 120 Pac. 553, a wrongful death action brought by the public administrator, the court held that plaintiff’s appointment as administrator of the estate of decedent was not open to collateral attack by defendant showing that the intestate left no property in the state except the suit of clothes he was wearing. In the opinion it was said.
“Moreover, we regard the appointment of the administrator as sufficient ■ against a collateral attack irrespective of the special statute. The circumstance that Cox was the public administrator did not disqualify him for appointment under the general law, . . .” (p. 300.)
The next appearance of the statute in this court was in Judy & Gilbert v. Railway Co., 111 Kan. 46, 205 Pac. 1116, and In re Gilbert and Judy, 114 Kan. 57, 216 Pac. 1089. These actions grew out of these facts: In November, 1919, Louis R. Holbrook, whose home wlas in Howell county, Missouri, an employee of the Railway Company, was killed in a railroad accident in Johnson county. He had a room in Wyandotte county, where he had a grip and some clothing and personal effects. Earl E. Gilbert, then the public administrator of Wyandotte county, he went to Holbrook’s room, inventoried and took charge of his effects, investigated the cause of his death, had himself appointed administrator of Holbrook’s estate, and then went further and made an agreement with the law firm of Judy & Gilbert, of which he was a member, to bring an action for the wrongful death of Holbrook in the district court of Wyandotte county. Thereafter the father of Louis R. Holbrook was appointed administrator of his estate by the probate court of Howell county, Missouri, sued the railroad company for the death of his son, and recovered a judgment, which was pleaded by the railroad company as a defense in an action brought by Gilbert, administrator, in the district court of Wyandotte county. As a result, that action was dismissed. Judy and Gilbert then sued the railroad company for fees upon their contract with Gilbert as administrator. The conduct of the public administrator and his law partner in that case brought about the disciplinary action in the later disbarment proceedings.
The public administrator was a party in the two cases involving the Ethan Zane estate. (Nestlerode v. Commercial Nat’l Bank, 121 Kan. 399, 247 Pac. 866, and Wollard v. Home State Bank, 121 Kan. 474, 247 Pac. 868. Also in Wollard v. Peterson, 143 Kan. 566, 56 P. 2d 476, and 145 Kan. 631, 66 P. 2d 375, and in Horan v. Dore, 146 Kan. 883, 74 P. 2d 147, and Egnatic v. Wollard, 156 Kan. 843, 137 P. 2d 188.)
The peculiar wording of the statute and the fact that the public administrator is paid only by fees in cases in which he is appointed tends to cause him to look for business, a practice which frequently leads to unsatisfactory results. It is doubtful if the statute serves any useful purpose that could not be accomplished under the general law, as the court stated was the case in Cox, Adm’r, v. Kansas City; supra. If so, it should be rewritten with those purposes in mind. When its validity was specifically attacked this court declined to pass upon its validity upon the theory that under the peculiar circumstances it was not required to do so. (State, ex rel, v. Cox, supra.) So, for a third of a century it has existed as a local statute of questionable validity, which may have been useful at times, certainly not so at others. We are not asked now to pass upon the validity of the act. Assuming it to be valid for some purposes, it must be construed in harmony with other statutes bearing on the subject which also are in force in Wyandotte county, namely, the probate code. It will be noted that by section 2 of the act the public administrator is “to take into his charge and custody the estates in said county of all deceased persons in the following cases:” (Italics ours.) So far as this section is concerned, the most the public administrator could take into his custody would be that portion of the estate of the deceased which was in Wyandotte county. But he was authorized to do that only under certain conditions. Appellee relies upon the third and perhaps the fifth and sixth conditions. The third would have no application at all unless the deceased left property in the county. The fifth relates to money, property, papers, or other estate left in said county in a situation exposed to loss or damage, and no other persons administering on the same. The sixth provision also relates to the estate, of a person who dies intestate in the county, left in said county and liable to be injured, wasted or lost. Those situations do not exist here.
There is no contention that the authorities of St. Margaret’s Hospital in Kansas City, where William R. Summerfield died, were likely to make way with or permit to be lost any of his personal property which he left there before an administrator could be appointed in an orderly procedure in the county of his residence. There was no unreasonable delay in having administration upon his estate in the county of his residence. The result is, the facts of this case present no warrant or authority under chapter 199 of the Laws of 1903, for the public administrator of Wyandotte county to take possession of the personal property and effects of the decedent within the county, or to proceed to have himself appointed temporary administrator of his estate; nor do they justify the court in holding the venue to administer the estate to be in Wyandotte county. Neither the facts nor the statute changed the venue for administering upon the estate from Ellsworth county to Wyandotte county.
To sustain the contention of appellee would be to hold in effect that the public administrator of Wyandotte county had the right and authority to administer upon the estate of any resident of any county in the state of Kansas who died in Wyandotte county, or elsewhere, leaving property in Wyandotte county. This contention cannot be sustained.
Some other questions are discussed in the briefs, but they are unimportant in view of the conclusion we have reached.
From what has been said it necessarily follows that the judgment of the court below should be reversed with directions to enter judgment that the proper venue for the administration upon the estate of William R. Summerfield, deceased, is in Ellsworth county, and directing the proper record to be made as provided for in G. S. 1943 Supp. 59-2203. It is so ordered. | [
-16,
110,
-80,
95,
-104,
96,
34,
24,
82,
-79,
37,
83,
-19,
-54,
29,
125,
126,
13,
81,
121,
-61,
-105,
83,
-21,
82,
-13,
-7,
-35,
50,
-36,
-76,
-4,
73,
112,
10,
-99,
-126,
64,
-43,
-42,
-116,
4,
-119,
-63,
83,
64,
56,
103,
86,
88,
-47,
62,
-13,
42,
28,
112,
105,
44,
-5,
-85,
56,
-80,
-86,
-57,
127,
22,
34,
4,
-108,
15,
88,
46,
-104,
53,
-64,
-20,
115,
-74,
-122,
116,
47,
29,
44,
-30,
67,
115,
53,
-21,
-32,
-102,
14,
-66,
-99,
-90,
-102,
89,
99,
-87,
-76,
-97,
117,
114,
3,
-4,
-20,
68,
89,
40,
7,
-50,
-10,
-111,
-98,
116,
24,
26,
-5,
-51,
32,
113,
-115,
98,
92,
71,
49,
27,
-122,
-80
] |
The opinion of the court was delivered by
Smith, J.:
This is an action to recover money. Judgment was for the defendants sustaining a demurrer to the petition of plaintiffs. Plaintiffs appeal.
The outcome of the litigation depends in a large measure on what was done in a former action between Thomas Faust and these same defendants. The pleadings in that action were attached to the petition in this case.
After alleging the relationship of the plaintiffs and that the defendants were the administratrix of the estate and the heirs of W. G. Carson, the petition alleged that plaintiffs were the owners of a described quarter section of land in Cowley county; that about September, 1917, they became indebted to W. G'. Carson in the amount of $4,550 and gave Carson a mortgage on the premises; that this mortgage on its face purported to be a deed, but was really a mortgage to secure the outstanding indebtedness; that commencing in 1917 the plaintiffs each year turned over to Carson the proceeds of the farm and did work for him so it could be applied on payment of the indebtedness and the work done exceeded in value the indebtedness of plaintiffs to Carson; that plaintiff, Thomas Faust, was a negro of no education and at the time of delivering the mortgage deed in question Carson had agreed to keep an accurate account of the sums paid him by the plaintiffs; that at different times they asked Carson for an accounting and he said the debt had not been satisfied so they continued to deliver the proceeds .from the farm to him and to perform labor. The petition alleged that Carson died intestate on January 16, 1934, and left defendants as his only heirs at law and Frances H. Carson as administratrix of his estate; that about November 22, 1934, the defendants made an oil and gas lease on the property and from that date they took large quantities of oil and gas from it. The petition then alleged that in an action in the district court of Cowley county between Thomas Faust, one of the plaintiffs in this case, and these same’ defendants, it was finally determined that the deed spoken of was in fact only a mortgage to secure the payment of $4,550 and that this had all been paid and this judgment had become final. The petition further alleged that in addition to the proceeds from oil and gas received, already mentioned, from these premises the defendants had received further income, the amount of which was not known to plaintiffs; that the plaintiff had requested an accounting of the defendants, all of which had been ignored, and that an accounting was necessary. The prayer .of this petition was as follows:
“Wherefore, plaintiffs pray for a judgment against the defendants for a discovery and an accounting and for a judgment against the defendants for such amounts as an accounting shall show that W. G. Carson and the defendants have had and received over and above the indebtedness of these plaintiffs to W. G. Carson and these defendants, and for interest and the costs of this action and for such other and further relief as may be just and equitable.”
The motion of one of the defendants to require plaintiffs to make their petition more definite and certain in certain particulars was sustained by the trial court, whereupon an amended petition was filed. This amended petition for the purpose of this decision is substantially the same as the original petition.
In the meantime, in 1942, Thomas Faust died and the action was revived in the name of Mary E. Faust, administratrix, and Mary E. Faust, an individual.
To this amended petition was attached the petition in the action filed by Thomas Faust against these same defendants, which has already been mentioned in this opinion. In that action he alleged first his residence; that the defendants were the administratrix and sole heirs of W. G. Carson; that Carson was in his lifetime a shrewd businessman of large means; and plaintiff, a colored man of little education and very limited business experience; that' about March 13, 1915, plaintiff became the owner in fee simple of the same quarter section of land that is described in the other petition subject to a mortgage lien in the amount of $4,000 and ever since that time he had resided thereon with his family and it was his homestead; that when the mortgage became due plaintiff was unable to pay it and Carson proposed to him that he would carry the mortgage and plaintiff could pay him quarterly a tenant’s share of the crops and whenever Carson had received enough from plaintiff to pay the loan, interest and taxes or whenever plaintiff desired to sell the farm and could realize enough therefrom to pay Carson, Carson would release to plaintiff his right, title and interest in the land; that plaintiff relied on these promises and entered into an agreement whereby Carson was to furnish the money to take up the loan and plaintiff was to secure to Carson the deed to the premises and make payments and all money received by Carson for gas or oil on this land would be applied to the payment of the taxes, interest and loan on this land; that in September, 1917, plaintiff signed the deed to the premises giving them to Carson as security for payment of this loan and plaintiff had ever since remained in possession of the premises paying Carson each year considerable sums, the exact amount of which he was unable to give; that three or four years before the action was brought a windstorm damaged buildings on the premises and Carson received the money the insurance company paid therefor to apply on the indebtedness; that plaintiff was offered |2,000 for an oil and gas lease on the farm and Carson told him he could do better than that; that Carson sold an oil and gas lease on the farm for $2,000, which he was bound to apply on the loan and that he did so apply it. The petition then alleged that oil and gas was discovered in paying quantities and Carson and defendants had been receiving one-eighth of the oil proceeds from it, which by agreement of the parties was to be applied on the indebtedness; that the agreement was that Carson should keep an accurate account of all payments made; that when the receipts by Carson equaled the taxes, principal and interest Carson would deed the land back to plaintiff and that this deed was given as security for the payment of the aforesaid mortgage deed. This petition then alleged that plaintiff was entitled to an accounting with the defendants as to the amounts paid by plaintiff to Carson in the form of rent to be applied on the indebtedness and the amount received by defendant from the production of oil and gas on the farm, all of which was to be applied on the payment of the loan and when the sums so received had paid the mortgage debt, interest and taxes, and the debt had been fully paid it should be satisfied of receord. The prayer in this petition was as follows:
“Wherefore, plaintiff prays judgment of this court finding and determining that said deed heretofore described be declared to be a mortgage to secure the aforesaid mortgage debt, and that an accounting be had as to the payments made by this plaintiff to said Carson and the defendants herein, and as to the amounts received by said Carson and the defendants herein from the sale of oil and gas leases thereon, and from oil and gas produced under said lease or leases and the amount thereof received by said Carson and the defendants herein; and that said amounts so paid by this plaintiff and the amounts so received by Carson and defendants equal said loan and advance made by Carson, all interest thereon, all taxes paid and interest thereon; that said mortgage debt has been fully paid and satisfied, and the lien by said deed created has been discharged, and that defendant be required to release said lien created by said mortgage deed, by re-deeding said land to this plaintiff, and further such other and further relief as plaintiff may be entitled to in law and equity and for costs.”
To this petition the defendants filed an answer and cross petition in which they denied, first, all of the allegations that the deed in question was intended to be a mortgage, instead of -a deed, to secure the indebtedness of Faust to Carson; denied that plaintiff occupied the premises as a homestead but, on the other hand, alleged that Faust had repeatedly said he was renting the land from Carson and denied that plaintiff ever paid any sums of money in cash to Carson or denied that any oil and gas lease had been sold by Carson or that any money from oil and gas was to be paid or applied on interest and taxes. The ánswer alleged that none of the defendants kept an account because plaintiff was merely a tenant and had no right, title or interest in any of the proceeds of the land; that defendants in 1936 told plaintiff he could no longer remain upon the land as tenant; that they finally let him remain-until August, 1937, whereupon plaintiff refused to vacate the premises’ and had been a trespasser upon the land since that date; that notice had been served on him to vacate the premises on June 29, 1937.
In the cross petition they alleged further about the notice to vacate and the fact that they claimed they were the owners of the land and asked that plaintiff Faust be forcibly ejected from the premises.
In the second cause of action which they filed by way of cross petition they alleged that defendants had been damaged in the amount of $700 by letting stock run over the land. ■■ ” '
Their prayer was for a judgment in this amount and that they be given possession of the property and declared to be the owners thereof in fee simple.
The plaintiff replied to these allegations by way of a general denial.
When that action was tried the questions of fact were submitted to the jury. The jury found that the instrument given by Faust to Carson was intended by the parties as a security for an indebtedness by Faust to Carson; that the amount of the indebtedness was $4,675.69; that it had been paid in full.
The motion of the defendants for a new trial in that action was overruled and judgment entered in accordance with the findings of the jury.
The defendants appealed that case to this court and the plaintiff filed a cross-appeal.
The basis of the plaintiff’s cross-appeal was that the court had erred in refusing to instruct the jury that the plaintiff was entitled to judgment against the defendants for all the monies received by the defendants over and above the amount necessary to pay the indebtedness on plaintiff’s land; the failure of the district court to submit to the jury a special question as to the amount the plaintiff had paid or caused to be paid to Carson, and the failure of the court to have an accounting and final decision as to the amount which Carson and defendants had received in excess of the amount of the indebtedness. These appeals were both dismissed for lack of prosecution.
In the present case the defendants moved to strike from the files the amended petition, to which these pleadings had been attached, because it did not conform to the order made by the court requiring the original petition to be made more definite and certain. When this came on to be argued the parties all agreed to treat it as a demurrer to the petition. It was so treated and sustained by the trial court.
The appeal is from that order.
This demurrer was sustained because the trial court concluded that the judgment in the case of Faust against these defendants was res judicata of the matters raised in the instant case. The plaintiff argues that this judgment was not res judicata because there was no identity of the persons and parties to the two actions. In this connection she points out that the former action was brought in the name of Thomas Faust against these defendants while this action was brought in the name of Thomas Faust and wife against these defendants. She also argues that the two causes of action were not identical because the first action was based on an express contract, that is, that Carson had agreed that the deed should be a mortgage instead of a deed and on the fact that the indebtedness to be secured by the deed had been paid, while the instant action was based on an implied contract, that is, for Carson to pay to the Fausts all that had been wrongfully received and held by him.
Regardless of the designation used in these two cases the fact remains that in-each case the plaintiff asked for an accounting for the same general transactions in each case. The pleadings and all the proceedings in the former action were attached to and made a part qf the amended petition in this action. We have the advantage of all that transpired in that case except the transcript of the evidence taken at the trial. Notwithstanding this lack, however, we know from the nature of the pleadings and the relief given Faust that the trial court in that action heard testimony that had to do with payments made to Carson by Faust on this indebtedness from the time when the deed was given by Faust until the time when the action was instituted. It is true, as argued by plaintiff, that the plaintiff in the first action asked in his prayer for a judgment only that the amount received by Carson equaled the loan and advances made by Carson. He should have, however, asked for an amount equal to all that had been paid by Faust to Carson during the entire time that Faust had been making payments on this land. Once the court had jurisdiction to adjudicate the matter of whether the deed was actually a mortgage, it had jurisdiction for the purpose of adjudicating all differences between Faust and Carson growing out of the giving of this deed and the payments Faust claimed he made to Carson. In Holmes v. Holt, 90 Kan. 774, 136 Pac. 246, this court held:
“When a court of equity acquires jurisdiction of an action brought to determine whether certain conveyances are, in fact, mortgages, although purporting to be deeds, it will retain jurisdiction for the purpose of adjudicating all differences between the parties growing out of the transaction.” (Syl. ¶ 1.)
In this case the court acquired jurisdiction of the cause of action to determine that the deed in question was really a mortgage. In order to fully determine the differences between the parties the court had to consider the issues as to whether during the time that Carson held the deed and Faust was on the farm Faust had paid him enough so that the amount of the indebtedness was paid. This required an accounting and an examination of the same transactions that Faust and his wife now ask to be examined in this case. Those issues were the same in each action. We ^re not impressed with the argument that this action is brought in the name of Thomas Faust and wife while the former action was brought in the name of Thomas Faust only. Both petitions allege that the real estate in question was the homestead of the parties. Any benefit that flowed to Faust from the first action would also come to his wife. In Rost v. Heyka, 133 Kan. 292, 299 Pac. 929, we held:
“A fact brought in issue and judicially determined in a court of competent jurisdiction is conclusively settled by the judgment therein as to the parties to the action and those in privity with them and cannot be relitigated in a later action.” (Syl. ¶ 1.)
Mary, the wife of Thomas, was certainly in privity with the rights of her husband in the former action. There is no allegation in the petition in this case from which it might be inferred that Mary Faust had any interest in this action which she did not have in the former one.
The appellant in this action points out when the former action was submitted to the jury Faust asked that the jury be required to make a finding as to how'much Carson had received altogether from him and the court refused to submit that question. He argues from this that Faust was prevented from litigating the matters in the former action which he seeks to litigate in this action.
This is not the proper place for the question of whether or not the court was correct in that ruling to be decided. The fact is, however, that when the defendants in that action did appeal Faust filed a cross-appeal on the ground, among others, that the trial court should have passed on the same issues which appellant seeks to have considered here. The appeal and cross-appeal were both dismissed so this court was never required to pass on the correctness of that ruling. The fact, however, that the appeal was taken and later dismissed does not detract from the finality of the determination. The time for the appeal is now past and the judgment is final as though this court had passed on it. (See Manley v. Park, 62 Kan. 553, 64 Pac. 28; also Anthony v. Halderman, 7 Kan. 50.)
The fact that the plaintiff in the former action insisted that the trial court in that action should have submitted to the jury the matter of the entire payment to Carson is persuasive on the question that his evidence in that action covered all the payments. It might be that we would have held with him on that point. Had we done so we would have remanded the case to the district court with direction to grant plaintiff a new trial on the question of the amount of payments made to Carson. The same question of fact, however, cannot be considered in another and entirely different action.
The judgment of the trial court is affirmed. | [
-10,
124,
-75,
60,
10,
-32,
42,
-117,
73,
-21,
-73,
83,
-23,
-62,
4,
37,
-32,
25,
81,
105,
-42,
-77,
23,
-15,
-46,
-13,
25,
93,
-79,
76,
-28,
-41,
76,
52,
-62,
-43,
102,
-96,
71,
84,
14,
-123,
-119,
-19,
-7,
2,
48,
123,
54,
75,
65,
-114,
-5,
46,
29,
67,
13,
44,
123,
-71,
72,
-8,
-118,
5,
93,
3,
49,
103,
-98,
-61,
88,
58,
-112,
49,
0,
-24,
114,
38,
-122,
-12,
75,
-119,
40,
118,
102,
33,
117,
-17,
120,
-104,
47,
-73,
-99,
-92,
-48,
88,
2,
32,
-66,
-103,
116,
64,
-121,
126,
-28,
-99,
28,
44,
5,
-113,
-42,
-79,
-81,
120,
-104,
27,
-45,
-85,
32,
117,
-55,
-14,
93,
71,
122,
-69,
-121,
-35
] |
The opinion of the court was delivered by
Parker, J.:
The defendant was charged with the crime of receiving stolen personal property, namely, automobile tires of a value in excess of $20. He was convicted of that offense and appeals.
The two questions presented for appellate review are whether the trial court (1) had jurisdiction to try the defendant for the crime charged in Neosho county, or (2) erred in admitting the evidence of a police officer, who testified relative to certain statements made to him by the defendant regarding his possession of a part of the stolen property.
Preliminary to consideration of the issues, it will be helpful to relate the incidents leading up to the transaction which resulted in the arrest of the defendant.
On the evening of the 31st day of July, 1943, one Albert Washington, a colored boy about eighteen years of age, purloined twelve automobile tires of the actual value of between $18 and $20 each from a garage in the city of Iola. He then- loaded his loot in a borrowed automobile and proceeded to the city of Chanute where he sold two tires to an unknown individual. Shortly after midnight he picked up another colored boy about his age, an acquaintance named Allen, and the two of them went to the home of the defendant. Washington, who seemed to be unacquainted with the defendant, remained in the car in front of the house while Allen went in to talk to him. The witnesses were not in accord on the subject, but it appears that after Allen had induced the father of the defendant to arouse him from sleep the’latter got out of bed and went out to the car where a conversation took place between him and Washington regarding the sale and disposal of the ten tires. At any rate, thereafter, Washington and Allen left the defendant’s home and proceeded to a point west of the Chanute airport, the exact location of which will be more fully described presently. They stopped at this point and after waiting a few minutes-the defendant drove up behind them. The tires were then transferred to defendant's automobile. Shortly thereafter Washington and the defendant, in the latter’s car, proceeded to a farmhouse which is conceded to have been located in Wilson county where seven of the tires were disposed of for the sum of $62. After the sale the two then drove back to the Smith home where the three remaining tires were left in the defendant’s possession and later found by the officers of Neosho county.
The defendant was arrested on August 1, 1943, and lodged in the Chanute city jail where he was held for two or three days and then removed to the county jail at Erie. No complaint was filed against him until August 4, 1943, when he was charged with the crime of receiving stolen property.
Now that the facts leading' up to the arrest of defendant have been established and about which there is no serious controversy, we direct our attention to controverted evidence, material to disposition of the issues here involved.
At the trial Washington, who had been convicted and sentenced for the part he had played in the tire transaction and was then serving his sentence in the Kansas State Industrial Reformatory at Hutchinson, was called as a witness. He was the only witness for the state on the question of locus of the offense, and testified the transfer of the tires from his automobile to the one driven by the defendant took place one and one-half blocks west of the stretch of the blacktop highway beginning at the northwest corner of the Chanute airport. It was admitted by counsel for defendant in open court that this point would be within the. limits of Neosho county. On this specific question the defense produced two witnesses, Allen and the defendant himself, each of whom stated the transfer took place farther west on the highway out of Chanute and at a point which would have been located in .Wilson county. In addition, in an attempt to weaken the testimony given by Washington, who prior to his conviction and sentence to the reformatory had testified at defendant’s preliminary examination, the defendant produced a transcript of the evidence given by this witness on that occasion which contained a statement that the transfer of tires w'as not made in Neosho county. However, so far as this statement is concerned, it should be stated that Washington, who was interrogated regarding it on cross-examination, denied any recollection of having given any such answer.
Notwithstanding the sharp conflict in the evidence with respect to the place of the transfer and delivery of the tires, and the apparent discrepancy in the testimony of Washington at the preliminary and at the trial on that question, the jury when the case was submitted to it for determination found the defendant guilty of receiving stolen tires in Neosho county.
Appellant points out the conflict in the evidence heretofore referred to, and, while frankly recognizing the doctrine that questions of fact supported by competent evidence will not be disturbed on appellate review when they have been passed upon by a jury, contends that under the circumstances of this case the rule should not be applied. He insists the trial court committed error in refusing to sustain his motion for a directed verdict of not guilty based upon the ground that the state had failed to prove or produce evidence establishing venue in Neosho county. The proposition advanced by appellant is interesting even though it cannot be upheld. There was definite, specific and competent testimony on the part of the witness Washington as to where the transfer of the tires was made, and the jury as the trier of the facts had a right to accept his statement as true notwithstanding it was refuted by the testimony .of other witnesses.
This court has long been committed to the rule it is the function of the jury, not that of the court of appellate review, to weigh the evidence or pass upon the credibility of witnesses, and .that where there is any substantial competent evidence to support it a verdict will not be disturbed on the ground of insufficiency of the evidence. (State v. Morrison, 115 Kan. 200, 222 Pac. 87; State v. Wood, 145 Kan. 730, 67 P. 2d 544; State v. Edwards, 151 Kan. 365, 99 P. 2d 836; State v. Klein, 154 Kan. 165, 117 P. 2d 575; State v. Thomas, 155 Kan. 374, 125 P. 2d 375, and State v. Dodd, 156 Kan. 52, 131 P. 2d 725.) Measured by the rule just announced, it must be conceded, in fact it cannot be denied, there was competent evidence from which the jury — after observing the conduct and demeanor of the witnesses who testified as to the locus of the offense — could quite properly determine the crime with which the appellant was charged was committed in Neosho county, even though its conclusion might not be in accord with evidence given by the greater number of witnesses on that question. Under such circumstances the rule cannot be disregarded. When applied, it is apparent the trial court committed no error in overruling the motion for a directed' verdict or in holding it had jurisdiction to try the appellant for the crime charged and sentence him for its commission. . ■
One other question remains for our consideration. During the trial A. R. Blunk was called as a witness for the state and in the course of his examination stated the appellant had sent for him on August 2,1943, and that he had had a conversation with him at that time; -Counsel for the state next asked the witness this question, “What did -he tell you?” The' appellant immediately objected to any testimony on the part of this witness with respect to conversations had with him or the repetition of any statements he might have made to him on the ground it was apparent the conversation inquired about took place prior to the time he was brought before a magistrate, and that any statements or admissions made by him prior to that time or prior to the time he had been given an opportunity to consult with counsel, irrespective of whether they were voluntary or involuntary, were inadmissible. The trial court overruled the objection and the witness made answer to the question propounded to him as follows:
“A. He said he wanted to come clean on this thing. I bought some tires and I have got them out at my house and told us where he had the tires hid; said they were out in the garden, back of the garage, along the line fence.”
- With respect to the evidence just referred to, it should be noted that at the moment the conversation described occurred the appellant had not been formally charged with the offense of receiving stolen property. Neither was he being held in jail under a warrant, nor had he been brought before an examining magistrate, or given the opportunity to furnish bond for his release from custody. In fact, the record disclosed no formal complaint was filed against him until August 4,1943.
At no time during the trial, either prior to or after the making of the objection to this testimony, was there any suggestion of claim on the part of appellant that statements made by him to witness Blunk were not freely made or that threats, duress or other improper means were responsible for his making them. Therefore under our decisions, as is frankly conceded by counsel for appellant, this evidence was properly admitted. (See State v. Hayes, 106 Kan. 253, 187 Pac. 675; State v. Dilgar, 111 Kan. 794, 208 Pac. 620; State v. Duvall, 140 Kan. 456, 36 P. 2d 958 and State v. Criger, 151 Kan. 176, 183, 98 P. 2d 133.)
Notwithstanding the rule announced in our decisions appellant directs our attention to the following federal cases; McNabb v. United States, 318 U. S. 332-349; 87 L. Ed. 819; Anderson v. United States, 318 U. S. 350-357, 87 L. Ed. 829; United States v. Haupt, 136 F. 2d 661, and United States v. Hoffman, 137 F. 2d 416. He candidly admits his objection to the evidence complained of is based on the doctrine announced therein, to the effect that in prosecutions in the federal courts and under the federal statutes even voluntary statements made by a defendant after arrest and before arraignment are not admissible against him. Without attempting to go into detail as to the reasoning behind the rule of evidence announced in the opinions in the preceding cases, it should be stated that our examination of them convinces us the construction placed upon them by appellant is entirely justifiable, if in fact it is not entirely correct.' However, there is a later decision, not referred to by appellant, which in our opinion modifies the principle announced in those cases and almost entirely destroys the effectiveness of appellant’s argument, even were we disposed — which we are not — to adopt in prosecutions instituted in our courts under our statute, rules of evidence promulgated by the federal courts in the course of the determination of a prosecution instituted under the federal statutes. The case we refer to is United States v. Mitchell, 322 U. S. 65, 88 L. Ed. (Adv. S.) 812, 64 S. Ct. 896, decided by the Supreme Court of the United States on April 24, 1944. The factual situation involved was not dissimilar to that of the case at bar. The defendant Mitchell was arrested on Monday evening and taken by police officers to the police station. Shortly’ after he arrived he admitted his guilt, told the officers about various items of stolen property to be found in his home and consented to their going there to recover the property.
With respect to questions raised by appellant’s contention we quote from the opinion of the foregoing case written by Mr. Justice Frankfurter, who it should be noted was also the author of the opinion in McNabb v. United States, supra, cited by appellant. In distinguishing the McNabb case it was stated:
“In the circumstances of the McNabb ease we found such an appropriate situation, in that the defendants were illegally detained under aggravating circumstances: one of them was subjected to unremitting questioning by half a dozen police officers for five or six hours and the other two for two days. We held that 'a conviction resting on evidence secured through such a flagrant disregard of the procedure which Congress has commanded cannot be allowed to stand without making the courts themselves accomplices in willful disobedience of law. Congress has not explicitly forbidden the use of evidence so procured Inexcusable detention for the purpose of illegally extracting evidence from an accused, and the successful extraction of such inculpatory statements by continuous questioning for many hours under psychological pressure, were the decisive features in the McNabb case which led us to rule that a conviction on such evidence could not stand.” (88 L. Ed. Adv. S. 813.)
In dealing with the rule of evidence applicable on appeals to the Supreme Court from courts of last resort of the various states, it was said:
“We are dealing with the admissibility of evidence in criminal trials in the federal courts. Review by this Court of state convictions presents a very different situation, confined as it is within very narrow limits. Our sole authority is to ascertain whether that which a state court permitted violated the basic safeguards .of the Fourteenth Amendment. Therefore, in cases coming from the state courts in matters of this sort, we are concerned solely with determining whether a confession is the result of torture, physical or psychological, and not the offspring of reasoned choice.” (p. 814.)
And in further distinguishing the McNabb case in reaching its conclusion in the one then under consideration the court held:
“But the foundations for application of the McNabb doctrine are here totally lacking. Unlike the situation in other countries, see, for instance, ¶¶ 25 and 26 of the Indian Evidence Act, 1872, under the prevailing American criminal procedure, as was pointed out in the McNabb case, ‘The mere fact that a confession was made while in the custody of the police does not render it inadmissible.’ 318 U. S. at 346. Under the circumstances of this case, the trial courts were quite right in admitting, for the juries’ judgment, the testimony relating to Mitchell’s oral confessions as well as the property recovered as a result of his consent to a search of his home. As the issues come before us the facts are not in dispute and are quickly told.” (p.; 814.)
See, also, the opinion, likewise the dissenting opinion, in the later case of Ashcraft et al. v. State of Tennessee, 322 U. S. 143, 64 S. Ct. 921, decided May 1, 1944, in which, although the court found a confession made by one of the defendants in the action was obtained by coercion and therefore admitted in violation of such defendant’s constitutional rights, the rule announced in United States v. Mitchell, supra, is nevertheless recognized and it is apparent that if such confession had been voluntarily obtained the propriety of its admission in evidence would have been conceded.
Summarizing, as heretofore indicated, we do not believe there is now any great diversity in the evidentiary rules applicable to the competency of confessions or admissions against interest in criminal prosecutions in federal and state courts. Even so, we adhere to our decisions holding they are admissible if freely made, without inducement or duress or brought about by some other improper means.
What we have heretofore said disposes of all contentions advanced by appellant in support of his position that he should be granted a new trial. Since it appears no error was committed by the trial court its judgment should be and is hereby affirmed. | [
-48,
-24,
-20,
12,
26,
-32,
42,
24,
67,
-15,
54,
83,
41,
78,
5,
121,
122,
31,
84,
121,
-59,
-74,
19,
-37,
-110,
-77,
123,
-51,
-65,
89,
36,
-44,
77,
48,
-118,
21,
66,
64,
-57,
-36,
-50,
0,
-86,
-30,
-39,
0,
44,
43,
22,
10,
-47,
15,
-25,
42,
30,
-61,
105,
44,
-53,
-71,
-16,
-14,
-86,
23,
-1,
22,
-125,
0,
-100,
5,
-40,
8,
-100,
49,
0,
-24,
115,
-94,
-122,
117,
79,
-101,
-116,
46,
98,
32,
61,
-25,
104,
-120,
46,
-1,
-115,
-89,
24,
80,
1,
37,
-98,
-99,
101,
83,
42,
-20,
-5,
5,
93,
104,
7,
-49,
-76,
-111,
15,
62,
-128,
27,
-5,
37,
38,
112,
-115,
-30,
93,
85,
113,
-101,
-122,
-79
] |
The opinion of the court was delivered by
Thiele, J.:
This was a proceeding in mandamus originally filed in the district court. From a judgment for plaintiff certain defendants appeal.
The motion for the writ, after setting forth the status of the parties, alleged that the board of county commissioners of Reno county, in purported accordance with G. S. 1935, 19-204, after its organization and on March 5, 1943, by resolution duly adopted, divided the county into three commissioner districts, each composed of certain territory, the first containing a population of 31,727, the second a population of 9,624 and the third a population of 12,997, and that the population of the county was 54,348; that it was the duty of the defendant board, under the above-mentioned statute, to redistrict Reno county and divide it into three commissioner districts as compact and equal as possible so that each district would have a population of approximately 18,116 persons, all as shown by the official census in the office of the county clerk of the county; that the defendant board had misconceived its official power or duty under the section of the statute and the purpose thereof would be defeated unless the county be redistricted; that the defendant board had failed, neglected and refused1 to comply with the statute; that plaintiff had no plain and adequate remedy and was entitled to a writ of mandamus directed to the defendant board, commanding it and the individual members thereof to redistrict the county into three commissioner districts as compact and equal in population as possible, and it asked for judgment accordingly.
An alternative writ was issued, and the board and Hill, its chairman, and Forker, a member, filed an answer containing a denial of all matters alleged in the motion not admitted by the answer. These admissions included composition of the board and the passage of the resolution on March 5, 1943. It was denied the board failed, neglected or refused to comply with the law or that it misconceived its official power, and it was alleged its action was bona fide and done after mature deliberation and consideration /‘and in accordance with said statute to the best judgment and discretion of said board, all as is more particularly set forth hereinafter.” Summarized, the remainder of the answer alleged that this is a representative government and the board conceived it its duty to construe the law and divide the county into districts in accordance with the will of the majority of the people of the county to achieve the best cdunty government; that such government deals at least two-thirds with the county outside the city of Hutchinson and does not affect the city in an appreciable degree; that economic lines should also be considered; that geographical representation as well as numerical representation has always been considered, and that all such matters must be considered in determining whether the districts are as compact and equal in population as possible, and all of said matters were considered; that the situation in Reno county was different from that found in an ordinary county in that after a political upheaval in 1922 the bounty was redistricted on substantially the same division lines as at present constituted; that said division was largely oh economic lines, with one-third of the assessed valuation in each district, and that said division continued with popular approval up to and including the organization of the defendant board on January 11,1943; that on that date the board was organized and continued the matter of redistricting to March 5, 1943,.to-ascertain whether the people of the county desired a change; that inquiry was made and that no sentiment for a change being evident-the, board took action on March 5, 1943; that on that date the first district had a population of 27,777 and an assessed value of less ,than $28,000,000; that the second district had a population of 10,105 and an assessed valuation of $30,502,312; and the third district had a population of 12,715 and a valuation of $29,941,556. (It may here be noted the first district included most of the city of Hutchinson, the second a small part of the city and three-fifths of the county area, and the third the remaining two-fifths of the county area); that said districts constituted a well-balanced division “taking into consideration area, population and assessed valuation, also the fact that rural areas mainly are affected by the county government and that the city of Hutchinson is largely a self-contained unit.” It was also alleged that due to war conditions the population was changing, and that in the board’s judgment and discretion it would be unfair and unwise to force a new division of the county, with large numbers of the population away and unable to express their views upon the matter; that on March 5, 1943, upon the motion to divide the county into commissioner districts, members Hill and Forker voted in favor of the resolution and defendant Hitchcock cast no vote; and that since no demand for change had been presented to the board by any number of citizens, and that to the best knowledge and belief of the board, and after diligent inquiry, the names of no more than ten men had been ascertained who were in favor of change in the districting, “that it would be unwise and unfair to change the present districts until after the war and then only after public opinion has been thoroughly sampled.” The board prayed the writ be denied.
The defendant- Hitchcock filed an answer that he was always in favor of a redistricting, and he joined in the prayer of plaintiff’s motion.
After the above pleadings had been filed, a stipulation was filed showing the population of the districts and the percentages of population for the years 1939 to 1943, inclusive. The population and percentages shown are as follows:
Dis- 1939 1940 1941 1942 1943 trict Pop. % Pop. % Pop. % Pop. % Pop. %
U....... 30316 55 29599 55 28982 54 27777 55 31727 58
2........ 10902 20 10698 20 10634 20 10105 20 9624 18
3........ 13987 25 13835 25 13688 26 12715 25 12998 24
Thereafter the plaintiff filed its motion asking for judgment on the pleadings and on the stipulation, and for the issuance of a peremptory writ of mandamus. Upon consideration thereof, the trial court allowed the motion and issued the peremptory writ, directing the defendant board within thirty days “to redistrict the county into three commissioner districts as compact and equal in population as possible” and make report of its action to the court, which reserved jurisdiction to see that its judgment was properly carried out. After waiting almost fifty-seven days, the defendants, the board of county commissioners and Hill and Forker, appealed to this court.
In this court it is contended first that the trial court was without authority to issue a peremptory writ upon a motion for judgment. The gist of appellant’s argument is that the only pleadings in proceedings in mandamus are the motion for the writ and the answer (G. S. 1935, 60-1709). That section further provides, however, that after issues joined, further proceedings may be had in the same manner as in a civil action. The preceding section (G. S. 1935, 60-1708) provides that if an answer be made, the same shall not conclude the plaintiff, who may avail himself of any valid objections to its sufficiency. We think the motion for judgment properly raised the question whether the allegations of the answer, taken as true, stated a defense, and that it was proper for the trial court to rule on the motion.
Appellants next direct our attention to certain of our decisions wherein it has' been held that mandamus is a discretionary writ (State v. Cloud County Comm’rs, 148 Kan. 626, 84 P. 2d 405), and that the plaintiff must show a clear legal right to have the thing done which is asked for and a clear legal duty of the party sought to be coerced to do the thing he is called upon to do (Burke v. State Board of Canvassers, 152 Kan. 826, 107 P. 2d 773), and contends, in effect, that the board of county commissioners have a discretion to exercise winch ought not be controlled in the absence of fraud, bad faith or gross impropriety.
For our purposes, the controlling statute, G. S. 1935, 19-204, reads as follows:
“The board of county commissioners shall, on the day of the organization of the board or as soon thereafter as may be possible, meet and divide the county into three commissioner districts, as compact and equal in population as possible, and number them respectively 1, 2, and 3, and subject to alteration at least once every three years . . .”
' Appellants direct our attention to decisions from other states having statutes similar to ours, but we think the issue is determined by our own decisions, and shall not review the decisions of other states.
In State, ex rel., v. Osage County, 112 Kan. 256, 210 Pac. 619, a redistricting order was attacked on the ground the districts were not as nearly compact and equal in population as possible. The districts created contained substantially equal population, but it was contended they were not compact, and that the lines of the districts were arbitrary. In the course of the opinion it was stated the board had a large measure of discretion, and for plaintiff to recover he must sustain the burden of showing an abuse of that discretion. It was held that not every departure from equality and number of inhabitants in a district ought to be subject to review by the courts, but that there must be a grave, palpable and unreasonable deviation from the standard fixed by the statute, and sufficient to convince a fair man that a wholly unnecessary inequality had been intentionally provided, and it was further held that there was no reason why a city may not be divided so that one part might be in one district, and another part in another district. Under the showing made in that case, a writ of mandamus to compel a redistricting was denied.
In State, ex rel., v. Labette County, 114 Kan. 726, 220 Pac. 275 the plaintiff sought to compel a redistricting. The holding of this court sufficiently shows the facts. It was held:
“Where a county has not been redistricted into commissioner districts for fourteen years, and where the population of one of the districts has increased so that it contains a majority of the entire population, of the county, it is the duty of the county commissioners to redistrict the county so that the districts will be ‘as compact and equal in population as possible.’
“Under the circumstances stated in paragraph 1, the county attorney is authorized to use the name of the state in legal proceedings in this court to enforce the performance of a public duty by the county commissioners of his county.
“Where a duty rests upon a board of county commissioners that duty may be enforced by mandamus and may not be evaded on the ground that the commissioners have a discretion to act.” (Syl. ¶¶ 1, 2, 3.)
In State, ex rel., v. Montgomery County Comm’rs, 125 Kan. 379, 264 Pac. 84, it appeared that according to the census of 1927 the county had a population of 57,438 and was divided into three commissioner districts of unequal population. One commissioner sought a redistricting and on July 5, 1927, tbe other two made an order fixing districts of population of 9,487, 19,118 and 28,825. Proceed- • ings for a writ of mandamus were instituted in this court to compel a redistricting. The defendants contended the population figures were inaccurate. In disposing of the cause this court held:
“In an action to compel a board of county commissioners to redistrict the county into three commissioner districts, as compact and equal in population as possible, it is held that under the governing facts in the record there is palpable disparity of population in the existing districts, and that under the requirements of the statute the county should be redistricted.
“So far as population is concerned such redistricting should be done on the basis of the last official census of the county, notwithstanding the claim of the commissioners that there are errors in that census.
“The fact that an apportionment of a county on the basis of population may not be practical without placing parts of a city in more than one district, will not prevent such a division if the boundary lines of the districts do not divide.city wards nor interfere with voting precincts.” (Syl. ¶¶ 1, 2, 3.)
The writ prayed for was allowed.
It will be noted that the statute fixes as a standard only that the districts shall be “as compact and equal in population as possible.” Under that standard, and the interpretation placed upon it in the foregoing decisions, we examine the answer of the appellants. Although not in the order alleged in the answer, it appears there has been no substantial change in the commissioner districts of Reno county since 1922 and that since at least 1939 one district has had within its limits more than one-half of the population of the county; that the board has conceived it to be its duty to construe the law and divide the county into districts in accordance with the will of the majority of the people of the county; that economic lines and geographical as well as numerical representation have been considered ; that the situation in Reno county is different from an ordinary county; that as now constituted the districts have substantially equal assessed property valuation; that taking into consideration area, population, assessed value and the fact that rural areas mainly are affected by county government and the city of Hutchinson is not, the districts are a well-balanced division. It is further stated there has been no demand by any considerable number of citizens for any change.
It- is clear from the answer that the board of county commissioners has an erroneous view of the requirements of the statute and its duties under it, and that it has subordinated the statutory require ment that the districts be “as compact and equal in population as possible” to economic considerations, assessed valuation, a conception of what the majority of people favored, the claimed fact Reno county was different from other counties, and that the city of Hutchinson was not so much affected by the county government as the rural areas of the county. If the board of county commissioners may take into consideration all such matters, another county may use the same considerations, as well as others of its choosing, and thus each board will be at liberty to expand the statutory requirements and justify its act by the simple statement that what it did was done in good faith and in the exercise of discretion. We think that may not be done. The board must follow the standard fixed by the statute, and its exercise of discretion and good faith must be limited to that standard and not to some other which the legislature has not fixed.
We have not overlooked appellants’ contentions the district must be “compact.” That is one requirement of the statute, but it needs no discussion here for there is no claim the districts as now existing are not “compact.”
We note also appellants’ question as to what population figures are to be used if a redistricting is made. The last official census is for 1943 and should be used. See State, ex rel., v. Montgomery County Comm’rs, supra, syl. ¶ 2.
In view of the position taken by the defendant Hitchcock, no costs should be assessed against him.
The judgment of the trial court is affirmed and it is ordered that the mandate of this court evidencing such affirmance be sent to the trial court forthwith. | [
113,
-20,
116,
56,
42,
96,
18,
-120,
88,
-71,
39,
115,
-19,
-102,
16,
61,
107,
63,
-44,
123,
-59,
-78,
87,
99,
-65,
-13,
-67,
-43,
-69,
-20,
-12,
-36,
76,
49,
-118,
-43,
70,
-96,
-127,
20,
-122,
-122,
-119,
-61,
72,
0,
60,
113,
114,
-117,
117,
111,
-29,
44,
30,
-61,
41,
44,
-39,
-68,
80,
-5,
-118,
-99,
93,
0,
33,
2,
-102,
-125,
-8,
62,
-104,
57,
-120,
-24,
83,
-90,
-126,
117,
75,
-101,
44,
38,
98,
1,
125,
-49,
-16,
-116,
12,
59,
-115,
-89,
-109,
24,
42,
67,
-106,
-103,
117,
-14,
14,
126,
109,
-123,
127,
108,
-116,
-118,
-74,
-77,
-49,
100,
-120,
3,
67,
37,
48,
112,
-119,
-14,
126,
71,
51,
27,
-34,
-104
] |
The opinion of the court was delivered by
Thiele, J.;
This was an action to recover wages, liquidated damages and attorney’s fees for’* overtime work under the Fair Labor Standards act of 1938. (52 Stat. 1060, 29 U. S. C. A. 201.)
Briefly stated it was alleged in the petition that plaintiff, during a 36 weeks’ period had worked 16 hours each week in excess of the 44-hour week prescribed by the act, or a total of 576 hours; that his rate of pay was 87% cents per hour. He sought to recover $750 for overtime, $750 for liquidated damages and $250 for attorney’s fees. By his answer defendant admitted the employment and that the parties were under the act, denied generally 'and alleged that defendant had paid plaintiff and owed him nothing.
At the conclusion of a trial the court made findings of fact which are summarized and quoted as follows:
1. Defendant was subject to the provisions of the Fair Labor Standards Act.
2. Plaintiff was employed by defendant from November 24,1928, to July 1, 1939. The above act fixed a 44-hour work week. Plaintiff was under the act and entitled to recover as wages a sum equal to one and one-half for all overtime above the 44-hour week.
3. “The Court finds that the capacity which the plaintiff served said defendant was that of a skilled laborer and foreman; that the plaintiff was entitled to receive for his labor the sum of 87% cents overtime rate, per -hour, for his said labor, which sum was a reasonable wage, in consideration with the type and character of the services which plaintiff rendered to the defendant.”
4. There was no contract between plaintiff and defendant fixing number of maximum hours per week. Regular work week was 44 hours.
5. “The Court finds that Plaintiff worked 128 hours overtime, for which he has not received payment, and is entitled to pay at the rate of $1.31% per hour, making a total of $178.”
6. “The Plaintiff is entitled to judgment for the sum of $100 in full of his liquidated damages.”
Consistent with these findings the trial court rendered judgment in favor of plaintiff for $278 and costs.
Defendant filed a motion for a new trial. At a later term the trial court denied this motion but changed the amount allowed for overtime wages by correcting a mathematical error in the original computation, by increasing the amount .of liquidated damages and by allowing attorney’s fees.
The defendant appeals, specifying 'error in several particulars. We shall confine this opinion to the specification that the findings of fact and the judgment are unsupported by and are contrary to the evidence.
As the complaint is directed to findings 3 and 5 we may limit our review of the evidence.
Plaintiff testified that he worked as foreman at defendant’s gravel pit from 1930 until he quit July 1, 1939; that he had been paid 87% cents per hour until in 1933 or 1934 when he was paid at the rate of $3.75 per day when the plant was idle and $7.50 per day when it was prodiicing; that when the wage and hour law became effective he went back to work at 87% cents per hour; that this was agreed on but he never got it. (We may observe the present action is not to recover regular wages not paid, but only for overtime.) Plaintiff testified the regular work week was 44 hours, but he worked ten hours per day or more, six days a week and some Sundays; that he kept a record, but claimed only on the basis of ten hours per day for a six-day week. His computation was that he had worked a total of 2,160 hours and that of that total 576 hours were overtime. He further testified that during the time in question he had received and cashed pay checks given him on the basis of $3.75 per day when the plant was idle and $7.50 per day when it was producing. For a more complete understanding, it may be said that defendant’s testimony was that plaintiff was hired and worked on the basis on which he was paid and there was no contract or agreement he was to work by the hour at 87% cents per hour.
When finding 3 is carefully read it will be noted that the trial court found plaintiff was entitled to receive the sum of 87% cents overtime rate per hour for his services. As we do not predicate our decision on this phase, we only note, without discussion, that 87% cents was not any overtime rate, it was the amount plaintiff claimed was the agreed rate for regular service; the overtime rate would have been one and one-half times greater, as indicated in finding 2 and as used in computing the amount found in finding 5. A much more serious difficulty with finding 3 is that there is no finding that plaintiff was employed at the rate of 87% cents per hour. The finding is no more than that plaintiff was a skilled laborer and that 87% cents overtime rate per hour was a reasonable wage considering the type and character of the services. That finding did not meet the issue presented. The suit was not as on quantum meruit. Under the evidence presented, plaintiff was employed either at a contract rate per hour, as he contended, or at a contract daily wage, as defendant contended. The finding as made is not supported by the evidence.
Neither does finding 5, that the plaintiff worked 128 hours overtime, find support in the evidence. Given full credence, plaintiff’s testimony showed that during the entire thirty-six weeks involved he worked at least ten hours per day, six days a week, and if the work week was 44 hours, he put in 16 hours of overtime per week, or a total of 576 hours of overtime. Although defendant testified that plaintiff worked by the day and had no fixed hours, there was nothing in his testimony from which it could be inferred that plaintiff put in pnly 128 hours of overtime or any other amount less than 576 hours during the period involved.
Some contention is also made about the sufficiency of the proof to meet requirements made by courts from other jurisdictions in applying the Fair Labor Standards Act to cases arising under it, as well as that the trial court erred in altering its judgment and rendering á new and different judgment after the term had expired, but in view of our conclusions it is not necessary that we notice such contentions.
We are of opinion the trial court erred in not granting a new trial for the reason the findings of fact and judgment were not supported by and were contrary to the evidence. The judgment of the trial court is reversed. | [
-48,
-8,
124,
-83,
-120,
96,
42,
-102,
89,
-63,
-89,
115,
-21,
-49,
0,
113,
-13,
105,
80,
106,
-49,
-93,
23,
75,
-69,
-109,
-15,
-59,
-71,
-21,
-12,
-43,
68,
48,
66,
-108,
102,
-64,
-63,
54,
74,
4,
-87,
-27,
-7,
4,
52,
24,
100,
11,
49,
-98,
-5,
42,
29,
75,
76,
61,
123,
35,
80,
-15,
-126,
13,
125,
17,
-111,
39,
30,
-90,
-40,
14,
-116,
61,
-127,
-55,
114,
-66,
-122,
117,
99,
-71,
8,
98,
99,
50,
89,
102,
-8,
-71,
38,
-74,
-115,
-89,
-79,
88,
11,
-116,
-76,
-100,
122,
16,
6,
126,
-8,
21,
30,
100,
75,
-113,
-44,
-13,
-115,
100,
-68,
-117,
-53,
-89,
21,
101,
-97,
-90,
92,
6,
123,
-101,
-113,
-115
] |
The opinion of the court was delivered by
Harvey, J.:
This proceeding originated in the probate court of Shawnee county upon the petition of James Malone for the probate of the will of John J. Charles, deceased. A copy of the instrument attached is in the form of the joint and reciprocal will of John J. Charles and his wife, Minnie Charles, and purports to have been executed October 1,1941. The petition alleged that Minnie Charles died November 4, 1942, and that John J. Charles died December 10 j 1942. It also alleged that M. A. Hefner was named in the will as executor thereof, but that he declined to accept the appointment, and contained other pertinent allegations. A written defense to the petition upon the ground it was not executed as required by law was filed by Michael Charles, brother of John J. Charles. After waivers of notice and a hearing the probate court made an order admitting the will to probate and appointing James Malone as administrator wi'th the will annexed. Michael Charles appealed from this order to the district court, where there was a trial de novo, in which evidence was introduced on behalf of the petitioner and also on behalf of the defendant. On July 15, 1943, the court found “from all of said testimony, that the said will was not properly witnessed arid attested” and that it was not entitled to probate. Judgment was rendered accordingly. On August 27, 1943, the petitioner served and filed a notice of appeal from the judgment “made and entered herein on the 80th day of June, 1943, and more specifically from the ruling that the will of John J. Charles, deceased, was not properly witnessed and attested.” (Italics ours.) In the meantime, and on July 19, 1943, the petitioner had filed a motion for a new trial, which was not considered and passed upon by the court until after-wards, and on the 9th day of October, 1943, when it was overruled. There has been no appeal from the order overruling the motion for a new trial.
In this court appellant first contends that the court erred in sustaining the demurrer of contestant to the evidence of the proponent. There are two answers to this contention: (a) The court made no such ruling. What happened was, upon the trial in the district court the proponent made a sketchy presentation of the evidence, obviously not bringing out some pertinent facts, and rested. Counsel for defendant moved for judgment, but after some colloquy asked the court to delay ruling upon it until other evidence was offered. The proponent then reopened the case and introduced additional material evidence. The motion for judgment was not renewed and it was never again referred to in the trial. The testimony of the two subscribing witnesses and other witnesses was received. The judgment rendered by the court was upon the consideration of “all of said testimony”; hence, there is no fair basis in the record for the argument of this point, (b) If there was any error of the trial court in this respect it was a trial error which could be reached only by a motion for a new trial, and from the ruling of the court denying the motion there has been no appeal.
Appellant next contends that the court- erred “in ruling that the will of John J. Charles was not properly attested and subscribed.” The pertinent portion of the statute (G. S'. 1941 Supp. 59-606) reads:
“Every will, . . . shall be in writing, and signed at the end thereof by the party making the same, . . . and shall be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe or heard him acknowledge the same.”
Without detailing the evidence it is sufficient to point out that the evidence of the two subscribing witnesses, and such other testimony as bore upon the fact, made it clear that neither of them saw John J. Charles sign the will and neither of them at any time talked to John J. Charles about it. If he signed the will, and there is testimony tending to show that he had signed the will, he never did acknowledge his signature to either of the attesting witnesses, or to anyone else, so far as the record discloses. One of the attesting witnesses saw Mrs. Charles sign the will and was requested by Mrs. Charles to sign as a witness. Because this attesting witness in giving her testimony at the trial used the word "they” on one or two occasions appellant in his brief argues that this witness saw both John J. Charles and his wife sign the will, and that she signed it at their request. But when this witness was asked to specify particularly whether or not she saw John J. Charles sign it, or whether he acknowledged his signature to her, her answer was definitely in the negative, and further, that she never talked with John J. Charles about the will or heard him say anything about it. So appellant seeks to get more out of the testimony of this witness than the record warrants. With respect to the other attesting witness, appellant makes no mention of his testimony, nor does appellant contend that the witness saw either of the testators sign the will, or. heard either of them acknowledge their signatures thereon. Indeed, the evidence disclosed that he had no conversation with either of them at the time he signed as a witness, that he had not seen either of them for such a long time prior thereto that he declined to estimate the time, and that he had not seen them since. In view of this record appellant’s contention that the court erred in holding the instrument purporting to be the will of John J. Charles was not properly attested and subscribed is puerile in the extreme.
Lastly, appellant contends the court erred in ruling that the will of John J. Charles was not entitled to probate. This is a result which necessarily follows if the court was correct in its interpretation of the evidence. Under this head appellant argues the relative weight which the court should have given to the testimony of the subscribing witnesses on the one hand as compared with their admitted signatures on the other. The question raised by the testimony was one of fact. (Rice v. Monroe, 108 Kan. 526, 196 Pac. 756.) It is not contended here the trial court did not have ample, substantial, competent evidence to support its judgment. This presents no question of law for our decision.
We have no occasion here to go extensively into the question of under what circumstances witnesses to a will may give testimony as to facts tending to show that the will was not executed in harmony with the statutory requirements.
We find no -error in the record. The judgment of the court below is affirmed: | [
49,
108,
-35,
28,
58,
-32,
10,
-102,
-30,
66,
-12,
83,
-19,
-58,
1,
111,
112,
61,
16,
123,
-41,
-77,
87,
-96,
-14,
-13,
-35,
93,
-80,
-19,
-10,
126,
76,
32,
42,
-43,
-58,
70,
-123,
80,
-122,
105,
73,
100,
-45,
48,
52,
121,
22,
11,
81,
63,
-13,
42,
29,
-30,
-55,
44,
-37,
-68,
88,
-80,
-113,
-121,
78,
18,
-79,
36,
-124,
-123,
88,
58,
0,
53,
2,
-72,
113,
-74,
6,
-44,
41,
-87,
12,
118,
67,
49,
-115,
-17,
-16,
-102,
7,
-85,
-103,
-89,
-110,
73,
-56,
37,
-74,
-99,
105,
112,
10,
-4,
-26,
4,
28,
40,
5,
-113,
-10,
-79,
35,
60,
-100,
10,
-21,
-93,
112,
113,
-55,
-38,
93,
99,
49,
59,
-57,
-78
] |
The opinion of the court was delivered by
Hoch, J.:
This litigation arose out of a disagreement between an incorporated church organization and a Ladies Aid association over ownership and use of a church building. In an action in injunction, in which the church was plaintiff and the Ladies Aid the principal defendant, the trial court held, inter alia, that the plaintiff was the owner and entitled to exclusive possession and use, subject to a lien of the defendant for certain payments made on a church debt and mortgage. The Ladies Aid appeals.
An organization known as the Williamstown Ladies Aid was organized at Williamstown, Kan., in 1916, there being at that time no church building in the town. In 1919 the Williamstown Baptist Church — hereinafter called the church — was organized and incorporated and erected a church building. Thereafter the Ladies Aid held its meetings in the church building. Apparently the church and the Ladies Aid occupied and used the building jointly for many years under arrangements mutually satisfactory.
In recent years disagreement developed between the two organizations and in July, 1941, the church, through its trustees, brought an action to enjoin the Ladies Aid from possession and from any further use and occupancy of the building. Briefly stated, the allegations of the petition were that the plaintiff was a religious body affiliated with the'Kansas Baptist Convention and duly incorporated under Kansas law; that it was the owner of the building which had been erected about twenty years prior thereto for its use as a church organization; that about two years prior to the filing of the petition the defendant had wrongfully and unlawfully, and without any authorization from the plaintiff, entered into possession and occupancy of the building, had continued in such unlawful possession and use and had refused, after request and demand, to surrender possession of the building and equipment, and that by reason thereof the plaintiff was suffering irreparable loss for which it had no adequate remedy at law. The prayer was for a permanent injunction against the Ladies Aid and its individual members, enjoining them from depriving the plaintiff of possession, control, and occupancy, from disturbing and molesting the plaintiff, “its officers, members and congregation at their worship,” and directing the defendants to deliver possession of the building and equipment to the plaintiff. Attached to the petition were verified copies of a mortgage on the property in the amount of one thousand dollars executed by the plaintiff to the Kansas Baptist Convention, together with a partial release of the mortgage, affecting a lot adjoining the building. On motion of the defendant the Kansas Baptist Convention was made an additional party defendant and in March, 1942, filed its answer in which it disclaimed any title or interest in the property and recited that “over a period of several years, this mortgage was paid by the Williamstown Ladies Aid and payment was accepted by the Kansas Baptist Convention as made for the Williamstown Baptist Church,” and that final payment upon the mortgage in the sum of $125 wias made on or about April 14, 1941. It denied, in the answer, that it had promised to assign the mortgage to the Ladies Aid, and stated that a release of the mortgage was ready for delivery as ordered by the court.
On April 15, 1942, the Ladies Aid filed a lengthy amended answer and cross petition, the allegations of which may be summarized as follows: The church delivered its note and mortgage to the Kansas Baptist Convention on or about November 22, 1919; the partial release of the mortgage was executed on September 10, 1926; the building is the only church building in the town; the defendant has held its regular meetings there since the building was erected in 1919; on January 15, 1924, the church became in default in its payments on the note and mortgage and that—
“A member or members of the . . . Board of Trustees, whose name or names is not now known to the defendant, the Williamstown Ladies’ Aid, approached the Williamstown Ladies’ Aid to request financial aid in meeting the mortgage payments; that (the said trustee) did then represent . . . that in return for such financial aid the Williamstown Ladies’ Aid would acquire a vested interest in the said mortgaged property to the extent of all payments made by the said Williamstown Ladies’ Aid on the mortgage or for its payments; and that . . . the said Williamstown Ladies’ Aid did pay to the treasurer of the said Williamstown Baptist Church the sum of one hundred and fifty and no/100 Dollars ($150.00) for the purpose of applying the same to the payment of the said mortgage, and that in pursuance of the aforementioned agreement, the said Treasurer of the Corporation . . . did . . . pay the said sum to the Kansas Baptist Convention to be applied to the mortgage debt.”
Following this the answer set out further payments alleged to have been made by the defendant in 1928, in the years 1930 to 1938 inclusive, and final payment of $125 on April 14, 1941, amounting in all to $969.26 on principal and interest. The answer further alleged that in making these payments on the mortgage debt the defendants—
“Relied not only on past representations of the state and local church entities as above set forth, nor on instant representations, oral and otherwise, by the local trustees . . . but also on specific offers made by the Kansas Baptist Convention through its Executive Secretary . . . and that at the time of payment the said George T. Wise did repeatedly assure the representatives of the Williamstown Ladies Aid that the said mortgage would be assigned and surrendered to the Williamstown Ladies’ Aid upon payment of the sum herein-above last written ... on the representations and the behavior of . . . the Williamstown Baptist Church, a corporation, and the representations of the Kansas Baptist Convention.”
The answer further alleged that—
“On July 12, A.D. 1932, the then duly elected, qualified and acting trustees of the . . . Church, or some of their number .' . . informed the Ladies’ Aid that the Williamstown Baptist Church, a corporation, was no longer able to operate actively, and that inasmuch as the Williapastown Ladies’ Aid had acquired, and was then acquiring, an interest in the church property by means of making payments on the Kansas Baptist Convention mortgage, this defendant, the Ladies’ Aid, was at that time requested to take full possession of the church building, and did so by means of .acceptance of the keys from the . . . treasurer of the church . . .; that from that date up to and including the present the defendant, the Williamstown Ladies’ Aid, has had full and exclusive possession of the said church; that it has been the only functioning religious organization in the community; that it has exercised every possible means to obtain the benefits of religious services to the community of Williamstown; that through and by virtue of its efforts, ministers of many faiths, including Mrs. Ruth Henley, a Pentecostal minister, have preached and held services in the church; that the interest of the Williamstown Ladies’ Aid in the church building has been open and notorious during all of the times that the payments above set forth have been made up to and including the present time; that the community, the Kansas Baptist Convention, and the Williamstown Baptist Church . . . have not only made the representations hereinabove described with regard to the acquisition of a property interest by the Williamstown Ladies’ Aid, and with regard to its right to receive assignment and surrender of the mortgage, but indeed have openly sought, solicited and enjoyed, and have acquiesced by open and constant means, in the continued possession of the Williamstown Ladies’ Aid, and in its open and frequent exercise of the concomitants of a possessory interest, including the use of the building and the granting of permission to others to use it, the making of payments as aforesaid, and also including the making of, paying for and furnishing of many supplies, improvements and repairs.”
It also appears, from the brief of appellant and otherwise in the record that the answer also alleged substantial payments by the defendant for maintenance, insurance and repairs over the years involved. However, the abstract of the answer does not recite the allegations as to such payments, and as far as the record here discloses the prayer of the answer and cross petition made no reference to them and asked no relief concerning them. The prayer of the answer and cross petition was—
“That it (defendant) be subrogated to all rights and relief that have accrued in favor of the original mortgagee, the Kansas Baptist Convention; that it recover judgment against the plaintiff in the amount of all sums paid by the said defendant on the said mortgage, together with interest thereon at the rate of five percent per annum from the final date of payment until paid; that it be decreed to be lawfully in possession of the premises as a mortgagee in possession and otherwise as hereinabove set forth; that the above described mortgage be hereby foreclosed by the decree of this Honorable Court, and that it have all other and further relief to which the court may deem it entitled in the premises.”
The reply, in addition to general denial, specifically denied that the plaintiff at any time agreed that the defendant should have a vested interest in the property in consideration of payments made upon the mortgage debt, or that the Kansas Baptist Convention had made any promises to assign the mortgage, upon payment, and alleged that such an agreement, if made by the Executive Secretary of the Convention, was not binding because of the lack of authority to make it, and that if made it would be void under the statute of frauds, not being in writing.
It was further alleged in the reply that the Ladies’ Aid was an auxiliary of the church and that payments made by it were made on behalf of the church as voluntary contributions.
The case was tried on November 19, 1942. On June 29, 1943, the court filed seventeen numbered findings of fact and seven conclusions of law. On July 10, 1943, the defendant filed motions to strike and substitute other findings of fact and conclusions of law. These and other motions not now material were overruled on the same day.
Upon its own motion the court set aside three of its original conclusions of law and filed “additional and supplemental conclusions of law.” To the extent necessary these matters will presently be stated more fully. Motion for new trial was made and overruled.
Attention is called at this point to some confusion in the record. Two copies of what purports to be the final judgment are shown— one in the appellee’s counter abstract apparently entered on July 10, 1943, and one in appellants’ abstract, said to have been entered on July 23, 1943. The two are not identical. One discrepancy is that one copy contains a paragraph directing release of the mortgage and its delivery to plaintiff, while the other one does not. Another discrepancy is that one copy shows a number of additional paragraphs dealing with important matters not shown in the other copy. In addition to that, we note among the recitals shown in both copies of final judgment the following: “and the court on its own motion modifies its findings of fact and conclusions of law to conform to the judgment herein rendered and the orders herein made.” This certainly does not lessen the confusion. Just what modifications are thus intended is not stated.
We shall assume that the court’s findings of fact filed on June 29, 1943, its conclusions of law numbered one to five inclusive, filed on that date, and its additional and supplemental conclusions of law filed on July 10, 1943, constitute the basis for its judgment entered on July 23, 1943, as shown in the abstract.
The findings, conclusions and judgment are rather extensive and we shall not quote them verbatim except where that appears necessary. The findings designated “findings of fact” may be summarized as follows:
1. The Williamstown Baptist church is a duly organized and existing corporation, under a charter issued and filed in 1919. This is not controverted.
2. The Williamstown Ladies’ Aid is an unincorporated association organized in 1916 for the purpose stated in its constitution, “to work in the community in unity for the interest of the community and local church, to keep in our said community a fit building for social, religious, spiritual purposes and for funerals and any needy cause it might be necessary for the good of our community.” Any woman of the community interested in the work of the association could become a member. At all times a majority of the members have been affiliated with the Baptist church, but many have joined who were not Baptists in some instances who were not members of any church.
3. The church holds legal title to the real estate, including the building.
4. The building was erected by the Williamstown Baptist church in 1919 and dedicated to religious and other benevolent purposes, under the control and direction of the church, through its regularly chosen officers.
5. On November 22, 1919, the church gave its note and mortgage for $1,000 to the Kansas Baptist Convention.
6. A partial release of the mortgage was made in 1926 covering part of a lot adjacent to the church building which had been sold.
7. The Ladies’ Aid has at all times since the building was erected held its meetings there and has had “unlimited access to said building with the consent of the officers and trustees” of the church.
8. In 1936 the church “being without a pastor, became dormant and did not hold church services for a period of approximately 'five years.” “However, no action was taken to have the church declared extinct” and the three persons named in the petition were duly elected trustees in conformity with the rules of the Baptist denomination.
9. In 1940 the Ladies’ Aid gave Mrs. Ruth Henley (named as one of the defendants) permission to use the building for holding religious services under the name of Assembly of God, and such services have since been held, all without consulting the officers or trustees of the church, and without their consent.
10. During the period (about twenty-four years) beginning in 1919 the Ladies’ Aid has expended for heat, light, repairs, improvements, furnishings, etc., for the church a total sum of $622.84.
11. The Ladies’ Aid has made payments, beginning in 1924, upon the note and mortgage in the total sum of $969.26.
12. All money expended by the Ladies’ Aid for maintenance, repairs, improvements, etc., “was voluntarily spent by said organization in consideration of their being permitted to use said building and in keeping with the obj ect expressed in their constitution” — including the object of keeping “in said community a fit building for social, religious spiritual purposes, and for funerals.”
13. The payments on the note and mortgage by the Ladies’ Aid “were voluntarily made by said Ladies’ Aid up to the year 1936, when the Williamstown Baptist Church ceased to hold church services and the court further finds that payments made thereafter by the Williamstown Ladies’ Aid to the Kansas Baptist Convention in the sum of $226.16 were made with the understanding and belief on the part of the officers of the Williamstown Ladies’ Aid that said mortgage would be assigned to them upon its payment in full and that the said Williamstown Ladies’ Aid are entitled to an equitable assignment of said mortgage for the payment to them by the Williamstown Baptist Church of the sum of $226.16.”
14. The payments by the Ladies’ Aid, both for maintenance, repairs, etc., and on the note and mortgage “were all made from money raised by voluntary contributions from individuals and organizations, and by other means of soliciting and acquiring funds from the public for religious and benevolent purposes in the usual and customary way of collecting such funds by churches and aid organizations.”
15. The title to the real estate, including the building, belongs to the church, not having been sold or otherwise disposed of in any manner provided by law for disposal of church property, but it is subject to an equitable lien of the Ladies’ Aid in the sum of $226.16.
The trial court’s conclusions of law may be summarized as follows:
1. The church is the “absolute owner of the real estate, the building, and equipment” subject only to an equitable lien of the Ladies’ Aid for $226.16.
2. The Ladies’ Aid has an equitable interest in the real estate in the sum of $226.16 by virtue of its payments on the note and mortgage after 1936, “such payments having been made with the understanding and belief that the mortgage would be assigned to them.”
3. The Ladies’ Aid is without authority to permit the organization known as the Assembly of God to use the building without the consent of the officers of the church.
4. The defendant, Mrs. Ruth Henley, and the Assembly of God “are hereby enjoined from using said building for any purpose without the consent of the officers and trustees of the Williamstown Baptist Church.” (As far as the record here discloses the journal entry of judgment contained no order based upon this “Conclusion of Law.”)
There were some other conclusions of law which were included and perhaps modified by the judgment now to be noted.
We need not repeat those findings of fact which were incorporated in the formal judgment, as entered. The orders, contained in the judgment, with which we are here concerned were as follows:
“5. That the defendants, and each of them be, and they hereby are ordered and commanded forthwith to place the plaintiff, its officers, trustees and directors in actual possession of the church building and real estate premises by vacating said building and premises themselves and delivering to said church trustees the keys to said church building.
“6. That the defendants, and each of them, and particularly the defendants, the Williamstown Ladies’ Aid Society be, and they and each of them are hereby permanently and perpetually restrained and enjoined from possessing, using or occupying said church building or real estate premises, except by permission and under the direction of the plaintiff, the Williamstown Baptist Church, a coiporation, its officers, trustees and directors. (Italics supplied.)
“7. That the defendant, the Williamstown Ladies’ Aid Society, have and recover of and from the plaintiff, the Williamstown Baptist Church, a corporation, the sum of $226.16.
“8. That said judgment be, and it is hereby declared to be an equitable mortgage lien against the above described real estate. That said mortgage be, and the same is hereby foreclosed. That if said judgment, together with interest at the rate of 6% per annum from this date, be not paid within thirty days from the date hereof, an order of sale of said real estate shall be issued by the Clerk of the Court upon the praecipe of said defendant or its attorneys of record, and said real estate sold as provided by law in sales of execution, and the proceeds thereof applied in payment of said judgment and interest and the costs of said sale, the redemption period thereof by the plaintiff being hereby fixed at eighteen months from the date of said sale.
“8A. That upon payment to the defendant, the Williamstown Ladies' Aid Society, of the judgment herein rendered, the defendant, the Kansas Baptist Convention, a corporation, its officers and directors, are hereby ordered to release said mortgage and deliver the same to the plaintiff and that the defendant, the Kansas Baptist Convention, a corporation, recover its costs.
“9. That the plaintiff, and the defendant, the Williamstown Ladies’ Aid Society, be and they are hereby adjudged to pay the costs of this action in equal amounts, each of said parties to pay one-half of said costs.”
And from the additional judgment (heretofore referred to) the following:
“2. That the defendant, the Williamstown Ladies’ Aid, its officers and agents, be, and they are hereby restrained and enjoined, perpetually and permanently, from removing or- attempting to remove any articles of personal property from said church building or premises which constitutes any part of the equipment of said church building or premises.
“3. That the defendant, the Williamstown Ladies Aid Society, its officers and agents, be, and they are hereby commanded forthwith to return to and replace in said church building, and on said church premises the following described articles of personal property constituting a part of the equipment of said church building and premises, previously removed, or caused to be removed therefrom by said defendant, its officers and agents, to wit: (here follows list of articles, piano, etc.).
“That the defendant the Williamstown Ladies Aid Society be permitted to keep all articles of personal property owned by its members or by other individuals, or owned by the Williamstown Ladies Aid and constituting equipment of the Aid as distinquished from equipment of the church building and premises, specifically including the following: (list of articles follows).
“4. That the defendant, the Williamstown Ladies’ Aid Society, its officer's and agents, be, and they are hereby restrained and enjoined from, selling or offering for sale the real estate involved in this action hereinbefore ordered sold and the proceeds thereof applied in payment of the judgment hereinbefore rendered in favor of said defendant and from collecting, or taking any steps to collect the amount of said judgment until said articles of personal property shall have been returned to said church building and premises, and this order otherwise fully complied with.” (Italics supplied.)
Before proceeding to the merits we note appellant’s contention that the action was in fact one in law and not in equity; that the cause of action, if any, was simply for possession, under our ejectment statute (G. S. 1935, 60-2001) and there being an adequate remedy at law injunctive relief was not available. It is unnecessary to discuss this contention at any length. We think that under a fair interpretation of the petition a case was stated for much more than mere possession. Furthermore, the appellant here raises the question for the first time, as far as the submitted record discloses. Neither by answer nor otherwise was the issue raised in the trial court. On the contrary, appellant not only treated the action as one sounding in equity on the part of the plaintiff, but in its own cross petition asked for equitable relief.
In approaching this review we are not unmindful of the fact that the trial court was dealing with a sort of controversy among the most perplexing — and unfortunate — which come for judicial settlement. It probably holds first place in that regard — unless, perchance, a school district “row” be a close contender. Nor is this to intimate that the litigation might easily have been avoided nor that the parties were not privileged to maintain what they believed to be their legal rights in the premises.
Our first conclusion may well be stated at the start. The judgment of the trial court cannot stand. In the first place, the facts found by the court do not justify the judgment with reference to present right of possession. Under the findings the church had been without a pastor, had been “dormant,” and “did not hold church services for a period of approximately five years” prior to the trial. Under the findings the Ladies’ Aid had paid on the note and mortgage during that period the sum of $226.16, for which amount it was given an equitable lien upon the property and the lien ordered foreclosed, under conditions not necessary to note in this connection. Under the findings the Ladies’ Aid had full access to and full use of the building since its erection, with .the consent of the church, and it is perfectly clear that during the five-year period when the church was no longer functioning as an organization and prior to the instant controversy it was occupying and using the building and was in unquestioned possession. If, by virtue of the situation found by the court, it was entitled to an equitable lien it was plainly entitled to the rights of a mortgagee in possession. As such it was entitled to retain possession until the lien.was lifted by satisfaction of the mortgage debt. (41 C. J. 613, ¶ 581; 36 Am. Jur. 824; Stouffer v. Harlan, 68 Kan. 135, 74 Pac. 610; Mortgage Co. v. Gray, 68 Kan. 100, 74 Pac. 614; Bankers Mortgage Co. v. O’Donovan, 137 Kan. 309, 311-312, 20 P. 2d 809, and cases there cited.) The court was therefore wrong in enjoining the defendant from any further use or occupancy and in giving the plaintiff immediate possession before the obligation was satisfied.
In the second place, the trial court was clearly wrong in denying to the defendant any right to further use of the building as a joint user. Whether or not the defendant was entitled to a vested or title interest in the property by virtue of its payments on the mortgage, certainly it cannot be questioned, on this record, that it was at least entitled to use the building at suitable times not in conflict with services or other use by the church organization. Although it is not denied that appellant paid nearly a thousand dollars on the mortgage debt and spent considerable sums for maintenance and repairs — all with the knowledge and encouragement of the church — the trial court enjoined it from any further use whatever of the property! If it be said that this matter lay within the discretion of the trial court in the exercise of its equitable powers, then we would simply say, without need for weighing the contention, that the action taken in denying the defendant any use whatever of the building was an abuse of discretion and the judgment should on that account be set aside. In this connection the specific terms of the injunction are to be noted. Not only was the Ladies’ Aid ousted from the building as an organization, but the order extended to the individual members, permanently enjoining each of them from using or occupying the building except with permission and under the direction of the officers of the church (see par. 6 of judgment, supra). Compliance with this order would prevent any member of the Ladies’ Aid — including those who are Baptists — from attending church services in the building without permission of the trustees. Obviously such a provision could not be permitted to stand.
Being unable to affirm the judgment, what disposition can we make of the matter that will not leave it to disturbing uncertainty and to further and probably acrimonious controversy? Clearly it is to the interest of the parties and to the community they serve that this litigation be terminated as speedily as possible. Under similar circumstances — where, for instance, established facts plainly justify modification of the judgment; or where a sound judicial policy re quires that long-continued litigation be brought to an end; or where no useful purpose would be served by a new trial — this court has not hesitated to modify and to order judgment. (Among many cases see Worth v. Butler, 83 Kan. 513, 521, 112 Pac. 111; Mitchell v. Derby Oil Co., 117 Kan. 520, 531, 232 Pac. 224; Bolinger v. Giles, 125 Kan. 54, 58, 262 Pac. 1022; Kansas Wheat Growers Ass’n v. Smith, 127 Kan. 267, 270, 271, 273 Pac. 437; Security Benefit Ass’n v. Swartz, 146 Kan. 267, 70 P. 2d 16; Weichold v. Day, 147 Kan. 367, 76 P. 2d 784.) Its authority for doing so — if specific authority be needed — is to be found in the provisions of G. S. 1935, 60-3317, that: “in any case pending before it, the court shall render such final judgment as it deems that justice requires, or direct such judgment to be rendered by the court from which the appeal was taken, without regard to technical errors and irregularities in the proceedings of the trial court.” The statutory mandate applies with special pertinency to an equity case, such as the one before us. (Prudential Ins. Co. v. Foster, 139 Kan. 112, 117, 30 P. 2d 104.)
It clearly appears on this record, either from the trial court’s findings or the unquestioned facts, that:
1. Beginning in 1924 the appellant began making payments upon the church debt and continued doing so until the debt had been fully discharged, its total payments amounting to $969.26.
2. During the same period it paid for maintenance and repairs $622.84.
3. During this whole period no payments were made by the church on the debt and mortgage.
4. These payments were made with the knowledge and acquiescence of the church.
5. At least as far back as 1936 appellant’s payments on the debt were made with the understanding that upon completing payment in full the mortgage would be assigned to it.
6. For at least five years prior to the trial the church organization had no pastor; was not functioning in any way; made no use of the building; paid nothing for its maintenance or repair; and by its behavior acquiesced in the occupancy and expenditures by appellant for preserving the property.
7. During those five years the appellant was in uninterrupted and exclusive possession of the building, under the understanding above stated.
Upon those facts we conclude that not only was the appellant a mortgagee in possession but that in all good conscience it is entitled to an equitable lien for the full amount of $969.26 which it paid upon the debt; that it is entitled to be subrogated to the rights of the mortgagee in that amount and is entitled to have the mortgage assigned to it. Judgment should be entered giving to appellant, the Ladies’ Aid association, full and exclusive right of possession, control, and use of the building, subject to right of redemption in appellee, the mortgagor, upon payment to appellant of $969.26, together with costs of the action, title to vest in trustees for the Ladies’ Aid association upon failure of the church to redeem within a time fixed therefor by the court. Upon the making of such payment the appellee, the Williamstown Baptist church, should have full and exclusive right of possession, control, and use of the building and its title therein be cleared as against any adverse claim or right asserted on the part of the appellant, the Ladies’ Aid association.
Two other matters require attention. Mrs. Ruth Henley and the Assembly of God were parties defendant. No issues relating to them were presented in the briefs or here argued. We need only add that as to such defendants, as well as to other persons, the privilege of using the church building is within the discretion, reasonably exercised, of those who under this decision are entitled to the exclusive possession, control and use of the building.
The trial court made findings with reference to ownership of certain personal property said to be part of the church equipment. Those matters were not argued here. Accordingly, we shall not disturb the judgment with reference to such ownership contained in paragraphs 2 to 3, inclusive, of the judgment entered on July 23, 1943, upon plaintiff’s motion for a supplemental order.
The judgment is reversed and the cause remanded with directions to enter such orders and judgments as may be appropriate and necessary to comply with the conclusions stated in this opinion. | [
-107,
44,
-16,
-20,
10,
-30,
32,
-114,
67,
-95,
-92,
87,
-23,
-38,
5,
111,
-90,
45,
-47,
97,
-9,
-73,
7,
-104,
-46,
-13,
-13,
-59,
-71,
93,
-9,
118,
72,
49,
106,
-35,
-58,
-128,
-55,
20,
-114,
5,
8,
76,
-47,
74,
52,
123,
18,
79,
81,
-106,
-13,
41,
28,
71,
105,
44,
79,
101,
88,
-71,
-118,
5,
125,
7,
33,
4,
-100,
-89,
-24,
56,
-104,
53,
-128,
-96,
83,
38,
-118,
117,
69,
-7,
44,
118,
98,
34,
52,
-17,
-32,
-103,
38,
59,
-75,
-26,
-94,
72,
32,
9,
-65,
25,
101,
80,
1,
126,
-18,
21,
95,
-88,
13,
-49,
-41,
-75,
-121,
112,
-102,
7,
-21,
-127,
49,
117,
-55,
86,
94,
-105,
50,
-77,
-82,
-104
] |
The opinion of the court was delivered by
Hoch, J.:
This is an appeal from an order vacating a decree of divorce. Appellant contends that the trial court had no power to vacate the judgment.
Leander Northington brought action in Wyandotte county for divorce from Hattie Northington on the ground of abandonment. The defendant did not answer or otherwise plead. On November 6, 1942, divorce was granted. Among other and usual recitals the journal entry recites that evidence was heard, that there were no minor children of the plaintiff and' defendant and that no property was involved in the action. On December 5, 1942, Hattie Northington filed a petition to set aside the decree of divorce. The petition being filed in the divorce action, the wife is hereinafter referred to as the defendant and the husband as the plaintiff. Northington filed his answer and hearing was held on June 1, 19.43. There was no oral testimony by either side. The evidencé submitted by the defendant as part of the opening statement consisted of the files in the divorce action, including a copy of the summons and the sheriff’s return showing personal service upon the defendant and also the files in a previous divorce action brought by the husband and in which a demurrer by the defendant to the evidence of the plaintiff had been sustained. At the close of the opening statement the plaintiff, appellant here, moved for judgment upon the opening statement and the pleadings. The motion was taken under advisement and on November 6, 1943, exactly one year after the divorce had been granted, the motion was overruled, the decree of divorce was vacated, and the defendant given thirty days in which to answer. There was no motion for a new trial. On November 12, 1943, appeal was taken from the order vacating the decree and from the order overruling the motion for judgment on the opening statement and the pleadings.
The appeal was submitted here upon abstract, brief, and oral argument of appellant. Appellee filed no counter abstract or brief and made no oral argument.
It is clear, at the outset, that the trial court had no inherent power to vacate the judgment, the term at which such judgment was entered having expired. The judgment was entered on November 6, 1942, within the September term. Action on the petition to vacate was not taken until November 6, 1943. It is true that the petition to vacate the judgment was filed and summons issued on December 5, 1942, which was the last day of the September, 1942, term, but no continuance was granted on other action taken by the court during the term. v
Defendant predicated her right to have the divorce decree vacated upon the provisions of G. S. 1935, 60-3007, Fourth clause, which provides that “the district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made; . . . for fraud, practiced by the successful party in obtaining the judgment or order-.”.
As already noted, there was no motion for a new triab Trial errors — unless constituting appealable orders — would therefore • not be here for review. However, we have many times said that a motion for judgment on the pleadings is to be regarded'ás a demurrer, treating it as admission of all facts well pleaded by opposing parties and leaving no issue of fact to be. détermined. (Among recent cases, Ewing v. Pioneer Nat’l Life Ins. Co., 158 Kan. 371, 374, 147 P. 2d 755; Cole v. Thacker, 158 Kan. 242, 252, 146 P. 2d 665; Dixon v. Fluker, 155 Kan. 399, 402, 125 P. 2d 364; Pennington v. Kross, 154 Kan. 667, 121 P. 2d 275; Russell v. Bovard, 153 Kan. 729, 733, 113 P. 2d 1064; School District v. Community High School, 146 Kan. 380, 381, 69 P. 2d 1102.) Being tantamount to a demurrer, ruling on the motion is appealable under the statute. (G. S. 1935, 60-3302, Second.)
The same rule has been applied to motions for judgment on the pleadings and the opening statement. While the opening statement is not regarded as necessarily a complete recital of the facts upon which the party relies, statements which are understanding^ and completely made of facts which will preclude recovery or defense are binding and constitute grounds for judgment. (Some recent cases: Ryan v. Ryan, 156 Kan. 348, 133 P. 2d 119; Speer v. Shipley, 149 Kan. 15, 17, 85 P. 2d 999; Bixman v. Bixman, 148 Kan. 597, 83 P. 2d 639; Caylor v. Casto, 137 Kan. 816, 22 P. 2d 417.)
We now examine the facts as alleged in defendant’s petition or admitted in the opening statement, on the question of fraud in procuring the judgment and decree of divorce. The allegations of the petition may be summarized as follows: The plaintiff had previously filed an action for divorce, which action had been tried in March, 1942, and in which a demurrer to his evidence had been sustained; that thereafter, in September, 1942, “unbeknown to the petitioner herein” he had filed a second divorce action in the same court and that neither the petitioner nor her attorney had any actual knowledge of the filing of such second action and that both of them believed and had a right to believe that the controversy had been settled by the judgment in the prior action; that the petitioner “did not learn of said divorce (in the second action) or that said numbered action had ever been filed” until after the decree had been entered; the filing of the second action “was a fraudulent attempt on the part of the plaintiff, Leander Northington, to gain an advantage over and above the provisions of the law.” In the petition it was further alleged that the judgment was “void for the further reason that said Leander Northington well knew that Ed Rooney, Jr., the attorney for Hattie Northington, was iti ’the armed services of the country and not' able to represent herTurther and that the judgment in the cause of action ... is res'judicata by reason of the previous judgment,” etc. ' ~
Disregarding such allegations as are clearly conclusions arid there fore not admitted by demurrer, the only allegations of .fact going to the question of fraud in securing the judgment are that the second action was filed without the defendant’s knowledge, that neither she. nor her attorney knew that such an action had been filed until after the decree had been entered. Clearly the allegation that the second action was' a fraudulent attempt to gain advantage was not only a mere conclusion but rested solely upon the premise that knowledge as to the second action had been kept from the defendant. Likewise the allegation that her attorney was in the armed services and unable to represent her was based upon the same allegation as to lack of knowledge. Moreover, the inability of a litigant to be represented by a particular attorney constitutes, in itself, no grounds upon which to predicate fraud.
As already noted, there was no oral testimony by either party. The only pleadings were the petition and the answer. If the motion for judgment had been upon the pleadings alone it might be said that fraudulent securing of the divorce had been sufficiently alleged to withstand demurrer. But in the opening statement counsel for defendant admitted away the material allegations of the petition as to fraud. He admitted that the defendant had knowledge of it when the petition was filed, that she personally had been served with summons, and that she took the summons to her attorney, Mr. Rooney. Counsel not only admitted that summons had been personally served but introduced the summons with sheriff’s return showing personal service upon the defendant. Certainly under such a situation it cannot be said that the allegations of the petition and the statement of counsel present an issue of fact and that the trial court was free to believe the petition and disbelieve the counsel; The statements of counsel can only be regarded as a repudiation of the only substantial allegation of fact upon which fraud could be predicated and an admission which precluded the relief sought. We must conclude that the pleadings as modified by the opening statement stated no grounds of fraud, under the statute, to justify vacating the judgment, and that the motion for judgment should have been allowed.
One matter remains for brief attention. In the petition to vacate it was averred that the decree of divorce was void because the judgment in the former divorce action made the issue res judicata-. In the petition to vacate, the two divorce actions were referred to by number and the files in both cases were introduced in evidence by counsel for defendant as part of his opening statement. While perhaps we may not rely — in passing on the motion for judgment— upon statements of fact in the answer of the plaintiff, it was stated in the answer that in the first action the grounds alleged for divorce were gross neglect of duty, extreme cruelty, and abandonment, while the ground alleged in the second action six months later was abandonment. On the question of abandonment for one year the issue is obviously not res judicata in an action six months after a former action'. In any event there is no allegation of facts in the petition which could be said to make the issue res judicata.
It follows from what has been said that the court below erred in overruling the motion for judgment on the pleadings and the opening statement. The judgment must be reversed. It is so ordered.
Harvey, J., dissents. | [
-15,
120,
-75,
12,
10,
-32,
-118,
94,
114,
-85,
39,
87,
-23,
-102,
0,
121,
50,
47,
80,
120,
-41,
-77,
7,
1,
-9,
-14,
-71,
-35,
-75,
-3,
-11,
86,
76,
42,
-94,
-107,
70,
-53,
-123,
20,
-114,
1,
-117,
101,
88,
70,
48,
41,
84,
31,
17,
-18,
-29,
46,
27,
-54,
104,
40,
-53,
57,
-8,
-40,
-70,
13,
95,
6,
-79,
34,
-106,
-121,
64,
42,
-104,
49,
-128,
-24,
119,
-74,
-126,
116,
110,
-5,
40,
116,
103,
1,
20,
-17,
-88,
-120,
31,
124,
29,
-90,
16,
24,
66,
33,
-74,
-103,
109,
48,
11,
-2,
-17,
-115,
28,
100,
0,
-113,
-106,
-79,
2,
120,
-112,
0,
-29,
-31,
32,
112,
-49,
-24,
92,
70,
123,
25,
-58,
-80
] |
The opinion of the court was delivered by
Dawson, C. J.:
This was an action for damages sustained by plaintiff while riding in an automobile which collided with a freight car which was being pushed by an electric locomotive on defendant’s street railway in Coffeyville. The city of Coffeyville was impleaded as defendant.
The Union Electric Railway Company has a railway line which runs east and west on Eighth street in Coffeyville. That street is about thirty feet wide and is paved with brick. Buckeye street crosses Eighth street in a suburban part of the city.
On Labor Day, September 8, 1942, plaintiff and two young men, Arthur Cornett and Toby Curtis, spent part of the day riding about town in Cornett’s automobile. Curtis did the driving. Late that night another girl, Lucille Blumenstein, joined them. She and Curtis sat in front and Jewell Slaton and Cornett occupied the rear seat. About half an hour after midnight, while these young people were riding westward on Eighth street near its crossing with Buckeye street, Toby Curtis, their driver, undertook to pass another automobile going in the same direction. To do so he veered to the left, astraddle of the streetcar track. At that time a large freight car was approaching from the west, being pushed by defendant’s electric locomotive. Before Toby Curtis got the automobile off the track it collided with the freight car and Jewell Slaton was injured.
Hence this lawsuit.
In her petition Miss Slaton pleaded her version of the accident and her resulting injuries, alleging that the defendant railway company was negligent in the following particulars:
“That the brick pavement between the rails of said defendant’s track were lower than the rail. That the brick and filler adjacent to the inside of its north rail had been removed and worn away, causing a ditch or depression along the inside of said north rail, so that the tire on the car in which plaintiff was riding could not be driven over said rail with safety, but caught against said rail, thereby causing said collision.”
Plaintiff’s petition also alleged that defendant failed to have a light on the front end of the freight car as it was being pushed eastward, so that the same could have been seen and warning given in time for the driver of the automobile to get off the streetcar track. It was alleged that the pavement—
“On the inside of the north rail . . . [was] from one to four inches lower than the top of the rail. That said brick did not fit against the north rail, and the filler between the brick and the rail had crumbled and worn away, so that there was a ditch or depression from two to six inches deep and from three to eight inches in width adjacent to the north rail.
“That when the car in which plaintiff was riding was approximately seventy-five (75) feet from -the -approaching box car . . . Toby Curtis turned the steering wheel of said car to the north and attempted to drive said car off the streetcar track. That the left front tire upon said automobile caught against the north rail and the car slid forward for a distance of approximately thirty (30) feet, at which time it cleared the rail, and the back tire caught on said rail, holding the automobile on the track. That the train . . . kept coming from the west, and, without diminishing its speed, struck the car in which plaintiff was riding, thereby crushing and mashing the same, and cutting, mashing and injuring the plaintiff . .
The petition also charged that defendant failed to have an employee on the front end of the freight car so that such employee could have seen the automobile in which plaintiff was riding and signalled defendant’s motorman to stop in time to avoid the collision.
Plaintiff also alleged that the defective condition of the street had existed for more than six months and that the city of Coffeyville, and its agents and servants knew or should have known its condition in time to repair it, but that they negligently failed to discover its defective condition, which resulted in her injury and damage. She prayed for $10,000 damages against the street-railway company and against the city.
The defendant railway company answered with a general denial, and alleged that if plaintiff was injured at the time and place alleged, said injuries were the sole result of an unavoidable accident for which defendant was not responsible.
The city’s separate answer was to the same effect, with the further plea that plaintiff’s petition did not state a cause of action against the city.
' The cause was tried before a jury. By the time the evidence for all parties was completed, it developed that there was no failure on the part of the railway company to have the advancing end of the freight car properly lighted and to have an employee riding in front. There was testimony that at and near the point of the collision the groove inside the north rail was somewhat deeper than necessary for the free operation of the flanges on the wheels of the defendant’s cars and vehicles. It was shown that the advancing freight car on the street-railway tracks could have been seen for a long distance by the occupants of the automobile; and that for the purpose of passing another automobile going in the same direction the driver of the Cornett car drove it on to the streetcar track in the face of the on-coming freight car about the intersection of Buckeye street and Eighth street, and that the point of collision was a short distance west of there. There was evidence that the Cornett car was traveling westward at 25 miles per hour, and that the freight car was being pushed eastward at 15 to 20 miles per hour. Defendant’s freight car and electric engine were equipped with an air hose which, by manipulation of hand levers under control of the employee riding on the front end of the freight car, would sound a whistle and set the brakes of the train.
Plaintiff testified quite candidly:
"I rode along in the automobile that night ... to the point of collision. I . . . did not see any light, . . . did not see a box car . . . I paid no attention to the driving and did not pay any attention to the streetcar in front of us; I paid no attention to the streetcar tracks and did not look or listen or anything like that.”
Arthur Cornett, plaintiff’s seat-mate in the car (and who has since married her) testified with equal candor to the same effect.
Lucille Blumenstein, who rode in the front seat with the driver, testified that when their automobile was passing the other car prior to the accident, she had been looking straight ahead but “turned around to say something to Jewell . . . and the next thing I looked and seen the Union Traction boxcar coming up the street just before it hit us.”
Toby Curtis, driver of the automobile, testified by deposition:
“I passed a car near Buckeye [street], and as I went around it, I got over on the streetcar tracks.”
When Curtis gave his deposition he had deposed, — “but I did not see a streetcar until I was about, it must have been about ten feet.” However, before he signed his deposition, he changed the words “ten feet” to read “seventy-five feet.” When this portion of the deposition was read in court it precipitated a colloquy between coun sel for the litigants extending through several pages of the abstract. The driver’s deposition also read, in part:
“Q. After you passed the car you mentioned, did you attempt to pull back to the north side of the street, or did you continue driving west with your wheels in the streetcar track? A. Well, I hadn’t gone but just a little ways until I saw the streetcar.
“Q. Where was the [freight] car when you first saw it, relative to the west side of Buckeye street? A. (I believe) it was west of Buckeye.
“Q. How far west of Buckeye would you estimate it was when you first saw it? A. About 75 feet.
“Q. Were you east of Buckeye when you first saw the car? A. No.
“Q. Where were you when you first saw it? A. Just about to the west side of Buckeye.
“If the railroad car had been equipped with lights on the east end of the car that was being pushed there was nothing to prevent me from seeing the car.”
Curtis’s testimony touching the left side wheels of the automobile being caught inside the north rail reads:
“The south wheels were over the north rail of the streetcar track. . . . then I saw the streetcar ... So I cut it sharp, and the front wheel and the hind wheel caught on the rails as I started to turn, and slid forward. The front wheels released within a few feet of the streetcar, before the car got off, and the streetcar hit about middle ways of the left front fender.”
Cornett testified:
“When we got in front of Mathis’ the car started sliding forward and we could not get off the track. The front wheel caught on the north rail and kept on sliding, when the front wheel broke loose the back wheel caught, and before we had a chance to get off the streetcar hit us.”
At the conclusion of plaintiff’s evidence the defendant interposed a demurrer based on the insufficiency of the evidence to prove a cause of action, and' — ■
“For the further reason that contributory negligence of the plaintiff affirmatively appears from the evidence introduced by and on her behalf, which as a matter of law, bars recovery by her in this action and does not entitle the action to go to the jury.”
The defendant, the city of Coffeyville, filed a like demurrer.
These demurrers were overruled. The jury returned a general verdict for plaintiff against the defendant railway but returned a verdict in favor of the defendant city and against the plaintiff. With their general verdict, the jury also returned special findings, viz.:
“1. For what distance was the automobile in which plaintiff was riding driven on the streetcar track before it collided with the1 box car? A. 85 feet.
“2. What was the greatest depth of the groove on the inside of the north rail from the center of Buckeye street to the point where the collision occurred? A. 3 inches.
“3. Were there any lighted lanterns on the front end of the box car at the time of and immediately before the collision occurred? A. Yes.
“4. If you answer question No. 3 ‘Yes,’ how many lanterns were there and what color of light did they show? A. 2 red and 1 white.
“5. If you answer question No. 3 ‘Yes;’ for what distance could these lights have been seen by the plaintiff had she been looking? A. 600 feet.
“6. If you find for the plaintiff and against The Union Electric Railway Company, in what respect was the railway company negligent? A. Irregularity of rail and track bed.
“7. Was Willard Tucker [employe of defendant] riding at or immediately near the front end of the box car at the time of and immediately before the collision? A. Yes.
“8. What, if anything, did the plaintiff do or say to the driver of the automobile in which she was riding to warn him of the approaching cars of the railway company? A. Nothing.
‘‘9. If you find for the plaintiff and against The City of Coffeyvillé, in what respect was the city negligent? A. City was not negligent.
“10. If plaintiff had been looking in the direction of the approaching railway cars could she have seen them when the automobile in which she was riding was . . . (d) 600 feet from the railway cars? A. 600 feet.
“11. Was the defendant, The Union Electric Railway Company, negligent:
“(a) In that the street between the rails was defective and unsafe at the place where the collision occurred? A. Yes.
“(b) In that it failed to have lights on the boxcar being pushed toward the automobile in which plaintiff was riding? A. No.
“12. Was Willard Tucker riding on the front end of the box car as it was being pushed toward the car in which plaintiff was riding? A. Yes.
“13. If you answer question No. 12 in the affirmative, then state if after Willard Tucker had observed the car in which plaintiff was riding on the street car track, could he by the exercise of ordinary care have stopped the train in time to have avoided the collision? A. Yes.
“14. Do you find that the plaintiff was guilty of any act of negligence that contributed to her injuries? A. No.
“15. If you answer question No. 14 in the affirmative, then state the act or acts of negligence committed by plaintiff that contributed to her injuries? A. None.”
The defendant railway company filed a motion to strike out the answer to special finding No. 11 (a) and findings 14 and 15, as contrary to the evidence and too indefinite to sustain the general verdict, and contrary to and inconsistent with the other special findings which found definite and specific facts. It also objected to finding No. 13 and moved to strike it out on the ground that it was not within the issues joined by the pleadings.
The defendant railway company also filed a motion to set aside the verdict and for judgment in its behalf on various grounds, two of which read:
“3. That the special findings of fact absolve this defendant from negligence.
“4. That under the special findings the plaintiff was guilty of contributory negligence barring her recovery in this action.”
Plaintiff filed a motion to amend her petition by an allegation that an employee of the defendant was upon the side of the freight car (near its northeast corner) and—
“That a device for stopping said train was connected with the air line on said train, so that by turning a lever, said employee could apply the air and stop said train within a distance of a few feet. That said employee saw the automobile in which the plaintiff was riding approaching the train, and by the exercise of reasonable care, could have stopped said train in time to have avoided said collision.”
Plaintiff also moved for judgment against the city for the reason that the jury’s special findings show that plaintiff was entitled to judgment against it non obstante.
Plaintiff also moved for a new trial against the city. Neither party moved for a new trial as to the railway company.
All these motions were overruled and judgment was entered for plaintiff against the railway company and in favor of the city of Coffeyville. The railway company appeals from the judgment rendered against it, and plaintiff cross appeals against the city.
It will be noted that the jury’s special findings 3, 4 and 5 exonerated the railway company on the charge of failing to have a light on the advancing freight car which would have warned the driver of the automobile and its passengers of its approach. So, too, special findings 7 and 12 established the fact that there was a railway employee on the front end of the freight car being pushed eastward on Eighth street.
Touching the special finding No. 13, no such allegation of negligence was pleaded, and it should have been stricken out on defendant’s motion. It should also have been stricken out for another reason: By its finding No. 1 which was supported by evidence the jury found that the automobile got on the streetcar track at a point 85 feet from the point of collision. The evidence showed that the automobile was traveling westward at 25 miles per hour and the railway freight car was being pushed eastward at 15 to 20 miles per hour. It is therefore perfectly obvious that there was insufficient time after Curtis drove the automobile onto the railway track in which “by the exercise of ordinary care” the defendant’s freight car and its motive power could have been stopped in time to avert the collision; and finding No. 13 was not sustained by evidence even if the alleged negligence stated in that finding had been pleaded in plaintiff’s petition.
Touching the jury’s special finding No. 6 that the railway company’s negligence lay in the “irregularity of rail and track bed,” defendant invokes the rule that a jury’s specific finding of negligence exonerates defendant of any and all other negligence alleged in the petition. This rule is sound, of course (Rasing v. Healzer, 157 Kan. 516, 142 P. 2d 832), but whatever other findings are in accord therewith are not to be left out of consideration. (Greiner v. Greiner, 129 Kan. 435, 283 Pac. 651.) So we think finding No. 2 should be read in connection with No. 6. However, this does not apply to finding No. 11 (a) which is a mere conclusion, not a finding of fact, and not based on any competent evidence. (Koster v. Matson, 139 Kan. 124, 134, 30 P. 2d 107, and citations.) Do findings Nos. 2 and 6 support the allegation of negligence in the petition—
“That the brick pavement between the rails of said defendant’s track were lower than the rail. That the brick and filler adjacent to the inside of its north rail had been removed and worn away, causing a ditch or depression along the inside of said north rail, so that the tire on the car in which plaintiff was riding could not be driven over said rail with safety, but caught against said rail, thereby causing said collision.”
Surely a groove three inches deep inside the rail in which the flange of defendant’s car wheels must be free to turn did not support the allegation of “a ditch or depression along the inside of said north rail.” At most it was only 1% inches deeper than necessity required according to the evidence of the engineers who testified in the case. The findings 2 and 6 do not support the allegation that the brick pavement between the rails was materially lower than the track nor otherwise so materially defective as to support a verdict for damages against either defendant. It is obvious, we think, that the jury did not regard their duty considerately since the existence of any serious defect in the pavement likely to cause injury and damage to persons making a reasonable use of the street would be a joint liability against the city and the street railway alike. (Street Rly. Co. v. Stone, 54 Kan. 83, 37 Pac. 1012; Adams v. Electric Railway Co., 95 Kan. 781, 149 Pac. 700.) Yet here the jury specifically found that the city was not negligent, and that the railway company was negligent! It is only required of a city that it keep its streets reasonably safe for public use (Taggart v. Kansas City, 156 Kan. 478, 134 P. 2d 417), and no harsher rule can justly be imposed on the street railway company.
There is another feature of this case which completely bars. a recovery by plaintiff. By plaintiff’s own testimony as well as that of her witnesses, and by the jury’s findings, defendant’s advancing freight car could have been seen by plaintiff when it was 600 feet away. Plaintiff took no precautions whatever for her own safety. Neither did her fellow passengers nor the driver of the automobile. She made no protest when the driver of the automobile undertook to pull over onto the railway track to pass another automobile in the face of the approaching freight car. Our decisions bar a recovery under a wide variety of not dissimilar circumstances. (Kirby v. Railway Co., 106 Kan. 163, 186 Pac. 744, and citations; Knight v. Railway Co., 111 Kan. 308, 206 Pac. 893; Ferguson v. Lang, 126 Kan. 273, 268 Pac. 117; Shrewsbury v. Goodacre, 135 Kan. 230, 10 P. 2d 1; Bryant v. Marshall, 135 Kan. 348, 10 P. 2d 868; Darrington v. Campbell, 150 Kan. 407, 409, 94 P. 2d 305.)
What caused this accident was as plain as the noonday sun. The driver drove onto the streetcar track in order to pass another automobile when there was manifestly neither time nor space to do so without the identical accident which happened and which was bound to happen if there had not been even a microscopical defect in the pavement. It was exactly the sort of accident which occurs every day when one automobile attempts to pass another going in the same direction regardless of an approaching car coming from the opposite direction. (Canestro v. Joplin-Pittsburg Rld. Co., 135 Kan. 337, 10 P. 2d 902.)
The foregoing sufficiently disposes of this appeal, but some of the justices, including the writer, would hold that if plaintiff’s injuries did arise out of defendant’s negligence, then we would be compelled to likewise hold that plaintiff was barred by her contributory negligence, as shown by findings 5, 8 and 10. Counsel for appellee contend that contributory negligence was not pleaded. It was not pleaded in the answer. So far as the record shows the defendant railway company was not apprised of the facts which would make the defense of contributory negligence available until plaintiff had put on her evidence. But when the evidence for plaintiff did make 'that defense clear, it was properly raised by demurrer, and later by the railway company’s motion for judgment on the pertinent special findings. We have held that when a petition does not plead the facts which would reveal a complete defense at law the defendant may deny generally and await the development of plaintiff’s evidence which does reveal such complete legal defense, and demur to the evidence. Thus in U. P. Rly. Co. v. Adams, 33 Kan. 427, 6 Pac. 529, it was said:
“Where an action is brought to recover for personal injury, and the plaintiff’s testimony shows that his own negligence contributed directly to the injury, he has failed to make out a prima jade right of recovery, and a demurrer interposed to his evidence should be sustained.” (Syl- 1Í1.)
In Houdashelt v. State Highway Comm., 137 Kan. 485, 21 P. 2d 343, it was held:
“While the rule is that the burden is on the defendant to prove contributory negligence, it will not be interpreted to mean that if plaintiff’s own evidence shows him guilty of such negligence as precludes a recovery the defendant cannot take advantage of it.” ■ (Syl. If 3.)
Other recent cases have recognized this same rule of law. (Parsons v. State Highway Comm., 146 Kan. 476, 480, 72 P. 2d 75; Cruse v. Dole, 155 Kan. 292, syl. ¶ 3, 124 P. 2d 470; Central Surety & Ins. Corporation v. Murphy, 103 F. 2d 117, headnote, ¶ 7.)
See, also, Arnold & Co. v. Barner, 100 Kan. 36, 163 Pac. 805; and Mercantile Co. v. Rooney, 114 Kan. 840, 220 Pac. 1048.
Turning to the cross-appeal, plaintiff complains of the trial court’s refusal to permit her to amend her petition as quoted above in our statement of facts. Belated amendments to pleadings are addressed to the sound discretion of the trial court; and it would require a much stronger showing to warrant this court in holding that the trial court abused its discretion in this case, when the motion to amend was filed three days after the verdict.
We discern no basis for plaintiff’s claim that it was entitled to judgment non obstante against the city, nor in overruling her motion for a new trial against the city. Neither party asked a new trial so far as concerned the railway company.
The judgment against the defendant railway company is reversed with instructions to enter judgment in its behalf. The judgment in favor of the city of Coffeyville is affirmed.
Smith, J., dissents. | [
-16,
104,
-127,
-19,
26,
96,
26,
-118,
113,
-125,
-91,
87,
-83,
-51,
29,
97,
126,
125,
81,
106,
119,
-109,
3,
-77,
-110,
83,
123,
68,
-77,
72,
96,
102,
76,
48,
-118,
-99,
38,
72,
69,
94,
-114,
-76,
-21,
-32,
25,
34,
52,
122,
20,
5,
17,
-113,
-45,
42,
24,
-29,
105,
45,
-5,
-88,
-45,
113,
-61,
-57,
-66,
2,
-95,
36,
-98,
39,
96,
25,
-104,
-76,
96,
-72,
51,
-92,
-123,
-12,
105,
-119,
12,
-30,
103,
33,
29,
107,
-68,
-72,
7,
-69,
15,
-91,
52,
25,
35,
5,
-97,
-99,
113,
86,
79,
-6,
-2,
69,
89,
-96,
-123,
-118,
-76,
-111,
-81,
-16,
-106,
-105,
-21,
-91,
50,
97,
-64,
-76,
95,
5,
-70,
-101,
31,
-98
] |
The opinion of the court was delivered by
Parker, J.:
The plaintiff instituted this action, in the nature of a creditor’s bill, against defendants, Yeroqua Tibbitts Thacker, Verba F. Brooks and Celestye Meisenheimer. Verba F. Brooks, Celestye Meisenheimer, and Frank U. Dutton as'an individual, and Frank U. Dutton as executor of the estate of Alice L. Baker, de ceased, were named therein, as garnishee defendants. The judgment and rulings of the trial court on certain motions and demurrers, the character of which will be presently disclosed, were against plaintiff and in favor of defendants, Brooks and Meisenheimer, and garnishee defendant, Frank U. Dutton, as executor. Plaintiff appeals.
It appears from facts which are undisputed as follows:
The defendant, Mrs. Thacker, is an heir at law of Alice L. Baker, whose estate was being probated in Kingman county on the date of the institution of the instant action. Formerly she was a resident of Kansas and while here, together with her husband, in May, 1934, executed and delivered a note to the plaintiff for the sum of $1,130, in her name as Veroqua Tibbitts. Shortly after the execution of the note, her husband died and she became a nonresident of Kansas and was a nonresident on the dates material to this action. Immaterial, for all but informative purposes, is the fact she remarried after leaving the state and her name is now Veroqua Tibbitts Thacker.
Frank U. Dutton, as indicated in the title of this action, was the duly appointed, qualified and acting executor of the estate of one Alice L. Baker, at all times pertinent to any of the issues involved herein. On or about September 21, 1942, Mrs. Thacker who, as an heir at law and under the will of Mrs. Baker, was entitled to a distributive share of such decedent’s estate, by written instrument, duly acknowledged, assigned to Brooks and Meisenheimer, her sisters, all her right, title and interest in and to such estate. By its terms the instrument authorized them to collect and receive all amounts due her from the estate and directed Dutton, as executor, to pay over such amounts to them as assignees. This instrument was filed in the probate court of Kingman county April 19, 1943.
On June 5, 1943, the executor made final accounting and settlement in the Baker estate at which time the portion of the judgment rendered by the probate court, affecting the issues here involved, was as follows:
“The Court Further Adjudges and Decrees, That there was filed in said court on the 19th day of April, 1943, an assignment of interest of the distributive share belonging to Veroka I. Tibbitts Thacker, that the said- assignment is valid, and that the distributive share belonging to Veroka I. Tibbitts Thacker was thereby assigned to Verba F. Brooks and Celestye Meisenheimer, and that by virtue of said assignment Verba F. Brooks and Celestye Meisenheimer should be given the full distributive share of said distributee, Veroka I. Tibbitts Thacker, less the $100 which was heretofore paid to said distributee, and Frank U. Dutton, Executor, is hereby ordered and authorized to pay the sum of $3,120.13 to said assignees, Yerba F. Brooks and Celestye Meisenheimer, and the court orders, adjudges and decrees that by virtue of said assignment Veroka I. Tibbitts Thacker should not receive any distributive share of the funds remaining in the hands of said executor, and that the executor should take receipts from said assignees for such money so paid to them.”
Shortly after the rendition of this judgment plaintiff brought the present action in district court. The petition and a subsequent amendment alleged in substance what has been heretofore related; showed affirmatively the note sued on had not been reduced to judgment; stated defendant Thacker, except for her interest in the Baker estate, was insolvent on the date of the execution of the assignment ; and charged such assignment was made without consideration for the purpose of defeating creditors and was fraudulent and void. Such petition prayed judgment on the note against Thacker; also judgment canceling and setting aside the assignment as fraudulent and void, directing the garnishees to pay into court all funds and property in their hands belonging to her, and for such other relief as might be necessary in order to reach any and all funds transferred and delivered to Brooks and Meisenheimer under the terms of such instrument and subject them to payment and satisfaction of the indebtedness sued on. Filed along with the petition was a garnishment affidavit and all garnishee defendants herein named were served with garnishment summons.
In order to fully comprehend the issues it will be necessary to relate proceedings had subsequent to the filing of the petition and garnishment affidavit. Brooks and Meisenheimer as defendants filed a demurrer to the petition and amended petition, which demurrer was sustained. All garnishee defendants then made answer denying they were indebted or under liability to Mrs. Thacker or had any property of any character belonging to her under their control. Plaintiff served notice of his election to take issue on the answers of all garnishee defendants except that of Dutton, as an individual, who was later dismissed as a garnishee defendant. Dutton, as executor, then filed an amended answer as garnishee wherein •he set out the judgment of the probate court with respect to the assignment and prayed for his discharge as garnishee and for the recovery of costs, including an attorney’s fee. Subsequent to the filing of this amended answer, plaintiff moved the court to interplead Brooks and Meisenheimer as parties defendant in the action because of the disclosures in such answer to the effect they were claimants of the funds then in the hands of Dutton as executor. This motion was overruled. Plaintiff then filed its notice of election to take issue in the amended answer, the allegations of which, in addition to restating the averments of the petition, alleged the plaintiff was not a party defendant to the proceedings resulting in the judgment of the probate court and was not bound by it with respect to the validity of the assignment or orders made regarding the payment of the defendant Thacker’s distributive share of the estate. It also alleged defendant Dutton had in his possession more than $3,000, the distributive portion of Thacker’s share in the Baker estate, which he should account for as garnishee. Dutton then filed a motion for judgment on the pleadings (the garnishment answers and plaintiff’s notice of election to take issue on such answers) and for his discharge as garnishee, the apropos portions of which motion are as follows:
“Because said Prank TJ. Dutton, as Executor of the last Will and Testament of Alice L. Baker, Deceased, was acting as such Executor, under and by virtue of the appointment of the Probate Court of Kingman County, Kansas, which said Court had full and complete jurisdiction of the Estate of Alice L. Baker, Deceased, and which said Probate Court, by its order under date of June 5th, 1943, a copy of which said order is attached to the amended answer of this garnishee, as Exhibit 'A’ thereto determined and ordered that the assignments executed by Veroqua [I.] Tibbitts Thacker, under her then name of Veroqua I. Tibbitts, to Celestye Meisenheimer and Verba P. Brooks, were valid and binding upon her, and that Veroqua I. Tibbitts Thacker was not entitled to any share in the distribution of said Estate of Alice L. Baker, and ordering this garnishee, as such Executor to pay and deliver to said Celestye Meisenheimer and Verba P. Brooks, all the distributive share in said estate that would have been payable to said Veroqua I. Tibbitts Thacker, in the absence of said assignments, was within the jurisdiction of the said Probate Court of Kingman County, Kansas, upon said hearing upon Final Settlement, and said determination and orders of the said Probate Court, not having been appealed from, are valid and binding on all persons, and are res judicata.”
This motion was sustained and judgment was rendered releasing him from all liability to plaintiff as garnishee and rendering judgment in his favor for costs including an attorney’s fee of $25.
It should be noted that in disposing of the various motions, and in rendering the judgment heretofore referred to, the trial court relied upon and gave consideration to the following stipulation and agreement appearing in the journal entry of judgment, which as incorporated therein, reads as follows:
“Thereupon said parties being present as aforesaid it was stipulated and agreed in open court that plaintiff does not contend that either or any of the garnishees herein are indebted to or have any property, real or pei’sonal in their possession or under their control belonging to the defendant, Veroqua Tibbitts Thacker, other than the indebtedness, property, effects and credits represented by the interest of the said Yeroqua Tibbitts Thacker accruing to her from the estate of Alice L. Baker, deceased, through administration proceedings in the Probate Court of Kingman County, Kansas, and that the several motions before the court herein shall be passed upon and decided with that understanding.”
The preceding statement of facts and description of the proceedings are necessary to properly determine the issues raised by this appeal. We turn now to a consideration of those issues and will refer to them in the order in which they are raised by the plaintiff’s specification of errors.
Appellant’s first contention is the trial court erred in sustaining the demurrer of defendants, Brooks and Meisenheimer, to the petition. One ground of the demurrer was that several causes of action were improperly joined in the petition and that the causes of action purported to be set forth therein did not affect all the parties to such action. Another was that the petition failed to state facts sufficient to constitute a cause of action against either of the demurring defendants. Since appellant in his brief refers to the action as one on a promissory note against a nonresident defendant, with garnishment of resident defendants, while the appellees refer to the action as one in the nature of a creditor’s bill, it does not seem amiss, preliminary to the determination of appellant’s contention, to first determine the true character of the action as filed.
As heretofore related, the petition seeks judgment against Thacker on the note and against Thacker, Brooks and Meisenheimer, setting aside the assignment and declaring it void. A general discussion on the subject of what constitutes a creditor’s bill, its nature, purpose and scope, can be found in 21 C. J. S. 1058, § 1, and 14 Am. Jur. 679, §§ 2, 3. But, we are not compelled to accept the general definition to be found in the treatises just referred to.
Long ago, in Houghton v. Axelsson, 64 Kan. 274, 67 Pac. 825, this court (quoting from 5 Ency. PI. & Pr. 391) said:
“Creditors’ bills, in their most comprehensive sense, are bills in equity by creditors to enforce the payment of debts out of the property of debtors, under circumstances which impede or render impossible the collection of the debt by the ordinary process of execution.” (p. 277.)
And held:
“A creditor’s bill is in its nature a proceeding in rem rather than in personam, and its use is to make effective a judgment held by a creditor against the property of the debtor which is in some way concealed.” (Syl. If 1.)
Under the rule just stated it is apparent from an examination of the petition and the amendment thereto the instant action is one in the nature of a creditor’s bill. The most that can be said for appellant’s position as to the nature of the action is that the pleadings attempted to combine a suit on the note and a creditor’s bill to set aside the assignment on the ground of fraud. It is of small moment to appellant which construction is placed on the pleadings. If they be regarded as stating a cause of action on the note and a cause of action in the nature of a creditor’s bill, then the trial court was correct in sustaining the demurrer on the ground of misjoinder of causes of action. It must be conceded the action on the note affected the defendant Thacker alone, while the creditor’s bill affected the defendants Thacker, Brooks and Meisenheimer jointly. G. S. 1935, 60-601, is applicable to such a situation. It reads:
“The plaintiff may unite several causes of action in the same petition, whether they be such as have been heretofore denominated legal or equitable, or both. But the causes of action so united must affect all the parties to the action, except in actions to enforce mortgages or other liens.”
In construing the section of the statute just quoted this court has repeatedly held that where causes of action are united and do not affect all parties to the action, and do not come within the exception specifically mentioned in the statute, a demurrer to the petition on the ground of misjoinder of causes of action will be sustained. See Benson v. Battey, 70 Kan. 288, 78 Pac. 844, and Osborne v. Kington, 148 Kan. 314, 80 P. 2d 1063.
On the other hand, if the pleadings be construed as we construe them, to state a cause of action in the nature of a creditor’s bill, the trial court’s ruling in sustaining the demurrer on the ground the petition failed to state a cause of action against the defendants Brooks and Meisenheimer, must be upheld.
Whatever the rule may be elsewhere, it is settled in this state by a long line of decisions that before a creditor can interfere with a transfer of his debtor’s property he must reduce his claim to judgment or at least in some manner obtain a lien on that property. The doctrine otherwise stated, is that an action in the nature of a creditor’s bill cannot be maintained until the creditor has reduced his claim to judgment. This rule was announced in the early case of Tennant v. Battey, 18 Kan. 324, and has been restated in various forms after consideration of factual situations similar to, and entirely different from, those involved in the case just cited. See the recent case of Causemaker v. DeRoo, 153 Kan. 648, 651, 113 P. 2d 85, holding the rale is applicable in an action to set aside a conveyance alleged to have been made in fraud of creditors, and the more recent case of Cartier v. Central Trust Co., 155 Kan. 191, 124 P. 2d 435, where a similar factual situation was involved, holding a demurrer to plaintiff’s petition was properly sustained because it did not allege plaintiff had reduced his claim to judgment. To the same effect is Kinnard v. Stevens, 122 Kan. 347, 251 Pac. 1085; Bank v. Ternes, 110 Kan. 475, 204 Pac. 699. See, also, Bank v. Lemley, 105 Kan. 15, 180 Pac. 238, holding the rule is applicable in an action involving garnishment proceedings, Bank v. Chatten, 59 Kan. 303, 52 Pac. 893, where a creditor sought to enjoin a third person from transferring property conveyed the latter by his debtor. Other cases recognizing the doctrine are Knox v. Farguson, 97 Kan. 487, 155 Pac. 929; Harrison v. Shaffer, 60 Kan. 176, 184, 55 Pac. 881; Young v. Buck, 97 Kan. 39, 40, 154 Pac. 213; Parmenter v. Lomax, 68 Kan. 61, 74 Pac. 634, and Kansas Wheat Growers Ass’n v. Edmonston, 134 Kan. 786, 787, 8 P. 2d 410.
Various arguments advanced by appellant and conclusions reached by him, from statements in the form of dicta appearing in some of the decisions cited and indicating possible methods by which money or other property in the hands of third persons and belonging to a debtor can be reached by a creditor in garnishment proceedings, have been given consideration by us. They are all based upon the false premise the instant suit is one on a note with garnishment of defendants, and in no sense detract from the force and effect of the rule that a condition precedent to the successful maintenance of a creditor’s bill is an affirmative showing in the petition that the indebtedness sued on and described therein has been reduced to judgment.
The next specification of error relied upon by appellant is that the trial court erred in overruling his motion to interplead Brooks and Meisenheimer as defendants in the garnishment action. Appellant’s position can best be stated by quoting directly from his brief. There we find the following language:
It is the position of appellant that in view of the garnishment statute it is proper to make the garnishees defendants in the action as well as to name them as garnishees. The statute provides, G. S. 60-951, as follows:
“ ‘The proceeding against a garnishee shall be deemed an action by the plaintiff against the garnishee and defendant, as parties defendant, and all the provisions for enforcing judgments shall be applicable thereto.’
“Appellant contends that in view of this section of the statute, the court should not have sustained the demurrer of Brooks and Meisenheimer as defendants. . .”
Bluntly stated, appellant’s claim is the garnishment statute permits the joining of any number of persons as defendants in an action, so long as the plaintiff contends they have property in their possession or under their control belonging to the defendant debtor, and that fact enables the plaintiff to make them parties defendant to the action as well as parties defendant to the garnishment proceedings. No such rule prevails in this state. A proceeding in garnishment is a special and extraordinary remedy given by statute and can be resorted to only under the conditions and procedure expressly authorized by the statute. The statutory conditions for its exercise are conclusive, and exclusive of all others, and cannot be extended to cover general procedural conditions and situations otherwise provided for by the statute. G. S. 1935, 60-951, can under no circumstances be held to require the procedure or permit the result urged by appellant. To do so would nullify the provisions of G. S. 1935, 60-601, heretofore discussed, and other provisions of the code of civil procedure fixing and determining the rights and obligations of parties to an action. The trial court committed no error in overruling plaintiff’s motion to interplead Brooks and Meisenheimer as defendants.
Other errors specified by appellant all deal with phases of the same subject and can be considered together. It is urged the trial court erred in sustaining the executor’s motion for judgment on the pleadings and releasing him from all liability to plaintiff as garnishee in the action. This contention requires reference to the stipulation heretofore referred to and set forth in the opinion, as well as the allegations contained in the executor’s amended answer as garnishee and the appellant’s notice of election to take issue on such answer. The stipulation conceded the only property in the executor’s possession or under his control, if any, is that represented by the interest accruing to Thacker through the administration proceedings in the probate court of Kingman county. The amended answer sets forth the judgment of the probate court declaring the assignment to be valid and directing the payment of Thacker’s share to Brooks and Meisenheimer. The notice of election to take issue on the answer concedes the existence of that judgment but alleges the plaintiff was not a party to the proceedings in the probate court and is not bound by any of its orders, with respect to the assignment. Without passing upon what might have been the result of the order and judgment of the probate court had it been contested or appealed from it can be stated without fear of contradiction that under the provisions of the new probate code, the probate court has original jurisdiction to direct and control the official acts of executors and administrators, to settle their accounts and order distribution of their estate (G. S. 1941 Supp. 59-301 [3]); may exercise such equitable powers as are necessary and proper to hear and determine any matter properly before it (G. S. 1941 Supp. 59-301 [12]); in addition to general jurisdiction has power to order any fiduciary to distribute property (G. S. 1941 Supp. 59-302 [8]), and has authority to provide for partial distribution and make final settlement of an estate (G. S. 1941 Supp. 59-2246 to 59-2249, inch) See Erwin v. Erwin, 153 Kan. 703, 113 P. 2d 349, wherein this court held:
“The probate court has jurisdiction to settle and distribute an estate in accordance with the terms of a written contract of final settlement and distribution fairly entered into by all the heirs, the validity of which is not questioned and which is properly presented to that court, upon due notice, for final settlement and distribution.” (Syl. If 1.)
The probate code (G. S. 1941 Supp. 59-2401 [9], [11], [21]) also provides for an appeal to the district court from an order directing or refusing to direct the payment of a legacy or distributive share, a judgment or decree of partial or final distribution, a final decision of any matter arising under the jurisdiction of the probate court] and further provides (G. S. 1941 Supp. 59-2404) an appeal may be taken by any person aggrieved. An examination of these provisions of the probate code will readily disclose the proabte court had jurisdiction over the subject matter involved in its order and judgment of June 5, 1943, and that it had power to direct and control the activities of the executor. Under such circumstances no one can be heard to contend its judgment was void. From the conceded facts appearing in the various pleadings leading up to the filing of the executor’s motion for judgment on the pleadings it is apparent that appellant, through the medium of his garnishment proceeding, was attempting to collaterally attack the judgment as rendered in probate court. This he could not do. Under our decisions when a judgment has been rendered in a case and has become final it cannot be collaterally attacked in a subsequent proceeding unless it appears that such judgment is void. See Federal Savings & Loan Ins. Corp. v. Hatton, 156 Kan. 673, 135 P. 2d 559, and cases there cited. Where such a situation appears from the pleadings a demurrer to the petition should be sustained (Brockway v. Wagner, 126 Kan. 285, 268 Pac. 96). A motion for judgment on the pleadings is tantamount to a demurrer and should be sustained where, as here, from conceded facts appearing from the pleadings making up the issues involved it appears the party seeking the judgment is entitled thereto as a matter of law. James v. Metropolitan Life Ins. Co., 155 Kan. 377, 125 P. 2d, 369, and Ryan v. Ryan, 156 Kan. 348, 133 P. 2d 119. It follows the motion of the executor for judgment on the pleadings was properly sustained and he was properly discharged from liability as a garnishee.
One other question requires consideration. Appellant contends the provisions of G. S. 1935, 60-959, authorizing the allowance of an attorney’s fee of $25 “in case of trial of an issue between the plaintiff and any garnishee” do not permit the judgment for that amount in favor of the executor as rendered by the trial court. He insists the statute limits the allowance of such fee to cases where an issue of fact is involved. We do not agree. The issue referred to in the statute is the question of whether a garnishee is liable as such when in his answer he has denied liability and the correctness of that answer has been challenged. Once that issue has been raised the fee referred to is properly assessed by the trial court when judgment is rendered discharging the garnishee from liability, irrespective of whether that judgment is based on issues of law or fact.
The executor is not satisfied with the allowance specifically authorized by statute and asks that this court allow his attorney an additional fee on this appeal. We find nothing in the statute to authorize such an allowance and that request must be denied.
The judgment is affirmed. | [
-48,
106,
-112,
12,
10,
96,
40,
-102,
113,
-95,
-96,
83,
-23,
67,
4,
121,
123,
45,
81,
104,
-90,
-77,
23,
-54,
-46,
-13,
-7,
-35,
-79,
-36,
-27,
-42,
76,
32,
10,
85,
102,
-54,
-27,
20,
-50,
2,
-119,
-32,
-37,
-118,
48,
43,
112,
9,
-15,
-82,
-13,
43,
29,
-30,
104,
46,
-7,
-83,
112,
-72,
-117,
-115,
127,
22,
3,
-90,
-100,
7,
72,
54,
-104,
49,
-119,
-24,
114,
-90,
6,
-12,
71,
-87,
8,
102,
98,
35,
61,
-17,
-88,
8,
46,
-9,
-99,
-89,
-80,
88,
1,
13,
-75,
-99,
63,
16,
3,
124,
-3,
-99,
60,
-52,
1,
-54,
-42,
-111,
13,
-66,
-104,
15,
-21,
-121,
48,
113,
-51,
-30,
93,
71,
57,
-101,
-105,
-76
] |
Tbe opinion of the court was delivered by
Wedell, J.:
This w’as an action by the employee of a consignee of a car of coal to recover damages for personal injuries from the originating railroad carrier. Plaintiff appeals from the order sustaining a general demurrer to- his amended petition.
The amended petition, in substance, alleged:
Defendant, The Midland Valley Railroad Company, selected- and furnished to the shipper at his mine at or near Greenwood, Ark., an empty coal car, to be loaded with lump coal; the car was shipped to the Consumers Fuel Company at Wichita, Kan.; the car was loaded to a depth of several feet, and was not disturbed on its journey; the car remained on defendant’s railroad until it reached the end of the defendant’s line at Wichita; at Wichita the car was transferred by defendant to the lines of carriers having sidings leading to the loading dock of the consignee, where it was set to be unloaded by the consignee; a thin film of slack covered the floor; plaintiff had removed approximately five-sixths of the coal; while carrying a large lump of coal his left foot and leg suddenly sank through the floor of the car; upon a later examination of the floor it was discovered a hole had rotted out in the floor and that at some previous time, the exact time being unknown to plaintiff, an attempt had been made to repair the hole by placing a board over a part of the hole; the board did not cover the entire opening; the floor around the edge of the hole which was not covered by a board or patch was badly rotted and gave way beneath plaintiff’s weight.
The amended petition further alleged:
“That said floor was in the same condition when it was loaded with coal as it was when.the coal was removed therefrom. That at the time defendant selected and furnished said car it knew, or in the exercise of ordinary care could have known, of the defective condition of the floor, and that defendant knew that said car was to be unloaded by the plaintiff or by some person in like capacity walking over said floor. That defendant knew, or in the exercise of reasonable care ought to have known, that with said hole exposed and unguarded in the floor of said car, that plaintiff or others in a like capacity were apt to be injured thereby. That the defendant negligently selected said car in such defective condition and negligently furnished it to the shipper for loading with coal. That it negligently failed to repair said defects, and negligently failed to properly repair said defect, and negligently failed to warn plaintiff of said defects in time to avoid injury to plaintiff. That as a direct and proximate result of the negligent acts and omissions of the defendant plaintiff fell through the floor of said box car as aforesaid.”
In the original petition two additional railroads were named as parties defendant. They were the St. Louis and San Francisco Railroad and the Rock Island Railroad Company. The first above named company was charged with having furnished its defective car to the shipper for loading. The latter named defendant was specifically named as the ultimate delivering carrier. The original petition charged that defendant with the following negligence:
“The defendant the Rock Island Railroad negligently and carelessly failed to inspect said car before placing it at said loading dock, when it knew or ought to have known of the dangerous and defective condition of said car; and negligently and carelessly failed to warn the plaintiff of said dangerous and defective condition, notwithstanding it knew that plaintiff was unloading or about to unload said car of coal.”
In the amended petition only appellee, The Midland Valley Railroad Company, is named as a defendant and the above quoted charge of negligence against the Rock Island Railroad Company is omitted as are also the allegations against the St. Louis and San Francisco Railroad. Appellee is now sued alone and as the originating carrier. The amended petition does, however, clearly disclose that some other railroad was the ultimate carrier which delivered the car to the consignee. The amended petition in that respect reads:
“That in its route from said mine to said destination it was moved by defendant over defendant’s railroad line to the end of defendant’s line at Wichita, Kansas. Plaintiff is informed that said car was transferred by defendant to tlie lines of carriers having sidings leading to the loading dock of the Consumers Fuel Company, at 1518 Barwise, Wichita, Kansas, where said car was finally set for the purpose of being immediately unloaded by said Consumers Fuel Company.”
Appellant frankly states the question presented by the demurrer to the amended petition is therefore this, “Was there an intervening cause which relieved defendant [the originating carrier] of liability for its negligence?” We think appellant properly states the issue. The trial court held such an intervening cause or agency was disclosed by the amended petition and sustained the demurrer. The ruling was based upon principles enunciated in Railway Co. v. Merrill, 65 Kan. 436, 70 Pac. 358. That decision resulted from a rehearing of the same case (61 Kan. 671, 60 Pac. 819). In that case the third carrier which last received the car for transportation over its lines and delivered it to the consignee was not sued. In the original opinion we held the first two carriers could be sued jointly for injuries suffered by a brakeman of the last, or third, carrier, the injuries having resulted from a defective endgate of a car which was in a defective condition when delivered to the third, or last, carrier. In the original opinion we further held the negligence of the third railway company in possession of the car at the time of the accident in failing to inspect the car was concurrent merely, and did not break the causal connection between the negligence of the first two carriers and plaintiff’s injury. On rehearing and further extended examination of the authorities we reversed our former decision and said:
“We are now fully convinced that the doctrine announced in the former decision on the subject in hand runs counter to an unbroken current of authorities, and fails to stand the test of reason. A critical examination of the cases cited in the former opinion to sustain the view then taken will show that they are distinguishable from the case at bar.” (Railway Co. v. Merrill, 65 Kan. 436, 439, 70 Pac. 358.)
We need not here restate the distinguishing characteristics of cases analyzed in the opinion on rehearing. We there stated the reasons for reversing our former decision in which we held the first two carriers liable and said:
“A recovery has been denied in cases like the one at bar on two grounds: First, that there is a positive duty resting on the receiving railway company to inspect the car turned over to it for transportation by another company, to the end that its employees may not be injured by defects existing before its receipt; that the omission or negligent discharge of such duty breaks the causal connection between the negligence of the company tendering the defective car and the plaintiff’s injury. In such cases the failure to inspect or the negligent manner of doing it is the proximate cause of the injury to the employee, and the negligence of the company turning over the unsafe car is the remote cause. The failure to discharge the obligation to inspect interposes an independent agency which severs the causal connection between the company first guilty of negligence and the hurt. It was so held in Fowles v. Briggs, 116 Mich. 425, 74 N. W. 1046, 40 L. R. A. 528, 72 Am. St. Rep. 537, a case very similar to this. See, also, Lellis v. Michigan Central R. Co., 124 Mich. 37, 82 N. W. 828. The duty of a railway company to inspect cars of other roads received by it is enjoined by law. (Mo. Pac. Rly. Co. v. Barber, 44 Kan. 612, 24 Pac. 969, Railroad Co. v. Penfold, 57 id. 148, 45 Pac. 574, Texas & Pacific Railway v. Archibald, 170 U. S. 665, 18 Sup. Ct. 777, 42 L. Ed. 1188.)” (p. 442.) (Emphasis supplied.)
The principle of proximate cause, or the interposition of an independent agency, as announced in the Merrill case, was later applied in favor of the carrier in McCallion v. Railway Co., 74 Kan. 785, 788, 88 Pac. 50, where plaintiff sued his employers and the carrier which furnished the employers a ballast car with a defective brake. That action was predicated upon the theory of a joint tort but the petition alleged plaintiff’s employers had personal knowledge of the defective brake on the day prior to the occurrence of the injury.
In Folsom v. Chicago, R. I. & P. Ry. Co., 157 Kan. 328, 139 P. 2d 822, the only question involved on appeal was whether the petition stated a cause of action against the ultimate delivering carrier. We said it did and held:
“The general rule is that a railway company, when it delivers a car of freight to the consignee to be unloaded, in the absence of notice to the consignee to the contrary, represents to the consignee or his employee that the car is in a reasonably safe condition to be unloaded.” (Syl. ¶ 1.)
In the instant case, as previously stated, it is not the ultimate delivering carrier but only the originating carrier that is being sued. Although the Folsom case pertained only to the liability of the ultimate delivering carrier, the opinion discussed the Merrill and Mc-Callion cases. It pointed out the reason for not holding prior carriers liable in those cases, and said:
“Our Merrill case and McCallion case both rest on the question of proximate cause of plaintiff’s injury, or, more accurately, whether there was an intervening cause which relieved defendant of liability for its negligence.” (p. 332.)
See discussion of the rule and cases from other jurisdictions in same opinion (pp. 332-333), in which one or both of the above mentioned Kansas cases are cited as applying to proximate or intervening cause, and see, also, Kurtz v. Detroit, Toledo & Ironton R. Co., 238 Mich. 289, 295, 213 N. W. 169.
Appellant argues the Merrill case absolves carriers prior to the ultimate delivering carrier from liability only where such prior carriers have actually inspected the car before transferring it to a connecting carrier. The contention is not good. In the Merrill case the proximate or intervening cause of injury which barred liability of the originating carrier and its connecting carrier was held to be the failure of the third, or last, carrier to inspect the car for the protection of its brakeman who was injured. (See original opinion in Railway Co. v. Merrill, supra, for factual statement, and also McCallion v. Railway Co., supra, p. 788.)
Appellant cites certain cases from other jurisdictions in which has been adopted a rule contrary to that which obtains in this state. That the authorities are not in complete harmony may be conceded. We do, however, pause to note that in Missouri Pacific Railroad Company, Thompson, Trustee, v. Armstrong, 200 Ark. 719, 141 S. W. 2d 25, cited by appellant, in which the initial carrier was held liable, the initial carrier delivered the car to the tracks of another railroad which was the consignee.
Notwithstanding the fact that the ultimate delivering carrier is not named as a party defendant in the amended petition, that petition clearly discloses the defendant, The Midland Valley Railroad Company, transferred the car of coal to the lines of a delivering carrier which hauled the car over its lines and set it at the unloading dock of the consignee for immediate unloading. With respect to the defective car set out for unloading the amended petition, briefly stated, alleged:
There was a hole in the floor of the car; the flooring around the hole was badly rotted; the hole was only partly covered with a board which left part of the hole in the floor exposed and unguarded; the condition of the floor was the same when it was unloaded as when it was originally loaded.
From these allegations it follows the ultimate delivering carrier set out a car for unloading which was just as defective then as when it was loaded. Railroad carriers have a duty imposed upon them by law to inspect cars received by them from other carriers. (Railway Co. v. Merrill, supra.) In the absence of notice of the defect to the consignee by the delivering carrier that carrier represents to the consignee and its unloading employees that the car is in a reasonably safe condition for unloading. (Folsom v. Chicago, R. I. & P. Ry. Co., supra.) The delivering carrier did not set out such a car. On the contrary, the amended petition discloses that carrier set out a car for immediate unloading with a hole in the floor which was exposed and unguarded and which was not in a reasonably safe condition for unloading. It gave the consignee no notice of the defective condition. Under the rule obtaining in this state the negligence of the delivering carrier in delivering such a car constitutes the proximate cause of the injury and the negligence of the originating carrier is the remote cause of the injury. Stated in another way, the negligence of the originating carrier was severed by the interposition of an independent agency which was the proximate cause of the injury. Until the delivering carrier was absolved of the negligence pleaded which, unexplained and unexcused, made that carrier primarily liable there could be no liability of the originating carrier which, if liable at all, was liable only secondarily. It follows the demurrer was properly sustained. The judgment is affirmed. | [
-12,
104,
-36,
-99,
26,
96,
42,
-102,
69,
-79,
39,
83,
-19,
-57,
-124,
33,
118,
63,
-48,
123,
-12,
-93,
3,
-5,
-110,
-109,
113,
69,
-79,
90,
100,
110,
76,
96,
10,
-43,
-26,
64,
-59,
92,
-114,
36,
-85,
-32,
91,
0,
48,
90,
84,
79,
81,
-114,
115,
46,
24,
-61,
105,
44,
107,
-83,
80,
-15,
-118,
7,
-1,
22,
33,
4,
-98,
-89,
-56,
58,
-112,
48,
16,
-84,
115,
-90,
-124,
-12,
107,
-103,
8,
98,
99,
33,
-124,
103,
-4,
-120,
38,
-86,
-113,
-89,
-112,
24,
3,
73,
-65,
-99,
126,
22,
14,
-2,
-1,
13,
93,
44,
-125,
-53,
-76,
-79,
79,
112,
-106,
91,
-21,
-91,
54,
116,
-52,
-78,
93,
7,
83,
-101,
-34,
-38
] |
The opinion of the court was delivered by
Dawson, C. J.:
This was a damage suit growing out of a collision of automobiles at an intersection óf township roads in Cowley county. It is a companion case to that of Orr v. Hensy, 156 Kan. 614, 135 P. 2d 565, wherein plaintiff’s wife who was a passenger in her husband’s car sustained injuries in the same collision. In this action the plaintiff husband has sued for damages in his own behalf.
It appears that at some distance west of Winfield two rural highways cross at right angles in the open country. The east-west town ship road on which plaintiff was driving was a graveled and much used country road. There was a slight upward grade east of the intersection. The north-south road on which defendant was driving was an ordinary dirt road, not so much used as the other. A motorist coming from the east had a clear view of the road and the intersection ahead of him for a considerable distance,- and likewise had a clear view of any traffic coming from the north for some 400 feet. At that distance there was a knoll north of the crossroads beyond which no south-bound traffic could be seen by a motorist approaching the intersection from the east. From the knoll southward there was a slight downward grade to the crossroads; and a motorist coming from the north, as soon as he reached the crest of the knoll, had a clear view for a longdistance of any traffic coming from the east.
In the late afternoon of May 17, 1941, in clear daylight, plaintiff and wife were returning from Winfield to their home which was not far from the crossroads. When plaintiff’s car, proceeding westward, was more than half way across the intersection, defendant’s car which came from the north crashed into the side of plaintiff’s car and plaintiff was severely injured.
Hence this lawsuit.
Plaintiff alleged the material facts of the accident; that he was wholly without fault; and that his injuries and damages were caused through the negligence of defendant; and that defendant’s negligence consisted of these delinquencies, to wit: («) Failure to keep a careful lookout ahead and in failing to look either way or to observe other vehicles approaching the intersection. (b) Failure to drive the vehicle in which he was riding and operating it at such a speed that it could be stopped within the assured clear distance ahead, and in failing to apply his brakes or to turn aside and avoid striking the vehicle which plaintiff was driving, (c) Failure to yield the right of way to plaintiff when the vehicle which plaintiff was drivng was within the intersection before the defendant entered it. (d) Failure to drive his vehicle in a careful and prudent manner, having due regard for the condition of the highway, the surface thereof and the vehicles thereon, (e) Driving his vehicle at a speed greater than was reasonable and prudent under the circumstances then existing on said highway.
In a second cause of action plaintiff sought a recovery for damages to his automobile.
In defendant’s answer, after certain admissions and a general denial, he alleged that plaintiff was thoroughly familiar with both roads at the intersection and with the traffic thereon; that plaintiff was guilty of contributory negligence in various respects which contributed to and brought about the collision, and particularly in that plaintiff failed to keep a careful lookout ahead and failed to observe the approach of other vehicles at the intersection and failed to drive his car in a careful manner having due consideration to other traffic using the roads thereabout.
The cause was tried before a jury. While the evidence was extensive it did not develop any sharp dispute of material fact. The negligence of defendant was established. So, too, were the extent and gravity of plaintiff’s injuries. The critical phase of the case turned upon the issue of plaintiff’s contributory negligence. All the evidence showed without dispute that there were no obstructions to the view of a motorist approaching the intersection from the east, nor to the view of a motorist approaching the crossing from the north. Plaintiff testified that he was perfectly familiar with the crossing and had been over it on an average of once a week for the past ten years. He testified that on the afternoon of the accident the day was clear and dry; that his eyesight was good, and that the sun did not interfere with his vision. On the north side of the east- and-west road and east of the intersection there was only a wire fence, and no hedges, brush or shrubbery to cut off the view. Along the east side of the road north of the crossing there was the same sort of wire fence, the fence posts of which were not thick enough to obstruct the view.
Plaintiff’s testimony, in part, reads:
“The grade on that north and south road, north from the intersection is a slight grade up hill. It goes up from the intersection north about 400 feet, at that point 400 feet north of the intersection, there is what you would call a knoll. After the north and south road reaches that point it drops down in a draw. . . . From my acquaintance with the road, I would say the driver of an automobile starting back here a quarter of a mile to the east of the intersection and from there on up to the intersection would be able to see a car any place south of that knoll as it came down that road. It would be in plain view. There would be nothing to obstruct his view of it at all. There wasn’t anything that day to obstruct my view or prevent me seeing a car coming from the north. . . .
“Q. As you came up there from the east were you as you were going along watching to the north as well as to the west for approaching cars? A. Yes, sir. . . . The last time I remember looking to the north before I entered the intersection I would say I was something like 80 or 90 feet from the inter section.' I don’t mean 80 or 90 feet back of the center of the intersection. At that time I could see clear up to that knoll to the north. If there had been a car anywhere south of that knoll I could have seen it. .. . If there had been a car anywhere south of that knoll I could have seen it if I had looked. I don’t see why I couldn’t if it was moving. When I first saw the Hensy car, I would say it was 20 or 30 feet north of me. I was on the north side of the east and west road. At that time I would say my front wheels had crossed over the center of the north side of the road. ... He was 26 to 30 feet north of me. I hadn’t seen his car at any time from this knoll 400 feet north until it was down within 26 or 30 feet of my car. My guess would be from what I can remember it would be probably 30 feet from me. It had traveled 370 feet from the knoll down to where he was when I saw him and I hadn’t seen his car at all.’’ (Italics ours.)
The evidence showed that on the south side of the eastwest road, east of the intersection, there was a hedge which would obscure the view of a motorist approaching from the east, so that greater care and prudence on the part of the motorist would naturally be required to be on the lookout for traffic approaching the crossing from the south than from the north where the view was open and unobstructed. Plaintiff testified:
“As I came up there approaching the intersection there was no car approaching from the west within 600 feet and no danger of any car from the west. When I got to the comer or near the corner, I looked to the south to see if a car was approaching from the south. At that time I would say I was just entering the intersection. As I looked to the south I saw no car approaching from the south, then I just looked — turned my head to look to the west [north] and I got the flash of this car. I didn’t see the car before that time or hear it.’’ (Italics ours.)
A neighbor of plaintiff called as a witness in his behalf testified in part thus:
“I am familiar with the intersection, which we have generally located about two miles west and a mile south of Winfield. It is the intersection at which this accident occurred. . . . This east-and-west road was a gravel road. The road north of the intersection was a dirt road at that time and the traveled portion of it was 15 or 16 feet. I have observed this knoll north from the intersection. It is in the neighborhood of 400 feet north of the intersection. . . . The only obstruction to the view along the east side of the north and south road and along the north side of the east and west road was just a barbed wire fence and a telephone line. A Kansas barbed wire fence and a telephone line would not obscure the view very much. As a matter of fact, there wasn’t anything to obstruct the view of a fellow coming down here from the north, if he had looked to the east to see if there was a car coming. There wasn’t anything there to obstruct the view of a man coming from the east towards the intersection. From a quarter of a mile east, a car coming from the north along this road, if he had looked and there had been a car between that, knoll and the intersection, he could have seen it." (Italics ours.)
Defendant’s demurrer to the evidence and his motion for a directed verdict were overruled. The jury returned a general verdict for plaintiff and made special findings of fact, viz.:
“1. At what' rate of speed was Orr’s car traveling from a quarter of a mile east of the intersection until it reached the oast line of the intersection? A. Approximately twenty miles per hour.
“2. At what rate of speed was Orr’s car traveling from the east line of the intersection until the collision? A. Approximately twenty miles per hour.
“3. At what rate of speed was Hensy’s car traveling from the knoll north of the intersection until it reached the culvert north of the intersection? A. Approximately forty miles per hour.
“4. At what rate of speed was Hensy’s car traveling from the culvert north of the intersection until the collision? A. 40 miles per hour.
“5. Approximately how. far north of the intersection was Hensy’s car when Orr says he looked to the north from a point 80 or 90 feet east of the intersection? A. Approximately 160 to 180 feet.
“6. As Orr’s car approached the intersection how far north of the intersection could a person in his car in the driver’s seat hhve seen a car from the north if he had looked?
“(a) When he was 200 feet east of the intersection? A. He could see to the top of the knoll.
“(b) When he was 80 or 90 feet east of the intersection? A. He could see to the top of the knoll. " .
“7. Did Mr. Orr look for cars approaching from the north when he was 80 or 90 feet east of the intersection? A. Yes.
“8. Did Orr then see the Hensy car approaching from the north? A. No.
“9. What, if anything, was there to prevent Orr from seeing the Hensy caías it approached the intersection at that time? A. Nothing.
“10. In what distance could Orr have stopped his ear when traveling at the speed which he was traveling as he entered the intersection? A. Approximately 20 to 22 feet.”
Defendant filed the usual post-trial motions including one for judgment on the special findings of the jury. These were overruled; judgment was entered on the verdict, and defendant appeals.
The errors urged center about the rendition of judgment on the general verdict, in-view of the special findings of fact.
As we have seen, there was no sharp dispute of material fact in this lawsuit; and the jury’s special findings which control the general verdict (G. S. 1935, 60-2918, Civ. Code, § 294) project for our consideration the question whether the special findings of fact in this case convict the plaintiff of contributory negligence.
It cannot be gainsaid that it was the plaintiff’s duty to look for traffic which might be approaching the intersection from the north, and to regulate his own approach to the crossing as the circumstances would require. Plaintiff testified that he did look when he was 80 or 90 feet east of the crossing, and that he did not see defendant’s car approaching from the north, but there was nothing to obscure his view or which would have prevented his seeing it. The jury’s special findings are in exact accord with plaintiff’s testimony on these highly significant facts. Why then did plaintiff fail to see defendant’s car, which the jury found was only 160 to 180 feet from the intersection when plaintiff looked but did not see it, when he was but 80 or 90 feet east of the intersection? There can be but one answer to this question, and this court and other courts have answered it many times. When a litigant has a duty to look and testifies that he did look but did not see what was plainly to be seen, such ineffectual looking has no more legal significance than if he had not looked at all.
Back in the days when automobiles were just coming into general use, it was held by this court—
“It is the duty of one in charge of an automobile, driving upon a public street or highway, to look ahead and see all persons and horses in his line of vision, and in case of accident he will be conclusively presumed to have seen what he should and could have seen in the proper performance of such duty.” (McDonald v. Yoder, 80 Kan. 25, syl. ¶ 2, 101 Pac. 468.)
The rule just quoted accorded with the common law and with the statute then in force, and although the statute regulating the operation of motor vehicles has been repeatedly revised in the last thirty-five years, no later legislative enactment nor any later decision of this court has lessened the required duty of a motorist approaching public crossroads to look for other traffic within the range of his vision and to govern the operation of his vehicle as reasonable prudence may require under the circumstances. In Leinbach v. Pickwick Greyhound Lines, 135 Kan. 40, 55, 10 P. 2d 33, we said:
“The statutory rule governing the requisite degree of care in driving motor vehicles on public highways and city streets is in accord with the pertinent legal principles of due care which the courts have worked out independent of statutes. These rules of law are imperatively necessary for the protection of life, limb and property in this age of growing congestion of motor traffic,
The rule announced in McDonald v. Yoder, supra, is in accord with the rule of the. textbooks. Thus in 3 Berry’s Law of Automobiles (7th ed.) 27, it is said:
“One approaching an intersection is ‘not only required to look, but he must look in such an intelligent and careful manner as will enable him to see the things which a person in the exercise of ordinary care and caution, for his own safety and the safety of others, would have seen under like circumstances.’
“A motorist will be held to have seen what he should have seen and what there was nothing to prevent him from seeing, and if he looks and fails to see an on-coming automobile in plain view he is negligent.”
In 2 Blashfield’s Cyclopedia of Automobile Law and Practice (Perm, ed.) 223, it is said:
“A motorist approaching a highway crossing, in order to exercise that reasonable care to avoid injuring or being injured which is the measure of duty of such drivers, must look for other vehicles approaching or crossing the intersection. The duty is, indeed, not merely one of looking, but is one of observation, imposing upon a motorist so approaching the necessity of being observant as to the traffic and general situation at or in the vicinity of the intersections; he must look in such an intelligent and careful manner as to enable him to see what a person in the exercise of ordinary care and caution for the safety of himself and others could have seen, under like circumstances.”
These quoted textbooks fortify their statement of the rule with a wealth of authorities from almost every state in the union. See, also, the plethora of similar decisions digested in the 1943 Cumulative Supplement to Blashfield’s text, at pages 99-105.
Now let us consider plaintiff’s brief to learn, if we may, how a judicial declaration of plaintiff’s negligence as a matter of law can be avoided, in view of the jury’s special findings.
The negligence charged against defendant lay in his failure to keep a careful lookout and to observe the approach of other vehicles, failure to operate his car at a speed at which it could be stopped within the assured clear distance ahead, failure to apply his brakes, failure to yield the right of way, failure to drive his car in a careful manner, and in driving it at a greater speed than was reasonable and proper.
Of course the general verdict resolved in plaintiff’s favor whatever material dispute of fact was raised on those allegations. So we need waste no time concerning defendant’s negligence.
But since it was negligence for defendant to fail to observe plaintiff’s automobile as it approached the crossing from the east how can we avoid saying it was negligence for plaintiff to fail to observe defendant’s automobile as it came from the north? Each automobile was in plain view to the driver of the other car. Each • driver failed to operate his car at a speed at which it could be stopped to avoid a collision at the crossing. Each driver was utterly oblivious to the approach of the other. This court cannot stultify itself by holding that in such situation defendant was negligent and that plaintiff was not. In Stuck v. Tice, 291 Mich. 486, 289 N. W. 225, the first section of the syllabus reads:
“Normally, when two ears collide on a bright clear day at the intersection of thoroughfares of equal importance, both drivers are to blame as it becomes the duty of both drivers to slow down and respect each other’s rights.”
Counsel for plaintiff direct our attention to that feature of the statute which gives precedence to the motorist who first enters the intersection. True, but that is not all the statute says which is pertinent here. G. S. 1943 Supp. 8-550, in part, reads:
“(o) The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway. (&) When two vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right.”
In this case, of course, the two cars did not enter the intersection at exactly the same time. Plaintiff’s car entered the intersection at 20 miles per hour, which would.be 29% feet per second. As the two cars collided about 27 feet west of the point where plaintiff’s car entered the intersection, defendant’s car could not have entered it more than one second behind plaintiff’s. It may well be doubted whether the legislature contemplated that the right of precedence at a country crossroads would turn on the matter of a split second between approaching motorists.
But without ignoring plaintiff’s momentary right of precedence, we cannot ignore the other equally potent rule of the .same statute' — ■ that “when two vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right of may to the vehicle on the right.” In Gulf Ins. Co. v. Robins (La. App. 1943), 15 So. 2d 552, it was said:
“Where both automobiles entered intersection almost simultaneously, motorist approaching from right had the right of way and it was duty of other motorist to acknowledge it.”
And in Herndon v. Higdon (D. C. Mun. App.), 31 Atl. 2d 854, it was said:
“A motorist approaching intersection was required to look in both directions, particularly to his right, as traffic from that direction had the right of way.”
In Gavin v. Everton (Wash. 1944), 144 P. 2d 735, two sections of the syllabus read:
“All rights of way are relative, and duty to avoid accidents pr collisions at street intersections rests on both drivers.
“Primary duty of avoiding accident at street intersection rests on driver on the left, which duty he must perform with reasonable regard to maintenance of fair margin of safety at all times.”
It is vigorously argued in plaintiff’s behalf that plaintiff had a right' to rely on defendant’s duty to obey the rules of the road and yield to plaintiff the right to enter the intersection first. We are at a loss how to apply that to the case at bar. If plaintiff had looked with sufficient care to have observed defendant’s approaching car, he could, of course, measurably depend upon defendant’s obedience of the rules of the road. But he himself did not observe the rules of the road. He did not look with sufficient care to see defendant’s car speeding towards the crossing; and it is impossible to excuse his negligence on the fallacious presumption that the defendant whom he did not see would yield to him the right of precedence to cross the intersection. Clearly, according to a majority view of this court, the special findings of the jury convicted plaintiff of contributory negligence, and those findings compel judgment for defendant notwithstanding the general verdict. (Cruse v. Dole, 155 Kan. 292, 124 P. 2d 470; Sayeg v. Kansas Gas & Electric Co., 156 Kan. 65, 67, 131 P. 2d 648.)
We have not failed to consider that in this case we have reached a different conclusion from Orr v. Hensy, 156 Kan. 614, 135 P. 2d 565, decided a year ago. To some of the justices who acquiesced in that decision, including the writer, it was a border-line case, in which some consideration was given to the fact that Mrs. Orr, a passenger in the car, could not in all respects be held to every detail of duty imposed upon the driver of the automobile to govern its operation in accord with the rules of the road and to operate it with due regard to other traffic which could be seen approaching the crossing from a different highway.
The judgment is reversed and the cause remanded with instructions to enter judgment for defendant.
Harvey and Parker, JJ., dissent. | [
-14,
104,
-80,
-68,
24,
106,
42,
10,
49,
-79,
-91,
83,
-81,
-53,
1,
113,
-66,
61,
85,
123,
-11,
-77,
19,
-77,
-78,
115,
-5,
77,
-93,
-55,
-3,
119,
76,
48,
-118,
-35,
-90,
72,
69,
28,
-42,
-114,
-85,
-12,
89,
10,
-68,
122,
0,
15,
85,
-113,
-9,
46,
26,
-57,
-87,
40,
75,
-88,
-63,
-16,
-44,
71,
126,
20,
-95,
4,
-98,
5,
88,
25,
-104,
49,
-56,
60,
115,
-90,
-106,
-12,
33,
-103,
8,
-26,
103,
33,
16,
-49,
-20,
-104,
38,
122,
13,
-91,
-102,
72,
-127,
-120,
-106,
29,
125,
112,
75,
-22,
-5,
69,
89,
104,
7,
-53,
-78,
-111,
-51,
54,
-112,
36,
-21,
5,
50,
113,
-57,
-30,
93,
69,
19,
-69,
-41,
-106
] |
The opinion of the court was delivered by
Hoch, J.:
This was an action by a rail carrier to recover an undercharge on an interstate freight shipment. The defendant prevailed and the plaintiff appeals.
Three carloads of sheep were loaded at Eagle, Colo., freight prepaid to Tennessee Pass, Colo., where they were unloaded and.put on pasture for several months. From Tennessee Pass they were shipped to the Denver market, where they were purchased by appellee, F. J. Richards, and consigned to him at Scottsville, Kan. Under a provision of the tariff rules which permits sale in transit they were moved to Scottsvillé on a through bill of lading from Tennessee Pass. The consignee, who was liable for all unpaid freight, thus received the benefit of the through rate which was considerably lower than a combination of the local rates from Tennessee Pass to Denver and from Denver to Scottsville.
•When the sheep reached Scottsville the local agent of the carrier did not know how to compute the total freight charges, but after some inquiry advised the appellee that the correct rate was 48 cents a hundred pounds. On December 2, 1939, the appellee paid the freight bill of $360.30 computed at the 48-cent rate, and the agent marked the freight bills “Paid in full.” Subsequently the carrier advised the consignee that a mistake had been made, that the correct, published rate was 60 cents a hundred, and made demand for $90.09, the balance alleged to be due under the correct rate. There is no controversy as to the weight of the shipment or as to the mathematical computations. Relying upon the fact that he had paid the amount of freight originally charged and had been given a receipt in full, the consignee refused to pay the amount demanded and this action to collect the alleged undercharge of $90.09 followed. The answer was in substance a general denial.
Trial was had before a jury in January, 1943. At the close of the evidence the plaintiff demurred to the defendant’s evidence on the ground that it stated no defense to the cause of action’ and moved' for a directed verdict. The demurrer and the motion were overruled.
The jury brought in a general verdict for the defendant and answered special questions as follows:
“1. What do you find was the correct rate per hundred pounds for the shipment involved herein from Tennessee Pass, Colorado, to Scottsville, Kansas? A. We don’t know.
“2. What do you find was the rate per hundred pounds which was collected from the defendant for the shipment involved herein from Tennessee Pass, Colorado, to Scottsville, Kansas? A. 480.
“3. What was the weight of the sheep shipped? A. 75,063 pounds.”
The plaintiff asked that the jury be required to go out again and bring in a definite answer to the first question. The motion was denied. Motion for a new trial was made and overruled, and this appeal followed. Appellant’s principal contention is that the court erred in overruling the demurrer and the motion for a directed verdict.
Before considering the appeal on its merits we note that appellee renews his contention- — heretofore made in a motion to dismiss, which was overruled — that the appeal should be dismissed because less than $100 is involved. The contention is not good. The freight shipment was interstate in character. Laws of the United States being involved this court has jurisdiction to entertain the appeal, regardless of the amount plaintiff seeks to recover. (G. S. 1935, 60-3303, Thomas v. Chicago, B. & Q. Rld. Co., 127 Kan. 326, 329 and cases there cited, 273 Pac. 451; 2 Am. Jur., §§ 38-40; 4 C. J. S., pp. 141-144.)
The only freight charge that may lawfully be collected is the one computed in conformity with the freight tariffs duly published and filed as required by law. It is provided in the Interstate Commerce Act (U. S. C. A. Title 49, § 6, ¶ [7]) that:
“No earner, unless otherwise provided by this chapter, shall engage or participate in the transportation of passengers or property, as defined in this chapter, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this chapter; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time; nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs.”
There being only one lawful charge the carrier has no option in the matter. In case of undercharge the carrier must take steps to collect the balance due, and failure to do so subjects it to severe penalities. It is well settled that neither the good faith of the parties when the erroneous charge was made nor the giving of a receipt “in full” is a defense in an action to recover on the undercharge. (Pittsburg, C. C. & St. L. R. Co. v. Fink, 250 U. S. 577, 63 L. Ed. 1151; N. Y. Central v. York & Whitney Co., 256 U. S. 406, 65 L. Ed. 1016; 83 A. L. R. 245, 268; Railway Co. v. Wagner, 102 Kan. 817, 172 Pac. 519; Farrar v. Perkins, 122 Kan. 141, 251 Pac. 440.)
In cases such as here presented this rule may seem a harsh one, but any other rule would open the door to 'evasion of the law and bring back the old practice of rebates, preferences and discriminations under which fair competition was stifled and artificial economic advantage given to favored localities and sections of the country. To put an end to that sort of thing was the primary purpose behind the enactment of the Interstate Commerce Act.
There was no dispute, in the instant case, as to the amount paid by the consignee, nor as to the facts and circumstances incident thereto. There remained only one primary fact to be determined. What was the correct rate? That fact being determined, the amount to be collected would follow as a mere mathematical computation. The plaintiff put on the stand as an expert witness a man who had been 'an employee of the company for forty-two years, an employee in the rate department since 1905 and an assistant general freight agent for fourteen years. He introduced various exhibits relating to rates and charges and testified, repeatedly and unequivocally, that the correct and lawful rate on the shipment was 60 cents .a hundred.
The defendant was permitted, over the objection of plaintiff, to introduce evidence as to the rate between Denver and Scottsville, as to rates applicable on different routings and as to charges collected on other shipments. None of this was competent and should have been excluded. The only issue was as to the correct and lawful rate on the shipment involved, between Tennessee Pass and Scottsville. The defendant offered no testimony on that issue and plaintiff’s evidence that the correct rate was 60 cents a hundred stood unchallenged.
Defendant’s evidence consisted of a recital of facts and circumstances incident to the shipment and the submission of copies of correspondence with the plaintiff subsequent to the shipment, and of the freight bills covering the shipment showing a notation by the local agent that the charges had been paid in full. There was nothing in this evidence which constituted any defense to the cause of action established prima facie, by the plaintiff. Plaintiff’s demurrer to defendant’s evidence should have been sustained.
If the demurrer to defendant’s evidence had been sustained was the plaintiff then entitled to a directed verdict? The plaintiff’s witness had testified that the correct rate was 60 cents. That testimony stood uncontradicted. The rate determined the amount due. We are well aware of the rule that a verdict should not be directed where there is any conflict of evidence on a material question of fact. But we think the situation here presented brings it within the other rule that where the evidence reasonably admits of only one conclusion and clearly shows the right of the plaintiff to a verdict, a motion for a directed verdict should be sustained. (26 R. C. L. 1073; 64 C. J. 459, 469; Ryan v. Harwood, 145 Kan. 267, 65 P. 2d 277; Furst v. De Witt, 145 Kan. 300, 305, 65 P. 2d 567. In White v. Village of Soda Springs, 46 Idaho 153, 266 Pac. 795, syllabus 4 reads: “Failure of defendant to offer any evidence partakes of the nature of demurrer to plaintiff’s evidence.” That may be, however, a somewhat extreme statement of the rule.)
We conclude that there remained no issue of fact which would justify submitting the case-to the jury and that plaintiff was entitled to judgment.
The judgment is reversed with directions to sustain plaintiff’s motion for a directed verdict for the amount prayed for. | [
114,
122,
-75,
-83,
10,
96,
42,
-102,
53,
-31,
-90,
83,
-19,
-122,
-123,
113,
-89,
61,
113,
40,
-12,
-73,
3,
-37,
83,
-45,
51,
-57,
-71,
76,
44,
68,
79,
64,
74,
21,
102,
-62,
-59,
24,
-50,
4,
-71,
-23,
-7,
2,
60,
-21,
22,
79,
49,
-113,
-6,
46,
24,
-63,
41,
46,
123,
-87,
-64,
-15,
-70,
6,
125,
6,
17,
32,
-104,
6,
-56,
62,
-48,
49,
3,
-71,
-6,
-90,
-122,
-44,
41,
-103,
12,
102,
102,
33,
84,
-17,
44,
8,
38,
-7,
-99,
-89,
18,
24,
3,
97,
-98,
29,
116,
82,
6,
-2,
-2,
13,
31,
-24,
1,
-114,
-74,
-77,
-1,
44,
-104,
30,
-17,
-95,
51,
112,
-51,
-30,
93,
71,
123,
-101,
-121,
-100
] |
The opinion of the court was delivered by
Thiele, J.:
This was an action for conversion of personal property which had been mortgaged to plaintiff. Defendants appeal from an adverse judgment.
The gist of the petition was that on May 31, 1939, J. E. Kirkham and Anna L. Kirkham delivered to the plaintiff bank their promissory note for $2,500, to secure which they delivered a chattel mortgage on certain described concrete pipe; that the note had not-been paid and there w'as due on it a balance of more than $1,588.20; that on or about March 1, 1941, the defendants unlawfully took possession of a part of the property described in the chattel mortgage, and appropriated it to their own use; that the value of the property so taken was $1,588.20, for which the bank prayed judgment.
The defendants’ answer alleged that on May 11, 1937, they entered into a joint venture or partnership contract with J. E. Kirk-ham for the manufacture of concrete pipe, a copy of the contract being attached and later referred to; that they had no information concerning the note and mortgage mentioned in the petition and if Kirkhams were indebted to the bank, the obligation was for the individual indebtedness of Kirkhams and not for the purpose of securing or furnishing funds for the operations of the joint venture or partnership; that defendants did not know whether the pipe described in the chattel mortgage was pipe belonging to the joint venture or partnership, and that the description was so vague and uncertain as to render the mortgage void; that defendants denied taking possession of or appropriating any pipe upon which-plaintiff had any mortgage, and that if any pipe, upon which plaintiff had a mortgage, was manufactured by and belonging to the joint venture or partnership, then they denied that Kirkhams had any authority to mortgage the pipe to plaintiff.
The contract above mentioned is long. It was dated May 11, 1937, and recited it was made between Kirkham Concrete Products Company of Topeka and Grundeman Construction Company of Holton. It provided for the manufacture of pipe in Topeka, for contributions of each party, that the joint venture should be carried on under the name of Kirkham Concrete Products Company; that the joint venture account should be set up and operated on a 100 percent basis of which each .party was the owner of 50 percent of all pipe made and sold, and that settlement should be made between the .parties each calendar month.
At the trial there was evidence tending to show that J. E. Kirk-ham began business in 1932 under the name “Kirkham Concrete Products -Company”; that he had been a customer of plaintiff bank since 1936 and had no other bank account; that he had1 sold the business in 1940, including the pipe plant, and the proceeds' of sale were -applied on his note; that business under the joint venture contract was commenced in May, 1937, and was terminated in De cember, 1938, at which time there was on hand some rejected pipe. In 1939 Grundemans took away equipment owned by them, and at a date not disclosed they moved pipe from the plant at Topeka to Holton. There was also evidence tending to show that after the joint venture terminated, Kirkham continued in 1938 and 1939 to make concrete pipe in Topeka. Without detailing it, there was evidence tending to show that defendants did not know Kirkham had borrowed money nor made the mortgage, also that if the bank had visited the plant, it would have discovered Grundemans’ interest therein. There was also evidence that the value of the pipe removed by defendants to Holton Was $1,588.20 and that it was worth only $469.20.
At the conclusion of the trial by the court without a jury, the court rendered judgment in favor of the bank and against-the defendants for $505.20. Defendants’ motion for a new trial w$,s denied and they appeal to this court.
In this court the appellants present the question whether a partnership existed between Kirkham and the Grundemans, and if it did, may one partner execute a valid chattel mortgage on partnership property to secure an individual debt, and are appellants estopped to deny Kirkham’s authority to execute such a mortgage. We note in general appellee’s contention that under the contract Kirkham was held out as the owner and that Grundemans were silent or dormant partners, and that the chattel mortgage was taken under such circumstances that Grundemans may not now complain, as well also its contention that under the evidence it was entitled to judgment.
In our opinion it is- not necessary that we discuss1 any question of partnership. The trial court was not requested to and did not make any findings of fact. However, the general judgment for the plaintiff necessarily includes a finding in its favor of any facts warranting the judgment. (Greenwood v. Texas-Interstate P. L. Co., 143 Kan. 686, 689, 56 P. 2d 431.) • There was evidence warranting findings of fact that notwithstanding a partnership may have existed, that under its terms each party was the owner df one-half of the pipe manufactured; that the partnership ceased its operations in 1938 and that thereafter Kirkham made pipe on his own behalf and before the note and chattel mortgage were executed and delivered to the bank; that the defendants took possession of some of that pipe and removed it to Holton; that the value of the pipe was at least $469.20, or perhaps at most $1,588.20. We realize that there was evidence warranting a different conclusion, but the weight to be given the evidence was for the trial court. We are concerned only with whether there was evidence to support the judgment, and we find there was. In such case, we are not now concerned whether at one time a partnership existed, and what legal results follow from the execution of a chattel mortgage by one ostensibly acting in his individual capacity, but who actually has a silent or dormant partner.
The general rule is that in the absence of an affirmative showing of error affecting the result, the judgment must stand. (See Hess v. Hartwig, 89 Kan. 599, 132 Pac. 148.)
The record before us does not disclose any error requiring a reversal and the judgment of the trial court is affirmed. .' '. | [
-16,
105,
-40,
108,
-118,
-32,
56,
-102,
125,
-92,
-89,
83,
-23,
-50,
4,
109,
70,
125,
80,
122,
-27,
-77,
3,
11,
-46,
-13,
-7,
-35,
-72,
-33,
-28,
86,
76,
48,
-62,
-107,
-30,
-110,
-63,
30,
-50,
-124,
40,
-60,
-7,
64,
52,
-85,
52,
8,
81,
-113,
-77,
40,
57,
-49,
73,
46,
107,
60,
-48,
-7,
-118,
-123,
95,
23,
33,
4,
-124,
101,
-8,
18,
-104,
53,
9,
-24,
112,
-90,
-122,
-12,
15,
-117,
9,
38,
98,
48,
1,
-21,
-4,
-104,
46,
-2,
-115,
-90,
-47,
88,
66,
41,
-66,
-99,
109,
19,
-124,
84,
-18,
21,
89,
109,
3,
-49,
-10,
-77,
13,
117,
-103,
11,
-17,
-123,
32,
112,
-121,
32,
93,
-57,
58,
-109,
-114,
-16
] |
The opinion of the court was delivered by
Parker, J.:
This was an action instituted under the provisions of G. S. 1935, 66-232, to recover damages resulting from a fire alleged to have, been caused by defendants in the operation of its railroad. The plaintiff prevailed and the defendants appeal.
The sufficiency of the pleadings is not involved in this controversy. Briefly, it can be stated the petition alleged the defendants in the operation of their railroad set a fire along its right of way, which fire burned over and across other combustible material, between the point of its origin and plaintiff's real estate where it burned and destroyed a house, barn, granary, garage and other property be-' longing to the plaintiff. The answer denied the fire was caused by the operation of the railroad and alleged that if it was started in the operation thereof the sole and proximate cause of the destruction of plaintiff’s property was his carelessness and negligence in permitting inflammable and combustible material and vegetation to accumulate and remain upon his real estate and that he failed to exercise ordinary care and precaution to guard against and prevent the spread and communication of fires to his property, the exercise of which care would have prevented the loss and-damage sustained by him.
At the trial, which was to a jury, eight witnesses testified for the plaintiff and nine for the defendants. For reasons to be presently disclosed it is unnecessary to relate all the testimony or its substance. Summarizing, in addition to proof of value of the buildings at the time of their destruction, it can be stated the plaintiff’s evidence disclosed that the fire started on the defendants’ right of way at a point approximately 100 rods south of the plaintiff’s buildings, shortly after a little yellow railroad car, propelled by a gasoline motor, had been observed going down the railroad track and past the point where it was first observed, and that thereafter such fire spread to the north to the place where it reached the plaintiff’s land and set fire to and destroyed his buildings. It also disclosed that no vehicle or person, save and except the railroad car referred to, and the person or persons riding thereon, had been seen by plaintiff’s witnesses in the vicinity of where the fire originated. Defendants demurred to this evidence, and, when that demurrer was over ruled, produced their evidence. At the close of all the testimony they requested the court to instruct the jury to return a verdict in their favor. This requested instruction was refused. Thereafter the cause was submitted to the jury, which in due time returned a verdict in favor of plaintiff.
Appellants’ specification of errors raises but two questions, a fact which they candidly admitted on oral argument. Those issues are that the trial court erred in overruling their demurrer to the plaintiff’s evidence and in refusing to instruct the jury to return a verdict in their favor.
At the outset, and before we can review any of the alleged errors complained of, we must first determine a question raised by appellee, through the medium of a motion to dismiss the appeal, based upon the ground that appellants have not caused a complete transcript of the evidence to be prepared and filed. Appellee points out, and appellants admit, that notwithstanding the fact seventeen witnesses testified at the trial the transcript procured and filed by the appellants covers the testimony of only four of appellee’s witnesses and one of appellants’. It is urged that this failure to furnish a complete transcript precludes a review of the issues raised by the specification of errors and requires a dismissal of the appeal.'' This point is a serious one and under the circumstances of this case seems to be insurmountable.
In a long line of decisions dealing with appellate procedure we have established the general proposition that a litigant who is dissatisfied with the disposition of a cause in the trial court must see that such a record is made as will enable this court to review the errors of which he complains, and that failure to provide a complete transcript of the evidence or the procuring of a partial or incomplete one greatly restricts the scope of appellate review, in fact, excludes from the scope thereof all features of the lawsuit dependent upon such evidence. Viewed in the light of this general rule the sufficiency of the record has been tested on many occasions under varied conditions ánd circumstances — as in this case — by a motion to dismiss the appeal. Reference to specific cases discloses that where no transcript or only an incomplete transcript of the evidence has been supplied by the appellants we have held there can be no appellate review of — findings of fact, Mercer v. Kirkwood, 147 Kan. 637, 77 P. 2d 929; requested findings of fact, Buckwalter v. Henrion, 111 Kan. 781, 208 Pac. 645; motions for judgment on opening state ments, Deerhead Township v. Fritz, 152 Kan. 110, 112, 102 P. 2d 1035; objections to instructions based on the premise the evidence did not warrant their submission, Green v. Frank, 148 Kan. 194, 80 P. 2d 1082; a contention there was no evidence .to support a judgment as rendered, Readicker v. Denning, 86 Kan. 79, 119 Pac. 533; trial errors complained of, Farmers State Bank v. Crawford, 140 Kan. 295, 37 P. 2d 14; Schreiner v. Rothgarn, 154 Kan. 20, 114 P. 2d 834, or any and all questions arising on the evidence, Hegarty v. Refining Co., 110 Kan. 171, 204 Pac. 144; Everett v. Everett, 110 Kan. 742, 204 Pac. 723; Sproul v. Russell, 135 Kan. 620, 11 P. 2d 978; Darst v. Swazee, 135 Kan. 458, 11 P. 2d 977; Kininmonth v. Carson, 156 Kan. 808, 137 P. 2d 173. Under similar circumstances where a review of the sufficiency of findings of fact has been sought it has been said that such findings must be accepted as correct and it must be assumed there was evidence to support them. (King v. Stephens, 113 Kan. 558, 560, 215 Pac. 311; Amusement Syndicate Co. v. Martling, 118 Kan. 370, 376, 235 Pac. 126.) Other decisions dealing with various phases of the subject are Stephens College v. Long, 156 Kan. 449, 450, 134 P. 2d 625; Nelson v. State Bank of Keats, 138 Kan. 629, 27 P. 2d 208, and Garrison v. Amrine, 155 Kan. 509, 510, 126 P. 2d 228. Many other cases could be cited but we shall not attempt to list all of them. They are to be found in the opinions of those we have just referred to.
Appellants meet the appellee’s challenge of their right to appellate review by the statement the transcript furnished by them contains all the material evidence adduced at the trial which they deem necessary for the consideration of the court on the questions presented and that the transcript in fact contains all testimony on the question of whether they set the fire in the operation of their railroad. There are decisions to be found, and appellants point to them, holding: That where no one has been inconvenienced and the record and files sufficiently present the questions submitted for review the decision of this court will be upon the merits rather than the motion to dismiss (Wingrove v. People’s Nat’l Bank, 127 Kan. 722, 275 Pac. 150), that the want of a transcript does not necessarily require the dismissal of an appeal, particularly when the issues are such this court can find there is evidence to sustain the trial court’s finding and a judgment can be upheld on the basis of 'the evidence before us, irrespective of the lack of a transcript (Putman v. City of Salina, 136 Kan. 637, 17 P. 2d 827; Huston v. Tower, 126 Kan. 527, 268 Pac. 839; McGuire v. Davis, 95 Kan. 486, 491, 148 Pac. 755, and Wyckoff v. Brown, 135 Kan. 467, 11 P. 2d 720), and that a motion to dismiss will not be sustained where for some reason the moving party without objection has acquiesced in the filing of a partial transcript or by his action precluded himself from relying thereon. (See Shreve v. White, 143 Kan. 838, 57 P. 2d 24, and Johnson v. State Highway Commission, 148 Kan. 489, 490, 83 P. 2d 619.) In all these cases it must be noted the rule restricting appellate review is recognized and that it is only because of some unusual circumstance or condition it is not applied.
Supporting their statement the transcript contains all the material evidence, appellants in their reply brief point out no one has been inconvenienced by their failure to furnish a complete one and that appellee does not contend the contrary. The trouble with this argument is that it is not only based upon an erroneous premise but also ignores the issue raised by a motion to dismiss for lack of a complete transcript in a case where the questions submitted for appellate review are dependent solely upon the sufficiency of the evidence. In the first place, appellee on oral argument disputes the fact that all material testimony on the issue of responsibility for the setting of the fire was included in the abstract and insists that on issues of the character here involved it is for the appellee, not the appellants, to judge what evidence might or might not be material to their determination. In the next, it is obvious that on consideration of a ruling overruling a demurrer to the evidence or one overruling a request for a directed verdict, where all competent evidence must be accepted as true and all reasonable inferences to be drawn therefrom must be indulged in favor of the party adducing it, this court, in the absence of a stipulation or agreement that all material evidence has been included in the transcript, cannot be expected to say there was no evidence to support the trial court’s rulings.
In the case at bar a determination of the issues for appellate review depends upon the sufficiency of the evidence. The transcript furnished did not include all the testimony. There was no stipulation or other agreement that it contained all testimony material to a determination of the issues and appellee insists that it did not. Nothing appeared in the record which would preclude recovery as a matter of law. Under such circumstances we are compelled to hold that where a determination of assignments of error depends upon -the sufficiency of the evidence they will, not be reviewed.. The rule is. that to obtain a review of questions depending on the evidence the burden is on the appellant to produce a transcript containing sufficient pvidence to establish his position beyond question. This he may do by a complete transcript or by a partial one on agreement between the parties that it contains all evidence material to the issues. • Failing in this he acts at his own peril and may greatly restrict his scope of appellate review.
Appellants suggest that if the abstract may include only such parts of the record as an appellant deems necessary it is only logical to hold that the transcript should do likewise. Not so. The answer is to be found in G. S. 1943 Supp. 60-3312, which specifically authorizes that procedure so far as the abstract is concerned, and expressly provides that if the appellee deems the appellant’s abstract to be insufficient he may file a counter abstract. No such language is to be. found in G. S. 1935, 60-3311, providing for the making, certifying and filing of a transcript. Moreover, without a transcript containing all evidence material to the issues there would be no sufficient record to which an appellee could turn in order to properly prepare his counter abstract.
The appeal is dismissed. | [
-12,
122,
-8,
-82,
11,
96,
40,
-38,
97,
-79,
-90,
87,
-19,
-61,
-112,
37,
-10,
57,
-47,
59,
-43,
-93,
23,
66,
-110,
-13,
123,
-51,
-67,
72,
100,
-41,
76,
36,
-54,
85,
102,
-56,
-59,
92,
-114,
37,
-85,
-23,
-119,
120,
-76,
90,
114,
79,
17,
-98,
-13,
46,
24,
-41,
73,
60,
-5,
-87,
-47,
57,
-88,
13,
63,
2,
-95,
36,
-98,
-125,
-24,
56,
-104,
53,
1,
-88,
115,
-92,
-105,
-12,
65,
-87,
8,
-26,
103,
33,
77,
-17,
-24,
-120,
46,
58,
-113,
-90,
48,
24,
-117,
41,
-67,
-103,
116,
80,
-89,
110,
-18,
21,
92,
108,
5,
-117,
-74,
-23,
-113,
108,
-102,
3,
-53,
-93,
20,
116,
-52,
-86,
92,
70,
25,
-103,
-97,
-82
] |
The opinion of the court was delivered by
Thiele, J.:
Walter Ray Severns was tried on an information charging him with murder in the first degree of Inez Viola Burling, eight years of age. The jury found him guilty as charged and determined the punishment to be death. Defendant’s motion for a new trial was denied and judgment rendered on the verdict. Defendant appeals, specifying that the court erred in its rulings on the introduction of evidence, in submitting the cause to the jury on the charge of murder in the first degree, and in instructing the jury.
In order that appellant’s contentions be readily understood, a brief statement of the evidence is ncessary. There was evidence tending to show that Walter Ray Severns and his wife, Frances Severns, maintained a home in Wichita and that from as early as September, 1942, until the tragedy on February 8, 1943, two children of Mrs. Severns’ brother lived with them. 'These children were Inez Viola Burling and John Elden Burling, respectively eight and six years of age, both of whom attended the public schools. On the afternoon of February 8, 1943, after the children returned from school John was whipped by the defendant because of alleged misbehavior in burning some trash. Viola seems also to have had some difficulty because she showed an older sister, who resided elsewhere but had been at the home, some of her schoolwork. Without attempting any more than an incomplete outline, and ignoring anything done to John, or anything done by defendant’s wife, Frances, the evidence showed that about 8:30 in the evening, ostensibly because she “was looking mad at him” defendant compelled Viola to bend over with her hands on her ankles and he then whipped her with a wide belt. Later defendant struck Viola in the face with his fist, knocking her down and drawing blood. Thereafter defendant compelled Viola to stand on her head in a corner and while she was in such position he kicked her in the face and body. A little later he picked Viola up by the ankles and with her head hanging down, he bounced her head on the floor, which was wood with linoleum covering. This course of treatment ceased about 10:30 p. m. Viola said she was sleepy and requested permission to go to bed, but before getting there she became unconscious and fell or she fainted. A little later defendant’s wife called a doGtor. Without giving intervening events, it may be said an ambulance was called, and the child was taken to a hospital. The ambulance driver stated the child was dead when he picked her up to put her in the ambulance. An inspection of the body and a post-mortem examination showed many external and internal injuries and injuries to the brain. There was other evidence that Viola and her brother had been the victims of severe punishment on previous occasions. At the police department the following morning, defendant and his wife, each in the presence of the other, made written sworn statements about what had occurred the evening before and many of the facts stated above are gleaned from those statements. In taking the statements, Mrs. Severns was first questioned. When defendant was questioned he gave substantially the same account as his wife, but charged his wife with greater participation in inflicting punishment than she had admitted. He also stated the punishment inflicted was because the child told falsehoods. The above statements were received in evidence. At the trial defendant was a witness in his own behalf and testified that at no time did he have the idea or intention of taking the life of Inez. On his direct examination he was also asked to tell what happened the evening of February 8 and his answer was “Practically the same as in the statement — just about the same.”
Appellant contends the trial court erred in admitting the statement of Mrs. Frances Severns, the only reason asserted being the appellant was under restraint and did not have freedom to deny and refute the statement of his wife. The contention as here made is highly technical and does not accord with the facts. At no time during the trial was there any claim the statements were not freely made or that they were made as result of threat or duress. When Mrs. Severns was questioned she was asked if she knew the statement could be used against her and her husband in case of criminal prosecution and she answered in the affirmative. When defendant was questioned, similar questions were asked him and he answered affirmatively. He was asked about the same matters concerning which she had given statements and corroborated all she had said, and when asked if he had anything to add, he only said she had done more in inflicting punishment than she had stated. If there was any error, it was rendered harmless when on his defense he testified the statement was correct.
Appellant further contends the trial court erred in giving any instruction on murder in the first degree and in not giving an instruction on manslaughter in the first degree, and he argues these contentions together. At later places herein, we shall discuss the necessity of an instruction as to manslaughter in the first degree, as well as the form of the instruction as to murder in the first degree. On the question whether it was error to instruct on murder in the first degree, the record discloses that defendant’s own statement shows that as early as 8:30 p. m. on the day of the tragedy he commenced to punish the child by whipping her with a belt, and in successive stages lasting until 10:30 p. m. or later he hit her with his fist with force sufficient to knock her down and draw blood, compelled her to stand on her head in a corner where he kicked her in the face and body, flicked cigarette ashes in her mouth when she was on the floor, and finally took her by the ankles and bounced her head on the floor to such an extent that soon after she was released she went into a coma and finally died. Whether this long continued course of action was mere punishment for a breach of discipline, as is vaguely hinted, or was done in the heat of passion, or was maliciously done to effect death, was a question for the jury. Under the circumstances of this case, the trial court would have committed error had it failed to give an instruction on murder in the first degree.
Appellant also complains that the giving of instruction No. 18 was error in that the italicized sentence is a misstatement of law. That instruction reads:
“Murder at the common law is the unlawful killing of a human being with malice aforethought, express or implied. Murder at the common law is also the unlawful killing of a human being committed in the perpetration of an attempt to perpetrate any crime or misdemeanor not amounting to a felony.
“Manslaughter at the common law is the unlawful killing of a human being without malice, express or implied.”
It does not appear the defendant objected to this instruction when given, but that was not necessary, in order to predicate error, if the instruction is clearly erroneous. (Richardson v. Business Men’s Protective Ass’n, 129 Kan. 700, syl. ¶ 2, 284 Pac. 599.)
Rather than discuss the abstract correctness of the language criticized, we shall treat the instruction as applied to the situation presented in this case. The appellant’s brief states that after he had presented a requested instruction on the relationship of “in loco parentis,” and had argued it, the trial court inserted the instruction complained of. The connection between the two is obscure. In oral argument the state was unable to give any particular reason why the instruction was given but in its brief it apparently argues the purpose of the instruction was to draw a distinction between murder and manslaughter. That the instruction was inserted after the instructions generally were prepared, seems to be a logical conclusion to be derived from the order and arrangement of the instructions given. Under instruction No. 5 the court defined murder in the first degree as:
“Every murder which shall be committed by any kind of willful, deliberate and premeditated killing, shall be deemed murder in the first degree.”
Under instructions Nos. 12,15,16 and 17, the court defined murder in the second degree and manslaughter in the second, third and fourth degrees in the order named. No instruction was given as to manslaughter in the first degree.
We shall not pause to call attention to authorities and decisions dealing with what constitutes murder and manslaughter at the common law for all of those definitions are not fully in accord. But where any such definitions are not in accord with our statutory provisions the latter must control.
Our statute, G. S. 1935, 21-401, defines murder in the first degree as follows:
“Every murder which shall be committed by means of poison or by lying in wait, or by any kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or an attempt to perpetrate any arson, rape, robbeiy, burglary, or other felony, shall' be deemed murder in the first degree.”
The definition is subject to the criticism that it uses the word “murder” to define itself, although it seems clear that the word is used as equivalent to the word “homicide.” It does make it clear that any killing committed in the perpetration or any attempt to commit certain named crimes or other felony, is murder in the first degree. Under this section it has been held that the elements of the named crime or other felony “must be so distinct from that of the homicide as not to be an ingredient of the homicide, convictable under an information charging the homicide as murder.” (State v. Fisher, 120 Kan. 226, syl., 243 Pac. 291.) Distinction between a killing ydien engaged in perpetration of a felony from a killing when engaged in perpetration of a misdemeanor, is made clear by G. S. 1935, 21-407, defining manslaughter in the first degree and reading:
“The killing of a human being without a design to effect death, by the act, procurement or culpable negligence of another, while such other is engaged in the perpetration or attempt to perpetrate any crime or misdemeanor, not amounting to a felony, in cases when such killing would be murder at the common law, shall be deemed manslaughter in the first degree.”
Where the homicide is committed in the perpetration of a misdemeanor, it is not necessary that the crime or misdemeanor not amounting to a felony should be independent of and separate from the homicide, as is clearly disclosed in State v. Merriweather, 136 Kan. 337, 338, 339, 15 P. 2d 425. Although in a proper case the court may have occasion to instruct as to murder at the common law, as that phrase is used in the act defining manslaughter in the first degree, such instruction must not have the effect of saying that in and of itself the killing, when committed in the perpetration or attempt to perpetrate any crime or misdemeanor not amounting to a felony, is murder as defined in our crimes act. The statutory distinction must always be observed. We think the language in instruction No. 18% of which complaint is made was such that the jury might well have believed that an unlawful killing committed in the perpetration or attempt to perpetrate a misdemeanor was murder, contrary to the provisions of our crimes act. It may be further observed that as the instructions contained no instruction with reference to manslaughter in the first degree, nor with respect to the latter portion of the section defining murder in the first degree, there was no occasion to dwell upon what constituted murder at the common law. The instruction as given was erroneous and prejudicial.
We now take up appellant’s contention that the trial court erred in failing to instruct on manslaughter in the first degree. The state directs our attention to the fact that no such instruction was requested, and the record supports the statement. There is ample authority to sustain the proposition that where a defendant, being tried for murder, requests certain instructions, but asks none for lesser offenses, he waives failure of the court to give them. (See State v. Post, 139 Kan. 345, 351, 30 P. 2d 1089.) It is to be noted, however, that the statute (G. S. 1935, 62-1447) requires the trial court to charge the jury in all matters which are necessary for their information in giving their verdict, and it has been held that in prosecutions for homicide it is the duty of the trial court to instruct the jury not only as to the offense charged, but as to lesser offenses of which the accused might be found guilty under the information and upon the evidence adduced even though a request for instruction on such lesser offense was not made. (See State v. Gloyd, 148 Kan. 706, 84 P. 2d 966; State v. Phelps, 151 Kan. 199, 97 P. 2d 1105, and cases cited therein.) The fact that the court may deem the evidence supporting a lesser degree to be weak and inconclusive does not warrant it in refusing the instruction, for the weight of the evidence is for the jury. (See State v. Cunningham, 120 Kan. 430, 243 Pac. 1006.) Without detailing the evidence, we think it susceptible of an interpretation that the killing of the child was without design by the accused to effect her death, but resulted from his perpetration of a crime or misdemeanor not amounting to a felony, and that the court should have given an appropriate instruction thereon.
At the trial the defendant requested the court to instruct the jury that he occupied the relationship of “in loco parentis” to Inez Burling and the law permitted him to administer corporal punishment to her to a reasonable extent. This request was denied. The instructions contained nothing of an equivalent nature and presented no theory of defense. Although the trial court may have thought that in view of admissions made as to the treatment given the child, such a cláim was fantastic and unbelievable, still the question was for the jury. On another trial of this action an appropriate instruction or instructions presenting the accused’s theory of defense, as supported by any evidence, should be given the jury.
Although no complaint is here made concerning the same, this court believes attention should be directed to instruction No. 5, which is not fully sufficient. It reads:
“Section 21-401 of the General Statutes of Kansas of 1935, is in part as follows:
“ ‘Every murder which shall be committed by any kind of willful, deliberate and premeditated killing, shall be deemed murder in the first degree.’
“If the Jury believe from the evidence, beyond a reasonable doubt, that the defendant in the County of Sedgwick and State of Kansas, on or about the 8th day of February, 1943, willfully, deliberately, premeditatedly and with malice aforethought beat Inez Viola Burling, and that she died from the effects of such beating, then the jury will find the defendant guilty of murder in the first degree.”
On another trial such an instruction should be amended to include after the name Inez Yiola Burling, the following phrase “with intent to effect her death” or its equivalent. The beating might be done with malice aforethought, as the term is correctly defined in other instructions, but it should clearly appear that the evil intent was to cause death.
It may also be observed that although no complaint was made, the evidence in this case did not require the giving of any instruction on manslaughter in the third degree as defined in G. S. 1935, 21-413.
For reasons heretofore set forth, which compel a reversal, it is not necessary that we discuss some matters urged but which are now of no consequence.
The judgment of the trial court is reversed and the cause remanded for further proceedings. | [
-16,
-24,
-112,
-66,
26,
99,
106,
24,
82,
-75,
-80,
115,
-53,
-37,
65,
109,
123,
45,
-44,
121,
-31,
-77,
55,
-127,
-14,
-13,
-16,
-43,
-69,
-4,
-74,
95,
77,
112,
74,
117,
-26,
74,
-63,
80,
-124,
-122,
-119,
-48,
-56,
66,
52,
123,
-18,
15,
-15,
-114,
-29,
42,
30,
-61,
40,
44,
74,
36,
76,
-71,
-126,
-121,
-33,
66,
-78,
-126,
-98,
-91,
120,
49,
-39,
49,
0,
-20,
18,
-90,
-126,
124,
65,
-119,
12,
103,
98,
35,
-35,
-19,
-8,
-119,
47,
118,
-99,
-89,
-103,
80,
3,
-91,
-97,
-71,
112,
-16,
15,
124,
-17,
-49,
88,
-24,
13,
-113,
-76,
-111,
79,
54,
-104,
58,
-29,
45,
48,
117,
-51,
-126,
92,
0,
83,
-109,
-98,
-106
] |
The opinion of the court was delivered by
Smith, J.:
This was an action for overtime, liquidated damages and attorneys’ fees under the provisions of the Federal Fair Labor Standards Act, 29 U. S. C. A. par. 201 et seq. Judgment was for the plaintiff. Defendant appeals.
The plaintiff alleged his employment by defendant from January 1, 1939, to May 17, 1941; that he was employed variously as a driller and occasionally as a tool pusher. He alleged that during this time the defendant failed to comply with the wage provisions of the Federal Act and as a result owed him $1,119.11 more than the amount actually paid him; that he was entitled to an additional amount equal to this as liquidated damages and to a reasonable attorneys’ fee. The prayer was for judgment for $2,238.22 and for a further judgment for $750 as attorneys’ fees. He attached an exhibit to his petition which he alleged set out the number of hours lie worked each week and the amount of overtime due him for each week.
The defendant admitted that it was engaged in. the oil business; neither admitted nor denied that the oil produced was being shipped in interstate commerce and denied specifically that the plaintiff worked the hours set out in his exhibit; alleged that the claim was barred by the statute of limitations and that the plaintiff had accepted the wages paid him and was, therefore, estopped from bringing this action.
The reply was a general denial.
At the trial the plaintiff testified that he was hired to work for defendant by the day; that a day was eight hours and in the oil field vernacular was called a tower. The Fair Labor Standards Act went into effect October 25, 1939. The plaintiff introduced three exhibits. Exhibit 1 showed the number of towers he worked each week from October 25, 1939, to December, 1939. Exhibit 2 did the same thing for 1940. Exhibit 3 did the same thing for January, 1941, to May 18, 1941. These exhibits were a record which plaintiff himself had kept. As an example it showed for the week beginning Monday, October 23, 1939, that he worked a tower each day, that is, there was the figure “23” then the word “Monday” and then the figure “1.” Also appearing on this exhibit were the capital letters “R. N.” These letters indicated that for that week the work he did was “roughnecking” work for which he was paid a certain definite price. The exhibit for the rest of the weeks is the same except that occasionally he wrote down on the exhibit the figures “750” or “850,” which indicated that he worked one tower on the day those figures appear since those figures showed the wages he received for whatever kind of work he did that day and that he worked one tower or two as the figures showed. He offered no written record to indicate that he worked any specific number of hours in any day or week other than the above.
If this record be taken at its face value then for the week beginning October 23, 1939, he worked fifty-six hours. This would be fourteen hours overtime since the maximum number of hours to be worked before overtime must be paid at that time was forty-two. That is what the court allowed him for that week. The court followed a similar practice for other weeks.
The dispute arises because the defendant argues that this does not constitute evidence that the plaintiff worked any definite num ber of hours in any week. The argument arises because of some testimony of the plaintiff with reference to this record. His counsel asked him the following question:
“Q. During that time, before the 25th of October when the Wage and Hour Act came into effect, you were being paid so much for each eight hours?”
His answer was: “So much for each tower."
He then went ahead to state that he sometimes worked two towers in twenty-four hours and when he did that he would get twice as much for what he did as if he worked only eight hours. He testified with reference to various days as shown on his record that the language, and figures on the record showed that he worked some days eight hours and some days ten hours. On cross-examination he stated that each day he signed a report that did not show the number of hours he worked but merely showed that he worked a tower. He testified that regardless of the number, whether he worked six, eight or four hours, he signed up for eight full hours. His testimony was, in part, as follows:
“Q. .Regardless of the number of hours you stayed out, you always signed up for eight full hours? A. Signed up for the tower when you went out; yes, sir.
“Q. That is what I am asking. Whenever you went out, if you stayed out one hour, when you got ready to leave you signed for an eight-hour tower, -didn’t you? A. If I was that lucky for an hour.
“Q. Three or four hours? A. Yes, sir.”
Later he testified that on his exhibits 1,'2 and 3 where he marked one tower or two towers he claimed credit for eight hours on each tower. He then testified as follows:
“Q. Some of those towers you didn’t spend eight hours on, did you? A. If you go out you are supposed to get a tower.
“Q. Whether you stay one hour or two hours? A. Yes, sir.
“Q. You haven’t designated which one of those towers you just spent an hour or two? A. It doesn’t state in there, no.
“Q. Do you have any record that would show the actual hours that you worked? A. You are supposed to get a tower every time you go out.
“Q. I understand, but I am asking you, please, do you have any other record than those? A. I do not.
“The Court: Were you paid for a tower at the time by your checks? A. One tower; yes, sir.”
At various times he testified to about this same effect on his cross-examination.
His son was called to the stand. He had worked for the same company during this time. He testified as to various practices and on cross-examination he testified as follows:
. “Q. You stated, as I understand it, that whatever record of your time was kept was kept on the tower basis, is that correct? A. Yes, sir.
“Q. And when you say a tower, at that time you assumed that the tower was eight hours, whether or not you worked eight hours, isn’t that correct? A. Yes, sir.
“Q. So any record that you may have will reflect the towers but not the hours you worked, isn’t that correct? A. Yes, sir.”
Another witness for the plaintiff testified, amongst other things, as follows:
“I was employed as a roughneck and as a mechanic. My time was usually kept in towers. If I was .called out on the job to repair a motor or something, I would go out and repair the motor and usually turn in a tower. Sometimes I worked more than one tower during the day. If I worked twelve or fourteen hours I would usually get credit for two towers.”
Counsel for the appellee calls our attention to the fact that the plaintiff testified categorically that he worked eight hours on certain days about which he was asked. It is only fair to say that when he was doing this he was testifying from the record about which we have spoken.
The petition was written under the theory that there had been a failure on the part of the defendant to pay the plaintiff the reasonable minimum wages. However, no effort was made to prove such a thing. The only matter in dispute at the trial was whether the plaintiff had worked more than forty-two or forty hours in any one week as the case might be. Some of the time he was working the maximum number of hours — forty-two and part'of the time it was forty. The only item for which judgment was given was the alleged overtime. There was no question but that he was paid what he claimed to be due him for the number of hours he worked exclusive of overtime.
The trial court inquired of counsel for the defendant as to whether or not the defendant intended to present any evidence. Upon being informed that the defendant desired to stand on the demurrer to the evidence, the court took the cause under advisement. Judgment for plaintiff was entered, for $460.99 for unpaid wages, an equal amount for damages and attorneys’ fees.
Defendant argues first on appeal that the court erred in overruling defendant’s demurrer to plaintiff’s evidence.
There is no deep mystery about the Fair Labor Standards Act. It contains many provisions with reference to labor practices. The ones with which we are concerned are that a work week shall consist of forty hours between certain dates and forty-two hours be tween certain other dates and that when an employee works more than that number of hours in a week he must be paid the regular wage per hour plus one-half that much in addition. This is known in the vernacular as time and one-half for overtime. It also provides that the employer who thus fails to pay a man the time and one-half for overtime shall in addition to a judgment for the amount actually due the workman be assessed an equal amount as liquidated damages and that the employer shall be compelled to pay the attorney’s fees for any plaintiff that is compelled to bring an action to collect money due him on account of the provisions of this act. Under such a statute the burden is upon the plaintiff to prove that he worked more than the maximum hours in any week or that he was not paid the minimum wage. It is not different from any other case where the burden of proof is on the plaintiff. See Jackson v. Derby Oil Co., 157 Kan. 53, 139 P. 2d 146. There seems to be no dispute on the part of any one that the plaintiff in this case was hired by what the oil field fraternity calls the “tower;” that a tower consists of eight hours work; that a laborer was paid for a tower no matter whether he actually worked fewer hours than eight.
It is easy to see why this practice was followed in the oil field. Naturally if a driller or roughneck, as the case may be, left his home and was taken to some place at little distance he was deprived of the opportunity to work for anybody else during that time; it would not be possible for him to make any arrangements by which he could have other employment, so out of fairness to everyone the practice grew up. The practice probably grew up to allow for an eight-hour tower when a man was taken out on a job. From that it was an easy step to allow for two towers if he worked as much as ten hours at any one time. That is what the evidence in this case clearly showed was the practice. When the wages and hours act was enacted it was evidently not drafted to cover a practice such as this. At any rate since the plaintiff himself testified that he was paid for a tower, that is, eight hours, whether he worked four hours or eight on that particular day and that he was paid for two towers if he worked as much as ten hours or twelve in-any one day, his notation on his exhibit for Monday, October 23,1939, for instance is no proof at all that he worked eight hours that day. He may have .worked two, four, six or eight hours. He did not testify that he knew of his own recollection if he worked eight hours that day. The same is true of every exhibit upon which the plaintiff depended to recover.
Plaintiff cites many cases where we have said on a demurrer to evidence we would not weigh evidence and we would not scrutinize differences between direct examination and cross-examination and that everything testified to by the plaintiff and his witnesses would be taken as true and all reasonable inferences drawn in favor of the theory of the plaintiff. There are many cases holding to that effect in our reports.
In this case, however, there is no dispute in the evidence. According to the testimony, the plaintiff himself testified that the exhibits upon which he depended did not reflect the number of hours he worked on any day or in any week. In order to reach such a conclusion we have to assume that he worked for eight full hours for every tower he claimed and he himself testified not once but several times that such was not the case. He seems to have been rather fair in his testimony. We have said that where a party testified to facts which preclude his recovery the effect may not be avoided. (See Bell v. Johnson, 142 Kan. 360, 46 P. 2d 886.) We have also said in Jackson v. Derby Oil Co., supra, that judgment in a case under the Fair Labor Standards Act cannot rest upon guess, speculation or suspicion. This was not a new statement at the time we made it in that case. It has been said many times that in order for a plaintiff to recover under the Fair Labor Standard Act he must prove his case with reasonable certainty. See Ralston v. Karp Metal Products Co., 179 Misc. 282, 38 N. Y. S. 2d 764; also Clevenger v. Ritter Lumber Co., 294 Ky. 764, 172 S. W. 2d 625.
It is true the court made findings of fact that the defendant worked a certain number of hours in certain specified weeks. We have scrutinized this record carefully and cannot find any evidence at all upon which the court made such a finding.
The judgment of the trial court is reversed with directions to enter judgment for the defendant. | [
-16,
-6,
-8,
-115,
26,
-32,
42,
-102,
89,
105,
-89,
83,
-19,
-57,
12,
113,
99,
45,
85,
106,
-10,
-93,
23,
114,
-45,
-77,
-7,
-59,
60,
111,
-10,
92,
76,
32,
66,
-43,
102,
-112,
-63,
84,
-50,
-123,
-7,
-19,
-7,
0,
56,
59,
100,
79,
1,
-98,
-13,
44,
29,
75,
44,
44,
-1,
42,
-47,
-15,
-126,
13,
127,
17,
-77,
67,
-98,
68,
-40,
14,
-104,
53,
0,
-24,
114,
-66,
-122,
116,
35,
-87,
12,
34,
98,
49,
-43,
103,
120,
-72,
54,
-2,
-97,
-91,
19,
88,
11,
-64,
-66,
29,
126,
0,
22,
126,
-6,
21,
92,
40,
71,
-113,
-10,
-93,
15,
100,
-100,
-117,
-21,
-125,
21,
100,
-53,
-86,
92,
7,
123,
-97,
-121,
-104
] |
The opinion of the court was delivered by
Wedell, J.:
The appeals in cases No. 36,051 and No. 36,063 present the same general questions and have been consolidated by agreement of the parties. The principal question presented is whether an appeal may be taken by an opponent of a will from an order admitting a will to probate when the opponent had proper notice of the hearing for probate and made no objection thereto.
The question arises out of the overruling of the separate demurrers of Willard J. Breidenthal, executor of the will of Ida E. Grindrod, deceased, and May Bowling, residuary legatee under the will. These demurrers were lodged against a pleading filed in the district court by Gala Gustafson, appellee here, the opponent of the will who was a half sister of the testatrix. The pleading was filed by Gala Gustafson, appellant in the district court, pursuant to an order of that court and was denominated, “Objections to the Probate of the Will.” The parties agree that pleading, among other things, alleged incapacity of the testatrix to make a will and was tantamount to what, prior to the new probate code, was known as a will contest action. The grounds of the demurrers were identical and, in substance, were: (1) The district court had no jurisdiction of the subject matter; (2) the pleading, “Objections to the Probate of the Will,” did not state facts sufficient to constitute a defense to the petition to admit the will to probate; and (3) that pleading did not state facts sufficient to constitute grounds for the contest of the will.
Before treating the merits of appellants’ contentions that the trial court erred in overruling their demurrers, we are confronted with contention of appellee that the appeal to this court is not in time and should be dismissed. The contention is based upon the ground the appellants in this court had filed motions in the district court to dismiss the appeal to that court which raised the same question of that court’s jurisdiction as was later raised by the demurrers. Appellee points out those motions were overruled and that no appeal has been taken from such rulings. Appellee argues that since the demurrers raised the same question which was determined by the order overruling the motions to dismiss and since no appeal was taken from the rulings on their motions, appellants cannot now appeal from the order overruling their demurrers. The contention is not good. The orders denying the motions to dismiss the appeal to the district court were not final orders and therefore were not appealable. (Montgomery Ward & Co. v. Ellis, 152 Kan. 320, 103 P. 2d 817, and cases therein cited.) Appellee’s contention is unsound for at least one other reason but it need not be treated.
Appellants’ contentions that the district court erred in holding it had jurisdiction of the appeal are, in substance, as follows:
(1) Appellee’s pleading first filed in the district court and denominated, “Objections to the Probate of the Will,” admittedly constitutes an attempt to contest the will. The probate court has exclusive original jurisdiction of such an action. (2) Appellee, a nonresident of this state, had not only notice of the hearing for probate by virtue of the required publication notice thereof, but had actual knowledge thereof; was in this state prior to the hearing for probate, and consulted counsel concerning the contents of the will and the hearing for probate. By failure to oppose the probate of the will appellee waived her right to object to its probate in the district court and is now estopped from doing so. (3) The contest of the will constitutes merely the means or method appellee has chosen to obtain her share of the decedent’s estate which she claims as an heir at law. (4) Every claim or demand against a decedent’s estate must be presented in the probate court unless the new probate code expressly permits it to be asserted by an action in the district court. The instant claim of appellee as an heir at law is not one of the latter class. (5) The claim of appellee is barred for the reason it was never asserted in the probate court and was not asserted in the district court within nine months from the date of the first publication notice to creditors. (6) If the instant appeal to the district court lies without first objecting to the probate of the will in the probate court, the attempted appeal is not valid for the reason it was not, in fact, taken by appellee.
In support of appellee’s contention an appeal may be taken from an order admitting a will to probate although no objection to its probate was made in the probate court, she relies upon pertinent provisions of G. S. 1943 Supp. 59-2401, which provide:
“An appeal to the district court may be taken from any of the following orders, judgments, decrees, and decisions of the probate court:
“(1) An order admitting, or refusing to admit, a will to probate.
“(21) A final decision of any matter arising under the jurisdiction of the probate court.”
Appellee relies also upon G. S. 1943 Supp. 59-2404, which reads:
“Such appeal may be taken by any person aggrieved within thirty days after the making of such order, judgment, decree, or decision: Provided, That' an appeal may be taken within nine months from an order admitting, or refusing to admit, a will to probate.”
Appellee contends the particular question presented in this case has not been definitely ruled upon by this court under the provisions of the new probate code but she thinks the opinion In re Estate of Reed, 157 Kan. 602, 142 P. 2d 824, is instructive. It is true the precise question of appeal has not been determined under the provisions of the new code. We, however, do not believe the opinion in the Reed case throws much, if any, light upon the question now before us. A careful reading of that opinion will disclose the precise point now presented was not raised or decided in that case.
Appellee further contends the proposition of law involving the right of appeal is settled in this state by reason of the construction this court has placed upon a similar statute. She refers to G. S. 1935, 61-1010, pertaining to appeals from justice of the peace courts, which reads:
“An appeal may be taken from the final judgment of a justice of the peace in any case except in cases hereinafter stated, in which no appeal shall be allowed: First, on judgments rendered on confession; second, in jury trials where neither party claims in his bill of particulars a sum exceeding twenty dollars.”
Appellee stresses the fact that in determining the question of the right of appeal under that statute this court might have followed the construction adopted by the Supreme Court of Nebraska, which denied the right of appeal from a default judgment under a similar justice of the peace court statute, but that this court refused to do so and followed the construction placed upon similar statutes by the courts of Iowa, Indiana and California which held there was an appeal from a default judgment rendered by a justice of the peace. (L. T. & S. W. Rly. Co. v. Forbes, 37 Kan. 445, 452, 15 Pac. 595.) The decision in that case was followed in Powers v. Schultz, 127 Kan. 598, 274 Pac. 735. In the Powers case this court said:
“It is needless, however, to discuss the effect of a judgment by default since the statute does not prohibit appeals from such judgments. As the judgment involved was not a judgment by confession the defendants were entitled to appeal from it, and therefore the district court did not err in its refusal to dismiss the appeal taken from the judgment.” (p. 600.)
Appellee points out that the appeal provisions of the probate code do not restrict appeals to cases in which the petition for probate was opposed in the probate court. It is true those particular statutes are not expressly so restricted. But is that fact in itself conclusive on the precise question before us? We do not think so.
The precise question now presented is whether under the new code the legislature intended the appeal statutes should be so construed as to permit a will contest action to be tried originally in the district court. If appellee’s contention is sustained that is the court in which grounds for contest of a will may be asserted for the first time and the contest action originally tried. This is true for the simple reason that under the new code actions on appeal to the district court are tried de novo. That is, on appeal they are tried in the district court just as though that court would have had original jurisdiction to try a will contest action. (G. S. 1943 Supp. 59-2408; Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438.)
The question at issue is not whether it would be wise to permit defenses to a will or objections to its probate to be made originally in the district court. The solution of that question was solely a legislative prerogative and we have held the legislature exercised that prerogative by denying such jurisdiction to the district court. The former statute, G. S. 1935, 22-223, which authorized the bringing of a civil action in the district court to contest a will was repealed by the new code. (Laws 1939, ch. 180.) In Foss v. Wiles, supra, we held:
“Under the Kansas probate code, effective July 1, 1939, the probate court in which a will has been probated has exclusive original jurisdiction to entertain a proceeding to contest the will.” (Syl. ¶ 6.)
In Yeager v. Yeager, 155 Kan. 734, 129 P. 2d 242, an action was brought in the district court to impress lands with a trust which was in derogation of the terms of the will. We adhered to the old estab lished rule on the subject of what constituted a contest of a will and held:
“An action brought for the purpose of getting rid of a will, or of defeating the testator’s intent as therein expressed, or of rendering nugatory the provisions of the will is an action to ‘contest’ the' will and may only be brought in conformity with the statutes applicable to the contest of wills.” (Syl. ¶ 1.)
In the course of the opinion in the Yeager case we said:
“Did the district court have original jurisdiction to entertain the instant action, which was, in effect, an action to contest a will? That question was squarely determined in the negative in the recent case of Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438. It was there held that under the present probate code' which became effective July 1, 1939, the probate court in which a will is offered for probate has exclusive original jurisdiction to entertain a proceeding to contest the will. The question was fully discussed in the opinion in that case and need not be discussed here. District courts now have jurisdiction in such matters only upon appeal.” (p. 735.)
Manifestly in the instant case the district court would not be entertaining appellate jurisdiction of a will contest action when there had been no contest of the will or objections to its probate in the probate court. To now hold that the appeal statutes should be so construed as to enable the opponent of a will to contest it for .the first time in the district court, clearly would be wholly inconsistent with our previous decisions upon the subject. To now hold that an appeal lies to the district court, under the circumstances in the instant case, would result in permitting appellee to do by indirection what she is prohibited from doing directly. Such a decision would nullify the legislative intent by reinstating precisely what the lawmakers deliberately repealed. We do not believe we are justified in considering the appeal statutes entirely by themselves, as appellee does, and by so doing place upon them a construction out of harmony with other provisions of the probate code and one which obviously defeats the clear legislative purpose to grant to probate courts the exclusive original jurisdiction in will contest actions.
The opinion on this phase of the lawsuit might well end here. A mere glance, however, at other provisions of the new code and our former decisions lends support to the view the lawmakers must have intended probate courts should have exclusive original jurisdiction over any sort of action designed to defeat a will. Analysis of the new code discloses the legislature made no provision whatsoever for a so-called “will contest action” in the district court or in the probate court. The new code nowhere mentions a “will contest action” as such. Of course, that does not mean a will cannot be opposed or contested. It simply means We are required to look further to ascertain the legislative intent as to how and where opposition to a will must first be expressed. The legislature expressly provided an opportunity for opposing a will upon any ground at the hearing of a petition for probate. G. S. 1943 Supp. 59-2224, being the section pertaining to such hearing, in part provides, “Any heir, devisee, or legatee may prosecute or oppose the probate of any will.” G. S. 1943 Supp. 59-2222 requires the probate court to fix the time and place of such hearing and directs that notice thereof be given pursuant to the provisions of G. S. 1943 Supp. 59-2209, unless the court shall make an order to the contrary, etc. No order to the contrary was made in the instant case. G. S. 1943 Supp. 59-2210 prescribes the form of notice to be given when the court does not make a contrary order or the notice is not waived. The notice prescribed requires the person notified to file his written defenses to the petition for probate on 'or before the day indicated in the notice and further provides that on failure to make such defenses, “. . . judgment and decree will be entered in due course upon said petition.” Under the new code every probate proceeding, including the exhibition and allowance of demands against an estate, was made an adversary proceeding while in many instances under the old code it was merely ex parte. (Egnatic v. Wollard, 156 Kan. 843, 854, 137 P. 2d 188; In re Estate of Reed, 157 Kan. 602, 612, 142 P. 2d 824.) From these various statutes and our decisions it clearly appears the legislature intended objections to a will, whatever the nature or character of the objections might be, should be asserted originally in the probate court. This statement, however, must not be interpreted to mean that on proper appeal to the district court from a contested order admitting a will to probate or from a probate court judgment in a will contest action that the action on appeal is not to be tried de novo in the district court. The statute provides it may be so tried on appeal. (G. S. 1943 Supp. 59-2408.)
From what has been said it is clear the hearing for probate was intended to be at least one. of the occasions for asserting opposition to a Will in the probate court. In the instant case the will was not challenged in the probate court at any time or in any manner and that, we think, is fatal to the attempted appeal. In this case we therefore need not decide whether the hearing for probate presents the only opportunity for opposing a will in the probate court and for obtaining a ruling on such opposition prior to the time allowed for appeal to the district court.
There is another reason for believing the legislature intended opposition to a will should be asserted in the probate court. Lawyers and judges well understand that evidence of incapacity of a testator or evidence of undue influence in the making of a will may not always be discovered until after a will has been probated. The legislature was not unmindful of that fact. It supplied a remedy for such and other contingencies by providing a right to vacate or modify probate court orders, judgments and decrees in the probate court. G. S. 1943 Supp. 59-2213 reads:
“No judgment or decree shall be rendered in a probate proceeding without proof. The court shall have control of its orders, judgments, and decrees for thirty days after the date of the rendition thereof. Thereafter such orders, judgments and decrees may be vacated or modified as provided by section 605 [See G. S. 1935, 60-3016.] of the code of civil procedure.”
Here again we need not determine in the instant case whether G. S. 1943 Supp. 59-2213, provides the exclusive remedy in the probate court for vacating or modifying an order of probate. The statute is cited here only for the purpose of emphasizing the legislative intent with respect to the original jurisdiction of the probate court on the subject under consideration. We think it was intended applicable remedies provided in the probate court to an opponent of a will should be exhausted in that court prior to the perfecting of an appeal to the district court.
It readily may be conceded there are decisions from other jurisdictions based solely on the construction of appeal statutes similar to our own which decisions on the surface appear to be contrary to the views herein stated. In the absence, however, of the legislative history of the probate law in such states and their decisions interpreting other pertinent provisions of their codes, such decisions cannot be very helpful on the precise question now before us. We would have little or no trouble agreeing with the construction placed by appellee upon our appeal statutes if they could be construed independently and without regard to the obvious intent disclosed by other pertinent provisions of the new1 code and without regard to our former decisions on the subject of the probate court’s exclusive original jurisdiction. The difficulty with appellee’s contention, as previously stated, is that the true legislative intent with respect to our appeal statutes cannot be ascertained by considering the appeal statutes by themselves.
It also may be stated that our own decisions rendered prior to the adoption of the new code are not helpful in this case. That includes In re Perkins, 145 Kan. 611, 66 P. 2d 420, decided prior to the adoption of the new code. At that time we had no statute requiring the filing of written defenses to a petition for probate in the probate court. The hearing in the probate court at that time could be but was not required to be an adversary proceeding as it is now and the probate court did not then have exclusive original jurisdiction of will contest actions.
This brings us to appellants’ second point urged under the first ground of their demurrers. Is the will contest action an attempt to compel the probate court to distribute the decedent’s estate contrary to the terms of the will? Is that action by appellee as an heir at law tantamount to a claim or demand for a distributive share of the decedent’s estate? If it is, must such a claim or demand be asserted in the probate court? We think these questions must be answered in the affirmative. It is conceded the probate court has exclusive original jurisdiction to determine who are devisees and heirs at law and to determine the share of the estate to which they are entitled. It is conceded the district court has only appellate jurisdiction over questions pertaining to the distribution of an estate. An action which challenges the validity of a probated will to pass title to property belonging to a decedent’s estate to persons named in the will and in which title to any portion of the estate is claimed by the plaintiff can be brought only in the probate court, and district courts now have only appellate jurisdiction over that matter. (Foss v. Wiles, supra; Yeager v. Yeager, supra.)
It is conceded appellee is a half sister of the testatrix and that appellee has been entirely ignored by the terms of the will. If her allegations with respect to the incapacity of the testatrix to make the will and the averments of undue influence in the execution of the will should be established on the trial of the action, the will would be invalid and, of course, could not stand. The result would be appellee would be entitled to receive a distributive share of the decedent’s estate under the law of descents and distributions. Manifestly that result would be contrary to the terms of the will. The sole purpose of prosecuting the will contest action was to set aside the will and thereby establish appellee’s right to a portion of the estate as an heir at law. The will contest action is merely the means, vehicle or form of action chosen to accomplish that specific purpose. To say that appellee is not now, in substance and in reality, attempting to establish her right or claim to a portion of the decedent’s estate as an heir at law would require us to 'completely ignore the obvious purpose and intent of her present action. A majority of this court has no hesitancy in saying her action is tantamount to the assertion of a claim or demand against the decedent’s estate which under the new code must be asserted in the probate court. (Foss v. Wiles, supra; Yeager v. Yeager, supra; Erwin v. Erwin, 153 Kan. 703, 708, 113 P. 2d 349; Egnatic v. Wollard, 156 Kan. 843, 854, 137 P. 2d 188; Shively v. Burr, 157 Kan. 336, 342, 139 P. 2d 401; Burns v. Drake, 157 Kan. 367, 371, 139 P. 2d 386.) There can be no question about the fact that in each of the first four cases and the Burns' case just cited the plaintiff was asserting a right to a portion of the decedent’s estate. The causes of action there alleged were not the ordinary claim or demand of a creditor and we held the actions must be brought in the probate court.
G. S. 1943 Supp. 59-2239, provides:
“All demands, including demands of the state, against a decedent’s estate, whether due or to become due, whether absolute or contingent . . . not exhibited as required by this act within nine months after the date of the first published notice to creditors as herein provided, shall be forever barred from payment. . . .” (Emphasis supplied.)
In the Burns’ case we said: “. . . the legislature intended the term ‘demands’ as here used to be all-inclusive — to include all demands against the estate, whether legal or equitable in character, except in particular cases where the statute may expressly provide otherwise.” (p. 371.)
G. S. 1943 Supp. 59-2241, provides for a hearing on and determination of contingent claims by the probate court.
It will be observed G. S. 1943 Supp. 59-2239, does not exclude claims or demands of an heir at law or claims which arise by operation of the law of descents and distributions. On the subject of the necessity for the filing of a claim in the probate court by one who claims all or any part- of a decedent’s estate under the law of intestate succession see Egnatic v. Wollard, supra, p. 856; Shively v. Burr, supra, p. 340. The statute says, “all demands.” It expressly includes contingent demands. In 2 Bartlett’s Kansas Probate Law and Practice, p. 411, it is said:
“A contingent claim is one where the liability depends upon some future event, which may or may not happen, and therefore makes it wholly uncertain whether there ever will be a liability.”
The validity of appellee’s claim or demand to a portion of the decedent’s estate is contingent only upon the successful termination of the will contest action which she is presently prosecuting as an heir at law. The probate court must be advised of contingent claims as well as absolute claims in order to properly make partial or final orders of distribution. The provisions of G. S. 1943 Supp. 59-2252, throw further light upon the fact the legislature intended all questions involving the distribution of an estate should be asserted in the probate court.
If there ever was any question whether a contingent claim, that is, a claim for which liability had not yet' been established and might never be established, is required to be asserted originally in the probate court that question was definitely put to rest in the case of Shively v. Burr, supra. In that case we held a civil action for damages under our wrongful death statute against the administrator of an estate constituted a claim or demand against the estate of the deceased wrongdoer which must be presented in the probate court. In the specially concurring opinion of Mr. Justice Harvey, it was stated:
“I think it important, not only to the courts but to the personal representatives of decedents’ estates, to those having claims or demands of any character against such estates, and to heirs of the decedent or beneficiaries under his will, to have it known definitely that anyone who has any type of claim or demand against the decedent should present the same to the probate court in which his estate is being administered.” (p. 342.) (Italics ours.)
See, also, other specially concurring opinions in the Shively case.
In view of the provisions of the new code and our previous decisions a majority of this court has no hesitancy in stating that appellee’s action is a type of claim or demand against the decedent’s estate which must be asserted originally in the probate court. Having decided the district court was without jurisdiction to entertain the appeal, it is unnecessary to treat other contentions made by appellants.
The judgment of the district court is reversed with directions to sustain appellants’ demurrers and to dismiss the appeal to the district court. | [
112,
-4,
-36,
-113,
58,
96,
-93,
-104,
97,
81,
103,
87,
111,
-38,
0,
61,
123,
9,
113,
106,
-49,
-73,
22,
96,
114,
-77,
-79,
-35,
-79,
-22,
-9,
127,
76,
32,
99,
-43,
102,
-126,
-27,
82,
12,
1,
-103,
109,
-39,
-62,
48,
49,
118,
15,
113,
-2,
-13,
41,
60,
-30,
40,
44,
-7,
49,
-44,
-104,
-118,
13,
126,
7,
-79,
53,
-100,
-30,
72,
-86,
4,
57,
3,
-32,
49,
-90,
-126,
116,
107,
-71,
40,
102,
103,
1,
-27,
-25,
-104,
-118,
38,
46,
-67,
-89,
-110,
88,
-23,
1,
-76,
-69,
116,
80,
7,
-2,
110,
-44,
31,
110,
-123,
-121,
-42,
-79,
-97,
112,
62,
-62,
-29,
-15,
20,
113,
-40,
64,
92,
103,
51,
-101,
-121,
-72
] |
The opinion of the court was delivered by
Thiele, J.:
Plaintiff appeals from a ruling of the trial court sustaining a motion of the defendant Gaylord for judgment on the pleadings.
The pleadings are too lengthy to be set out in detail and are summarized.
In her petition the plaintiff alleged that:
The defendant Gaylord had operated a general store at Axtell, Kan., for many years, and plaintiff had been employed by him as a clerk from about May 1, 1917, to May 1, 1939. Defendant Garrett was a traveling salesman who called on Gaylord and other merchants in northern Kansas, and prior to 1938 Gaylord and Garrett enjoyed the confidence of plaintiff and her husband; that in the year 1938 Gaylord and Garrett and others not parties to the action entered into a conspiracy to swindle plaintiff and her husband and other named persons in the pretended development for oil and gas of a certain tract of real estate in Doddridge county, West Virginia, known as the Gainer lease, in the following manner: In 1938 Gaylord and Garrett met at the Gaylord store and agreed between themselves that because of the employment of plaintiff by Gaylord over a period of years as his principal and confidential clerk, she would be guided by his representations to her of whatever he might tell her with respect to investing her money in the Gainer lease and through her he would be able to induce her husband to invest money in said lease, and that Garrett, because of his claimed familiarity with oil well prospecting in West Virginia would make such representations as might be necessary to induce certain named customers of his also to invest their money in the Gainer lease, and that Gay-lord and Garrett would aid each other in any effort that might be necessary to induce plaintiff and other persons named to invest money and would represent that they, Gaylord and Garrett, were investing substantial sums in the Gainer lease and in prospecting thereon for oil and gas and that they would not do so if they were not positively certain of very large returns. It was further alleged they agreed to represent to the six prospective investors that Gay-lord and Garrett would each subscribe and pay for a 5/32d part of $14,400, which they would represent to the prospective investors was the standard charge for drilling a well on the Gainer lease, and that their associate O. E. Garrett, Sr., not a party, would also subscribe and pay for a 4/32d interest; that in 1938 and 1939 such' representations were made to plaintiff and her husband and the other prospective investors; that in March, 1939, Gaylord and Garrett and certain prospective investors were going to West Virginia to inspect the lease and asked plaintiff’s husband to go along, and all went to the lease where substantially the same representations as previously alleged were again made; that in April, 1939, it was represented by defendant Garrett that he and Gaylord, with others not parties hereto, owned the Gainer lease and were ready to proceed with its development immediately upon the signing of a typewritten drilling contract which he produced, representing it would cost $14,400 to drill and equip one well and that the cost should be paid in the proportion of $1,800 for each one-eighth working interest, and that Gaylord and Garrett would each take and pay for a 5/32d interest; that plaintiff should take a 4/32d interest and other persons other specified interests, and relying thereon plaintiff signed the drilling contract. We note, but do not summarize, allegations about perfecting a partnership organization under name of Meadow Lark Oil and Gas Company and its proposed officers, other than that plaintiff’s husband, Roy Christy, was to be the treasurer; that plaintiff had no copy of the drilling contract, the agreement for drilling of a second well, and other allegations not necessary for our conclusions. Plaintiff alleged that relying upon the truthfulness of the representations made and that the funds collected would be honestly disbursed she paid Garrett the sum of $1,350, and later other sums. She further alleged that O. E. Garrett, Jr., did not own the Gainer lease and did not intend to execute a deed of assignment to plaintiff for her undivided one-eighth interest, and that the lease by the Gainer heirs was not executed until May 5, 1939, and that the defendants when making the representations and promises set out did not intend to contribute any money whatever toward the development of the Gainer lease and did not pay any part of their promised shares; that defendant’s statement it would cost $14,400 to drill and equip a well and place it in operation was false. Plaintiff, repeating the substance of allegations previously made, charged that a certain deed of trust was fraudulently made and also that she was induced to contribute further money in the sum of $1,446.17 to complete the first well and to drill the second well and that she had made a total payment of $2,796.17. She further alleged that Roy Christy received three payments totaling $749.99 paid under dates of November 20,1939, January 3,1940, and March 2, 1940, as net proceeds of oil produced and sold from the first well, of which she received $93.75 as her share, being the only moneys received by her, and although the defendants had not contributed to the cost they received their pretended shares. Plaintiff further alleged she did not discover the fraud until about March 18, 1940, when her husband went to West Virginia and from an examination of the public records discovered that the lease was not executed and delivered until May 5, 1939, and that the deed of trust had been executed under date of May 17, 1939, and that after such discovery the leasehold estate and all of the personal property used in developing the lease was appropriated by a named supply company and certain lien claimants in payment of obligations which defendants falsely and fraudulently represented to plaintiff would be paid from moneys contributed by the parties to the drilling agreements, and that defendants had collected from her the sum of $2,796.17 and from other persons other amounts and had “refused to make any accounting to plaintiff or the other victims of their fraud and swindle,” and that defendants were indebted to her in the sum of $2,796.17 “obtained from her by their fraud as herein alleged.” Her prayer was for judgment for the above amount and for costs.
Defendant Gaylord filed a separate answer in which he set out at length his version of the entire matter, and which, in view of denials in plaintiff’s reply and amended reply, need not be noted. In addition, however, he alleged that about June 17, 1940, he was induced to go to Doddridge county, West Virginia, and while there he was served with process in a suit brought by plaintiff, her husband and others, and he attached a copy of the bill of complaint in that action as an exhibit to his answer. It will be referred to later.
Plaintiff filed a verified reply and a verified amended reply to the separate answer of the defendant Gaylord. The substance was to deny all of Gaylord’s allegations insofar as they controverted the petition. It was alleged that the copy of the petition attached to Gaylord’s answer was in an action in the circuit court of Doddridge county, West Virginia, wherein plaintiff and others were plaintiffs and Gaylord and others were defendants and that Gaylord had challenged the jurisdiction of the court by filing a plea in abate ment; that plaintiffs’ demurrer to that plea was overruled and that later and on December 22, 1941, the action was dismissed without prejudice. Copies of certain pleadings and orders were attached, which need not be further reviewed.
The bill of complaint in the circuit court of Doddridge county, West Virginia, shows the plaintiffs were Roy Christy, Flora Christy and others, and the defendants were John D. Garrett, F. M. Gay-lord and others. It was alleged that plaintiffs and defendants on or about April 23, 1939, had entered into an article of partnership for the purpose of drilling and operating the Gainer lease, under the name and style of Meadow Lark Oil and Gas Company, and that plaintiffs owned specified shares and the other members owned shares, the amount of which was unknown to plaintiffs; that under the partnership agreement each partner was required to pay to defendant O. E. Garrett, Sr., $1,800 for each one-eighth interest for the first well drilled and $1,500 for the second well drilled on the leasehold estate, under conditions not here material; that pursuant to the agreement well No. 1 was drilled and plaintiffs paid Garrett the amounts due under the agreement; that a second well was commenced and plaintiffs paid Garrett one-half of the amount due from them but Garrett had failed and refused to complete well No. 2, “yet the said John D. Garrett, . . . F. M. Gaylord, . . . have not paid any of their proportionate shares as required by the aforesaid agreement.” Other allegations need not be noted. The prayer was for discovery; for appointment of a receiver to collect amounts due to the firm; that the assets of Meadow Lark Oil and Gas Company be ascertained and marshalled; for an accounting; for judgment and attachment to collect amounts due from Gaylord and others named to the partnership; for ascertainment of liens and that the partnership be wound up, and for equitable relief generally.
After the filing of the amended reply, defendant Gaylord filed his motion for judgment on the pleadings and in his favor for the reason it appeared, among other things, that plaintiff’s cause of action was barred by the statute of limitations, and that by having elected and prosecuted against defendant another and inconsistent remedy from that sought in the present action, plaintiff was precluded from maintaining the remedy sought in the present action.
The trial court heard this motion and later, after consideration of argument and briefs, sustained it generally and rendered judgment that plaintiff take nothing by her action and that Gaylord recover his costs. Plaintiff filed a motion for a new trial, which was denied. Within time plaintiff perfected her appeal from the judgment and all adverse rulings.
We shall take up first the question of inconsistency of remedies. We examine the pleadings in the first action filed in the circuit court of Doddridge county, West Virginia, and in the second action in this state, to determine the remedy sought to be pursued in each.
Appellant states that the apparent object of the West Virginia action was for discovery of what moneys had been paid by plaintiff and her associates, what moneys had been paid by Gaylord and others, and what became of such moneys, in order that she and others would be in a position to institute such individual actions as might seem advisable. Appellant’s analysis of the bill of complaint in that action is not complete. In that action she pleaded and relied upon the drilling contracts as fixing the rights of the parties as partners and alleged that the defendants had not paid in their proportionate shares and she sought to compel such payment, for collection of the partnership assets, for an accounting of the partnership and for a winding up of its affairs. It is too clear for argument to say that she did not there affirm the contract.
With reference to the Kansas case, appellant contends the remedy sought is not inconsistent with that sought in West Virginia; that there was nothing pleaded in the West Virginia case which is denied in the present case and that the position taken in the Kansas case is not inconsistent with that taken in the West Virginia case. Although not clearly set forth, we understand her to contend the Kansas action is one for damages for deceit, and therefore one not inconsistent with the first action on the contract (18 Am. Jur. 139).
The allegations of the petition in the Kansas action have been heretofore summarized and will not be repeated. At no place in the amended petition is there any allegation susceptible of interpretation that plaintiff is affirming the contract alleged and seeking damages. On the contrary, the petition is replete with allegation of wrongful conduct of Gaylord toward plaintiff for the purpose of defrauding her of her money. She did not plead expressly that she disaffirmed the contract, but she made it clear that by reason of defendants’ alleged fraud she had paid $2,796.17 into the venture, and that is what she sought to recover. We cannot interpret the petition in the Kansas case as being an action for damages for deceit; it is none other than one for rescission of the contract because of defendants’ fraud and for recovery of what she paid. We note appellant’s argument that until after the filing of the West Virginia action, she was not aware that defendants had not paid their proportionate shares into the partnership, and hence that her position in the Kansas case is not necessarily inconsistent. We think it is a sufficient answer to say that she pleaded in the West Virginia action that defendants had not paid their shares. There is nothing to indicate she did not know all of the facts when she filed the West Virginia action for it was filed after the date she discovered the fraud as alleged in the Kansas action. She was under no misapprehension when either suit was filed. Having an opportunity to make a choice, she did so. It has been repeatedly held in this state that a party may not both affirm and disaffirm a contract. See, e. g., Turner v. Jarboe, 145 Kan. 202, 64 P. 2d 26, and cases cited. It has also been held that a choice as between two inconsistent remedies is determined by the commencement of an action, and the filing of a petition in such action gives finality to the election. (Davidson v. McKown, 157 Kan. 217, 139 P. 2d 421, and cases cited.)
Application of the above principles to the question now before us leads to the conclusion that appellant made an election when she instituted the West Virginia action on the theory of affirmance of the contract, and she may not now assert the contract is subject to rescission. The above appearing from the pleadings, the trial court properly sustained defendant Gaylord’s motion for judgment on the pleadings.
In view of our conclusion it is not necessary to consider whether plaintiff’s cause of action was barred by the statute of limitations.
The judgment of the trial court is affirmed. | [
-12,
-24,
-4,
12,
10,
96,
40,
-102,
65,
-95,
53,
115,
-23,
-2,
0,
63,
-25,
13,
-12,
106,
-13,
-77,
19,
73,
-46,
-13,
-15,
-35,
-71,
78,
-76,
-41,
77,
48,
74,
-43,
-58,
-38,
69,
30,
-114,
-124,
-87,
-32,
88,
72,
48,
75,
100,
75,
113,
-113,
-13,
40,
29,
67,
40,
46,
107,
56,
64,
-16,
-93,
-121,
93,
19,
1,
6,
-112,
-27,
-40,
46,
-104,
116,
41,
-23,
83,
-90,
-106,
-11,
11,
-119,
9,
38,
98,
49,
-59,
-17,
124,
-104,
46,
119,
-115,
-89,
-32,
0,
1,
104,
-66,
-99,
118,
50,
7,
116,
-24,
-99,
19,
-7,
3,
-117,
-74,
-93,
15,
116,
-100,
23,
-61,
-123,
52,
112,
-53,
2,
92,
71,
114,
-97,
15,
-94
] |
The opinion of the court was delivered by
Hoch, J.:
This is an automobile collision case. Appellants contend that they were entitled to judgment on the jury’s answers to special questions, notwithstanding the general verdict against them. The question is whether the jury’s special finding constituted actionable negligence within the allegations of the petition.
Coryell Brothers, appellants, was a partnership engaged in the transportation of crude oil and other products under a contract carrier permit. On August 24, 1942, on a paved highway in Scott county, one of their outfits — a truck and trailer — driven by H. Vogel, attempted to pass another outfit going in the same direction. The other outfit was a tractor driven by Edens, the appellee, and pulling a combine. The vehicles collided with resulting damage to both and with personal injuries, alleged, to Edens. Both parties sued for damages, Coryell Brothers asking judgment for $1,000 and Edens asking judgment for $250 for personal injuries and $4,000 for property damage against Vogel, the Coryells, and their insurance carrier. The two actions were consolidated and tried together before a jury. The jury’s verdict was for Edens and recovery fixed ’at $2,208. The jury also made special findings as follows:
“1. If you find'that the defendant Hardy Yogel was guilty of negligence which caused or contributed to the accident, of what did such negligence consist? A. He was responsible because he misjudged his distance in attempting to pass combine.
“2. Did Edens’ combine extend beyond the center of the highway to left at the time it contacted the Coryell transport truck or trailer? A. No evidence proved that it did.”
The Coryells and their codefendants moved for judgment on the answers on the ground that “the answer” made by the jury attempted to specify an act not pleaded, and “not supported by any evidence,” and that they were thereby acquitted of all’ acts of negligence alleged. The motion was overruled, as was a motion for new trial, judgment was entered and this appeal followed.
None of the evidence was brought here for review and consequently no consideration can be had of the contention that the answers were not supported by evidence. Furthermore, a motion for judgment on special findings non obstante veredicto concedes that such findings are supported by evidence. (Taggart v. Yellow Cab Co. of Wichita, 156 Kan. 88, 93, 131 P. 2d 924.)
We note appellants’ complaint concerning instructions Nos. 3 and 4, dealing with the allegations of negligence, and which are the only instructions shown in the abstract. Appellee states that other instructions also dealt with the subject of negligence but he does not bring them here by counter-abstract. In any event, the abstract does not disclose that appellants objected to any of the instructions, nor do they contend that objection was made. Accordingly, the instructions became the law of the case and we need not consider them. (Montague v. Burgerhoff, 152 Kan. 124, 128, 102 P. 2d 1031.)
In Edens’ petition and cross petition ten specific acts of negligence on the part of Vogel were alleged. We think it only necessary to recite two of them, which were as follows:
“g. In driving said truck or vehicle too far to the right and upon the right-hand side of the center line of the traveled portion of said highway in attempting to pass the plaintiff.
“h. In failing to drive said truck or vehicle to the left of the center line of the traveled portion of said highway and thus avoiding the accident and collision with the rear end of the plaintiff’s combine.”
Can it fairly be said that the jury’s answer to question 1 was not within the allegations, particularly allegation “g”? We do not think so. While the wording of the answer might easily have been improved, we think that when the jury said that Vogel ‘‘misjudged his distance in attempting to pass” it meant to say that he drove over too far or too soon into the right traffic lane in attempting to pass and get ahead of Edens. This is not essentially different from the allegation of the petition that he drove “too far to the right and upon the right-hand side of the center line” in attempting to pass. Also, we cannot agree with appellants’ argument that the answer to question No. 2 is helpful to their contention. The jury’s finding that there was no evidence that the combine extended beyond the center of the highway at the time it came in contact with the Coryell truck or trailer at least gives no support to any contention that the collision occurred to the left of the center line.
Our conclusion is fortified by the general rules that special findings are to be construed liberally with a view to ascertaining the intention of the jury (64 C. J. 1185): that the findings are to be given the meaning intended however unskillfully expressed (Springer v. Railroad Co., 95 Kan. 408, 409, 146 Pac. 1125), and that liberality of construction should be indulged in order to avoid inconsistency between the findings and the verdict and to uphold the verdict. (Weisendanger v. Lind, 114 Kan. 523, 528, 220 Pac. 263; Ahlstrom v. Kansas Milling Co., 85 Kan. 548, 550, 118 Pac. 57.)
We find no error and the judgment is affirmed. | [
-14,
104,
-31,
-84,
26,
96,
34,
10,
17,
-89,
-25,
83,
-83,
-49,
-116,
121,
-10,
29,
-15,
106,
-9,
-89,
19,
-109,
-110,
-77,
-71,
-60,
-80,
-53,
102,
86,
76,
48,
-53,
-59,
102,
72,
-59,
30,
-50,
12,
-87,
-32,
-39,
-112,
48,
62,
22,
3,
112,
-114,
-61,
42,
28,
-57,
45,
44,
123,
61,
-63,
56,
-56,
7,
95,
18,
-79,
36,
-102,
37,
88,
58,
-48,
49,
8,
-72,
115,
-74,
-46,
-44,
105,
-71,
12,
-90,
103,
1,
20,
-49,
-4,
24,
6,
-25,
15,
-90,
62,
24,
-125,
5,
-105,
31,
113,
114,
6,
-2,
-3,
5,
93,
120,
-121,
-81,
-74,
-111,
103,
32,
28,
9,
-21,
-127,
18,
97,
-56,
-14,
92,
5,
90,
-65,
-105,
-74
] |
The opinion of the court was delivered by
Horton, C. J.:
The defendant in error commenced an action on February 1st, 1875, in the district court of Leavenworth county, to recover $3,829 and interest, alleged to be ■due from Martin Glynn, one of the plaintiffs in error, and to foreclose a deed, absolute in its terms, but intended by the parties as a mortgage, executed by both plaintiffs in error, and also alleged to have been given as security for the payment of the money obtained by Martin Glynn.
Plaintiffs in error admitted the execution of a note to defendant in error by Martin Glynn, of $1,074, dated Aug. 8, 1870, and bearing interest at the rate of five-sixths of one per cent, per month, payable monthly, but stated in their answer that no money or other consideration had been received therefor; and further alleged that said absolute conveyance set forth in the petition was obtained by fraud on the part of the building association, in that said deed was represented to them solely as a mortgage to secure the payment of said promissory note of $1,074, and being illiterate persons they signed and executed said deed upon the belief and understanding that it was merely a mortgage. Other defenses were also set forth, but they are immaterial in view of the questions presented for our determination. Upon the trial, the jury returned a verdict for the association for $1,765.18, of which $565.18 was remitted by the association. Judgment was thereupon rendered against Martin Glynn for $1,200, and in default of the payment of said sum within a day stated, it was decreed that the premises described in the pleadings be duly sold to satisfy the judgment of $1,200 and costs. Upon the trial the plaintiffs in error requested the court to submit to the jury the question, “ Was the deed procured from the defendants by fraud on the part of the plaintiff?” which was refused. This ruling is .assigned for error, and presents about the only question in the case worthy of any consideration, and only a few words are necessary to dispose of that matter. It appears from the answer, that in the execution of the written instrument, which in form is an absolute conveyance, the parties signing and delivering it intended to execute a mortgage only. Now, while such instrument has the form of a deed, it was set forth in the petition as a mortgage executed solely as security for the payment of certain money obtained by one of its signers. It was treated on the trial by the court and alLthe parties simply as a mort gage; therefore no injury or prejudice resulted to the defendants in the court below (the plaintiffs in error here) from the refusal to submit the question asked. Indeed, under the pleadings, such question was not pertinent in the case. The deed, though absolute in form and intended as a mortgage only, was accepted as a mortgage, was sued upon as a mortgage, and was foreclosed as a mortgage. The fact that on its face it purported to be an absolute conveyance, did not make it such an instrument, nor prevent the court and parties from treating it as a mortgage. Equity looks to the substance and not to forms merely, and in equity the conveyance was what both the plaintiff and defendants called it — a mortgage — this, and nothing more. Under the pleadings, there was no issue of fraud in its procurement to be passed upon.
It is also contended that the court committed error in receiving as competent evidence a book of account of the association, to prove its laws, and the dues and fines due from Martin Glynn. The answer to this is contained in the statement of such alleged error, to wit, that the book was the only evidence offered of the demands of the association, other than the note of $1,074. As all was remitted from the verdict but an amount less than what was due on the note, the admission of the book is no cause of reversal. “No exception shall be regarded unless it is material and prejudicial to substantial rights.”
In our view, the judgment is sustained by both the law and the evidence, and in the whole record we perceive no material error. (Hekelnkœmper v. Building Association, ante, p. 549; Massey v. Building Association, ante, p. 624.)
Therefore the- judgment of the district court will be affirmed.
All the Justices concurring. | [
-80,
126,
-39,
-84,
-38,
-32,
-86,
-120,
73,
-96,
-93,
95,
-19,
-62,
5,
105,
-26,
41,
68,
107,
71,
-77,
39,
75,
-46,
-13,
-45,
-43,
-79,
-20,
-12,
-41,
76,
32,
-62,
29,
102,
-118,
-57,
84,
-114,
-121,
41,
69,
-39,
72,
52,
59,
0,
73,
113,
-82,
-5,
47,
29,
66,
73,
40,
73,
61,
-48,
-72,
-97,
-115,
95,
3,
-79,
101,
-36,
67,
-6,
46,
-112,
53,
0,
-8,
115,
-74,
-122,
116,
77,
-69,
45,
102,
98,
32,
125,
-17,
-8,
-115,
46,
-1,
-115,
-89,
-78,
88,
43,
40,
-66,
-99,
116,
16,
7,
-12,
-26,
-100,
25,
108,
3,
-17,
-44,
-45,
-115,
60,
-102,
11,
-33,
-93,
-80,
113,
-49,
-96,
93,
102,
58,
-101,
-98,
-7
] |
The opinion of the court was delivered by
Valentine, J.:
This was an action brought and prosecuted by Marion Sanders, in the name of the state of Kansas, against the Atchison, Topeka & Santa Fé Railroad Company, for 207 alleged violations of the act of the legislature (Gen. Stat. 206, § 60) requiring railroad companies to ring a bell or sound a whistle at each crossing of every traveled public road or street. Sanders prayed for a judgment for $20 for each of said violations, or for $4,140 in the aggregate — one-half thereof for himself, and the other half thereof to be paid to Lyon county for the use and benefit of the public-school fund, and for costs. He obtained judgment in the court below in his favor and against the railroad company for $1,680, one-half thereof to be paid to himself, and the other half to be paid to the county treasurer of Lyon county for the support of common schools, and for costs. The railroad company then claimed, and it now claims, that said judgment was and is erroneous, and now seeks in this court to have the same reversed. Many questions are raised and presented to this court, some of which relate only to mere questions of practice, but others thereof go to the very foundation upon which Sanders’s supposed right of recovery rests. At the very threshold of the controversy, the railroad company denies Sanders’s supposed right to recover. It claims that even if it did violate said act; by failing to ring a bell or sound a whistle at some traveled public road or street-crossing, still, that the entire penalty imposed for such violation must necessarily be applied, under § 6 of article 6 of the constitution, to the support of common schools, and that not one cent thereof can be given to Marion Sanders; and, therefore, that as he can have no possible interest in the subject-matter of the action different from that of the rest of the community, and that as he is not a public prosecutor, he cannot maintain the action. State v. Anderson, 5 Kas. 90, 116; Craft v. Jackson Co., 5 Kas. 518; Bobbett v. Dresher, 10 Kas. 9; Turner v. Jefferson Co., 10 Kas. 16; Bridge Co. v. Wyandotte, 10 Kas. 326; State v. Jefferson Co., 11 Kas. 66; Miller v. Palermo, 12 Kas. 14; State v. McLaughlin, 15 Kas. 228, 233; Crowell v. Ward, 16 Kas. 60, 62; Center Township v. Hunt, 16 Kas. 430, 439. The railroad company also claims that, as the action has not been nor is it now prosecuted by any public prosecutor, the action must abate. (See authorities above cited.) Among the statutes necessary to be considered for the correct determination of this case are the following, to wit:
“Sec. 60. A bell shall be placed on each locomotive engine, and be rung at a distance of at least eighty rods from the place where the railroad shall cross any traveled public road or street, and be kept ringing until such crossing shall have been passed; or a steam whistle shall be attached to each locomotive engine, and be sounded at least eighty rods from the place where the railroad shall cross any such road or street, except in cities, and shall be sounded at intervals until it shall have crossed such road or street, under a penalty of twenty dollars for every neglect of the provisions of this section, to be paid by the corporation owning the railway, one-half thereof to go to the informer, and the other half to the county for the support of common schools; and the corporation shall also be liable for all damages which shall be sustained by any person by reason of such neglect.” (Gen. Stat. 206.)
“Sec. 62. All penalties imposed upon railway corporations by this or any other act, may be sued for in the name of the state of Kansas, and if such penalty be for a sum not exceeding three hundred dollars, then such suit may be brought before a justice of the peace of the county in which the penalty accrued, and may be commenced by serving a summons on any officer or agent of such company found within the state.” (Gen. Stat. 206.)
“Sec. 307. Whenever any fine, penalty or forfeiture is or may be inflicted by any statute of this state for any offense, the same may be recovered by indictment (except as in the next section is provided), notwithstanding another or different remedy for the recovery of the same may be specified in the act imposing the fine, penalty or forfeiture: Provided, That in all cases the fine, penalty or forfeiture shall go to the state, county, corporation, person or persons to whom the act imposing the same declares it shall accrue,” (Gen. Stat. 383.)
Said constitutional provision reads as follows:
“Sec. 6. All money which shall be paid by persons as an equivalent for exemption from military duty; the clear proceeds of estrays, ownership of which shall vest in the taker-up; and the proceeds of fines for any breach of the penal laws, shall be exclusively applied, in the several counties in which the money is paid or fines collected, to the support of common schools.” (Kas. Const., art. 6, § 6.)
The words “fine,” “penalty” and “forfeiture” are not defined by any statute of this state; but the word “offense” is. The word “offense” means “any offense, as well misdemeanor as felony, for which any punishment by imprisonment or fine, or both, may by law be inflicted.” (Gen. Stat. 1868, p.384, §310; Laws of 1859, in force from 1859 to 1868, p. 287, § 303.) It also means “any act or omission for which the laws of this state prescribe a punishment.” (Gen. Stat. 820, § 2.) But counsel differ mostly as to the correct signification of the word “fine.” The constitution provides that “the proceeds of fines for any breach of the penal laws shall be exclusively applied” “to the support of common schools.” “The proceeds of fines” mean, of course, the moneys collected from fines, the amounts realized from fines, and just such amounts, no more and no less. “The proceeds of fines” evidently mean all the proceeds, not merely the clear proceeds; not a portion thereof, but all. While the constitution in one clause of said § 6 provides that only “the clear proceeds of estrays” shall be devoted to schools, yet it, in the clause we are now considering, provides that “the proceeds of fines” shall beso devoted. And it provides that they shall be “exclusively” so devoted, thereby leaving no possible room for any portion thereof to be applied elsewhere, or for any other purposes, or for any mere informer to receive any portion thereof. But counsel for. Sanders claim that the “penalties imposed” for breaches of the present penal statute are not “fines” under said §6, art. 6 of the constitution-, and they favor us with a learned and elaborate disquisition concerning the meaning of the words “fine,” “penalty,” “forfeiture,” etc. They are probably generally correct, but still we think they attempt to limit the signification of the word “fine” within too narrow a compass. Even in its legal sense, the word is rather comprehensive. It means, among other things, “a sum of money paid at the end, to make an end of a transaction, suit or prosecution; mulct; penalty.” (Webster’s Diet.; Richardson’s Diet.) In ordinary legal language, however, it means a sum of money imposed by a court according to law, as a punishment for the breach of some penal statute. In the present case, we think the penalty imposed is clearly a fine. It is imposed, not as a compensation for some loss sustained, not as damages, not as interest and not as costs, but merely as a punishment for the breach of a penal statute. The words “penal laws,” as used in the constitution, evidently mean laws for the breach of which a penalty is imposed, and if this penalty is imposed merely as punishment, the penalty is a fine. The legislature may give damages wherever loss has been sustained. It may even give enhanced damages, double damages, treble damages, exemplary damages, and remote as well as proximate damages, but these are all damages because of loss sustained, and not merely punishment for some breach of the penal laws. It has often been questioned, however, whether the legislature could give as damages more than mere compensation for the loss sustained. If it were a new question, the courts 'would probably at the present day hold that the legislature could not do so. The legislature may also give costs, such as officer’s fees, witness fees, attorney’s fees, etc., but these are also given as compensation for loss. The legislature may also give interest, or enhanced damages or penalties, in the nature of interest, but this is also done upon the principle of giving compensation for loss. In all cases where money is imposed merely as punishment for the violation of some law, we think the imposition of such money should be called a fine.
Counsel for Sanders seem to contend thát the penalty imposed in the present case is not a fine, because it is not imposed in a criminal action, but is imposed in a civil action. It is true that the present action is in form a civil action, and without stopping to inquire whether it is rightfully so or not, we would say that we think it can make no difference whether we call it civil or criminal. It is actually prosecuted in the name of the state of Kansas as a punishment for a breach of a penal statute; and it might have been prosecuted in form as a criminal action. (See said section 307, Gen. Stat. 383.) Besides, courts look to the substance of things, and not to mere forms. This is especially true when construing great and important constitutional provisions. The procedure for the trial of causes is a very unimportant thing in determining the nature and character of such causes. The legislature might change the procedure for the trial of cases of murder in the first degree, or for any other crime, so as to make such procedure similar in almost all respects to that for the trial of civil actions, and might call such action a civil action; and yet, by merely so changing the procedure and the name of the action, (not changing the punishment,) it could not deprive the defendant of his right under the constitution to a trial by jury, to meet the witnesses face to face, to be tried in the county or district where the offense was committed, or to refrain from being a witness against himself. The offense would still be a criminal offense under the constitution, whatever the procedure, or whatever the offense might be called.
As throwing some light upon the present case, see Lynch v. The Steamer “Economy,” 27 Wis. 69, and Dutton v. Fowler, 27 Wis. 427. These cases hold that, under the Wisconsin constitution, which sets apart for the school fund “the clear proceeds of all fines collected in the several counties for any breach of the penal laws,” all such “clear proceeds,” whatever they may be, must be so set apart. “ The entire penalty cannot be given to the informer,” and any act of the legisla ture which disposes of the entire penalty imposed for a breach of the penal laws in any other manner than by giving the “clear proceeds” thereof to the school fund is unconstitutional and void; and it seems to make no difference in whose name or under what procedure the action may be prosecuted, or whether the penalty is called a fine or merely a penalty. A penalty for a breach of “the penal laws” is a fine, and it must go where the constitution says it shall go. • Hence, when our constitution says that “the proceeds of fines for any breach of the penal laws shall be exclusively applied” “to the support of common schools,” it means that all the proceeds of penalties imposed as punishment for a breach of a penal statute (and not imposed as damages where loss has been sustained) shall be exclusively applied to the support of common schools, and that no portion thereof can be given to a mere informer; hence, said act, or any acts of the legislature which give to an informer who has sustained no loss one-half of the proceeds of such a penalty, is unconstitutional and void.
All the Justices concurring. | [
-80,
104,
-16,
30,
-118,
-64,
34,
10,
81,
-79,
-92,
83,
-87,
-120,
1,
111,
-14,
39,
21,
43,
-57,
-109,
71,
-29,
-110,
-77,
-37,
-51,
-69,
95,
-28,
-41,
12,
48,
74,
-43,
38,
-64,
69,
92,
-114,
14,
-88,
-28,
89,
-128,
52,
59,
82,
11,
-75,
-114,
-13,
44,
24,
-61,
41,
44,
-37,
-87,
-64,
-79,
-102,
-57,
116,
4,
17,
0,
-100,
7,
68,
46,
-104,
49,
0,
-24,
115,
-94,
6,
-43,
97,
-87,
8,
-30,
98,
33,
53,
-17,
-76,
-120,
14,
-44,
-115,
-25,
-78,
24,
99,
5,
-106,
-97,
118,
86,
7,
-2,
-3,
13,
95,
60,
1,
-118,
-80,
-125,
-113,
34,
-110,
82,
-21,
41,
48,
97,
-59,
-10,
95,
71,
50,
-101,
-49,
-76
] |
The opinion of the court was delivered by
Hokton, C. J.:
It is a general principle of the law of personal property, that no one can be divested of his property without his own consent. Founded upon this fundamental principle, the doctrine is well established, that if the owner loses his property or is robbed of it, or it is sold or pledged without his consent by one who has only a temporary right to its use by hiring or otherwise, or a qualified possession of it for a specific purpose, as for transportation, or for work to be done upon it, the owner can follow.and reclaim it in the possession of any person, however innocent. There are a good many exceptions to this general rule, but this ease does not fall within any of these exceptions. The findings of fact show substantially that McNeer, without any authority therefor, pledged the personal property of another in his possession for a specific purpose for a debt due from him. This is about all there is in the case, and the court did not commit any error in its ruling that the owner had the right to recover it without paying the debt of McNeer. “Possession, though prima facie evidence of title, is only prima facieT and subject to be overthrown by other testimony; and to acquire title, purchase must be made from the owner or one authorized to sell.” (Sumner v. McFarlan, 15 Kas. 600.) As McNeer had no authority to pledge or sell the property, he could no more make a pledge of it for his own debt than he could have made a valid sale. Counsel however refer to the case of Savings Bank v. A. T. & Santa Fé Rld. Co., 20 Kas. 519, and claim that, within the principles therein stated, the plaintiff in error is entitled to a reversal of the judgment of the lower court. We do not think that case applicable. The findings of fact show a wide distinction. In this case, William Heckler hired McNeer to transport the property from Ohio to Kansas, and paid him $45 therefor. He understood that McNeer was going to convey such property, along with certain household goods owned by him, with other personal property belonging to a third party, in a car which he had chartered for that special purpose. A bill of lading was issued to McNeer for one car containing lumber, household goods and buggies. The freight for the car-load was $148. After the goods had reached their destination, the bill of lading was turned over to Branson, and the latter paid the $148 for freight, and then took actual, not symbolical, possession of the vehicles. The money does not seem to have been advanced upon the bill of. lading, as only a portion of the property embraced therein was accepted as security for the loan, and a lien is only asserted to the property taken into actual possession. The balance of the property, probably sufficient to pay the claim of Branson, seems to have been retained by McNeer. To facilitate commercial transactions, a bill of lading has grown to be regarded as the symbolical representation of the goods which it describes; but its transfer only carries with it generally such rights as the party in possession of the goods could transmit by actual corporal transfer of the goods themselves. In this case, Bran-son claims from possession. As before stated, we can only regard the whole transaction as nothing more than the pledge of the principal’s property by the agent for his own debt, and without authority. There was no fraud or misconduct on the part of the owner of the property transported to Ottawa, and therefore the general rule that the possession of goods by a bailee or servant gives him no power to make any disposition of them, except by virtue of actual authority re-, ceived from the owner, is applicable here.
The judgment of the district court will be affirmed.
All the Justices concurring, | [
-80,
124,
-40,
-84,
26,
104,
42,
-102,
81,
-81,
-89,
-109,
-19,
-62,
5,
107,
-10,
93,
113,
106,
-10,
-93,
7,
-93,
-46,
-109,
-111,
-52,
49,
75,
102,
87,
76,
-80,
-54,
-107,
102,
-119,
-61,
84,
-114,
-124,
-70,
65,
-7,
64,
52,
11,
20,
79,
65,
30,
35,
46,
25,
-52,
-87,
44,
43,
61,
-48,
-8,
-85,
15,
127,
21,
-127,
36,
-100,
37,
-24,
8,
-108,
25,
17,
-24,
114,
-74,
-106,
-44,
13,
-99,
41,
102,
98,
0,
17,
-19,
-36,
-104,
15,
-38,
-65,
-122,
84,
88,
3,
97,
-73,
-97,
101,
7,
52,
-10,
-22,
28,
28,
-20,
31,
-81,
-42,
-77,
13,
116,
-102,
9,
-49,
35,
49,
112,
-50,
112,
93,
39,
122,
-109,
-114,
-4
] |
The opinion of the court was delivered by
Brewer, J.:
Prior to 1875, certain tracts of land in Allen county, and within the limits of the school district, plaintiff in error, were sold for non-payment of taxes. A railroad corporation was the immediate purchaser, at such sales, of some of the tracts, and the assignee of the purchaser of the others. The subsequent taxes up to 1876 were paid, and indorsed on the sale certificates. Out of the taxes thus received into the county treasury, the amount called for by the school-district levy was duly paid over to the district. In 1876 and 1877, the certificates were presented to the county clerk, who refused to make deeds thereon, because, as it is now conceded was the fact, the lands were government lands and not taxable, and indorsed such refusal on thé certificates. Thereupon the treasurer refunded the money paid, to the holder of the certificates, and the county commissioners brought this action to recover from the school district the proportion it had received. Sec. 147 of ch. 34 of the Laws of 1876 in terms authorizes such recovery, but three principal objections are made thereto by the school district. It is insisted, in the first place, that the purchase of lands at tax sales by a railway corporation is ultra vires; that therefore the sale certificates were void, and the county under no legal obligation to refund. None of the circumstances under which these tax purchases were made are shown. The single fact appears, that the purchaser was a railway corporation. There might be an inference, though there is no-direct concession,- that these lands were within a supposed grant from the government to the railroad. Under those circumstances we do not think the objection well taken. For while dealing in tax titles is outside of the powers of a railroad corporation, the purchase of one or more tax certificates is not necessarily ultra vires. Such a corporation may purchase and convey real estate for the purpose of aiding in the construction of its railway. It may receive vol untary grants of land for the same purpose. (McClure v. Gulf R. R. Co., 9 Kas. 373.)
It may within the same powers perfect an imperfect title, or enlarge a limited interest in real estate by a purchase of a tax-sale certificate thereon, or it may receive a donation of tax titles; so that the mere fact that a railway corporation is the purchaser and holder of a tax-sale certificate, does not necessarily show that it is void. But even if the purchase were in this case an act ultra vires, could the county retain the money while the corporation took nothing by the purchase? Would the transaction stand as to the grantor and fall as to the grantee? Could the former conveying nothing retain the price, while the latter receiving nothing forfeits what it has paid? It is, however, scarcely necessary to pursue this inquiry further — though see the Citizens Street Rld. Co. v. State Board, 47 Ind. 407; The N. W. U. P. Co. v. Shaw, 37 Wis. 655; The W. A. Co. v. Barlow, et al., 63 N. Y. 62.
A second objection is, that the county was under no legal ■obligation to refund, because the defect which vitiated the sale was not an “error or irregularity” within the meaning of those words as used in the statute concerning refunding. The lands, say counsel, were not taxable. This was a case •of lack of jurisdiction, and not an error or irregularity in the tax proceedings. We do not think the words are here used in any such limited sense. Outside the fact that the general scope of the section (§145, ch. 34, Laws 1876) seems to indicate that the words are used in the broadest sense, and to ■cover any defect, jurisdictional or otherwise, we find that in the succeeding section (which provides for a return of the money after a conveyance has been made) the language is ■open to no doubt, and includes all cases in which the sale is found to be invalid. The legislature can hardly have intended that after a conveyance the money should be refunded in all cases of invalid sales, while before conveyance it should be refunded only in case the defect rendering the sale invalid was not a jurisdictional defect. The idea obtaining in the two sections is, that whenever the county has sold when it ought not to have sold, the purchase-money shall be refunded .and the sale set aside. (Comm’rs of Lyon Co. v. Goddard, ante, p. 389.)
A final objection upon which great stress is laid by counsel is, that to sustain the judgment in this case, retrospective force must be given to said § 147, and that there is nothing to indicate that the legislature intended the section to have such operation. At the time of these sales, the receipt of the money into the county treasury, and the payment to the school district, as counsel say, there was no statute authorizing any recovery from the district. Was it the intent of the legislature that the district should return moneys which years before it had received and expended? Ordinarily, statutes are prospective only in their operation, and before any retrospective force is given to them, the legislative intent therefor should be clear. We do not think the objection well taken. Sections 145 and 146, which provide for the return of money from the county to the tax purchaser, are ■substantial reenactments of prior sections which had been in force since 1868. So that at the time of all these proceedings, the county was under the same obligation to return the moneys received. No new liability was created as against the county by the act of 1876. But the county, in collecting and paying over school-district taxes, acts simply as an agent without compensation. It is merely the channel* through which the taxes pass from the tax-payer to the district. And compelling it to make good to the tax-payer all moneys by him paid, was compelling it to pay out of the general fund moneys which in equity should be paid over by the ■district which had received and appropriated them. It was •district money which the county was returning, and it would be gross injustice to compel the tax-payers of the county living outside of the district thus indirectly to aid in building its school house and supporting its schools. There was certainly a moral duty on the part of the district to return to the county the money which it had been compelled to pay for it, and it may well-be doubted whether there was not also a legal obligation which could be enforced.
Again, the tax sale was not set aside, nor the moneys refunded by the county, until after said § 147 was in force. Until the county had been called upon to refund, it could have no cause of action against the district. The gist of the cause of action is the payment by the county of money which in equity and good conscience the district ought to-pay. And this payment was not made until long after the section was in force. Until such payment, there was neither moral duty nor legal obligation upon the district. So far as this section is concerned, only prospective operation is given to it. Nothing that it provides for was done before it took effect. “When a tax sale shall be set aside as invalid, and moneys and interest have been refunded thereon,” is its language. All this post-dated the statute. How then can it be said that retrospective force is sought to be given to the section'?
We think the ruling of the district court was correct, and the judgment must be affirmed.
All the Justices concurring. | [
-12,
-2,
-44,
-68,
-70,
-32,
50,
-120,
65,
-95,
-89,
83,
-83,
-46,
17,
57,
-30,
101,
113,
88,
84,
-78,
99,
35,
-106,
-77,
-39,
-35,
-79,
77,
-28,
-60,
76,
48,
-54,
-11,
102,
-62,
-59,
80,
-114,
4,
43,
78,
-37,
-32,
52,
107,
114,
75,
113,
-114,
115,
44,
25,
67,
73,
46,
75,
33,
64,
-7,
-70,
-57,
127,
15,
-111,
100,
-104,
3,
-24,
-86,
-104,
49,
10,
-24,
115,
-90,
70,
-12,
9,
-87,
9,
102,
103,
1,
53,
-3,
-48,
-104,
14,
-34,
13,
-90,
-106,
88,
34,
9,
-105,
-99,
84,
82,
-121,
-2,
-26,
69,
91,
108,
5,
-49,
-10,
35,
-49,
108,
-118,
3,
-49,
35,
48,
64,
-59,
54,
93,
103,
50,
-101,
78,
-2
] |
The opinion of the court was delivered by
Valentine, J.:
This was an action on a promissory note, brought by E. P. Coleman against Robert Abbott. The defendant (who is now plaintiff in error) pleaded payments; and whether the note had actually been paid or not, was the ■only question in issue in the court below. The case was tried before the court and a jury, and on the trial it was shown that said note was executed December 14,1870, by said Robert Abbott and Alexander Abbott to one David A. Mowery, to be due iu one year, and was assigned by Mowery, on December 30, 1870, to the plaintiff, E. P. Coleman. In 1874, Robert and Alexander Abbott were partners in business. About March 20,1874, Alexander Abbott handed to Robert a receipt dated March 14, 1874, signed “ E. P. Coleman,” and showing payment of said note. The body of the receipt was in the handwriting of Alexander Abbott, but in whose •handwriting the signature 'was, was not shown, for reasons hereafter to be stated. About December 5, 1874, Alexander died, and Robert retained possession of all the partnership papers. Among the papers, he found said receipt. On June 6, 1876, this action was commenced; and about June 20, 1876, Robert took said receipt to Thomas L. Darlow, and showed it to him. Darlow was a lawyer, and Robert took the receipt to him for the purpose of consulting him in the case. Darlow examined the receipt and the signature thereto, and then returned the receipt to Robert. Darlow has never seen the receipt since.' Robert then placed the receipt in his pocket-book, and afterward, on the 4th of July, 1876, lost both the pocket-book and the receipt, and has never seen or heard of them since. On September 9, 1876, depositions of E. P. Coleman were filed in the case, containing two of the genuine signatures of Coleman written therein. Both Robert and Darlow examined these signatures. The trial of this case was.had August 4,1877. Both Robert and Darlow testified as witnesses on the trial. All the foregoing facts were shown. It was also shown that Darlow had practiced law for about eight years; that he had had occasion in his practice to examine and compare signatures, and that he had been in the habit of examining and comparing them. Both Darlow and Robert again examined said signatures of E. P. Coleman on said depositions admitted to be Coleman’s genuine signatures. The defendant then offered to prove, both by Robert and by Darlow, the contents of said receipt, and that the signature thereto was in the handwriting of E. P. Coleman, but the court refused to permit him to do so. Among other questions, the defendant propounded the fol lowing to Darlow, to wit: “You may state if you are able, from your examination of the signature of ‘E. P. Coleman’ to those depositions, and from your recollection of the signature to that instrument [the receipt] which you examined at Mr. Abbott’s request, whose signature was written to the said instrument.” The record shows that this question was “objected to by plaintiff, because the answer would be incompetent evidence,” and the court below sustained the objection. In all the other cases except one, the objections were made because, as it was claimed, the evidence was “incompetent,” and in that one the objection was made because, as it was claimed, the evidence was “incompetent, immaterial, and irrelevant.” The evidence in the case shows that the plaintiff’s attorney, Theo. Botkin, once had a copy of said receipt, and that once in June, 1876, after Darlow had seen said receipt and returned it to Abbott, and before Abbott lost it, Botkin served a notice on Darlow, the defendant’s attorney, “for an inspection and copy of papers connected with the suit,” and that Darlow never afterward saw the receipt, and therefore did not furnish it to Botkin. The plaintiff (defendant in error) says in his brief in this court that the testimony of Darlow concerning the signature to said receipt, “was objected to as incompetent and immaterial, and for the further reason that Darlow had not shown himself competent to testify concerning Coleman’s handwriting.” Now the record does not show that any objection was made because “Darlow had not shown himself competent to testify concerning Coleman’s handwriting.” So far as the.record shows, .there was not a doubt concerning the qualifications and competency of Darlow as a witness. The doubt, or rather claim of incompetency, went to the evidence and not to the witness. The plaintiff objected to the evidence because he believed that the evidence was incompetent, not because he believed that the witness was incompetent. There was not an objection made or question asked that seemed to indicate that the plaintiff had even the slightest doubt as to the competency of the witness, and we think he was competent as an expert. The plaintiff really objected to the evidence because he believed that the genuineness of the signature to a lost instrument could not be proved in any case by any witness comparing his recollection of the signature on the lost instrument with admitted genuine signatures of the same person already in the case. Nor does there seem to have been any doubt concerning the loss of the receipt, and that it was lost without the fault of the defendant. No objection was made or question asked which would seem to indicate that the plaintiff had the slightest suspicion that the receipt might still be in existence, or within the reach of the defendant, or that the defendant intentionally lost it for the purpose of preventing an inspection of it by others. The' defendant did not merely mislay the receipt. He did not merely place it somewhere, and then forget where he placed it. Nor did he hand it to some other person who may still perhaps have it in his custody. But he lost it. He testified positively, absolutely and affirmatively that he lost it. He knew he lost it, and knew when he lost it. He also at the same time lost his pocket-book containing it. The defendant had no other evidence to prove the genuineness of the signature to said receipt, and no other evidence to prove payment of the note, and therefore the verdict and judgment were rendered in favor of the plaintiff and against the defendant for the amount of the note.
We think that the court below erred in excluding Darlow’s testimony. Of course it was weak, but it was the best that the defendant could procure, and should have been admitted for what it was worth. We have heretofore had occasion to examine the question relating to the comparison of hand-writings, and we uphold the doctrine that comparisons of handwritings may be made both by experts and by the jury. (Macomber v. Scott, 10 Kas. 335; Joseph v. National Bank, 17 Kas. 256.) This case goes a little further, and holds that an expert may compare a signature which he has previously seen, but which is now lost, with one which is admitted to be genuine, and which is among the papers of the case. We have also had occasion to examine the question relating to the proof of the contents of lost instruments, and we have decided nothing inconsistent with what we now decide. The only cases which might possibly be thought to be inconsistent are the cases of Johnson v. Mathews, 5 Kas. 118, and Shepard v. Pratt, 16 Kas. 209. But in these cases the question was squarely raised that the instrument was not lost. In this case the question was not squarely raised. In the first of said cases the instrument was not lost, but only “mislaid,” and with any proper search might have been found. In the second of said cases the witness did not know that the instrument was lost, but only supposed that it was, and did not make such a search as would convert his supposition or belief into knowledge. At least, he did not show by any statement of facts that he made any such search. In the present case, the witness knew that the instrument was lost. He knew the exact day on which it was lost; and nothing was said or done by the opposing par.ty to indicate that he or his counsel entertained a doubt concerning its loss. If anything had been said or done by the opposing party to indicate a doubt as to-whether the instrument was in fact lost or not, then it would have been proper for the court below to require strict proof of its loss, by a detailed statement of the facts relating to the loss. Ufider the circumstances, we think the loss was amply proved.
. We have also had occasion to examine the question as to> the extent of an objection to evidence for incompetency: K. P. Rly. Co. v. Cutter, 19 Kas. 83, 87, and cases there cited. Generally, it does not extend to the competency of the witness, nor does it generally include the objection that sufficient preliminary proof has not yet been introduced. Generally, an objection for incompetency simply means that the evidence itself is incompetent in the case, although it might come from a competent witness, and although sufficient preliminary proof might first be introduced. All the author ities agree that an objection to evidence should be 'specific. General objections are generally not sufficient. No general objection could be framed to cover all possible objections.
It is always the intention of this court to decide the exact questions decided by the court below. Sometimes it is very difficult to ascertain from the imperfect records which are brought to this court just what the court below did decide, but we always endeavor to ascertain just the questions which the court below decided, and then to decide the same questions. We have no doubt that the court below decided in this case, that admitting that Darlow was a competent witness to testify upon the subject, and admitting that said receipt was lost, still that it was not competent for the defendant to prove the genuineness of Coleman’s signature on said receipt, by Darlow comparing his recollection of such signature with the admitted genuine signatures of Coleman on said depositions, and • therefore that it was incompetent to prove the contents of said receipt. We think said evidence was competent, and therefore the judgment of the court below will be reversed, and cause remanded for a new trial.
All the Justices concurring. | [
-80,
108,
-32,
61,
122,
-32,
42,
-102,
97,
-128,
-93,
115,
-87,
-61,
0,
105,
116,
45,
84,
107,
-52,
-109,
54,
75,
-30,
-13,
-7,
-43,
-79,
-36,
-25,
87,
76,
36,
-38,
93,
-26,
72,
-63,
80,
-58,
45,
41,
-28,
-47,
-120,
52,
41,
-91,
73,
101,
78,
-93,
41,
28,
70,
105,
44,
105,
61,
-48,
-79,
-97,
-123,
31,
18,
-79,
7,
-100,
71,
-40,
14,
-104,
55,
2,
-8,
58,
-90,
-122,
-12,
99,
41,
8,
102,
-93,
16,
85,
45,
-68,
-100,
55,
127,
-99,
-89,
-48,
104,
35,
45,
-73,
-99,
60,
83,
-89,
-10,
-18,
-107,
24,
36,
11,
-117,
-122,
-109,
15,
126,
-98,
-118,
-25,
-81,
17,
116,
-49,
-80,
92,
101,
58,
-111,
-114,
-110
] |
The opinion of the court was delivered by
Valentine, J.:
This was an action brought by the Citizens’ Building and Savings Association of Paola, Kansas, against R. W. Massey and Sallie E. Massey, on a certain promissory note and mortgage executed by them. The action was commenced in Miami county, but before trial it was removed on change of venue to Shawnee county, where it was tried, and judgment rendered in favor of the plaintiff below, and against the defendants below. The defendants then as plaintiffs in errors brought the case to this court, and now ask f°r a reversal of the judgment below, for various reasons which they have fully discussed in their briefs. The facts of the case are substantially as follows: On February 4, 1873, the defendants below, plaintiffs' in error, executed the note now in suit, which note reads as-follows:
“$500. Paola, Kansas, February 4, 1873.
“Fifteen years after date, we promise to pay to the order of the Citizens’ Building and Savings Association of Paola, Kansas, five hundred dollars, for value received, with interest thereon at the rate of one-half of one per cent, per month, payable monthly on the first Tuesday of each and every month, at the office of the corporation, in Paola, Kansas. Appraisement waived. R. W. Massey.
Sallie E. Massey.”
To secure the payment of this note, the makers thereof, on Februaiy 6, 1873, executed to the payee thereof the mortgage now in suit, on certain land in Miami county, owned by said Sallie E. Massey. Whether this land was occupied as a homestead or not, is not shown. This mortgage, however, was not only a security for the payment of said promissory note, but it also contained stipulations making it a security for the payment of certain dues and fines, which R. W. Massey as a member of said Citizens’ Building and Savings Association, agreed to pay. It also contained a stipulation, that if any default should be made in the payment of said note or interest, or in the payment of said dues or fines for three months, or in the payment of taxes accruing against the land, or in keeping the premises insured, “then, in either of these cases, the whole of said sum mentioned in said note, together with the interest thereon, and the dues- and fines owing to said association, shall, and by this indenture does, immediately become due and payable.” The mortgage also contained a stipulation giving to the plaintiff an attorney-fee of $25, in case the mortgage had to be foreclosed.
The Citizens’ Building and Savings Association was a cor poration, organized September 2, 1871, under the laws of Kansas, (Gen. Stat. 190, et seq.; Laws of 1870, pp. 125, 126; Laws of 1871, pp. 169, 170,) and did business in the city of Paola, Miami county, Kansas. The object of the association was “the accumulation of a fund by small monthly installments, to enable the members to purchase real estate, erect buildings, redeem mortgages, satisfy ground rent, loan money, pay taxes, and effect other similar purposes, in such manner as the association should from time to time determine.” The capital of the company was fixed at $100,000, divided into 200 shares of $500 each. Stockholders were required to pay on each share held, monthly dues of $2, and a fine of 25 cents was added thereto for each failure to pay the same when due; and'should a member fail for three months to pay his dues, interest and fines, he should forfeit his shares of stock, and all his rights and privileges as a member. As soon as $500 was accumulated, it was to be loaned, and the preference or priority of such loan was sold to the stockholder offering to pay the highest premium therefor. A loan, or the privilege thereof, óf not more than $500 could be sold at any one time, and the premium offered was deducted from the amount of the loan; each loan to bear interest from date at the rate of one-half of one per cent, per month, to be paid at the end of every month. Every member of the association not in arrears was entitled to a loan on good and sufficient security of any sum not exceeding the amount of stock held by such member, such loan to be made only upon real estate, buildings, or shares of stock of the association (and sometimes in addition personal security), and every member receiving a loan should mortgage to the association as many shares of stock as he received loans, regardless of any other security he had given. The member who successfully bid for a loan would receive in money the difference between the amount of the loan and the premium bid therefor; thus, if the premium bid was $200 for a loan of $500, he would receive in money $300; and he was required to give a note for a sum equal to the amount of both the premium and the money actually received, such sum to bear interest at the rate of one-half of one per cent, per month, payable monthly, to be secured by mortgage on unincumbered real estate, or by shares of stock, and sometimes in addition to the other security by personal security. The member obtaining the loan was required to continue to pay his monthly dues as before, the same as other members, until by the accumulation of funds each share after paying the debts and expenses of the association would be worth par value, when the company would be ready to be dissolved by the cancellation of the debts of those members who had obtained loans, and the payment to the other members who had not obtained loans, the par value of their shares.
The above-mentioned note and mortgage were given to secure a loan of $500, made by the association to said R. W. Massey, who was at the time a member of the association, he having bid the highest premium offered therefor. Subsequently he failed to pay his monthly dues, fines and interest, and the note and mortgage becoming due in accordance with the stipulations of the mortgage, suit was commenced thereon on August 11, 1875, in the district court of Miami county, by the association, against the makers of the note and mortgage, for the sum of $500, with interest thereon at the rate of one-half of one per cent, per month from February 2, 1875, and $2 per month for monthly dues for each and every month commencing with and including March, 1875, and $25 attorney’s fee for foreclosing said mortgage.
The defendants below filed separate answers to the plaintiff’s petition. R. W. Massey for his defenses alleged: First, that at the time the plaintiff below made the loan to him and took from the defendants their note and mortgage to secure its payment, only 157 shares of the 200 shares of capital stock were subscribed, and all the capital stock not having been subscribed, the plaintiff had no legal power or authority to transact business with the defendant, to make him a loan or to take his note and mortgage; second, that the loan was made in pursuance of a mutual agreement between the plaintiff and defendant that the plaintiff should lend the defendant money at the rate of sixty per cent, per annum, and that the defendant actually received only about $200 as the consideration for said note; and, third, that he had paid to the plaintiff on said note and mortgage the sum of $500, and' was not indebted to the plaintiff in any amount.
The answer of Sallie E. Massey — First, denied that the plaintiff was duly and legally incorporated, denied that it ever had any legal or valid existence as a corporation; and, second, alleged that the capital stock of the plaintiff had not' been fully subscribed; that it had no legal authority to transact business or to take a mortgage to secure a present loan of money; and, third, that the whole object and intent of the corporation was and is .to evade the usury laws of the state; that R. W. Massey received only $240 on said note; that there was no valid consideration for the other $260 thereof, but that it was taken by the plaintiff in excess of the legal rate of interest; and that said R. W. Massey had paid on said note and mortgage the sum of $250.in full payment of the said $240, and that said defendants were not indebted to the plaintiff on said note and mortgage.
Neither of these answers was verified by affidavit, and' therefore the allegations of the petition, setting forth the exe- ’ eution of said note and mortgage, and the existence of said association as a corporation, were not put in issue. (Civil Code, §108; Comp. Laws of 1879, p. 616, and cases there cited.)
The replies of the plaintiff averred the organization of the corporation, and the opening of books for subscription to the capital stock; admitted that but 157 shares of said capital stock had been subscribed; averred its authority to transact business; that the note and mortgage were executed and delivered to plaintiff as a corporation; admitted that th*e defend-: ant, R. W. Massey, received only $220 from the plaintiff, and that the difference between said sum and the $500 mentioned in said note and mortgage, was a premium bid by said R. W. Massey, as a member of said association, for a priority of a loan, at a regular sale of plaintiff’s funds, in accordance with the constitution and by-laws of plaintiff, with all of which defendants were well acquainted, etc.
• The case was tried on change of venue by the district court of Shawnee county, without a jury, and judgment rendered in favor of the plaintiff for $550, for “principal, interest, dues and fines,” and for $25 for plaintiff’s attorney fee for foreclosing said mortgage, and for costs. The judgment is followed by the usual decree for foreclosure and sale of the mortgaged premises, without appraisement, as provided for in the note and mortgage.
There are four principal questions discussed by counsel, which we shall now proceed to consider, to wit:
1. Had the Citizens’ Building and Savings Association legal power or authority to transact business before the full amount of its capital stock, as fixed by its charter, was subscribed ?
: 2. Were the defendants, or either of them, estopped from denying the authority of the plaintiff to transact business as a corporation ?
3. If it had such authority, did it exceed its powers in making a loan to Sallie E. Massey, who was not a member of the corporation ?
4. Was the contract usurious?
The first of these questions must be answered in the affirmative. The charter of the association was duly drawn, subscribed, acknowledged, and filed in the office of the secretary of state, September 2,1871, and a certified copy thereof was issued to the company by the secretary of state, September 4, 1871. Books were duly opened for subscriptions to the capital stock of the association, and one hundred and fifty-seven shares of this stock were duly subscribed for and taken; and the books have since been continually kept open to receive subscriptions to the capital .stock of the company. In the absence of proof to the contrary, it is presumed that the board of directors named in the charter duly organized by the election of officers, etc., and the association •did do business in the same manner that it would have done business if it had been duly and legally organized. Section '6 of the corporation act provides for selecting the board of •directors for the first year before the charter of the corporation is filed with the secretary of state, and § 10 provides that '“the existence of the corporation shall date from the time of filing the charter, and the certificate of the secretary of state .-shall be evidence of the time of such filing.” (Gen. Stat. 192, 193.) It would seem that a corporation that had a valid existence and a board of directors would have power to do business, although all the capital stock of the corporation as provided for by its charter had not yet been subscribed for and ¡taken by individuals. In the present case, more than three-fourths of the capital stock had been taken; all the laws for the •creation and organization of such corporations had been substantially complied with; and there was not then and has not been at any time since any law that . . . requires a corporation like this to have more capital stock than the amount that was in this case -actually subscribed for and taken. Therefore, we think the present corporation had the power to transact all the legitijnate business for which it was created. (Hunt v. Bridge Co., 11 Kas. 412, 436, et seq.)
But it is claimed that the charter of the present corporal-ion does not confer power upon the corporation to loan money; that it has authority only to accumulate funds by -small monthly installments; that it is the members, not the •corporation, that may build houses, loan money, etc. We do not think that this is a fair or reasonable construction of the language and spirit of the charter. The object of the association is therein stated to be, “the accumulation of a fund by ¡small monthly installments, to enable the members of the .-association to purchase real estate, erect buildings, redeem mortgages, satisfy ground rent, loan money, pay taxes, and ■ effect other similar purposes,” etc. What was the “fund” ..accumulated for? To enable members to do certain things .-specified in the charter. How could it enable them to do these things? By loaning them money from its accumulated* fund. By fair implication, it was o,pe, of the purposes of the charter, and one of the powers intended to be conferred upon the company by it, to loan its accumulated funds to its members. But the word “loan” is sometimes, though improperly, used in the sense of “borrow.” Thus in the case of the Cincinnati German Building Association No. 3 v. Flach, 1 Cin. Sup. Court Rep. (Ohio) 469, Judge Hagans in delivering the opinion of the court, -and in speaking of a member-borrowing money from the association, says: “ He chose, by-drawing according to the constitution and by-laws of the corporation, to loan from it,” etc. The word “loan” was probably used in the present case in the sense of borrow. It was-probably not the intention of the company to enable its individual members to loan money to other persons, but rather,, to enable its members to borrow money from its own funds and this was the universal practice of the company and its-members, so far as is shown. ■ We think that it was intended ^y ^ c^ar^er to confer upon the corporationthepower to loan its funds (accumulated as aforesaid) to its members, in such manner and under-such rules and regulations as the association might from time-to time determine and adopt, within the provisions of its charter. And if it had the right to loan its funds, then it necessarily, and by unavoidable implication, had the right to-take security for the repayment of the money thus loaned,, and interest. (2 Kent Com. 283; Silver Lake Bank v. North, 4 Johns. Ch. 370, 373.) Thus, although the charter contains-no express provisions authorizing the taking of notes, mortgages or other securities, yet, by authorizing loans to be-made, it does by the clearest implication authorize all securities to be taken which are usually , i , i xtr n taken to secure loans. W e are oí course supposing the whole transaction to be bona fide on the part of the-corporation, and the debt to be created in its regular course-of business. Corporations possess all those powers which are-expressly conferred upon them by the acts of incorporation,, and all those additional and incidental powers which are rea-' sonably necessary for the purpose of carrying into effect the powers expressly granted, and reasonably necessary for the purpose of attaining the objects of their creation.
But suppose the company was not duly organized, and that' it exceeded its authority in making the loan, and taking the note and mortgage involved in this action to secure such loan, then were the defendants (plaintiffs in error), or either of them, estopped from denying the corporate existence of the plaintiff (defendant in error), or its authority to transact business as a corporation ? It is admitted, that on October 25, 1872, R. W. Massey became, and at the time the loan was made to him was, and for a long time thereafter continued to be, a member and stockholder of said corporation; that when he became a member thereof he subscribed to the constitution' and by-laws thereof, a printed copy of which he has had in his possession ever since; that in an open meeting of the association he, in accordance with the rules and.regulations' of the association, successfully competed with other members of the association for the priority, of the loan to secure which said note and mortgage were afterward given, by offering to-pay the highest premium bid therefor. - Having thus recognized and dealt with the plaintiff below as a corporation, participating in its business, and receiving the benefits to which his membei’ship therein entitled him, we think he is estopped from denying the corporate existence of the company, and is liable on his contract with it. The company was at least a de facto corporation, (existing de facto as a corporation under an existing law,) with apparent power to loan money to its members, and take notes and mortgages, and therefore the giving of the note - . , , r n . and mortgage to it under the circumstances oj this case is, in the absence of fraud and misrepresentation, such an admission of the corporate existence and power of the company as to estop the maker thereof from denying that there was or is such a corporation or power. “ One cannot, in the same transaction, both affirm and deny the existence of a corporation; as, if lie gives a note running to a corporation, he is estopped, when called on for payment, to deny the existence of the corporate body.” (Bishop on Contracts, §132.) We would also refer to the following authorities, to wit: Angell & Ames on Corporations (10th ed.), 648, 649, and cases there cited; John v. Farmers’, &c., Bank, 2 Blackf. (Ind.) 367; Ryan v. Vanlandingham, 7 Ind. 416; Congregational Society v. Perry, 6 N. H. 164; Jones v. Bank of Tennessee, 8 B. Mon. (Ky.) 122; Franklin v. Twogood, 18 Iowa, 516, 525; Railroad Co. v. Hurst, 9 Ala. (N. S.) 513; Den v. Van Houten, 5 Halst. (N. J.) 270; Depew v. Bank of Limestone, 1 J. J. Marsh. (Ky.), 380; Hutchins v. Smith, 46 Barb. (N. Y.) 235, 240; Hagerman v. Ohio Building and Savings Association, 25 Ohio St. 186; Newbury Petroleum Co. v. Weare, 27 Ohio St. 343. Many authorities might be cited in support of the foregoing doctrine, but we think these are sufficient.
But it is insisted that Sallie E. Massey, who was not a member of the association, is not estopped from denying the ■corporate existence of the company, or from asserting that the loan was in violation of the authority conferred by its ■charter, or by the laws of Kansas; and hence that the collection of the debt cannot be enforced as against her. It is true that she was never a member of the association, and that the mortgaged premises belonged to her. It is also true that E. W. Massey alone effected the loan. But still the note and mortgage were executed by Sallie E. Massey as well as by E. W. Massey; that is, the note and mortgage were executed jointly by E. W. Massey and Sallie E. Massey, to secure a loan effected by E. W. Massey; and therefore Sallie E. Massey as well as E. W. Massey dealt with the plaintiff below as a corporation, giving a note and mortgage to it in its corporate name, and enabling E. W. Massey to get money from the company then' admitted to be a corporation, which he could not have otherwise obtained. Therefore, * under the authorities already cited, we think that Sallie E. Massey is estopped from denying the •corporate existence of the plaintiff below. Whether a cor poration of this kind has the legal right to loan its funds to others than its members, it is not necessary for us now to decide, for the question is not fairly in the case. The record fairly shows that the loan was made to R. W. Massey alone, to whom the corporation had an undoubted right to loan its funds; and Sallie E. Massey was only a surety. The loan was contracted for by R. W. Massey at a regular sale for the priority of such loan, by Massey bidding the highest premium offered for such priority, and the company accepting the bid. Nothing further was necessary to be done after the sale to complete the loan, except for Massey to furnish to the company the required security for the loan. This he afterward did, by furnishing to the company the joint note and mortgage of himself and wife, said Sallie E. Massey. Both knew the custom of the company to take notes, mortgages, etc.; both knew that Massey could not obtain the money without this security, or other security equally good; and then, with all this knowledge, both united in giving this security, and we think the company had the legal right to take it; and Mrs. Massey as well as her husband is estopped from denying its validity. All was bona fide; at least, no claim of bad faith can be urged against the company.
But it is claimed that if Mrs. Massey signed the note as surety, the judgment should have been rendered against her, under § 470 of the civil code. (Gen. Stat. 720.) This question, however, was not raised in the court below, so far as appears from the record, and therefore it is not properly before this court for consideration. (Kelly v. Collins, 11 Ohio, 310.) Besides, a judgment rendered in a case like the present, under § 470 of the code, could apply only to the collection on execution of any remainder still due, after all the property specifically pledged for the payment of the debt had been exhausted. No execution to collect such remainder was ordered in this case, and it may be that such a thing is unnecessary.
Was the contract usurious, and the judgment of the district court consequently excessive? The act of March 2, 1869, (Laws of 1869, p. 37,) provides, “that premiums bid for pri ority of loan in building and saving or trust associations' organized under the corporation laws of this state, by the members of such associations, shall not be deemed as usury,' or subject to the provisions of sections three and four of an act regulating the interest of money (Gen. Stat. of 1868, ch. 51, pp. 525, 526;) and all such premiums incorporated in the notes given by the members of the associations, and all the fines assessed against its members in accordance with the' by-laws of such associations, may be collected by civil action before any court having jurisdiction.” This law was in force when the contract between these parties was made. R. W. Massey was a member of the association, which was organized under the corporation laws of this state. He became a member on equal terms with all the other members, was subject to the same rules and regulations, and was entitled to the same benefits arising from it. " It was evidently expected that in time — probably in eight or nine years — the accumulations of the company would bring each share up to par value, after paying expenses and debts of the corporation; in which event' the debts due the association for advances to members who had kept their dues and interest paid would be canceled, and those members-who had not obtained any loan would be paid the value of their shares. . It was a voluntary association of persons governed by certain regulations adopted by themselves, and intended for their mutual benefit, and anything that benefited the association benefited each individual. The monthly payment of dues was exacted for the privilege of ’ membership, and of ultimately sharing in the dividends of the funds of the corporation; and these dues were paid by all members alike, whether they were borrowers or not. The payment of interest was only at the rate of one-half of one per cent, per month. It was not necessary for any member to pay a fine unless he chose to be delinquent in the payment of his dues or interest. The premiums bid were never in fact paid, but merely deducted out of the amount advanced by the company, and it was never intended that the note or mortgage or the debt which they evidenced should be paid; but that, at the dosing up of the affairs of the association, (which would probably be within eight or nine years from its organization,) the debt and note and mortgage should be canceled. Then how, in face of these facts, and of the said act of March 2, 1869, (against which there is no constitutional in- ^ \ o hibition,) can it be said that the present contract is usurious? Massey paid nothing, nor was he to pay anything, except his monthly dues and interest; and he received from the corporation $220. This was more in the nature of a payment by the association, in advance of the dividend which would finally be due to Massey, than of a loan. Or rather it would be more in the nature of a sale by Massey to the company of his contemplated dividend, than of anything else. Massey continued to have an interest in the company after receiving said money and giving said note and mortgage. He was still a member; and w^s still required to pay his monthly dues, and also interest. It is true that he could not receive any dividend except by the final cancellation of his debt; but he was interested in having his debt canceled at as early a day as possible. For as soon as that was done, he would cease to pay monthly dues or interest. And the more that Massey should do in any manner to increase the funds of the company, the sooner the company itself would close up its business and terminate its existence, and the sooner his debt would be canceled, and the sooner he would cease to pay dues and interest. It would be possible for the company to be so prosperous by the collection of dues, interest and fines from other members of the association, that Massey would not pay to the company, in the aggregate by way of dues, interest and fines, as much as he actually received from the company. And if so, then there would be no room for charging usury against the company. How prosperous the company has been we cannot tell from the record, but probably not very prosperous. This sort of corporations has generally not met the expectations of any class of its members. They have generally proved to be snares and delusions to all their members, whether investors or borrowers. Gen erally (to use a common phrase), “They don’t pay.” And it is seldom that either borrowers or investors can make any profit out of them, considering the time, trouble and expense necessary in organizing them and keeping them in operation. Upon this question of usury we would refer to the following cases: Citizens’ Mutual Loan Association v. Webster, 25 Barb. 263; Shannon v. Dunn, 43 N. H. 194; Burbridge v. Cotton, 8 Eng. Law & Eq. 57; Silver v. Barnes, 6 Bing. (New Cases), 180.
The judgment of the court below, so far as the amount of recovery is concerned, will not be disturbed; but we are of opinion that the decree should be so modified as to direct first the sale of the share of stock assigned or transferred, or, in the language of article 5 of the by-laws, “mortgages” to the association by R. W. Massey, and that the proceeds of such sale be credited on the judgment, before proceeding to seH the mortgagéd real estate. Said share must have some value, and probably there is no better way to ascertain its value than by offering it for sale. Said share may be sold subject to all dues which have accrued against it since the trial of this case in the court below, or it may be sold freed from all dues which have accrued prior to the sale; and in that case the dues which have accrued since said trial, and before the sale, will be first paid out of the proceeds of the sale.
It is claimed, however, that said share has not only been assigned, but has been forfeited, to the company, and therefore that no credit should be allowed for it. This, however, is not in accordance with the rules of equity that apply in such cases, where personal property has been pledged as a security for a debt. And this stock was pledged merely as a security for a debt. If A. borrow money from B., and give his note tberefor, with C. as his surety, who mortgages his property to secure A.’s debt, and at the same time A. delivers to B. his watch, as additional security, to be forfeited if default be made in the payment, can B. keep the watch, and recover from the makers of the note the full amount of the debt and interest — having C.’s mortgaged property sold to satisfy the same? Or would not C. be entitled to have the watch sold first, and the proceeds of such sale credited on the judgment, before his property can be appropriated to the payment thereof? If the share has any value, Mrs. Massey has the right to have that value credited on the judgment, before any of the proceeds of the sale of her property shall be applied to its payment. With this modification, the judgment of the court below will be affirmed. The costs of this court will be equally divided.
The same questions being involved in the other two cases of this same title now pending in this court, and numbered respectively 1411 and 1412, the same judgment will be rendered.
All the Justices concurring. | [
-12,
110,
-16,
-4,
74,
-64,
40,
26,
75,
-80,
-80,
115,
-23,
-62,
4,
105,
-62,
61,
5,
105,
-59,
-77,
23,
-119,
-46,
-14,
-15,
-43,
-79,
93,
-12,
-41,
76,
32,
-54,
-99,
-26,
-126,
-63,
92,
-114,
13,
-120,
-44,
-35,
64,
52,
123,
82,
72,
117,
46,
-13,
46,
29,
66,
40,
44,
73,
41,
80,
-8,
-113,
-123,
127,
19,
17,
100,
-108,
71,
-24,
10,
-112,
21,
1,
-8,
122,
-90,
-122,
116,
79,
-103,
45,
102,
102,
33,
52,
-17,
-80,
-100,
14,
-41,
-99,
-122,
-78,
89,
35,
12,
-74,
-99,
125,
80,
71,
-2,
-26,
-108,
25,
-4,
5,
-53,
-12,
-109,
-81,
118,
-101,
-125,
-9,
-125,
-80,
97,
-51,
32,
95,
-25,
56,
-69,
-114,
-4
] |
The opinion of the court was delivered by
Valentine, J.:
This was a proceeding commenced by the Board of County Commissioners of Greenwood county against George A. Hall, under the provisions of § 70 of the tax laws of 1876 (Laws of 1876, pp. 75, 76"), for the purpose of assessing and having placed on the tax-roll of said county a certain one-year time deposit of $2,000, made by the said Hall in the Eureka Bank, a private bank in said county, which deposit had not previously been assessed, and the said Hall had failed and refused to list the same or have it assessed. A hearing was had before the board of county commissioners on April. 26, 1877, and the board found, ordered and adjudged, as follows:
“It is considered and adjudged by the said court, that the said G. A. Hall has omitted to list two. thousand dollars ($2,000), credits on deposit in the Eureka Bank, on the 1st day of March, 1876; and it is further considered and adjudged, that the clerk of this board be ordered to place the said amount on the list of personal property of the said G. A. Hall, liable for taxation on the 1st day of March, 1876, together with all the costs that may occur by reason of the said G. A. Hall failing to list said property as required by law; and said amount of money on deposit, and all costs of this examination, taxed at $10.75, are ordered to be placed on. the list of personal property in the office of the treasurer of this county, who is hereby ordered to collect the taxes on the same, and all costs as furnished him by the clerk according to law.”
From this finding and order of the board the said Hall appealed to the district court, where, on November 22,1877, a second hearing and trial was had. At this trial, and upon the evidence introduced, the court made the following findings, to wit:
“That the said defendant, George A. Hall, had on deposit in the Eureka Bank, on March 1, 1876, the sum of two thousand ($2,000) dollars.
“That said deposit was a time deposit made for a period of one year.
“That said defendant refused to list said time deposit as of March 1, 1876.
“That said Eureka Bank is a private bank.”
And thereupon the court rendered the following judgment; to wit:
“And now comes the said plaintiff by H. C. Rizer, county attorney, and W. C. Huffman, and said defendant by Z. Harlan, his attorney, and a jury being waived, and the above-named cause being submitted to the Gourt, and the ■said court having heard the evidence and argument of counsel, and duly considered the same, the order and finding of the said board of county commissioners is hereby confirmed by the said court, and judgment is hereby rendered in favor ■of said plaintiff and against the said defendant for the sum ■of ninety-one and dollars and costs, herein taxed at .$-.”
_ Upon the foregoing facts, the following questions are raised:
1. Was said $2,000 time deposit taxable to said Hall?
2. Had the county commissioners the power to order that ■all the costs which accrued in the proceedings before them, ■should be placed on the tax-roll for collection-against Hall?
3. Had the district court the power to render a personal judgment against Hall for said $91.75?
We must answer the first of these questions in the affirmative, and the other two in the negative.
I. In Kansas all property is taxable, except such as is ex-. pressly exempted from taxation, (Laws 1876, p. 53, § 1;) and the property in this case (said time deposit) is not exempted from taxation either expressly or by implication. The property in this case may properly be termed a credit. It would be so termed without the aid of any statute, but the statutes of this state also so term it, (Laws 1876, p. 54, § 2;) and as a credit it may be taxed, and taxed to Hall, the owner and creditor. (Laws 1876, pp. 56, 58, §§4,10.) Credits are property, and as such may be taxed. Th4 county commissioners therefore did not err in ordering that the amount of said time deposit should be placed upon the tax-roll, and that taxes should be collected thereon; and the district'court did not err in confirming said order of the county commissioners.
II; But we think the county commissioners did err in ordering that the costs of the proceedings had before them should also be placed upon the tax-roll; and the district erred in confirming such order. There is no statute and no common law authorizing costs to be collected in any such manner.
III. We also think that the district court erred in rendering said judgment for $91.75. Besides this judgment and the judgment ordering the property to be placed on the tax-roll and taxed, the court also rendered a judgment for costs. Now we think that the judgment ordering the property to be placed upon the tax-roll and taxed, and the judgment for costs, are the only judgments that could properly be rendered in the case. The costs have not yet been taxed. We presume that they will be properly taxed. If said $91.75 are taxable costs, the same may be included in the costs; if not, then the same cannot be collected. *
This cause will -be remanded to the court below, with the order that the judgment of the court below be modified so as to correspond with this opinion. The costs of this court will be equally divided between the parties.
All the Justices concurring. | [
-13,
-24,
-36,
-33,
58,
-32,
34,
-72,
65,
-95,
-80,
127,
-23,
99,
20,
43,
-110,
45,
-43,
120,
-58,
-73,
19,
99,
-78,
-13,
-71,
-11,
113,
95,
-92,
-44,
8,
50,
-54,
-75,
102,
96,
-59,
-36,
14,
0,
-87,
-56,
-35,
64,
52,
45,
118,
75,
113,
70,
-21,
44,
28,
75,
9,
44,
89,
-69,
80,
-71,
-94,
7,
13,
22,
49,
100,
-110,
-57,
-56,
46,
-72,
53,
64,
-88,
127,
-90,
-124,
84,
13,
-71,
45,
124,
102,
97,
53,
-49,
96,
-120,
-66,
-9,
-67,
-25,
-106,
72,
19,
9,
-106,
-103,
126,
48,
70,
-4,
-84,
-107,
17,
44,
23,
-50,
-46,
-77,
-113,
-84,
-103,
83,
-41,
-21,
48,
113,
-115,
-62,
95,
7,
122,
59,
-98,
-8
] |
The opinion of the court was delivered by
Horton, C. J.:
The questions presented to this court for decision are—
First, Whether the punishment under ch. 166, Laws 1872,. applies to offenses committed prior to that act?
Second, If the provisions of ch. 166, Laws 1872, are not applicable in this case, whether the prisoner can be relieved, under a petition for a writ of habeas corpus ?
If the act of 1872 is an ex post facto law, it is unconstitutional, and void, as the legislature cannot pass such a law. The supreme court of the United States has defined an ear post facto law to be one which renders an act punishable in a manner in which it was not punishable when it was committed. (Fletcher v. Peck, 6 Cranch, 138.) This definition is-subject to the qualification that where the new law mitigates the character or punishment of a crime already committed, it does not fall within the prohibition of the constitution, for it then is in favor of the citizen. As the law of 1872.pre-scribes a year’s imprisonment at hard labor in the penitentiary in addition to the punishment of death, if intended to apply .to murder previously committed, it certainly changes-the punishment authorized to be inflicted when the crime was-committed. Counsel for the state contend, however, that the practical effect of the act is to change the punishment of death to imprisonment for life; and that therefore the law is valid as to offenses already committed, even if thereby it is retrospective in its operation, because such change-mitigates the penalty. The reasoning is not sound, as the convict can be executed at the pleasure of any executive-magistrate, at any time after one year. One governor may refuse to issue his warrant for the execution of the sentence, but his successor may determine otherwise, and order the hanging of all the convicts. Under the act, every moment of the prison life of the convict, after the expiration of one year, like the alleged lot of Damocles, is embittered by the dread of impending death. The sword is indefinitely suspended over his head, ready to fall at any time. Some argument may be presented, that the postponement of the execution of a death sentence a single year modifies the penalty. Much theorizing may be indulged in upon this point, but all of this is mere speculation. We cannot open the curtain of the future, nor foretell the ultimate condition of a convict after death. We have no absolute means of saying whether the old or the new law would be the more severe in a given case, and hence we cannot affirm that said act of 1872 mitigates the punishment. The courts of New York hold that a law similar to this one, which was substituted for a law like ours in force prior to the passage of said act, inflicts a greater punishment than the former law, and Judge Cooley coincides with that view-in his Constitutional Limitations. Therefore, if we regard said'act of 1872 as retrospective, it is within the condemnation of the national constitution, and void. (Cooley’s Const. Lim. 256, 272; Hartung v. People, 22 N. Y. 95; Hartung v. People, 26 N. Y. 167.) This conclusion leads us to decide that as the murder with which the petitioner stands charged was committed in 1866, and as the law of 1872 was not passed until after the commission of the offense, the prisoner is not subject to the punishment of the act of 1872. If he is not exposed to the infliction of any penalty under the statutes in force prior to the act of 1872, then as that act cannot apply in this case, the sentence and judgment are wholly void.
If such sentence and judgment are wholly void, and not merely irregular or erroneous, then the petitioner is entitled to his discharge. This brings us to consider the effect, as an original question, of the repealing clauses of the act of 1872. In the opinion of the writer, it-was the manifest intent of the legislature to have the act of 1872 apply retrospectively in all cases where the convict or person guilty of murder' in the first degree had not been sentenced prior to that act going into effect; that the law-makers supposed they had the power to enact such legislation, and intended, by the repealing sections of the act of 1872, to expunge the sections therein repealed as completely as though they had never existed This court, however, has decided, upon full argument and a careful consideration of the case, very differently, in the case
of The State v. Crawford, 11 Kas. 32; and my brethren think that case should be adhered to. , Under that authority, the action of the legislature, in adopting the act of 1872, did not release the petitioner from the penalty of his offense, and the district court did not lose jurisdiction with the return of the verdict of the jury. Under the verdict, he was liable to be sentenced to the punishment of death. The sentence actually passed, omitted the appointment of a day on which the sentence should be executed, and provided that the governor should set the day of the execution at a time not less than one year from the day of sentence; but this was an irregularity, or rather an erroneous order, to carry out the sentence of death, and not a void judgment. The court had jurisdiction of the person of the prisoner and of the offense. The verdict was valid. The court had also the power to render a judgment of death, and therefore the petitioner cannot be relieved on habeas corpus, as our statute declares that no court or judge shall inquire under a petition for habeas corpus into the legality of any judgment or process whereby a party is in custody upon any process issued on any final judgment of a court of competent jurisdiction. This court cannot furnish any remedy to the petitioner in this proceeding. In other words, the proceeding by habeas corpus is not the proper manner to correct or review the sentence in this case. Upon an appeal, all the rulings' of the district court may be reviewed, and the erroneous judgment be set aside or modified, as the legal rights of the petitioner shall demand.
The petitioner must be remanded to the custody of the warden.
Brewer, J., concurring.
Valentine, J., concurring specially, as follows: | [
112,
122,
-44,
-65,
43,
96,
10,
-104,
-87,
-30,
-60,
115,
-23,
19,
4,
113,
115,
-27,
85,
41,
85,
-74,
55,
-55,
-78,
-13,
-47,
-41,
51,
-27,
-74,
95,
72,
32,
-54,
81,
102,
74,
-47,
94,
-50,
-81,
-88,
-31,
-56,
24,
52,
78,
82,
14,
-15,
-97,
-93,
42,
20,
-58,
-87,
40,
72,
47,
-72,
-87,
-98,
-115,
107,
6,
-77,
39,
-72,
-121,
-32,
30,
24,
19,
24,
-24,
115,
-108,
-122,
84,
-17,
-103,
44,
66,
35,
1,
101,
107,
-88,
-120,
15,
-2,
-83,
-89,
-112,
89,
42,
12,
-66,
-35,
48,
20,
46,
110,
-26,
77,
85,
100,
9,
-117,
-112,
-91,
-51,
124,
-98,
-30,
-21,
-95,
96,
117,
-50,
-30,
85,
-9,
121,
-37,
-122,
-36
] |
The opinion of the court was delivered by
Valentine, J.:
Only two questions are presented by the brief of counsel for plaintiff in error, to wit: 1. Where an execution debtor has both personal and real property subject to execution, but not sufficient personal property to satisfy the execution, and the personal property is first levied upon and then the real estate, and the personal property is then advertised and sold, and afterward the real estate is advertised and sold, and all this is done under one and the same execution, is the sale of the real estate void because the levy thereon was made before the personal property was either advertised or sold ? 2. And in such a case where the personal property is levied upon, advertised and sold by the under-sheriff, and the real estate is levied upon, procured to be appraised, and is advertised and sold by the sheriff himself, the under-sheriff acting as one of the appraisers, is the sale of the real estate void because the under-sheriff acted as one of the appraisers?
We must answer both of these questions in the negative.
I. As to the first question, counsel for plaintiff in error seems to rely exclusively upon §448 of the code of civil procedure, but that section does not sustain him. It is merely consistent with his view, but is not inconsistent with the other view. Section 443 (Glen. Stat. 713,714) authorizes the levy of an execution upon any property, real or personal, not exempt. Section 448 provides that the personal property shall be first levied upon, and also what shall be done in case there is no personal property; but it does not provide, nor does any other section provide, what shall be done where there are both personal and real property, and where the personal property is not sufficient to satisfy the execution. We think that the personal property should be first levied upon and first sold,. but we know of no good reason why real estate might not be levied upon between the levy upon the personal property and its sale, provided the personal property is insufficient to satisfy the execution. No more real estate, however, should be levied upon or sold than would be sufficient, with the aid of the personal property, to satisfy the execution.
II. The mere fact that one of the appraisers of the real estate was the under-sheriff, we do not think vitiates the sale. Of course such practice is not to be commended, but upon what principle it would vitiate the sale where no wrong occurred, we cannot conjecture. With reference to the real estate, the under-sheriff had nothing to do as under-sheriff. He had no connection with the real estate except as an appraiser. In law, whatever an under-sheriff or other deputy of the sheriff does in his official capacity as under-sheriff or deputy, the sheriff himself does. But the converse of this proposition is not true. An under-sheriff or deputy does not do whatever the sheriff as sheriff does. Of course, a sheriff could not be an appraiser for himself of real estate levied upon and sold by himself, nor could he be such appraiser for one of his deputies; for in so doing he would equally in law be an appraiser for himself. But there is no reason in law why a deputy might not be an appraiser for the sheriff. In Maine it has been held that, “in a levy of real estate in which the levying officer was a deputy sheriff, one who is also a deputy of the same sheriff, is not on that account incompetent to act as an appraiser.” (Grover v. Howard, 31 Me. 546.)
III. Counsel for plaintiff in error, in his oral argument, raised the question that the sheriff’s return did not show that all the personal property of the judgment debtors had been levied upon before said real estate was levied upon. Under some circumstances such a return might not be sufficient, but under the circumstances of this case we think it is. But it is a rule of the supreme court generally followed, not to decide any question not raised by the briefs of counsel, and we shall dispose of this question under this rule.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
-14,
-2,
-36,
-68,
-6,
96,
42,
-120,
113,
-62,
-73,
83,
109,
-54,
0,
107,
-12,
123,
116,
122,
29,
-78,
7,
35,
-10,
-77,
-47,
-44,
-75,
76,
-26,
94,
12,
33,
-54,
-43,
102,
43,
-59,
86,
78,
-125,
26,
108,
-39,
64,
52,
123,
94,
11,
65,
-49,
-13,
13,
29,
-54,
104,
40,
11,
57,
-47,
-72,
-113,
-115,
91,
6,
-79,
55,
-4,
67,
-40,
10,
-104,
61,
0,
-23,
115,
-74,
-122,
84,
9,
-85,
-87,
102,
34,
0,
73,
-17,
-16,
-103,
47,
126,
-115,
-89,
-111,
88,
75,
33,
-106,
-98,
124,
48,
39,
-2,
-26,
-107,
93,
108,
11,
-113,
-42,
-77,
79,
118,
-102,
-53,
-34,
1,
48,
113,
-49,
-86,
92,
97,
82,
-101,
-114,
-36
] |
The opinion of the court was delivered by
Brewer, J.:
The pivotal question in this case is, whether the premises conveyed on Sept. 13, 1875, by Josephus Warner, were-exempt as his homestead. The facts are these: Josephus Warner settled upon the land in 1857, and with the exception of the years 1861 and 1862 lived there continuously until the execution of the deed. His family at first consisted of a wife and three children. In 1869 his wife died. He did not marry again. In October, 1873, the oldest son married, and moved to a home of his own. The other children, John and Anna, remained and were living with him when he executed the deed to them. John was twenty years of age and Anna was twenty-one. The latter married in March, 1874, but with her husband was still on the place. At the time of her marriage, Mr. Warner rented the farm for one year to his daughter and her husband, reserving a place and living for. himself, and in March, 1875, the same arrangement was continued. John was also to have a place there, though he worked for wages with Anna’s husband. The deed was made to the children on the place, and was in consideration of an agreement to take care of their father during the remainder of his life, and was made in consequence of his failing eyesight and health.
The district court ruled that the place was the homestead of Josephus Warner, and therefore exempt; and such ruling, we think, must be sustained. It was, as it had been for nearly a score of years, the residence of himself and his family. Time and death had brought changes into that family, so that now only one remained legally dependent upon him, and under his control; but it was still the residence of that son and his father. True, the boy was young and strong, and the father old and feeble, (the former better able to support the latter than the reverse,) and the boy in fact earning wages by labor for another; but the fact that the legal head of the family, through age or sickness, is not actually supporting or able to support the other members, does .not destroy the family; and surely such misfortune is no reason why the kindly interest of the homestead law should cease to have effect.
True, also, he had leased the premises from year to year; but a lease is only a temporary abandonment, and this reserved .á place for living for the father and son. (Hixon v. George, 18 Kas. 253.) We think, within the clear intent of the constitutional provision, this was “ the homestead, occupied as a residence of the family” of Josephus Warner.
The judgment will be affirmed.
All the Justices concurring. | [
-15,
106,
-35,
-66,
26,
96,
-86,
-40,
106,
-94,
-93,
87,
-55,
-101,
20,
57,
114,
45,
81,
123,
-58,
-77,
23,
-54,
-112,
-13,
-77,
-43,
-80,
76,
101,
87,
76,
32,
74,
85,
-26,
-56,
73,
-44,
-114,
-59,
-119,
109,
-39,
64,
52,
59,
82,
74,
21,
-117,
-13,
46,
61,
71,
4,
44,
-53,
53,
48,
-8,
-70,
14,
-53,
7,
-78,
103,
-70,
-27,
104,
14,
-112,
17,
-116,
-24,
123,
-92,
-106,
-4,
23,
-117,
41,
102,
103,
17,
45,
-17,
-24,
24,
14,
-38,
-99,
-26,
-105,
88,
-101,
8,
-68,
-99,
121,
80,
6,
126,
-26,
-123,
76,
108,
4,
-117,
-42,
-93,
-113,
-8,
-104,
-126,
-29,
-91,
-95,
113,
-49,
-94,
77,
99,
112,
-103,
-114,
-8
] |
Per Curiam:
The judgment of the court below in this case will be reversed, and cause remanded for further proceedings. This decision is made upon the authority of the decision in the case of Riddel v. School District, 15 Kas. 168. See, also, Citizens’ Life Association v. Nugent, 11 Vroom (N. J.), 225; Dover v. Twombly, 42 N. H. 59; Mayor, &c., v. Horn, 2 Harr. (Del.) 190. | [
-76,
-4,
-43,
-68,
26,
98,
50,
-97,
81,
-79,
101,
83,
-85,
-101,
22,
109,
-77,
111,
-47,
91,
-36,
-74,
119,
-61,
-76,
-14,
-69,
85,
-77,
125,
-25,
-5,
76,
112,
-54,
-43,
70,
3,
-19,
84,
-126,
-121,
12,
42,
-47,
67,
48,
120,
82,
15,
33,
92,
-29,
46,
-101,
-61,
-87,
44,
-8,
-15,
72,
-77,
-98,
7,
123,
22,
-93,
54,
-98,
-57,
-40,
36,
-100,
49,
1,
-8,
50,
-92,
6,
-106,
105,
-8,
-120,
96,
100,
65,
-31,
-43,
-16,
-102,
79,
122,
45,
-89,
-101,
88,
-30,
32,
-73,
-2,
117,
118,
15,
126,
-26,
-43,
23,
100,
1,
-114,
-60,
-77,
-33,
-12,
-110,
66,
-21,
35,
48,
68,
-40,
118,
92,
-58,
19,
83,
-34,
-76
] |
The opinion of the court was delivered by
Horton, C. J.:
We perceive no error in the ruling of the •district judge in discharging the defendant. Neither at law nor in equity are stockholders contributing to the capital of .an incorporated company individually liable for the payment of the debts of the corporation. The liability arises solely by constitutional or statutory provision. As a consequence, the matter here is wholly governed by the statute, and the rights •of the party claimant under the statute must be ascertained by it. (Brinham v. The Wellersburg Coal Co., 47 Pa. St. 43.) In addition, it is the general doctrine that the remedies prescribed by statutes creating an individual liability on the part of the members of corporations for the corporate debts, must be strictly followed. With these principles in mind, we proceed to an examination of the sections of the statute involved in this case. Section 32 of said chapter 23 is as follows:
“If any execution shall have been issued against the prop•erty 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.”
Under this statute, the judgment creditor of the corporation has two modes of procedure against a stockholder upon the return of his execution against the corporation, nulla; bona. He may obtain by motion, after reasonable notice, the-issuance of an execution from the court in which the action is brought against the stockholder, or he may proceed by action to charge the stockholders with the amount of his judgment. The former is a summary proceeding; the latter is the more formal one. If he is content to adopt the first, we-do not. think that the order of the court for the issuance of the execution, or the actual issuance of it, makes the stockholder thus proceeded against a judgment debtor within the-terms of § 483 of the code. In holding otherwise, we would, have to decide that the judgment against the corporation was-a lien upon all the real estate of the stockholders within the county in which the judgment was rendered, from the first day of the term at which the judgment was rendered, or that the order of the court granting the execution carried with it all the rights, remedies and aids of any other judgments Neither of these conclusions can be justified. It would be simply absurd to hold that a judgment obtained by a creditor against a corporation, where stockholders are not parties to the.suit, shall be a lien on the real estate of all the stockholders,, when they are not named in the papers, proceedings or records,, and no possible opportunity is given to any one, from an examination of the proceedings in the court, to determine who-the stockholders may be, or the extent of their individual liability in the case. The adoption of the other conclusion, viz., that the judgment lien dates from the order of the court-allowing the execution, though not so wild in theory as the former, is fraught with such confusion and inconvenience as- ought to prevent it from receiving any countenance, unless clearly required by the words of the statute. If this were the rule, search would have to be made in every case of judgments against corporations, and all proceedings had supplementary thereto, whenever abstracts of title of real estate were to be furnished, to ascertain whether any order had been issued for an execution against the owner of the real estate as a stockholder of such corporation. Actions in which the titles give no indications of the parties to be charged under execution would have to be looked into, and the difficulties would be almost interminable. The protection of creditors; requires no such unreasonable doctrine to be favored, and the letter of the statute is against it. The concluding provision of said § 32 plainly prescribes that if the creditor wishes to -make the stockholder a judgment debtor, with all that term implies, he may proceed by action and charge the stockholder with the amount of his judgment against the corporation. If we follow the theory of the counsel of plaintiff, then we must ignore this concluding provision, because it is of no use or importance to the creditor, if the lien of his judgment attaches upon the real estate of the stockholders at the rendition of it against the corporation, or if, by an order of the court, on a motion to issue an execution, such real estate becomes at once subject to the lien of the amount therein named. It is better to give force to all the provisions of the statute; and to do this, we conclude that the proceeding to obtain an execution on a motion is a special proceeding, limited in its character, and does not convey with it all the powers of a judgment. It assimilates to proceedings of garnishment, but allows the issuance of an execution instead of an action to recover the amount ordered to be paid. The amount charged against the stockholder is not a lien on real estate under the order of the court until a levy is made of the execution.
It is unnecessary to adduce argument that the language of §483 of the code ought not to be extended by construction. Therefore, as in our view under the special proceedings had, the defendant was not a judgment debtor in the strict sense of § 483, he could not have been required by the probate ■ judge to answer concerning his property.
The order of the district judge will be affirmed.
All the Justices concurring. | [
-80,
126,
-47,
-100,
10,
96,
42,
-38,
117,
-30,
-89,
115,
-35,
-30,
21,
105,
-13,
121,
81,
107,
84,
-77,
7,
107,
-41,
-109,
-43,
-99,
-80,
78,
-25,
-33,
77,
32,
-118,
85,
-26,
40,
65,
20,
-114,
-123,
9,
69,
121,
64,
48,
90,
16,
75,
81,
-98,
-13,
46,
24,
-54,
105,
40,
105,
-91,
-64,
-8,
-117,
-123,
127,
22,
-77,
4,
-100,
39,
-24,
46,
26,
57,
41,
-24,
122,
-90,
-122,
-44,
41,
9,
41,
102,
99,
-127,
5,
109,
-104,
-104,
46,
-2,
15,
-89,
16,
57,
3,
8,
-74,
-99,
108,
20,
-122,
-4,
-22,
12,
88,
108,
3,
-117,
-10,
-95,
-113,
117,
-102,
6,
-26,
-93,
-80,
65,
-50,
-86,
93,
39,
90,
27,
-34,
-100
] |
The opinion of the court was delivered by
Valentine, J.:
The court below sustained a demurrer to the amended petition of the plaintiffs, and this is the only ruling of which the plaintiffs, as plaintiffs in error, now complain. Two questions are presented: 1. Does the petition show that the plaintiffs have ever had any cause of action against the defendants ? 2. And if it does, then does it not also show that such cause of action is barred by the statute of limitations? Jonathan H. Pratt is the principal defendant, the others being merely nominal defendants; hence, hereafter, when we speak of the defendant or defendants, we shall mean merely Jonathan H. Pratt.
The principal facts stated in the petition, are substantially as follows:
On February 18, 1857, and prior thereto, William H. Ravenscraft and said Jonathan H. Pratt were partners in the tanning and hide-and-leather business, at Kygerville, Gallia county, Ohio, at Liberty, Greenup county, Kentucky, and at Muscatine, Iowa. Ravenscraft resided at Kygerville, and Pratt at Liberty. On said February 18, 1857, Ravenscraft died, leaving a widow (who by law inherited one-third of his estate, real and personal) and four children (who by law inherited the other two-thirds of the estate equally), two of which children are now the plaintiffs in this action. Ravens-craft left his estate free from all debts and claims; and his interest in said partnership business was worth at the time of his death, $13,393.96. Pratt, for some months after Ravenscraft’s death, continued in the possession of every thing connected with said partnership business. This would have been - right, according to the allegations of the petition,, notwithstanding the fact that Pratt was a non-resident of Ohio and Iowa, if he had held such possession merely for the purpose of closing up the partnership business, and of paying over to the heirs and distributees Ravens-craft’s share of the proceeds,- and had given bond, etc., and had acted under the orders of the probate court — none of-which things he did, however. On March 23,1857, America Ravenscraft, widow of William H. Ravenscraft, mother of said children, and a sister of Pratt, was appointed administratrix by the probate court of said Gallia county, Ohio. No administrator or administratrix was ever appointed in or for Kentucky or Iowa, and no administration of the estate was ever had in those states. The administratrix never did anything with reference to the estate except to make an inventory of the assets thereof, and to have such assets appraised, and to make with Pratt an illegal and void, and so far-as he was concerned, a fraudulent contract, that he should retain -the partnership property for over eight years, and until August 12,1865 — he to give her his promissory note for $13,393.96,- and a mortgage to secure the same, and to pay her annually $1,000 for the use of the property, and at the expiration of-the time, to. wit, August 12, 1865, to pay said note or to deliver to her said partnership property, at her election. This contract was made on July 16,1857, and was never approved by the probate court. Pratt paid no further attention to the contract, not even giving said note or mortgage, or any note or mortgage, but violated the contract, in every respect. He immediately, in violation of the contract and of law, sold and disposed of all of said partnership property, converted the proceeds thereof to his own use, fled from his home in Kentucky, went to South America, and thence to Kansas. On October 5, 1858, said America ■ Ravenscraft was married a second time, and this in law revoked her letters of administration. No person was appointed to take her place until March 22, 1867, when Samuel A. Nash, was appointed ad ministrator de bonis non by the probate court of said Gallia county. He qualified, giving a bond of $500, but it does not seem that he ever did or attempted to do anything as administrator. In August, 1869, said America Ravenscraft died, leaving said four children as her only heirs and distributees. Her estate was also left free from all debts and claims. No administrator or administratrix has ever been appointed for her estate. Pratt still resides in Kansas, and still retains the proceeds of said partnership property. Nash still remains the administrator of Ravenscraft’s estate in Ohio, but he has always refused to collect said proceeds from Pratt, and he refused to be a plaintiff in this suit, and was therefore made a defendant. Said four children are still living. Two of them refused to be plaintiffs in this suit, and they were therefore made defendants. The other two are the plaintiffs, herein. Each of said children was entitled by law to one-fourth of two-thirds of their father’s estate, and their mother was entitled to the other, third, and when she died, each of the children being entitled to one-fourth of her estate, each became entitled to one-fourth of her third of their father’s estate, and hence each is now entitled to one-fourth of the proceeds of their father’s interest in said partnership property; or in other words, each is entitled to recover from the defendant Pratt $3,348.49, or the two plaintiffs are entitled to recover $6,696.98; and for this amount they have brought this action. The plaintiffs were minors, and not acquainted with their rights up to within one-year before they commenced, this action. Since this action was commenced, the time for the appointment of an administrator for their father’s estate in Kentucky has expired. This they allege in their last amended petition. This action was commenced October 2, 1876; the last amended petition was filed September 4,1877.
For the purposes of this case, we shall assume that the cause of action constituting the basis of this action accrued against Pratt when he sold said partnership property and converted the proceeds thereof to his own use, and fled beyond the jurisdiction of the courts of Ohio, Kentucky and Iowa. Possibly it accrued sooner. Possibly it accrued when he made said illegal and unauthorized contract with the administratrix. But certainly it accrued when he converted said proceeds to his own use, if it did not accrue sooner; for, after repudiating all his obligations to Ravenscraft’s estate, and violating all his duties as a surviving partner, it could hardly be said that he was still .such a continuing trustee for the estate, and for Ravenscraft’s heirs and distributees, that no cause of action accrued against him. And such cause of action existed in Kansas very nearly as soon as it accrued in Ohio, Kentucky or Iowa; for the sale of the property, the conversion of the proceeds, the fleeing to South America, and the coming to Kansas, all transpired in rapid succession, and soon after July 16, 1857. But in whose favor did this cause of action accrue? The defendant says that if it ever accrued, it accrued in favor of the administratrix or administrator of the estate of William H. Ravenscraft, and never in favor of his heirs or distributees. Possibly this may be correct so far as the state of Ohio is concerned; but can it be correct with reference to Kentucky, Iowa or Kansas ? Can it be correct even in Ohio? As the administratrix was a party to said illegal contract giving to Pratt the illegal custody and control of the partnership property for over eight years, and as both the administratrix and the administrator have continuously failed and refused to sue Pratt in any state, can it be correct even in Ohio that the cause of action accrued only in favor of the administratrix and administrator, and not in favor of the heirs and distributees? (See the cases of The Southwestern Rld. Co. v. Thomason, 40 Ga. 408; Nutting v. Boardman, 43 Ga. 598; also, 46 Ga. 34; and 57 Ga. 418.) Under these decisions, could not the heirs and distributees have sued Pratt even in Ohio, if they could have found him in that state — of course making the administratrix or administrator a party? But, passing over this question for the present, what were the rights, powers and duties of the administratrix and administrator? At the time that Pratt sold the partnership property in Ohio, and before he removed the proceeds therefrom, it is probable that the administratrix might, in Ohio, have instituted a proceeding in rem against him for the recovery of the share of the estate in such proceeds. But even this remedy would have been of short duration, for Pratt did not permit the proceeds to remain long in Ohio. Probably she would not have had at any time any action in personam against him in Ohio, for it does not seem that he was personally there at any time after converting said proceeds. Presumably, she would not have had any action of any kind, either in rem or in personam, against him ■ in any one of the other states; for it is well settled, that an administrator of one state cannot, by virtue of his appointment, or by virtue of the laws of such state, have any power or authority as an administrator in any other state. State laws have no extra-territorial force. In states where a foreign administrator is allowed to sue or be sued, it is by virtue of the laws of the state where the-suit is brought, and not by virtue of the laws of the state where the foreign administrator is appointed. During the time that America Ravens-craft was administratrix, she could not have sued in Kansas, and, presumptively, she could not have sued in either Kentucky or Iowa; and from October 5, 1858, when her letters-of administration were revoked, up to March 22, 1867, when Nash was appointed administrator, there was no administrator or administratrix to sue anywhere. When Nash was appointed administrator, he could have sued in Ohio, if he could have found either Pratt or any of his property there; but it does not seem that either Pratt or' any of his property was-ever in Ohio after Nash’s appointment, in 1867; nor could Nash have sued in either Kentucky, Iowa or Kansas, up to October 31, 1868. But at that time an act of the legislature of Kansas took effect, permitting foreign executors and administrators to sue and be sued in Kansas. (Gen. Stat., 472, §203.) Since that time, we suppose that Nash, the administrator, might have sued Pratt in Kansas for the interest of the estate in said proceeds, but he utterly failed and refused to do so; and, viewing the question from a Kansas standpoint, he was under no legal obligation to do so, whatever may have been his moral duty in that respect, and whatever might be his legal duty viewed from an Ohio standpoint. No foreign state can impose legal obligations or legal duties upon administrators that will authorize them to interfere or intermeddle in the affairs of other states. The power of a state terminates with its boundaries, and its laws can have no extra-territorial force. Laws enacted for other jurisdictions are in reality no laws. They are ultra vires, illegal and void. Ohio could of course enact laws to permit Pratt to sue in Kansas, and might, perhaps, with reference solely to her own-boundaries, impose a legal duty upon him to do so, for she could enact that he should do so, and then enact-laws to fine him, imprison him, make him liable for all damages; revoke his letters of administration, etc., if he did not do so; but still with her own boundaries such legal duty would terminate. It could not reach Kansas. In Kansas no legal duty can be recognized except such as is imposed by her own laws. And even Kansas could not of herself impose a legal duty upon a foreign administrator who has never surrendered himself to her jurisdiction. No process from her courts could reach him, and no power could be found within her borders to compel him to sue or to compel him to perform any other act. Now we suppose that it will not be claimed that a legal duty could be imposed where no power exists to enforce such duty. The legal power to enforce a legal duty and the duty itself must be coextensive; and where there is no power to enforce the duty, there is no duty in law. The laws of Kansas merely give permission for foreign administrators to sue. They do not attempt to enforce or provide for enforcing suits by a foreign administrator. Under- the laws of Kansas, a foreign administrator may sue or not sue in Kansas, just as he chooses. And if he does not choose to sue as in this case, and if the suit can be brought only in Kansas as in this case (the defendant and his property all being in Kansas), then must justice fail? or may the heirs and distributees, the real parties in interest, the parties beneficially interested, commence an action for themselves ? It is a favorite maxim in jurisprudence, that for every legal wrong there is a remedy; and if the common law does not furnish the remedy, equity will. Now here is a legal wrong. The defendant Pratt has wrongfully used $6,696.98, which belonged to the plaintiffs and not to him. He resides in Kansas, and his property is in Kansas, and no remedy for the wrong exists against him anywhere else. The plaintiffs have no remedy in Kansas, or elsewhere, to compel the administrator or any other person to sue for them. Therefore, may they not commence the action for themselves? May they not sue directly and in their own names for the enforcement of their legal rights, and not wait for an unwilling administrator to sue for them? Of course, while they were minors, they would have had to sue by their next friend; but in that case they could have selected their next friend. And now, as they have arrived at their majority, they may sue for themselves.
We do not think that the statute of limitations bars the plaintiffs’ action. They arrived at their majority and became acquainted with their rights within less than one year prior to the commencement of this action. Their minority alone is sufficient to take the case out of the operation of the statute. Of course the statute governing in this case is our Kansas statute.
The judgment of the court below will be reversed, and cause remanded for further proceedings.
All the Justices concurring. | [
-12,
108,
-4,
-100,
58,
-32,
32,
-104,
90,
-127,
-91,
115,
-55,
-53,
0,
57,
114,
73,
81,
122,
-46,
-77,
23,
35,
-46,
-13,
-39,
-43,
-79,
73,
-25,
86,
12,
52,
74,
-35,
-25,
8,
69,
-42,
-50,
-92,
57,
-20,
81,
64,
48,
-13,
86,
15,
49,
46,
-13,
46,
29,
75,
107,
45,
107,
45,
80,
-72,
-86,
5,
79,
26,
49,
39,
-104,
39,
104,
30,
-120,
49,
2,
-24,
113,
-74,
-122,
-12,
107,
-119,
40,
102,
103,
33,
-107,
-25,
-72,
-104,
-114,
-2,
-71,
-89,
-80,
8,
34,
41,
-73,
-97,
120,
22,
-89,
-10,
-26,
28,
29,
108,
5,
-113,
-10,
-95,
-17,
122,
-98,
-125,
-29,
-89,
32,
113,
-59,
0,
93,
65,
48,
-69,
-50,
-6
] |
The opinion of the court was delivered by
Valentine, J.:
This is the second time that this case has been to this court. (18 Kas. 34.) The first judgment rendered in the case (which judgment was in favor of Fitzsimmons, and against the railway company for $3,000 and costs), was reversed by this court, and the cause remanded to the district court for further proceedings. On its return to the district court it was again tried; and this time it was tried in accordance with the expressed views of the supreme-court stated in its opinion. This second trial resulted in a judgment in favor of Fitzsimmons, and against the railway-company for $500 and costs; and, considering that the plaintiff, Fitzsimmons, lost a leg and about four months’ time in being cured, and suffered much, and paid $100 doctor’s bill, the amount of the judgment seems not to be excessive, provided, of course, that the railway company is liable for the plaintiff’s injuries. But the railway company claims that it is not liable for such injuries; and it again brings the case to this court, and now asks that this second judgment shall also be reversed. The plaintiff’s injuries were caused by the revolving of a turn-table, belonging to the defendant railway company; but the defendant claims that it is not liable for such injuries — (1) because it had nothing to do with the said turn-table, or with the operation of the railway to which the turn-table belonged; (2) because even if it had anything to do with said turn-table, still it was not guilty of any negligence in connection therewith; and (3) because the plaintiff was himself guilty of contributory negligence. The questions, however, whether the defendant had anything to do with said__turn-table, whether the defendant was guilty of negligence, and whether the plaintiff was guilty of contributory negligence, were, upon the evidence introduced in this case, all questions of fact, which were properly submitted to the jury, and upon which the jury found against the defendant, and the verdict of the jury was sustained by the court below. There was evidence introduced tending to prove each side of these questions. This would seem to be an end of the controversy, as this court cannot ordinarily review the findings of the court below, or the verdict of the jury upon mere questions of fact. But we shall briefly review the facts, as the plaintiff in error (defendant below) seems to think that there is a question of law somewhere lurking in the case, which may possibly be reviewed by this court. The facts of the ease are pretty fully stated in 18 Kas., pp. 35, 36, but we shall have occasion to restate some of them, and to state others, in our discussion of the case.
I. Had the defendant (the Kansas Central railway company) anything to do with said turn-table? or rather had the defendant enough to do with the turn-table to make it responsible for its condition? This turn-table belonged to and was a part of the Kansas Central railway, which was completed in October, 1872, from Leavenworth City to Holton, a distance of about 56 miles. It is claimed to have been constructed and afterward operated by a supposed corporation called “ The Washington Improvement Company.” This supposed corporation existed, if it existed at all, under a ■special act of the legislature of Pennsylvania. Its capital stock was nominally $100,000, divided into 2,000 shares of $50 ■each, only 500 shares of which, however, belonged to individuals, and only five per cent, of even these shares was ever paid into the corporation. The capital stock of the corporation was •therefore in fact only $25,000, and the capital actually paid in was only $1,250. There were only three stockholders of this .supposed corporation: Wm. A. Martin, of Kansas, and Mr. Blakesley and Mr. Green, of Philadelphia, Pa. This railway was not extended any further than from Leavenworth to Holton for several years;, after its said completion, and not for some years after the plaintiff received the injuries for which this suit was brought. And during all that time the railway was •operated and managed in the name of the Kansas Central railway company. All persons did business with the railway in that name, and all the engines, cars and other property of the railway, which had any name upon them, were marked with that name. The Washington Improvement Company was not known to the public, or to parties doing business with the railway. Then, was not the jury justified in finding and believing that the railway was in fact operated and managed by the Kansas Central railway company, and not by the Washington Improvement Company, whatever the other evidence may have shown to have been the private wishes or desires, or understanding of the two companies? The jury may have thought that the claim, that the railway was operated and managed by the Washington Improvement Company, and not by the Kansas Gentral railway company, was a mere sham .and a fraud; and if they did so think, we cannot say that they were wrong. Even the existence of the Washington Improvement Company seems to be mythical. The question, however, as to whether the railway was operated by the railway company or by the improvement company was one of fact, and it was fairly submitted to the jury, and they found against the defendant. It must be remembered that the plaintiff was injured on August 17,1873, and that the railway had been ■completed and operated from Leavenworth to Holton in the name of the Kansas Central railway company for about ten-months before this injury occurred. And it was operated not merely for construction purposes, but it was operated for general business and transportation; and there is nothing in the-evidence tending to show that the railway had ever been leased to the Washington Improvement Company. But for the purposes of this case, suppose that the Washington Improvement Company did operate the railway at the time when the accident occurred (and there was some evidence tending to show that it did), still the jury were justified in finding, if they did so find, that it operated the same, not for itself alone, "but for the railway company, andas its agent and servant,, and therefore that the railway company, the master, operated the road through its servant, the improvement company. The finding of the jury was general, and in favor of the plaintiff, and hence we cannot tell just what the jury did find;, but we must presume that they found everything inffavor of the plaintiff and against the defendant.
II. Was the railway company negligent? This question-was also fairly submitted to the jury, and the jury found against the defendant. It would seem from the evidence that the turn-table was a dangerous machine for boys to use, and yet that it was easily moved by boys, easily turned or revolved upon its axis, and that it was of that alluring character which would naturally invite boys to use it and to play upon it. It was situated within less than half a mile from Leavenworth, a populous city, in an open prairie, where the cattle of citizens roamed and grazed, where persons frequently passed and repassed, and where boys often played, and yet it was left without locks or fastenings, and without-being watched or guarded, or even fenced in. That it would naturally attract boys and induce them to ride upon it, all men ought to know. Everybody knows that by nature and by instinct boys love to ride, and love to move by other means than their own locomotion. They will cling to the hind ends of moving wagons, ride upon swings and swinging gates, slide upon cellar doors and the rails of stair-cases, pull sleds up hill in order to ride down upon them on the snow, and even pay to ride upon imitation horses and imitation chariots, swung around in a circle by means of steam or horse-power. This last is very much like riding around in a circle upon a turn-table. Now everybody, knowing the nature and the instincts common to all boys, must act accordingly. No person has a right to leave, even on his own land, dangerous machinery calculated to attract and entice boys to it, there to be injured, unless he first take proper steps to guard against all danger; and any person who thus does leave dangerous machinery exposed, without first providing against all danger, is guilty of negligence. It is a violation of that beneficent maxim, sio utere tuo ut alienum non Icedas. It is true that the boys in such cases are technically trespassers. But even trespassers have rights which cannot be ignored, as numerous cases which we might cite would show. But see particularly the cases of Railroad Co. v. Stout, 17 Wall. 657, and Keffe v. M. & St. P. Rly. Co., 21 Minn. 207, which are turn-table cases.
III. Was the plaintiff guilty of contributory negligence? This question was also fairly submitted to the jury, and they found against the defendant and in favor of the plaintiff. The plaintiff was a boy a little over twelve years old, and from his own testimony we should think was not a very bright boy, even for that age. He was born in Ireland, and his father was a common day laborer. On the day on which the accident occurred, the boy went to hunt his father’s cow, and found her near the turn-table. He then, with other boys about his own age, went to the turn-table. He had never before seen one. He had previously been warned to stay away from the railroad, and from the cars, but had never been warned from the turn-table. There is some conflict in the evidence as to how he got on the turn-table, and in what position he was, when thereon, and when the accident occurred, whether sitting, standing or otherwise, and whether he was told by any one of the boys not to get on at the time he did so; but we must presume that the jury believed such only of the conflicting evidence as was most favorable to the plaintiff. Now, take this boy at his premature age, with his limited knowledge and experience, and his lowly station in life, and probably it was intense amusement, almost irresistible, for him to ride upon a turn-table; and probably he did not imagine that he was a trespasser, or in the slightest danger. That plaintiff may recover under such circumstances, see Railroad Co. v. Stout, and Keffe v. M. & St. P. Rly. Co., supra, and the authorities therein cited. Much of what we have said while discussing the defendant’s negligence will apply here.- Boys can seldom be said to be negligent when they merely follow the irresistible impulses of their own natures — instincts common to all boys. In many cases where men, or boys approaching manhood, would be held to be negligent, younger .boys, and boys with less intelligence, would not be. And the question of negligence is in nearly all cases one of fact for the jury, whether the person charged with negligence is of full age or not.
We perceive no error in the rulings of the court below, and therefore the judgment will be affirmed.
Horton, C. J., concurring.
Brewer, J., not sitting in the case. | [
-80,
104,
-100,
-97,
122,
104,
34,
-40,
65,
33,
-25,
119,
-87,
-61,
1,
63,
-30,
127,
-43,
43,
-42,
-93,
7,
-29,
-109,
-13,
115,
-60,
-75,
108,
-26,
117,
77,
32,
-54,
-43,
-26,
73,
-63,
22,
-50,
5,
-88,
-51,
27,
0,
52,
120,
64,
87,
49,
10,
-61,
42,
28,
-57,
41,
40,
123,
57,
80,
113,
-126,
-123,
127,
0,
49,
38,
-100,
35,
-56,
62,
-40,
53,
0,
-8,
115,
-92,
-122,
-44,
97,
-71,
13,
-26,
99,
1,
21,
79,
-4,
-104,
47,
94,
-115,
-90,
18,
16,
107,
13,
-105,
-99,
86,
22,
39,
126,
-17,
-35,
93,
60,
1,
-117,
-108,
-86,
-33,
62,
-102,
114,
-53,
31,
20,
113,
-52,
-70,
92,
4,
18,
-101,
-97,
-98
] |
The opinion of the court was delivered by
Brewer, J.:
In this case a demurrer to the petition was sustained, and of this ruling plaintiff complains. The material portion of the petition is as follows:
“And now comes the said plaintiff, and complains of the said defendants, and alleges that heretofore, to wit, on the first day of February, A. D. 1875, the defendants executed and delivered to the plaintiff a written obligation, in the words and figures following, to wit:
“The congregation of the First Presbyterian church of Paola, Kansas, being on sufficient grounds well satisfied of the ministerial qualifications of you, Alex. Thompson, and having good hopes, from our past experience of your labors, that your ministrations in the gospel will be profitable to our spiritual interests, do earnestly call and desire you to undertake the pastoral office of this congregation, promising you, in the discharge of your duty, all proper support, encouragement and obedience in the Lord.
“And that you may be free from worldly cares and avocations, we hereby promise and oblige ourselves to pay you the sum of one thousand dollars, in monthly payments, during the time of your being and continuing the regular pastor of this church.
“In testimony whereof, we have respectively subscribed our names, this first day of February, 1875. “ J. R. Gabbison,
“ J. E. Thayeb,
“ J. W. Mij/leb,
“N. Steel,
“Elders.
“Attested by: J. R. McLain, Moderator of the Meeting.”’
And the plaintiff alleges that at the time of the execution and delivery of said written obligation, the congregation of the First Presbyterian church of Paola, Kansas, was not in corporated, and the defendants were each and all of them members of said congregation.
The petition further alleges acceptance by plaintiff of this invitation, performance of the services, and a consequent indebtedness. Ought the demurrer to have been sustained? We think not. Upon this obligation some party was bound. It was an invitation to perform services, and it is alleged that the services were performed. If performed, as alleged, upon this invitation, some party is responsible therefor. And such party must be either the persons who signed the invitation, or the congregation for which they acted. In either event, it would seem under the allegations that defendants are liable. If, because they signed the obligation, they are responsible, then the demurrer was improperly overruled. If the congregation for which they acted was alone responsible, then as such congregation was not incorporated, each member thereof is responsible, and it is alleged that they were members. If they were members of a voluntary association which invited plaintiff to perform services, they are responsible as members, and it matters not that they were a committee or elders. Each member participating in the invitation is severally bound. The case of Paddock v. Brown, 6 Hill, 530, is cited; and we should judge that the ruling of the district court was based upon that case; but whether that be correctly decided or not, here it appeal’s, as it did not in that case, that there was no incorporation, and that the parties signing the obligation were members of the voluntary association which extended the invitation. Whether, if there was an incorporated society for which defendants acted, they would be personally responsible, we need not inquire; no such question is before us.
As to any matters' outside the record which counsel notices in his brief, it seems hardly necessary to say that we cannot notice them. They must be brought upon the record before they can in any manner influence our decision.
The judgment of the district court must be reversed, and the case remanded with instructions to overrule the demurrer.
All the Justices concurring. | [
-75,
-20,
-40,
-97,
-118,
96,
34,
-102,
-78,
-95,
-89,
83,
-23,
-14,
0,
123,
-30,
61,
-48,
107,
84,
-77,
23,
104,
-16,
-13,
-5,
-59,
-79,
77,
-27,
-3,
73,
40,
74,
-35,
-26,
-54,
-63,
-108,
-114,
1,
-119,
-20,
-39,
-55,
48,
113,
84,
15,
85,
-66,
-13,
40,
24,
71,
107,
44,
125,
41,
-48,
-71,
-102,
-123,
95,
6,
19,
100,
-102,
7,
104,
60,
-102,
-71,
43,
-24,
113,
-90,
2,
117,
127,
-87,
45,
118,
100,
32,
-79,
-19,
-120,
-115,
126,
58,
-99,
-26,
-13,
89,
-86,
9,
-66,
61,
116,
81,
7,
118,
-30,
21,
25,
44,
7,
-53,
-58,
-75,
-113,
52,
-98,
3,
-21,
-87,
48,
113,
-51,
114,
92,
103,
58,
-111,
-98,
-72
] |
The opinion of the court was delivered by
Horton, C. J.:
On the 6th day of January, 1874, W. M. Allison was a qualified preemptor, residing upon and claiming a preemption right in a certain quarter-section of the Osage Indian lands in Cowley county. For the purpose of entering this tract, he borrowed from the defendant in error, Emily J. Houston, the sum of two hundred and twenty dollars, for which he executed to her his note, due and payable one year from that date; and to secure its payment, executed to her a mortgage on the land. Some time afterward, Allison entered the land, and on January 28th, 1875, conveyed it to one Sallie E. McDonald by warranty deed, in usual form, subject however to the mortgage, which deed was duly recorded March 22d, 1875. The consideration of the deed was the payment of said mortgage debt, and sufficient money in addition to make $500. On May 28th, 1875, Mrs. McDonald and her husband conveyed the land to plaintiff in error by warranty deed, in usual form, covenanting that the “said premises were free and clear of all incumbrances whatsoever, except as shown by the records of Cowley county.” As part' of the purchase-money, Green assumed and agreed with Mrs. McDonald to pay said mortgage debt. On October 13th, 1877, the defendant in error commenced her action against Allison on the note and for the foreclosure of the mortgage, making Green a party defendant. Allison made default, and Green defended on the ground that the mortgage was void ab initio, and he alleges that the case of Brewster v. Madden, 15 Kas. 249, is exactly in point.
It is unnecessary to discuss the question whether the mortgage between Allison and Houston was originally invalid. The note executed by Allison was certainly binding. When he conveyed the land to Mrs. McDonald on her agreement to pay the mortgage debt, and inserted in the deed that she should take the land subject to the mortgage debt, and thus protected himself from the payment of the note, it was an agreement which Allison and Mrs. McDonald had the right to make. The land then became subject to the payment of the claim, and this obligation of Mrs. McDonald inured to the benefit of the mortgagee, who had the right in equity to compel such purchaser to respond directly to her.- As Green took his conveyance subject to the mortgage debt agreed to be paid by McDonald, and assumed this debt, McDonald and Green are estopped by their agreements from questioning the validity of the mortgage under the preemption laws of congress. If any other rule were adopted, Allison would be compelled to pay his note, and the parties who obtained the land on agreements to liquidate the mortgage debt, and thus discharge the liability of Allison, would be relieved from the payment of a large portion of the purchase-money, and exempt from a great part of the obligations they assumed. This would be inequitable, and also contrary to the understanding of the grantees when they accepted their conveyances. (Drury v. Tremont Imp. Co., 13 Allen, 168.)
The judgment must be affirmed.
All the Justices concurring. | [
-76,
111,
-48,
-83,
-54,
96,
-118,
-102,
-37,
-96,
-77,
83,
-23,
-62,
20,
105,
-26,
13,
-63,
104,
69,
-77,
38,
65,
-46,
-77,
81,
85,
-79,
76,
-28,
-33,
76,
48,
74,
-107,
-26,
-54,
-61,
-48,
-114,
-121,
-119,
108,
-39,
-62,
56,
123,
80,
8,
65,
43,
-13,
46,
57,
-54,
-24,
46,
-49,
61,
-112,
-80,
-101,
-123,
127,
3,
49,
102,
-112,
5,
-22,
42,
-112,
19,
0,
-8,
123,
54,
-122,
116,
77,
-101,
9,
118,
98,
32,
-28,
109,
-40,
-100,
15,
-42,
-107,
-90,
-112,
89,
35,
72,
-66,
-103,
125,
20,
79,
-10,
-26,
-123,
25,
104,
13,
-117,
-44,
-107,
-113,
60,
-112,
11,
-25,
-89,
-80,
113,
-49,
32,
93,
39,
123,
-101,
-114,
-36
] |
The opinion of the court was delivered by
Brewer, J.:
This was an action of forcible detainer, tried by the court without a jury. Special findings of fact were made, and judgment entered in favor of the plaintiff. As ■only a portion of the testimony is preserved, we must look to the findings to see whether they support £he judgment. And upon 'them the question is, whether the deed and an agreement to reconvey, which were executed by the parties, •constituted simply a mortgage. It appears that Culver held a mortgage past due, and commenced suit in foreclosure. While this action was pending, the parties agreed to a settlement, and-McNamara and wife agreed to give Culver an -absolute deed to the premises in payment and satisfaction of all indebtedness and costs, and Culver agreed that McNamara might occupy the premises rent free for six months. Upon this, McNamara and wife executed a general warranty deed, and at the same time, and as part of the same transaction, Culver executed to McNamara an agreement to convey-the premises on payment of $203, that being the consideration of the deed, within six months. Whereupon the action was •dismissed, and the costs were paid by Culver.
The conclusion of the district court was that the transac tions between the parties did not create a mortgage. In support of the claim that these instruments make simply a mortgage, is the fact that they were executed at the same time and as parts of the same transaction, and also the finding that the value of the premises was between four and five hundred dollars. Against it, the finding that the conveyance was in payment and satisfaction of all indebtedness, is the fact that the agreement to convey did not recite any sale, or attempt to cast any obligation upon McNamara, but was simply an agreement to convey upon the payment, within six months, of $203, and the further fact that when the six months in which McNamara, by the agreement, was to have the occupancy rent free expired, he at first made no claim of any right to remain longer, talked about moving out, but said he could not just then get a house, and made no objection or assertion of adverse right while Culver was expending some $270 in repairs of the premises. Now'that a deed and an agreement to reconvey, though separate instruments, may °Perate as simply a mortgage, is clear, and that they do not necessarily create one is. equally ciear> The test is the existence or non-existence of a debt. And equity looks behind the form to the fact. If the transaction was intended as a loan, if there remains a debt for which the conveyance is only a security, and the collection of which may be enforced independent of the security, equity will hold it a mortgage, no matter whether the transaction is evidenced by one or two instruments. But if there be no debt, there can be no security — no mortgage. In 1 Jones on Mortgages, § 265, it is said that “a debt, either preexisting or created at the time, is an essential requisite of a mortgage.” In Glover v. Payn, 19 Wend. 518, Bronson, J., says: “Where there is no debt and no loan, it is impossible to say that an agreement to resell will change an absolute deed into a mortgage.”
The fule is clearly laid down in 4 Kent’s Commentaries, at page 144, note:
“The test of distinction is this:. If the relation of debtor and creditor remains, and a debt still subsists, it is a mortgage; but if the debt is extinguished by the agreement of the parties, . . . and the grantor has the privilege of refunding, if he pleases, in a given time, and thereby entitle him to a reconveyance, it is a conditional sale.”
In Saxton v. Hitchcock,, 47 Barb. 227, the court, says:
“The conveyance does not appear to have been made to secure a debt, but in payment of it. It was a sale of the premises, with an agreement to resell upon certain terms and conditions. The liability of the defendant, the grantor, was discharged, and the relation of debtor and creditor did not exist, as by this sale the debt was extinguished, within the rule cited.”
And again, in 1 Jones on Mortgages, § 264, the author declares that “the rights of the parties to the conveyance must be reciprocal. If the transaction be in the nature of a mortgage, so that the grantor may insist upon a reconveyance, the grantee at the same time may insist on repayment; but if it be a conditional sale, so that the grantor need not repurchase except at his option, the grantee cannot insist upon repayment.” See further, Robinson v. Cropsey, 2 Edw. Ch. 138;. 6 Paige 480; McKinstry v. Conly, 12 Ala. 678; Conway’s Ex’r v. Alexander, 7 Cranch, 218; Flagg v. Mann, 14 Pick. 467; O’Niell v. Capelle, 62 Mo. 202; Turner v. Kerr, 44 Mo. 429; Farmer v. Grose, 42 Cal. 169; Slutz v. Desenberg, 28 Ohio St. 371; Plato v. Roe, 14 Wis. 457; Hughes v. Davis, 40 Cal. 117.
Now in the case at bar, the finding of the court is that the deed was given in payment and satisfaction of the prior indebtedness. It was not therefore security, but payment. There ceased to be any debt. And nowhere in the findings ■ is there anything to show the creation of any new debt. The agreement to resell does not recite a sale or show a debt. Upon the facts as found, Culver could never have collected a cent from McNamara. There was therefore no mortgage, and the conclusion of the district court was correct.
Again, it is objected that the court permitted evidence of matters outside the written agreements to explain the intent and understanding of the parties thereto. Now whatever criticism may be made upon the form of the question, we-think the testimony which was admitted was proper testimony. Evidence of the situation of the parties, the circumstances surrounding the transaction, and of independent. parol agreements not conflicting with the terms. 0f ^g wr¡^eE1 instruments, was competent, and we do not see that any other material testimony was received. (Babcock v. Deford, 14 Kas. 408; Weeks v. Medler, 20 Kas. 57; Pilts v. Cable, 44 Ill. 103; Slutz v. Desenberg, 28 Ohio St. 371; Parish v. Gates, 29 Ala. 254; Plato v. Roe, 14 Wis. 457; Rich v. Doane, 35 Vt. 125; 1 Jones on Mortgages, § 261; Baugher v. Merryman, 32 Md. 185; Conway’s Ex’r v. Alexander, 7 Cranch, 218.)
A final objection is, that the defendant was refused a second trial, as is authorized in actions for the recovery of real property. The action was one of forcible detainer, commenced1 before a justice of the peace. In this action a sworn answer setting up title was filed, and thereupon the justice certified the case to the district court, where it was tried. The argument of counsel is in substance, that as the article in the-general statutes providing for proceedings in forcible entry and detainer applies only to the justices’, and not to district courts, and as the provision for certifying cases to the district court declares that the case so docketed shall be proceeded with in the district court as if originally commenced therein,, it must proceed as an action for the recovery of real property,, in which action two trials are a matter of right. We cannot agree with counsel. The action of forcible detainer is different from the action of ejectment, or for the recovery of real property, as it is styled in the code. Evidence sustaining the latter will not necessarily sustain the former. More facts are required in the one than in the other. Now the district court is one of general original jurisdiction. A provision for certifying the case from the justice to the district court, changes the forum, but does not change the action. The same proof must be made in the latter as would have been required in the former court, and the same relief may be obtained. If it were not so, an unscrupulous tenant might hold possession in defiance of his landlord, and without giving any security, for many months. We do not so understand the statute.
Upon the whole record we see no error, and the judgment will be affirmed.
All the Justices concurring. | [
-47,
122,
-39,
-18,
74,
96,
42,
-104,
104,
-95,
55,
123,
111,
-62,
1,
105,
-28,
105,
100,
123,
87,
-78,
103,
105,
-46,
-77,
115,
85,
-79,
-18,
-28,
87,
76,
52,
-62,
-43,
102,
-103,
-35,
84,
14,
-91,
-120,
68,
-15,
66,
52,
59,
72,
76,
17,
-114,
-13,
44,
21,
-62,
105,
40,
75,
61,
-48,
-8,
-116,
-99,
95,
7,
-79,
53,
-36,
71,
-8,
14,
-112,
49,
1,
-24,
-13,
-74,
-106,
116,
79,
-101,
45,
38,
99,
0,
113,
-5,
-40,
-104,
47,
-34,
-81,
-89,
-47,
88,
65,
97,
-65,
-99,
124,
65,
38,
118,
-26,
-107,
31,
-20,
15,
-113,
-42,
-77,
13,
20,
-102,
9,
-2,
-125,
33,
112,
-49,
-72,
93,
103,
91,
-37,
-100,
-5
] |
The opinion of the court was delivered by
Valentine, J.:
In 1873, while James M. Church was owning and occupying a certain piece of land with his family, which consisted of a wife and five children, he died intestate, owing many debts and leaving no personal estate with which to pay them, and no real estate except the said land, which he occupied as a homestead. The family continued to reside upon said land for about one year after Church’s death, when they removed therefrom, but afterward returned thereto, and occupied the same until in 1877, when they again removed therefrom. While' they resided upon the land, two of the children executed deeds conveying to their mother, Mrs. Church, all their interest in the premises, and their mother executed deeds conveying portions of her interest to Cates & Keplinger and to Dayton & Barker. The consideration for the conveyance to Dayton & Barker was another piece of land conveyed by them to her, which she then contemplated making and afterward did make her homestead. On October 25, 1877, the probate court, on proper petition and due notice given to all the parties interested, made an order that the administrator of the estate of said James M. Church, deceased, to wit, G. W. Donart, should sell said land to pay said debts. Whereupon the parties interested in the land, to wit, Dayton •& Barker, Cates & Keplinger, and said widow and children, took an appeal to the district court. In the district court, a trial was had before the court, without a jury, and judgment was rendered confirming the order of the probate court, and against the appellants for costs. The appellants then, as plaintiffs in error, brought the case to this court.
A decision of this case involves the construction of the statutes of 1868 relating to descents and distributions, and kindred statutes. (See Gen. Stat., p.392, §§ 1 to 6; p. 439, § 39; p. 454, § 114; p. 713, § 443; p. 1107, § 1; also, Vandiver v. Vandiver, 20 Kas. 501.)
The plaintiffs in error claim that when Church died, the title to said real estate went absolutely, unconditionally, entirely and finally to his widow and children then occupying the premises; and they claim this, under the statutes, on the mere ground of occupancy alone. They say that the first moment of bona fide occupancy by the widow and children so fixed the title in the occupants that no subsequent abandonment by them would have the effect to expose the property to liability for the payment of Church’s debts. Now, if mere occupancy alone for any period of time, long or short, could have the effect to so free the land from liability for Church’s debts that no subsequent abandonment of the premises would expose them to such liability, we should think that under the statutes a moment’s time would be just as good as any longer period of time. But in our opinion no period of time, however long, is sufficient to give absolute title, free from debts, if the debts remain unpaid and not barred by the statute of limitations. The construction of the statutes contended for by the plaintiffs in error is open to many objections:
1. It would often work injustice to the ancestor’s children, or to a portion of them; for if all the property should go absolutely and unconditionally to the intestate’s widow and children, adults and minors, living at his home at the time of his death, none of it could ever go to the intestate’s children, minors or adults, living away from his home at the time of his death.
2. It would lead to endless litigation; for it is often difficult to tell whether a father’s adult children still have their residence at his home or not.
3. It would render nugatory the following words of the statute, to wit: “And continued to be so occupied by his widow and children after his death.” (Gen. Stat. 392, §2.) These words are found in the very statute, the very section and the very sentence under which the plaintiffs in error make their claim. Every widow and child residing upon the husband’s or father’s homestead at the time of his death, almost necessarily continues to reside there for some time afterward. And hence, with the construction of the statutes •contended for by the plaintiffs in error, the title would always be made absolute and unconditional in the widow and such of the children as might reside upon the premises at the time •of the intestate’s death.
4. It would render nugatory that clause of § 4 of the same statute, which reads as follows: “ If the intestate left no children, the widow shall be entitled to said homestead.” (Gen. Stat. 392, § 4.) For, according to the theory of the plaintiffs in error, the entire property goes, independent of said clause of § 4, only to the widow and such of the children as reside upon the homestead at the time of the intestate’s death. Hence, if no one but the widow resided upon the homestead at the time of the intestate’s death, she alone would take the entire property, whether he left any children or not.
5. It also, in our opinion, contravenes the provisions of § 5 of the same act. (Gen. Stat. 392.) For, as we have already decided in the case of Vandiver v. Vandiver, 20 Kas. 501, when the homestead is divided under the provisions of that section between the widow and children, each child, whether adult or minor, and whether he ever resided upon the homestead or not, is entitled to receive an equal share of the homestead with the other children, and all the children together are to receive one-half of the homestead, and the widow the other half.
We might perhaps point out other objections, but these we think are sufficient. Evidently the construction contended for by the plaintiffs in error is not the correct one. In our opinion, when a man dies intestate, leaving a 1 ’ ’ , . W1C‘0W and children, the ultimate title to his homestead descends to his widow and children just the same as the title to all his other real estate does, except that it descends to them subject to a homestead interest vested in the widow and such of the children as occupy the homestead at the time of the intestate’s death. This construction of the statutes is in harmony with justice and with all our statutes and with every portion thereof, except perhaps with the word “absolute,” contained in § 2 of the act relating to descents and distributions. (Gen. Stat. 392.) But this word “absolute,” as used in said §2, evidently does not mean what it would in some other cases. It, together with the words used in connection therewith, simply means: that so long as the widow and children continue to occupy the homestead, and the widow does not marry again, and one or more of the children still remain minors, they may hold the property as their homestead as though it were their absolute property, free from all debts (except incumbrances given by husband and wife, and taxes, and debts for purchase-money and improvements), and free from division or distribution. But evidently from the statutes they hold the property as their absolute property, free from debts and division only while some of them occupy the same as their homestead. If they all abandon the property as a homestead, it then becomes subject to debts and division the same as though it never was a homestead. This homestead right is probably just like any other homestead-exemption right, except that it is held by the occupants (prior to the widow’s marriage, and prior to ail the children s reach-inS their majority) free from division or partition, as well as free from debts; and when it is abandoned as a homestead (if not previously sold), it becomes liable for the intestate’s debts, as well as for the occupants’ own debts. If we are correct in this — and we think we are, for we know of no reason why we are not correct— then it necessarily follows, from prior decisions of this court, that if the property or any interest therein is sold and conveyed while the property is still occupied as a homestead by the widow and any one or more of the minor children, the title to such property or interest passes to the purchaser free from all debts, except prior incumbrances given by the intes tate and wife, or grantor and wife or husband, and taxes, and debts for purchase-money and improvements, although the property may afterward be abandoned as a homestead by the widow and children. (Morris v. Ward, 5 Kas. 239; Hixon v. George, 18 Kas. 254, 260.) Upon this point, we differ from the court below. The court below seems to have held that no sale of the property could free it from liability for the intestate’s debts; that as soon as the property was abandoned as a homestead, it became liable for the intestate’s debts, whether the property had previously been sold and conveyed or not. In this, we think the court below erred.
There are some other questions in this case, but we do not think it is necessary to decide them now. Probably the exact questions which we now pass over will never arise again.
The judgment of the court below will be reversed, and cause remanded for further proceedings.
All the Justices concurring. | [
-15,
110,
-44,
-68,
58,
-32,
42,
-40,
66,
-63,
-96,
87,
-23,
-46,
21,
45,
-30,
45,
85,
123,
68,
-77,
7,
-96,
-111,
-13,
-47,
-59,
-79,
77,
102,
-41,
76,
32,
-62,
21,
-26,
-86,
-59,
80,
-114,
68,
-119,
-51,
-39,
64,
52,
123,
86,
78,
69,
-82,
-13,
43,
29,
-29,
40,
40,
89,
57,
16,
-8,
-114,
5,
111,
23,
-111,
102,
-104,
-125,
104,
10,
-112,
53,
2,
-8,
115,
-90,
-42,
116,
77,
-71,
9,
102,
102,
1,
69,
-17,
-16,
-104,
14,
-106,
-99,
-89,
-43,
88,
34,
12,
-66,
-99,
112,
64,
7,
124,
-26,
-98,
92,
108,
5,
-113,
-42,
-79,
-113,
56,
-104,
-126,
-45,
-89,
48,
113,
-55,
-118,
92,
99,
49,
-101,
-113,
-40
] |
The opinion of the court was- delivered by
Brewer, J.:
This was an action on an attachment bond, in which judgment was recovered against the plaintiff in the .attachment and the sureties on his bond. The first question ■of importance is, as to the effect of the ruling of the district judge on the motion to dissolve the attachment. The motion was sustained, and the attachment dissolved, and the contention of defendant in error is, that such ruling is conclusive that the attachment was wrongfully obtained. The condition ■of the bond was, to pay damages “if the order therefor be wrongfully obtained.” The contention of the plaintiffs in ■ error is, that the mere fact that the attachment was discharged, does not prove that it was wrongfully obtained. Non constat, but that the discharge was on account of some informality or technical defect, and that in such a case the .attachment could not justly be said to have been wrongfully -obtained; that these words imply a want of actual merit in .the attachment, the existence of a state qf facts which forbids .such a summary seizure of property, and that this is a question of fact which must go to a jury for decision.
It appears from the record in this case, that a motion- was ■duly made to vacate and discharge the attachment; that such motion was based upon only two grounds — first, that the .allegations in the affidavit therefor were untrue; and, second, that the plaintiff’s petition did not justify the attachment. The notice specified that the motion would be heard upon .affidavits, and the order of the judge recites that affidavits -were presented, and his decision thereon is, that the “ attach ment ought not to be sustained.” Now, upon the record it appears that the decision was based upon the merits, for whether the case were one in which no attachment could issue, or the statements in the affidavit therefor were false,, the attachment was in fact wrongfully obtained. We have,, therefore, a decision made upon the merits, and not upon any mere irregularity or technical defect, and not a dissolution by voluntary dismissal of the plaintiff. In such a case, we are of the opinion that the decision by the judge is conclusive. This is not an action' for maliciously suing out an attachment, in which case want of probable cause is an essential factor, but a mere action on-the bond for a wrongful attachment. (McLaughlin v. Davis, 14 Kas. 168.) And the single question is, whether the attachment was in fact wrongful, or in other words, whether the facts existed upon which an attachment might be issued ;; and the determination of this question the statute places with the judge or court. The decision thereon is open for review,, by proper proceedings in this court; but unless brought to this court for reexamination, the decision of the lower tribunal is a finality. It is unnecessary to consider what result would follow, if the record disclosed a dissolution by the voluntary dismissal on the part of the plaintiff, or upon the ground of some technical defect or omission in the papers, or whether it is competent to show by parol testimony that the order of discharge was based upon some ground other than the merits* No such question is in the record. All that is presented is,, ■whether, after an order of dissolution made according to the-record upon the merits, the matter may be again examined as-an original question in an action on the bond upon oral testimony before a jury; and this question we are constrained to-answer in the negative. We know that it is often said that the decision of a motion is not regarded in the light of resadjudicata. In the case of White-Crow v. White-Wing, 3 Kas. 276, it was held, that the decision of a motion to set aside a sale of real estate “either way would not affect the' ultimate rights of the parties, nor be a bar to an action to determine which was the owner.” And in Benz v. Hines, 3 Kas. 390, it was decided that the doctrine of res adjudicata is not applicable generally to motions in the course of practice: While not disposed to question the correctness of those decisions, we think this is a case in which the decision of the motion is conclusive upon the exact questions embraced within the motion. The exact question presented is clearly stated in the motion. Under our practice, full opportunity is given for the examination and consideration of the questions, and the decision is open to review in the appellate court; and to permit the question to be retried, simply because in an action on the bond the party has a right to a jury, seems useless and wrong. It exposes to this possible result: After a full hearing of the testimony and full consideration, the district court decides that the attachment was wrongfully obtained, and vacates it. On error, this court affirms its decision. In a subsequent action, the same testimony is presented to a jury, and its verdict is, that the attachment was not wrongful. There being a disputed question of fact and testimony on both sides, the district court feels bound by the-verdict, and this court cannot do otherwise than affirm it. Upon the same testimony, therefore, the only difference being, that in the one case it is presented to the tribunal by affidavit or deposition, and in the other orally,'this court is compelled to affirm that the attachment was both rightfully and wrongfully obtained. Or again, if the decision of the motion to' vacate the attachment is not conclusive when it is sustained, it cannot be when it is overruled. In the latter case, the property may be sold under the attachment, and the proceeds applied in the satisfaction of the judgment, (and under our practice the attachment is merely ancillary to the action, and the rendition of a judgment in favor of the plaintiff in no' manner determines the rightfulness of the ancillary proceeding,) and all this affirmed in this court, and still the plaintiff, and the sureties on his bond, be mulcted in damages in an action on the bond given to support an attachment which has never been dissolved, and which the records of the highest court iu the state show has been declared valid. In reference to this matter, we shall quote from Freeman on Judgments, ■§ 325, as expressing our view:
“The reasons for holding such decisions (i. e., decisions upon motions) not to be conclusive in a regular suit, were in an early case in New York stated to be, because ‘it is a fact, well known, •that such motions do not admit of that grave discussion and consideration as questions arising on demurrer, in arrest of judgment, or for a new trial. Again: Decisions on summary application can never be thrown into the shape of a record, and become the subject of review in any other court.’ It will be seen that the reasoning of the court in this case (Simson v. Hart, 14 Johns. 75), which seems to be a leading American case upon the subject, is inapplicable to those motions which admit of ‘grave discussion and deliberation,’ and are capable of ‘ being thrown into the shape of a record,’ and being the ‘subject of review in another court.’ In New York, the decision of a motion, notwithstanding the general declarations to the contrary frequently made, may be ■res judicata.”
In support of this, the author cites the case of Dwight v. St. John, 25 N. Y. 203, in which case the decision of a motion to have certain judgments canceled and discharged of record as satisfied, was held conclusive in a subsequent action, •on the ground that the matter was heard upon full proofs, and that the proceeding was liable to review in the appellate •court; and the author then concludes: “From this decision we may infer that in New York, if not' in other states, the decision of a motion is as final and conclusive as the decision •of a trial, if the proceedings permit of a full hearing upon the merits, and the order made is liable to review in some appellate court.” See also, McCullough v. Clark, 41 Cal. 298; Langdon v. Raiford, 20 Ala. 532; Noble v. Cope’s Adm’rs, 50 Pa. St. 17; Second Ward Bank v. Upman, 14 Wis. 596; U. P. Rly. Co. v. McCarty, 8 Kas. 132; Mitchell v. Mattingly, 1 Metc. (Ky.) 237. With this view of the conclusiveness of the ruling on the motion to vacate the attachment, we think the petition must be held sufficient as against any objection raised for the first time on the trial, and by objection to the introduction of any testimony. (Barkley v. The State, 15 Kas. 99.)
The only other question we deem necessary to notice is that of damages. The property attached was a herd of cattle, and one of the items of damage as returned by the jury was the loss in the growth of the cattle, caused by the seizure and improper care while under seizure. It appears that the cattle were taken by the sheriff from the range where they had been kept for some time, and placed in charge of a herder on another range; and it is claimed that by reason of such change, and the inferiority of the new range, both in grass and water, the cattle failed to increase in weight as they otherwise would. The jury answered that they did not depreciate any in value, but that they did not grow as they would if they had not been removed; and this loss of expected growth is said by the one side to be mere matter of anticipated profits, which cannot be made the subject of award,'and by the other to be actual and legitimate damages. It is not always easy to draw the line between profits that are a legitimate element of compensation, and those that are too remote, contingent or uncertain. The old idea that profits were never recoverable, was long since exploded; and now, even in actions on contract, it is said that they may be recovered when proximate and certain. “The general rule is, that the party injured by a breach of contract is entitled to recover all his damages, including gains prevented as well as losses sustained, provided they are certain and such as might naturally be expected to follow the breach. It is only uncertain and contingent profits therefore which the law excludes.” (Griffin v. Colver, 16 N. Y. 489.) Now it appears from the testimony that cattle kept through the winter as these cattle were, do not ordinarily during such time increase any in weight, but are in good condition for summer feeding, and if kept where they are wonted, and free from worry, and where grass and water are abundant and good, will during the summer months gain in weight about a certain amount; that during the time when the increase in weight is expected, these cattle were driven away to a new range, exposed to worry, and where both water and grass were limited and inferior; and at the end of their detention they were returned to the owner, not, it is true, deteriorated in value or lessened in weight, but without having made the ordinary increase in weight and value'. It is a case of gain prevented, rather than of loss sustained, and the questions are, whether such gain prevented is proximate and certain — i. e., directly the result of the removal and inferior care — and the amount thereof susceptible of reasonably certain measurement. Both these questions the jury, by their verdict, answered in the affirmative, and we cannot say that the testimony did not fully warrant the answers. Of course, absolute certainty is not attainable, as in casting up the figures of an account; but nevertheless there are certain laws of feeding and growth, well understood among cattle-men, and whose results work out with sufficient certainty for business calculations and judicial investigations. The raising of cattle for market has been an extensive and ofttimes profitable business in this state; and it would be strange if one could wrongfully take from the owner a herd of cattle, remove them to a poorer range, feed them on inferior food, and so treat them that during the growing season they do not grow at all, and then at its end return them,- saying, as did the unfaithful servant in the parable who returned the single talent without increase, “Lo! there thou hast that is thine,” and still be under no . liability to respond m damages to such owner. We do not think the law so deficient. It seems clear that the owner is damaged, that the damages may be determined to a reasonable certainty, and that the wrongdoer is bound to make good the damages.
In Sewall’s Falls Bridge v. Fisk, 3 Foster (N. H.), 171, it appeared that the plaintiff’s toll-bridge was carried away through the fault of defendants, and the loss of tolls during the time reasonably necessary to rebuild was adjudged one element in the damages recoverable. In Lacour v. The Mayor, &c., 3 Duer, 406, the plaintiff’s manufactory was in jured, and compelled to stop running, through the fault of the defendant, and the profits which would have been realized during the period of necessary suspension were recovered. See also, James v. Adams, 8 W. Va. 568; Hanover R. R. Co. v. Coyle, 55 Pa. St. 396; Penn. R. R. Co. v. Butler, 55 Pa. St. 335; Penn. R. R. Co. v. Dale, 76 Pa. St. 47; Albert v. B. S. R. R. Co., 2 Daly, 389; Moore v. Schultz, 31 Md. 418; Lawson v. Price, 45 Md. 123; Sturgis v. Frost, 56 Ga. 188; Morey v. King, 49 Vt. 304.
As this item of damages was recoverable, it was a matter of proof, and we think the testimony offered to prove it legitimate and competent. One or two questions may be open to criticism, but we see no error therein sufficient to justify a reversal.
The judgment will be affirmed.
All the Justices concurring. | [
-80,
120,
88,
125,
-118,
96,
42,
-104,
-47,
-123,
-89,
83,
-83,
-29,
-128,
99,
112,
121,
113,
122,
87,
-73,
119,
-53,
-46,
-77,
-54,
-43,
-77,
109,
-28,
86,
76,
32,
-54,
-43,
102,
-118,
-43,
88,
-50,
-121,
-119,
109,
-47,
-56,
52,
63,
16,
75,
113,
-114,
-21,
46,
29,
71,
-51,
40,
-22,
61,
-32,
121,
-115,
13,
79,
2,
-109,
39,
-98,
64,
-40,
46,
-104,
57,
1,
-24,
114,
-74,
-122,
116,
109,
-101,
-84,
98,
106,
1,
29,
-24,
-68,
-120,
47,
-98,
15,
-90,
-110,
88,
73,
1,
-106,
-35,
103,
18,
-121,
126,
-22,
12,
31,
108,
7,
-49,
-58,
-77,
15,
56,
30,
33,
-17,
-93,
16,
96,
-51,
-96,
92,
102,
25,
-101,
-49,
-69
] |
The opinion of the court was delivered by
Horton, C. J.:
The first error assigned is, that the court excluded the testimony of certain uncommunicated threats ■of the deceased.
It appears the defendant called witnesses on the trial to prove that the deceased said at one time “ he would kill him the first time he saw him;” at another time, “that he didn’t-intend that Brown’s cattle should run near his place;” and again, “that he had a chunk of cold lead for Brown, and would kill him the first time he saw him.” These threats were uttered by the deceased three months before his death,, repeated the week preceding the homicide, and again made the day prior. None of them were brought to the knowledge of the defendant, and were therefore rejected by the court.
The courts, as well as the legislatures, are constantly widening the doors for the reception of evidence, and the later and better authorities establish the rule that in a trial for homicide where the question whether the defendant or the deceased commenced the encounter which resulted in death, is in any manner of doubt, it is competent to prove threats of vio lence against the defendant made by the deceased, though not brought to the knowledge of the defendant. The evidence is not relevant to show the quo animo of the defendant; but it may be relevant to show that at the time of the meeting the deceased was seeking defendant’s life: Whar. on Crim. Law, § 1027; Wiggins v. The People, 3 Otto, 465; Little v. The State, H. & T. Cases of Self-Defense, 490; and also the cases cited in these authorities.
The question arises upon the evidence whether the facts proved are appropriate for the application of the rule laid down. The testimony shows, that on the morning of the 14th day of September, 1877, the defendant had taken a drove of cattle from his own residence to the land of the deceased for the purpose of- grazing, and left them in charge of his step-son, Meadows; that after the defendant left, the deceased set his dogs upon the cattle and drove a portion of them to the east of his place, a small number of the herd going the southwest; that the step-son was t0ld by the deceased, that morning, “that he had run the cattle off once, and would not run them off any more, and that he would wade in blood up to his neck before they should run on that side;” that the step-son went to the place where the defendant was and informed him of the action of the deceased, and of the threats he had made. Defendant then, in company with his step-son, started on horseback in the direction of the cattle. After starting, defendant told his step-son to go and get his shot-gun, and he would kill deceased’s “d — d dogs.” Defendant passed on to the south of Goodwin’s house, and after passing, Goodwin was seen coming up out of the ravine east of his farm. He stopped at his fence corner, where he remained until the wife of the defendant passed. At this time, Goodwin was armed with a navy revolver. After Mrs. Brown passed, he went to a field north and east of his premises, where three of the witnesses of the state, viz., House, Sprouse and Sweeney, were at work. Upon entering this field, Goodwin removed his revolver and put it in a wagon close by, and engaged in conversation with the parties there. Brown, upon passing south of Goodwin’s house, passed out of sight of these witnesses, and did not come into sight again until Goodwin had come into the field were they were and removed his revolver. After Goodwin had been in the field a short time, the witnesses saw Brown coming out of the ravine, and upon high ground a distance southeast of Goodwin’s house. He was moving his cattle to the southwest. Shortly after, Goodwin went to the wagon, got his revolver and started south, passing out of sight of the persons in the field. After Goodwin left the field, the witness, Sweeney, left his comrades and went to the western part of the field. He testified that Brown was riding a roan pony in a northwest direction;' that Goodwin was on foot going southwest; that Brown stopped first, then Goodwin stopped; that they were about seventy-five or one hundred yards apart. About this time, witness stooped to pick up a fork, and while in a stooping position, he heard a shot fired, but did not know who fired it; he then heard a second shot fired, but did not know who fired it. The first shot sounded to him like a gun, and the second didn’t sound as loud as the first. After the second shot was fired, he saw Brown dismount and fire a shot across his pony toward Goodwin. He noticed after this shot that Goodwin mashed down a little to the ground, and soon started toward his house, which was distant about two hundred and fifty yards. Brown mounted his horse and went to his wife and step-son not far off, and then turned his horse about a little northwest, and rode down near where Goodwin was getting into the road, and the last witness saw of them they were not over forty yards apart, both going in a northeast direction. While out of sight of witness, he heard another shot in their direction. The witnesses Sprouse and House testified that they heard the three shots fired, but did not see who fired them; that when they came in sight of the parties, Brown was riding toward his wife and boy, and Goodwin was walking toward his house; that Brown then turned his horse and rode near the path of Goodwin; the latter checked up, and Brown stopped at the same time and fired at Good win. This was the fourth shot they heard. Goodwin soon sank down and died. These two witnesses reached him before his death; his revolver was in his hand, and upon being interrogated by House, “ Why he permitted himself to be shot up so ? ” replied, “ My pistol snapped.” Mrs. Brown, the wife of the defendant, testified that when Goodwin crossed the track of Brown he drew his revolver in front and fired three times — twice before Brown got off his pony, and once just as Brown fired; that she was in plain sight of both parties, being fifteen or twenty yards behind Brown, and Goodwin being fifty or sixty yards distant from him; that after this shooting, Brown came to her, and Goodwin started home. Brown said to her, “I believe I am shot through the thigh,” and she said, “Let’s go to pa’s” (meaning his father’s), which was about three-quarters of a mile away. They started for Brown’s father’s, and as Goodwin got up near the fence, in the road they were traveling, he stopped and turned from the way he was going and fired, and Brown fired again. The evidence of Meadows corroborated the statements of his mother, Mrs. Brown, to the effect that Goodwin fired the first two shots and Brown the third, and that at the second encounter Goodwin raised his hand, and two shots were fired about the same time. Both say Brown was slightly injured in the leg by one of the shots of Goodwin. The testimony shows that Brown had no other fire-arm except the double-barreled shot-gun, and that he did not load it at any time during the fray. The revolver of Goodwin was examined after his death: four chambers were empty — two loaded, but no caps on. Some of the witnesses thought only one load had been discharged recently, as the other chambers were rusty; others thought two loads had been lately discharged.
Erom this brief résumé of the testimony, some of which is conflicting, it is evident that the question whether the defendant or the deceased commenced the encounter is in doubt —at least, the evidence upon the point is very contradictory. The theory of the defense on the trial was, that Goodwin sought the first meeting and began the combat, firing two or three times, and that he commenced the second encounter by firing upon Brown as he was on his way to his father’s to have his injuries attended to. As the acts of the deceased in reference to the two meetings are of a doubtful character, considering all the evidence, within the rule stated the uncommunicated threats were admissible.
Again, the rejection of these threats was error, as evidence of communicated threats had already'been admitted, and in
such cases it is competent for the purpose of corroborating this testimony to introduce evidence of uncommunicated threats. (Cornelius v. Commonwealth, 15 B. Mon. 539; Holler v. State, 37 Ind. 57.) What effect the jury should give to the proof of these threats would depend upon their opinion of the entire facts and circumstances. They should be particularly instructed, that previous threats, no matter of what character, would not of themselves justify the defendant in killing the deceased; that the uncommunicated threats are admissible to show the animus of the deceased, to illustrate his conduct and motives, and in case of doubt as to the acts of the parties at their two encounters, as tending to show which one began or provoked the shooting; and if communicated threats shall again be given in evidence, the jury may consider the uncommunicated threats as tending to corroborate this testimony.
The only other assignment of error that we care to notice is the misconduct of the bailiff, who entered the jury room while they were engaged in deliberating upon their verdict, and read the jury a portion of the instructions of the court. The affidavit of this officer, that he read these instructions at the request of the jury because they were unable to read them, does not excuse or justify his conduct. His acts were in direct violation of his oath of office. He was sworn not to permit any person to speak or communicate with the jury, nor to do so himself, unless by order of the court, or to ask them whether they had agreed upon their verdict. As he violated his oath in reading the instructions, how can we say his testi mony, that he read the instructions correctly, is to be believed? He is not under the circumstances a credible witness. We cannot say whether the rights of the defendant were prejudiced or not by this action. The officer deserves punishment by the court; and any verdict returned after such procedure on the part of a jury ■and bailiff ought to be set aside, as soon as the fact comes to the knowledge of the court. The general rule is, that if the ■court can see that the misconduct complained of, had or might have had in a criminal action an effect unfavorable to a defendant moving for a new trial, the verdict should be set aside.
We repeat what we said in the case of the State v. Snyder, 20 Kas. 306: “We cannot be too strict in guarding trials by jury from improper influences, and in compelling a rigid and ■vigilant observance of all the provisions of the statutes tending to preserve the purity of such trials.” If no error had been committed in the rejection of testimony, we would have been compelled to have set aside the judgment and sentence •of the court on account of the conduct of the bailiff and jury.
It is therefore ordered, that the verdict of the jury and the ■sentence and judgment of the court be annulled and avoided, and the case remanded for a new trial. It is further directed, that the appellant be returned from the state penitentiary and delivered over to the jailer of Chautauqua county, there to abide the order of the district court of said county.
Valentine, J., concurring.
Brewer, J., dissenting. | [
-80,
108,
-36,
-97,
43,
96,
-86,
-104,
-44,
-32,
112,
115,
-19,
-45,
85,
35,
112,
77,
85,
105,
68,
-105,
23,
65,
-14,
-13,
-110,
-43,
51,
-20,
-18,
95,
77,
96,
-54,
81,
-25,
104,
-61,
-48,
-116,
8,
-87,
-15,
-37,
16,
48,
63,
118,
7,
113,
-66,
-29,
46,
24,
-17,
-23,
40,
74,
45,
-48,
49,
-113,
15,
-51,
2,
-77,
66,
-98,
5,
122,
62,
-104,
49,
0,
-8,
115,
-108,
-122,
84,
109,
-103,
28,
102,
99,
33,
76,
-51,
-24,
-104,
47,
-2,
-115,
-89,
16,
65,
11,
12,
22,
-39,
54,
112,
-82,
-16,
-25,
92,
24,
100,
1,
-113,
-46,
-95,
-127,
60,
-98,
-8,
-13,
-89,
0,
113,
-49,
-22,
92,
101,
112,
-101,
-105,
-44
] |
The opinion of the court was delivered by
Brewer, J.:
Action of replevin. Judgment in favor of plaintiff, defendant in error, to review which this proceeding in error has been brought. Passing by all preliminary questions as to the sufficiency of the record, we pass to a consideration of the substantial matters in dispute. The case was tried by the court, without a jury, and upon an agreed statement of facts.
This statement of facts shows that on March 9th, 1876, one Charles J. Kendall was indebted to the defendant in error, Ellett, for money borrowed — $3,263.43 — and as an accommodation indorser for $2,500. To secure this, Kendall ‘executed to Ellett the chattel mortgage set out in the reeord, which was recorded in the proper office on March 10th, 1876. This borrowed money became due about May 9th, 1876. The notes on which Ellett was indorser became due respectively about March 24th, 1876, and about April 14th, 1876. About May 13th' 1876, Tenant, Walker & Co. ■sued out an attachment against said Kendall, which came into the hands of plaintiff in error, an officer, and on said day a portion of the property so mortgaged was seized by said officer, under said attachment; and thereupon this action of replevin was commenced by Ellett, an order of delivery duly issued, and the said attached property taken and delivered to Ellett. The decision of this case depends upon the question as to whether or not this mortgage is valid. The stipulations in the chattel mortgage, so far as material, are in these words:
“The property sold is to remain in the possession of the said party of the first part until default be made in the payment of the debt and interest and indorsed notes aforesaid, or some part thereof; but in case of a sale or disposal, or attempt to sell or dispose of the same, or a removal of or attempt to remove the same from said county of Osage, or an unreasonable depreciation in the value, or if from any other cause the security shall become inadequate, the said party of the second part may take such property, or any part thereof, into his possession; and upon taking such property into his own possession, either in case of default or as above provided, said party of the second part shall sell the same at public or private sale, and after satisfying the aforesaid debt and interest thereon, and all necessary and reasonable costs, charges and expenses incurred, out of the proceeds of sale, he shall return the surplus to said party of the first part, or his legal representatives; and if from any cause said property shall fail to satisfy said debt and interest aforesaid, said party of the first part hereby agrees to pay deficiency.”
It is admitted that the notes secured by said mortgage represented a valid and bona fide indebtedness of said Kendall. There is no admission' that, at the time said mortgage was executed, Kendall had or ever entertained any idea or intention, by its execution or otherwise, to hinder, delay or defraud his creditors; nor is there any evidence of any such idea or intention, unless it can be said, as matter of law, from all the facts in the agreed statement, that he had such intention.
It is agreed that Ellett had no knowledge, at the time the mortgage was given, that Kendall intended either to hinder, delay or defraud his creditors, unless the facts of which he did have knowledge should be deemed knowledge of such intention, and that he took the mortgage in good faith for the purpose and with the intention solely of securing his said claim against said Kendall, unless the facts stated show a want of good faith.
The only other facts in the statement that can be material, are: That at the time the mortgage was given, Kendall owed several parties in different amounts, aggregating about $1,850; that the mortgage in question covered all Kendall’s property except about $2,000 in accounts, $1,600 of which were considered by Kendall to be good, and three town lots valued at $27.50. Ellett had knowledge that some of these claims were sent to the bank of which he was president for collection, and that K. could not pay his indebtedness in the usual course of his business. At this time K. made an effort to get extensions from all his creditors except Ellett, and before he got these extensions Ellett consulted an attorney, under whose advice the mortgage was given, said attorney informing Ellett that if the mortgage was duly filed for the period of two months the lien created by it would be valid. The mortgage was executed. Kendall got his extensions “under the impression and with the hope that before said indebtedness could again mature, he would be able to sell his entire stock of goods and pay his debts, and with the hope of avoiding the-odium of having failed in business.” Kendall did not inform these creditors that he was about to give this mortgage. After the execution of said mortgage, Kendall, with the consent, knowledge and agreement of Ellett, continued in his business of general merchant, and with Ellett’s consent and agreement held and controlled said mortgaged goods, disposed of the same in the usual way, received and controlled the proceeds and made deposit thereof, amounting to $1,350, in the Osage City Savings Bank, in the name of Ellett, for the purpose of having the same applied to the refunding to Ellett money advanced by him to. take up the note of $2,000 to said bank, upon which Ellett was accommodation indorser as aforesaid, and which $1,350 was so applied. Kendall was permitted to buy goods to replenish the stock, and check upon Ellett’s account in said bank to pay for same, and did so check to the extent of about $400 for a few necessary staple goods to keep said stock in order, which goods were bought and shipped in Kendall’s name, and placed in his store-room with the said mortgaged goods, but were always so kept by K. separate from the mortgaged goods. Kendall also, with the knowledge and consent of Ellett, used groceries and goods out of his store and said mortgaged goods and money derived therefrom, necessary to support his family from the time the mortgage was given, March 9, 1876, to May 13, 1876. It may be added that Tenant, Walker & Co., and said plaintiff in error, had actual notice and knowledge of said mortgage at the time of said levy under the attachment, and that Ellett protested against the levy.
The statutes of Kansas that have any bearing upon this subject, are § 3 of the act for the prevention of frauds and perjuries, which reads: “Every sale or conveyance of personal property unaccompanied by an actual and continued change of possession, shall be deemed to be void, as against purchasers without notice, and existing or subsequent creditors, until it is shown that such sale was made in good faith and upon sufficient consideration. This section shall not interfere with the provisions of law relating to chattel mortgages.” And § 9 of art. 2, of ch. 68: “Every mortgage, or conveyance intended to operate as a mortgage, of personal property, which shall not be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be forthwith deposited in the office of the register of deeds in the county where the property shall then be situated, or, if the mortgagor be a resident of this state, then of the county of which he shall at the time be a resident.”
The first proposition of counsel for plaintiff in error is, that as the possession of the mortgaged property was retained by the mortgagor, the mortgage, although duly filed in the ■office of the register of deeds, must be deemed to be void as .against creditors, until- shown to have been made in good faith and upon sufficient consideration, and that no such ■showing having been made, the district court erred in not holding the mortgage void. In other .words, he contends that the same rule applies in mortgages as in sales, and that retention of possession is presumptive evidence of fraud; that the failure to deposit the mortgage in the register’s office renders the instrument absolutely void, while the depositing ■does not make it even prima facie valid. Depositing is absolutely essential to the validity of a chattel mortgage; without it none can be enforced against creditors. Delivery of possession of the mortgaged property, or proof of good faith and sufficient consideration, is also essential; so that a mortgagee must prove more than a vendee. A party-who claims only a lieu, must do more to make his lien good than one who •claims full title. Of course, á legislature may so order, but its language should be explicit. A doubt would be solved against an intention to so order.
In support of his views, counsel has furnished us with an elaborate argument, fortified by an abundant citation of authorities. Yet we cannot agree with his law or assent to his view of the facts. An examination of the authorities would be useless; to reconcile them is impossible. It will be sufficient to state our conclusions, and refer to a few of the leading authorities sustaining them.
There is nothing inhérently vicious or against public policy in a mortgage. The right to mortgage-is an incident to ownership. As a man may sell; so may he mortgage his personal property. Possession is not an essential element of title.' A man' may own property in another’s possession. This is universally recognized in cases of loan, agency, and bailment; and the owner, in such cases, does not forfeit his title, or the right to assert and protect it even against third parties, by tbe mere fact of non-possession. If an owner may surrender his possession without losing title, why may not one acquire a good title without acquiring possession ? Must the origin of title be accompanied by possession, to make it perfect against third parties ? There seems to be no-sufficient reason therefor. A failure to deliver possession may be evidence tending to show no sale, or a lack of good faith; but as a delivery of possession is not essential to a transfer of title, a want of it is not conclusive evidence that there was no sale. A sale or mortgage is good inter partes without delivery of possession; so the authorities agree. If it is void as against creditors, it should be because some wrong is thereby done to them; but if the transaction is in good faith, and they have notice of it, wherein are they wronged ? If they claim that they are wronged, ought .they not to prove the fact ?
A mortgage is a lien. The grantor does not purport to transfer his entire interest. He retains all not necessary to perfect the security. Possession may be of little benefit to the grantee, but of great benefit to him. Why should he, after notice is given to the world of what has been done, be compelled to surrender that which is of so much benefit? A mortgage differs from a pledge, in that possession is necessary to perfect the latter, and not the former. If possession is not necessary, why should a lack of it' be held a wrong? Why should that which is right in and of itself be considered evidence of wrong ?
But it may be said that third parties, presuming title from possession, may be misled, to their prejudice. But with notice, they cannot be misled. Eegistration is notice.
Again, it is said that such a transaction may be used as a cover for wrong. So may almost any transaction. A delivery of possession is not conclusive against wrong. Why should a legitimate transaction be condemned because improper use may be made of it ? But the statute concerning sales says a failure to deliver possession is prima fade evidence of wrong as against creditors. True; but in sales there is no registration, and therefore no notice. In mortgages, there is registration and notice.
Again, the statute impliedly grants the right to stipulate, for a retention of possession by the mortgagor: (Gen. Stat., p.585, §15.) Can that which the legislature authorizes to be done be construed to be evidence of wrong? Can an act done in pursuance of law be adjudged fraudulent per se, or even evidence of fraud ?
Briefly, then, we hold that the statute authorizes a stipulation in a chattel mortgage for a retention of possession by the mortgagor, and that a possession retained in. accordance with the terms of such mortgage is do not, when the mortgage is duly filed, per se fraudulent, or even prima faeie evidence of fraud, as against creditors or subsequent purchasers. Gay v. Bidwell, 7 Mich. 521; People v. Bristol, 35 Mich. 28; Hughes v. Cory, Adm’r, 20 Iowa, 399; Smith & Co. v. McLean, 24 Iowa, 322; Briggs v. Parkman, 2 Metc. (Mass.) 258; Jones v. Huggeford, 3 Metc. (Mass.) 515; Googins v. Gilmore, 47 Me. 9; Brett v. Carter, U. S. Dist. Ct., 3 Cent. Law Jour. 286; Hunter v. Corbett, 7 Upper Canada, Q. B. 75; Bullook v. Williams, 16 Pick. 33; Forbes v. Parker, 16 Pick. 466; Shurtleff v. Willard, 19 Pick. 211; Miller v. Whitson, et al., 40 Mo. 97; Harrington v. Brittan, et al., 23 Wis. 541; Call v. Gray, 37 N. H. 428; Robinson v. Elliott, 22 Wall. 513; Golden v. Cookril, 1 Kas. 267. Neither can we concur in the view taken by the learned counsel of the facts. They having been agreed to, this court can consider them. as readily and fully as the district court. (K. P. Rly. Co. v. Butts, 7 Kas. 308.) And our conclusion agrees with that of the district court, rather than that of counsel. We think the facts show good faith and sufficient consideration. The latter is not disputed. It is admitted that the debt was a valid subsisting debt, one that Kendall was justly bound to pay. Nor is there any suggestion even that the mortgage was given to secure more than the actual indebtedness. Being an honest debt, Kendall had a right to prefer it, and Ellett a right to seek a preference, even though such preference paid his debt in full, and left the other creditors nothing. (Cuendet v. Lahmer, 16 Kas. 527.) Did Kendall intend to defraud his other creditors? That he preferred his largest creditor, though á relative, is not evidence of such intention. The exercise of an undoubted right does not show wrong. He sought an extension of the other claims, but he did this in the hope of selling his entire stock and paying all claims. There is nothing to show that this was not a reasonable and justifiable expectation. If so, it does not indicate an intention to defraud. He continued in business, and the proceeds of the sales, with the exceptions to be hereafter noticed, were applied to the payment of his preferred creditor. This does not look like intent to wrong. If he had appropriated the proceeds of such sales, or squandered them, such conduct might be significant of wrong; but applying them fairly and honestly to the payment of his debts, although all went to one creditor, shows honesty of purpose. Again, while the mortgage covered doubtless the bulk of his property, he retained, uncovered by its lien, property deemed by him of sufficient value to nearly discharge all other indebtedness. This again looks like honest dealing. It shows he was not seeking to cover his entire property. That he was doing something of a business, is evident from the amount of his cash sales and payment on Ellett’s debt; and it would seem a not unreasonable expectation that if he was permitted to continue his business, he would soon be able to discharge all his indebtedness. But further, whatever may have been his secret thought; Ellett had no knowledge of any intent to defraud his other creditors, unless, as stated, such knowledge can be implied from knowledge of the other facts stated. What are they? That he was indebted to other parties: that would be good reason for seeking security and preference, but would not imply either wrong intent on Kendall’s part, or knowledge of such intent in Ellett. That Kendall was seeking and obtaining extensions : but that would seem to be the best way consistent with security and preference to Ellett of paying such creditors. To stop business, and turn his property over to Ellett, to be closed out at forced sale, would not apparently inure to the interest of such creditors, or leave much for the payment of their claims. So far as can be gleaned from the facts stated, it would appear that Kendall was-pursuing the best policy consistent with his undoubted right to prefer Ellett — of protecting his other creditors; and Ellett’s knowledge of these facts cannot fairly be tortured into knowledge of a secret intent of Kendall’s to defraud them.
Again, Kendall was permitted to replenish his stock; but the character of the goods purchased, the manner in which they were purchased and paid for, and subsequently held by-Kendall,. strongly indicate good faith. Only a few necessary staple goods .were purchased. Such purchases are always necessary to keep up the business and sell the other goods. Where all staple goods are sold, and their places not supplied, every one knows that business will fall away from the store, and that the sale of the other goods becomes slow, difficult, and generally at reduced prices; so that by such purchases Kendall was pursuing the very best course to enable him to realize the most out of his stock. Surely this does not indicate a purpose to let his creditors slip, and defraud them of their debts.
Again, the goods so purchased were not commingled with the mortgaged goods, but kept separate; and they were paid for by a new and unsecured loan from Ellett. To that extent, Ellett was foregoing his security and entering the list of unsecured creditors. It is as though Ellett was releasing some of the mortgaged goods from the servitude of his lien, and thus enlarging the amount of property available to the general creditors. Such conduct, so far from being evidence of bad faith, is very strong evidence to the contrary.
And it must further be borne in mind, that this was not part of the mortgage stipulation, but by virtue of a subsequent arrangement. It means simply that Ellett was willing to loan him $400 without security, to help him keep on -in business and make the most profitáble-.conversion of his property into cash. Finally, Ellett permitted him to support his ■family out of the store and proceeds of sales. There is no agreement to this effect in the mortgage; still, it was done .with Ellett’s knowledge and consent. It does not appear how much was so used in the support of the family; it does appear that Kendall remained in charge of the goods, and continued the business. Such services some one must render to convert the goods into money, and such services call for compensation. If the business of reducing the assets to cash was ■ pursued as steadily and rapidly as was consistent with ■obtaining fair value for them, and if the amount used for the support of his family was only half what would be reasonable compensation for the services, it is difficult to see how the creditors were wronged, or how such conduct could be .held evidence of wrong intent. Of course, circumstances .might be such that the appropriations from the store for support would cast grave. suspicions on the bona fides of the transaction, but even then it would be simply one fact to be weighed with others. And where the simple fact appears •that goods were used out of the store for the support of the one employed in making sales, with no statement of amount so used, or the value of such services, such fact can have little weight, and certainly cannot overthrow an otherwise admitted good faith. So that if the burden of proving good faith rested upon the mortgagee, we think the admitted facts show such good faith.
Another proposition of counsel is, that conceding good faith, the mortgage must be held invalid, because by agreement outside the mortgage the right to dispose of the goods and use the proceeds in support of his family was reserved to the mortgagor. It is claimed that, though the parties act in the utmost good faith, still the law will not . . ... , , sanction a transaction like that. Again we mus.t © dissent from counsel. We think the rule to be, . i . j , . . ■» that where a mortgage is given upon a stock ® r of goods, and by agreement outside the mortgage the mortgagor is permitted to continue the business and dispose of the goods in the ordinary way, and use some portion of the proceeds in the support, of his family, the transaction will be upheld or condemned according as it is ■entered into and carried out in good faith, or not. The mortgagor, if he may keep the possession, may as well make the sales as a stranger. He acts in that respect as a quasi agent at least of the mortgagee, and as- such agent and salesman is entitled to compensation for his services. Doubtless such arrangements are liable to abuse, and should always be closely •scanned; but still, they are not absolutely and in all cases to be adjudged void as matter of law. See, in support of this, the authorities heretofore cited.
There being no other question in this case, the judgment will be affirmed.
Valentine, J., concurring. | [
-78,
106,
-40,
-66,
74,
96,
42,
-102,
50,
-87,
-89,
-13,
-23,
-125,
16,
45,
118,
109,
117,
122,
68,
-77,
23,
-56,
-46,
-13,
-47,
-43,
-79,
76,
-28,
87,
72,
32,
-54,
85,
102,
-22,
-63,
-108,
-114,
-124,
40,
-28,
-39,
8,
48,
43,
84,
10,
113,
14,
-13,
42,
29,
79,
105,
44,
-37,
57,
-16,
-16,
-98,
-115,
123,
7,
-79,
38,
-40,
69,
-56,
62,
-104,
113,
0,
-24,
127,
-90,
-122,
84,
7,
-101,
9,
98,
103,
34,
33,
-17,
-80,
-120,
46,
-38,
-83,
-90,
-109,
88,
67,
107,
-66,
-99,
125,
0,
7,
124,
-29,
-107,
25,
108,
1,
-102,
-42,
-77,
15,
60,
-104,
3,
-1,
-107,
48,
113,
-49,
-24,
93,
-57,
58,
-101,
-98,
-4
] |
The opinion of the court was delivered by
Valentine, J.:
Where a railroad company is sued by one of its employés for injuries received by him while in the-service of the company, and on the trial of the case no negligence is shown to have existed on the part of either the railroad company or any of its employés other than the plaintiff, we would think that the plaintiff could not recover, and that the court might rightfully and properly sustain a demurrer interposed by the defendant to the plaintiff’s evidence, and that the court might then rightfully and properly render judgment in favor of defendant and against the plaintiff for costs; and if we are right in this, the judgment of the court below must be affirmed. The facts of the case are substantially as follows:
On July 9, 1877, the plaintiff was employed by the defendant (the Atchison, Topeka & Santa Fé Railroad Company) as a common laborer in loading stones upon flat cars and in pushing these cars by hand upon a side-track of the defendant’s railroad. In the performance of this labor, it was necessary to pass over an embankment about fifteen or twenty feet high, and across a bridge twenty or twenty-five feet high, A recent rain had caused the ground to be slippery, and had washed out a small place in the side of the embankment next to the bridge, about three or four feet in width. The plaintiff, together with about fourteen or fifteen co-laborers, had pushed one ear over this place and upon the side-track in safety, and were taking the second one over when the plaintiff slipped and fell, and the car wheels of the hind truck passed over his left hand, severing part of the hand and three fingers, leaving only his thumb and fore-finger. The plaintiff slipped at the place where the embankment was washed out, and to save himself from falling placed his hand where the car wheels passed over it as aforesaid. The first car was taken over the embankment and across the bridge in the same manner that the second car was. The plaintiff testified on the trial concerning this, as follows: “I was hurt pushing over the second car; had helped to push another car over prior to getting hurt. I occupied substantially the same position in pushing the first car that I did on the second one. I saw both the bridge, track, embankment and stream, going over with the first car, and also saw them again on my return for the second car. It was in the daytime; the sun was shining.” Previously to this time such cars had been drawn by engines. There was no evidence tending to show that any employé of the railroad company,, other than the plaintiff, was negligent. The plaintiff’s action was brought to recover for said injury to his hand.
On the trial he proved the foregoing facts. The court then sustained a demurrer to the evidence, and rendered judgment against the plaintiff and in favor of the defendant for costs; and such judgment must be affirmed.
All the Justices concurring. | [
-16,
106,
-44,
-113,
58,
106,
35,
-102,
113,
-125,
-91,
83,
-51,
-53,
1,
123,
-10,
63,
-44,
51,
-10,
-77,
7,
-94,
-110,
-45,
-13,
-52,
-77,
106,
102,
-42,
77,
48,
74,
-43,
-26,
72,
65,
94,
-50,
36,
-88,
-20,
25,
16,
48,
122,
68,
79,
49,
-98,
-37,
42,
24,
-21,
45,
56,
107,
41,
-64,
113,
-118,
5,
117,
16,
35,
36,
-98,
39,
-24,
30,
-104,
49,
0,
-8,
114,
-90,
-125,
-12,
105,
-87,
8,
-30,
99,
33,
21,
-57,
124,
-72,
47,
-14,
-115,
-90,
50,
24,
11,
13,
-97,
-99,
82,
6,
7,
126,
-10,
93,
29,
44,
3,
-117,
-78,
-78,
-33,
34,
-106,
-29,
-53,
-83,
34,
97,
-60,
-78,
93,
69,
82,
-101,
-97,
-98
] |
The opinion of the court was delivered by
Marshall, J.:
The state on the relation of the county attorney of Wyandotte county prosecutes this action against the board of county commissioners of that county to test “the constitutionality of chapter 110 of the Laws of 1923 relating to the sale of the courthouse site in Wyandotte county, Kansas, and . . . the legality and sufficiency of the proceedings had in connection with the sale or attempted sale of the said site, and particularly the sufficiency of the publication in connection therewith.”
The cause is submitted by a motion for judgment on the pleadings. They with the stipulations show the following facts: Wyandotte county owns certain described real property which was formerly occupied by the county for a courthouse. A new site has been acquired under the provisions of chapter 110 of the Laws of 1923, and a new courthouse has been erected thereon. On January 5,1928, the board of county commissioners, acting under sections 3 and 4 of that law, sold the old courthouse site at public sale to W. J. Breidenthal, for $180,500, ten per cent of which has been deposited with the county clerk by certified check. Notice of the sale, fixing January 5, 1928, for the day of sale, was published for ten consecutive weeks immediately preceding the day of sale in the Kansas City Weekly Press, the official paper of Wyandotte county, a weekly paper published in that county. The first publication was on October 28, 1927, and the last was on December 30, 1927. Notice was also published for seven consecutive issues, the first of which was on December 19, 1927, in the Kansas City Kansan, the only daily paper published in Wyandotte county.
The plaintiff contends that chapter 110 of the Laws of 1923 is unconstitutional and void because it violates section 17 of article 2 of the constitution of this state, in this—
“That although in form the act is general, the said act at the time of its enactment and up to the present time is only applicable to a single county, viz., to Wyandotte county.”
Chapter 110 of the Laws of 1923 is a sequel to chapter 155 of the Laws of 1921, under which Wyandotte county proceeded to build a courthouse in that county. That law authorizes “the board of county commissioners of any county having a population of one hundred and ten thousand or over ... to erect, construct or reconstruct a courthouse.” The validity of that law was assailed for the same reason that is now urged against the validity of chapter 110 of the Laws of 1923. In Harling v. Wyandotte County, 110
Kan. 542, 546, 204 Pac. 763, concerning the validity of chapter 155 of the Laws of 1921, this court said:
“There is no merit in the contention that the act violates section 17 of article 2' of the state constitution, which requires all laws of a general nature to have a uniform operation throughout the state. While the act can apply at this time to Wyandotte county alone, it is general in form, and, theoretically at least, applies to a class of counties; that is, it will apply in the future to all counties which attain the population prescribed in the act.”
The law now questioned authorizes “the board of county commissioners of any county having, or which may hereafter have, one hundred twenty thousand inhabitants or more ... to proceed to acquire a new courthouse site either by purchase or donation, but if unable to acquire suitable site by purchase or donation, may proceed to acquire the same by condemnation." This language is so nearly the same as that used in chapter 155 of the Laws of 1923 that what was said concerning that act applies to the one now under consideration and must be followed. Chapter 110 of the Laws of 1923 does not violate section 17 of article 2 of the constitution of the state of Kansas.
Was notice of the sale published as required by chapter 110 of the Laws of 1923 ? The first part of section 4 of the act concerns the publication of notice of the sale. That part reads:
“The sale of any property under the provisions of this act shall be a public vendue at the office of the board of county commissioners, public notice of such sale having been given for at least sixty days in the official county paper, and in each daily paper published in said county.”
The notice of sale was published for sixty days in a weekly newspaper, the official paper of Wyandotte county, but not for sixty days in any daily paper published in that county. Was sixty days’ publication in the daily paper necessary? The answer to that question depends on the interpretation of the language used in the statute. That language is not clear. It may mean sixty days’ publication in each daily paper or it may mean one publication in each of such papers. General notice of the sale is the result to be attained. Sixty days’ publication in the official paper accomplishes that result, but the statute requires more than that. The notice must be published in each daily paper published in the county. Continuous publication in daily papers for sixty days would not add much to public notice of the sale. One publication in each daily paper would give to all interested in the county notice of the sale. More than that is not necessary, and more than that is not required by the statute. Publication in the official paper for sixty days is the important notice. Publication in the daily paper's is added to give additional publicity to the matter. The court concludes that the notice was published as is required by statute.
Judgment is rendered for the defendants. | [
-12,
-18,
-12,
92,
26,
-62,
112,
-104,
0,
-79,
36,
83,
-23,
-54,
0,
127,
54,
45,
85,
121,
-64,
-74,
27,
-117,
-106,
-13,
91,
-57,
-5,
93,
-10,
-10,
76,
33,
74,
-107,
-122,
98,
-123,
28,
-50,
-128,
-119,
-60,
64,
-64,
60,
107,
68,
75,
21,
39,
-13,
41,
28,
67,
-56,
44,
-53,
-94,
65,
-80,
-102,
-105,
125,
22,
1,
35,
-104,
-125,
72,
-82,
-104,
53,
4,
-20,
119,
-74,
-122,
-12,
101,
-39,
40,
-10,
111,
99,
28,
-17,
-24,
-72,
14,
115,
-99,
-89,
-110,
88,
99,
40,
-98,
29,
125,
80,
67,
114,
-29,
5,
-35,
108,
7,
-118,
-14,
-79,
79,
124,
-102,
19,
-5,
-127,
48,
112,
-49,
-25,
95,
115,
16,
-69,
-113,
-68
] |
The opinion of the court was delivered by
Dawson, J.:
This is another chapter in litigation which has already received this court’s attention. See Hartman v. Wolverton, 125 Kan. 202, 263 Pac. 789, where the facts are so comprehensively stated that they need not now be repeated.
The trial court made findings of fact and conclusions of law adverse to defendant and granted a permanent injunction against his violation of the restrictive clause of the deed under which the property had been conveyed to him.
Defendant appeals for the purpose of getting this court to explain the meaning of the restrictive clause—
“No residence costing less than twenty-five hundred dollars shall be built on any lot in this addition or any subdivision thereof.”
We think this clause so simple that it needs no interpretation and that the multiplying of words would cloud and not clarify it. As applied to this case, it means that the $800 house defendant built at the rear of the lot for a residence until he gets around to build a $2,500 house, or the $6,000 house he hopes to build sometime, is a plain breach of the restrictive clause in the deed; and the fact that other lot owners heretofore have been permitted to build temporary residences on their lots in disregard of the restrictive clause is of no consequence.
Defendant cites good law-book doctrine that restrictive clauses in deeds are to be fairly and reasonably interpreted, neither too narrowly nor too broadly. Of course that is the law. And in consonance therewith we are bound to hold that an $800 residence, although designed eventually to be used as a poultry house, violates the textbook rules of interpretation invoked by the appellant.
The judgment is affirmed. | [
-29,
122,
-44,
126,
-102,
34,
56,
-46,
81,
-92,
-90,
95,
111,
-40,
-108,
35,
-9,
121,
80,
107,
85,
-77,
55,
-14,
-10,
-13,
-109,
-43,
-71,
77,
-26,
-97,
76,
33,
-62,
-9,
102,
10,
85,
-48,
14,
-121,
-120,
69,
-47,
66,
52,
31,
68,
14,
21,
-33,
-13,
44,
25,
-53,
40,
44,
-53,
45,
-111,
-8,
-98,
13,
127,
7,
-80,
38,
-100,
71,
-8,
64,
-112,
25,
1,
-24,
115,
-90,
-106,
124,
79,
-101,
41,
34,
98,
2,
105,
-17,
-24,
-104,
14,
-9,
45,
-90,
-110,
24,
-93,
40,
-65,
-97,
116,
32,
4,
126,
-26,
29,
91,
125,
7,
-121,
-44,
-93,
-115,
56,
-104,
64,
-17,
3,
49,
113,
-57,
-90,
92,
-46,
115,
-101,
-97,
-34
] |
The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a promissory note. The defense was that the note was given under duress. The court directed a verdict for plaintiff. Defendants appeal.
In February, 1923, defendant E. I. Sifers committed a gross fraud upon P. J. Kealy, whereby Sifers received the equivalent to him of $6,365. When confronted with the fraud and asked to make reparation, he replied with the flippant falsehood that he had made a fair bargain. Kealy said that if Sifers did not respond with cash, Kealy would see the county attorney and would cause Sifers some trouble. Sifers refused to pay. Kealy complained to the county attorney of Jackson county, Missouri, and on May 12, 1923, the grand jury returned an indictment charging Sifers with fraudulently and feloniously obtaining from Kealy. a certain warrant forthe sum of $6,365. Sifers was not brought to trial, and in February, 1925, he made a settlement with Kealy. The terms of settlement were worked out by attorneys for the parties. A written memorandum of settlement was' prepared, and, pursuant to it, Sifers gave his note for $3,289.23, payable one year after date, with interest at six per cent per annum. Sifers’ wife signed the note. The criminal action was dismissed. In February, 1926, Sifers paid interest on the note and arranged for its renewal. In March, 1927, he' forwarded a check to pay interest on the note pursuant to an understanding regarding its renewal, but having consulted an attorney he discovered he had a defense to the note, and he permitted the check to be protested.
Sifers employed an attorney when he was indicted. The attorney was a good lawyer and advised him respecting his rights. In his own mind Sifers was not guilty and owed Kealy nothing, and his attorney advised him he could not be convicted; but he distrusted the Jackson county, Missouri, court. Kealy was an influential man, and they did not always do -things just right down there. So in terror that he might “go over the road” under the musty indictment, he went to the office of his attorney, and with nobody present but himself, his wife and his lawyer, but with a will paralyzed by fear, he signed the note. The pang caused by the indictment did not subside until he signed the note. During the two years prosecution lagged; he hardly knew what he was doing. After the indictment was dismissed, his mind was still affected. He was in continual fear of consequences of something for another two-year period, and until he consulted his last-lawyer. Whatever he did about the note was not of his free will.
At the time of the trial Sifers was thirty-four years old. He had been in business for fifteen years. He was in the road-building business when he committed the fraud. He operated three companies and did business on a large scale. At the time of the trial he was manager of the Wichita branch of the Sifers Candy Company, which did approximately $100,000 worth of business a year. He was married on October 7, 1922, and he asked no special consideration on the ground he was feeble-minded.
Sifers did some road work in Osceola, Ark., and claimed the sum of $11,000 was due him. Kealy sold rock asphalt to Jackson county, Missouri, and was paid with a warrant for $6,365, payable out of road funds to be collected the next year. Sifers owed the Magnolia Petroleum Company for road-building material, and the Petroleum company was pressing for payment. Kealy turned over his warrant to Sifers at a discount of ten per cent, and Sifers turned it over to the petroleum company at par. Sifers agreed to pay Kealy for the warrant the sum of $5,789.70 in cash out of the funds then due him from Osceola. Kealy testified as follows:
“For the warrant, he agreed to give me cash, which he stated was immediately due him from Osceola, Ark. The representative of the Magnolia Petroleum Company was in his office insisting that something be done that day. Sifers told me that the council had something to do with the paying of this money at Osceola, and it had been a matter over which there was some controversy; that the controversy had been settled and he was about to receive his money in two or three days. For me to make certain of that fact, he suggested for me to call, as I understood him to say, the city attorney of Osceola. So I called the attorney on the long distance phone, and he told me this was due Sifers and would be paid in a few days. I pressed him as to just when, and he stated that he couldn’t state definitely, but certainly not later than Wednesday or Thursday of next week. Thereupon I gave Sifers the warrant, and he gave me a statement in which he agreed to pay this sum of cash. . . .
“The following week I didn’t receive the cash. I again called on Mr. Cochran, who I thought was the city attorney, and he said there had been a slight hitch and it would be a day or two more, and days dragged into weeks, and weeks into years, and to this day I have never had a settlement out of Osceola. Later on, I would judge in April, I went to Osceola and then for the first time found that Cochran is not the city attorney but Mr. Sifers’ attorney, and this money was not due. It was not payable. ... I told Sifers that he had misrepresented the situation to me in several particulars: First, there were assignments and attachments against the account; second, it was not cash that was coming to him, but this was a bill payable after five years; and third, that Cochran was his attorney and not city attorney, and that I wanted the matter straightened out; that I had sold him the warrant for cash and he had used it for cash, and I was looking to him to settle the affair. . . .
“I instituted civil proceedings in Missouri against Sifers to collect in Mis souri and Tennessee and Arkansas and laid a complaint before the prosecutor of Jackson county.”
The written statement which Sifers signed and gave to Kealy ■reads as follows:
“In consideration of the purchase of warrant No. 3066, dated December 12, 1922, in the principal amount of $6,365 on the bridge and road fund of Jackson county, Missouri, receipt of which is hereby acknowledged, I agree to pay the sum of $5,789.70 in cash for said warrant out of the amount now due and payable to E. I. Sifers, operating as the Arkansas Good Roads Company, from the city of Osceola, Arkansas, for work performed, and which amount now due is considerably in excess of the sum herein agreed to be paid.
“It is also hereby affirmed that there are no liens or attachments against this amount, and the said sum is free of all incumbrances; and this is an order on Judge J. T. Coston or the Osceola Street Maintenance District No. 1, of Osceola, Arkansas, for the sum of $5,789.70, or on the drawer of this order out of the amount now due and payable for work performed.”
Existence of this writing precluded Sifers from disputing his fraudulent representations, had he been disposed to do so, and he did not deny, qualify, or mitigate by explanation, any statement of fact embraced in Kealy’s narrative. Kealy’s detailed account of what occurred affected Sifers’ personal integrity, his integrity and standing as a business man, and bore directly upon an important feature of the lawsuit. In view.of the nature of the imputation and the circumstances under which it was made, the court is not disposed to quibble about it, and the inference will be indulged that culpability sealed Sifers’ lips.
Sifers’ account of the conversation with Kealy when Kealy returned empty-handed from Osceola follows:
“Mr. Kealy came to my office and stated that he was unable to collect on the order I had given him on the city of Osceola, and stated that if I wasn’t willing to give him cash in exchange for this order I had given him that he would see the prosecuting attorney and cause me some trouble, and I told him that we had made a fair trade and that I would not do that. I refused to pay him the cash he demanded and told him there was more than sufficient •due from the work we had completed to take care of the order. As I recollect there was approximately $11,000 due. I further told him that I would assist him in any way possible, but he didn’t want that.”
The law defines duress. Whether, in a. given instance, duress has been exercised is a question of fact. To constitute duress by threats the actor’s manifestation must be made for the purpose of coercing the other; must have for its object the securing of undue advantage with respect to the other; must be of such a character that it is adapted to overpower the will of the other and is reasonably adequate for the purpose; must in fact deprive the other of free exercise of will; and must cause the other to act to his detriment. The evidence to establish duress must be substantial — not merely some evidence — and the court is not obliged to submit to the jury evidence which does not measure up to the required standard of proof.
“It would not be proper to simply hold that, merely because a person who has made a contract declares under oath that he was intimidated and acting under fear and duress when the contract was made by him, the contract should by reason of his mere statement be avoided. If that rule were adopted most contracts would be avoided.” (Cornwell v. Anderson, 85 Wash. 369, 375.)
“The appellant’s testimony shows that he was knowingly guilty of moral turpitude; that the respondent claimed that he had appropriated $1,500 of its money; that it offered to settle on the basis finally agreed upon; that its officers pointed out to him that he was subject to arrest and imprisonment; that after a full discussion and after he had twice left the office and voluntarily returned, he made the settlement. It seems conclusive that, under the admitted facts, it would be trifling with the law to submit the case to a jury.” (Ingebrigt v. Seattle Taxicab & Transfer Co., 78 Wash. 433, 437.)
The criminal law may not be used -as a remedy for the collection of debt — threat of prosecution for selling liquor to coerce payment of damages for personal injury (Thompson v. Niggley, 53 Kan. 664, 35 Pac. 290). A proposition to'a debtor that he may buy off a criminal prosecution is illegal — a mortgagee proposes not to prosecute the mortgagor for selling mortgaged property if the mortgagor will pay the note. Threat of criminal prosecution may not be used to secure an unconscionable advantage — as in the typical case of an aged mother giving a mortgage on her humble home to save her wayward son from the penitentiary. These propositions are not disputed, and all the authorities agree that a note given, for example, to an employer by an employee for money embezzled by the employee may not be avoided on the ground of duress because of fear of imprisonment for the crime. There is disagreement respecting the effect of suggestion of lawful criminal prosecution in connection with effort to secure a settlement. According to one view, if the employer uses the suggestion to subdue the will of the other and forces him to make a settlement which he would not make voluntarily, the employer perverts the criminal law, made for the protection of the public, to private use; and if the suggestion, which in its nature is adequate for the purpose, does overcome the will of the employee, he is not bound by the settlement. (Morse v. Woodworth, 155 Mass. 233.) The other view is less sublimate and takes into account the natural reactions of ordinary men to the realities of life. The employer has a privilege to initiate prosecution which will result in conviction and imprisonment. This privilege is sometimes called a duty. It is not a legal duty. He is under no liability to anyone if he chooses to pocket his loss and remain silent. The so-called duty of a good citizen to take an interest in law enforcement does not make prosecution imperative. The social welfare may often be better served by refraining from prosecution. So the employer has a privilege to prosecute. He also has an unqualified right to restitution by the embezzler of the embezzled funds. He does not forfeit that right by announcing disposition to exercise his legal privilege, and he may say, “If you do not make reparation I will prosecute you criminally.” If because of the announcement, the embezzler does settle, the constraint lies in fact in the consequences of his own criminal act; and so long as the threat to prosecute is not coupled with agreement-to stifle prosecution if the employee does pay, the threat is not tainted with illegality.
The adherents to each view regard their own as supported by the better reasoning and the weight of authority. This' court is committed to the doctrine that in negotiations for settlement of the claim of a person injured by the wrongful conduct of another, it is not duress for the injured person to threaten to use the law to its full extent against the other. (Riney v. Doll, 116 Kan. 26, 225 Pac. 1059, and cases cited on page 32 of the opinion.) Logically, it would follow that if the wrongful conduct should include violation of the criminal law, it would not constitute duress to threaten the wrongdoer with criminal prosecution; but the court has not so declared, and it is not necessary to determine the matter now.
Kealy’s statement that if Sifers was not willing to give cash for the dishonored order which had been given Kealy as the equivalent of cash, Kealy would see the prosecuting attorney and would cause Sifers some trouble, did not approach duress by threats or use of the processes of criminal law for a private purpose.
Kealy’s statement did not impress Sifers, and Sifers did not pay. Kealy went to the county attorney, the indictment was returned, Sifers was arrested, and the prosecution, remained pending for about two years. Sifers testified as follows:
“During the time that the indictment was carried along, my attorney told me that Kealy and his attorney said they were going to attempt- to put me 'over the road.’ ”
That is the only statement attributed to Kealy, other than the one which has been considered, which Sifers averred induced execution of the note. It will be observed the contemplated attempt was not conditioned on Sifers’ failure to settle and had no connection with .or relation to Sifers’ civil liability. Sifers had denied liability, had refused to settle, and that was the end of that. When and to whom, the statement was made are not disclosed. When the attorney told Sifers about it is not disclosed. Kealy testified he did nothing after the indictment was returned, and there was no evidence he did anything to press or speed the prosecution after the indictment was returned. There was no evidence the county attorney or anyone else ever made any preparation to try the case, or that the indictment was on any calendar that would ever cause it to be called for trial.
No duress existed before the indictment was found. On the face of this record, the indictment was lawfully procured for a lawful purpose without trace of color of duress, and any perturbation it may have caused Sifers did not result from any wrongful invasion of his interest by Kealy. The indictment was suffered to grow stale. As a generator of fear it had lost all power to rouse genuine apprehension of peril, imminent or prospective, before the settlement was made. It could not operate unless somebody energized it, and neither Kealy nor anybody else was taking any interest in it. Sifers, testifying in his own behalf, said, “They evidently did not want to try it.” The result is, the facts disclosed were not sufficient in law to furnish a foundation on which to base a charge of duress.
“The one really substantial question, in the case is whether the court was justified in directing a verdict for the plaintiff. The action was upon an account stated. The defense was duress. . . . When it is perfectly evident from the testimony adduced that there is no foundation for a claim of duress, the court may so decide and take the case from the jury.....The parties were several days in looking over their accounts. Mutual claims and allowances were made. The defendant testified that plaintiff’s agent told him that he had committed grand larceny, and that he was liable to imprisonment in the state of New York; that he wanted him to get down to a settlement and make it good, or he would have him sent to state’s prison in New York for grand larceny; that he (defendant) became nervous, ‘and was sweating like the deuce,’ and then signed the document. The defendant was apparently a man of intelligence and business experience, thirty-six years of age. He had dealt with plaintiff nine or ten years — had sold their machinery and engines in different parts of the country. To claim that he was imposed upon and put in such fear as to be unable to understand what he was doing looks a great deal like self-stultification. The surrounding circumstances completely negative his claim of duress. Without spending further time in the discussion of the facts, we are satisfied that, upon the defendant’s own showing, the court was amply justified in the ruling made.” (Rochester Machine Tool Works v. Weiss, 108 Wis. 545, 547, 548.)
The answer pleaded want of consideration for the note, and at the trial Sifers testified as follows:
“There was no reason for my signing this note outside of the fear of this criminal prosecution, and I would not have signed it if it had not been for the criminal prosecution. There was no other consideration for the note given. ... I got nothing for the note except my indictment was dismissed.”
Sifers was mistaken. The consideration for the note was expressed in the memorandum of settlement which, after reciting the purchase of Kealy’s road warrant, to be paid for in cash out of the amount which Sifers claimed was due from the city of Osceola, continued as follows:
“And whereas, it developed after said purchase that none of said money could then be collected out of said source, and . . .
“Whereas, it is now thought that there will eventually be available out of said fund at Osceola, Arkansas, for payment to said Kealy, the sum of $2,-232.25; and
“Whereas, to make up the difference between said last named sum and said purchase price of 15,789.70, said Sifers has this day delivered a promissory note in the sum of 83,389.23, signed by himself and Elizabeth Sifers, his wife. ' “Now, therefore, it is agreed: . . .”
Other subjects discussed in the brief are not important. The judgment of the district court is affirmed.
Hopkins, J., concurs in the result. | [
-80,
-24,
-88,
127,
-118,
32,
42,
-102,
80,
-127,
-77,
115,
-23,
80,
0,
37,
112,
57,
-28,
121,
-10,
-78,
23,
91,
-46,
-13,
-15,
-43,
-79,
-35,
-28,
-41,
77,
32,
-50,
29,
70,
64,
-63,
82,
-114,
40,
-120,
-24,
121,
88,
48,
57,
84,
9,
113,
-114,
-5,
42,
60,
95,
109,
44,
106,
-71,
-128,
-80,
-99,
-123,
93,
16,
-109,
6,
-98,
71,
88,
46,
-104,
-79,
1,
-7,
54,
-74,
6,
84,
69,
-71,
12,
102,
34,
16,
-43,
-49,
-88,
-120,
46,
118,
-99,
39,
16,
72,
2,
45,
-98,
-99,
50,
81,
6,
-12,
-7,
15,
25,
104,
7,
-34,
-42,
-78,
59,
126,
30,
11,
-21,
-81,
33,
97,
-60,
52,
92,
86,
123,
-101,
-114,
-48
] |
The opinion of the court was delivered by
Marshall, J.:
The appellant, for himself and six hundred and seventy-one others, prosecutes this action to enjoin the defendants from entering on the tax rolls and from collecting a tax of four-tenths of a mill levied by the board of county commissioners of Franklin county for the benefit of the Franklin County Agricultural Society. Judgment was rendered in favor of the defendants, and the plaintiff appeals.
The plaintiff argues that chapter 2 of the Laws of 1927, the law under which the tax was levied, is unconstitutional because it violates section 16 of article 2 of the constitution of the state of Kansas.
The legislation questioned commenced in chapter 152 of the Laws of 1913 under a title as follows:
“An act authorizing certain counties and cities to make levies and vote bonds for certain fair purposes, to purchase fairgrounds and convey the same -as herein provided.”
That act authorized certain kinds of counties and cities to purchase fairgrounds when conditions prescribed had been complied with. No authority was given in that act to do anything but purchase fairgrounds. That act appeared in the General Statutes of 1915 as sections 10372 to 10377, inclusive. Sections 10372 and 10373 of the General Statutes of 1915 (section 1 and section 2 of chapter 152 of the Laws of 1913) were amended by chapter 190 of the Laws of 1917 under a title which read as follows:
“An act authorizing certain counties and cities to make levies and vote bonds for certain fair purposes, to purchase fairgrounds, and to convey the same as herein provided, to amend sections 10372 and 10373 of the General Statutes of Kansas for 1915, and to repeal said original sections 10372 and 10373.”
No authority was given by that act to counties or cities to do anything except purchase fairgrounds. Section 10372 of the General Statutes of 1915, as amended by section 1 of chapter 190 of the Laws of 19175 was again amended by chapter 194 of the Laws of 1919, the title to which was as follows:
“An act authorizing certain counties and cities to make levies and vote bonds for certain fair purposes, to purchase fairgrounds, and to convey the same as herein provided, to amend section 10372 of the General Statutes of Kansas for 1915 as amended by section 1 of chapter 190 of the Session Laws of 1917, and to repeal said original.section 10372.”
That act, chapter 194 of the Laws of 1919, in section 1, contained the following provision:
“Also provided further, that in any county complying with the provisions of this act, the board of county commissioners shall annually at the time set by law for making levies, levy a tax for the maintenance, paying- premiums and repairing and building improvements in a sum not exceeding one-half mill on the dollar.”
That act appears in the Revised Statutes of 1923 as section 2-207. The title to the act of 1919 and of all the previous ones indicated that the act authorized counties to make levies for certain fair purposes. That title was broad enough to include levying a tax for the maintenance of a fair, for paying premiums, and for making and repairing improvements. Section 2-207 of the Revised Statutes of 1923 was amended by chapter 2 of the Laws of 1927. The title to that act reads:
“An act relating to acquiring of county fairgrounds by purchase, lease or otherwise, providing for payment of same, amending section 2-207 of the Revised Statutes of 1923, and repealing said original section.”
The title to chapter 2 of the Laws of 1927 restricted the provisions of the act to acquiring fairgrounds and to paying for the same. That act specifically repealed section 2-207 of the Revised Statutes. Chapter 2 of the Laws of 1927 must stand or fall under its title. That title restricted the operation of the act to acquiring fairgrounds and to providing for payment for the same. The title was not broad enough to include a provision for levying a tax for the maintenance of a fair, for paying premiums, or for making, or for repairing improvements. Because the title to chapter 2 of the Laws of 1927 restricted the act to acquiring fairgrounds and to providing for payment for the same, that part of the act providing for levying a tax for any other purpose violated section 16 of article 2 of the constitution of the state of Kansas.
It was admitted on the trial that the tax sought to be enjoined was levied under the Laws of 1927 and was not levied for the purpose of procuring fairgrounds, new or any other kind, by either lease or purchase. It follows that the tax was levied without authority of law.
The defendants argue that the plaintiff did not prove that he was a taxpayer. That fact was put in issue by the pleadings, but seems to have been forgotten on the trial. The trial was on stipulation made in open court, and it seems to have been assumed that the plaintiff was a taxpayer. It appears that the only controversy was over the validity of the law.
The judgment is reversed, and the trial court is directed to enter judgment for the plaintiff. | [
-12,
-54,
-12,
60,
26,
-64,
2,
-107,
27,
-95,
-90,
83,
105,
-38,
20,
123,
-69,
-83,
52,
121,
-60,
-77,
23,
-54,
-112,
-5,
-39,
-41,
-71,
93,
-10,
86,
12,
48,
74,
-107,
102,
-30,
-123,
-100,
-114,
34,
-120,
88,
-36,
-32,
60,
43,
118,
-53,
113,
15,
-13,
40,
28,
-29,
104,
44,
-37,
53,
17,
-15,
-86,
-59,
126,
7,
49,
22,
-100,
-123,
104,
-86,
-104,
24,
64,
-24,
123,
-90,
-126,
-76,
45,
-7,
8,
102,
99,
1,
61,
-17,
-76,
-120,
14,
83,
-83,
-89,
-108,
88,
114,
-120,
-66,
28,
85,
16,
75,
126,
-30,
21,
-35,
124,
11,
-117,
-108,
-93,
-113,
116,
-128,
3,
-1,
-90,
16,
97,
-49,
-26,
94,
71,
48,
27,
-113,
-100
] |
The opinion of the court was delivered by
Dawson, J.:
The defendant was convicted of being a persistent violator of the prohibitory law and sentenced to the penitentiary for a year. His particular offense in this instance was unlawful possession of intoxicating liquor.
He assigns error on the court’s instructions touching the law of unlawful possession. The only thing notable about them-was the patient care given by the court to explain, amplify and repeat the very simple factors involved therein.
Another error argued (but not assigned) relates to the sufficiency of the evidence to prove the fact of defendant’s unlawful possession. This point is without merit, as an attentive reading of the testimony of Norman, who turned state’s evidence, shows quite clearly. That evidence was largely corroborated by that of Deputy S&ieriff Morey, County Jailer Mitchell and Bruce Cain, and, indeed, partly by the defendant’s own testimony. The only material point the jury had to decide was whether the possession of the liquor was in Norman or in defendant — a matter no longer open to debate. Doubtless the circumstantial testimony weighed heavily against defendant — particularly the fact that it was he who broke the bottle of liquor so the officers of the law would not be able to use it as evidence.
The record reveals nothing else worthy of comment, nor any tangible basis 'for this appeal, and the judgment is affirmed. | [
-16,
-18,
-35,
-97,
42,
96,
42,
-72,
81,
-121,
-10,
115,
-83,
82,
0,
107,
-79,
123,
85,
104,
-34,
-73,
23,
65,
-10,
-13,
-54,
-44,
49,
111,
-27,
-36,
12,
52,
-86,
-11,
38,
74,
-57,
-42,
-118,
-123,
-71,
65,
66,
-112,
52,
47,
70,
15,
49,
15,
-29,
46,
26,
-53,
105,
44,
75,
61,
96,
-71,
-104,
13,
79,
20,
-93,
2,
-99,
-91,
-40,
46,
28,
49,
1,
-8,
115,
-108,
-122,
116,
13,
-103,
-115,
98,
-30,
-95,
93,
-21,
-24,
-119,
63,
46,
-100,
-89,
-104,
88,
73,
109,
-105,
-3,
126,
116,
46,
-8,
-26,
84,
89,
100,
-121,
-113,
-100,
-79,
9,
44,
-62,
126,
-51,
-93,
16,
85,
-59,
-22,
92,
69,
80,
-101,
-114,
-106
] |
The opinion of the court was delivered by
Dawson, J.:
This was an action by an employee against his employer for compensation for special services. He was defeated and appeals.
Plaintiff was a petroleum geologist. Defendant was an investor in and developer of oil lands. Defendant hired plaintiff to go about the country and locate likely oil-producing territory. .For this service he received a salary of $250 per month, later raised to $350 per month, plus his expenses. According to plaintiff, he was also to receive as additional and special compensation one-sixteenth of the net profits derived from any and all oil and gas leases purchased by defendant on plaintiff’s selection and recommendation. He alleged that in the course of his employment he made a geological survey of certain lands in Russell county and recommended the purchase of a lease on a certain forty-acre tract (SE44, NW%, sec. 5, town. 12 south, range 15 west of the 6th P. M.) known as the Kollman lease, and pursuant thereto defendant did purchase that lease and develop it, with the result that four producing oil wells were found thereon, which at the time this action was begun had paid all expenses and had netted a profit of $70,000, and' that by the terms of his contract of employment plaintiff was entitled to one-sixteenth thereof, to wit, $4,375, for which sum he prayed judgment.
Defendant’s answer denied the most material allegations of plaintiff’s petition, and alleged that he sent plaintiff to Russell county with explicit instructions to purchase leases thereabout, and that the lease on this particular forty acres was acquired in obedience to the orders of defendant, and not in consequence of its selection or recommendation by plaintiff.
The cause was tried before a jury which made three special findings of fact and rendered a general verdict in favor of defendant. The special findings read:
“1. Was it a part of the contract of employment made between George A. Forrester and T. C. Johnson, that Johnson agreed to pay Forrester a sum equal to one-sixteenth of the net profits derived from any oil and gas lease designated and selected by Forrester and accepted and purchased by Johnson? A. Yes.
“2. If you answer the preceding question ‘yes,’ then did the plaintiff Forrester make a geological survey of the Fairport structure, and as a result of information gained from such survey, select and designate a lease on the southwest quarter of the northwest quarter of section five, township twelve south of range fifteen west of the 6th P. M. in Russell county, Kansas, known as the Kollman lease, as a lease which would be valuable for oil and gas deposits, and so advise the defendant, T. C. Johnson, and as a result of such advice, did Johnson pinchase that lease? A. No.
“3. If you answer question No. 1 ‘yes,’ then did the defendant Johnson, independent of any advice from Mr. Forrester, instruct Forrester to select a lease on the top of the Fairport main structure. A. No.”
Judgment was entered for defendant and plaintiff appeals.
The first complaint pertains to the exclusion of evidence of witnesses to corroborate plaintiff’s own testimony showing that he made a geological survey of the Russell county oil field. That fact was not important, and, indeed, not controverted. That was the kind of work plaintiff was hired and paid for — to go about the country, including Russell county, looking for geological indications of oil-producing territory which it might be advisable for his employer to purchase. The issue was not whether plaintiff had made a survey of the Russell county oil field, but whether defendant had bought the Kollman lease in that field on the advice and recommen dation of plaintiff. This, according to the jury’s finding No. 2, defendant did not do, and certainly there was no want of explicit and competent testimony to support that finding. Defendant testified that the Russell county oil field began to interest oil men in 1923, and that he talked with various parties who were interested, like himself, in its possibilities long before he sent plaintiff there to get some leases in that field; and when plaintiff did visit that field he did not make any selections or recommendations, and only after defendant’s insistence and peremptory instructions to buy while buying was possible did plaintiff take steps to obtain the Kollman lease and one or two others. If this testimony was true, and the jury so decided, it was perfectly clear that the Kollman lease which turned out to be so profitable was not purchased on plaintiff’s advice and recommendation.
A minor incident is called to our attention: After the jury had deliberated for some time they were brought into court for further instructions. The foreman of the jury asked, “What constitutes a geological survey?” The court remarked that the term had not been precisely defined by any witness, and that the jury should make their own definition from the testimony in the case. This point is not important. Plaintiff testified at length touching his examination of the Russell county oil field as a professional geologist, and that was all the jury needed to know about a geological survey so far as concerned this lawsuit. Indeed, since plaintiff was hired as a geologist and his professional qualifications were not disputed, and his visit to the oil field and his investigation of its possibilities as oil-producing territory were not controverted, we are free to say that vastly too much time was taken up in this trial touching synclines, anticlines, oil terraces, domes, substructures, the Permian, Ordovician and Cretaceous ages of the outcropping rocks in Russell county and elsewhere. It was, of course, a fine exhibition of geological lore on the part of plaintiff and his counsel, but served no purpose in this lawsuit other than its possibility for mystifying the jury. None too soon did the trial court put a stop to it after an extended colloquy with counsel for plaintiff, which need riot be here repeated.
Plaintiff next contends that judgment should have been entered in his behalf on the special findings. The first of these merely confirms plaintiff’s allegations touching the terms of his employment. Finding No. 2 is confirmatory of defendant’s position in this lawsuit that the Kollman lease was bought on defendant’s own initiative and not on the advice and recommendation of plaintiff. Finding No. 3 is not necessarily at variance with finding No'. 2 nor with the general verdict. ’ Apparently it means that defendant had received plaintiff’s advice touching the Kollman lease, but what that advice was the record does not show. Attaching the credence to defendant’s testimony which the jury apparently did, we are bound to infer that plaintiff’s advice was that defendant should defer buying; that defendant rejected that advice, and instructed plaintiff to get that lease, or some lease or leases in the main field while they were still obtainable.
We note a cross appeal concerning rulings of the court on the sufficiency of plaintiff’s petition, but in view of the result just reached the cross appeal will require no consideration.
There is no substantial error in the record, and the judgment is affirmed. | [
81,
-22,
-8,
-100,
-104,
-32,
58,
50,
89,
-95,
119,
83,
-83,
-54,
24,
113,
-30,
25,
116,
107,
-41,
-77,
19,
113,
-110,
-13,
113,
-51,
49,
76,
-12,
-44,
76,
48,
10,
-43,
-26,
74,
-59,
92,
-114,
-91,
-71,
-20,
88,
-32,
52,
123,
112,
75,
113,
-114,
-13,
44,
29,
-61,
41,
62,
-1,
41,
65,
-15,
-94,
-123,
63,
16,
0,
70,
-104,
7,
-56,
30,
-110,
48,
0,
-24,
123,
-74,
-58,
-12,
35,
-71,
9,
102,
102,
33,
-68,
39,
108,
-40,
14,
-66,
-115,
-89,
-79,
8,
3,
74,
-106,
-99,
-2,
28,
-57,
118,
-24,
21,
29,
124,
7,
-97,
-10,
-95,
15,
-19,
-100,
23,
-21,
3,
4,
100,
-51,
-86,
76,
71,
50,
31,
15,
-104
] |
The opinion of the court was delivered by
Hopkins, J.:
The action was one for personal injuries sustained by plaintiff through falling into a sewer ditch. The defendant appeals from an order overruling a demurrer to plaintiff’s petition.
The accident occurred December 1, 1924. The defendant contends that no cause of action was stated against it for more than two years thereafter, when a third amended petition was filed (March 7, 1927). That until the filing of the third amended petition the plaintiff failed to state what his rights were upon defendant’s property.
An examination of the several petitions discloses that at no time prior to filing of the third amended petition did the plaintiff allege that at the time of sustaining the injury he was lawfully upon the sewer easement or the right of- way of defendant, or that the defendant owed him any duty to have maintained the sewer in a safe condition for his protection, or that the defendant was guilty of any breach of duty which it owed him relative to keeping the sewer ditch free from dangerous defects or conditions. If the plaintiff was a trespasser or a bare licensee on defendant’s right of way he would not be entitled to recover.
“Where the original petition states no cause of action whatever, it will not arrest the running of the statute of limitations, and an amendment made after the bar of the statute is complete must be treated as filed at the time the amendment is made. A cause of action, being stated then for the first time, cannot escape the bar of the statute of limitations by being filed as an amendment.” (Powers v. Lumber Co., 75 Kan. 687, syl. ¶ 2, 90 Pac. 254.)
In 29 Cyc. 566 it is said:
“In order to maintain an action based on negligence the declaration or complaint must show the existence of some duty which defendant owed plaintiff, and in addition must allege a breach of such duty. Failure to specifically aver the duty of defendant and the breach should be taken advantage of by demurrer, and the objection cannot be made for the first time in the appellate court.
“The duty of defendant must be shown by a statement of facts from which the duty follows as a matter of law. A mere general allegation of the existence of a duty is insufficient and such general averment is a conclusion of law. Nor will the characterization of an act as negligence supply an omission to allege facts showing omission of duty. Allegations of facts from which the duty arises are sufficient without showing the details, and the manner in which the duty was imposed need not be alleged. An allegation showing invitation is sufficient to show defendant’s duty to keep the premises reasonably safe. Where the injury happened on the premises of defendant, the complaint must show that the person or property injured was there by invitation, express or implied.” (See, also, 3 Bates Pleading and Practice, 1908 ed. 2268; Thiele et al. v. McManus, 3 Ind. App. 132, 28 N. E. 327; Railway Co. v. Bagley, 65 Kan. 188, 69 Pac. 189; Zager v. Railroad Co., 113 Kan. 240, 214 Pac. 107.)
We are of opinion that the plaintiff failed to state a cause of action until after the statute had run against him and that the demurrer should have been sustained.
The judgment is reversed and the cause remanded with instructions to sustain defendant’s demurrer. | [
-12,
104,
-40,
-82,
42,
98,
42,
-104,
81,
-95,
-91,
119,
-17,
67,
5,
61,
123,
-11,
113,
27,
68,
-93,
19,
-126,
-10,
-77,
-69,
84,
48,
95,
-26,
102,
76,
49,
-62,
-107,
-59,
-54,
-43,
92,
-58,
6,
-120,
-51,
-47,
72,
48,
122,
84,
79,
53,
92,
99,
42,
16,
70,
43,
40,
75,
53,
80,
49,
-120,
29,
122,
5,
-95,
103,
-100,
65,
98,
8,
-72,
49,
-127,
104,
115,
-73,
-121,
52,
103,
-103,
8,
98,
102,
35,
101,
-25,
-84,
-72,
46,
-72,
-67,
-90,
25,
120,
91,
36,
-66,
-99,
125,
16,
38,
126,
-26,
85,
95,
44,
7,
-125,
-12,
-15,
-49,
-96,
18,
-93,
-25,
3,
32,
49,
-58,
-30,
93,
97,
81,
27,
30,
-39
] |
The opinion of the court was delivered by
Hopkins, J.:
The question presented here is whether the board of county commissioners has the authority to remove signs which are on or extend into or over a county highway. The board was enjoined from interfering with or removing signs which extended about eight inches into such a highway, and appeals.
The facts are substantially these: The plaintiff entered into an agreement with the Lawrence National Bank, of Lawrence, to erect signs along highway No. 40, advertising the bank. Two such signs were erected on farms next to the highway west of Lawrence. They consisted of a metal sheet about twenty inches long and fourteen inches wide, fastened to a steel post set into the ground just inside the line dividing the farm and the highway. The wire fence along the line of the highway was fastened to steel posts. Each wire of the fence was so fastened that the metal plate with the advertisement was fastened to the top of the post so that the plate extended ten or twelve inches on the farm side and about eight or nine inches into the highway and about six feet above the ground. An arrow pointing toward Lawrence was fastened to the top of the post in line with the fence. The highway at the point under consideration was about sixty-five feet wide. It consisted of a concrete slab about eighteen feet wide, on each side of which was a dirt shoulder five or six feet wide. Between the dirt shoulder and fence on each side was a ditch. The signs were on an angle with the highway. It was plaintiff’s intention to set up like signs on other farms, consent to do so having been obtained for a consideration from adjoining landowners. Plaintiff prayed that the defendants be restrained from interfering with, mutilating or destroying the signs. The case was by stipulation submitted to the court upon the allegations of the petition and the defendant board permanently enjoined from interfering with or removing such signs.
The plaintiff contends that the highway is only an easement; that the owner holds the fee of the land to the center of the highway with a right to use it for all purposes not incompatible with its use as a highway, and that under the admitted facts the signs in no manner interfered with the use of the highway for highway purposes and was in no manner incompatible with its use as a highway. In support of the contention it is argued that there is a strip of ground between the farm land and the dirt shoulder that skirts the side of the slab of seventeen feet and that the sign in no way interferes with public travel; that to mutilate the sign, or to trim off that part within the highway would be an act of bad faith and arbitrariness for other reasons than the protection of the public in the use of the highway.
We cannot sustain the plaintiff’s contention. The statute gives the board of county commissioners the power to “lay out, alter or discontinue any road running through one or more townships in such county, and also to perform such other duties respecting roads as may be provided by law. . . .” (R. S. 19-212.) Another provision makes it the duty of each and every county engineer (agent of the board of county commissioners), to remove or cause to be removed all obstructions that may be found in the city and county highways, and the board, through its engineer, may even enter upon private lands, carry away sand, gravel, etc. (R. S. 68-115.)
We are of opinion the board of county commissioners has the right to remove any and all obstructions from the public highway. In Webb v. Comm’rs of Butler Co., 52 Kan. 375, 34 Pac. 973, it was said in the opinion:
“The fact that the public may not use or travel over the full width of such a highway will not operate to narrow it. It is frequently the case that the full width of country roads is not improved or used for the reason that the necessities of the public for the time being do not require it, but such limited use will not lessen the right of the public to use the entire width of the highway when the increased travel and the exigencies of the public make-it necessary.” (p. 378. See, also, The State, ex rel., v. Paul, 112 Kan. 826, 213 Pac. 165, and note in 6 A. L. R. 1210.)
In this day of the rapidly moving automobile the traveler, the public, is entitled to an unobstructed view of the highway. The signs under consideration, or other similar objects, may interfere with proper view and are included within the statement. The legislature considered the subject when adopting chapter 257 of the Laws of 1927 (since the rights of the parties to this action became fixed), which, among other things, provides:
“That the state highway commission is authorized to adopt and erect uniform marking guides and warning signs for identifying various routes on the •state highway system. The state highway commission is authorized to remove any and all billboards, or signs located within the limits of the right of way of state highways which bear advertising of any kind or character.”
A distinction or discrimination cannot be made between a sign or obstruction which extends eight or nine inches into the highway and one which might extend eighteen or thirty inches into the highway. .Either might obstruct the view of the motorist (especially on a turn) :from an object which in the proper handling of his car he should be .able to see.
The judgment is reversed and the cause remanded with instructions to enter judgment for the defendant. | [
-15,
-20,
-39,
-99,
74,
64,
26,
-103,
121,
-95,
-92,
83,
-83,
-46,
5,
115,
-1,
-67,
-43,
27,
-11,
-74,
83,
-93,
54,
-13,
-45,
93,
-79,
95,
-26,
119,
76,
112,
74,
-99,
70,
72,
-51,
-36,
-50,
7,
9,
-39,
-43,
-56,
-72,
43,
86,
74,
21,
-97,
-13,
46,
25,
-61,
-87,
44,
75,
45,
89,
-8,
-82,
-107,
87,
14,
49,
34,
-104,
-123,
-38,
43,
-104,
49,
-127,
-8,
119,
-90,
-106,
-12,
79,
-103,
8,
-78,
98,
3,
116,
-49,
-20,
-7,
14,
120,
13,
-90,
-128,
25,
3,
-128,
-97,
-99,
116,
16,
3,
126,
-20,
4,
95,
108,
15,
-125,
-80,
-77,
-51,
56,
-102,
76,
-21,
-119,
49,
49,
-49,
-42,
95,
-25,
48,
27,
-114,
-80
] |
The opinion of the court was delivered by
Johnston, C. J.:
An action was brought by the state against William M. Jones to enjoin the maintenance of an intoxieatingliquor nuisance. A temporary injunction was granted on the application of the state. Defendant answered denying the charges and also filed a motion to set aside the injunction, and later the state filed a contempt accusation alleging that the defendant had violated the order of temporary injunction. Another motion was filed by the state for an abatement of the alleged nuisance. All three of these matters were taken up and heard together, and upon the evidence produced the court found that the defendant was keeping and maintaining a nuisance on the premises as charged, and adjudged that the temporary injunction be made permanent and that the nuisance be abated, and further that the defendant pay the costs of the action,. including an attorney’s fee of $100. It was adjudged that the same be made a lien upon the premises. The defendant was held not to be guilty of the contempt charge.
The principal contention of the defendant is that the court erred in overruling his demurrer to the evidence of the plaintiff. He argues that the evidence was so meager as to be insufficient to warrant a finding that the place kept by defendant was a nuisance and that the scales of justice had been tipped in the wrong direction. There was testimony that the place was raided by officers of the state a number of times when no liquor was found on the premises. On one of these raids a customer was found there in a state of intoxication. In a later raid the officers found a bottle of intoxicating liquor concealed in a garbage vessel close to the back door of the place. In a subsequent raid intoxicating liquor was discovered in a pitcher found in the kitchen. Several witnesses testified that the general reputation of the place was that intoxicating liquor was sold there, and that it was a place to which people resorted for the purpose of drinking intoxicating liquors. Defendant insists that proof of the general reputation of the place was not admissible. Although such evidence is not strong or conclusive, it was not inadmissible. In State v. Fleeman, 102 Kan. 670, 678, 171 Pac. 618, it was said:
“The defendant complains because the general reputation of the place was proved. The evidence was admissible for two purposes. It was admissible to prove the actual character of the place. The authorities are divided on this question, but the fact that a house has acquired a general reputation in the community of being an immoral resort is some evidence that it is such. While the evidence may be weak, it is not to be rejected on that account. The evidence was admissible for the purpose of charging the defendant with notice of the character of the place. The person who owns or controls an immoral resort is not likely to be ignorant of what the community knows.” (See, also, Felas v. State, 16 Okla. Cr. 631.)
The evidence in the case is deemed to be sufficient to uphold the finding and judgment of the trial court that the defendant was keeping and maintaining a nuisance on his premises and to warrant the order of abatement. (State v. Copelman, 110 Kan. 749, 205 Pac. 360; State v. Hathorn, 119 Kan. 873, 241 Pac. 114; State v. Tassell, 120 Kan. 207, 243 Pac. 313.)
The court determined that the defendant should pay the costs, including the attorney’s fee of $100 for prosecuting the action, and of this complaint is made. The statute (R. S. 21-2131) expressly provides for such an allowance and the provision has been held to be constitutional. (Fritz v. The State, 80 Kan. 168, 101 Pac. 1013; State, ex rel., v. Dawson, 90 Kan. 839, 136 Pac. 320.)
The judgment is affirmed. | [
-15,
-26,
-4,
76,
10,
96,
40,
-4,
67,
-111,
-11,
115,
-23,
-46,
5,
33,
-6,
109,
-16,
121,
-62,
-89,
7,
97,
-42,
-45,
-48,
-43,
-79,
-18,
-12,
-2,
76,
52,
2,
-35,
-26,
-40,
-47,
-42,
-118,
45,
57,
-31,
115,
-120,
52,
59,
84,
79,
49,
31,
-25,
46,
89,
-61,
105,
44,
-53,
-83,
-16,
-16,
-104,
-35,
79,
22,
19,
34,
-100,
-121,
-40,
30,
-112,
17,
0,
-24,
113,
-74,
6,
116,
79,
-103,
9,
98,
98,
34,
5,
-21,
-20,
-67,
47,
-97,
-99,
-90,
-104,
88,
11,
8,
-74,
-99,
124,
16,
-123,
-16,
-1,
21,
93,
110,
2,
-49,
-90,
-77,
15,
57,
-122,
53,
-49,
35,
32,
101,
-57,
-28,
92,
85,
83,
27,
-113,
-108
] |
The opinion of the court was delivered by
Johnston, C. J.:
The city of Winfield, which owns and operates a natural gas system to supply gas to its citizens and customers, brought an action against Earl F. Wakefield to recover for gas purchased by and furnished to him in the month of February, March and April, 1927, at prices which had been prescribed in a city ordinance. Because of defaults in the payments for the gas furnished, certain penalties were assessed in accordance with the provisions of the ordinance. Plaintiff alleged that the prices of the gas furnished with penalties charged amounted in all to $845.04, for which judgment was asked. The case was tried largely on statements and admissions of the parties, and there is no substantial dispute as to the material facts. The court found and adjudged that plaintiff was entitled to recover $800.05 and gave judgment accordingly, from which defendant appeals.
Defendant admitted that he applied for and obtained gas from the plaintiff, as alleged in the petition, at the price charged other customers within the city and as prescribed in an ordinance of the city, but he undertakes to defend on the ground that he was practically coerced into applying for and using gas furnished by the city, and that under the circumstances of the case the plaintiff is not justly entitled to recover the amount awarded. His claim was that he procured an oil and gas lease upon a tract of ground within the city of Winfield and made preparations to drill a well thereon. To drill it was necessary that he should obtain gas for fuel. He applied to the Empire Natural Gas Company, which had a pipe line near the outskirts of the city, and contracted with that company for gas at eight cents per thousand cubic feet. To obtain gas from that company it was necessary to lay a pipe line from the leased tract to the line of the Empire company, a distance of about one-half a mile across and along certain streets of the city. He applied to the city for permission to lay such a pipe line, but permission was refused, as the city did not think it prudent to allow the Empire company to sell oil and gas within thei city. He alleges that he could have purchased gas from the Empire company for eight cents per thousand cubic feet, and that the city rate for gas furnished to customers in the city was about twenty cents per thousand cubic feet. In order that he might develop the leased tract he was compelled to purchase gas from the city and did so, protesting the action of the city in denying him the privilege of laying the pipe line. For the gas furnished under the purchase for the first month he paid the price charged, but at the end of the following month and when the drilling had been completed, he declined to pay the city rate and tendered payment of an amount which would have been due if the gas had been sold at the eight-cent rate charged by the Empire company. The tender was refused. The well drilled by defendant in the city proved to be a producer, and it appears that the city then allowed him to install a pipe line through which the gas was transmitted for sale to the Empire line.
Defendant’s liability was established when he admitted that he purchased and obtained gas from the city at the uniform price at which it was furnished to other customers within the city, and had failed to pay for it. He had made a binding contract for the gas, and did not claim that any payment had been made other than was alleged by plaintiff, and had not pleaded any set-off as against the claim of plaintiff.
The fact that he could have purchased gas at some point outside of the city at a lower price was not a defense to a claim for an article which he actually bought at a stated price, knowing it to be the price charged all customers within the city. There was no discrimination against him, as the fuel was sold to him at a price established by an ordinance which placed him on an equality with all citizens and consumers. His protest made at the time of the purchase was immaterial, and there was no coercion, as he was at liberty to purchase or decline to purchase the gas at the standard price, and he was at liberty also to use other fuel in his drilling operation. His request for the right to lay a pipe line through the streets and alleys of the city to obtain fuel from an outside pipe-line company for drilling purposes within the city, and the granting of such a right was a matter within the discretion and control of the governing body of the city. That body, which has supervisory control of streets and alleys, may have concluded that the welfare of the city would not be promoted by allowing its streets to be torn up and pipes laid in them to enable an outside company to furnish gas to a single consumer in the city. Whatever the purpose of the city commission may have been, the refusal of the privilege asked for could not relieve the defendant from the obligation to pay for the gas purchased and used by him after the privilege requested had been denied. The use or misuse of municipal power could not be raised and determined in the present action brought, as we have seen, to recover the price of a commodity acknowledged to have been purchased and used.
The judgment is affirmed. | [
-16,
106,
-16,
60,
90,
96,
56,
-102,
89,
-95,
-11,
83,
-19,
-53,
28,
113,
-29,
125,
117,
122,
-41,
-77,
19,
83,
-39,
-13,
115,
-35,
-79,
95,
-12,
-11,
72,
32,
-54,
-99,
-30,
66,
69,
84,
-50,
36,
-87,
104,
73,
64,
52,
58,
112,
75,
113,
15,
-13,
43,
28,
-13,
105,
44,
121,
45,
-63,
-16,
-102,
-123,
79,
22,
16,
102,
-104,
-123,
-8,
62,
-104,
49,
8,
-24,
115,
-90,
-122,
-11,
47,
-103,
12,
-26,
98,
1,
37,
-81,
-24,
-104,
6,
-34,
-115,
-91,
-112,
16,
-30,
98,
-98,
29,
114,
82,
-121,
126,
-22,
-107,
95,
60,
1,
-118,
-74,
-31,
7,
-20,
-104,
83,
-17,
-89,
20,
116,
-49,
-94,
93,
7,
50,
-101,
-113,
-40
] |
The opinion of the court was delivered by
Hopkins, J.:
The defendant was convicted of-statutory rape on three counts, and appeals.
Briefly, the facts are these: Defendant was about 25 years of age; had lived at Mullinville all his life; the prosecuting witness, Violet McVey, 16 years old, had lived there about two years. During the summer of 1925, the defendant, a carpenter, was assisting in the construction of a new school building at Mullinville. The prosecuting witness had accosted him on the street with “hello” a few times, from which their acquaintance arose. He was charged with having had intercourse with her on August 13, 16 and 23. August 27, 1925, when the defendant was at work on the school building a deputy sheriff, the complaining witness, her mother and others went to Greensburg to see the county attorney. Within a few hours thereafter on the same day the sheriff left Greensburg and went to Mullinville, seeking the defendant, who could not be found and who was not apprehended until about January 2, 1926, in the southern part of Texas, near the Mexican border.
It is contended that the trial court erred in overruling defendant’s challenge to the array of jurors. In support of his challenge to the array, the defendant introduced testimony by the county clerk that the township trustees did not return the names of any women electors to serve as jurors, as required by the statutes (R. S. 43-101 and 43-117), and also the testimony of a township trustee that he had returned a list of persons eligible to sit as jurors, but that he had never raised the question with the women electors whether they desired jury service or not. The county attorney admitted that there were qualified women electors, whose names were on the as sessment rolls, who would not have, claimed exemption from jury-service if they had been asked that question by the assessor.
We are of opinion that the failure of the township trustee to return the names of women electors was not a sufficient reason to sustain the defendant’s challenge to the array. True, the officers should have been more diligent in the performance of their duties, but it does not appear that a fair jury was not obtained or that the defendant was in any way prejudiced. The record discloses that the defendant waived his. last peremptory challenge, and there is no showing.that any juror retained in the case was disqualified or that the defendant was in any way prejudiced by the retention of any juror. Other than as stated, there was no showing that the panel of jurors drawn for the term of court in question was not fairly returned, drawn and summoned. The defendant cites and relies on State v. Jenkins, 32 Kan. 477, 4 Pac. 809, where it was said:
“We think the better rule, and the one most likely to do justice is, that while mere irregularities in the drawing of jurors, or mere informalities on the part of the officers charged with the drawing, ought not to be a sufficient ground for sustaining a challenge to an array, yet it is otherwise where the essential provisions of the statute have been palpably disregarded.” (p.479.)
What was said by this court in State v. Frazier, 54 Kan. 719, 722, 39 Pac. 819, with reference to the Jenkins case is applicable here.
“In that case, it appeared that the names of the jurors placed on the list were taken from the assessment rolls for the year 1883, when they should have been taken from the rolls of 1882, and it was held that a challenge to the array ought to have been sustained because the law had been disregarded. In that case, no jurors were drawn or summoned from a list made up in accordance with the law. In this case, it is not claimed that the jurors in attendance on the court were improperly placed on the list or were persons improperly summoned. The sole objection to the array is, that the city of Salina ought to have contributed its quota of names to the list from which the jurors were drawn. To hold that a failure by a township or city officer to comply with the law and return names of persons suitable to serve as jurors, would be sufficient ground of challenge to the array, would be likely to occasion great public expense and inconvenience in many cases, without any substantial benefits to persons on trial. We have no reason to believe that the jury in this case was less favorably inclined to the defendant than one would have been drawn from a list including residents of Salina. We do not think the constitutional right of trial by an impartial jury has been denied the defendant.”
A contention is made that the court erred in overruling an objection by the defendant to the opening statement of counsel for the state. It appears that counsel for the state in his opening statement told the jury that evidence would be offered showing the defendant had made improper advances to other school girls, and attempted to have sexual intercourse with other young girls. Objection was made and overruled. On the-introduction of evidence, the state offered to show such testimony. The court sustained an objection thereto, told the jury they were not to consider any such testimony, and also to disregard and put from their minds any statements of counsel which were not based on the evidence in the case. Under the circumstances, we are of opinion no prejudice is shown which would warrant a reversal on this ground.
It is contended that the court erred in its instructions, in that the first count of the information charged the offense to have occurred on the 13th day of August, etc. The second count on the 16th of August, and the third on the 23d of August, whereas the court instructed the jury on the element of time “on or about” the dates mentioned. The defendant argues that the information as originally filed did not contain the day of the month in any of the three counts; that upon the filing of a motion to quash for uncertainty, the state, by leave of the court, inserted the aforesaid dates in the information. It has been held that time is not the essence of the offense charged; that it is not necessary to charge or prove the precise date when time is not an indispensable ingredient of the offense, but it is sufficient if shown to have been within the statute of limitations. (See Ferguson v. State, 52 Neb. 432, 66 Am. St. Rep. 512; Cotner v. State, 173 Ind. 168, 89 N. E. 847; 16 C. J. 969.)
It is contended that the trial court erred in refusing to allow the defendant to show by the World Almanac the time of the rising of the moon on the 11th and 14th of August. He was permitted to show and it was admitted by the state that it rose at 12:15 a. m. on the 13th. From this testimony it was within the province of the jurors to estimate the time of the rising of the moon on the other dates contended for by the defendant, so in our opinion the allegation of error cannot be sustained.
An extensive argument is made in support of the contention that the court erred in refusing to allow the defendant to impeach the testimony of the prosecuting witness by reading excerpts from her cross-examination at the preliminary hearing. The state objected on the ground that the jury could not form a correct opinion from such isolated questions and answers and that the manner of offering the testimony was not proper. The entire transcript had been introduced in evidence but not read to the jury. The court declined to permit the reading of isolated parts of the testimony. The correct way of bringing testimony into a trial in like circumstances is to ask the witness if he did not testify thus and so at the preliminary hearing. In our opinion the court committed no error in refusing defendant the privilege of reading isolated parts of the testimony.
Other complaints are presented, in support of which able argument is made, to all of which we have given consideration but in which we find no error and which in our opinion require no elucidation.
The judgment is affirmed.
Harvey, J., concurs in the result. | [
-15,
-20,
-67,
-2,
42,
66,
106,
-68,
48,
-125,
-79,
-45,
-83,
-54,
4,
123,
-66,
127,
69,
105,
-57,
-74,
39,
97,
-78,
-13,
-15,
-59,
-105,
79,
-10,
-11,
12,
112,
-54,
-67,
102,
-54,
-59,
92,
-114,
-105,
-87,
-54,
-39,
80,
54,
119,
116,
15,
49,
-98,
-13,
40,
28,
67,
41,
44,
-53,
61,
64,
-79,
-65,
5,
-33,
4,
-77,
38,
-98,
3,
-8,
54,
-104,
53,
-128,
-8,
123,
-90,
-122,
-12,
13,
-119,
44,
36,
98,
1,
-67,
-57,
-24,
-119,
22,
126,
-99,
-89,
25,
9,
90,
4,
-73,
-103,
108,
112,
6,
122,
-17,
4,
29,
108,
77,
-113,
-90,
-111,
-51,
-96,
-110,
2,
-29,
41,
16,
113,
-51,
114,
94,
71,
50,
27,
14,
-108
] |
The opinion of the court was delivered by
Burch, J.:
The action was one to set aside a deed of real estate on the ground of fraud. The court sustained a demurrer to plaintiffs’ evidence on two grounds — first, no fraud was proved; and second, the action was barred by the two-year statute of limitations. Plaintiffs appeal.
The deed was executed by Mary J. Welch on June 10, 1918. Mary J. Welch was at the time old and infirm and bedridden. She could not read or write, and she signed by mark. The grantee was Lizzie Welch, wife of the grantor’s son, John Welch. The deed was recorded on April 10,1919. Mary J'. Welch died on August 7, 1919. John Welch and Lizzie Welch moved into the property about the time the deed was recorded and have ever since occupied it. They paid no rent, paid taxes, and none of the heirs of Mary J. Welch made any claims to any interest in the property for about seven years. The petition.was filed on May 13, 1926, by heirs of Mary J. Welch, other than John Welch. The names of several plaintiffs were used without authority. They refused to be counted among the plaintiffs and were made defendants. Three of the remaining plaintiffs appeared at the trial, Manuel Felaine and Fern Johnson, grandchildren, and China Welch, daughter of the grantor. The answer was filed on July 30, 1926, and the trial occurred on May 27, 1927.
The petition did not plead any false representation, or any unlcept promise, or any described kind of fraudulent inducement, deception, or overreaching. There was no evidence that any fraud of that kind was perpetrated. There was evidence that on one occasion John Welch said to his mother $100 was owed on the place and for her to sign a deed to Lizzie for that $100. There was no evidence that the statement of fact was untrue. While there was evidence that Mrs. Welch told John she would not sign a deed, there was no evidence of any harshness on the part of John Welch toward his mother, or of exercise of any undue influence to secure execution of the deed.
The petition charged the deed was signed by mark, the signature by mark was witnessed, and the notary’s certificate of acknowledgment was attached to the deed at the instance of John Welch and Lizzie Welch, after the death of Mary J. Welch, with intent to cheat and defraud her heirs other than John Welch. That could not be true, because the deed was filed for record on April 10, 1919, and Mary J. Welch did not die until August 7 of that year. The evidence for plaintiffs disclosed that Mary J. Welch knew before she died that the deed to Lizzie Welch was on record. Fern Johnson, one of the plaintiffs, went to the courthouse with her husband and discovered the deed to Lizzie Welch. She then talked with her grandmother about it, and told her grandmother the deed was in Lizzie’s name. Fern Johnson and her aunt, China Welch, then went to see a lawyer about setting the deed aside. China Welch testified her mother told her she had turned the deed over to Lizzie. China Welch then said she heard it outside and asked her mother about it, and her mother said she had not made her mark or deeded the property. The lawyer was then consulted. The result is, if any cause of action ever existed to set aside the deed on the ground of fraud, it accrued to Mary J. Welch in her lifetime. Her death did not interrupt the running of the statute of limitations, and the action was not commenced until May 13, 1926, five years after the two-year period in which action might have been commenced, had elapsed.
Plaintiffs say they produced some evidence that the deed was a forgery. Some evidence that the deed was a forgery was not enough to take the case to the jury. As indicated, the signature to the deed was by mark. Below the signature, appeared the following:
“Signed, sealed and delivered in the presence of: Witness to mark: .A. M. Cole."
Below the signature of the witness, appeared the following certificate of acknowledgment:
“State of Kansas, County of Montgomery, ss:
“Be it remembered, that on this 10th day of June, a. d. 1918, before me, the undersigned, a notary public, in and for the county and state aforesaid, came Mary J. Welch (widow over 21 years of age), who is personally known to me to be the same person who executed the within instrument of wilting and such person duly acknowledged the execution of the same.
“In testimony whereof, I have hereunto set my hand and affixed my official seal the day and year last above written.
(Seal) Floyd Foster, Notary Public.
“Term expires March 20, 1919.”
The public interest in the security of land titles will not permit this authentication of due execution to be overthrown by a bare preponderance of evidence.
“A higher and more satisfactory character of proof is required to establish that an instrument or conveyance is not what it purports to be than is necessary in ordinary civil cases. Generally, a mere preponderance is sufficient; but when parties deliberately execute a written conveyance there is a strong presumption that it expresses their intentions, and more than a bare preponderance of parol proof is required to remove this presumption and to show a contrary intention. Some of the courts declare that in such cases the proof must be ‘clear’; others that it must be ‘convincing’; others that it must be ‘satisfactory’; and still others that it must be ‘clear of all reasonable doubt.’ These expressions substantially convey the. same idea and require the same degree of proof. To establish a fact by the clear preponderance of the evi dence, the proof must be clear of reasonable doubt.” (Winston v. Burnell, 44 Kan. 367, 369, 24 Pac. 477.)
This rule applies to impeachment of formally correct certificates of acknowledgment of execution of recorded deeds. (1 C. J. 896; Gabbey v. Forgeus, 38 Kan. 62, 15 Pac. 866; Gas Co. v. Fletcher, 81 Kan. 76, 105 Pac. 34; Fish v. Poorman, 85 Kan. 237, 244, 116 Pac. 898.) Any other rule would open the way to fraud and perjury and would work incalculable mischief. The question presented to the district court by the demurrer to the evidence was not whether there was some evidence to go to the jury, but whether there was any evidence which, rationally considered, would fairly measure up to the proper standard; and the court was authorized to withdraw the case from the jury if the evidence were of such doubtful, uncertain, contradictory, and unsatisfactory character that a finding of forgery by the jury would necessarily be set aside.
The witness to the signature was called by plaintiffs to testify at the trial. He was handed a photostatic copy of the deed and said it bore an exact copy of his signature. He had no recollection of witnessing the grantor’s signature, but would not say he did not do so. He and Floyd Foster would go out and take acknowledgments of both white and colored persons, and he recognized the signature of Floyd Foster to the certificate of acknowledgment, but he had no recollection of Mary J. Welch. Inability to remember the transaction nine years after it occurred was no evidence that it did not occur. Identification of his own signature and the signature of the notary, considered in connection with the presumption of discharge of the notary’s official duty, established execution of the deed to a very high degree of certainty.
The testimony offered to overcome the certificate of acknowledgment was not merely contradictory and unpersuasive, but was not free from suspicion. China Welch testified she was living with her mother in 1918, and the date, June 10, 1918, was clearly fixed in her mind. John and Lizzie Welch were frequently at Mary J. Welch’s home, and were there on June 10, 1918, in the evening, a little before night. On that very day she heard John ask his mother to sign the deed. She refused to do so, and John went off mad and cursing. China Welch further testified she was living at her mother’s home about five months before her mother died, and was there only five months. If so, she went there in April, 1919, ten months after the incident referred to supposedly occurred. She then testified she thought she went to live with her mother in the fall of 1918, but she was not sure. The deed was executed in June, 1918. China Welch testified she first learned the deed had been executed about “a year ago.” That would be in 1926, but Fern Johnson testified she went with China Welch to see the lawyer about setting the deed aside in 1919. As indicated, at one point in the course of her examination, China Welch testified her mother said she had turned the deed over to Lizzie. She admitted consulting a lawyer about it.
The evidence fairly discloses that when delivery of the deed became known and the lawyer was consulted, all before death of Mary J. Welch, nobody thought of forgery, and-the remedy adopted was action to have Mary J. Welch adjudged insane or feeble-minded, as a basis for setting aside the deed.
The remainder of the testimony for plaintiffs bearing closely on the subject of forgery was that no white man was at the home of Mary J. Welch on June 10, 1918. The notary who took the acknowledgment and the witness to the signature were engaged in the real-estate business under the name of Foster Land Company, and both were white men. Fern Johnson was born in her grandmother’s home, lived there until John Welch and Lizzie Welch moved in, in 1919, and waited on her grandmother during her last illness. Testifying nine years afterward, Fern Johnson remembered the 10th day of June, 1918, perfectly. It was the day a neighbor came across' the street to receive a telephone message. The neighbor came about three o’clock in the afternoon and stayed all that' afternoon and evening. No white man came there on June 10, 1918, and John Welch and Lizzie Welch were not there on that date. They might have come late in the evening, but Fern was the main one taking care of her grandmother, and she did not see them. The neighbor remembered June 10, 1918, perfectly. By felicitous coincidence, it was the tenth day after her husband received an injury. He was in a hospital and had grown worse. She looked at the clock at two o’clock in the afternoon, and at half past three went over to Mrs. Welch’s, stayed the rest of the afternoon, and remained until nine o’clock at night. No white man came, and John Welch and Lizzie •Welch were not there. She named those who were present, and China Welch was not there.
The result of the foregoing is plaintiffs undertook to impeach the notary’s certificate by fabricated testimony. Without pursuing the subject further, the testimony as a whole did not approach the applicable standard of proof; and because there was no evidence capable of producing conviction to a moral certainty, the demurrer to the evidence was properly sustained.
The judgment of the district court is affirmed. | [
-16,
124,
-43,
46,
42,
-32,
106,
-72,
104,
-127,
-96,
115,
-19,
-64,
5,
61,
-32,
45,
80,
107,
66,
-78,
7,
-119,
-45,
-13,
-70,
93,
112,
77,
-12,
-42,
76,
48,
-54,
53,
-58,
-54,
-1,
88,
-114,
-125,
9,
102,
-39,
-48,
48,
115,
68,
76,
113,
15,
-29,
47,
61,
78,
109,
44,
107,
-71,
-104,
-72,
-117,
4,
89,
2,
-112,
119,
-100,
-63,
-22,
-54,
-100,
53,
-128,
-8,
51,
-74,
-106,
116,
67,
-101,
12,
102,
98,
33,
-43,
-25,
-16,
-100,
47,
-10,
-119,
39,
-48,
88,
10,
100,
-67,
-107,
124,
-48,
10,
116,
-26,
-124,
92,
108,
15,
-113,
-42,
-79,
31,
112,
-112,
11,
-6,
39,
34,
113,
-49,
66,
92,
98,
51,
-101,
-114,
-14
] |
The opinion of the court was delivered by
Dawson, J.:
This was an action to cancel a deed purporting to convey certain Wichita town lots from plaintiff to defendants and to bar and enj oin them from asserting any interest therein.
Plaintiff alleged and his evidence tended to prove that he had executed the deed in favor of the defendant, Mamie Lyon, in contemplation of a proposed contract with her whereby she was to undertake the care of plaintiff’s invalid daughter, but that such contemplated agreement was never made or undertaken, and that the deed was never delivered, but kept by plaintiff in his safety-deposit box in a bank in Wichita, to which box defendant had access by means of a key which he had intrusted to her, and that without authority and in fraud of his rights she had abstracted the deed and presented" it for registration.
Defendant Mamie Lyon pleaded and the testimony given in her behalf tended to show that she purchased from plaintiff the properties named in the deed for $11,000 in cash, as shown by two checks drawn by her in plaintiff’s favor for $5,800 and $5,200 respectively and cashed by him.
Touching the cashing of the checks, the evidence in plaintiff’s behalf tended to show that defendant, Mamie Lyon, pretended that she and her husband were not on good terms and that she had $11,-000 on deposit in a Wichita bank which she desired to withdraw and secrete from her husband, and that she sought plaintiff’s aid in that project, and that plaintiff assented thereto and did cash the two checks, but immediately delivered to her the entire sums thereof, and that no sale of his property to Mamie Lyon was ever made or intimated in connection with the cashing of these checks or otherwise.
The evidence adduced at the trial covered many other intriguing details, and at its conclusion the trial court announced his decision in favor of plaintiff. The record recites:
“The Court: I think this is one of the strangest cases that has ever come to my attention in court. There is a serious difference in the evidence as to facts. It is not a question of law. The court will have to decide one way or the other. If the court decides wrong, there will be a great injustice to one party. If the story of the defendant is true, they are out $11,000. If the story of the plaintiff is true, he is out his property. But from all the facts in the case I am going to find for plaintiff. What is the relief, you ask? You ask for an injunction and rescission [cancellation] of the deed?
[Counsel for Plaintiff]: “Rescission [cancellation] of the deed.
“The Court: You may prepare findings of fact and conclusions of law.
[Counsel for Defendants]: “You are going to make findings of fact, aren’t you?
“The Court: I will if you wish.
[Counsel for Defendants]: “We wish you to make them.
“The Court: I will make findings of fact and conclusions of law, and if either side wants to present suggestions to me, I will consider them. I will grant you ten days, and in the meantime, the restraining order will continue in effect.”
Pursuant thereto each party submitted suggested findings of fact. Those prepared by counsel for plaintiff were adopted in toto by the trial court. They read:
“1. The plaintiff, W. H. Harrison, at the time of the execution of the deed involved in this controversy was seventy-eight (78) years of age, and subject to the usual infirmities of mind and body of a man of such years. Mamie Lyon was in her forties, and the wife of the defendant, R. T. Lyon, and had long been a neighbor and friend of the plaintiff and his family. And said W. H. Harrison had raised a family, all of whom has passed the age of maturity and made their homes separate from the plaintiff, except the daughter, who is now about forty-one (41) years of age, and afflicted with curvature of the spine and spinal diseases, and from the time of her birth has been a cripple all of her life, weak in both body and mind and unable to walk and dress and care for herself, and has to be lifted and carried around like a helpless baby, and she will remain in this condition during the rest of her life. This girl and Mamie Lyon are strongly attached to each other.
“2. That on or about the first day of April, 1927, plaintiff W. H. Harrison, and defendant Mamie Lyon, partially agreed upon a plan, whereby the defendant Mamie Lyon, was to take care of said invalid daughter, and care for her during the rest of her life; and to reimburse her for said services and to insure the support of said invalid daughter, the plaintiff was to pledge the real estate in question as security for the performance of service, which agreement was never completed nor the details thereof agreed upon. In Contemplation of this agreement, the plaintiff then executed the deed in question, but never surrendered the possession of the same. That afterward, the plaintiff, W. H. Harrison, made a notation on said deed, in substance, ‘Not for record — to be held in escrow as security for the agreement between parties interested,’ and placed said deed in his private lock box in the First National Bank in the city of Wichita, Kan. The agreement mentioned in the writing on the deed was never consummated.
“3. That said defendant, Mamie Lyon, induced the plaintiff, W. H. Harrison, to give her a duplicate key to said lock box, and that, on or about the 9th day of July, 1927, while the plaintiff, W. H. Harrison, was absent from the city of Wichita, Kan., on his vacation, said defendant, Mamie Lyon, illegally and with fraudulent intent, and without paying any of the consideration for the delivery of said deed, entered the private lock box of the said plaintiff and procured the possession of said deed, and on the 9th day of July, 1927, presented the same to the county clerk of Sedgwick county, Kansas, for transfer, and same was entered on the transfer records of said office of the county clerk of Sedgwick county, Kansas; and thereafter and on the same date said defendant, Mamie Lyon, presented said deed to the recorder of deeds of said county and state, i.e., the defendant, Joseph Bowman, to be spread on the records of said register of deeds of said county and state, and that said deed covered the following described property, to wit: Lots 22 and 24, Yolutsia avenue in Lippit and Aldrich’s subdivision of lot 8, block 1, Rich-land First Addition to the city of Wichita, Sedgwick county, Kansas; and also lots 1037 and 1039, Greiffenstein’s Thirteenth Addition to the city of Wichita, Sedgwick county, Kansas.
“4. That said defendants, Mamie Lyon and R. T. Lyon, personally or by and through their agents, erased or caused to be erased from said deed the statement in substance set out in finding No. 2.
“5. That the defendant, Mamie Lyon, never at any time took charge of said invalid daughter, nor gave any of the consideration tentatively understood and agreed upon for the delivery of said deed, and the plaintiff, W. H. Harrison, never received any consideration for said deed, nor delivered nor authorized anyone to deliver said deed to the defendants, Mamie Lyon and R. T. Lyon, or to anyone whomsoever, and that said deed was illegally and with fraudulent intent removed from the lock box where it was held in escrow.
“6. That the evidence in this case sustained the allegations in plaintiff’s petition, and said allegations are substantially true.
“7. That the defendant, Mamie Lyon, made two checks in the aggregate sum of $11,000, payable to W. H. Harrison, which were cashed by him on July 6, 1927, in the presence of Mamie Lyon, and the currency was then given to Mamie Lyon by W. H. Harrison.”
Judgment was entered in plaintiff’s behalf, and defendants appeal, urging various errors. They first contend that these findings do not cover the issues made by the pleadings. We think they do, quite comprehensively.
The next objection is that the findings should have been made by the court itself, and that it was improper for it to adopt as its own those prepared and submitted by plaintiffs counsel. This point is without merit; such practice is common; indeed defendants not only did not object to it, but they themselves suggested findings for the court’s adoption. See, also, Howard v. Howard, 52 Kan. 469, syl. ¶ 3, 34 Pac. 1114.
Another objection to the judgment is that the court announced its decision before it made or approved the findings of fact. This point, too, is devoid of merit. Nothing is more common than for a trial court to announce its decision informally and to direct the attorneys to prepare a journal entry of judgment setting down with accuracy and detail the particular matters intended to be determined and concluded by the judgment. (Howard v. Howard, supra.) Of course, when rival counsel cannot agree as to what the judgment roll should recite the comb takes these details in hand and settles them itself. But whatever may be the literary contribution of attorneys for the parties or either of them, or of the clerk of the court, to the composition of the journal entry of judgment, when it has received the approval of the court it stands as the decision of the court, and is valid and binding against all concerned unless set aside as permitted and prescribed by law.
We note defendants’ objection of irrelevancy in the findings pertaining to plaintiff’s age and domestic circumstances, and his tenta tive but fruitless negotiations with Mrs. Lyon for the care of his invalid daughter. These quite credibly explain why the deed conveying plaintiff’s properties to her had been made.
The next assignment of error pertains to the loeight of the evidence, which in the opinion of defendants’ counsel preponderated greatly in their favor. But the determination of the weight of the evidence and the credence to be accorded to-the witnesses was the exclusive function of the trial court (Rasmussen v. Rasmussen, 124 Kan. 461, 463, 464, 260 Pac. 618), and certainly there is nothing in the lengthy record presented by the abstract and counter abstract to arouse our misgivings as to the correctness of the result reached by that tribunal.
A curious argument in defendants’ behalf is based upon some irrelevant matters developed in the course of the trial which tended to show that plaintiff was enamored with Mrs. Lyon. This, it is argued, revealed that plaintiff had come into court “without clean hands”; and some eight or ten pages of appellants’ brief are taken up with excerpts from law books and decided cases holding that litigants in pan delicto with their adversaries, or who are themselves guilty of inequitable conduct, fraud and' the. like, will be denied equitable relief. In their brief they conclude thus:
“If the appellee received the money, the deed should be placed of record in Mamie Lyon. Likewise, if he did not receive the money, his acts and conduct with her were such as to place him in, such a¡ position that a court of equity must refuse him relief, for when its precepts have been overstepped, in silence will the court sit.”
We discern no substantial basis for the invocation of this rule in the present case, and we apprehend that counsel will hunt in vain for a precedent where equitable relief had been denied to an old man about to be swindled out of his property on the wholly extraneous ground that he was enamored with the wife of one of the wrongdoers, by whose wiles the old man had been led into a course of conduct which lent color to their spurious pretense that his property had been acquired-by legitimate purchase and for value received. (See Saylor v. Crooker, 97 Kan. 624, 627, 628, 156 Pac. 737; Norris v. York, 105 Kan. 448, 185 Pac. 43; Harper v. Harper, &c., 85 Ky. 160, 7 A. S. R. 583, 587, 588; Hobbs v. Boatright, 195 Mo. 693, 5 L. R. A., n. s., 906.)
There is no error in the record and the judgment is affirmed. | [
-16,
120,
-32,
111,
26,
-32,
42,
-70,
99,
-107,
33,
91,
-23,
68,
4,
9,
116,
125,
-48,
105,
102,
-110,
7,
41,
-46,
-13,
-39,
-59,
-71,
-39,
-12,
-42,
76,
32,
74,
93,
70,
66,
-57,
88,
-114,
-123,
-120,
76,
-37,
64,
52,
43,
4,
73,
117,
-98,
-13,
43,
61,
-62,
105,
44,
75,
60,
48,
-7,
-82,
-121,
-1,
23,
-111,
36,
-98,
3,
-56,
-86,
-112,
49,
8,
-24,
115,
-74,
-106,
116,
77,
-85,
44,
102,
98,
33,
21,
-17,
-72,
-104,
47,
-9,
-115,
-90,
-16,
72,
-127,
45,
-98,
-99,
109,
16,
2,
-12,
-3,
29,
25,
108,
11,
-17,
-42,
-127,
9,
62,
-104,
31,
-1,
-105,
-96,
97,
-49,
-32,
76,
66,
48,
-69,
-114,
-13
] |
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Mindy L. Miller, of Topeka, an attorney admitted to the practice of law in Kansas in 2002.
On March 28, 2014, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent did not file an answer. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on June 5, 2014, where the respondent did not appear. The hearing panel determined that respondent violated KRPC 1.1 (2013 Kan. Ct. R. Annot. 446) (competence); 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.4(a) (2013 Kan. Ct. R. Annot. 484) (communication); 5.5(a) (2013 Kan. Ct. R. Annot. 630) (unauthorized practice of law); 8.4(d) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct prejudicial to the administration of justice); 8.1(b) (2013 Kan. Ct. R. Annot. 646) (failure to respond to lawful demand for information from disciplinary authority); and Kansas Supreme Court Rule 207(b) (2013 Kan. Ct. R. Annot. 336) (failure to cooperate in disciplinary investigation).
Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“Findings of Fact
“8. In approximately 2008, the respondent became employed by Midwest Health Management, Inc. (hereinafter Midwest) as in-house counsel. Midwest owns many nursing home facilities throughout Kansas. From time to time, the Chief Financial Officer assigned the respondent to handle certain litigation matters involving Midwest and its nursing homes.
“9. On September 14, 2012, the Kansas Supreme Court entered an order suspending her license to practice law in Kansas for failing to pay the annual registration fee and for failing to comply with the requirements of the Kansas Continuing Legal Education Commission.
“10. The respondent did not inform her employer that the Court suspended her license to practice law.
“Laboratory Corp. V. Halstead Health, et al.
“11. The Chief Financial Officer assigned the respondent to handle Laboratory Corp. vs. Halstead Health, et al., Harvey County, Kansas, district court case number 12LM01051, on behalf of the defendant. After proper service, the respondent failed to take any action on behalf of her client. As a result, on January 24, 2013, the court entered default judgment against the respondent’s client.
Jefferson County Fire District #11 vs. Valley Health Care Center Operations, LLC
“12. The Chief Financial Officer assigned the respondent to defend Jefferson County Fire District #11 vs. Valley Health Care Center Operations, LLC, Jefferson County, Kansas, district court case number 12LM270. The respondent filed an answer on behalf of her client, despite her suspension by the Kansas Supreme Court’s order of September 14, 2012. Thereafter, the court scheduled a pretrial hearing on April 3, 2013. The respondent failed to appear in court for the pretrial hearing. As a result of the respondent’s failure to appear at the pretrial hearing, on April 5, 2013, the court entered default judgment against the respondent’s client.
“Poole Fire Protection, Inc. vs. Midwest Health Management, Inc.
“13. The Chief Financial Officer assigned the respondent to defend Midwest in Poole Fire Protection, Inc. vs. Midwest Health Management, Inc., Johnson County, Kansas, district court case number 11LA9439. The respondent failed to appear for a motion hearing on November 9,2012. Because the respondent failed to appear for the motion hearing, that same day, the court entered default judgment against the respondent’s client.
“Schindler Elevator Corp. vs. Twin Oaks Independent Living Operations, LLC
“14. The Chief Financial Officer assigned the respondent to represent the defendant in Schindler Elevator Corp. vs. Twin Oaks Independent Living Operations, LLC, Shawnee County, Kansas, district court case number 11L025328. The respondent failed to defend her client. Accordingly, on June 26, 2012, the court entered default judgment against the respondent’s client.
“Equal Employment Opportunity Commission vs. Midwest Health, Inc.
“15. The Chief Financial Officer assigned the respondent to defend Midwest in Equal Employment Opportunity Commission vs. Midwest Health, Inc., United States District Court for tire District of Kansas, case number 12MC240. In that case, the charging party alleged that the respondent’s client violated the Civil Rights Act of 1964 by subjecting her to sex discrimination.
“16. The respondent failed to provide information requested by tire Equal Employment Opportunity Commission. The respondent failed to comply with a subpoena. On August 29, 2012, the Court issued an order to show cause. The respondent failed to respond to the order to show cause. On December 3, 2013, the court issued an order compelling the respondent to comply with the subpoena. The respondent failed to respond to the court’s order compelling compliance.
“17. In April, 2013, Midwest terminated the respondent’s employment.
“18. On May 6, 2013, Brian Jacques filed a complaint against the respondent. The disciplinary administrator docketed the complaint for investigation and forwarded the complaint to the Topeka Ethics and Grievance Committee. Lucky DeFries, the chair of the Topeka Ethics and Grievance Committee, assigned Shelly Starr to investigate the complaint.
“19. Thereafter, on May 13, 2013, the disciplinary administrator wrote to the respondent, informing her that the case had been docketed for investigation and directing her to provide a written response to the complaint within 20 days. The respondent failed to provide a written response to the complaint as directed by the disciplinary administrator.
“20. On May 22, 2013, Ms. Starr wrote to the respondent directing her to provide a written response to the complaint filed by Mr. Jacques by June 6, 2013. The respondent failed to provide a written response to the complaint as directed by Ms. Starr.
“21. On November 7, 2013, Ms. Starr again wrote to the respondent and directed the respondent to provide a written response to the complaint by November 22, 2013. Again, the respondent failed to provide a written response to the complaint as directed by Ms. Starr.
“22. On February 27, 2014, the disciplinary administrator wrote to the respondent and informed her that the review committee had directed the disciplinary administrator to file a formal complaint against the respondent. The letter was returned to the disciplinary administrator as unclaimed.
“23. On March 28, 2014, tire disciplinary administrator forwarded the formal complaint and notice of hearing to the respondent at her registration address by certified delivery. The package with the formal complaint and notice of hearing was returned to the disciplinary administrator. Additionally, Terry Morgan, special investigator with the disciplinary administrator’s office, hand-delivered a package containing the formal complaint and notice of hearing and left it at the respondent’s registration address which is also the respondent’s residential address.
“Conclusions of Law
“24. Based upon the findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 5.5, KRPC 8.1, KRPC 8.4, and Kan. Sup. Ct. R. 207, as detailed below.
“25. The respondent failed to appear at the hearing on die formal complaint. It is appropriate to proceed to hearing when a respondent fails to appear only if proper service was obtained. Kan. Sup. Ct. R. 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part as follows:
‘(a) Service upon die respondent of the formal complaint in any disciplinary proceeding shall be made by die Disciplinary Administrator, either by personal service or by certified mail to the address shown on die attorney’s most recent registration, or at his or her last known office address.
‘(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whetiier or not die same is actually received.’
In tiiis case, the Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by sending a copy of the formal complaint and die notice of hearing, via certified United States mail, postage prepaid, to die address shown on die respondent’s most recent registration. Further, die disciplinary administrator’s special investigator also left a copy of the formal complaint and notice of hearing at die respondent’s registration address. The hearing panel concludes that the respondent was afforded die notice that die Kansas Supreme Court Rules require and more.
“KRPC 1.1
“26. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, tiioroughness and preparation reasonably necessary for the representation.’ The respondent failed to exercise die requisite tiioroughness and preparation reasonably necessary for the representation of Midwest and the nursing homes which it owns and operates. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.1.
“KRPC 1.3
“27. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The respondent failed to diligentiy and promptly represent Midwest and die nursing homes it owns and operates by failing to answer petitions, respond to motions, appear in court, and respond to requests for information. Because die respondent failed to act with reasonable diligence and promptness in representing Midwest and the nursing homes that it owns and operates, the hearing panel concludes that the respondent violated KRPC 1.3.
“KRPC 1.4
“28. KRPC 1.4(a) provides that '[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the respondent violated KRPC 1.4(a) when she failed to keep Midwest informed about the status of the cases. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.4(a).
“KRPC 5.5
“29. KRPC 5.5(a) prohibits the unauthorized practice of law. After the Kansas Supreme Court suspended the respondent’s license to practice law, the respondent continued to practice law. As such, the hearing panel concludes that the respondent violated KRPC 5.5(a).
“KRPC 8.4(d)
“30. It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). The respondent engaged in conduct that was prejudicial to the administration of justice when she failed to file answers to petitions, appear in court for hearings, respond to motions, and respond to requests for information. As such, the hearing panel concludes that the respondent violated KRPC 8.4(d).
“KRPC 8.1 and Kan. Sup. Ct. R. 207(b)
“31. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) provide the requirements in this regard. ‘[A] lawyer in connection with a . . . disciplinary matter, shall not: . .. knowingly fail to respond to a lawful demand for information from [a] . . . disciplinary authority,...’ KRPC 8.1(b).
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to die Disciplinary Administrator any information he or she may have affecting such matters.’
Kan. Sup. Ct. R. 207(b). Because the respondent failed to provide a written response to the initial complaint filed by Mr. Jacques, die hearing panel concludes that the respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b).
“American Bar Association Standards for Imposing Laioyer Sanctions
“32. In making diis recommendation for discipline, the hearing panel considered the factors outiined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, die factors to be considered are the duty violated, the lawyer’s mental state, die potential or actual injuiy caused by die lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“33. Duty Violated. The respondent violated her duty to client to provide competent and diligent representation and adequate communication. Additionally, the respondent violated her duty to the legal profession to cooperate in disciplinary investigations.
“34. Mental State. The respondent knowingly violated her duties.
“35. Injury. As a result of the respondent’s misconduct, the respondent caused actual injury to Midwest.
“Aggravating and Mitigating Factors
“36. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present:
“37. A Pattern of Misconduct. The respondent engaged in a pattern of misconduct by failing to file answers to petitions, respond to motions, appear in court, and respond to requests for information in five cases on behalf of Midwest.
“38. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 5.5, KRPC 8.1, KRPC 8.4, and Kan. Sup. Ct. R. 207. Accordingly, the hearing panel concludes that the respondent committed multiple offenses.
"39. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present:
“40. Absence of a Prior Disciplinary Record. The respondent has not previously been disciplined.
“41. Absence of a Dishonest or Selfish Motive. The respondent’s misconduct does not appear to have been motivated by dishonesty or selfishness.
“42. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:
‘4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injuiy or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect- and causes injury or potential injury to a client.
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.’
“Recommendation
“43. In his closing argument, the disciplinary administrator recommended that the respondent be indefinitely suspended from the practice of law. The disciplinary administrator stated that he may change his recommendation to disbarment before the court if the circumstances warrant.
“44. Throughout tire hearing on the formal complaint, the disciplinary administrator, through witness testimony and argument, described his office’s efforts to locate the respondent. The disciplinary administrator stated that he would continue to attempt to locate the respondent. The hearing panel remains concerned about the respondent’s welfare, given her complete lack of response and cooperation throughout the disciplinary investigation and prosecution.
“45. Based upon die findings of fact, conclusions of law, and the Standards listed above, die hearing panel unanimously recommends diat die respondent be indefinitely suspended from die practice of law in the State of Kansas.
"46. Costs are assessed against the respondent in an amount to be certified by die Office of die Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence, in re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2013 Kan. Ct. R. Annot. 356). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Respondent was given adequate notice of the formal complaint, to which she did not file an answer, and adequate notice of the hearing before the panel and the hearing before this court. The respondent did not appear at the hearing before the panel and did not file exceptions to the hearing panel’s final hearing reports. As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c) and (d) (2013 Kan. Ct. R. Annot. 375).
The clear and convincing evidence presented to the hearing panel supported its conclusion that the following rules had been violated: KRPC 1.1 (2013 Kan. Ct. R. Annot. 446) (competence); 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.4(a) (2013 Kan. Ct. R. Annot. 484) (communication); 5.5(a) (2013 Kan. Ct. R. Annot. 630) (unauthorized practice of law); 8.4(d) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct prejudicial to the administration of justice); 8.1(b) (2013 Kan. Ct. R. Annot. 646) (failure to respond to lawful demand for information from disciplinary authority); and Kansas Supreme Court Rule 207(b) (2013 Kan. Ct. R. Annot. 336) (failure to cooperate in disciplinary investigation). Accordingly, we adopt the panel’s conclusions of law.
At the hearing before this court, the office of the Disciplinary Administrator recommended that this court adopt the hearing panel’s suggested sanction of indefinite suspension and further recommended that one condition precedent to reinstatement be that the respondent establish, through competent professional evaluations, that she is then emotionally and physically fit to practice law. The respondent appeared before this court with counsel and did not contest the recommended sanction. Accordingly, we adopt the recommended sanction of indefinite suspension.
Order
It Is Therefore Ordered that Mindy L. Miller be indefinitely suspended from the practice of law in the State of Kansas in accordance with Supreme Court Rule 203(a)(2) (2013 Kan. Ct. R. Annot. 300).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2013 Kan. Ct. R. Annot. 406), including effecting the notifications required by that rule, and shall comply with Supreme Court Rule 219 (2013 Kan. Ct. R. Annot. 407), as a condition precedent to reinstatement.
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.
Luckert, J., not participating.
Michael J. Malone, Senior Judge, assigned. | [
-112,
-22,
-51,
-51,
-116,
-31,
50,
46,
97,
-13,
119,
83,
-19,
-34,
-120,
123,
-61,
45,
-48,
123,
-61,
-74,
115,
-24,
102,
-1,
-8,
-57,
-70,
95,
-12,
-35,
73,
48,
-118,
-11,
-122,
-62,
-43,
88,
-126,
6,
10,
-16,
-47,
-63,
48,
107,
-98,
15,
49,
110,
51,
44,
21,
67,
41,
76,
-3,
-83,
-47,
-48,
-101,
-107,
123,
22,
34,
-108,
-104,
7,
-36,
63,
-118,
-72,
41,
-20,
35,
-78,
-122,
116,
111,
-103,
45,
102,
98,
35,
25,
-91,
-92,
-100,
30,
24,
13,
38,
-101,
89,
115,
8,
-106,
-67,
116,
0,
35,
124,
-26,
5,
29,
120,
15,
-49,
-44,
-111,
31,
101,
-50,
-109,
-17,
-124,
48,
13,
-123,
-26,
95,
-57,
50,
27,
-18,
-75
] |
Per Curiam,-.
This is an uncontested original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Paul P. Hasty, Jr., of Overland Park, an attorney admitted to the practice of law in Kansas in 1976.
On October 28, 2013, the office of the Disciplinary Administrator filed a formal complaint against the respondent, alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on November 13, 2013. On December 18, 2013, the parties entered into a stipulation on some of the charged violations.
A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on December 19, 2013, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.4(a) and (b) (2013 Kan. Ct. R. Annot. 484) (communication); 3.4(d) (2013 Kan. Ct. R. Annot. 601) (failure to comply with discovery request); and 8.4(d) (2013 Kan. Ct. R. Annot. 655) (conduct prejudicial to the administration of justice).
Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“Findings of Fact
“8. On January 27, 2010, a car driven by A.P., a teenager, sideswiped a school bus driven by M.D. and then struck a vehicle driven by K.L. K.L. suffered significant injuries. First Student, Inc. (hereinafter ‘FSI’) owned the school bus.
“9. On June 17, 2010, K.L. and his wife, M.L., filed suit against FSI, M.D., and A.P., alleging negligence, negligence per se, and loss of consortium in the Circuit Court of Cass County, Missouri. In the petition, FSI was referred to as First Student Bus Service and M.D.’s name was spelled incorrectly.
“10. FSI retained tire respondent to represent FSI and M.D. FSI, M.D., and tire respondent believed that neither FSI nor M.D. were negligent nor did they, in any way, contribute to K.L.’s injuries. FSI was self-insured and assigned its claims handling to Gallagher Bassett Services, a claims management company. Gallagher Bassett Services assigned J.H., a senior claims representative, to manage the claim. J.H. instructed the respondent to contact the FSI terminal manager in Grandview, Missouri, L.W., to obtain discovery responses.
“11. On July 8, 2010, the respondent filed an answer on behalf of FSI and M.D.
“12. At the time the suit was filed, the plaintiffs prepared discovery requests, including requests for production of documents and interrogatories. The plaintiffs properly served the discovery on tire defendants. [Footnote: The respondent asserted in the underlying case and in the disciplinary case that the discovery requests were not properly served on FSI. The circuit court considered this matter on June 6, 2011, and concluded that the discovery requests were properly served on FSI. Based upon the circuit court’s finding, the hearing panel finds that the discovery requests were properly served on FSI.] The respondent’s responses to discovery were due in August 2010.
“13. The respondent failed to timely comply with the discovery requests.
“14. Shortly after the respondent was retained in 2010, the respondent learned that die school bus involved in the accident was equipped with a GPS device supplied by Zonar. The device was capable of recording various data including pre-bus inspection reports and information from the GPS recording such as bus speeds and locations.
“15. Rather dian conduct any investigation on die capabilities of the Zonar device, the respondent relied on L.W. L.W. told the respondent that the mechanics at FSI knew little about how to retrieve information from die Zonar device.
“16. While the Zonar system was new to FSI in 2010, B.S., a shop manager at FSI in Grandview, Missouri, would have been able to retrieve information from die Zonar device in 2010, had he been asked to do so. (The respondent failed to contact B.S. until shortly before B.S.’s scheduled deposition in 2012.)
“17. On September 2, 2010, plaintiffs filed a motion to amend die petition to correct FSI’s name. On September 13, 2010, the court granted the plaintiffs’ motion.
“18. On September 3, 2010, the respondent filed a motion to extend time to respond to plaintiffs’ request for production of documents. In tire motion, the respondent pointed out that FSI’s name was not properly listed. In the motion, the respondent requested that FSI have until October 1, 20.10, to respond to the request for production. The court granted the respondent’s request for an extension of time.
“19. On September 7, 2010, the respondent filed objections to certain requests for production of documents. The respondent did not file any objections to the interrogatories.
“20. Also on September 7, 2010, tire respondent wrote to FSI and requested that they provide certain documents to comply with the remaining discoveiy requests.
“21. FSI did not provide the requested documents to die respondent. The respondent took no additional action to obtain the discoveiy from FSI. The respondent did not comply with die requests for production of documents by the court’s October 1, 2010, deadline.
“22. On April 29, 2011, plaintiffs sent the respondent a ‘golden rule’ letter, requesting diat the respondent comply with die discovery requests.
“23. On May 18, 2011, the respondent again wrote to FSI requesting that it provide die respondent with various documents to provide to the plaintiffs through discovery.
“24. On May 18, 2011, the respondent wrote to plaintiffs in response to the ‘golden letter’ rule.
“25. The court scheduled a hearing on plaintiffs’ motion to enforce discoveiy for May 31,2011. On May 31,2011, the respondent filed a response to the motion to enforce discovery.
“26. Also on May 31, 2011, the respondent filed a motion to continue the hearing scheduled for that day. In the motion, the respondent acknowledged that the next regular docket for the court was June 6, 2011. Disciplinary Administrator’s Exhibit 19.
“27. On May 31, 2011, plaintiffs filed an amended motion for enforcement of discoveiy. In the motion, plaintiffs requested that the court strike all pleadings filed by FSI, the court enter a default judgment against FSI, and for other relief the court deemed just and proper. The respondent failed to inform his clients that the plaintiffs filed the amended motion and sought to have FSI’s pleadings struck and for default judgment to be entered.
“28. On June 6, 2011, die court conducted a hearing. The plaintiffs and A.P. appeared. Neither the respondent nor anyone else appeared on behalf of FSI and M.D. Following die hearing, the court issued an order. The order provided:
‘... Upon review and consideration of Plaintiffs’ Motion and Amended Motion for Enforcement of Discoveiy Propounded to Defendant First Student, Inc., it is hereby:
‘ORDERED that Plaintiffs’ First Interrogatories to Defendant First Student, Inc. and Plaintiff s [sic] First Request for Production of Documents to Defendant First Student, Inc. were properly served to Defendant First Student, Inc.
‘IT IS FURTHER ORDERED that Defendant First Student, Inc. has 21 days from this June 6, 2011, Order to fully answer and respond without objections to Plaintiffs’ First Interrogatories to Defendant First Student, Inc. and Plaintiffs’ First Request for Production of Documents to First Student, Inc. If Defendant First Student, Inc. fails to fully respond to Plaintiffs’ First Interrogatories to Defendant First Student, Inc. and Plaintiffs’ First Request for Production of Documents to Defendant First Student, Inc. within 21 days of the date of this June 6, 2011, Order, the Court will enforce sanctions to include the striking of all Defendant First Student, Inc.’s pleadings filed in this case.’
The respondent did not comply with the discovery requests within 21 days as provided in the court’s order. The respondent failed to inform his clients that the court issued the order and that FSI had 21 days to comply or its pleadings would be struck.
“29. On June 10,2011, plaintiffs wrote to the respondent and enclosed a copy of the court’s June 6, 2011, order. The letter was sent to the respondent via electronic mail and regular United States mail.
“30. That same day, the respondent filed a motion to continue a hearing scheduled for June 13, 2011. However, no hearing was scheduled for June 13, 2011.
“31. On June 28, 2011, plaintiffs filed a motion for sanctions against FSI. In the motion, the plaintiffs stated:
‘Plaintiffs’ [sic] first noticed their Motion for Enforcement of Discovery for May 31, 2011 at 9:00 a.m. At the request [sic] Defendant First Student, and upon motion of Defendant, the hearing of Plaintiffs’ Motion was continued until June 6, 2011. Defendant First Student failed to appear at said hearing and Defendant was given 21 days from June 6, 2011, to fully answer and respond without objections to Plaintiffs’ First Interrogatories to Defendant First Student, Inc. and Plaintiffs’ First Request for Production of Documents to First Student, Inc. (Footnote omitted.)
‘A copy of the Order on Plaintiffs’ Motion for Enforcement was provided to Defendant First Student on June 10,2011, immediately after it was received by Plaintiffs’ counsel. (Footnote omitted.) This letter also outlines each interaction leading to the June 6, 2010, hearing, including the fact that the date of the hearing was chosen by Defense counsel.
‘It has now been almost 1 year since written discovery was seived upon Defendant First Student. Almost 1 year has past [sic] without the first hint of an interrogatory answer or proper responsive documents. Worse yet, it has now been over 21 days since this Court’s June 6, 2011, Order and Defendant has continued to show no sign of compliance.
‘This Court’s order states: “If Defendant First Student, Inc. fails to fully respond to Plaintiffs’ First Interrogatories to Defendant First Student, Inc. and Plaintiffs’ First Request for Production of Documents to Defendant First Student, Inc. within 21 days of the date of this June 6, 2011, Order, the Court will enforce sanctions to include the striking of all Defendant First Student, Inc.’s pleadings filed in this case.” Plaintiff now seeks an Order enforcing these sanctions due to Defendant First Student, Inc.’s contumacious and deliberate disregard for the trial court’s authority.’
The respondent failed to inform his clients that plaintiffs filed a motion for sanctions and sought to have FSI’s pleadings struck.
“32. On June 29, 2011, the respondent served FSI’s answers to plaintiffs interrogatories to the plaintiffs.
“33. The court scheduled a hearing on the motion for sanctions for August 15, 2011. Neither the respondent, FSI, nor M.D. appeared at tire hearing. The court stated that it would consider whether all pleadings filed by FSI and M.D. should be stricken. The respondent did not inform his client that he had failed to appear at a scheduled hearing. The court continued the hearing on the motion for sanctions to August 29, 2011.
“34. On August 26, 2011, the respondent filed FSI’s response to plaintiffs’ request for production of documents.
“35. At the August 29, 2011, hearing, the court ordered the respondent to provide additional information in response to the request for production of documents and the interrogatories. Also during the hearing, tire court informed the respondent diat it would impose attorney fees as a sanction against FSI. The respondent failed to inform FSI that the court stated that it would impose an attorney fee sanction against FSI.
“36. On September 6, 2011, the respondent provided supplemental answers to the interrogatories. The respondent was unable to timely comply with the court’s order for additional disclosures related to the request for production of documents as his client failed to provide him with certain information. On October 7, 2011, the respondent filed supplemental answers to the request for production of documents.
“37. On December 19,2011, plaintiffs filed a motion for attorney fees, seeking $23,000. In the motion, counsel described, in detail, the problems with discovery, including die respondent’s failure to appear at hearings. The respondent failed to inform his client that die plaintiffs filed a motion for attorney fees.
“38. The respondent filed a response to the motion on January 18, 2012. The respondent, however, failed to explain his failure to appear at the hearings, other than to say that there were ‘coordination and communication problems’ and that he ‘could not be present’ at the hearings. The respondent failed to inform his client that he filed a response to the motion for attorney fees.
“39. On February 6, 2012, die court held a pretrial conference. The respondent again, failed to appear in court.
“40. On February 6, 2012, the court granted the plaintiffs’ motion for attorney fees and ordered FSI to pay $23,000 in attorney fees. The respondent failed to inform his client that the court ordered it to pay $23,000 in attorney fees.
“41. The respondent paid the sanction from his own funds. The respondent failed to inform his client that he paid the attorney fee sanction.
“42. On March 5, 2012, tire court held a scheduling conference. The respondent failed to appear in court for the fourth time.
“43. On May 1, 2012, plaintiffs filed a second motion for sanctions against FSI.
“44. FSI terminated the respondent’s representation. Thereafter, on May 16, 2012, the respondent filed a motion to withdraw as counsel for FSI and M.D. On May 21, 2012, the court granted the respondent’s motion.
“45. On June 29, 2012, the court heard the plaintiffs’ second motion for sanctions. Thereafter, on July 12, 2012, the court issued an order. In the order, the court stated:
‘Defendant First Student argues to the Court that since the entry of new counsel in the case in May of 2012, it has tried to comply with discovery requests. However, these new efforts do not erase the nearly 2 years of noncompliance. The actions of its first attorney are imputed to First Student Inc. as a matter of law. [Citations omitted.]’
The court granted the plaintiffs’ motion for sanctions and struck FSI’s pleadings. Additionally, the court also made clear that at trial, FSI would not be allowed to present evidence nor cross-examine witnesses at trial.
“46. On September 19, 2012, the court clarified its previous order and struck FSI’s answer, defenses, and counterclaims. Additionally, the court clarified that it would not permit FSI to introduce evidence, cross-examine witnesses or contest liability in the liability portion of the trial. The court clarified that it would permit FSI to cross-examine plaintiffs’ witnesses regarding damages.
“47. Thereafter, FSI settled the suit with K.L. and M.L. for $2,500,000. FSI filed a malpractice claim against the respondent’s malpractice carrier. The respondent’s malpractice carrier settled that claim and paid FSI $1,000,000.
"Conclusions of Law
“48. Based upon the parties’ stipulation and the findings of fact above, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.3, KRPC 1.4(a), KRPC 1.4(b), KRPC 3.4(d), and KRPC 8.4(d), as detailed below.
“KRPC 1.3
“49. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The respondent stipulated that he violated KRPC 1.3 by failing to attend hearings on behalf of FSI on June 6, 2011 and August 15, 2011. In addition, the respondent violated KRPC 1.3, by failing to attend hearings on February 6,2012, and March 5,2012. Because the respondent failed to act with reasonable diligence and promptness in representing his client, the hearing panel concludes that the respondent violated KRPC 1.3.
“KRPC 1.4
. “50. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ The respondent stipulated that he violated KRPC1.4(a) by failing to keep FSI reasonably informed about the status of the representation. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.4(a).
“51. ‘A lawyer shall explain a matter to the extent reasonably necessary to permit the client to malee informed decisions regarding the representation.’ KRPC 1.4(b). In this case, die respondent stipulated that he repeatedly violated KRPC 1.4(b) when he failed to explain to FSI information necessary for FSI to malee informed decisions regarding the representation.
‘a. The respondent failed to inform FSI that the plaintiffs filed an amended motion for enforcement of discovery, seeking to have FSI’s pleadings struck.
‘b. The respondent failed to inform FSI that the court issued an order on June 6, 2011, providing FSI with 21 days to comply with discovery or FSI’s pleadings would be struck.
‘c. The respondent failed to inform FSI that the plaintiffs filed a motion for sanctions on June 28,2011, again requesting the court to strike FSI’s pleadings.
‘d. The respondent failed to inform FSI that the respondent failed to appear at a hearing scheduled for August 15, 2011.
‘e. The respondent failed to inform FSI that on August 29, 2011, the court stated that it would impose a sanction of attorney fees against FSI.
‘f. The respondent failed to inform FSI that plaintiffs filed a motion for attorney fees, seeking $23,000.
‘g. The respondent failed to inform FSI that the respondent filed a response to the motion for attorney fees.
‘h. The respondent failed to inform FSI that the court granted the plaintiffs’ motion for attorney fees and ordered FSI to pay $23,000.
‘i. The respondent failed to inform FSI that the respondent paid the sanctions from his own funds.’
“52. The hearing panel, therefore, concludes that the respondent repeatedly violated KRPC 1.4(b).
“KRPC 3.4(d)
“53. Attorneys are required to act with fairness to opposing counsel in responding to requests for discovery. KRPC 3.4(d) provides tire rule in this regard. ‘A lawyer shall not. . . fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing parly.’ The respondent violated KRPC 3.4(d) when he failed to take additional steps to comply with discovery. Regarding the Zonar device, the respondent failed to make a diligent effort to comply with tire discovery request. Additionally, for months, tire respondent took no action to comply with any of the plaintiffs’ discovery requests. As such, the hearing panel concludes that the respondent violated KRPC 3.4(d).
“KRPC 8.4(d)
“54. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). The respondent engaged in conduct that was prejudicial to the administration of justice when he repeatedly failed to appear at scheduled hearings. As such, the hearing panel concludes that tire respondent violated KRPC 8.4(d).
“American Bar Association Standards for Imposing Lawyer Sanctions
“55. In making this recommendation for discipline, the hearing panel considered tire factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by tire lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“56. Duty Violated. The respondent violated his duty to his client to provide diligent representation and adequate communication. The respondent violated his duty to the legal profession to act with fairness to an opposing party and maintain his personal integrity. Finally, the respondent violated his duty to the legal system to refrain from conduct which prejudices the administration of justice.
“57. Mental State. The respondent knowingly violated his duties.
“58. Injury. As a result of the respondent’s misconduct, the respondent caused actual serious financial injury to his client.
“Aggravating and Mitigating Factors
“59. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present:
“60. Prior Disciplinary Offenses. The respondent has been previously disciplined on three occasions. In 2002 and again in 2007, the Respondent participated in die Attorney Diversion Program. In the 2002 case, die Respondent violated KRPC 3.3 and KRPC 3.4 by failing to comply widi discovery orders and failing to deal with die court with candor.
“61. In the 2007 case, the Respondent violated KRPC 1.7 by continuing to represent a client when a partner in the Respondent’s law firm was representing the plaintiff in a lawsuit adverse to the Respondent’s client.
“62. In 2010, the Kansas Supreme Court censured the respondent for having violated KRPC 1.3 (diligence) and KRPC 1.4 (communication). On the same facts, the Missouri Supreme Court reprimanded respondent on November 13, 2008, as a result of the violations.
“63. Selfish Motive. The respondent engaged in selfish conduct when he repeatedly kept important information from his client.
“64. A Pattern of Misconduct. The respondent has engaged in a pattern of misconduct. The respondent failed to appear at four scheduled hearings. The respondent failed to inform FSI of nine separate significant occurrences in the case. Further, much of the respondent’s misconduct in this case is similar' to the misconduct in previous disciplinary cases.
“65. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 1.3, KRPC 1.4(a), KRPC 1.4(b), KRPC 3.4(d), and KRPC 8.4(d).
“66. Refusal to Acknowledge Wrongful Nature of Conduct. While the respondent entered into a stipulation, during the hearing on the formal complaint, he equivocated his acceptance of responsibility.
“67. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1976. At the time of the misconduct, the respondent has been practicing law for 35 years.
“68. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present:
“69. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His Acknowledgment of the Transgressions. Despite his later equivocation, the respondent entered into a stipulation of facts and rule violations.
“70. Imposition of Other Penalties or Sanctions. The respondent has experienced other sanctions for his conduct. The respondent paid attorney fees to the plaintiffs in the amount of $23,000. Further, the respondent’s malpractice earner, on the respondent’s behalf, paid FSI $1,000,000.
“71. Remorse. At the hearing on this matter, the respondent expressed genuine remorse for having engaged in the misconduct.
“72. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:
‘4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injuiy or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injuiy or potential injuiy to a client.
‘6.22 Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding.
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injuiy or potential injuiy to a client, the public, or the legal system.
‘8.2 Suspension is generally appropriate when a lawyer has been reprimanded for the same or similar misconduct and engages in further acts of misconduct that cause injuiy or potential injury to a client, the public, the legal system, or the profession.’
“Recommendation
“73. The disciplinary administrator recommended that the respondent be indefinitely suspended from the practice of law. The respondent recommended that the respondent be censured for the misconduct.
“74. The ABA Standards for Imposing Lawyer Sanctions indicate that a suspension is appropriate under the circumstances—the respondent knowingly engaged in the misconduct and the respondent had previously been censured for die same misconduct. Accordingly, based upon the findings of fact, conclusions of law, and die Standards listed above, the hearing panel unanimously recommends that the respondent be suspended for a period of 2 years.
“75. Costs are assessed against die respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of tire disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, the discipline that should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2013 Kan. Ct. R. Annot. 356). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Respondent was given adequate notice of the formal complaint, to which he filed an answer, and adequate notice of the hearing before tire panel and the hearing before this court. The respondent did not file exceptions to the hearing panel’s final hearing report. We therefore deem the panel’s findings of fact admitted. Supreme Court Rule 212(c) and (d) (2013 Kan. Ct. R. Annot. 375).
The evidence before the hearing panel establishes by clear and convincing evidence the charged misconduct violated KRPC 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.4(a) and (b) (2013 Kan. Ct. R. Annot. 484) (communication); 3.4(d) (2013 Kan. Ct. R. Annot. 601) (frivolous discovery request); and 8.4(d) (2013 Kan. Ct. R. Annot. 655) (conduct prejudicial to the administration of justice). Further, it supports the panel’s conclusions of law, and we adopt those conclusions.
The decision among potentially appropriate disciplinary sanctions in this case is driven by several considerations particular to respondent’s behavior and situation. First, misconduct similar to that in which respondent engaged here was at the heart of two previous disciplinary incidents, one subject to diversion and another that led to public censure. These lesser responses were obviously inadequate to enforce respondent’s promises to address the causes of tire incidents. Second, the consequences of respondent’s misconduct for his client in this case were extraordinarily severe. Finally, respondent’s remarks at his hearing before the court were less than convincing on his acceptance of responsibility; he appeared to be more interested in taking issue with the panel’s findings of violations than in acknowledging his fault and expressing his remorse.
A majority of the court therefore holds that respondent should be indefinitely suspended; a minority of the court would impose a 2-year suspension with a requirement that the respondent be subject to a reinstatement hearing under Supreme Court Rule 219 (2013 Kan. Ct. R. Annot. 407).
Conclusion and Discipline
It Is Therefore Ordered that Paul P. Hasty, Jr. be indefinitely suspended from the practice of law in the State of Kansas, effective on filing of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2013 Kan. Ct. R. Annot. 300).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2013 Kan. Ct. R. Annot. 406).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.
Michael J. Malone, Senior Judge, assigned. | [
-80,
-24,
-55,
-18,
8,
97,
56,
62,
121,
-41,
100,
82,
-19,
-57,
15,
123,
-13,
61,
-48,
123,
-61,
-75,
126,
-64,
38,
-1,
-8,
85,
-79,
79,
116,
-104,
89,
48,
-118,
-43,
6,
-54,
-27,
-44,
-86,
6,
15,
-16,
89,
-63,
-96,
104,
18,
15,
49,
-114,
-29,
46,
18,
67,
41,
40,
-1,
-83,
-63,
-47,
-53,
5,
127,
2,
-77,
-124,
-100,
15,
80,
43,
-52,
57,
42,
-24,
99,
-78,
-126,
-27,
107,
-119,
-119,
38,
98,
35,
17,
-123,
-68,
-116,
78,
27,
15,
38,
-79,
73,
97,
13,
-106,
-99,
113,
22,
15,
-6,
-8,
68,
25,
108,
15,
-53,
-128,
-111,
28,
-15,
-98,
-117,
-5,
-123,
48,
81,
-120,
-26,
94,
-41,
58,
-109,
-54,
-76
] |
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Karen A. Eager, of Lawrence, an attorney admitted to the practice of law in Kansas in 1997.
On December 6, 2013, the office of the Disciplinary Administrator filed a formal complaint against the respondent, alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed a motion for additional time to file an answer to the formal complaint on December 17, 2013; the hearing panel granted the motion. The respondent filed an answer on January 6, 2014, and a proposed plan of probation on January 13, 2014. An amended formal complaint was filed on January 29, 2014.
A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on January 29, 2014; the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.1 (2013 Kan. Ct. R. Annot. 446) (competence); 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.4(a) (2013 Kan. Ct. R. Annot. 484) (communication); 1.15(b) (2013 Kan. Ct. R. Annot. 553) (safekeeping property); 1.16(d) (2013 Kan. Ct. R. Annot. 569) (termination of representation); 3.2 (2013 Kan. Ct. R. Annot. 587) (expediting litigation); 5.5(a) (2013 Kan. Ct. R. Annot. 630) (unauthorized practice of law); 8.4(d) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct prejudicial to the administration of justice); 8.4(g) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct adversely reflecting on lawyer s fitness to practice law); and Supreme Court Rule 218 (2013 Kan. Ct. R. Annot. 406) (notification of clients upon suspension).
Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“Findings of Fact
“11. In 2006, the respondent went to work for the Dis [ability] Rights Center, Topeka, Kansas. The respondent remained in that position until her termination on approximately January 21, 2013.
“12. On September 14, 2012, the Kansas Supreme Court issued an order suspending the respondent’s license to practice law for her failure to comply with the annual continuing legal education requirements. Ms. Eager’s license to practice law remains suspended.
“DAI 1268
“13. On April 27,2007, M.G. had surgery on his shoulder. During tire surgery, a pain pump was inserted. Following the surgery, M.G. suffered pain which he believed was caused by the surgery and the insertion of the pain pump. M.G. sought to retain counsel to file a medical malpractice or product liability case. A number of attorneys declined to represent M.G. Eventually, M.G. contacted the respondent. At the time M.G. contacted the respondent, she was employed by the Disability Rights Center. M.G.’s case was not one that tire Disability Rights Center was permitted to accept.
“14. The respondent felt regret for M.G.’s situation and agreed to help him find an attorney. The respondent was unable to locate an attorney willing to take his case. The respondent agreed to file a petition on behalf of M.G. in order to preserve the statute of limitations.
“15. On April 27, 2009, the respondent filed suit on behalf of M.G. in federal court against the pump manufacturer, the physician, and the hospital.
“16. While the respondent did not intend to represent M.G. in the litigation and she informed M.G. that she was merely filing the suit to preserve his statute of limitations, she never withdrew from the representation.
“17. Thereafter, tire defendants filed motions to dismiss. The respondent failed to respond to the motions to dismiss. On September 9, 2009, the court issued an order to show cause why the case should not be dismissed. The respondent did not respond to the court’s order. The court dismissed the case and assessed costs to M.G.
“18. The respondent failed to properly communicate with M.G. regarding the representation. The respondent failed to inform M.G. that the motions to dismiss were filed. The respondent failed to inform M.G. that the court dismissed the case.
“19. On December 21, 2010, M.G. filed a complaint with the disciplinary administrator’s office. Following the investigation of the disciplinary complaint, on July 17, 2012, the respondent entered into an attorney diversion agreement. In the agreement, the respondent stipulated to the underlying facts which gave rise to the rule violations in M.G.’s case.
“20. The respondent failed to successfully complete the diversion and the diversion was revoked.
“DAI 1682
“21. J.K. is deaf. While a student in a Master’s program at the University of Kansas, in tire archaeology department, J.K. experienced difficulties in communicating with his professors. As a result of his difficulties, J.K. contacted the Disability Rights Center for assistance. On October 19, 2010, J.K. met with the respondent.
“22. Thereafter, J.K. met widi tire respondent on numerous occasions. On February 4,2011, J.K. met with the respondent and J.K. signed a formal grievance letter. The respondent also signed tire grievance letter. The respondent agreed to file the grievance with the University of Kansas. Despite her agreement to do so, the respondent failed to forward tire fully executed grievance letter.
“23. J.K. contacted tire respondent on many occasions, requesting that the respondent provide him with a copy of tire signed grievance. Additionally, J.K. sought information about tire current status of the grievance. The respondent failed to provide J.K. with a copy of the signed grievance. Further, the respondent failed to provide J.K. with tire requested information.
“24. The respondent agreed to meet with J.K. on July 11, 2011, at Starbucks in Lawrence, Kansas. Traveling from his home in Kansas City, Missouri for the meeting, J.K. appeared, but the respondent did not. The respondent did not let J.K. know that she was not available to keep tire appointment.
“25. J.K. rescheduled the meeting for approximately 1 week later. The respondent and J.K. met, however, the respondent failed to provide a satisfactory explanation as to the status of J.K.’s grievance. During this meeting, the respondent herated’ J.K.
“26. Thereafter, from time to time, J.K. wrote to the respondent and her supervisor requesting an update regarding the status of the grievance. The respondent never provided J.K. with a copy of the signed grievance letter nor did she adequately answer J.K.’s inquiries.
“DA11797
“27. On March 25, 2013, Lane Williams, Deputy Director of the Disability Rights Center filed a complaint with the disciplinaiy administrator’s office detailing problems he discovered after he terminated the respondent’s employment.
“Representation of N.R.
“28. The respondent settled a personal injury case in 2008, on behalf of N.R., a client of the Disability Rights Center. At the time of the settlement in 2008, the respondent retained $5,500 from the settlement proceeds to satisfy Medicaid and Medicare liens. The respondent failed to diligently negotiate the hens. At the time of the respondent’s termination of employment in 2013, the funds were still being held on behalf of N.R.
“Representation of P.f.
“29. On September 29, 2007, P.J. died. The respondent agreed to represent the estate of P.J. in a wrongful death action against Residential Living Center. On September 29, 2009, the respondent filed the wrongful death action. The respondent, however, failed to obtain service on the defendant.
“30. Thereafter, Residential Living Center filed a motion to dismiss. On March 25, 2010, the court granted the motion dismiss for failure to obtain timely service of process.
“Representation of R.E.
“31. R.E. believed that his 12-year-old daughter was improperly expelled from a day care because of her developmental disabilities. Because the day care received federal subsidies, the respondent believed that a discrimination claim was viable.
“32. In May, 2012, the respondent agreed to file a claim on behalf of R.E.’s 12-year-old daughter. However, the respondent never filed the petition.
“33. Prior to the suspension of the respondent’s license, the respondent prepared the petition. However, once the respondent’s license had been suspended, the respondent did not file the petition. Thereafter, respondent failed to take steps necessary to protect R.E. and his daughter’s claim.
“Representation of T.S.
“34. While transporting J.S., a developmentally disabled man, the driver employed by Community Living Opportunities, ran a red light and caused an automobile accident. As a result of the accident, J.S. was paralyzed. Community Living Opportunities carried an insurance policy with $1,000,000 limit.
“35. On May 9, 2009, the respondent agreed to file suit on behalf of J.S. The respondent filed suit and obtained service on Community Living Opportunities. Thereafter, the respondent took no action to prosecute the case.
“36. On October 8, 2009, tire court dismissed the action for lack of prosecution.
“37. On April 8, 2010, the respondent refiled the suit. On July 23, 2012, the court again dismissed the action for lack of prosecution. On October 3, 2012, J.S. died.
“38. In defending the disciplinary complaint, the respondent asserted that she would have been able to obtain a minimum of $250,000 but that because J.S. died without heirs, no injury resulted from the dismissal of the case.
“Representation of D.D.
“39. The respondent agreed to assist D.D. with satisfying court obligations so that a warrant for D.D.’s arrest would be lifted. D.D. agreed to provide monthly payments and reports. For a period of time, D.D. sent monthly payments and reports and the respondent forwarded the monthly payments and reports to dre court.
“40. Subsequently, D.D. sent payments in die form of money orders without the report. Radier than forward the payment to die court, die respondent retained the payments waiting for a report from D.D. The respondent later learned tiiat D.D. had become homeless.
“41. At the time of die respondent’s termination of employment with the Disability Rights Center, diere were three money orders from 2008 and 2009 in her desk.
“Unaudiorized Practice of Law
“42. After the Kansas Supreme Court suspended the respondent’s license to practice law, on September 14, 2012, the respondent failed to notify her clients, opposing counsel, and the courts as required by Kan. Sup. Ct. R. 218.
“43. Further, after her license was suspended, the respondent continued to practice law until the termination of her employment with the Disability Rights Center, on approximately January 21, 2013.
“Conclusions of Law
“44. Pursuant to die terms of the diversion agreement and in the respondent’s answer, the respondent admitted that she violated KRPC 1.3, KRPC 1.4, KRPC 8.4(d), and Kan. Sup. Ct. R. 208 in DA11268. During the course of the hearing on the formal complaint, die respondent admitted tiiat she violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 5.5, KRPC 8.4(g), Kan. Sup. Ct. R. 208 and Kan. Sup. Ct. R. 211 in DA11682 and KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 3.2, KRPC 8.4(d), Kan. Sup. Ct. R. 208, and Kan. Sup. Ct. R. 218 in DA11797.
“45. Eased upon the stipulations made by die respondent and the findings of fact above, the hearing panel concludes as a matter of law tiiat the respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 1.16, KRPC 3.2, KRPC 5.5, KRPC 8.4(d), KRPC 8.4(g), and Kan. Sup. Ct. R. 218, as detailed below. The hearing panel concludes that clear and convincing evidence was not presented to establish that the respondent violated KRPC 8.1, Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 208.
“KRPC 1.1
“46. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, dioroughness and preparation reasonably necessary for the representation.’ The respondent failed to employ the requisite dioroughness and preparation reasonably necessary for the representation of J.K. in DA11628 and N.R., the estate of P.J., R.E., and T-S., in DA11797. Accordingly, die hearing panel concludes that the respondent violated KRPC 1.1.
“KRPC 1.3
“47. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The respondent failed to diligently and promptly represent M.G. in DA11268, J.K. in DA11628, and N.R., the estate of P.J., R.E., J.S., and D.D. in DA11797. The respondent repeatedly failed to take proper action regarding the representation of these clients. Finally, the respondent’s lack of diligence caused serious injury. M.G. lost his cause of action. A grievance was never filed on behalf of J.K. N.R.’s funds languished at the Disability Rights Center. The estate of P.J. lost its cause of action. Suit was never filed on behalf of R.E.’s 12 year-old daughter. J.S.’s cause of action was dismissed and J.S. died without the benefit of settlement proceeds. The victim of D.D.’s criminal action did not receive restitution payments which D.D. had forwarded to the respondent. As a result of tire respondent repeatedly failing to act with reasonable diligence and promptness in representing her clients, the hearing panel concludes that, on numerous occasions, the respondent violated KRPC 1.3.
“KRPC 1.4
“48. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the respondent violated KRPC 1.4(a) when she failed to.provide adequate communication to M.G. in DA11268, to J.K. in DA11628, and to the estate of P.J. and R.E. in DA11797. Accordingly, the hearing panel concludes that the respondent repeatedly violated KRPC 1.4(a).
“KRPC 1.15
“49. Lawyers must deal properly with the property of their clients. Specifically, KRPC 1.15(b) provides:
‘(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.’
The respondent violated KRPC 1.15(b) when she failed to distribute the $5,500 held for N.R. Additionally, the respondent violated KRPC 1.15(b) when she failed to forward the money orders to tire court for payment of restitution on behalf of D.D. Accordingly, the hearing panel concludes that the respondent twice violated KRPC 1.15(b).
“KRPC 1.16
“50. KRPC 1.16 requires lawyers to take certain steps to protect clients after the representation has been terminated. Specifically, KRPC 1.16(d) provides the requirement in this regard:
‘Upon termination of representation, a lawyer shall take steps to tire extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to tire client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to tire client to the extent permitted by other law.’
Prior to the respondent’s suspension, she prepared a petition to be filed on behalf of R.E.’s daughter. However, once the respondent’s license to practice was suspended, the respondent took no additional action to protect R.E. and his daughter’s rights. Under KRPC 1.16(d), the respondent had a duty to protect R.E. and his daughter’s claim by taking certain steps. The respondent failed to do so. As a result, the hearing panel concludes, that the respondent violated KRPC 1.16(d).
“KRPC 3.2
“51. An attorney violates KRPC 3.2 if she fails to make reasonable efforts to expedite litigation consistent with the interests of her client. After filing a wrongful death case for P.J.’s estate and the personal injury suit for J.S., tire respondent took no further action to prosecute tire cases. Failing to taire action after the litigation was filed amounts to a violation of KRPC 3.2. Accordingly, tire hearing panel concludes that the respondent violated KRPC 3.2 in two cases.
“KRPC 5.5
“52. KRPC 5.5(a) prohibits tire unauthorized practice of law. After the Kansas Supreme Court suspended tire respondent’s license to practice law, the respondent continued to practice law until her employment with the Disability Rights Center was terminated. As such, the hearing panel concludes that tire respondent engaged in an ongoing violation of KRPC 5.5(a) from September 14, 2012, through approximately January 21, 2013.
“KRPC 8.4(d)
“53. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). The respondent engaged in conduct that is prejudicial to tire administration of justice on many occasions.
a. When the respondent failed.to respond to the order to show cause in M.G.’s case, the respondent engaged in conduct that was prejudicial to the administration of justice.
b. The respondent also engaged in conduct that was prejudicial to the administration of justice when she filed the wrongful death action on behalf of tire estate of P.J. and then took no additional action.
c. Additionally, the respondent engaged in conduct that was prejudicial to the administration of justice when she filed the personal injury litigation on behalf of J.S. and then took no action to prosecute tire case.
d. Finally, the respondent engaged in conduct that was prejudicial to the administration of justice when she failed to forward the restitution payments from D.D. to the district court on three occasions.
“54. As such, the hearing panel concludes that the respondent violated KRPC 8.4(d) in four cases.
“KRPC 8.4(g)
“55. ‘It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ KRPC 8.4(g). The respondent engaged in conduct that adversely reflects on her fitness to practice law when she failed to provide J.K. with a copy of the signed grievance, when she failed to forward the grievance to the University of Kansas, when she failed to appear at the scheduled appointment on July 11, 2011, and when she berated J.K. during their late July 2011, meeting. The hearing panel concludes that the respondent violated KRPC 8.4(g).
“Kan. Sup. Ct. R. 218
“56. After an attorney’s license is suspended, the respondent must comply with Kan. Sup. Ct. R. 218. Kan. Sup. Ct. R. 218 requires a suspended attorney to notify clients, opposing counsel, and the courts of the suspension. Following the respondent’s suspension in 2012, tire respondent failed to notify her clients, opposing counsel, and the courts of her suspension. Thus, the hearing panel concludes that the respondent violated Kan. Sup. Ct. R. 218.
“American Bar Association Standards for Imposing Lawyer Sanctions
“57. In making this recommendation for discipline, the hearing panel considered the factors outlined by die American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“58. Duty Violated. The respondent violated her duty to her clients to provide competent and diligent representation. The respondent violated her duty to her clients to provide adequate communication. The respondent violated her duty to the legal profession to refrain from engaging in conduct that is prejudicial to the administration of justice. Finally, the respondent violated her duty to the legal system to comply with court orders and rules and timely prosecute litigation.
“59. Mental State. The respondent knowingly violated her duties.
“60. Injury. As a result of the respondent’s misconduct, the respondent caused actual and serious injury to her clients. The respondent does not appear to fully appreciate the serious injury that she caused to her vulnerable clients. M.G.’s cause of action was dismissed because of the respondent’s misconduct. J.K.’s grievance was never filed with the University of Kansas as a direct result of tlie respondent’s misconduct. Because of the respondent’s misconduct, $5,500 sat in trust for N.R. for 5 years. The estate of P.J. lost its wrongful death cause of action because of the respondent’s misconduct. R.E.’s discrimination claim on behalf of his daughter was lost because of the respondent’s failures. J.S., a developmentally disabled individual, lost his cause of action when liability was clearly established and when there was a $1,000,000 policy limit. The respondent seems to argue that her misconduct in the J.S. case is mitigated by the fact that J.S. died and left no heirs. What the respondent fails to recognize is that had the respondent provide diligent representation to J. S., he could have used the settlement proceeds to increase the quality of the last portion of his life. Finally, the victim of D.D.’s criminal action did not receive the restitution payments made by D.D. because the respondent failed to forward the payments to the district court.
“61. The serious injury caused by the respondent’s misconduct is significant to each of these individuals.
“Aggravating and Mitigating Factors
“62. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present:
“63. Prior Disciplinary Offenses. The respondent has been previously disciplined on one occasion. For the respondent’s misconduct regarding M.G., the respondent participated in the attorney diversion program. Pursuant to Kan. Sup. Ct. R. 203(d), unsuccessful participation in the attorney diversion program constitutes previous discipline.
“64. A Pattern of Misconduct. The respondent has engaged in a pattern of misconduct. The respondent failed to provide competent and diligent representation to many clients. Further, the respondent failed to provide adequate communication to a number of clients.
“65. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 1.16, KRPC 3.2, KRPC 5.5, KRPC 8.4(d), KRPC 8.4(g), and Kan. Sup. Ct. R. 218.
“66. Refusal to Acknowledge Wrongful Nature of Conduct. In the respondent’s initial response to the complaints and in the respondent’s answer, other than the admissions required by the attorney diversion agreement, the respondent refused to acknowledge that her conduct amounted to rule violations. During the hearing, she begrudgingly acknowledged that her conduct rose to the level of rule violations.
“67. Vulnerability of Victim. The respondent’s clients were all particularly vulnerable to the respondent’s misconduct. Each of the respondents came to the Disability Rights Center because they have a disability. Each of the respondents relied on the respondent to protect their legal rights.
“68. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1997. At the time of the misconduct, the respondent has been practicing law for many years.
“69. Indifference to Making Restitution. Clearly, the respondent is indifferent to making restitution to her injured clients. The record is void of any reference by die respondent to making or attempting to make restitution to any of her clients.
“70. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present:
“71. Absence of a Dishonest or Selfish Motive. The respondent’s misconduct does not appear to have been motivated by dishonesty or selfishness.
“72. Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The respondent suffers from many health problems including ovarian cysts, Hashimoto’s thyroiditis, Lyme’s disease, Rocky Mountain Spotted Fever, restless leg syndrome, and depression. Additionally, the respondent had a ‘breast cancer scare.’ It is clear that the respondent’s health problems contributed to her misconduct.
“73. Previous Good Character and Reputation in the Communitij Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. Kathleen Ambrosio, Kip Elliott, and Lane Williams testified about the respondent’s previous good character and reputation.
“74. Physical Disability. The physical ailments which the respondent has endured amount to a physical disability which mitigates the respondent’s misconduct.
“75. In addition to die above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:
‘4.12 Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.
‘4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.
‘6.22 Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding.’
“Recommendation
“76. The disciplinary administrator recommended that the respondent be suspended for a period of 1 year. Further, the disciplinary administrator recommended that prior to reinstatement, the respondent undergo a hearing pursuant to Kan. Sup. Ct. R. 219. The respondent recommended that her plan of probation be adopted. The respondent further recommended that if the hearing panel was not satisfied with the proposed plan of probation, that the hearing panel could craft a plan that will allow the respondent to continue to practice law.
“77. Kan. Sup. Ct. R. 211(g)(3) dictates when a hearing panel may recommend that a respondent be placed on probation.
The Hearing Panel shall not recommend that the Respondent be placed on probation unless:
(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Healing Panel at least fourteen days prior to tire hearing on the Formal Complaint;
(ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each.of the terms and conditions of the probation plan;
(iii) the misconduct can be corrected by probation; and
(iv) placing tire Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.’
“78. First, in this case, the respondent is not eligible for placement on probation because the respondent’s license is not in good standing. The respondent’s license is currently suspended for failure to comply with continuing legal education obligations. For a period of approximately 18 months, the respondent has taken no action to rectify the administrative problems with her license. The fact that tire respondent failed to take action to have the administrative suspension lifted reflects directly on the respondent’s ability to succeed on probation. In the hearing panel’s opinion, a recommendation of probation is not appropriate to make regarding a suspended attorney.
“79. Additionally, pursuant to Kan. Sup. Ct. R. 211(g), probation is not appropriate in this case. The proposed plan is not workable, substantial, and detailed as required by the rule. Currently, the respondent does not have an attorney selected to supervise the probation. Further, the respondent failed to put the proposed plan of probation into effect prior to the hearing on the formal complaint. Finally, placing the respondent on probation is not in the best interests of the legal profession and the citizens of the State of Kansas.
“80. From a review of the evidence, it is clear that a period of suspension is warranted and necessary. The respondent needs time to manage her physical issues. Further, the respondent needs sufficient time to reflect on the injury that she caused to her clients. Finally, the respondent needs time to develop a plan that will succeed in preventing a recurrence of the misconduct, in the event the respondent is permitted to resume the practice of law.
“81. Accordingly, based upon the findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously recommends that the respondent be indefinitely suspended. Because the respondent continued to practice after her license was suspended, it is not appropriate to recommend that the suspension be made retroactive to the date of the administrative suspension. However, the uncontradicted testimony is that the respondent did not practice law following her termination of employment with the Disability Rights Center. From the evidence presented, it appears that the respondent’s employment with the Disability Right Center was terminated approximately January 21, 2013. Accordingly, the hearing panel recommends that the suspension be made retroactive to January 21, 2013.
“82. Costs are assessed against the respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, the discipline that should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2013 Kan. Ct. R. Annot. 356). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Respondent was given adequate notice of the formal complaint, to which she filed an answer, and adequate notice of the hearing before the panel and the hearing before this court. The respondent did not file exceptions to the hearing panel’s final hearing report. The panel’s findings of fact are therefore deemed admitted. Supreme Court Rule 212(c) and (d) (2013 Kan. Ct. R. Annot. 375).
The evidence before the hearing panel establishes by clear and convincing evidence that the charged misconduct violated KRPC 1.1 (2013 Kan. Ct. R. Annot. 446) (competence); 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.4(a) (2013 Kan. Ct. R. Annot. 484) (communication); 1.15(b) (2013 Kan. Ct. R. Annot. 553) (safekeeping property); 1.16(d) (2013 Kan. Ct. R. Annot. 569) (termination of representation); 3.2 (2013 Kan. Ct. R. Annot. 587) (expediting litigation); 5.5(a) (2013 Kan. Ct. R. Annot. 630) (unauthorized practice of law); 8.4(d) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct prejudicial to the administration of jus tice); 8.4(g) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct adversely reflecting on lawyer s fitness to practice law); and Kansas Supreme Court Rule 218 (2013 Kan. Ct. R. Annot. 406) (notification of clients upon suspension), and it supports the panels conclusions of law. We adopt the panel’s conclusions.
At the hearing before this court, at which the respondent appeared, Deputy Disciplinary Administrator Kate F. Baird recommended that the respondent be suspended for a period of 1 year and that she be required to undergo a- Rule 219 reinstatement hearing. Baird further recommended that any future reinstatement of respondent be conditioned upon her submission to physical and mental health assessments and a demonstration that respondent fully participated in any treatment recommended as a result of those assessments. Baird also suggested that respondent should be required to demonstrate compliance with requirements for continuing legal education before any reinstatement.
Counsel for the respondent represented to this court at oral argument that his client agreed with the discipline recommendation advocated by the Disciplinary Administrator’s office. However, tire respondent stated during her presentation to the court that, in view of the fact that she had not practiced law in almost 2 years, she sought discipline of published censure. Respondent also said she had completed all required CLE for 2013 but had not attempted to comply with her CLE requirement for 2014. In response to a question from the court, respondent admitted she also had not attempted to take financial responsibility for any monetary losses of clients harmed by her ethical violations.
In rebuttal, Baird referred the court to Paragraph 80 of the panel’s final report, in which the panel members observed that respondent needed time to reflect on tire harm she had caused her clients. Baird suggested that respondent’s comments regarding her clients during the hearing before this court did not demonstrate that respondent had developed an appreciation for that harm.
We agree. As a result, we believe it necessary to suspend respondent indefinitely from the practice of law. If she seeks reinstatement in the future, she will be required to produce reasonably contemporaneous reports from physical and mental health profes sionals describing her compliance with any treatment recommendations and supporting her petition for reinstatement. Further, respondent’s reinstatement panel should investigate and develop recommendations for the court on whether any period of respondent’s future law practice should be supervised. In addition, in order to achieve any future reinstatement, the respondent must be in compliance with CLE requirements. The majority of the court rules that respondent’s period of indefinite suspension shall be retroactive to January 21, 2013, the approximate date of respondent’s termination by the Disability Rights Center; a minority of the court would not make the period of indefinite suspension retroactive.
Conclusion and Discipline
It Is Therefore Ordered that Karen A. Eager be indefinitely suspended from the practice of law in Kansas, retroactive to January 21, 2013. See Supreme Court Rule 203(a)(2) (2013 Kan. Ct. R. Annot. 300).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2013 Kan. Ct. R. Annot. 406) and, in the event of her filing of a petition for reinstatement, shall be subject to a reinstatement hearing under Rule 219 (2013 Kan. Ct. R. Annot. 407).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.
Biles, J., not participating.
James T. Pringle, Jr., District Judge, assigned.
Michael J. Malone, Senior Judge, assigned. | [
-80,
-24,
-52,
125,
-120,
99,
56,
60,
81,
-37,
119,
115,
-19,
-22,
9,
123,
-45,
109,
-48,
121,
-59,
-76,
115,
-63,
102,
-13,
-8,
85,
-70,
127,
-11,
-99,
73,
48,
-46,
-43,
-122,
-54,
-59,
-100,
-90,
1,
11,
-16,
-39,
-63,
-80,
41,
-110,
13,
49,
126,
51,
44,
21,
-53,
104,
124,
95,
111,
-63,
-111,
-111,
-107,
122,
16,
-93,
-123,
-100,
7,
92,
63,
-120,
56,
34,
-24,
115,
-74,
-126,
-28,
79,
-55,
73,
38,
98,
35,
9,
-89,
-96,
-84,
78,
88,
12,
98,
-111,
81,
105,
9,
-106,
-4,
117,
22,
35,
124,
-18,
-59,
31,
120,
15,
-53,
-60,
-111,
31,
71,
-50,
26,
-17,
-92,
16,
53,
-123,
102,
94,
-45,
50,
19,
-18,
-95
] |
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Rodney K. Murrow, of Lenexa, an attorney admitted to the practice of law in Kansas in 1990.
On December 27, 2013, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on January 22, 2014. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on February 25, 2014, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.1 (2013 Kan. Ct. R. Annot. 446) (competence); 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.4(a) (2013 Kan. Ct. R. Annot. 484) (communication); 1.16(a)(2) and (d) (2013 Kan. Ct. R. Annot. 569) (termination of representation); 3.2 (2013 Kan. Ct. R. Annot. 587) (expediting litigation); and 3.4(d) (2013 Kan. Ct. R. Annot. 601) (failure to respond to discovery request).
Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“Findings of Fact
“Representation of J.B.
“8. On November 30,2011, J.B. retained the respondent to represent him in connection with an employment matter. J.B. paid the respondent $5,000 for the representation. The representation concerned J.B.’s former employer’s allegation that J.B. violated the non-compete clause of his employment agreement hy going to work for his new employer.
“9. The respondent recommended that J.B. file a lawsuit against the former employer to obtain a temporaiy restraining order and a permanent injunction, preventing the former employer from interfering with J.B.’s current employment.
“10. On December 6, 2011, the respondent filed suit against J.B.’s former employer.
“11. On October 25, 2012, the defendant filed a motion for summary judgment. The respondent failed to file a response to the motion for summary judgment. On December 4,2012, the court sent an electronic mail message to counsel for all tlie parties of die litigation. In the message, die court stated:
‘It looks to me like defendant’s motion for summary judgment on plaintiff s claims and for partial summary judgment on the counterclaims . . . has gone unopposed under Kansas Supreme Court Rule 141. I have reviewed the unopposed motion and it appears it should be granted. You may prepare and circulate an appropriate Journal Entry and bring it with you for approval on December 10 at 3 PM when we will have our Pretrial Conference per the Case Management order and take up defendant’s motion to amend for punitive damages . . . .’
“12. The respondent did not appear for die pretrial conference, scheduled for December 10, 2012. Rather, the respondent filed a motion seeking to stay the proceedings and set aside orders due to his personal medical emergency. The respondent provided a letter from his psychiatrist, in camera. The letter provided:
T am writing on behalf of Rod Murrow as his treating physician. Mr. Murrow is currently unable to proceed in his professional capacity due to medical reasons. The issues relating to his current disability include die presence of severe depression for at least die last 9 months including the presence of suicidal ideation resulting in a review of his fife insurance policy. Psychiatric interventions have included medications and psychotherapy. Inpatient hospitalization is being considered. He is being placed on medical leave from his current employment, as he is overwhelmed with the demands of his job. Anything the court could do to accommodate his current illness would be gready appreciated.’
“13. The court denied the respondent’s medical emergency motion to stay proceedings, the court granted the respondent’s motion to continue the pretrial hearing, and the court granted die defendant’s motion for summary judgment. The court continued die pretrial hearing to January 17, 2013, and ordered the respondent ‘to have co-counsel enter his/her appearance, or to show cause why co-counsel is not needed, with full disclosure by counsel to [J.B.] as required by KRPC 1.16, no later than December 28, 2012.’ The respondent did not provide J.B. with full disclosure under KRPC 1.16, as ordered by die court.
“14. On January 17, 2013, the respondent appeared at the pretrial hearing without co-counsel, without replacement counsel, without his client, and without showing cause why co-counsel should not be required. The respondent informed the court that he had been in contact with another attorney, but that he did not believe replacement counsel or co-counsel would be necessary. The respondent failed to adequately explain why replacement counsel or co-counsel would not be necessary. The court again continued the case. The court scheduled a hearing for February 19, 2013.
“15. On January 21, 2013, the respondent’s physician prepared a second letter. That letter provided:
1 am writing on behalf of Rod Murrow as his treating physician and to update my 12-03-2012 correspondence. Based on additional information received after my December 3 letter, it also now appears that Mr. Murrow’s depression has a significantly longer history than the previous 9 months, as indicated in my previous letter.
Mr. Murrow responded well to treatment for severe depression and returned to work as expected on 1-07-2013. However, shortly after he returned to work, he experienced a setback. Such setbacks when coming off an initial medical leave, in cases such as his, are not uncommon. I’ve instructed him to briefly extend his leave to through [sic] February 1, 2013.1 anticipate he will be able to return to full-time employment without restrictions, after that date. Given his promising response to treatment, I believe he has an encouraging prognosis going forward from that date.
‘Anything the court could do to accommodate his current illness would be greatly appreciated.’
“16. From November 6, 2012, to February 14, 2013, the respondent had no contact with J.B. On February 15, 2013, the respondent informed J.B. of the respondent’s personal difficulties and the status of tire litigation.
“17. On February 17, 2013, J.B. terminated the respondent’s representation. J.B. retained Patrick G. Reavey.
“18. On February 18, 2013, the respondent’s physician prepared another letter. The letter provided:
T am writing on behalf of Rod Murrow as his treating physician to update my previous correspondence. I am pleased to report that he has responded extremely well to treatment following the extension of his leave in Januaiy and has returned to work full strength. Additionally, I have reviewed the portion of the Court’s order issued on December 10, 2012, regarding Mr. Murrow’s requirement to report to the court by December 28, 2012, whether co-counsel would be required, to provide full disclose [sic] of his condition to his client, and to respond to a motion for punitive damages.
‘In my medical opinion, it was not medically possible for Mr. Murrow to comply with the court order. As stated in my December 3 correspondence, Mr. Murrow was placed on a 30-day leave. The December 10 order ignored or disregarded that medically-ordered leave and required him to perform work that he was expressly medically forbidden from performing during that leave. Further, to the extent that Mr. Murrow attempted to comply with this order, those additional demands during his required leave period likely delayed his recovery and contributed to the setback that he experienced in January which required the extension of his leave.
‘It was my medical opinion when I placed Mr. Murrow on leave on December 3 that, with tire appropriate leave and treatment, that [sic] he should recover and be able to return to work following his leave. Unfortunately, Mr. Murrow’s medical leave was not honored, rendering him medically unable to comply with the court’s orders and contributing to his subsequent setback and extension of his leave.’
“19. On February 19, 2013, the respondent filed a notice of withdrawal. That same day, the court held a hearing. The respondent appeared at the hearing, as did Mr. Reavey. The court allowed the respondent to withdraw from the representation of J.B.
“20. On February 27, 2013, Judge Vano filed a complaint with tire disciplinary administrator.
“21. On February 28, 2013, J.B. filed a complaint with the disciplinary administrator.
“22. On April 10, 2013, Patrick G. Reavey filed a complaint against the respondent for his representation of J.B.
“23. At some point, tire court vacated its previous order granting the defendant’s motion for summary judgment in J.B.’s case. On May 8, 2013, the court denied the defendant’s motion for sunrmaiy judgment.
“24. On May 10, 2013, the respondent wrote to Mr. Reavey. The respoirdent’s letter provided as follows:
“When we first spoke shortly after you undertook representation of [J.B.], I stated that I would do my best to assist [J.B.] in whatever way I could. I meant that.
‘Please find enclosed nry firm check in the amount of $500 to assist with their legal fees. I realize it’s not much but, even though I am back to my old self and doing better than I have in years (if not decades), my practice still has a long way to go to recover from the devastating effects that my depression had on it. I will continue to do as much as possible to assist [J.B.] whenever possible.
1 was very pleased to notice that Judge Sutherland did the right thing (factually, legally and morally) in denying the request for summary judgment. I am extremely pleased that this matter is now assigned to a different division. I remain absolutely convinced that [J.B.j’s current employment doesn’t violate his restrictive covenant in any way, shape or form, which was tire whole reason we sought the protection of the TRO in the first place. I am confident that the case can and will be resolved in [J.B.j’s favor.
1 remain willing to assist, at no cost, in whatever way you, [or J.B.] desire, but I absolutely understand if my assistance is not desired or sought. As usual, if you have any questions, please do not hesitate to contact me at any time.’
On May 29, 2013, J.B. returned the $500 check to the respondent. At tire hearing on this matter, J.B. testified that he returned the check because he wanted to preserve his ability to seek a professional malpractice case against the respondent.
“25. On January 15, 2014, the respondent’s physician wrote an open letter regarding the respondent. The letter provides:
T am writing on behalf of Rod Murrow as his treating physician. On December 3, 2012,1 diagnosed Mr. Murrow with severe depression and ordered him to take 30-day medical leave from his law practice. That leave was later extended for another month, and Mr. Murrow returned to work on February 4, 2013. Mr. Murrow was responding well to treatment at that point. I have continued to treat Mr. Murrow and he has complied with all therapeutic recommendations.
‘During my continued treatment of Mr. Murrow over the last year, it has become clear that his depression long predates the diagnosis on December 3, 2012. I believe that Mr. Murrow had been suffering from severe depression, untreated and unrecognized, for at least several years prior to December 3, 2012. To Mr. Murrow’s credit, I am somewhat surprised that he was able to function professionally on any level during that time.
‘My continued treatment of Mr. Murrow has also revealed what I believe is a unique, singular trigger for his depression, and that is his occupation—the active practice of law. While Mr. Murrow has responded to treatment and made progress in the last year, a consistent pattern has emerged which demonstrates that his occupation and occupation-related stress continue to be a trigger that has prevented his full recovery. Continued exposure to this occupational trigger will mean continued issues with his severe depression, even with treatment, and continued impairment of his occupational duties.
‘As [sic] result, it is my medical opinion that it is necessary for Mr. Murrow to cease practicing law in order to facilitate his full recovery from severe depression, and I have ordered him to do so. To continue to practice law is to continue daily exposure to the unique, singular trigger for his severe depression, resulting in continued occupational impairment and preventing a full recovery. In particular, Mr. Murrow should, as quickly as practicable, cease or withdraw from active litigation, then close out other non-litigation matters as soon as possible. Mr. Murrow is following my therapeutic recommendation and actively pursuing employment opportunities outside the active practice of law. As to his potential return to tire practice of law; only time will tell.’
“Representation of KB.
“26. On April 17, 2012, K.B. retained the respondent to represent her in her effort to purchase her parent’s share of a business which she co-owned with them. K.B. paid the respondent $2,000 for the representation. K.B. and her parents were in strong disagreement regarding the future of the business.
“27. The respondent advised K.B. to initiate a lawsuit against her parents, forcing them to dissolve the family business or sell their ownership interest to K.B. K.B. opposed the respondent’s recommendation to sue her parents.
“28. For a period of 4 months, the respondent performed little or no work on K.B.’s representation.
“29. On September 25,2012, K.B. terminated the respondent as her attorney. K.B. retained Matthew P. Dykstra to replace the respondent. Mr. Dykstra needed K.B.’s client file so that he could properly represent her. K.B. requested that the respondent return her client file and provide an accounting of the $2,000.
“30. On seven separate occasions between October 9, 2012, and May 17, 2013, Mr. Dykstra contacted the respondent and requested that the respondent forward K.B.’s file and accounting to Mr. Dykstra. On April 9, 2013, the respondent called Mr. Dykstra and briefly spoke to Mr. Dykstra regarding K.B.’s representation. Otherwise, the respondent failed to respond to the requests for information.
“31. Finally, on June 4, 2013, the respondent apologized for the delay and stated, ‘[t]he file is getting pulled and copied. I’m in a mediation all day tomorrow but I should be able to get this all out to you by Friday or Monday at the very latest.’ The respondent never provided the file or tire accounting.
“32. On July 18, 2013, Mr. Dykstra filed a complaint against the respondent.
“Representation of J.M.
“33. On January 11, 2012, on behalf of J.M., the respondent filed suit against American Energy Solutions, Inc., in Johnson County District Court. The respondent, however, failed to prepare a summons for service for approximately a month.
“34. On March 19, 2012, Michael S. Martin, attorney for American Energy Solutions filed an answer and counterclaim. The respondent failed to answer the counterclaim.
“35. The court scheduled a case management conference for June 4, 2012. The respondent failed to appear at the case management conference. During the conference, the court dismissed J.M.’s suit and granted default judgment against J.M. in the amount of $21,807.32. The court entered the journal entry on June 6, 2012.
“36. One year later, in June 2013, tire respondent filed a motion to set aside the default judgment and reinstate J.M.’s petition. Mr. Martin filed a memorandum opposing the respondent’s motion. In August 2013, American Energy sold all of its assets which rendered J.M.’s litigation pointless. No action was taken on die respondent’s motion.
“Representation ofRD.
“37. On August 22, 2012, on behalf of R.D., the respondent filed suit against Premium Nutritional Products, Inc., in Johnson County District Court. The re spondent sought a restraining order, a temporary injunction, a permanent injunction, and declaratory relief for R.D.
“38. Premium Nutritional Products, Inc., filed counterclaims against R.D. The respondent failed to answer the counterclaims.
“39. The respondent failed to comply with discovery. The respondent failed to respond to many attempts to resolve scheduling and discovery disputes. The respondent failed to meet deadlines in tire case.
“40. As a result, counsel for Premium Nutritional Products, Inc., filed a motion to compel. The court scheduled a hearing on the motion to compel for August 26, 2013. The respondent failed to appear at the scheduled hearing.
“41. Recause the respondent failed to appear at the scheduled hearing, the court dismissed R.D.’s action and granted judgment to Premium Nutritional Products, Inc. on its counterclaim against R.D. Additionally, the court scheduled a hearing to determine the monetary damages caused by the respondent and his client.
“42. On October 1, 2013, the respondent signed an affidavit. The affidavit provided:
T. Iam Rodney Murrow, and I was Plaintiff [R.D.j’s counsel in the above captioned matter until October 1,2013. On October 1,2013 [R.D.] terminated me as his attorney.
‘2. On or about June 28, 2013, [R.D.] notified me that he received a copy of [sic] letter from Defendant’s counsel in which Defendant’s counsel claimed I had failed to respond to several discovery matters, a proposed Journal Entry, settlement communications and [R.D.] ’s deposition noticed for July 2, 2013.
‘3. I told [R.D.] that the matters at issue in the letter were being and would be handled.
‘4. I did not inform [R.D.] that Defendant had filed a Motion to Compel and was seeking to dismiss his case, and a default judgment in Defendant’s favor. I did not inform [R.D.] that a hearing was scheduled on the Motion to Compel.
‘5. I did not inform [R.D.] that I failed to attend the hearing on the Motion to Compel.
‘6. I did not inform [R.D.] that the Journal Entry of Judgment had been entered against him.
‘7. [R.D.] attempted to contact me about these matters on or about September 17, 2013, after he was served with the Journal Entry of Judgment.
‘8. On or about September 20, 2013, I responded to [R.D.]. I told him that I was aware of the situation and I was taking steps to rectify it.
‘9. I asked to meet with [R.D.] on September 25, 2013. At that time I told [R.D.] that I could no longer represent him because my conduct was at issue with respect to the Court entering the Journal Entry of Judgment.’
“43. R.D. retained Phillip Greenfield to represent him in the case. Mr. Greenfield filed a motion to set aside the judgment. The respondent never filed a motion to or a notice of withdraw.
“44. On November 26, 2013, the court awarded attorney fees in favor of Premium Nutritional Products, Inc. and against the respondent and R.D.
“Conclusions of Law
“45. Based upon the respondent’s stipulation and tire above findings of fact, tire hearing panel concludes as a matter of law that tire respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.16(a)(2), KRPC 1.16(d), KRPC 3.2, and KRPC 3.4(d), as detailed below.
“KRPC 1.1
“46. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ The respondent failed to exercise the thoroughness and preparation necessary for tire representation of J.B., K.B., J.M., and R.D. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.1.
“KRPC 1.3
“47. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The respondent failed to diligently and promptly represent J.B., K.B., J.M., and R.D. The respondent failed to appear- at scheduled hearings, respond to discovery, file answers to counterclaims, and respond to motions. Finally, tire respondent’s lack of diligence caused all four of his clients actual injuiy. Because tire respondent failed to act with reasonable diligence and promptness in representing his clients, the hearing panel concludes that tire respondent violated KRPC 1.3.
“KRPC 1.4
“48. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the respondent violated KRPC 1.4(a) when he failed to keep J.B., K.B., J.M., and R.D. informed regarding the status of tire representations. Accordingly, the hearing panel concludes that dre respondent violated KRPC 1.4(a).
“KRPC 1.16
“49. An attorney whose ‘physical or mental condition materially impairs tíre lawyer’s ability to represent dre client,’ shall withdraw from the representation. KRPC 1.16(a)(2). In this case, the respondent’s serious mental health condition impaired his ability to properly represent J.B., K.B., J.M., and R.D. The respondent failed to timely withdraw from the representations as required by KRPC 1.16(a)(2). Accordingly, dre hearing panel concludes that the respondent violated KRPC 1.16(a)(2).
“50. Additionally, KRPC 1.16 requires lawyers to take certain steps to protect clients after dre representation has been terminated. Specifically, KRPC 1.16(d) provides dre requirement in tiris regard:
‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’
The respondent failed to properly account for the $5,000 fee paid by J.B. and the $2,000 fee paid by K.B. Further, the respondent failed to relinquish K.B.’s file after many demands for the file. The hearing panel concludes that the respondent violated KRPC 1.16(d).
“KRPC 3.2
“51. An attorney violates KRPC 3.2 if he fails to make reasonable efforts to expedite litigation consistent with the interests of his client. The respondent caused unnecessary delay in J.B.’s case, J.M.’s case, and R.D.’s case. Accordingly, the hearing panel concludes that the respondent violated KRPC 3.2.
“KRPC 3.4(d)
“52. KRPC 3.4(d) provides that a lawyer shall not ‘in pretrial procedure, make a frivolous discovery request or fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party.’ In his representation of R.D., the respondent failed to respond to Premium Nutritional Products, Inc.’s reasonable requests for discovery. Thus, the hearing panel concludes that tíre respondent violated KRPC 3.4(d).
“American Bar Association Standards for Imposing Lawyer Sanctions
“53. In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“54. Duty Violated. The respondent violated his duty to his clients to provide competent and diligent representation and adequate communication. The respondent violated his duty to the legal system to comply with court orders.
“55. Mental State. The respondent knowingly violated his duty.
“56. Injury. As a result of the respondent’s misconduct, the respondent caused actual injury to all four clients.
“Aggravating and Mitigating Factors
“57. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factor present:
“58. A Pattern of Misconduct. The respondent has engaged in a pattern of misconduct. In his representation of four separate clients, the respondent violated many of the same rules. The respondent’s lack of diligence and communication was present in each of tire cases.
“59. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, ICRPC 1.16(a)(2), KRPC 1.16(d), KRPC 3.2, and KRPC 3.4(d). Accordingly, the hearing panel concludes that the respondent committed multiple offenses.
“60. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted dre respondent to practice law in die State of Kansas in 1990. At the tíme of the misconduct, the respondent had been practicing law for more than 20 years.
“61. Indifference to Making Restitution. The respondent has taken no considerable action to determine each client’s loss which resulted from die respondent’s misconduct. The respondent’s cavalier attitude regarding righting the wrongs caused by his misconduct was disconcerting to the hearing panel. Further, die respondent’s lack of empadiy toward his clients negated any expression of remorse present in tiiis case. Finally, the respondent testified tiiat he borrowed $35,000 from a family trust in order to purchase the franchise. The hearing panel finds it telling that he failed to malee similar arrangements to make restitution to his injured clients.
“62. Mitigating circumstances are any considerations or factors tiiat may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present:
“63. Absence of a Prior Disciplinai~y Record. The respondent has not previously been disciplined.
“64. Absence of a Dishonest or Selfish Motive. The respondent’s misconduct does not appear to have been motivated by dishonesty or selfishness.
“65. Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The respondent suffers from depression. It is clear tiiat die respondent’s depression directly contributed to his misconduct in this case. The respondent’s depression, however, does not appear to have abated sufficiently to render the respondent currently fit to practice law.
“66. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The respondent fully cooperated with the disciplinary process. Additionally, the respondent admitted the facts and the rule violations alleged in die formal complaint.
“67. Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends, and Lawyers in Suppori of the Character and General Reputation of the Attorney. The respondent has been an active and productive member of the bar of Johnson County, Kansas. The respondent appears to enjoy the respect of his friends and peers and generally possesses a good character and reputation as evidenced by letters received by the hearing panel.
“68. In addition to tire above-cited factors, the hearing panel has thoroughly examined and considered tire following Standards:
‘4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.
‘6.22 Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding.’
“Recommendation
“69. The disciplinary administrator recommended that the respondent be indefinitely suspended from the practice of law. The respondent recommended his plan of probation be granted and that he be allowed to continue to have a license to practice law. The respondent, however, has no plans to engage in the active practice of law. Alternatively, die respondent argued that censure would be appropriate discipline in this case.
“70. Probation is designed for attorneys who have engaged in conduct warranting suspension but who have shown that they have resolved their difficulties and deserve a chance to continue to practice law. While the respondent’s misconduct warrants suspension, the other circumstances are not present. In this case, the respondent has no plans to practice law. Additionally, the respondent’s difficulties have not been resolved. His physician has indicated that he needs to withdraw from the practice of law.
“71. Moreover, in order for a hearing panel to recommend that a respondent be placed on probation, the hearing panel must find:
‘(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least 14 days prior to the hearing on the Formal Complaint;
‘(ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan;
‘(in) tlie misconduct can be corrected by probation; and
'(iv) placing tire Respondent on probation is in the best interests of the legal profession and tire citizens of the State of Kansas. Kan. Sup. Ct. R. 211(g)(3).’
“72. The respondent failed to provide a workable, substantial, and detailed plan of probation. Despite the requirements of Kan. Sup. Ct. R. 211(g)(3), the respondent argued that his plan could be tweaked and he was open to any changes to the plan. However, that is not how probation in Kansas works. The plan must be workable, substantial, and detailed, and put into place prior to the hearing on the formal complaint. The respondent also failed to put the plan into effect prior to the hearing on the formal complaint. And, finally, placing the respondent on probation is not in the best interests of the legal profession and the citizens of the State of Kansas. The respondent stated that he wants to keep his law license for the business benefit it will provide him in connection with his planned employment agency franchise. The hearing panel concludes that tire respondent’s request for probation must be denied.
“73. The question then become whether censure or suspension is appropriate discipline to impose in this case. The respondent engaged in serious, continuous misconduct over a period of time. Four clients suffered actual injury as a result of the respondent’s misconduct. Finally, according to the respondent’s physician, for the time being, the respondent is not able to engage in the practice of law.
“74. On the record in the February 19, 2013, hearing, Judge Vano concisely summed up this case:
‘The Professional Rules of Conduct, however, don’t allow for just letting a case ride along and letting it go at [the] client’s peril. . . .
‘. . . And he may, in fact, have an illness, but he also has a responsibility to his client.’
“75. Accordingly, based upon the findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously recommends that the respondent be suspended for a period of 1 year. The hearing panel further recommends that prior to reinstatement, tire respondent be required to undergo a hearing pursuant to Kan. Sup. Ct. R. 219. Finally, the hearing panel recommends that before the respondent is permitted to return to the practice of law, the respondent provide full restitution of all attorney fees paid to each of the four injured clients as well as restitution to R.D. for any attorney’s fee awarded as a sanction.
“76. Costs are assessed against the respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2013 Kan. Ct. R. Annot. 356). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Respondent was given adequate notice of the formal complaint, to which he filed an answer, and adequate notice of the hearing before the panel and the hearing before this court. The respondent filed no exceptions to the hearing panel’s final hearing report. As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c) and (d) (2013 Kan. Ct. R. Annot. 375).
The evidence before the hearing panel establishes by clear and convincing evidence the charged misconduct violated KRPC 1.1 (2013 Kan. Ct. R. Annot. 446) (competence); 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.4(a) (2013 Kan. Ct. R. Annot. 484) (communication); 1.16(a)(2) and (d) (2013 Kan. Ct. R. Annot. 569) (termination of representation); 3.2 (2013 Kan. Ct. R. Annot. 587) (expediting litigation); and 3.4(d) (2013 Kan. Ct. R. Annot. 601) (failure to respond to discovery request), and it supports the panel’s conclusions of law. We, therefore, adopt the panel’s conclusions.
In light of the multiple instances of misconduct and rule violations, the office of the Disciplinary Administrator recommended to this court that the respondent be suspended for an indefinite period of time. The respondent suggested we should censure him or place him on probation.
We conclude that censure is not appropriate in this case given the repeated nature of respondent’s conduct and the resulting actual injury to his clients. Further, we agree with the hearing panel that probation is not appropriate for several reasons, including respondent’s failure to present a workable, substantial, and detailed plan that was put into place prior to the hearing on the formal complaint. The hearing panel, after rejecting probation as a viable alternative, recommended that the respondent be suspended for a period of 1 year and that prior to reinstatement, the respondent undergo a reinstatement hearing, under Supreme Court Rule 219 (2013 Kan. Ct. R. Annot. 407), and provide full restitution of all attorney fees paid to each of the four injured clients as well as restitution to R.D. for any attorney fees he had paid pursuant to the district court’s award in favor of Premium Nutritional Products, Inc.
This recommendation is “advisory only and shall not prevent the Court from imposing sanctions greater or lesser than those rec ommended.” Supreme Court Rule 212(f) (2013 Kan. Ct. R. Annot. 377). In this case, we conclude the hearing panel’s recommendation is appropriate.
Conclusion and Discipline
It Is Therefore Ordered that Rodney K. Murrow be suspended for 1 year from the practice of law in the state of Kansas effective on the filing of this opinion in accordance with Supreme Court Rule 203(a)(2) (2013 Kan. Ct. R. Annot. 300).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2013 Kan. Ct. R. Annot. 406) and Rule 219. At any reinstatement hearing conducted under Rule 219, respondent is required to present clear and convincing evidence that:
(1) He has made restitution to his four injured clients in amounts determined appropriate by the hearing panel or has reimbursed the Lawyers’ Fund for Client Protection for all amounts it has paid for claims filed by his clients.
(2) He has received adequate health treatment, including psychological treatment, and has been medically and psychologically evaluated and determined fit to engage in the active practice of law.
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.
Michael J. Malone, Senior Judge, assigned. | [
-112,
-24,
-3,
-36,
-120,
97,
58,
-74,
121,
-61,
119,
83,
-19,
-2,
-120,
123,
83,
105,
-48,
123,
-57,
-80,
123,
-63,
102,
-14,
-7,
85,
-66,
79,
-4,
-36,
73,
48,
-126,
-43,
6,
74,
-107,
28,
-94,
6,
11,
-16,
-5,
-63,
-80,
41,
18,
31,
49,
126,
-13,
42,
17,
75,
-88,
108,
-2,
-82,
-45,
-111,
-45,
5,
126,
22,
-78,
-123,
24,
-113,
84,
127,
-118,
56,
33,
-24,
114,
-74,
-94,
100,
75,
-119,
41,
38,
98,
35,
-104,
-91,
-92,
-100,
15,
-72,
13,
-90,
-39,
80,
75,
13,
-106,
-68,
112,
4,
39,
108,
-32,
69,
31,
108,
10,
-49,
-60,
-109,
31,
101,
-50,
-101,
-17,
-126,
16,
21,
-127,
-26,
95,
-57,
50,
23,
-69,
-75
] |
The opinion of die court was delivered by
Rosen, J.:
A jury found Ronnell Burnett guilty of felony murder, criminal discharge of a firearm at an occupied dwelling, and criminal possession of a firearm. On appeal, Burnett argues that the district court erred by (1) excluding evidence of prior and subsequent shootings taking place at the same residence where the shooting at issue here took place; (2) refusing to grant defense counsel a continuance during trial to edit and present a redacted video recording of Burnett’s interview with a detective; (3) instructing the jury on felony murder; (4) admitting into evidence copies of letters that Burnett had placed in the jail’s outgoing mail; (5) failing to give a limiting instruction regarding evidence of other crimes or civil wrongs committed by Burnett; (6) failing to adequately investigate Burnett’s request for substitute counsel made between his first and second trials; and (7) failing to grant a new trial based on ineffective assistance of trial counsel. Burnett also argues that die cumulative effect of these alleged trial errors denied him a fair trial.
We conclude that the district court erred in preventing Burnett from presenting evidence of other shootings taking place at the residence for the limited purpose of cross-examining investigators who testified about the manner in which the shooting at issue here occurred. But, considering the evidence presented at trial, we conclude that this error was harmless. Similarly, we conclude that the failure to give a limiting instruction regarding Burnett’s other crimes or civil wrongs did not constitute clear error. Finding no other error on the remaining issues Burnett raises, we affirm Burnett’s convictions.
Facts
Tyrone Ramsey and Simone Dickson were engaged in an intimate relationship that resulted in children. At some point, this relationship ended and Dickson began to have a relationship with Burnett, which caused tensions to arise between Burnett and Ramsey. According to Dickson, Ramsey would call Burnett’s phone “all the time making threats and stuff.”
At around 5 p.m. on July 7, 2008, Dickson and Burnett had a verbal confrontation in Dickson’s apartment in North Kansas City, Missouri. The confrontation eventually moved to the apartment’s parking lot where Dickson got into her car and tried to run over Burnett. As Dickson was driving away, Burnett threw a bottle of gin and a bottle of orange juice through the sunroof of Dickson’s car. The plastic orange juice bottle hit Dickson in the head but did not injure her. Dickson proceeded to drive to a Target store, and Burnett followed her in his work truck—a Frosty Treats ice cream truck. Burnett followed Dickson on foot into and out of the store and then followed Dickson in his work truck back to her apartment, where he then drove away.
At some point, Dickson and Ramsey spoke over the phone about the bottle-throwing incident. Ramsey then called Burnett to ask him about throwing a bottle at Dickson. According to Ramsey, before he could say anything, Burnett threatened to kill him. Ramsey hung up on Burnett, but Burnett continued to call him.
At the time, Ramsey was at his residence in Kansas City, Kansas, with his nephew, Willie Claiborne, and Claiborne’s friend, Rahi Larks, die victim in this case. Eventually, Ramsey’s cousin, Steven Allen, came by the residence and picked up Ramsey, leaving Claiborne and Larks behind. Ramsey and Allen went to Allen’s house and drank a few beers. While there, Burnett continued calling Ramsey. Fed up with Burnett calling him, Ramsey had Allen drive him to Burnett’s location—Dickson’s mother’s residence, also in Kansas City, Kansas, and located near Ramsey’s house. Ramsey later explained that he wanted to go there to confront Burnett.
When Ramsey arrived at the residence, he started yelling for Burnett to come out of the house and fight him. When that failed to entice Burnett outside, Ramsey started breaking out the windows of Burnett’s work truck, which was parked in the driveway. Eventually, Dickson’s mother came outside and told Ramsey that she was calling the police, prompting Ramsey and Allen to leave. As they were leaving, Ramsey said that he saw Burnett standing by his work track, talking on a cell phone. Ramsey estimated that it was around 9:30 p.m. when he left Dickson’s mother’s residence. It was later confirmed that Dickson’s mother called 911 at 9:33 p.m. and reported that Ramsey was damaging Burnett’s work truck. Ramsey and Allen returned to Allen’s house.
According to Claiborne, as he and Larks were getting ready to leave Ramsey’s house sometime after 9 p.m., gunshots were fired into the front room of the house. A single bullet hit Larks as he was fleeing into a back bedroom. He died within moments.
Shortly after 11 p.m., law enforcement arrived at the scene and began investigating die shooting. Law enforcement developed leads that indicated that they should speak to Ramsey and Dickson. One of Larks’ family members also contacted police and stated that he or she believed Burnett was responsible for the murder.
Detective Bryan Block of the Kansas City, Kansas, Police Department spoke to Dickson. At first, Dickson denied knowing anything about die shooting. But after Block told Dickson that if she withheld any information about the shooting, her children could be taken away from her and that she and her mother could end up in jail, Dickson told Block about the altercation she had with Burnett, Ramsey vandalizing Burnett’s work truck, and Burnett calling her later that night and telling her that he had shot at Ramsey’s house.
After speaking with Dickson, Block spoke with Ramsey. Ramsey told Block about Burnett threatening to kill him over the dispute they were having involving Dickson. Ramsey admitted to going over to Dickson’s mother’s house and breaking out the windows of Burnett’s work truck.
Block spoke with Burnett on July 11, 2008, at police headquarters. After being advised of and waiving his Miranda rights, Burnett told police about his dispute with Ramsey, which, according to Block, Burnett downplayed. Burnett told Block that he went to Ramsey’s house earlier that evening to speak to him, but Ramsey was not home. Burnett then went to Dickson’s mother’s house. While he was there, Ramsey showed up and called him outside to fight. Burnett said that as he was going outside, Ramsey left in his vehicle.
After Ramsey left, Burnett said that he ran to Ramsey’s home and waited for Ramsey to arrive. Burnett eventually moved to a nearby park to wait. When Ramsey did not return, Burnett left and went back to Dickson’s mother’s house. While there, Burnett said drat he heard some “pops” that sounded like fireworks and one loud “boom.”
Burnett told Block that he eventually left Dickson’s mother’s house and filled up his truck with gas and went back to his home in Kansas City, Missouri. Police later obtained a video of Burnett entering a Conoco station at 11:24 p.m. While viewing the video in court, Block said that there was a bulge in Burnett’s shirt. On cross-examination, Block opined that Burnett, while walking, was holding his arm down like someone who was trying to keep a gun from shifting in his pants.
Block also spoke with Harold Murphy, a manager for Frosty Treats. Murphy told Block, and later testified at trial, that on July 7, 2008, he was training Burnett on his first day as a vendor for Frosty Treats at its place of business in Kansas City, Missouri. While Murphy was showing Burnett how to operate the lights of the ice cream truck assigned to him that day, Murphy noticed the butt of a semiautomatic handgun under the front seat. Murphy told Burnett that having a gun was not allowed. According to Murphy, Burnett mumbled something in reply. Murphy informed his supervisor about seeing the gun. Burnett eventually left in the ice cream truck.
Murphy said that Burnett did not return his truck by 9:30 p.m. on July 7 as required. He said that it was not until 11 a.m. the next day that Burnett returned the truck and that the truck had four shattered windows. Burnett did not explain why the windows were broken out. As Burnett was walking to his car, Murphy told him that he needed to speak to the supervisor. Murphy followed Burnett as he walked into the supervisor’s office. As Burnett was sitting down and spealdng to the supervisor, Murphy noticed a “bulge” under Burnett’s shirt on the right side of his back near the waistline of his pants. Murphy said the bulge looked like the butt of a pistol.
Law enforcement recovered six .40 caliber cartridge cases, two fired bullets (one of which was recovered from Larks’ body), and one fired bullet jacket fragment and submitted them for testing. A firearms and tool mark examiner with the Kansas Bureau of Investigation examined the cartridge cases and determined that they were all fired from the same gun and that the markings on the cartridge cases were consistent with the markings left by a .40 caliber semiautomatic handgun manufactured by Hi-Point Firearms. The examiner also concluded that the two fired bullets were fired from the same gun—most likely a .40 caliber semiautomatic handgun manufactured by Hi-Point. The examiner, however, could not determine conclusively whether the bullet jacket fragment was fired from the same gun as tire two fired bullets. The gun used in the shooting was never located.
While in jail awaiting trial, Burnett wrote two letters to Dickson. The record indicates that prior to Dickson receiving these letters, jail personnel opened and photocopied the letters and sent copies to the prosecutor’s office. Highly summarized, in both letters Burnett asked Dickson to testify at trial tiiat she made up the story about him calling her and telling her that he had shot up Ramsey’s house. Burnett even provided Dickson with explanations she could give at trial for her prior statement and told her in one letter to “make up something that will help me” if she did not like his proposed testimony. Copies of these letters were admitted into evidence. In addition to the letters, Dickson said that Burnett called her on the phone and asked her not to testify that he admitted to the shooting into Ramsey’s house.
Burnett’s case proceeded to a jury trial which ended in a mistrial as a result of the jury’s inability to reach a verdict. A second trial was conducted where the State presented the above-mentioned facts.
On cross-examination, Dickson admitted that during her interview with detectives, she initially denied knowing anything about the shooting. She said tiiat the detectives did not believe her and they told her tiiat if she withheld any information, her children could be taken away from her and she and her mother could end up in jail. Dickson said tiiat she believed that unless she told the detectives something, they would follow through on their threats. She said that in order to avoid those consequences, she told law enforcement that Burnett had called her and admitted to shooting into the house. However, even in spite of law enforcement’s coercive tactics, Dickson denied that she made up the story of Bui'- nett calling her and confessing to the shooting. Defense counsel also cross-examined Detective Block about threatening Dickson in order to get information from her.
The jury found Burnett guilty of all the charges. The district court sentenced Burnett to a hard 20 life sentence for the felony-murder conviction and consecutive sentences of 59 months’ and 8 months’ imprisonment for criminal discharge of a firearm at an occupied building and criminal possession of a firearm, respectively. Burnett filed a timely notice of appeal.
Evidence of Other Shootings
Burnett first argues that the district court erred in excluding evidence showing that other shootings had taken place at Ramsey’s house and that the house was in fact a “drug house.” Burnett argues that this evidence was essential to his defense of innocence at trial because it would have controverted the State’s evidence indicating that he was the only person who had the motive and means of committing the crime. According to Burnett, if he would have been allowed to present evidence that Ramsey’s house was a drug house and that other shootings had taken place before and after the July 7, 2008, shooting, then this evidence would have raised the possibility in the jurors’ minds that someone else may have shot at the residence on July 7. He also argues that he should have been allowed to present evidence of the other shootings in order to question investigators who attributed six bullet holes found at the front of Ramsey’s house to the July 7 shooting. Each of Burnett’s arguments will be addressed in turn.
“The threshold determination for the admission of evidence in any proceeding is relevance. [Citation omitted.] Relevance is established by a material or logical connection between the asserted facts and tire inference or result they are intended to establish. [Citation omitted.] Relevant evidence, as defined in K.S.A. 60-401(b), is 'evidence having any tendency in reason to prove any material fact.’ In State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008), we explained that this definition of ‘relevance’ contains both a materiality element and a probative element. There, we held that an appellate court reviews a district court’s determination of materiality de novo and the assessment of probative value under an abuse of discretion standard. [Citation omitted.]” State v. Ultreras, 296 Kan. 828, 857, 295 P.3d 1020 (2013).
Applicable Facts
Prior to Burnett’s first trial, the State filed a motion in limine seeking to prevent Burnett from introducing evidence at trial that other shootings had occurred at Ramsey’s house. At the hearing on the motion, the prosecutor informed the district court that when investigators went to the house to investigate the July 7 shooting, they discovered older damage to the home that appeared to have been caused by earlier shootings. The prosecutor also informed the court that a subsequent shooting had taken place at the house in October 2008. The prosecutor argued that based on the third-party evidence rule, evidence of these others shootings should be excluded at trial.
Burnett argued that the evidence of other shootings taking place at the residence should be admitted in order to support his defense that someone else committed the July 7 shooting. Furthermore, he argued that presenting evidence of the prior shootings, specifically all the damage the house sustained as result of gunfire, was essential to cross-examining the crime scene investigators who examined the house and concluded that six shots were fired at the front of the house on July 7, 2008. The district court granted the State’s motion in limine.
Prior to Burnett’s second trial, the State resubmitted its motion in limine. Burnett asked the district court to reconsider its prior ruling, arguing that he should be able to present evidence of prior shootings because he claimed that when crime scene investigators examined the house in connection with the July 7 shooting, they found a total of 17 bullet holes. The investigators attributed six of those bullet holes to the July 7 shooting because of the six shell casings found in the street in front of tire house. Burnett argued that he should be able to mention the other 10 bullet holes in the house in order to cross-examine the investigators regarding their conclusions about the manner in which the July 7 shooting was carried out.
The district court concluded that admitting the evidence of prior shootings for the purpose of challenging the investigators’ determination of how the shooting occurred was not relevant to Burnett’s defense of innocence at trial.
At trial, the State presented the testimonies of police officers Ross Hatfield and Alan Jasldnia, members of the crime scene investigation unit who were dispatched to the house on July 7 to collect evidence of the shooting. Hatfield took photographs of the crime scene. Though the photographs are not part of the record on appeal, the trial transcript indicates that one photo showed a window to the left of the front door that had a trajectory rod running through it. Hatfield stated that the purpose of the trajectory rod was to demonstrate the flight path of a bullet that went through the window. During cross-examination regarding the picture, Hatfield admitted that the bullet hole going through the window “wouldn’t necessarily match up” with a bullet hole found in the wall leading into the back bedroom where Larks was shot.
Jaskinia testified about collecting six .40 caliber cartridge cases from the street in front of the residence. Because the shell casings were shiny—as compared to casings with a dull, tarnished appearance caused by being exposed to the elements—Jaskinia concluded that the casings had not been outside for very long. Jaskinia opined that the location of the cartridge cases in the street in relation to Ramsey s house was consistent with someone standing in the street in front of the house and firing a semiautomatic gun multiple times at the house. Detective Block had a similar opinion, testifying “that someone stood in the street and fired into the residence through the window.”
On cross-examination, Jasldnia conceded that the placement of the shell casings on the street did not rule out the possibility that the shell casings were ejected from a gun fired from a moving vehicle.
As mentioned above, law enforcement submitted for testing the six .40 caliber cartridge cases along with two fired bullets (one of which was recovered from Larks’ body) and one fired bullet jacket fragment. It was later determined that the cartridge cases were all fired from the same gun and that the markings on the cases were consistent with the markings left by a .40 caliber semiautomatic handgun manufactured by Hi-Point Firearms. It was also determined that the two fired bullets were fired from the same gun— likely a .40 caliber semiautomatic handgun manufactured by Hi- Point. Finally, it could not be determined conclusively whether the bullet jacket fragment was fired from the same gun as the two fired bullets.
After Burnett was convicted of the charges, he filed a motion for new trial in which he stated:
“The defendant should have been allowed to refer to the fact that the shooting in this case was at a drug house and that there were prior bullet holes, firearms and drugs in the house at which the victim was found. The State alleged that the house at which the victim was found was the home of Tyrone Ramsey. The jury was left with the false impression that this house was his home. In fact, it was a barely liveable house containing ammunition and drugs.
“That the defendant was precluded from referring to these facts is problematic in a couple of areas. First, the defendant was precluded from presenting a defense that someone else other than he was responsible for the homicide. Had the defendant been allowed to refer to this evidence, perhaps he could have argued that there was a reasonable doubt as to his guilt since it was possible that a rival drug dealer or someone wishing to rob him or the house of the narcotics and/or weapons was responsible for the death of the alleged victim. It is within the common knowledge and experience of the jury that drug houses in Kansas City, Kansas are the targets of robberies and shootings.
“Second, the defendant was precluded from arguing that the alleged victim could have been shot and lulled by one of the weapons in the house. There were several live rounds of ammunition found in the house. Since the defendant was not allowed to mention the other potential firearms, he was precluded from arguing that perhaps one of them caused the death. The defendant was denied the right to present an effective defense when he was not allowed to mention the drugs and firearms.”
The State responded by arguing that the district court properly excluded the evidence based on the third-party evidence rule, stating:
“Initially, Defendant endorsed several witnesses, including Detective William Michael, who investigated a homicide at the same location on October 3, 2008, approximately 3 mondas after Rahi Larks was lulled. Such evidence was, and remains, irrelevant to the instant case. In addition, any testimony or evidence that shots had previously been fired at 2412 Haskell was irrelevant and amounted to an impermissible attempt to blame an unknown third parly for the crime.
“At no time has Defendant identified any evidence that would connect any specific third party to dais crime. Rather, Defendant merely sought to argue that a mythical ‘someone else’ could have lulled Rahi Lark[s], Defendant based dais upon his assertion tiaat the location was a drug house, and had been fired upon at some time in the past.
“Such evidence is irrelevant to the charges at issue and any attempt to introduce such evidence would serve no purpose other than to impermissibly impugn the character of the victim and witnesses.”
The district court denied Burnett’s motion for a new trial at sentencing. In doing so, the court specifically addressed Burnett’s argument regarding the exclusion of third-party evidence:
“Certainly, the third party issue was argued at length regarding whether the shootings—some shootings had occurred prior, some shootings might have occurred after in regard to the house. Certainly, I reviewed the arguments from both sides and made a ruling that that was not relevant evidence and would not have given any sort of exculpatory emphasis to the defendant and certainly didn’t point—there’s never been any third party identified or even indicated that could have or, in fact, did commit the acts that the defendant was convicted of. So I— there was no basis. I think statutory and case law support the Court’s position in that respect.”
Analysis
A. Admitting Evidence of Other Shootings to Show a Third Party’s Involvement
Initially, we note that though Burnett may have proffered sufficient evidence to show that shootings had taken place at Ramsey’s house before and after July 7, 2008, at no time did he proffer any evidence to show that Ramsey’s house was a “drug house” or that police found weapons and ammunition inside the house when they searched it on July 7. Accordingly, we find that Burnett has failed to preserve for appeal whether the district court erred in excluding this evidence. See State v. Evans, 275 Kan. 95, 99, 62 P.3d 220 (2003) (“When a motion in limine has been granted, the party being limited by the motion has the responsibility of proffering sufficient evidence to the trial court in order to preserve the issue for appeal.”).
Whether a third party was responsible for the crime a defendant is charged with is clearly a material fact related to determining the defendant’s guilt or innocence. We have previously stated that “[w]hile evidence of the motive of a third party to commit the crime, standing alone, is not relevant, such evidence may be relevant if there is other evidence connecting the third party to the crime.” State v. Brown, 285 Kan. 261, Syl. ¶ 26, 173 P.3d 612 (2007). In other words, without additional evidence showing that a third party could have committed the crime (e.g., presence at the crime scene, the opportunity and means to commit tire crime), evidence merely suggesting that someone other than the defendant had a motive to commit the crime has little probative value and can be properly excluded at trial. “A district court judge must evaluate the totality of facts and circumstances in a given case to determine whether the defense’s proffered evidence effectively connects the third party to the crime charged.” 285 Kan. 261, Syl. ¶ 27. Because the district court’s determination of this question contemplates whether the proffered evidence is probative to establishing a third party’s involvement in the charged crime, the district court’s decision is reviewed for an abuse of discretion. See Ultreras, 296 Kan. at 857 (An appellate court reviews a district court’s assessment of probative value under an abuse of discretion standard.); see also State v. Inkelaar, 293 Kan. 414, 438, 264 P.3d 81 (2011) (A district court’s decision under die third-party evidence rule is subject to an abuse of discretion standard of review on appeal.).
In State v. Marsh, 278 Kan. 520, 531, 102 P.3d 445 (2004), rev'd on other grounds by Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006), this court clarified that the admission of third-party evidence does not turn on the sometimes ha2y distinction between direct and circumstantial evidence. In diat case, Marsh was accused of killing a mother and her child, but diere was also evidence that a third party—the husband and father of the victims—might have been involved in the murders. The Marsh court found that Marsh had proffered more than mere evidence of the husband’s motive—the husband’s blood and the blood of one of the victims had been found on Marsh’s shoes. As a result, this court held Marsh’s right to a fair trial had been violated by the trial court’s exclusion of die third-party evidence. 278 Kan. at 533.
In Evans, the defendant tried to admit evidence that another person was seen holding die murder weapon immediately after the fatal shot was fired. There was also evidence that this person admitted to shooting the victim and later removing his body. In hold ing that the district court erred in not admitting the third-party evidence, this court stated: “Circumstantial evidence that would be admissible and support a conviction if introduced by the State cannot be excluded by a court when offered by the defendant to prove his or her defense drat another killed die victim.” Evans, 275 Kan. at 105-06.
In both Marsh and Evans, the defendants, in addition to proffering evidence of a third party’s motive for committing the crime, proffered evidence showing that the third party was present at the crime scene. In contrast, in Inkelaar and State v. Adams, 280 Kan. 494, 505-07, 124 P.3d 19 (2005), though the defendants in each case had identified a third party with a possible motive for committing the crime, neither defendant could produce evidence placing the third party at the scene of the crime during the relevant time period. Accordingly, in both cases, this court found that the district court had not abused its discretion in excluding the proffered third-party evidence. Inkelaar, 293 Kan. at 441; Adams, 280 Kan. at 507.
In this case, Burnett proffered evidence establishing that Ramsey’s house was the target of shootings before and after July 7 and suggested that because the house had been the target of other shootings—which he claimed were drug related—it was possible that someone else was responsible for the July 7 shooting. Though the evidence tends to show that the house attracted criminal activity, it fails to identify or show that someone other than Burnett was responsible for the July 7 shooting. Without evidence connecting the prior or subsequent shootings to the July 7 shooting (e.g., the same gun was used in all the shootings), the evidence of prior or subsequent shootings has little probative value to establishing the material fact that someone other than Burnett committed the July 7 shooting.
Presenting such evidence in this case would be analogous to presenting evidence of prior and subsequent robberies of a convenience store when a defendant is charged with robbing the store on a specific date—for example, July 7. Without evidence showing that the person or persons responsible for the other robberies also committed the July 7 robbeiy, such evidence has little probative value in establishing the defendant’s innocence for the July 7 robbery. In fact, such evidence is less probative to establishing a third party’s responsibility for the crime charged than the evidence found to be properly excluded at trial in Inkelaar and Adams. We conclude, therefore, that the district court did not abuse its discretion in excluding Burnett’s proffered evidence at trial for the purpose of establishing a third party’s responsibility for the crime.
B. Admitting Evidence of Other Shootings for Purpose of Cross-Examining Crime Scene Investigators
As mentioned above, the State presented evidence at trial indicating that on July 7, 2008, someone stood in the street in front of Ramsey’s house and fired a .40 caliber semiautomatic handgun six times at Ramsey’s house. One of the gunshots hit Larks and lulled him. Burnett proffered evidence that the house had sustained odrer gunshots besides the slx that the State was attributing to the July 7 shooting. We agree with Burnett’s argument that questioning the investigators about these other gunshot holes could have impugned the State’s theory that the July 7 shooting resulted from a lone gunman standing in the street and firing his weapon at the front of Ramsey’s house. The presence or absence of explanations for why the other gunshot holes were disregarded would impact the weight of the State’s evidence—its probativeness-—rather than its materiality. Accordingly, we conclude that the district court erred in denying Burnett’s request to question the investigators regarding the other gunshot holes to tire house. We proceed with determining whether this error was harmless.
The erroneous exclusion of evidence is subject to review under the harmless error test of K.S.A. 60-261, which asks whether “there is a reasonable probability that the error did or will affect the outcome of the trial in light of tire entire record.” State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). Factors an appellate court can consider in reviewing the erroneous exclusion of evidence for harmless error include: “the importance of the witness’ testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the case.” Ultreras, 296 Kan. 828, Syl. ¶ 11.
Though questioning the detectives about the other gunshot holes may have aided Burnett in challenging the evidence the State presented to show how the shooting occurred, we find that such questioning had little importance to Burnett’s defense at trial. It was undisputed at trial that on July 7,2008, someone fired multiple gunshots at Ramsey’s house and that one of these gunshots struck and lulled Larks. The main issue at trial was the. identity of the shooter, and the State presented circumstantial evidence to identify Burnett as the culprit. Consequently, the exact manner in which the shooting occurred was not essential to the State’s casein-chief and had little bearing on Burnett’s defense of innocence.
The State presented evidence showing that Burnett and Ramsey had an antagonistic relationship that was exacerbated on July 7 when Dickson called Ramsey and told him about Burnett hitting her with a juice bottle. When Ramsey called Burnett and asked him about the incident, Burnett threatened to kill Ramsey. The State presented evidence showing that Burnett possessed a gun on July 7 and that, after Ramsey had broken out the windows of Burnett’s truck, Burnett had a motive and opportunity for firing his gun at Ramsey’s house. Finally, Dickson testified at trial that Burnett called her later that night and admitted to shooting at Ramsey’s house. She also testified about the letters she received from Burnett (admitted into evidence at trial) instructing her not to testily that he admitted to shooting Ramsey’s house. Based on Burnett’s statements within these letters (e.g., “make up something that will help me” and “[t]hat’s da only way I’ll come home that day if you don’t say anything to make me look guilty”), the jury could clearly infer that Burnett was wanting Dickson to commit perjury at trial by testifying that he did not admit to the shooting at Ramsey’s house.
Based on our review of the entire record, we conclude there is not a reasonable probability that the trial’s outcome would have been different had Burnett been allowed to question the investigators regarding the other gunshot holes to the house. Accordingly, we conclude that the error was harmless.
Denial of a Continuance
Next, Burnett argues that the district court should have granted him a continuance in order to prepare a redacted version of the video recording of his interview with Detective Block. Burnett claims that the recording of the interview was essential to cross-examining Block and that the district court’s denial of his request for a continuance essentially denied him his right of confrontation.
K.S.A. 22-3401 states that a district court may grant a continuance “for good cause shown,” and its refusal to grant a continuance will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Beaman, 295 Kan. 853, 862, 286 P.3d 876 (2012).
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, in other words, if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, in other words, if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, in other words, if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. [Citation omitted.]” State v. Warrior, 294 Kan. 484, 505, 277 P.3d 1111 (2012).
Applicable Facts
Detective Block testified at trial about the statements Burnett made during his interview. On cross-examination, Block admitted that in testifying about Burnett’s statements, he was paraphrasing what Burnett had told him and not giving a verbatim recitation of Burnett’s statements.
At a later point during Block’s cross-examination, defense counsel asked to have a bench conference. At the bench, the following exchange took place:
“[DEFENSE COUNSEL]: I’m doing this preemptively, Judge. I’m beginning to move to introduce the statement, the video statement of Mr. Burnett that’s been provided—a copy that’s been provided to me. It’s three hours long. It’s very long. I don’t necessarily want it published to tire jury.
“However, the reason for doing so is because Detective Block is basically saying he was paraphrasing. He’s reading from his report. The best evidence as to what Mr. Burnett actually told him would be tire [recorded] statement and I believe that the jury should have the best evidence and not just what his recollection is of the—of what the statement was and his paraphrasing of it.
“[THE PROSECUTOR]: Judge, I don’t have a particular objection to that, but I do want to make a record that as far as I have not redacted it in any way. The defendant does malee reference to Iris prior incarceration. I don’t think he discusses the nature of it, but he does discuss having gone to prison and being on probation, things of that nature, other extraneous information.
“Plus, I guess my objections would be it includes references to [Ramsey] being a drug dealer, none of which is relevant. So I am concerned about the admission of an unredacted statement. Now, if we want to redact it, I have no problem.
“[DEFENSE COUNSEL]: And if I can, Judge, the reason I—it’s really land of hard to cross-examine Detective Block on that, on each item that he’s paraphrasing.
“THE COURT: The problem that you have is we’re on the last witness of the State. What you’re suggesting is gonna require more time than this Court can give you to do. If you had intended to do this beforehand, you should have prepared it beforehand and redacted all of the objectionable material both from the State’s side and your client’s side. You haven’t done that. Now you want to do this at the last second. I’m not going to let you.
“[DEFENSE COUNSEL]: Okay. Well, you know, a lot depends on what the witness testifies to. And he’s testified twice now and I think that in my mind, there were some things that he testified the first trial that are different than what he’s testifying to.
“TPIE COURT: And if you knew that beforehand, you should have prepared the defendant’s videotape and finished the statement so that it would be acceptable as an exhibit. You didn’t do that. And now you’ve got two alternatives; the one you haven’t taken care of and tire other is your client could testify. Those are the only remedies I could see for you at this juncture.
“[THE PROSECUTOR]: Your Honor, if I may, I want to be clear for the record, at the last trial, the State did not introduce the statement.
“[DEFENSE COUNSEL]: No.
“[TPIE PROSECUTOR]: The detective didn’t testify about it, period, because it never came in. That was a strategic decision tire State made and obviously I have altered it for this trial. I never intended to introduce the three hour taped statement because redacting it was cumbersome and I just didn’t think—the way that it would have—would have had to have been redacted would have made it very difficult to follow and it would have been obvious there was material missing. That’s why I didn’t do it.
“THE COURT: (Nodding head up and down.)
“[THE PROSECUTOR]: And, again, you know, I think this is material that’s prejudicial to—both to the State and to the defendant that’s contained within there. So I just wanted to make that clear for the record.
“THE COURT: I can understand that. All I’m saying is that at the eleventh hour, you don’t have the time to prepare it for an acceptable exhibit. So I’m not going to let you do it, sir.”
Subsequently, in Burnett’s motion for a new trial, he argued that he was prejudiced when the district court denied him the opportunity to play the video recording of his statement to the juiy. Burnett argued that
“Detective Block’s testimony regarding the defendant’s statement was extremely vague and he was unable to recall many details of the statement other tiran those that served the State. Defense counsel had not prepared a redacted version of the videotaped statement and neither had the State. In the previous trial, tire State had not presented the defendant’s statement. Counsel had no way of anticipating that the statement would be presented and further that the Detective would testify by loosely paraphrasing and not remembering several aspects of defendant’s statement.”
Accordingly, Burnett argued that district court’s decision to not allow defense counsel time to prepare an admissible version of the recording prevented him from effectively cross-examining Detective Block.
Analysis
In his brief, Burnett argues that the district court’s decision harmed his defense at trial because, without the video recording, he was unable to impeach Block’s testimony regarding the interview. However, Burnett does not specify how Block’s testimony was inconsistent with the statements recorded on the video or even explain how Block’s testimony could have been impeached by the video.
Without specific references to how tire video would have bolstered his defense or impeached Block’s testimony, Burnett has failed to show that “good cause” supported his request for a continuance to prepare a redacted version of the video. See Beaman, 295 Kan. at 864 (in concluding that district court acted within its discretion in denying defendant’s motion to continue sentencing hearing-, court stated: “Mere speculation that with more time something favorable may happen for the defendant does not constitute good cause. [Citation omitted.]”). Consequently, we conclude that the district court did not abuse its discretion in denying Burnett’s request for a continuance.
Alternative Means of Felony Murder
The jury in this case was instructed that in order to convict Burnett of felony murder, the State had to prove that Burnett killed Larks and that this killing occurred during the commission, the attempted commission, or flight from the commission of an inherently dangerous felony, to wit: criminal discharge of a firearm into an occupied dwelling. Burnett argues that this instruction established alternative means of committing felony murder. Based on the super-sufficiency requirement for evidence in an alternative means case, see State v. Wright, 290 Kan. 194, 203-06, 224 P.3d 1159 (2010), disapproved on other grounds hy State v. Brooks, 298 Kan. 672, 317 P.3d 54 (2014), Burnett argues that his conviction for felony murder must be reversed because the State failed to present sufficient evidence on all the means of committing felony murder that the jury was instructed on. Specifically, Burnett contends that no evidence was presented at trial showing that Larks was killed during an attempted discharge of a firearm into an occupied dwelling or during the flight after the crime was committed.
Recently, this court in State v. Cheffen, 297 Kan. 689, 699-702, 303 P.3d 1261 (2013), rejected the argument that the phrase “in the commission of, attempt to commit, or flight from an inherently dangerous felony” in the felony-murder statute created alternative means of committing felony murder. In reaching this conclusion, the Cheffen court stated:
“The felony-murder statute has two primary elements—killing and simultaneously engaging in an inherently dangerous felony. The second element can be established through proof that the killing occurred while the defendant was committing, attempting to commit, or fleeing from an inherently dangerous felony. These are simply factual circumstances in which a material element may be proven. Therefore, this language in the felony-murder statute does not create alternative means . . . .” Cheffen, 297 Kan. at 702.
Accordingly, Burnett’s argument must be rejected. The jury was not instructed on alternative means of committing felony murder which obligated the State to prove that the killing was done during die commission of, the attempt to commit, and the flight from the commission of a criminal discharge of a firearm into an occupied dwelling. The record clearly shows, and Burnett does not dispute, that sufficient evidence was presented establishing one of the factual circumstances—that Larks was tolled during the commission of the underlying felony.
The Admission of Burnett’s Letters
Burnett next challenges the denial of his motion to suppress evidence obtained by law enforcement through their inspection of nonprivileged letters that Burnett sent to Dickson while incarcerated in the county jail. The record indicates that prior to Dickson receiving the letters, jail personnel opened and photocopied the letters and sent the copies to the district attorney’s office. Burnett asserts that the opening of these letters constituted a search in violation of the Fourth Amendment to the United States Constitution.
“When reviewing a district court ruling on a motion to suppress a confession, an appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard. The ultimate legal conclusion drawn from those facts is reviewed de novo. The appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence.” State v. Ransom, 288 Kan. 697, Syl. ¶ 1, 207 P.3d 208 (2009).
Applicable Facts
Prior to Burnett’s first trial, he filed a pro se motion asking the district court to suppress copies of the letters he placed in the jail’s outgoing mail to Dickson. He alleged that the letters were contained in sealed envelopes and that jail personnel opened tire envelopes, read and copied the letters, and then provided the copies to the prosecutor’s office. Though Burnett conceded that the detention center “reserves the right to monitor incoming/outgoing mail for threats, escape plots, and other security concerns,” he argued that “the jail cannot act as a liaison for the district attorney’s office in the prosecution of defendant on his current charge.” He argued that because no search warrant was obtained allowing jail staff to open his outgoing mail, the contents of his letters should be inadmissible at trial.
At a pretrial hearing on the motion, defense counsel conceded that when inmates are booked into the jail, they sign a statement putting them on notice that the Wyandotte County Sheriff s De partment may open and read their mail. He argued, however, that the statement was insufficient to put an inmate on notice that a letter could be copied and shared with the district attorney s office. Defense counsel argued that because the letters did not contain any admissions by Burnett, they lacked probative value.
The State responded by arguing that the letters had probative value because within the letters, Burnett was asking Dickson to testily in such a way that would be beneficial to his defense while being contrary to what she had already told detectives. With regard to whether the letters were obtained illegally, the prosecutor maintained that because Burnett was on notice that his nonprivileged mail could be read, the letters could be properly introduced into evidence at trial. The district court agreed, concluding that Burnett’s constitutional rights would not be violated by the State introducing the letters into evidence during its case-in-chief. Accordingly, the district court denied Burnett’s motion to suppress the letters.
At trial, Burnett raised an objection prior to the letters being admitted into evidence.
Analysis
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Warrantless searches are presumed to be unreasonable. See State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert, denied 563 U.S_(2011); see also Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). The Fourth Amendment is not implicated, however, unless the person invoking its protection had a “ justifiable,’ ” “ ‘reasonable,’ ” or “ legitimate expectation of privacy’ ” that was invaded by government action. Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979); see also Illinois v. Caballes, 543 U.S. 405, 408, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005) (“Official conduct that does not ‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth Amendment. [Citation omitted.]”).
Nearly a century ago, the United States Supreme Court held that the Fourth Amendment does not prohibit the examination of prisoners’ mail. Stroud v. United States, 251 U.S. 15, 21-22, 40 S. Ct. 50, 64 L. Ed. 103 (1919). In Stroud, letters written by a detainee were later used as evidence at trial. The Supreme Court held that there was no constitutional violation because the letters were obtained “under established practice, reasonably designed to promote the discipline, of the institution.” 251 U.S. at 21. “Modern cases have limited Stroud to situations in which prison officials have seized outgoing letters in the exercise of legitimate government interests. [Citations omitted.] Thus, Stroud ‘still controls cases in which such seizures are prompted by reasonable justification.’ [Citation omitted.]” United States v. Whalen, 940 F.2d 1027, 1035 (7th Cir. 1991).
“[B]ecause of their reasonable concern for prison security and inmates’ diminished expectations of privacy, prison officials do not violate the constitution when they read inmates’ outgoing letters.” United States v. Brown, 878 F.2d 222, 225 (8th Cir. 1989); see also Whalen, 940 F.2d at 1035 (“[I]t is well established that prisons have sound reasons for reading the outgoing mail of their inmates.”); State v. Brown, 155 Idaho 423, 434, 313 P.3d 751 (Ct. App. 2013) (“Outgoing mail may present less of a security risk than the prospect of contraband secreted in a prison cell... but inmate mail nevertheless raises legitimate security issues. Inmates may use outgoing mail to communicate to persons on the outside the inmates’ requests, plans, and methods to smuggle contraband into the institution; to devise and direct escape strategies; to direct confederates to intimidate witnesses inside or outside of the institution; or to indirectly communicate threats, harassment, or escape plans to other inmates by using persons outside as a go between. Monitoring of inmate mail can curtail these security risks.”); State v. Telford, 940 P.2d 522, 525 (Utah App. 1997) (concluding that jail’s policy of inspecting and scanning outgoing mail is narrowly tailored and served important government interests by promoting discipline and preventing criminal acts). Furthermore, “[o]nce prison officials have a right to examine such messages, no rule requires them to close their eyes to what they discover therein.” State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105 (1983); see also State v. McCoy, 270 Or. 340, 347, 527 P.2d 725 (1974) (same).
In State v. Matthews, 217 Kan. 654, 538 P.2d 637 (1975), this court held that a defendant’s Fourth Amendment rights were not violated when a letter he wrote while in jail and awaiting trial was copied by jail personnel and introduced into evidence at his trial. The letter, addressed to a woman in Kansas City, Kansas, contained several incriminating statements regarding the charges pending against him. The defendant gave the letter, contained in an unsealed envelope, to a member of the jail staff so it could be mailed. Pursuant to jail policy—which all inmates were made aware of— the letter was read prior to being placed in the jail’s outgoing mail. After reading die letter, the jail staff member showed it to a law enforcement officer who was presumably familiar with the defendant’s case. The letter was eventually copied and placed in the mail.
In concluding that the Fourth Amendment was not violated by copying the letter and admitting it into evidence at the defendant’s trial, the Matthews court stated:
“The . . . letter was delivered to the jailer unsealed and unstamped—a circumstance which we believe corroborates the state’s assertion that defendant knew his outgoing mail would be read. There is no evidence that defendant did not know of tins procedure. Here ... no search was involved.Since tire letter was delivered to the jailer unsealed and with knowledge that it would be read, defendant has no claim of any invasion of privacy. There is no evidence of trickery or deceitful practices. Defendant voluntarily wrote tire letter knowing it would be read. Under such circumstances it cannot be said that the state gained access to the contents of the letter by search and seizure.” 217 Kan. at 657-58.
Like Matthews, other courts have looked to the policy of the institution where the detainee is held to determine whether the detainee had a reasonable expectation of privacy in his or her non-privileged, outgoing mail for Fourth Amendment purposes. See Whalen, 940 F.2d at 1034-35 (because defendant, pursuant to prison regulations, left his outgoing letters unsealed, he had no expectation of privacy with respect to their contents); State v. Martin, 77 Conn. App. 778, 799-800, 825 A.2d 835 (2003) (pretrial detainee had no reasonable expectation of privacy after being informed mail would be read); State v. Johnson, 476 S.W.2d 516, 518 (Mo. 1972) (no unreasonable search or seizure occurred when letter composed by defendant while in jail and awaiting trial was admitted into evidence; defendant knew letter would be read by jailer prior to being mailed); State v. Wiley, 355 N.C. 592, 603-05, 565 S.E.2d 22 (2002) (no subjective expectation of privacy when detainees are aware that their mail will be inspected); Commonwealth v. Moore, 928 A.2d 1092, 1099 (Pa. Super. 2007) (“Appellee . . . submitted his outgoing non-privileged correspondence to the mail room in unsealed envelopes, per prison policy. Appellee availed himself of a process that exposed his correspondence to the plain view of prison officials; therefore, society would not recognize any alleged subjective expectation of privacy as reasonable.”).
Here, Burnett conceded in his pro se suppression motion that he was aware that the jail reserved “the right to monitor incoming/ outgoing mail for threats, escape plots, and other security concerns,” indicating that jail staff had a legitimate purpose in opening his sealed letters and that Burnett did not have a reasonable expectation that his letters would remain private. By extension, once jail staff read the letters, making them aware that Burnett was attempting to influence the testimony of a witness, it was proper for them to make copies of the letters and provide them to the prosecutor s office. See Jeffers, 135 Ariz. at 414; McCoy, 270 Or. at 347. Accordingly, we conclude that the district court did not err in denying Burnett’s motion to suppress evidence gained through the inspection of his outgoing letters.
Limiting Instructions
Next, Burnett argues that the district court erred when it did not give a limiting instruction to the jury regarding evidence indicating that Burnett had committed crimes other than the ones at issue at trial. Specifically, Burnett contends that the district court should have given a limiting instruction regarding evidence indicating that he threatened to kill Ramsey, that he threw an orange juice bottle at Dickson which hit her on the head, and that within 5 years preceding July 7,- 2008, he was released from prison for a felony, which prohibited him from lawfully possessing a firearm on July 7—a fact that he stipulated to and was an essential element of die crime of criminal possession of a firearm charged in this case. See K.S.A. 21-4204(a)(3). Burnett contends that all of this evidence constituted K.S.A. 60-455 evidence and, accordingly, the district court should have given a limiting instruction regarding the evidence pursuant to State v. Gunby, 282 Kan. 39, 56-57, 144 P.3d 647 (2006).
Burnett acknowledges that he did not request that the district court provide a limiting instruction regarding the evidence at issue. Furthermore, he did not object to the evidence being admitted at trial. Accordingly, review of this issue is controlled by K.S.A. 22-3414(3) and the stair-step analytical process set out in State v. Herbel, 296 Kan. 1101, Syl. ¶¶ 7, 8, 299 P.3d 292 (2013), and State v. Williams, 295 Kan. 506, 511, 286 P.3d 195 (2012); see also State v. Breeden, 297 Kan. 567, 582, 304 P.3d 660 (2013) (failure to object to the admission of K.S.A. 60-455[b] evidence does not waive the right to raise on appeal the issue of whether the failure to give a limiting instruction was clearly erroneous).
As Williams articulated, K.S.A. 22-3414(3) creates a procedural hurdle when a party does not object to the failure to give an instruction because the statute establishes a preservation rule for instruction claims on appeal. It provides, in part, drat no party may assign as error a district court’s giving or failure to give a particular jury instruction, including a lesser included offense instruction, unless the giving or failure to give the instruction is clearly erroneous. If it is clearly erroneous, appellate review is not predicated upon an objection in die district court. 295 Kan. at 512-13.
To establish that the giving or failure to give an instruction was clearly erroneous, the reviewing court must determine whether there was any error at all. This requires demonstrating that giving die proposed instruction would have been both legally and factually appropriate, employing an unlimited review of the entire record. Williams, 295 Kan. at 515-16. And if error is found on that basis, then the court moves to a reversibility inquiry in which it assesses whetiier it is firmly convinced the jury would have reached a different verdict had die instruction been given. The defendant maintains the burden to establish the degree of prejudice necessary for reversal. 295 Kan. at 516.
Even if we assume without deciding that it was error not to provide a limiting instruction regarding the evidence Burnett com plains about, we conclude that such an error was not clearly erroneous. Consistent with our above holding—that it was harmless error for the district court to prevent Burnett from cross-examining the investigators about bullets holes from prior shootings—we are not firmly convinced that the jury, based on the evidence presented at trial, would have reached a different verdict had a limiting instruction been given.
The Inquiry into Burnett’s Request for Substitute Counsel
Following Burnett’s first trial, which ended in a hung jury, Burnett filed a “Motion for Substitution of Counsel,” in which he alleged that “a serious conflict between attorney and defendant” existed “and that communication has completely broken down.” In support of these allegations, Burnett claimed that defense counsel “refused to file motions, subpoena witnesses for the defendant, avoided issues that needed to be addressed, and he disregarded any request that the defendant had that will help the defendant prepare for a fair trial.” He also claimed:
“There has been a complete breakdown of communication. Request for visition [sic] only generates lies, phone calls are never answer [sic] or letters and he has constantly fail [sic] to return calls or respond to defendants [sic] letters which concerns [sic] preparing for a fair trial. As a result of [this] lack of communication, defendant has not been able to do any type of investigation nor develop a defense strategy to properly prepare for trial.”
Finally, Burnett claimed that defense counsel “failed to competently represent defendant by [failing to file] important motions, refused to do research on the issues or support the motions with case law. [Defense counsel] never visited the scene, he demonstrated a lack of thoroughness by doing absolutely no investigation work, and was totally unprepared at trial.”
A hearing on the motion was conducted where the following exchange occurred:
“THE COURT: We are here for a pro se motion for substitution of counsel. Mr. Burnett, you can argue your motion at this time.
“THE DEFENDANT: I would like to remove [defense counsel] due to the fact that it wadn’t no type of investigation work done on my case. Not only that, throughout trials and things that was taking place, that it should have been done by [counsel] instead of having my younger brother do investigation work that he should have took care of. Wadn’t none of my witnesses subpoenaed for trial. So I didn’t get to have no witnesses on my behalf for trial.
“Not only that, it’s things that we discussed that he never brought up throughout trial. And then on top of it, we—we had meetings over at the jail to where what we was gonna—our strategy was gonna be. It’s like he—he misplaced paperwork and stuff like that, like he was—he didn’t know what—what was going on or nothing like that that we just talked about hours before. So I feel that he should be removed from my case because he’s not being effective.
“TPIE COURT: You can be seated now. Now, you’ve covered everything that you think is important and that I should know?
“THE DEFENDANT: Yeah.
“THE COURT: Okay. You can be seated. Yes, sir.
“[DEFENSE COUNSEL]: Your Honor, we—I discussed with Mr. Burnett in detail all of the—the State’s file. Mr. Burnett had asked that I subpoena a lot of people that I thought were probably not going to be productive or would in any way counter the State’s evidence. Mr. Burnett’s defense is not an alibi that he wasn’t there. It was that he didn’t do it. And basically Mr. Burnett thought that everybody listed in the police report should have been subpoenaed and most of those people did not have, in my opinion, testimony that would be—would tend to disprove the State’s contention with regard to the allegations against Mr. Burnett.
“I believe that I was able to boil the case down to the basic contentions of the State and discuss with Mr. Burnett ways of attacking those because that would be the defense as to argue the State had not shown or does not have evidence beyond a reasonable doubt to convince a jury that Mr. Burnett did the acts alleged. I tried it the way I thought it needed to be tried.
“But obviously there was some—there was some times prior to trial that Mr. Burnett complained that I wasn’t up seeing him enough and for at least tire month before trial, you know, I was up there on weekends. I was up there on evenings, devoted nothing pretty much but to this case about a week or so before trial in final preparation. You know, unfortunately, I’ve got other things I also have to schedule. I thought that I had given it sufficient attention.
“Mr. Burnett is—appears to be so shaken in my confidence to try this case a second time, I don’t know whether I can rehabilitate that. I’ve tried during the first trial to do drat and evidently have failed to do that.
“With regard to investigation, you know, I talked to the witnesses that I—I even talked to the State’s witness—main witness, Simone Dickson before trial. You know, I thought I had done everything I could do to prepare for this case. Audit appears that if the Court were to require me to try it again, that, you know, I think that Mr. Burnett just has no absolute—no confidence in my ability to try the case. It’s sad that that happens, but it does happen. You know, people I get along fine with. Sometimes they come along that you don’t. But I know it’s not a matter of getting along. It’s a matter of communicating and I thought that I did my best to do that.
“This case is set as a second up trial I believe it’s the 13th of October and it’s set behind a case that I know is gonna go because I’m trying it. That’s Mr. Rodriguez’s case. So, you know, even between now and then, I’ve got Mr. Rodriguez and the week before, I’ve got a first degree murder in Division 8. I’ve got a rape trial a week from Monday in Division 8. So, you know, I had not planned on spending a lot of time preparing for the retrial of Mr. Burnett’s case on the 13th ‘cause I’m 99.9 percent confident that that case is not—this case is not gonna go on that date because of the Rodriguez trial.
“So I—I’ll be honest, I haven’t seen him since the last trial because I’ve got other things and—
“THE COURT: Well, I appreciate what the both of you have told me and, in fact, I recall this particular case. The first trial resulted in a hung jury and mistrial as I recall, which means somebody was doing something right on the defense side. Obviously, the defendant was not convicted.
“You know, Mr. Burnett, based upon what your attorney has told me and based upon my witnessing tire first trial, there’s no merit to any of your arguments whatsoever. You’re not an attorney. You don’t have a law degree. I don’t know how many first degree murder trials you’ve defended in your past—
“THE DEFENDANT: That don’t stop common sense either.
“THE COURT: I’m sorry, I can’t hear you.
“THE DEFENDANT: I said that don’t stop common sense either, though.
"THE COURT: Well, I understand what you’re saying, but based upon my observation of [defense counsel’s] performance in the first trial, based upon what you are alleging are his deficiencies, I can’t find anything of a specific nature that he hasn’t done on your behalf that would benefit your case. Just because you think there’s something that should be done doesn’t necessarily mean from a legal standpoint that it needs to be done.
“You haven’t given me any legal reason to remove him. Now, if you choose not to communicate or cooperate with him, I can’t make you do that. That’s entirely up to you. But obviously based upon the results of the first trial, he obviously was doing something right because the State obviously was not able to present enough evidence to convince twelve reasonable people that you were guilty of the charges you were—you were charged with.
“So the investigation argument, not witnesses argument, and the strategy argument, frankly, based upon what you’ve told me and what is in your motion and based upon what I’ve seen and heard during the trial, I—I, frankly, find that you have not met the legal threshold to remove [defense counsel] as your counsel in this case and your motion for substitution of counsel is denied.”
On appeal, Burnett argues that the district court’s failure to conduct any further inquiry or investigation upon his notice of dissat isfaction with defense counsel violated his right to counsel under the Sixth Amendment to the United States Constitution. Generally a district judge’s refusal to appoint new counsel is reviewed under an abuse of discretion standard. State v. Sappington, 285 Kan. 158, Syl. ¶ 4, 169 P.3d 1096 (2007). 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, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). The burden of demonstrating error is on the paily alleging the abuse. State v. Hulett, 293 Kan. 312, 318, 263 P.3d 153 (2011); State v. White, 284 Kan. 333, 342, 161 P.3d 208 (2007).
The Sixth Amendment guarantees an indigent criminal defendant the right to the assistance of counsel in his or her criminal defense. However, such a defendant cannot compel the district court to appoint the counsel of defendant’s choice. To warrant substitute counsel, a defendant must show “justifiable dissatisfaction” with his or her appointed counsel. State v. Bryant, 285 Kan. 970, 986-87, 179 P.3d 1122 (2008); State v. Hegwood, 256 Kan. 901, 903, 888 P.2d 856 (1995). Justifiable dissatisfaction may be demonstrated by showing a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication between counsel and the defendant. 285 Kan. at 986. “ ‘ “[A]s long as the trial court has a reasonable basis for believing the attorney-client relation has not deteriorated to a point where appointed counsel can no longer give effective aid in the fair presentation of a defense, the court is justified in refusing to appoint new counsel.” ’ ” 285 Kan. at 986-87 (quoting State v. Ferguson, 254 Kan. 62, 70, 864 P.2d 693 [1993]).
Contrary to Burnett’s characterization, once the district court was made aware of Burnett’s complaints of defense counsel, it conducted a hearing and inquired into the basis for his allegations that “a serious conflict” existed between him and defense counsel and that communications between them had “completely broken down.” But Burnett’s statement at the hearing did not establish either of these two claims. In fact, in Burnett’s statement to the court, he noted that he had discussed his case with defense counsel, and defense counsel noted that he had visited Burnett on numerous occasions prior to trial to discuss his case.
Based on Burnett’s and defense counsel’s statements at the hearing, it appears that Burnett’s dissatisfaction with defense counsel stemmed from defense counsel’s refusal to investigate matters or to call witnesses which Burnett deemed important but, in defense counsel’s professional judgment, would not be beneficial to or advance Burnett’s defense at trial.
This case is similar to State v. Jasper, 269 Kan. 649, 8 P.3d 708 (2000), where the defendant sought the appointment of new counsel due to current counsel being unable to find witnesses or experts to testily on her behalf at trial. At a hearing, defense counsel stated that he had made inquiries but had been unable to obtain an expert witness that would testify favorably for tire defendant. In his efforts to obtain an expert witness, defense counsel had contacted medical experts and provided them with the medical records as well as tire testimony given at tire preliminary hearing. None of the experts were willing to testify within the required degree of medical certainty favorable to the defendant. The district court denied the defendant’s request for new counsel.
On appeal, this court concluded that the district court did not abuse its discretion in denying the defendant’s request for new counsel. In reaching this conclusion, the Jasper court stated:
“[The defendant’s] letters to the trial court do not allege a conflict of interest or a complete breakdown in communications. The essence of [the defendant’s] complaint was that her court-appointed counsel found no witnesses or doctors to testify in her favor at trial. The trial court reviewed the allegation. Counsel explained that he had sought experts to testify on [the defendant’s] behalf, but could find none. Clearly, [the defendant’s] dissatisfaction with her appointed counsel was based on counsel’s inability to produce evidence that would exonerate [the defendant]. It was unfortunate for [the defendant], but the evidence she desired could not be produced because counsel could not find an expert who would testify on her behalf.
“Her complaint is not an irreconcilable conflict that could be remedied by the appointment of new counsel. Therefore, [the defendant] has failed to demonstrate a justifiable dissatisfaction with her court-appointed counsel.” Jasper, 269 Kan. at 654-55.
Similarly, Burnett’s statement at the hearing concerning defense counsel’s actions or inactions does not rise to the level of alleging a conflict of interest or a complete breakdown in communication requiring the district court to inquire further. His statement also did not allege an irreconcilable conflict because there is nothing to indicate that Burnett’s dissatisfaction would have been alleviated by new counsel. Defense counsel’s explanation for his actions appears to be sound, and there is nothing to indicate that a new attorney would not likewise engage in a similar course of conduct.
Accordingly, we conclude that because Burnett’s statement at the hearing implicated none of the grounds warranting further inquiry—let alone warranting substitute counsel—the district court was under no duty to inquire further and did not abuse its discretion in refusing to appoint new counsel. See State v. Richardson, 256 Kan. 69, 81-82, 883 P.2d 1107 (1994) (denial of motion for new counsel during sentencing phase not abuse of discretion; defendant had opportunity to explain dissatisfaction; court stated reasons why defendant’s concerns baseless; communication between defendant, counsel not broken down entirely).
Ineffective Assistance of Trial Counsel
After the jury found Burnett guilty of the charged crimes, he filed a motion for a new trial in which he alleged a claim of ineffective assistance of counsel based on several alleged deficiencies. The district court allowed defense counsel, Zimmerman, to withdraw and appointed new counsel for Burnett. Subsequently, new counsel filed a memorandum in support of Burnett’s motion for a new trial. More than a year after the conclusion of the jury trial, a hearing on the motion was conducted where Zimmerman testified on behalf of the State. Burnett did not present any evidence in support of his motion. After hearing testimony from Zimmerman and arguments from die parties, the district court concluded that Burnett had failed to show that Zimmerman’s actions in representing him were deficient. Accordingly, the district court denied Burnett’s motion for a new trial based on ineffective assistance of counsel.
On appeal, Burnett contends that the district court erred in concluding that he failed to establish ineffective assistance on the part of Zimmerman. Though Burnett raised numerous examples of Zimmerman’s deficient conduct in filings with die district court, on appeal, Burnett claims that Zimmerman rendered ineffective assistance by (1) failing to hire an investigator until a few days before the second trial; (2) failing to have other people from Frosty Treats testify so as to controvert Murphy s claim that he trained Burnett on July 7, 2008; (3) failing to have at trial a copy of Burnett’s phone log; and (4) failing to have at trial a transcript of Burnett’s interview with Detective Block. Each of these claims will be addressed in turn.
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. Consequently, appellate courts review the underlying factual findings for support by substantial competent evidence and the legal conclusions based on those facts de novo. State v. Cheatham, 296 Kan. 417, 430, 292 P.3d 318 (2013).
To establish ineffective assistance of counsel, the defendant must establish (1) that counsel’s performance was constitutionally deficient, which requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the United States Constitution, and (2) that counsel’s deficient performance prejudiced the defense, which requires a showing that counsel’s errors were so severe as to deprive the defendant of a fair trial. Cheatham, 296 Kan. at 431.
Judicial scrutiny of counsel’s performance in a claim of ineffective assistance of counsel is highly deferential and requires consideration of all the evidence before the judge or jury. The reviewing court must strongly presume that counsel’s conduct fell within the broad range of reasonable professional assistance. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). To establish prejudice, the defendant must show a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Cheatham, 296 Kan. at 431.
Analysis
A. Delay in Hiring an Investigator
Burnett contends that Zimmerman waited to obtain an investigator until just prior to the second trial. Burnett claims that this delay caused the investigator to be unable to locate a child witness who had provided a description of the shooter to the police. Burnett argues that “[a]n investigator with more time to work could have produced a different result and obtained service upon the witness.”
During Burnett’s jury trial, Zimmerman told the court that based on his review of a police report, E.M. (d.o.b. 1/15/02) reported hearing five gunshots on July 7 and seeing a 5’5”, skinny, black male running east after the shots were fired. Zimmerman stated that he and the State had issued subpoenas for E.M. but neither party had been able to obtain service on E.M. Zimmerman said that his investigator had gone to E.M.’s address numerous times and no one would answer the door. Zimmerman believed E.M.’s description of the person he saw running from the scene was “vital evidence” because Burnett did “not meet description of 5’5” and skinny.” Accordingly, Zimmerman asked the district court to allow him to present die evidence through the testimony of the officer who took down E.M.’s statement. The State objected to Zimmerman’s request, arguing that the evidence constituted inadmissible hearsay evidence. The district court agreed with the State and sustained the objection.
In the memorandum filed in support of Burnett’s pro se motion for a new trial, counsel wrote: “[Zimmerman] only requested a private investigator a short time prior to trial and the witnesses were not able to be located. There was a young boy that described the shooter to the police, and this description was completely inconsistent with a description of the defendant.”
At the hearing on Burnett’s motion for a new trial, the prosecutor questioned Zimmerman about his efforts to locate E.M.:
“Q. Okay. Now, let’s talk about E.M., who was a child witness in this case, correct?
“A. Yes.
“Q. All right. And did you attempt to locate E.M.?
“A. I did.
“Q. Were you able to successfully find him?
“A. No.
“Q. Did [the investigator] attempt to locate him?
“A. I believe he went out and tried to—we had an address and I believe he went out to try to locate somebody and was unable to get anybody to answer the door.
“Q. Okay. And throughout this trial, I assume you had contact—constant contact with the prosecutor ... is that correct?
“A. I believe so, yes.
“Q. Okay. And what'—what was [the prosecutor]—do you know if she attempted to have E.M. testily for the State?
“A. I don’t know. I—she told me that she had made attempts to get him subpoenaed and that his mother was uncooperative.
“Q. Okay. And did E.M. ever testify—
“A. No.
“Q.—for the State?
“A. (Shaking head side to side)
“Q. Okay. So did you ever find him?
“A. No. I tried to get his testimony in through another source and that was the patrolman that did the canvas of the area that actually wrote the report that—that set out what the—what tire child had told him with regard to a description.
“Q. So you tried to do that through another officer?
“A. Right.
“Q. And how did the Court rule?
“A. I can’t remember the officer’s name, but I had him subpoenaed and he did come to court and we had a brief hearing with regard to his ability to testify.
“Q. And was he—the officer able to testify as to what another witness told him if that witness was not gonna be here?
“A. No. I believe his testimony was limited to the point where he wouldn’t be able to testify.”
No further evidence regarding Zimmerman’s efforts to locate E.M. was presented at the hearing.
Though E.M.’s testimony may have been beneficial to Burnett’s defense, there is nothing in the record to suggest that if Zimmerman had secured the services of an investigator sooner, that investigator would have been able to obtain service upon E.M. and that, in turn, a parent or guardian would have brought E.M. to testify at Burnett’s trial. The fact that E.M. did not testify at the hearing on Burnett’s motion for a new trial-—occurring more than a year after the conclusion of his second jury trial—indicates that Zim merman’s delay in hiring an investigator had little, if any, effect on whether E.M. testified at Burnett’s trial.
B. Witnesses from Frosty Treats
Burnett contends that other people who worked at Frosty Treats could have controverted Murphy’s claim that he trained Burnett on July 7, 2008, which, in turn, would have impugned Murphy’s claim that he saw a gun underneath the driver’s seat of Burnett’s work truck on July 7. He argues that Burnett rendered deficient performance by fading to have these people testify at trial.
However, Burnett did not present any evidence at the hearing to indicate that such witnesses existed. We therefore conclude that Burnett failed to establish that Zimmerman rendered ineffective assistance of counsel based on this allegation.
C. The Phone Log
Burnett contends that Zimmerman did not have copies at trial of Burnett’s phone log. Burnett does not explain how failing to have a copy of die phone log hurt Zimmerman’s representation of him at trial. Consequently, we conclude that Burnett failed to establish that Zimmerman rendered ineffective assistance of counsel based on this allegation.
D. Transcript of the Interview
With regard to the transcript of the interview, Burnett suggests that having a transcript ready at trial would have aided Zimmerman in cross-examining Block. As a result of not having the transcript, Burnett alleges that Zimmerman’s cross-examination of Block was inadequate.
At the hearing, Zimmerman stated that he did not have a transcript of Burnett’s interview with Block at the time of the second hearing. Counsel for Burnett proceeded to question Zimmerman about his cross-examination of Block:
“Q. Okay. When you were requesting that the Court allow you to play the video, was that-—was it your concern to play the whole video for the Court—or for the jury or simply to be able to cross-examine with specific sentences in there?
“A. I know at the first trial, my intention was to try to get the whole thing played. At the second trial, I—it sure would have been just to clarify some of the things that Detective Block said, oh, I don’t know, I’m not sure, but I think and then began to paraphrase.
“Q. Do you recall [Detective Block] making statements that were incorrect as far as what was shown in the video?
“A. I wouldn’t say incorrect, but maybe not complete. I mean, I make a distinction there. I can’t say that they were completely opposite of what had been said, but perhaps they weren’t put the same way or correctly.
“Q. And there clearly weren’t direct quotes—
“A. Correct.
“Q.—from Mr. Burnett?
“A. Correct.
“Q. Had you had a transcription of that statement, do you feel that you would have been able to more effectively cross-examine Detective Block?
“A. Sure.
“Q. And obviously, the defendant’s statement, whether it came in—was coming in through Detective Block would have been pretty important, correct?
“A. Correct.
“Q. Do you feel that had you been able to more effectively cross-examine Detective Block, the outcome may have been different in this trial?
“A. I can’t say. And only because the—the—the defense didn’t hinge on Detective Block because there was nothing he was saying that—there wasn’t any culpatory statements that he was trying to pin on Mr. Burnett. So I can’t tell you what the outcome would have been. I mean, I suppose if [the jury] had found some reason to—to disbelieve Detective Block, they could have made an inference that perhaps they did lean too heavily on [Dickson] and overcome her somehow. But I don’t know that—how that would have affected it.”
Zimmerman’s testimony at the hearing indicates that a transcript of the interview might have helped on cross-examination to clarify some of Block’s testimony regarding the statements Burnett made at the interview, but Burnett has failed to show how doing so would have changed the outcome of his trial. Like Zimmerman at the hearing, Burnett has failed to identify any instances in Block’s testimony that were contrary to what was said at the interview. Accordingly, even if we assume that Zimmerman was deficient in failing to have a transcript of the interview ready to use at trial, Burnett has failed to show prejudice, i.e., how questioning Block with the transcript would have hurt Block’s credibility to such an extent that the jury would have rendered a different verdict.
We conclude that Burnett has failed to show that Zimmerman rendered ineffective assistance of counsel. As a result, we affirm the district court’s decision to deny Burnett’s motion for a new trial.
Cumulative Error
Finally, Burnett asserts that even if the issues that he has raised do not rise to the level of reversible error individually, the cumulative effect of these errors operated to deny him a fair trial, requiring reversal of his convictions.
Cumulative trial errors, when considered collectively, may require reversal of the defendant’s convictions when the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. Thompson v. State, 293 Kan. 704, 721, 270 P.3d 1089 (2011).
In our analysis of the issues, we have found one error (preventing Burnett from questioning investigators about other bullet holes) and assumed without deciding the presence of another error (the failure to give a limiting instruction regarding other crimes or civil wrongs evidence). But we concluded that these errors, when considered individually, were not reversible. Considering the errors collectively, we conclude that they did not aggregate so as to deny Burnett a fair trial. We reach this conclusion based on the errors being unrelated to each other and the evidence presented at trial, which included Dickson’s testimony claiming that Burnett admitted to shooting at Ramsey’s house and the letters Burnett wrote to Dickson, asking her to commit perjury by claiming that he never called her and claimed responsibility for the shooting.
In light of the record as a whole, we conclude there is not a reasonable probability the combined errors affected the outcome of the trial.
Affirmed. | [
-48,
-20,
-7,
31,
47,
-28,
34,
-4,
50,
-109,
-14,
-13,
-81,
-53,
77,
107,
58,
-1,
116,
105,
-59,
-74,
39,
65,
-78,
-77,
88,
-44,
-73,
-37,
-12,
-33,
89,
112,
-50,
-35,
102,
90,
-27,
-36,
-126,
-122,
-87,
-10,
-126,
-126,
102,
62,
70,
14,
49,
-100,
-29,
42,
22,
-57,
8,
44,
75,
-83,
16,
-79,
-53,
7,
-50,
18,
-93,
-89,
-104,
35,
-40,
38,
-35,
57,
34,
-8,
115,
-106,
-126,
116,
77,
-119,
-116,
-90,
98,
33,
25,
-21,
-92,
-119,
47,
126,
-99,
-89,
-104,
9,
1,
-84,
-74,
-3,
116,
119,
-118,
120,
-29,
86,
57,
-20,
-125,
-33,
-76,
-111,
77,
120,
86,
-70,
-21,
-89,
32,
101,
-49,
-94,
92,
84,
88,
-101,
-35,
-73
] |
The opinion of the court was delivered by
Johnson, J.:
On May 31,2009, Scott Roeder executed his years-old plan to kill Dr. George Tiller to prevent the Wichita, Kansas, doctor from performing any further abortions. After fatally shooting the doctor from point blank range during church services while the doctor served as an usher, Roeder hastily fled the premises. During his getaway, Roeder threatened to shoot two other ushers who had pursued him outside the church. Roeder did not deny committing the physical acts underlying a premeditated first-degree murder charge and two counts of aggravated assault, and the jury convicted him of those offenses.
On appeal, Roeder challenges both his convictions and his hard 50 life sentence. With respect to his convictions, Roeder raised numerous issues, some of which overlap, to-wit: (1) The district court erroneously denied his requested instruction on voluntary manslaughter based upon an imperfect defense-of-others; (2) the district court violated his due process right to present a defense of voluntaiy manslaughter based upon an imperfect defense of another; (3) the district court erroneously denied the defense motion for a change of venue; (4) the prosecutor committed reversible misconduct during closing argument; (5) the district court violated his due process right by excluding evidence to support a necessity defense and by failing to instruct on the necessity defense; (6) the district court erroneously denied his requested second-degree murder instruction; (7) the district court erroneously denied his requested defense-of-others instruction; and (8) the cumulative effect of trial errors denied him a fair trial. Finding that Roeder was not denied a fair trial, we affirm his convictions.
With respect to Roeder’s sentence, our determination that the sentencing scheme in K.S.A. 21-4635 violates the Sixth Amendment to the United States Constitution requires that we vacate Roeder’s hard 50 sentence and remand for resentencing. Therefore, we will not address Roeder’s other sentencing issues.
Factual and Procedural Background
Because Roeder did not deny that he intentionally shot Dr. Tiller in the head with the premeditated intent to kill him or that he intentionally threatened to shoot the two ushers to prevent their pursuit as he ran away from the church, a good deal of the evidence at trial dealt with Roeder’s religious beliefs and their manifestation into his perceived need to Ml Dr. Tiller.
Roeder testified about his 1992 conversion to Christianity, which ultimately led to a strong opposition to abortion. He testified that he believed that “[i]rom conception forward, [abortion] is murder” because “[i]t is not man’s job to take life.” As his feelings against abortion intensified, Roeder became actively involved in the antiabortion movement, often demonstrating at abortion clinics, including Dr. Tiller’s, in an attempt to convince patients not to have abortions. Roeder focused on Dr. Tiller because the doctor “was one of the three late-term abortionists in the country,” and Roeder believed late-term abortions “are definitely wrong.” Roeder encouraged women arriving at Dr. Tiller’s clinic to instead seek counseling next door at the Crisis Pregnancy Center. Roeder related that some of the women with whom he spoke outside Dr. Tiller’s clinic ultimately decided not to have abortions, and he therefore deemed his interventions to be successes in his fight against abortion.
Roeder was also allowed to testify about the criminal charges that had been brought against Dr. Tiller and Roeder’s frustration with the results of those cases. He related that in 2006, the Attorney General at that time filed felony charges in Sedgwick County alleging that Dr. Tiller had unlawfully performed late-term abortions but that those charges were dismissed the next day at the insistence of the Sedgwick County District Attorney. In 2009, an assistant attorney general prosecuted Dr. Tiller on 19 misdemeanor counts of failing to follow the correct procedure in performing late-term abortions, but a jury acquitted Dr. Tiller on all 19 counts. Roeder testified that the acquittal caused him to believe that
“[t]here was nothing being done and the legal process had been exhausted and these babies were dying every day, and I felt that if someone did not do something, he was going to continue aborting children, and so I felt that I needed to act and quickly for those children.”
Roeder was further permitted to discuss previous attempts to “stop” Dr. Tiller by other anti-abortion criminals. For instance, Dr. Tiller’s clinic was bombed in 1986, but the clinic was functioning again a few days later. In 1993, a woman shot Dr. Tiller once in each arm, but he was back at work the next day. Accordingly, in 1993, Roeder began exploring tire possibility of personally using physical force against abortion providers in general and Dr. Tiller in particular. Roeder even admitted that he initially thought about cutting Dr. Tiller’s hands off with a sword but ultimately decided that he needed to kill Dr. Tiller.
Roeder explained that he abandoned his initial plans to commit the murder at Dr. Tiller’s home or clinic because of the security measures the doctor had put in place. That circumstance led Roe-der to the realization that the only place he could get close enough to Dr. Tiller was in the doctor’s church. From the record, one cannot discern whether Roeder grasped the irony of his testimony, i.e., the only way that Roeder could kill the doctor in the name of his own God was to commit the murder in the house of Dr. Tiller’s God. Roeder took affirmative steps toward accomplishing the goal of his new plan as early as 2002 when he made his first visit to the doctor’s church and gathered information about the premises.
Some years later, in 2008, Roeder again attended the services at Dr. Tiller’s church, this time armed with a 9mm weapon with which to shoot the doctor. That attempt was thwarted by the doctor’s absence from that particular service.
On May 18, 2009, Roeder bought a Taurus PT .22 caliber semiautomatic handgun from a pawn shop in Lawrence, Kansas. Roe-der’s federal background check was held up, delaying delivery of the weapon to Roeder until May 23, 2009. The next day, Roeder took that weapon to Dr. Tiller’s church, but again, the doctor was not attending the service. Six days later, Roeder returned to the pawn shop to buy two boxes of ammunition, which he took to his brother’s home in a rural area near Topeka, Kansas, to test fire his gun. After experiencing problems with the weapon, Roeder and his brother went to a gun shop in Topeka and purchased a different type of ammunition before Roeder headed to Wichita to “deal with Dr. Tiller.” During his drive to Wichita, Roeder pulled over in rural areas and test-fired the weapon with the new ammunition.
After arriving in Wichita, Roeder attended the Saturday evening service, but again, the doctor was not in attendance. After staying the night in a Wichita hotel, Roeder returned to Dr. Tiller’s church. He backed his car into a stall as close as possible to the church doors to facilitate a hasty exit. Roeder entered the church and took a seat in the sanctuary until he spotted Dr. Tiller in the church foyer. Then, he approached the doctor and, without warning, placed the gun to Dr. Tiller’s forehead and pulled the trigger. Roe-der immediately fled the scene of the crime, running from the church foyer to his parking spot and then driving away in his vehicle.
Two men who were serving as ushers with Dr. Tiller that Sunday, Gary Hoepner and Keith Martin, separately chased after Roe-der. At different points along his escape route, Roeder separately pointed his weapon at Hoepner and Martin, threatening to shoot each of them. Hoepner was able to report the shooting to a 911 operator, and another church member relayed Roeder’s vehicle license plate number.
After leaving the church parking lot, Roeder drove towards his Kansas City home. Along the way, he disposed of his weapon in Burlington, Kansas. A deputy spotted Roeder’s vehicle on 1-35 and pulled him over near Gardner, Kansas, at approximately 1:25 p.m. Roeder made no attempt to resist arrest.
Roeder testified that he killed Dr. Tiller because if someone did not stop Dr. Tiller, “he was going.to continue [performing abortions] as he had done for 36 years.” More specifically, Roeder believed that if he did not kill Dr. Tiller, unborn children were going to die 22 hours later because Dr. Tiller had abortions scheduled at his clinic the next day.
The jury convicted Roeder of premeditated first-degree murder and two counts of aggravated assault. The district court found aggravating circumstances to impose a hard 50 life sentence on Roe-der’s first-degree murder conviction, as will be discussed below, and further imposed 12 months’ imprisonment on each of the aggravated assault convictions; all sentences were imposed consecutively.
Roeder timely appeals his convictions and hard 50 sentence. We take the liberty of addressing Roeder’s issues in a different order than he presented them, beginning with his change of venue request, the disposition of which could render the remaining issues on appeal moot. , .
Change of Venue
Prior to trial, Roeder’s counsel filed a motion for change of venue based on the long history of public conflict and controversy surrounding the abortion portion of Dr. Tiller’s medical practice and, more particularly, based on the publicity surrounding this homicide case. At the motion hearing, defense counsel proffered into evidence 32 exhibits which detailed the reporting of the case by The Wichita Eagle, the community’s major daily newspaper. Defense counsel “stipulate[d] that part of the pretrial publicity [was Roeder’s] own doing” but argued that fact did not change the district court’s inquiry into whether pretrial publicity had tainted the jury pool. The defense asked the judge to either rule that the pretrial publicity, standing alone, mandated moving the trial to a new venue or to keep an open mind throughout jury selection because defense counsel, if necessary, planned to make a renewed motion after attempting to impanel a jury.
The district court initially held that it would be premature to rule on a change of venue until the court had attempted to impanel a jury. Jury selection began with 140 venire persons, who had all completed a questionnaire prepared by the district court to be utilized during jury selection. The court split tire potential jurors into three panels, and the parties conducted an individual voir dire of the first panel of 61 persons. Jury selection proceeded smoothly, and the district court was able to impanel a jury that it declared to be fair and impartial without going beyond the first panel of potential jurors. The district court then denied Roeder’s renewed motion for a change of venue. On appeal, Roeder contends that the district court abused its discretion in refusing to change venue because the prior history of turmoil surrounding the abortion clinic in Wichita, coupled with the pretrial publicity in this case, resulted in the Wichita community being prejudiced against Roeder. We disagree.
Standard of Review
Roeder’s appellate counsel acknowledges that, pursuant to State v. Higgenbotham, 271 Kan. 582, 591, 23 P.3d 874 (2001), this issue would be reviewed for an abuse of discretion and that the defendant would cany the burden to show prejudice. Recently, in State v. Carr, 300 Kan. 1, 57, 331 P.3d 544 (2014), we clarified that a change of venue challenge under the Sixth Amendment to the United States Constitution based on pretrial publicity is viewed through two different lenses:
“ ‘The first context occurs where the pretrial publicity is so pervasive and prejudicial that we cannot expect to find an unbiased jury pool in the community. We “presume prejudice” before trial in those cases, and a venue change is necessary.’ [Goss v. Nelson,] 439 F.3d [621,] 628 [10th Cir. 2006]. ‘In such cases, a trial court is permitted to transfer venue without conducting voir dire of prospective jurors.’ House v. Hatch, 527 F.3d 1010, 1023-24 (10th Cir. 2008).
“The second context, ‘actual prejudice,’ occurs ‘where tire effect of pretrial publicity manifested at jury selection is so substantial as to taint the entire jury pool.’ Goss, 439 F.3d at 628; see Gardner v. Galetka, 568 F.3d 862, 888 (10th Cir. 2009). ‘In cases of actual prejudice, “tire voir dire testimony and the record of publicity [must] reveal the land of wave of public passion that would have made a fair trial unlikely by the jury that was impaneled as a whole.” [Citation omitted.]’ Hatch, 527 F.3d at 1024.”
A presumed prejudice challenge is subject to a mixed standard of review. The court first looks for substantial competent evidence in tire record to support the factors that must be considered to determine presumed prejudice. See Carr, 300 Kan. at 63-70 (discussing Skilling v. United States, 561 U.S. 358, 130 S. Ct. 2896, 177 L. Ed. 2d 619 [2010] factors). But the overall weighing of the Skilling factors results in a conclusion of law that is subject to a de novo standard. Carr, 300 Kan. at 63-64. On the other hand, the actual prejudice analysis is reviewed for an abuse of discretion. 300 Kan. at 75.
Analysis
The Kansas statute governing a change of venue calls for the defendant to establish a high level of prejudice, to-wit:
“In any prosecution, the court upon motion of the defendant shall order that the case be transferred as to him [or her] to another county or district if the court is satisfied that there exists in tire county where the prosecution is pending so great a prejudice against the defendant that he [or she] cannot obtain a fair and impartial trial in that county.” K.S.A. 22-2616(1).
Our caselaw confirms that a defendant seeking reversal of a denied motion to change venue is facing a steeply uphill battle. “The determination of whether to change venue is entrusted to the sound discretion of the trial court, and its decision will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant. State v. Cravatt, 267 Kan. 314, 336, 979 P.2d 679 (1999).” Higgenbotham, 271 Kan. at 591. The defendant bears the burden “to show prejudice exists in the community, not as a matter of speculation but as a demonstrable reality. The defendant must show that such prejudice exists in the community that it was reasonably certain he or she could not have obtained a fair trial. 267 Kan. at 336.” 271 Kan. at 591-92.
Roeder does not make a constitutional presumed prejudice challenge. His brief quotes Higgenbotham for the factors to consider when determining whether the statutoiy grounds for a change of venue exist:
“In determining whether the atmosphere is such that a defendant’s right to a fair trial would be jeopardized, courts have looked at such factors as the particular degree to which the publicity circulated throughout the community; the degree to which the publicity or that of a like nature circulated to other areas to which venue could be changed; the length of time which elapsed from the dissemination of the publicity to the date of trial; the care exercised' and the ease encountered in tile selection of the jury; the familiarity with the publicity complained of and its resultant effects, if any, upon the prospective jurors or the trial jurors; the challenges exercised by the defendant in the selection of the jury, both peremptory and for cause; the connection of government officials with the release of the publicity; the severity of the offense charged; and the particular size of the area from which the venire is drawn.” 271 Kan. at 592.
Roeder does not segregate the factors for individual consideration, rather he focuses on the general facts that Dr. Tiller was at the center of a decades-long conflict with anti-abortionists and that there was “ ‘massive pretrial publicity’ ” about Dr. Tiller’s death. Certainly, there is plenty of evidence in the record from which one could find that die particular degree to which the.publicity circulated throughout the Wichita community was much greater than for most other homicides. For instance, the day after Dr. Tiller’s death, June 1, 2009, The Wichita Eagle printed seven articles— three on the paper’s front page—which contained multiple statements from anti-abortion and abortion rights groups, together with an opinion piece and letters to the editor relating to Dr. Tiller and tire homicide investigation. Several articles identified Roeder as the suspect in Dr. Tiller’s murder, including a front page article head lined: “Suspect is linked to anti-government group,” which included Roeder’s photograph and information on his past anti-abortion activities. The Wichita Eagle continued to carry articles related to Dr. Tiller and/or the homicide investigation each day through June 10, 2009, and, thereafter, the paper ran relevant articles on the following dates in 2009: June 13, 14, 17, 19, 20, 21; July 26, 29; August 10, 30, 31; October 23, 25, 30; November 10, 11, 13, 14, and 24. Letters to the editor and opinions regarding Dr. Tiller’s death were also prevalent. Several of the articles contained information the media received from Roeder and his counsel. For example, one article discussed Roeder’s interview with The Kansas City Star where Roeder admitted killing Dr. Tiller and discussed his trial strategy.
But Roeder has not met his burden by simply establishing the existence of a large amount of pretrial publicity. This court has opined that “media publicity alone never establishes prejudice.” (Emphasis added.) State v. Verge, 272 Kan. 501, 508, 34 P.3d 449 (2001); see also Higgenbotham, 271 Kan. at 593 (quoting State v. Ruebke, 240 Kan. 493, 500, 731 P.2d 842, cert. denied 483 U.S. 1024 [1987]; “ ‘[m]edia publicity alone has never established prejudice per se’ ”). Moreover, although we are not aware of any precedent that would preclude a defendant from intentionally creating the publicity upon which the defendant later relies to establish the requisite prejudice to support a change of venue, such a ploy should be unavailing.
Notwithstanding the notion of gamesmanship, one can imagine that there is a sound basis for refraining from exclusive rebanee on the degree to which publicity circulated throughout the community when considering whether to change the venue of a trial. For one thing, there must be some place to which the trial could be moved that would not be subject to the same degree of prejudice as the original community. Thus, the second factor addresses the degree to which the publicity or that of a like nature has circulated to those other areas to which venue could be changed.
Roeder did not present evidence on this factor, in stark contrast to the defendant in Higgenbotham, who presented a survey conducted by a litigation consulting firm. The Higgenbotham survey revealed that a high percentage of the people residing in Harvey County, the trial community, believed that the defendant was guilty. In comparison, the survey revealed that the residents of Ellis County, with a similar makeup as Harvey County, did not suffer “the same problems with regard to publicity and knowledge of the case.” Higgenbotham, 271 Kan. at 593. In contrast to that comparative information, Roeder’s own pretrial motion alleged that Dr. Tiller was known on a national scale and that the national media “including network television, national daily publications, and major internet news sources ran stories detailing the events of the killing with utmost priority.” That argument actually counseled against changing venue because a move to another Kansas judicial district would still leave the trial susceptible to the prejudice created by such pervasive national publicity.
The factor addressing the amount of time that elapsed between the most intense publicity and the date of trial does not appear to be particularly compelling for either side. The majority of the coverage about which Roeder complains, especially the coverage not spurred by Roeder himself, occurred months before the trial. Some prospective jurors noted during individual voir dire that they had heard about tire case when it first happened but that they had thereafter not followed or heard much about the case. Others mentioned that a lot of time had passed between the crime and tire voir dire.
With respect to the next Higgenbotham factor, the record reveals that the district court exercised a great deal of care in selecting the jury. On Januaiy 6, 2010, approximately 140 jurors were summoned to court to complete the questionnaire. On Januaiy 11, 2010, at the request of the State and defense, the district court issued an order closing jury voir dire “to insure the defendant a fair and impartial jury to decide this trial.” Further, based on the answers given by the potential jurors in the questionnaires, the court granted the State and defense’s request for “individual voir dire of each juror to explore any challenges for cause, outside of the presence of [the] entire venire, so that any individual answers [would not] taint the entire panel.” As previously noted, the court impaneled a jury from the first group of 61 persons.
Not surprisingly, given the amount of initial publicity, all of the selected jurors had experienced some degree of media exposure about the case prior to trial. But as Roeder acknowledges, all of the selected jurors indicated that they could be fair and impartial and base their decision on the evidence presented in court, rather than what they had previously heard or read. Moreover, tire history of abortion as a hot button issue in Wichita, together with the pretrial publicity, cut both ways. A number of potential jurors participating in tire individual voir dire had negative things to say about Dr. Tiller, suggesting that in some instances the publicity was detrimental to the State, rather than the defense.
The juror challenges exercised by the defense, both peremptory and for cause, do not suggest that the defense was saddled with an unduly prejudiced venire. The defense challenged nine jurors for cause, and the trial court only overruled three of those challenges, none of whom sat on the jury. The defense had a total of 14 peremptory challenges to exercise. Five of the prospective jurors passed for cause did not need to be considered to obtain the 14 persons needed, with two alternates.
Roeder does argue that the next factor—the connection of government officials with the release of publicity—cut in his favor because the district attorney was “widely quoted” in the media as claiming that Dr. Tiller’s death was “ ‘an American act of terrorism.’ ” But that quote was not given directly to the media by the district attorney. Rather, the comment was made in a telephone conversation with the district court concerning Roeder’s bond which was released to the media. Further, the quote only appeared in the newspaper one time. Moreover, the label of “terrorism” has commonly been attached to facts which replicate those that Roeder proudly admitted, i.e., the cold-blooded murder of an unarmed and defenseless person in a place of worship for the sole reason that the victim refused to abandon his or her own beliefs in favor of those of the killer and to thereby send a message to all who might similarly sin in the future.
The factor of the severity of the charged offense—premeditated first-degree murder—favors Roeder, albeit he was not charged with capital murder. Countering that factor is the size of the area from which the venire is drawn. Sedgwick County is a large metropolitan area, which would diffuse the effects of the publicity.
Reviewing all of the factors articulated in Higgenbotham, taken together, we cannot discern that the district court abused its discretion in denying Roeder s motion for a change of venue. Perhaps most importantly, here, like in Higgenbotham, “there was no undue difficultly] in [i]mpaneling a jury,” 271 Kan. at 594, and, therefore, Roeder s substantial rights were not prejudiced.
Necessity Defense
Next, we consider Roeder’s challenge to the district court’s ruling that he could not present a necessity defense and, correspondingly, that he could not have the jury instructed on that defense. Prior to voir dire and apparently in response to Roeder’s lengthy pro se brief in support of a necessity defense, the State sought a ruling that Kansas does not acknowledge the necessity defense. Relying on City of Wichita v. Tilson, 253 Kan. 285, 855 P.2d 911 (1993), and a Florida case, the State argued that “abortion is not a harm that can be used to invoke the necessity defense.” The district court ruled in favor of the State. Roeder contends on appeal that the disallowance of his necessity defense violated his due process right to present evidence in support of his theory of defense.
Standard of Review
The issues of whether the necessity defense is recognized by Kansas law and whether the defense was applicable to Roeder’s criminal acts are questions of law subject to unlimited appellate review. See 253 Kan. at 288.
Analysis
Roeder points out that this court has recognized that both our state and federal constitutions entitle a criminal defendant to present the theory of his or her defense. See State v. Evans, 275 Kan. 95, 102, 62 P.3d 220 (2003). But it is not error for the trial court to exclude evidence that is not relevant to a legally sufficient theory of defense. Cf. State v. Pennington, 281 Kan. 426, Syl. ¶ 2, 132 P.3d 902 (2006) (no error to exclude psychologist’s expert testimony proffered in furtherance of theory of defense when evidence irrelevant to mens rea defense). For instance, a defendant is not constitutionally entitled to present evidence that he or she did not know that his or her actions were unlawful because ignorance of tire law is not a legally sufficient theory of defense. See State v. Young, 228 Kan. 355, 360, 614 P.2d 441 (1980) (all persons presumed to know general public laws of state where they reside, as well as legal effects of their actions). Accordingly, Roeder’s constitutional challenge hinges upon whether necessity can be a legally recognized theory of defense under the facts of his case.
Roeder acknowledges this court’s rejection of the necessity defense in Tilson, There, the district court had acquitted Tilson despite her admission that she violated the City of Wichita’s criminal trespass law by blocking the entrance to an abortion clinic. The lower court ruled that the necessity defense absolved Tilson of criminal responsibility because the expressed purpose of her actions was to prevent the evils she perceived to be associated with an abortion. Initially discussing the background of the necessity defense, Tilson explained:
“Necessity is a common-láw defense recognized in some jurisdictions, while in others it has been adopted by statute. Several states which have no statute on the defense have not determined whether the common-law defense will be recognized. It has been referred to by various terms, including ‘justification,’ ‘choice of evils,’ or ‘competing harms.’ Depending upon the jurisdiction, various elements must be proven in order for a defendant to establish the defense.” 253 Kan. at 288.
The Tilson court then opined that “[rjegardless of what name is attached to the defense . . . one thing is clear: The harm or evil which a defendant, who asserts the necessity defense, seeks to prevent must be a legal harm or evil as opposed to a moral or ethical belief of the individual defendant.” 253 Kan. at 289-90. In that vein, the court noted that “[ejvery appellate court to date which has considered the issue has held that abortion clinic protesters, or ‘rescuers’ as they prefer to be called, are precluded, as a matter of law, from raising a necessity defense when charged with trespass. [Citations omitted.]” 253 Kan. at 292. The rationale utilized by “[tjhe majority of courts. . . [was] that because abortion is a lawful, constitutionally protected act, it is not a legally recognized harm which can justify illegal conduct.” 253 Kan. at 293; see also Hill v. State, 688 So. 2d 901, 906 (Fla. 1996) (rejecting the necessity defense to charges of first-degree murder for killing an abortion clinic physician and a volunteer and stating that harm component of its inquiiy cannot be met by legal abortions as a matter of law), cert. denied 522 U.S. 907 (1997). Moreover, the Tilson court concurred with cases cited from other states that held:
“To allow the personal, ethical, moral, or religious beliefs of a person, no matter how sincere or well-intended, as a justification for criminal activity aimed at preventing a law-abiding citizen from exercising her legal and constitutional rights would not only lead to chaos but would be tantamount to sanctioning anarchy.” 253 Kan. at 296.
But Tilson was careful to note that “the necessity defense, except as codified in statutes such as those relating to self-defense and compulsion, has not been adopted or recognized in Kansas.” 253 Kan. at 291. Tilson did not resolve that question of whether the necessity defense could ever be used in another circumstance. Instead, the court simply chose to hold that, even if necessity can be a legally sufficient theory of defense in this state under some scenarios, it would not apply to trespass prosecutions involving abortion clinics. 253 Kan. at 296; see also State v. Hunt, No. 106,296, 2012 WL 3966535, at *3 (Kan. App. 2012) (unpublished opinion), rev. denied 297 Kan. 1251 (2013) (refusing to find that common-law defense of necessity was abolished by statute, but finding necessity defense not applicable to facts of that case).
More recently, our Court of Appeals had occasion to consider whether the necessity defense could be utilized to defend against a trespass charge when the defendant claimed that illegal abortions were being performed on the premises. City of Wichita v. Holick, No. 95,340, 2007 WL 518988 (Kan. App. 2007) (unpublished opinion). In that case, the defendant was convicted of trespass in violation of the Wichita City Code for protesting at Dr. Tiller s clinic despite tire defendant’s assertion of the necessity defense based upon his allegations that the clinic was performing illegal abortions “on minors, coerced women, and women with viable late-term pregnancies.” 2007 WL 518988, at *3.
The Holick panel held that, to invoke the necessity defense, Hol-ick had to show an imminent harm or evil which he sought to prevent by his actions and that “ ‘under Kansas law the harm must be something more than tire performance of an abortion.’ ” 2007 WL 518988, at *3. The panel was unconvinced by Holick’s allegations that the “something more” was present in his case because unlawful abortions were occurring at the clinic. First, the panel found that Holick had failed to establish that partial birth abortions were scheduled on the day of the protest, “let alone that such procedures were planned without compliance with the requirements of K.S.A. 65-6721(a)(1) and (a)(2).” 2007 WL 518988, at *4. Perhaps more importantly, the Court of Appeals found that Hol-ick’s principal purpose in trespassing was to prevent all abortions, not just illegal abortions. 2007 WL 518988, at *5.
En route to its decision, the Holick panel noted that the district court had utilized the Tenth Circuit Court of Appeals’ formulation of the necessity defense, which requires a defendant to show “(1) that the defendant was faced with a choice of evils and chose the lesser evil, (2) the defendant acted to prevent imminent harm, (3) the defendant reasonably anticipated a direct causal relationship between his conduct and the harm to be averted, and (4) the defendant had no legal alternatives to violating the law.” Holick, 2007 WL 518988, at *3 (citing United States v. Turner, 44 F.3d 900, 902 [10th Cir. 1995]). Roeder used that formulation in his requested jury instruction on the necessity defense, the refusal of which he now appeals. Even under Roeder’s own proffered elements of necessity, the defense was simply not applicable to the facts of this case.
Before considering whether Roeder chose the lesser of two evils, we must clarify the evils subject to comparison. On one side of the ledger, Roeder’s admitted evil act was the premeditated intentional murder of a human being who was legally recognized as a person in all respects. Arguably, only capital murder would be a greater legal harm.
On Roeder’s side of the ledger, the evil he sought to prevent was Dr. Tiller’s failure to comply with all of the rules and regulations applicable to abortion providers, i.e., administrative or pro cedural irregularities. Roeder wants to argue that the doctor was murdering babies, but that is his religious and moral view, rather than the legal view in this state. As noted above, Tilson declared that “[t]he harm or evil which a defendant, who asserts the necessity defense, seeks to prevent must be a legal harm or evil as opposed to a moral or ethical belief of the individual defendant.” 253 Kan. at 289-90. Indeed, one need look no further than Dr. Tiller’s criminal trial upon which Roeder relies to establish his belief that illegal abortions were occurring at the clinic. The doctor was not charged with murder, but rather that trial was about misdemeanor violations for failing to follow the proper procedure.
Once the choice of evils is clarified to be the premeditated intentional murder of a human being versus the violation of administrative procedures governing an otherwise legal abortion, the answer is crystal clear. By analogy, no one would find it necessary to kill an over-the-road trucker for failing to maintain an up-to-date log book. Roeder cannot clear the first hurdle of the necessity defense because he did not choose the lesser evil when he killed Dr. Tiller in cold blood.
Likewise, Roeder fails the second test, i.e., that he acted to prevent imminent harm. Roeder acknowledges that Dr. Tiller was not going to cause the harm of which he complains until the next day. Obviously, there were not going to be any abortions performed at the church while the doctor was ushering for a Sunday morning service. Roeder argues that the potential that the doctor would perform an abortion some 22 hours after the shooting qualified as imminent harm. We disagree. The shooting occurred at the church because it made the assassination easier to accomplish, not because tire perceived harm was imminent. Moreover, Roeder testified that he first determined that it would be necessary to kill Dr. Tiller in about 1993, that he formulated the plan to kill the doctor at his church in 2002, and that he attended the doctor s church in 2008 with tire intent to kill tire doctor before he actually effected his plan in May 2009. That timeline belies the notion that Roeder sincerely believed that the harm to be prevented was imminent; one does not wait over a decade to prevent an imminent harm.
The causal relationship requirement was arguably met because Roeder s killing of the doctor would avert the perceived harm that the doctor would fail to follow proper administrative protocol in performing abortions. But the final requirement for necessity— that the defendant had no legal alternatives to violating the law— is bebed by Roeder’s own testimony. He boasted of being successful in getting potential patients to change their minds about having an abortion. Moreover, Holick referred to additional legal means of educating women on abortion, including door-to-door discussions, distributing literature on abortion, or continuing lawful protests. 2007 WL 518988, at *7 (quoting Turner, 44 F.3d at 902). Even for Roeder’s professed purpose of stopping all abortions, not just illegal abortions, the Draconian measure of murder was not the only alternative.
As in Tilson, we decline to definitively state whether the necessity defense has any life in this state under other circumstances. We do hold, however, that the facts of this case unequivocally preclude the apphcation of the necessity defense, and the district court did not err in refusing to allow Roeder to rely on that defense or to instruct the jury on the necessity defense.
Voluntary Manslaughter—Imperfect Defense-of-Others
Next, we consider Roeder’s argument that the district court erred in denying his requested lesser included offense instruction on voluntary manslaughter based upon imperfect defense-of-others. See State v. Harris, 293 Kan. 798, 803, 269 P.3d 820 (2012) (“Imperfect [defense-of-others] may trigger a lesser degree of homicide, but it is not a defense to criminal liability.”). The instruction that Roeder proffered was based on PIK Crim. 3d 56.05 and provided:
“If you do not agree that the defendant is guilty of First Degree Murder, you should then consider the lesser included offense of Voluntary Manslaughter!]]
“To establish this charge, each of the following claims must be proved:
1. That the defendant intentionally lolled George Tiller;
2. That it was done upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person[;]
3. That this act occurred on or about the 31st day of March, 2009, in Sedgwick County, Kansas.”
Defense counsel argued that Roeder s testimony established that he honestly believed that he had to kill Dr. Tiller when he did it to protect the unborn children that were in danger of imminent harm because of the abortions scheduled for the following day. The district court denied the instruction because the doctor was not engaging in any unlawful conduct at his abortion clinic and because “there [was] no imminence of danger on a Sunday morning in the back of a church.” Moreover, the district court found that the subjective part of the analysis related to the “unreasonable but honest belief’ language of K.S.A. 21-3403 but that “[w]hen we return to the statutory elements under K.S.A. 21-3211, those become objective.” We agree.
Standard of Review
We recently clarified our standard of review for jury instruction issues:
“(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, tire court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
Analysis
Roeder properly preserved this issue for appellate review by requesting a voluntary manslaughter instruction and distinctly stating the grounds for its inclusion. See K.S.A. 22-3414(3) (establishing preservation rule for lesser included crime instructions). Furthermore, Roeder’s requested instruction was legally appropriate, as our caselaw “has long held that voluntary manslaughter is a lesser included offense of first-degree premeditated murder under K.S.A. 21-3107(2)(a).” State v. Qualls, 297 Kan. 61, 69, 298 P.3d 311 (2013).
The controlling question here is whether the instruction, viewed in the light most favorable to Roeder, was factually appropriate. Qualls, 297 Kan. at 69. “District courts have a duty to issue instructions on any lesser included offense established by the evidence . . . State v. Nelson, 291 Kan. 475, 480, 243 P.3d 343 (2010) (citing K.S.A. 22-3414[3], which requires an instruction “ where there is some evidence which would reasonably justify a conviction of some lesser included crime’ ”).
The statutory definition of the requested version of voluntary manslaughter is found in K.S.A. 21-3403(b), which requires an “intentional killing of a human being committed . . . (b) upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211, 21-3212 or 21-3213 and amendments thereto.” Two of the referenced statutes, K.S.A. 21-3212 and K.S.A. 21-3213, deal with the use of force in defense of property, and, consequently, they have no bearing on our inquiry in this case. The self-defense statute referenced in the definition of voluntary manslaughter that is applicable here is K.S.A. 21-3211, the relevant portions of which state:
“(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend ... a third person against such other’s imminent use of unlawful force.
“(b) A person is justified in the use of deadly force under the circumstances described in subsection (a) if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to ... a third person.”
Roeder suggests that his actions fit within the parameters of an imperfect defense-of-others voluntary manslaughter because of his honestly held religious belief that an abortion kills a person. In other words, Roeder contends that his subjective belief that he was saving others’ lives by killing Dr. Tiller was all that mattered, even if that belief was objectively unreasonable in all respects and even if the belief was contrary to the law. Roeder reads the definition of imperfect defense-of-others voluntary manslaughter too broadly.
Granted, Roeder can point to expansive language in State v. Ordway, 261 Kan. 776, 934 P.2d 94 (1997), to support the notion that the only consideration under K.S.A. 21-3403(6) is whether the defendant honestly believed his action was necessary to defend others, regardless of the circumstances. Ordway killed his parents because voices in his head told him he needed to do so to save his sons from being killed by the parents. The Ordway court declared that “[bjoth elements in the offense of voluntary manslaughter as defined in [K.S.A.] 21-3403(b) are subjective” and that “the ‘objective elements’ of [K.S.A.] 21-3211 [(Ensley)]—an aggressor, imminence, and unlawful force—would not come in for consideration.” 261 Kan. at 787.
Black’s Law Dictionary currently defines “subjective” as: “1. Based on an individual’s perceptions, feelings, or intentions, as opposed to externally verifiable phenomena .... 2. Personal; individual . . . .” Black’s Law Dictionary 1652 (10th ed. 2014). In that vein, Ordway’s stated interpretation of K.S.A. 21-3403(b) would mean that a defendant’s personal and individual perception or feeling that deadly force was necessary to defend others, standing alone, would meet the definition of imperfect defense-of-others voluntary manslaughter without regard to the externally verifiable phenomena surrounding the crime. That interpretation would negate the fundamental notion that everyone is presumed to know the law and one cannot use as a defense his or her subjective belief that the law is or should be something different. See State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982) (stating the “ancient maxim, ‘Ignorance of the law is no excuse’ ”). Carried to the extreme, one could argue that, based purely on subjective belief, the Islamic terrorists who killed Americans on September 11, 2001, would fit within the definition of those entitled to claim imperfect defense-of-others, as would a death penalty opponent who might kill the warden at the Huntsville Prison in Texas to prevent further prisoner executions.
Yet, even Ordway does not appear to have applied that sweeping principle of pure subjectivity when reaching its ultimate holding; Ordway affirmed the district court’s refusal to give a lesser included offense instruction on voluntary manslaughter. In reaching that decision, the Ordway court did not focus on what the defendant personally and individually perceived or felt, but rather it fashioned a rule based upon the underlying reason that the defendant subjectively believed deadly force was necessary. Specifically, Ord-ways penultimate ruling was that “the ‘unreasonable but honest belief necessary to support the ‘imperfect right to self-defense manslaughter cannot be based upon a psychotic delusion.” 261 Kan. at 790. The opinion did not explain why excluding those whose subjective belief derived from a psychotic delusion is not, in essence, the application of an objective criterion to narrow the class of persons entitled to the voluntary manslaughter instruction. Moreover, we can only speculate whether Ordway intended for the constraint on subjectivity to apply to others whose belief may have been the product of aberrant mental processes, e.g., brainwashed cult members or religiously indoctrinated terrorists.
More importantly, the purely subjective interpretation does not comport with the statutory language of K.S.A. 21-3403(b). If the legislature had intended to allow a defendant to make up his or her own version of the law based upon the defendant’s declaration of an honest belief, the statute could have simply defined the crime as an intentional killing of a human being committed upon an unreasonable but honest belief that circumstances existed that justified deadly force. But the statute adds something; it requires that the honest belief has to be “that circumstances existed that justified deadly force under K.S.A. 21-3211, 21-3212 or 21-3213 and amendments thereto.” (Emphasis added.) K.S.A. 21-3403(b).
The statutory reference to the perfect defense statutes has to mean something because we do not interpret statutes in such a manner as to render portions superfluous or meaningless. See State v. Van Hoet, 277 Kan. 815, 826-27, 89 P.3d 606 (2004) (“The court should avoid interpreting a statute in such a way that part of it becomes surplusage.”). The logical interpretation is that tire circumstances which the defendant honestly believed to exist must have been such as would have supported a claim of perfect self-defense or defense-of-others, if true. Accord People v. Enraca, 53 Cal. 4th 735, 761, 137 Cal. Rptr. 3d 117, 269 P.3d 543 (“ ‘To make the observation in In re Christian S.[, 7 Cal. 4th 768, 773 n.1, 30 Cal. Rptr. 2d 33, 872 P.2d 574 (1994),] more general, not every unreasonable belief will support a claim of imperfect self-defense but only one that, if reasonable, would support a claim of perfect self-defense.’ ”), cert. denied 133 S. Ct. 225 (2012).
Subsequently, in State v. White, 284 Kan. 333, 161 P.3d 208 (2007), this court did not follow Ordway’s suggestion to completely disregard die objective element of imminence when considering imperfect defense-of-others voluntary manslaughter. There, White believed that his son-in-law was sexually abusing White’s grandson, so he shot and killed the son-in-law in the Wal-Mart while the son-in-law was working. White asserted imperfect defense-of-others, and the State countered that White presented no evidence that the grandson was in imminent danger from the son-in-law at the time of the shooting. This court agreed with the State, reasoning:
“[T]he evidence relied upon by White explains why he might have believed that B.A.W. had previously been abused or would be abused in the future. But White did not provide any evidence that he believed B.A.W. was in imminent danger at the time of the shooting. At that time, Aaron, the purported abuser, was not in the presence of B.A.W., the purported victim. Indeed, because White went to Aaron’s Wal-Mart work-place, it would be quite difficult for him to present evidence that he honestly believed his 5-year-old grandson was there and that abuse was imminent.” 284 Kan. at 353.
White looked to California caselaw for guidance on imperfect defense-of-self-or-others. Specifically, we referred to In re Christian S., where the California Supreme Court “held that ‘[f]ear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice.’ 7 Cal. 4th at 783. It concluded that ‘the trier of fact must find an actual fear of an imminent harm. . . .’ 7 Cal. 4th at 783.” 284 Kan. at 352. As noted above, the Enraca court extrapolated from Christian S. the general rule that an imperfect self-defense claim is only available where the unreasonable beliefs would have supported a perfect self-defense claim if they had been reasonable beliefs. 53 Cal. 4th at 761.
White also discussed Menendez v. Terhune, 422 F.3d 1012 (9th Cir. 2005), where tire Menendez brothers, Erik and Lyle, were convicted in California state court of two counts each of first-de gree murder for shooting their defenseless parents with numerous shotgun blasts. The brothers’ petitions for writs of habeas corpus to the Ninth Circuit Court of Appeals alleged, inter alia, that the decision not to instruct the jury on imperfect self-defense violated the brothers’ rights to due process. The state trial and appellate courts found that an imperfect self-defense instruction was not warranted because the brothers were unable to show a belief that danger was imminent. 422 F.3d at 1028-29.
In denying relief, the Ninth Circuit discussed the brothers’ evidence establishing that they were repeatedly abused by their father and that their mother had acquiesced in the abuse. But the court found that this focus on past abuse was unpersuasive because it fell short of establishing that “at the moment [Erik] shotgunned his parents to death, he feared he was in imminent peril.” 422 F.3d at 1030. The court found that even Erik’s belief that “his parents would kill him when they exited the room [was] insufficient to support the instruction” because, assuming this testimony was true, die killings were preemptive strikes. 422 F.3d at 1030.
Recently, we reached a different result in Qualls, where we found that the district court’s failure to give an imperfect self-defense instruction created reversible error. Qualls admitted shooting the victim in a bar fight but argued for a voluntary manslaughter instruction based on his honest but unreasonable belief that lethal force was justified. Specifically, Qualls testified that he saw the victim reach for his waist; that he saw something that he believed was a gun; and that he responded by shooting the victim in self-defense. Qualls held that the district court should not have applied an objective standard to determine that the victim’s hand at his waist did not warrant an imperfect self-defense instruction, but rather the question was “whether there was evidence of Qualls’ subjective belief that unlawful force was imminent when that evidence is viewed in the light most favorable to Qualls.” 297 Kan. at 70. In that case, pursuant to the rationale in the Enraca case described above, the voluntary manslaughter instruction was factually appropriate because the defendant’s honest belief that the victim was drawing a gun from his waistband would have fit the statutory requirements for a perfect self-defense set forth in K.S.A. 21-3211 if the belief had been reasonable, i.e., if the circumstances beheved to exist were true.
In contrast to Qualls, here, even if the circumstances that Roe-der believed existed had been true—that Dr. Tiller would be performing abortions the following day—those circumstances would not have supported a claim of perfect defense-of-others. For that defense to -apply under K.S.A. 21-3211(a), Roeder had to be defending against Dr. Tiller’s “imminent use of unlawful force” against a third person. Even ignoring the question of whether a fetus is a third person, the defense could not stand.
As the trial court aptly noted, no use of force was imminent in the church foyer that Sunday morning. Moreover, the facts bebe the notion that Roeder committed the crime when and where he did because of an honest belief in the imminence of harm. To the contrary, he coldly calculated the time and place that gave him the best odds of successfully completing his planned murder. Additionally, given that abortions are lawful, Roeder could not have been defending against unlawful force, as required for perfect defense-of-others. Even if the doctor had failed to comply with all of the rules and regulations governing abortions, the use of the force required to accomplish the abortion would not have been unlawful.
Finally, we would note that Roeder’s argument that he honestly believed that Dr. Tiller was performing unlawful abortions based upon the attorney general investigations and allegations that the doctor was violating administrative protocol is simply disingenuous. Roeder testified that he formed the belief that he needed to kill Dr. Tiller over a decade prior to any attorney general investigation. Further, he clearly testified that he sought to stop all abortions, including those that were legal under the law.
Consequently, we affirm the district court’s denial of Roeder’s request for an imperfect defense-of-others voluntary manslaughter instruction.
Right to Present a Defense
Closely related to his argument that the district court erred in denying his requested lesser included offense instruction on voluntary manslaughter—imperfect defense-of-others, Roeder argues that the district court violated his due process right to present this defense.
Standard of Review
'"When a criminal defendant claims that a district judge has interfered with his or her constitutional right to present a defense, we review die issue de novo.” State v. Carter, 284 Kan. 312, 318-19, 160 P.3d 457 (2007) (citing State v. Kleypas, 272 Kan. 894, 921-22, 40 P.3d 139 [2001], cert. denied 537 U.S. 834 [2002]).
Analysis
A defendant has a right to present his or her theory of defense, but that right is subject to some constraints, to-wit:
“Under our state and federal constitutions, a defendant is entitled to present the theory of his or her defense. State v. Evans, 275 Kan. 95, 102, 62 P.3d 220 (2003). The defendant’s fundamental right to a fair trial is violated if relevant, admissible, and noncumulative evidence which is an integral part of the theory of the defense is excluded. See State v. Mays, 254 Kan. 479, 487, 866 P.2d 1037 (1994).
“However, the right to present a defense is subject to statutory rules and case law interpretation of the rules of evidence and procedure. State v. Thomas, 252 Kan. 564, 573, 847 P.2d 1219 (1993). An appellate court’s first consideration when examining a challenge to a district court’s admission of evidence is relevance. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question. State v. Carter, 278 Kan. 74, Syl. ¶ 1, 91 P.3d 1162 (2004).” State v. Patton, 280 Kan. 146, 156, 120 P.3d 760 (2005), disapproved on other grounds by State v. Gunby, 282 Kan. 39, 55-56, 144 P.3d 647 (2006).
Roeder argues that the district court interfered with his right to present a voluntary manslaughter defense when the court: (1) quashed Barry Disney’s subpoena; (2) excluded Disney and Phill Kline from testifying in Roeder’s defense; (3) ordered the defense to proffer Roeder’s and Kline’s testimony; (4) denied Roeder’s motion to take judicial notice and instruct the jury of the two criminal cases against Dr. Tiller; and (5) limited Roeder’s testimony during direct examination.
Quashing Disney’s Subpoena
After the district court granted the motion to quash the subpoena issued to Deputy Attorney General Bany Disney, Roeder’s counsel made the following proffer:
“As to Barry Disney, we believe Mr. Disney, if he had been allowed to testify, would have indicated he is a licensed attorney. He is employed by tire Attorney General’s office, working out of Topeka, Kansas. He became the lead prosecutor in the case State v. Tiller, captioned 07 CR 2112. He prosecuted in front of a jury a 19-count Complaint alleging—the gist of tire allegations were all tire same, that he failed to, at least on 19 occasions, obtain an independent second opinion relative to the patient on whom he had performed an abortion. Furthermore, we anticipate that he would have testified that Dr. Tiller was acquitted on all 19 charges.”
Roeder argues that the district court erroneously applied K.S.A. 60-245(c)(3)(A), which provides:
“(3) (A) On timely motion, the court by which a subpoena was issued shall quash or modify tire subpoena if it:
(i) Fails to allow reasonable time for compliance;
(ii) requires a resident of this state who is not a parly or an officer of a party to travel to a place more than 100 miles from tire place where that person resides, is employed or regularly transacts business in person or requires a nonresident who is not a party or an officer of a party to travel to a place more than 100 miles from the place where the nonresident was served with the subpoena, is employed or regularly transacts business, except that, subject to the provisions of subsection (c)(3)(B)(iii), such a nonparty may in order to attend trial be commanded to travel to the place of trial;
(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or
(iv) subjects a person to undue burden.”
Roeder argues that the facts of this case did not meet any of the four provisions in K.S.A. 60-245(c)(3)(A). But we have also recognized the “well-established principle that district courts have the authority, independent of a statutory privilege, to prevent or limit the power of compulsory process when necessary to prevent abuse, harassment, undue burden or expense, to manage litigation, to prevent violation of constitutionally protected interests, and to protect confidential matters.” State v. Gonzalez, 290 Kan. 747, 767, 234 P.3d 1 (2010). Pertinent here, our caselaw provides that “[s]ubpoenas in aid of civil or criminal litigation are subject to stringent relevancy requirements.” 290 Kan. at 767 (citing State ex rel. Stephan v. Clark, 243 Kan. 561, 568, 759 P.2d 119 [1988]); see also 98 C.J.S., Witnesses § 25 (“In a proper case, the prosecution may seek to quash a defendant’s subpoena where the testimony that is sought is neither relevant nor material to the issues involved.”).
Roeder contends that Disney’s testimony was relevant to show the jury that Roeder had a basis in fact to believe that Dr. Tiller was not complying with tire law when performing abortions. The district court ruled that establishing Disney’s good faith in prosecuting Dr. Tiller was “unnecessary” and that any questioning in that regard would invade Disney’s mental impressions. The district court also noted that it would be redundant for Disney to testify that he had a good faith basis to prosecute Dr. Tiller, given that the law and a prosecutor’s professional ethics require that good faith. The court further reasoned that “Roeder is not going to be able to corroborate or validate his beliefs by bringing in collateral sources, be it Mr. Disney, Mr. Phill Kline, or anybody else’s opinion on the legality or illegality of what Dr. Tiller was doing.”
Given that we have held in the foregoing issue that Dr. Tiller’s failure to comply with some administrative or procedural requirement would not transform the actual abortion into an unlawful use of force within the meaning of the defense-of-others statute, Disney’s testimony was no more relevant to these proceedings than the price of wheat in Kansas. Accordingly, the district court made the correct decision. See State v. Bryant, 272 Kan. 1204, 1210, 38 P.3d 661 (2002) (district court’s correct decision may be upheld even where rationale not articulated).
Excluding Disney and Kline from Testifying in Roeder s Defense
Roeder also argues that the district court erred by excluding Disney’s and Kline’s testimony. In addition to quashing Disney’s subpoena, the district court, over Roeder’s objection, required Roeder to proffer Kline’s testimony. Kline’s proffered testimony discussed his investigation into Dr. Tiller’s abortion practice while Kline served as the Kansas Attorney General. Kline testified that the investigation involved potential criminal late-term abortions and failure to report sexual abuse of children. He also testified that he came to a good faith conclusion that Dr. Tiller was performing unlawful abortions and discussed the criminal charges he filed against Dr. Tiller on December 21, 2006. But Kline clarified that he thought Roeder was not justified in killing Dr. Tiller and that Roeder s actions were unreasonable.
The district court ruled that Kline could not testify. The court first noted that portions of Kline’s testimony were irrelevant and immaterial because the testimony discussed private inquisitions and records. The court then found that Kline’s testimony regarding the charges made public involved Kline’s legal theories, which were not matters for jurors as factfinders to consider. The district court ruled that Roeder could testify regarding how the dismissal and acquittal impacted him. But the district court found that Disney and Kline had no insight into how their legal maneuvers impacted Roeder.
Roeder argues that the district court erred in excluding Disney and Kline from testifying in his defense because the evidence was relevant to Roeder’s subjective beliefs. Again; we disagree and find Roeder’s citation to the Maryland decision in Simmons v. State, 313 Md. 33, 542 A.2d 1258 (1988), to be inapposite here. Simmons involved the exclusion of the expert testimony of a psychiatrist on the issue of Simmons’ asserted subjective belief. Yet, Roeder does not even attempt to argue that either Disney or Kline would have had the expertise to discuss Roeder’s psychological profile.
In a pro se supplemental brief, Roeder makes the argument that Kline’s testimony would have been relevant to show the reasonableness of Roeder’s beliefs for the perfect defense-of-others under K.S.A. 21-3211. But Roeder fails to connect the dots between Kline’s failed pursuit of technical abortion statute violations against Dr. Tiller and whether a rational, objective person would commit premeditated murder of a person with whom that person had theological disagreements. In other words, the proffered testimony had no relevance on any issue before the jury in this prosecution.
Ordering Defense to Proffer Kline’s and Roeder s Testimony
Roeder also argues that the district court infringed on his constitutional rights and failed to ensure his right to a fair trial by ordering defense counsel to proffer his testimony before the State had rested its case. The district court explained:
“If lie chooses to testify, there is going to be a proffer made by counsel, because be is not going to get up there and get to just blurt out whatever he wants to say. I agree. It has to he relevant and material. But until I hear the proffer, I can’t even judge if it’s irrelevant or immaterial, nor can I do that on Phill Kline.”
Roeder argues that the proffer under these circumstances was improper and any objections to his testimony should have been done during direct examination. Roeder argues that the State gained an advantage because the State was able to “ ‘preview’ ” Roeder’s direct examination, allowing the State to make numerous timely objections to his testimony.
Roeder’s argument that he should not have been required to proffer a summary of his or his witness’ testimony before the State had rested its case-in-chief has merit. “The purpose of a proffer is to make an adequate record of the evidence to be introduced” in order to preserve the issue for appeal. State v. Evans, 275 Kan. 95, 99, 62 P.3d 220 (2003). Here, the district court erred in requiring Roeder to proffer his testimony before the testimony was presented.
Nevertheless, given that the testimony of both Kline and Roeder on this issue was irrelevant on the imperfect defense-of-others defense, the error was harmless. There was no reasonable possibility that the error contributed to the verdict. See State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
Denying Roeder s Motion to Take Judicial Notice and Instruct the Jury on the Two Criminal Cases Against Dr. Tiller
Roeder next argues that the district court erred in denying his motion to take judicial notice of the two criminal cases filed against Dr. Tiller. Instead of taking judicial notice, the district court allowed Roeder to testify to the facts surrounding Dr. Tiller’s prior trials and “how those facts affected his thinking process and ulti mately his decision to act the way he did.” We discern that the district court permitted more evidence to be introduced on the imperfect defense-of-others issue than was warranted by the concept of relevancy. The court did not err in refusing the requested judicial notice.
Limiting Roeder’s Testimony During Direct Examination
Roeder points to several instances during his direct examination where tire district court limited his discussion of Dr. Tiller s abortion practices. Roeder argues that the district court should have followed its earlier ruling that Roeder could testily regarding “his personally-held beliefs just in general about abortion, whether it is harmful, whether it terminates a viable baby.”
A review of Roeder s testimony shows that the district court allowed Roeder to testify on each of the issues identified in the district court’s earlier ruling and only limited Roeder’s testimony when Roeder attempted to discuss matters we have deemed irrelevant and completely off-base. The trial court’s patience is applauded, and we find no error in the court controlling the trial by limiting testimony, where necessary.
Prosecutorial Misconduct
Roeder claims that the prosecutor committed misconduct during the rebuttal portion of closing argument by (1) appealing to the passion and prejudice of the jury, and (2) encouraging the jury to consider factors outside of the evidence. We find that the majority of the prosecutor’s comments were not outside the wide latitude a prosecutor is allowed and, therefore, did not constitute misconduct. To tire extent the prosecutor’s comments exceeded this wide latitude, the comments were unequivocally harmless.
Standard of Review/Applicable Tests
A claim of prosecutorial misconduct based on comments made during closing argument will be reviewed on appeal, even where, as in this case, there was no contemporaneous objection. See State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009). Such review involves a two-step process. First, we decide whether the comments were outside the wide latitude that a prosecutor is allowed in discussing the evidence. State v. Marshall, 294 Kan. 850, 856, 281 P.3d 1112 (2012). If the comments were improper and constituted misconduct, we then determine whether the comments prejudiced the jury against the defendant and denied the defendant a fair trial. 294 Kan. at 856. Under this second step, we consider three factors. First, was the misconduct gross and flagrant? Second, was the misconduct motivated by ill will? Third, was the evidence of such a direct and overwhelming nature that the misconduct would have had little weight in the mind of a juror? State v. Bridges, 297 Kan. 989, Syl. ¶ 15, 306 P.3d 244 (2013). None of the three factors is individually controlling. State v. Adams, 292 Kan. 60, 66, 253 P.3d 5 (2011).
Finally, in considering the third factor, this court requires that the prosecutorial misconduct error meets the “dual standard” of both constitutional and statutory harmlessness in order to uphold a conviction. State v. Tosh, 278 Kan. 83, 97, 91 P.3d 1204 (2004). The State bears the burden of demonstrating harmlessness under both standards. However, if the State meets the higher constitutional harmless error standard, the State necessarily meets the lower statutory standard under K.S.A. 2013 Supp. 60-261. See Bridges, 297 Kan. at 1012-13, 1015. The constitutional, or Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), harmless error standard provides that
“error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.” Ward, 292 Kan. 541, Syl. ¶ 6 (citing Chapman, 386 U.S. 18).
Analysis
Roeder challenges the rebuttal portion of the State’s closing argument. The State argues that the comments Roeder now challenges were made in response to defense counsel’s closing argument; therefore, to the extent that any portion of the prosecutor’s rebuttal was suspect, the prosecutor was attempting to redirect the jury back to its duties and counter the defendant’s plea to the jury to base its decision on passion. To support this argument, the State cites to State v. Murray, 285 Kan. 503, 517, 174 P.3d 407 (2008), where we stated: “[N]o prejudicial error occurs—including pros-ecutorial misconduct—where the questionable statements are provoked and made in response to prior arguments or statements by defense counsel.”
Shortly after the State filed its brief, we noted two disparate lines of reasoning regarding the “open-the-door” rule in prosecutorial misconduct cases and reaffirmed that “[t]he open-the-door rule does not insulate a prosecutor from a finding of misconduct.” Marshall, 294 Kan. at 860. Therefore, “a prosecutor’s improper comment or argument can be prejudicial, even if the misconduct was extemporaneous and made under the stress of rebutting arguments made by defense counsel. The extemporaneous, rebuttal nature of a prosecutor’s argument is merely a factor to be considered by an appellate court.” 294 Kan. at 861; see also State v. Stimec, 297 Kan. 126, 130, 298 P.3d 354 (2013) (“In short, defendants do not open the door to prosecutorial misconduct.”).
Although not determinative of this issue, the rebuttal nature of the prosecutor’s argument is still a factor we consider. In Roeder’s closing argument, defense counsel argued that after the trial, the abortion debate “will rage on.” He discussed some of history’s tragedies including tire inhumane treatment of Native Americans, Stalin’s “purges in Mother Russia,” and Hitler’s “incomprehensible slaughter of 6 million Jews.” He noted that we “remember and we celebrate individuals who stood up and made the world a better place” such as Dr. Martin Luther King, Jr. Defense counsel concluded his argument by stating:
“Wichita changed on May 31st, 2009. I think that can’t be disputed. We are going to ask you to all collectively fulfill your duties, and in your verdict represent our little part of the nation well. The State as well as Scott Roeder provided to you that he killed Dr. George Tiller, but only you collectively can determine if he murdered George Tiller. No defendant should ever be convicted based upon his convictions. We ask you not to convict the defendant. We are going to ask you to acquit Scott Roeder of first degree murder.”
Roeder challenges the italicized portion of the State’s rebuttal argument:
“On May 31st, that quiet Sunday, Wichita did change. It changed from a quiet community celebrating their Sabbath to a community terrorized. We are a society of laws. We each rely on it every day. We rely on judges, we rely on legislators, and we rely on jurors taking an oath to follow tire law, as each of you have dorie.
“But on that day and the days before, when Scott Roeder contemplated taking the law into his own hands, he took it from the rest of us. . . .
“And while Gary Hoepner lives, as you saw even today, with the guilt of failing to stop the man, the killer, the defendant feels relieved at his success. And while in this courtroom the defendant[] pick[s] through the State’s case at the various witnesses and act[s] incredulous after answers, the defendant is preparing his testimony, tohere he can proudly in a public forum take credit for his murder. And ivhile he does so, it sends chills down the backs of conscientious people.” (Emphasis added.)
Roeder argues that the prosecutor’s argument,, “while Gary Hoepner lives, as you saw even today, with the guilt of failing to stop the man, the ldller, the defendant feels relieved at his success,” was not commentary on the evidence but was a judgment designed to arouse jurors’ anger. We disagree and find these comments were based upon evidence presented at trial. During Hoepner’s examination, the prosecutor read a portion of Hoepner’s interview with investigators where Hoepner said, “ 1 wanted to apprehend the guy myself. I really felt bad that I couldn’t have.’ ” During Roeder’s testimony, Roeder admitted that he felt “[a] sense of relief1’ that Dr. Tiller’s clinic was shut down. Roeder also testified that he did not regret what he did. Therefore, we find this challenged portion of the prosecutor’s closing argument was within the wide latitude a prosecutor is allowed to discuss the evidence presented at trial.
Roeder also takes issue with the prosecutor’s statement, “[Wjhile in this courtroom the defendant^ pick[s] through the State’s case at the various witnesses and act[s] incredulous after answers, the defendant is preparing his testimony, where he can proudly in a public forum take credit for his murder.” We find this portion of the State’s closing argument is comparable to State v. Finley, 273 Kan. 237, 244, 42 P.3d 723 (2002), where Finley argued that the prosecutor improperly appealed to community interests by arguing, “ ‘He’s not accepting responsibility for what he did. And his behaviors are exactly why we have this felony murder rule. He cannot expect to get away with this killing/ ” As we found in Finley, the prosecutor s comments were “based on a fair inference drawn from the evidence.” 273 Kan. at 244.
Two of the prosecutor’s comments arguably appealed to the jurors’ passion and prejudice and encouraged the jury to consider factors outside of the evidence. The prosecutor argued that Wichita was “terrorized” by Roeder’s actions. The prosecutor also argued that Roeder’s conduct “sends chills down the backs of conscientious people.” Roeder argues that these statements distracted the jury from its role as factfinder and were designed to elicit anger and resentment in the jury. We have “repeatedly emphasized that it is improper for a prosecutor to comment on facts not in evidence, to divert the jury’s attention from its role as factfinder, or to malee comments that serve no purpose other than to inflame the passions and prejudices of the jury.” Stimec, 297 Kan. at 128-29.
In Stimec, we found that a prosecutor’s comments during the rebuttal portion of closing argument were improper for a number of reasons, including that they appealed to the passions of the jury and diverted the jury’s attention from the case. There, the State presented evidence that Stimec’s 6-year-old son, J.S., spent every other weekend with Stimec. One weekend, when J.S. returned to his mother’s house, J.S. told her that he and Stimec put lotion on each other, including each other’s private parts. In his defense, Stimec asserted that he put lotion on his son but never in inappropriate places and argued consistent with this assertion during his closing argument. In rebuttal, the State argued:
“ ‘It is not illegal to put lotion on a child’s back. It is not illegal to put it on their anides, knees, shoulders, head, anywhere else. None of that is a crime, absolutely, but it is a crime to stroke your son’s penis with lotion. I mean, let’s just call it what it is, okay, that’s a crime. You know what, feel free to take a poll in the jury room when you go to deliberate, take a poll. If there is one member of this panel who has stroked their son’s penis with lotion, then by all means, find that way. I suspect that won’t be the case.’ ” 297 Kan. at 128.
This court found that the prosecutor’s suggestion to the jury to take a poll in the jury room was inappropriate and in error. 297 Kan. at 129.
Obviously, the prosecutor s statements in Stimec were exponentially more egregious than the prosecutor’s statements in this case. Nevertheless, in the abstract, one could question the prosecutor’s reference to a “community terrorized” or to the characterization of Roeder’s cavalier attitude as “[sending] chills down the backs of conscientious people.” But, cutting to the bottom line, there is no possibility whatsoever that the relatively innocuous comments by the prosecutor in an emotionally charged trial had any effect on the trial’s outcome given that the defendant not only admitted killing Dr. Tiller, but also essentially bragged about committing the crime.
Second-Degree Murder Lesser Included Offense Instruction
Roeder argues that the district court erred in failing to give his requested second-degree murder lesser included offense instruction. Because Roeder requested the instruction, this issue is preserved for review. Furthermore, second-degree intentional murder is a lesser included offense of premeditated first-degree murder; therefore, the instruction would have been legally appropriate. See State v. Haberlein, 296 Kan. 195, 204, 290 P.3d 640 (2012), cert. denied 134 S. Ct. 148 (2013). The State questions whether the second-degree murder instruction was factually appropriate. See State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
Although Roeder makes the unintelligible argument that the right to a jury trial in serious criminal cases is part of the State’s obligation under due process of the law, we fail to discern how the instructional challenge rises to the level of a constitutional error. But we need not get bogged down debating the propriety of giving a second-degree murder lesser included offense instruction in this case. If the district court erred in failing to give the requested second-degree murder instruction, it was harmless beyond all possible doubt.
Roeder testified that he had planned on killing Dr. Tiller since 1993. A defendant’s own testimony that he or she contemplated and planned to kill a specific person for approximately 16 years is irrefutable evidence that the defendant thought the matter over beforehand, i.e., that the defendant committed premeditated murder, rather than instantaneous murder. Roeder’s defense was that he was justified in committing the murder. A jury either had to convict of premeditated murder or acquit based upon juiy nullification. No reversal here. See Ward, 292 Kan. 541, Syl. ¶ 6.
Defense-of-Others Instruction
Roeder also argues that the district court erred in failing to give his requested perfect defense-of-others instruction. Roeder’s requested instruction was based on PIK Crim. 3d 54.17 and stated:
“Scott Roeder claims his use of force was permitted as the defense of another person(s).
“Scott Roeder is permitted to use force against another person when and to the extent that is appeal's to him and he reasonably believes such force is necessary to defend someone else against the other person’s imminent use of unlawful force. Reasonable belief requires both a belief by defendant and the existence of facts that would persuade a reasonable person to that belief.
“When use of force is permitted [in] defense of someone else, there is no requirement to retreat.”
Because Roeder requested the instruction, this issue is preserved for review. We next turn to whether the instruction was legally appropriate. Plummer, 295 Kan. 156, Syl. ¶ 1. We conclude that it was not. As previously stated, K.S.A. 21-3211 sets out a two-part test:
“ ‘The first is subjective and requires a showing that [Roeder] sincerely and honestly believed it was necessary to Mil to defend [himself] or others. The second prong is an objective standard and requires a showing that a reasonable person in [Roeder’s] circumstances would have perceived the use of deadly force in self-defense as necessary. [Citation omitted.]’ (Emphasis added.)” State v. Friday, 297 Kan. 1023, 1037, 306 P.3d 265 (2013) (quoting State v. McCullough, 293 Kan. 970, 975, 270 P.3d 1142 [2012]).
Roeder recognizes that the defense-of-others requires both a subjective and a reasonable belief that the use of force is necessary; however, he argues that viewing the evidence in a light most favorable to him, a rational factfinder could find that he reasonably (objectively) believed that his use of force was necessary. Stepping out of the delusional world in which Roeder apparently resides, no rational person would reasonably believe that deadly force was needed against an imminent use of unlawful force in this case.
In State v. Hernandez, 253 Kan. 705, 713, 861 P.2d 814 (1993), we found that a defense-of-others instruction was not warranted when Hernandez asserted he shot a man to protect his sister from the victim. Hernandez established a histoiy of domestic violence between his sister and the victim. We rejected a finding of imminence even though Hernandez presented evidence that the victim had threatened to kill his sister at 11 a.m. on the day Hernandez shot the victim and that his sister was working in the adjoining factory when the shooting took place.
Here, even viewing the evidence in a light most favorable to Roeder, the harm he sought to prevent was 22 hours away. This danger was remote when compared to the Hernandez circumstances, which we found were not süfficient to establish imminence. We need not recount the other reasons that the requested defense-of-others instruction was not legally appropriate. This was not a close call.
Cumulative Error
Alternatively, Roeder claims that even if none of the singular errors addressed above warrant reversal, their cumulative effect requires reversal. The State counters that Roeder failed to establish any trial error and that the evidence overwhelmingly established his guilt. Óur findings that the prosecutor committed misconduct during the rebuttal portion of her closing argument and that the district court might have erred in failing to instruct the jury on second-degree murder refute the State’s claim of no trial error. Nevertheless, we find that the cumulative effect of those errors did not prejudice Roeder to the point of denying him a fair trial and decline to reverse on that basis.
Standard of Review
We utilize a de novo standard when determining whether the totality of circumstances substantially prejudiced a defendant and denied the defendant a fair trial based on cumulative error. State v. Cruz, 297 Kan. 1048, 1073-74, 307 P.3d 199 (2013). We rec ognize the cumulative error analysis is somewhat subjective. 297 Kan. at 1074. Our task is to determine whether the cumulative effect of both of the errors is such that collectively they cannot be determined to be harmless. “In other words, was the defendant’s right to a fair trial violated because the combined errors affected the outcome of the trial?” State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011).
Analysis
As discussed above, the prosecutor’s statements, although arguably misconduct, were very mild and were made in response to defense counsel’s argument. Further, the abundant evidence of premeditation made any error in failing to provide a second-degree murder instruction harmless beyond a reasonable doubt. Consequently, especially in light of the overwhelming evidence, we conclude that cumulative error did not affect the trial’s outcome and did not deny Roeder a fair trial.
Hard 50 Sentence
Roeder argues that the district court erred in finding multiple aggravating circumstances that justified the imposition of a hard 50 sentence. Premeditated first-degree murder carries a life sentence with a mandatory minimum of 25 years before the defendant becomes parole eligible unless the State establishes that the defendant qualifies for an enhanced minimum sentence, here 50 years. State v. Nelson, 291 Kan. 475, 486, 243 P.3d 343 (2010) (citing K.S.A. 21-4635; K.S.A. 22-3717[b][1]). At the time Roeder was sentenced, the district court had to find by a preponderance of the evidence that one or more of the aggravated circumstances enumerated in K.S.A. 21-4636 existed and that they were not outweighed by any mitigating factors in order to enhance the minimum sentence. K.S.A. 21-4635(d); Nelson, 291 Kan. at 486-88.
Since Roeder’s sentencing, we have held that a hard 50 sentence based upon a judge’s own preponderance-of-the-evidence determination that an aggravating factor existed is unconstitutional and must be vacated. Specifically, in State v. Soto, 299 Kan. 102, Syl. ¶ 9, 322 P.3d 334 (2014), we held:
“Kansas’ statutory procedure for imposing a hard 50 sentence as provided in K.S.A. 21-4635 violates the Sixth Amendment to the United States Constitution as interpreted in Alleyne v. United States, 570 U.S. -, 133 S. Ct. 2151, 2155, 2160-63, 186 L. Ed. 2d 314 (2013), because it permits a judge to find by a preponderance of the evidence the existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating factors beyond a reasonable doubt.”
In accord with Soto, Roeder’s hard 50 sentence was unconstitutionally imposed by the district court in violation of Roeder’s Sixth Amendment right to a jury trial.
Soto considered, but did not definitively resolve, “whether a modified harmless error standard can apply to a hard 50 [Sixth Amendment] error.” 299 Kan. at 128. Soto opined that “because Kansas’ hard 50 scheme requires the sentencing court to not only find aggravating and mitigating circumstances, but to weigh any mitigating circumstances against aggravating circumstances, only in a rare instance could a hard 50/Alleyne error be harmless.” 299 Kan. at 127. Like Soto, this case is not one of those rare cases where we can declare that the district court’s utilization of an unconstitutional sentencing scheme was harmless as a matter of law. Accordingly, we must vacate Roeder’s hard 50 sentence and remand for resentencing.
In Soto, we acknowledged that in response to Alleyne, at a September 2013 special session, tire Kansas Legislature amended the hard 50 sentencing scheme to assign the applicable fact-finding to a jury utilizing the beyond a reasonable doubt burden of proof. 299 Kan. at 128; see L. 2013, ch. 1, sec. 1 (Special Session). That special legislation contained a retroactivity provision, to-wit:
“ ‘[F]or all oases on appeal on or after the effective date of this act, if a sentence imposed under . . . K.S.A. 21-4635, prior to its repeal, is vacated for any reason other than sufficiency of the evidence as to all aggravating circumstances, resent-encing shall be required under this section, as amended by this act, unless tire prosecuting attorney chooses not to pursue such a sentence.’ ” 299 Kan. at 128.
The Soto parties presented arguments on whether retroactive application of the special session hard 50 sentencing scheme would violate the Ex Post Facto Clause of the United States Constitution, albeit both parties conceded that the question would not be ripe until the State sought to apply the new scheme to Soto. The prosecutor could decide not to pursue a hard 50 sentence on remand. Accordingly, Soto refrained from issuing an advisory opinion on the unripe ex post facto issue. 299 Kan. at 128-29.
Nevertheless, Soto chose to address the question of whether sufficient evidence supported the aggravating factor in that case, even though utilizing die new statute on remand would require evidence of the aggravating factor to be presented anew to a jury, i.e., the evidence on resentencing could be different than in the current appeal. The reason given for that advisory opinion was that “[subjection (e) of K.S.A. 2013 Supp. 21-6620 suggests the State would be precluded from pursuing a hard 50 sentence if this court had vacated Soto’s sentence for lack of sufficient evidence to support the aggravating circumstance.” 299 Kan. at 129. Later, the opinion intimated that resentencing under the new statute cannot occur if even one of the reasons for vacating a K.S.A. 21-4635 hard 50 sentence is the insufficiency of the evidence of the aggravating factor. See 299 Kan. at 130 (“Consequently, the sole reason we are vacating Soto’s sentence is because it was imposed in violation of his Sixth Amendment right to a jury trial, as interpreted in Alley ne.”).
Arguably, Soto went farther than was necessary in the appeal before it. Once the court determined that Soto’s sentence had to be vacated because of the unconstitutional sentencing scheme, the question of whether sufficient evidence existed to meet the requirements of the unconstitutional statute was rendered moot. The sufficiency of the evidence of any aggravating factor described in the new statute, K.S.A. 2013 Supp. 21-6620, will only be germane when, or if, the prosecutor elects to seek resentencing under the new statute’s retroactive provision in subsection (e).
Moreover, the retroactive provision speaks to applying the new statute where a sentence under the old statute has been “vacated for any reason other than sufficiency of the evidence as to all aggravating circumstances.” (Emphasis added.) K.S.A. 2013 Supp. 21-6620(e). The Sixth Amendment violation that requires us to vacate Roeder’s hard 50 sentence would fit within the category of “any reason other than sufficiency of the evidence.” In other words, the plain language of the provision purports to apply the new sentencing scheme to this case because the old sentence is being vacated for a reason other than the insufficiency of the aggravating circumstances evidence. Whether the sentence might also have been subject to being vacated based upon an insufficiency of the evidence if the sentencing scheme had not been found unconstitutional is an academic question we need not answer.
In making this determination, we are not unmindful of Soto’s progeny, in which we opined on the sufficiency of the evidence to support the aggravating factors used to impose hard 50 sentences, even though we had vacated those sentences for the same Sixth Amendment violation. See State v. Hayes, 299 Kan. 861, 327 P.3d 414, 420 (2014); State v. Lloyd, 299 Kan. 620, 644-45, 325 P.3d 1122 (2014); State v. DeAnda, 299 Kan. 594, 603-05, 324 P.3d 1115 (2014); State v. Astorga, 299 Kan. 395, 402-04, 324 P.3d 1046 (2014); State v. Hilt, 299 Kan. 176, 204-05, 322 P.3d 367 (2014). Nevertheless, here, we simply vacate the hard 50 sentence under K.S.A. 21-4635 and remand for resentencing without further directions.
Roeder s convictions are affirmed, the hard 50 sentence for the first-degree premeditated murder conviction is vacated, and the matter is remanded for resentencing.
Moritz, J., not participating. | [
-47,
-22,
-3,
-66,
26,
34,
-94,
24,
112,
-94,
102,
115,
-19,
-53,
5,
121,
51,
-75,
81,
105,
-107,
-73,
119,
-31,
-78,
-69,
-47,
-47,
-78,
-49,
-10,
-19,
12,
112,
74,
117,
102,
10,
97,
84,
-122,
4,
-87,
-15,
-46,
-62,
32,
51,
-38,
14,
49,
-98,
-93,
10,
30,
-61,
-55,
40,
91,
-83,
-64,
-111,
-53,
-115,
-55,
54,
-77,
-128,
-68,
39,
120,
62,
88,
-79,
8,
-8,
115,
-122,
2,
52,
79,
-87,
44,
102,
98,
32,
56,
-52,
-24,
-119,
79,
110,
29,
-89,
-104,
88,
101,
12,
-76,
-3,
118,
116,
42,
124,
-27,
22,
31,
124,
28,
-34,
-80,
-79,
-49,
120,
-126,
-6,
-5,
-95,
96,
113,
-117,
102,
86,
101,
122,
-41,
-102,
-108
] |
In a letter signed September 17, 2014, addressed to the Clerk of the Appellate Courts, respondent Kyle G. Smith, an attorney admitted to practice law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2013 Kan. Ct. R. Annot. 396).
The respondent was convicted of sexual exploitation of a child, in violation of K.S.A. 2013 Supp. 21-5510(a)(2), a severity level five felony. The conviction will require registration by the respondent as a sex offender. Following the conviction, on April 7, 2014, this court temporarily suspended the respondent’s license to practice law.
At the time the respondent surrendered his license, a disciplinary complaint based upon the respondent’s conviction remained pending.
This court, having examined the files of the office of the Disciplinary Administrator, finds the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Kyle G. Smith be and he is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Kyle G. Smith from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2013 Kan. Ct. R. Annot. 406). | [
-112,
-22,
-116,
60,
31,
-32,
-78,
-67,
89,
-45,
39,
83,
-19,
-54,
36,
122,
-61,
109,
21,
105,
-59,
-74,
119,
-63,
54,
-5,
-47,
-60,
-14,
79,
-20,
-75,
88,
48,
90,
-43,
70,
-54,
-55,
-40,
-114,
0,
9,
-8,
88,
-115,
54,
11,
18,
7,
117,
-98,
-77,
106,
61,
-55,
-120,
44,
-39,
-83,
-39,
-107,
-103,
21,
94,
21,
-77,
-76,
60,
13,
64,
-81,
-100,
-71,
1,
-8,
50,
54,
6,
-10,
79,
-103,
40,
118,
98,
32,
17,
-25,
-84,
-64,
15,
126,
-99,
-30,
-39,
92,
75,
-119,
-106,
-35,
100,
20,
43,
-2,
102,
69,
21,
104,
-117,
-49,
-48,
-109,
-50,
117,
78,
-101,
-1,
-122,
0,
117,
-41,
-28,
74,
87,
120,
-97,
-114,
-11
] |
The opinion of the court was delivered by
Moritz, J.:
Aaron K. Clay appeals his jury convictions of felony murder, attempted aggravated robbery, and criminal possession of a firearm. Clay contends the trial court twice erred in instructing the jury, twice erred by responding in writing to jury questions, and erred by permitting the jury to learn he was in custody and had been in prison. Clay also raises three sentencing errors.
We find no trial errors justifying reversal of Clay's convictions. But because the district court improperly sentenced Clay to 25 years to life instead of 20 years to life, we vacate Clay s sentence and remand for resentencing.
Factual and Procedural Background
The events leading to Clays convictions began on January 2, 2010, as a group of people socialized in the apartment of Jose Guadelupe Mayorga-Diaz (Mayorga). The group included Javier Reynoza, Mayorga’s friend; Juan Carlos Rios-Patron, who was staying with Mayorga’s neighbor; Deliska Tate and Annicka Martinez, Mayorga’s acquaintances; Reuban Richardson, who occasionally stayed with Mayorga; Kristy Robinson, Richardson’s girlfriend; and Jason Hochard, Richardson’s close friend. Tate and Martinez left Mayorga’s apartment in the early evening. Hochard, Richardson, and Robinson left sometime later.
Around 10 p.m., someone knocked on the apartment’s door. Mayorga asked who it was, and a male voice replied, “Jason.” Rey-noza opened the door, peeked out, and took two steps backward. The man at the door fired a gun, hitting Reynoza in the forehead. Reynoza later died from the gunshot wound.
Rios-Patron identifies the shooter.
Testifying through an interpreter, Rios-Patron said that on the night of the shooting he was at Mayorga’s apartment eating, drink ing, and socializing. As Rios-Patron sat about 7 to 8 feet from the apartment’s door, he heard “Jason” knocking. After Reynoza opened the door, Rios-Patron saw a man fire a gun, hitting Rey-noza. Rios-Patron saw the shooter’s face and looked into his eyes. Afraid he too would be shot, Rios-Patron laid down on the floor.
Rios-Patron testified that on the night of the shooting he told officers he did not know the shooter. Soon thereafter, law enforcement officers showed Rios-Patron a six-person photographic lineup and asked him if any of the photographs depicted the shooter.
According to Rios-Patron, as officers showed him the photo lineup, they “kind of threaten[ed]” him, saying he needed to cooperate or else he could go to jail. So Rios-Patron selected Richardson from the lineup and told police the photograph “look[ed] like [the shooter] a lot” and that he thought “it maybe” the shooter. At trial, Rios-Patron said he picked Richardson because he had seen him around the apartment complex. But according to Rios-Patron, he “had no certainty” Richardson was the shooter and only identified him so police would “leave [Rios-Patron] alone.”
A few weeks later police again showed Rios-Patron photographs, this time in an effort to identify another of Mayorga’s guests the night of the shooting. Instead, as Rios-Patron testified, “When I saw a photograph, there was a photograph of a face right there. And when I saw it, I just—I just had to look again and went back and said, [o]h. I got surprised. It’s like, [t]his is [the shooter].” The prosecutor asked Rios-Patron how “sure” he was that the photograph depicted the shooter, and Rios-Patron responded, “Well, it’s the same. It’s him.” The prosecutor then asked Rios-Patron if the man in tire photograph was in the courtroom, and Rios-Patron identified Clay.
On cross-examination, defense counsel asked Rios-Patron if he was afraid of Richardson. After Rios-Patron said he was not, defense counsel impeached him with his preliminary hearing testimony in which Rios-Patron testified he was afraid of Richardson “and his people.”
The accounts of the law enforcement officers who were present during Rios-Patron’s identifications of Richardson and Clay differed from his. Detective James Gunzenhauser testified Rios-Pa tron identified Richardson as the shooter before being shown a lineup. And when Rios-Patron was shown a six-person lineup shortly thereafter, he immediately identified Richardson as the shooter and expressed no uncertainty in his identification. Gun-zenhauser denied he or any other officer threatened Rios-Patron.
Detective Angela Garrison testified she showed a second set of photographs to Rios-Patron in an attempt to identify a man named Marcos who reportedly also was at Mayorga’s apartment tire night of the shooting. As Rios-Patron reviewed the photographs, he “blurted out” that the photograph depicting Clay was the shooter. Rios-Patron appeared confused, however, so Garrison placed Richardson’s photo next to Clay’s photo and again asked Rios-Patron to identify the shooter. According to Garrison, Rios-Patron initially believed the two pictures showed the same person but then became “adamant” that Clay’s photograph depicted the shooter. He then declared he knew “for sure” Clay was the shooter because of his eyes and his mouth.
The Activities of Tate, Martinez, West, and Clay
Tate and Earl “Will” West testified that they, along with Martinez and Clay, devised a plan to rob some of the people in May-orga’s apartment on January 2,2010. Although their testimony contained discrepancies, they generally corroborated each other on the following facts.
Tate testified she and Martinez left Mayorga’s apartment around 5 p.m. Clay and West picked up the two women in a dark-colored Jeep. They then stopped at a gas station, and West went inside to pay for gas and buy cigarettes.
While West was inside, Martinez and Clay talked about robbing “the Mexicans” at Mayorga’s apartment, one of whom was “flashing around a lot of money.” Tate said because she and Martinez knew Hochard and Richardson, they decided that if the two men were at the apartment, “[die robbeiy] couldn’t go down.” Tate called Hochard and determined he and Richardson had left Mayorga’s apartment.
When West returned, the others told him about their plan to commit tire robbery. At Tate and Martinez’ direction, West drove to Mayorga’s apartment building and circled the block several times to ensure Richardson’s car was not there. Tate testified that before they arrived at the apartment building, Clay pulled out a gun. When Tate expressed concern about the gun, Martinez told her nothing would happen and that, “[i]f anything, they would just shoot off one shot to scare—-you know what I’m saying to get everybody in their place.” Tate testified it appeared Clay agreed with Martinez’ plan. Tate told Clay to use Hochard’s first name— Jason—to gain entry into the apartment.
West parked the car, and he and Clay went inside while Martinez and Tate waited in the Jeep. Clay entered the building while West stayed at the bottom of the stairs to watch the front door. West heard Clay knock on a door and then heard a single shot, causing West to run out the door.
According to Tate, after about 5 or 6 minutes, Clay and West emerged from the building and got back in the car. No one spoke as they drove away. At some point, Clay directed tire driver, Martinez, to drive to the apartment of Clay’s friend, William Sikorski.
At Sikorski’s apartment, Clay changed his clothes while Tate, Martinez, and West smoked methamphetamine. About an hour later, the group left Sikorski’s apartment; West and Tate then traveled in a maroon car while Clay and Martinez got back in the Jeep. The two cars stopped at a convenience store where Clay filled a gas can. Driving the maroon car, Tate and West continued to follow Clay and Martinez to an open lot near the downtown airport.
West and Tate parked a short distance ahead of Clay and Martinez. West and Tate then saw flames and watched as Clay and Martinez got in the maroon car with them. Clay had burns on his face. A law enforcement officer testified at trial that Tate later led him to the area where the Jeep was burned. There, the officer found a patch of burned grass and recovered a partially melted Jeep emblem as well as other debris from a burned vehicle. The officer also learned that a burned Jeep had been towed from the area.
A day or two later, Clay, Tate, Martinez, and Sikorski heard a news report indicating Reynoza had died as a result of injuries from the shooting. Sikorski testified that during the report, Tate and Martinez “started acting real frantic.” An officer who interviewed Sikorsld testified Silcorsld told him Clay said, “Fuck, die motherfucker died,” when he heard the report.
Richardsons Whereabouts
Richardson, Hochard, and Robinson also were at Mayorga’s apartment on the night of the shooting. Richardson regularly stayed at Mayorga’s and sold drugs with Hochard’s assistance.
Richardson, Robinson, and Hochard all testified on behalf of the State, primarily to discredit Rios-Patron’s initial identification of Richardson as the shooter. Their testimonies were somewhat inconsistent although they all indicated Richardson was not near the apartment at the time of the shooting.
They testified that at some point in the evening, Mayorga asked Richardson and Robinson to go get beer, cigarettes, and fast food. Hochard accompanied Richardson and Robinson so they could drop him off at a friend’s house. When the trio left the apartment, Tate and Martinez remained, but when Richardson and Robinson returned a short while later, Tate and Martinez had left.
Later, Richardson and Robinson left the apartment again to pick up Hochard and to go to Robinson’s mother’s house to give Robinson’s mother drugs in exchange for watching Robinson’s children.
About 3 hours later, as Robinson, Richardson, and Hochard returned to Mayorga’s apartment building, they saw police cars and an ambulance outside the building. Richardson parked the car a few blocks away and walked towards the apartment building, getting close enough to see police in Mayorga’s apartment, but leaving without talking to police or learning what had happened.
Defense Strategy and Case
Clay attempted to cast doubt on his guilt, arguing Rios-Patron initially correctly identified Richardson as the shooter and later identified Clay only because he felt threatened by Richardson. Clay also suggested Rios-Patron was influenced by law enforcement’s offer to secure a visa for Rios-Patron in exchange for his cooper ation. At trial, Rios-Patron denied that he was afraid of Richardson and said he did not accept the offer of a visa.
Attempting to impeach the State’s witnesses, Clay elicited from Tate, West, Richardson, and Robinson that they had used drugs the night of the shooting. And Rios-Patron testified that he had been drinking beer in Mayorga’s apartment. Clay also elicited that many of the witnesses—including Tate, Robinson, and Hochard— were acquaintances of Richardson, who would cover for him.
Clay’s only witness was Verle Strutton, who testified that at about 4:30 a.m. the morning after the shooting, he heard Tate arguing with her boyfriend, who was staying with Strutton, and heard Tate say, “I didn’t do it, Reuban [Richardson] did.”
Convictions and Sentencing
The jury convicted Clay as charged, finding him guilty of felony murder, attempted aggravated robbery, and criminal possession of a firearm.
At sentencing, the district court orally sentenced Clay to 25 years to life for his murder conviction, a consecutive 130 months’ imprisonment for attempted aggravated robbery, and a concurrent 8 months’ imprisonment for felony possession of a firearm. The district court also orally imposed lifetime parole. The journal entry of sentencing, however, reflects that the district court sentenced Clay to 20 years to life imprisonment and lifetime postrelease supervision. The journal entry also reflected the court’s order that Clay reimburse the Board of Indigent Defense Services (BIDS) $1,000.
Clay directly appealed his convictions and sentence to this court. Our jurisdiction arises under K.S.A. 22-3601(b)(l).
Analysis
The failure to give a lesser included instruction on unintentional second-degree murder was not error.
Clay first argues the district court erred by failing to sua sponte instruct the jury on unintentional second-degree murder and involuntary manslaughter as lesser included offenses of felony murder.
Standard of Review
Because Clay did not object to the lack of an unintentional second-degree murder or involuntary manslaughter instruction, we review for clear error. See K.S.A. 22-3414(3); State v. Williams, 295 Kan. 506, Syl. ¶¶ 3-4, 510, 286 P.3d 195 (2012). Under this standard, we first consider whether the district court erred in failing to give the instruction. A court errs when we determine, using unlimited review, the instruction was both legally and factually appropriate. 295 Kan. at 515-16. Such an error requires reversal when the appellant firmly convinces the court that tire omitted instruction was both legally and factually appropriate and that the jury would have reached a different verdict had the instruction been given. 295 Kan. at 516.
Analysis
The parties’ briefs focus on whether the lesser included instructions were legally appropriate, specifically disagreeing whether the 2012 amendment to K.S.A. 21-5109 can be retroactively applied. The amendment, effective after the date of Clay s trial, specified that felony murder has no lesser included offenses and effectively nullified this court’s decision in State v. Berry, 292 Kan. 493, 254 P.3d 1276 (2011). There, we required trial courts to instruct on lesser included offenses of felony murder. See also State v. Wells, 297 Kan. 741, 761-62, 305 P.3d 568 (2013) (holding the 2012 legislative amendment to K.S.A. 21-5109 could not be retroactively applied because legislature did not indicate it should be applied retroactively and amendment was substantive rather than procedural).
But after the parties filed briefs in this case, the legislature amended K.S.A. 21-5402 to again provide that felony murder has no lesser included offenses and to specify the amendment’s application to all cases pending on appeal. L. 2013, ch. 96, sec. 2; see also State v. Todd, 299 Kan. 263, 274-75, 323 P.3d 829 (2014). We have since concluded that the amendment can and should be retroactively applied. See 299 Kan. at 278-79 (concluding legislature intended 2013 amendment to K.S.A. 21-5402 to be retroactively applied and doing so does not violate the Ex Post Facto Clause). Based on Todd, we conclude Clay was not legally entitled to either an unintentional second-degree murder instruction or an involuntary manslaughter instruction as a lesser included offense of felony murder.
The district court erred hy issuing an eyewitness identification jury instruction with the degree of cei~tainty factor, but the error does not justify reversal.
The jury instructions contained an eyewitness identification instruction modeled on PIK Crim. 3d 52.20 and gave the jury seven factors to use when considering Rios-Patron’s identifications. Among those factors was, “[t]he degree of certainty demonstrated by the witness at the time of any identification of the accused.” Based on our holding in State v. Mitchell, 294 Kan. 469, 481, 275 P.3d 905 (2012), the district court erred in submitting this language to the jury.
Clay contends this error constitutes clear error requiring reversal because Rios-Patron’s identification of Clay was crucial to the State’s case, and without it, the verdict would have been different because no physical evidence linked Clay to the shooting and no one other than Rios-Patron saw Clay at the apartment door.
Preliminarily, the State argues this court should not entertain Clay’s argument because Clay’s counsel invited the error. Alternatively, it contends the error did not affect the jury’s verdict.
Clay did not invite the error.
Citing State v. Bailey, 292 Kan. 449, 459, 255 P.3d 19 (2011), the State argues Clay’s counsel invited any instructional error and Clay is, thus, barred from complaining about instructional error on appeal. In Bailey, we declined to consider the defendant’s argument regarding an instructional error because the defendant’s counsel invited the error by submitting the proposed jury instruction ultimately given by the court.
But the factual circumstances here are distinguishable from those before the court in Bailey. Here, prior to the jury receiving the instructions, Clay’s counsel informed the district court that its proposed jury instructions contained two eyewitness identification instructions. Further, Clays counsel suggested he preferred the instruction with “seven elements,” instead of tire one with five. The district court agreed with Clay that the “seven-element” eyewitness instruction should be given and advised the parties it had already removed the “five-element” instruction.
We do not equate Clay s counsel’s preference for one instruction over another with the circumstances in Bailey, where the defendant submitted the instruction at issue and requested the court give that particular instruction. Here, the record contains no indication which, if any, party submitted either of the eyewitness instructions. Nor does tire record include the nonpreferred “five-element” instruction. Under these circumstances, we • cannot determine whether the objectionable degree of certainty language factored into counsel’s preference for the given instruction, and we decline to apply invited error.
The error was not clearly erroneous.
Turning to the merits, the State properly concedes the district court erred in issuing an instruction with the degree of certainty factor. See Mitchell, 294 Kan. at 481 (disapproving degree of certainty language); see also State v. Cruz, 297 Kan. 1048, 1067-68, 307 P.3d 199 (2013) (same). Thus, the only remaining question is whether the erroneous language justifies reversing Clay’s convictions.
Standard of Review/Analytical Framework
Because Clay did not object to the instruction, we apply the clear error rule. See State v. Dobbs, 297 Kan. 1225, 1237, 308 P.3d 1258 (2013) (discussing clear error review and noting reversal is required only if court is “firmly convinced the juiy would have reached a different verdict absent the error”); Williams, 295 Kan. at 510; see also K.S.A. 22-3414(3).
We have held the degree of certainty language can only impact a jury’s verdict when the eyewitness identification is both key to the State’s case and the witness expresses a degree of certainty. Dobbs, 297 Kan. at 1238 (holding that if answer to either question is “no,” then' degree of certainty language necessarily did not in fluence jury’s verdict and error not reversible). But even if both circumstances are present, “other procedural safeguards” can mitigate the potential prejudice, including the constitutional right to confront witnesses and to effective assistance of counsel. 297 Kan. at 1238.
Analysis
Here, Rios-Patron was the only eyewitness to the shooting and no physical evidence linked Clay to the crime. Further, in its closing argument the State focused on Rios-Patron’s identification and attempted to minimize Rios-Patron’s initial identification of Richardson. See Dobbs, 297 Kan. at 1239 (finding identification crucial when only one person witnessed shooting, no physical evidence placed defendant at scene, and prosecutor characterized eyewitness as “star witness”). Under these circumstances, we conclude Rios-Patron’s identification of Clay as the shooter was crucial to the State’s case.
Further, Rios-Patron expressed a degree of certainty in his identification of Clay as the shooter. Specifically, when the prosecutor asked Rios-Patron “[h]ow sure” he was of his identification of Clay in the second lineup, Rios-Patron replied, “Well, it’s the same. It’s him.” Detective Garrison also testified that after Rios-Patron looked at side-by-side photos of Clay and Richardson, he was “adamant” Clay was the shooter. See Dobbs, 297 Kan. at 1239 (holding witness expressed degree of certainty when law enforcement officers testified witness did not express uncertainty in identifying shooter and witness testified his use of ambiguous words was not meant to imply uncertainty); State v. Marshall, 294 Kan. 850, 868, 281 P.3d 1112 (2012) (concluding witness expressed degree of certainty when witness responded affirmatively when asked whether he was “certain” as to his identification of defendant).
Because Rios-Patron’s identification of Clay was crucial and Rios-Patron expressed a degree of certainty regarding that identification, the erroneous degree of certainty language in the eyewitness identification instruction may have impacted the jury. But that does not end our analysis. Instead, we must consider whether procedural safeguards mitigated any harm here.
Through cross-examination and in closing argument, defense counsel argued Rios-Patron’s identification of Richardson was believable and his identification of Clay was not. He pointed out that Rios-Patron testified at the preliminary hearing that he was afraid of Richardson, and he argued Rios-Patron changed his identification to avoid angering Richardson.
Further, while Rios-Patron’s identification of Clay was key to the State’s case, the State presented a strong circumstantial case against Clay. Witnesses testified regarding Clay’s involvement in the attempted robbery and the fact that he brought a gun to May-orga’s door prepared to fire a warning shot. Witnesses also testified to other evidence of Clay’s guilt, including that Clay changed his clothes after tire shooting and failed robbery, assisted in burning the Jeep, and said, “Fuck, the motherfucker died,” when he learned through a news report that Reynoza had died of the gunshot wound.
Given the relative strength of tire State’s case, the extensive cross-examination of Rios-Patron, and the unique circumstances of this case, we conclude the erroneous degree of certainty language in the eyewitness instruction does not require reversal.
The district court did not err in refusing to grant Clay a new trial because the jury learned he previously was in prison and that he was in custody during the trial.
Clay argues the district court erred in denying his motion for a new trial because he was prejudiced when the jury impi'operly learned he was in custody when it saw him escorted by deputies and when a witness testified he knew Clay from prison.
Our resolution of these issues requires consideration of additional relevant facts.
Additional Facts
During Sikorski’s direct testimony, the prosecutor asked, “How do you know Aaron Clay?” Sikorski replied, “We was [sic\ in prison together.” Defense counsel immediately objected and requested a mistrial. The prosecutor responded that he had not asked the question to elicit a response about prison but to establish that Sikorski “knew [Clay], they were friends, to establish their relationship.” The district court took the mistrial motion under advisement and asked defense counsel if he wanted the court to instruct the jury to disregard Sikorski’s statement. Clay declined the admonishment, explaining he did not want more attention drawn to the statement. The district court later denied Clay’s request for a mistrial, concluding Sikorski’s isolated statement was unlikely to influence the jury.
The following day, defense counsel alerted the district court that a juror had seen Clay in the hallway as deputies escorted him to the courtroom. Defense counsel expressed concern that the juror “seeing [Clay] in cuffs could negatively affect” the juror’s view of Clay. But defense counsel also expressed uncertainty as to whether Clay was handcuffed when the juror saw him. Further, defense counsel specifically advised the court he did not want the court to question the juror as to whether the juror saw Clay in handcuffs because “then it’s going to be obvious that he’s in cuffs.” Instead, defense counsel requested the court dismiss the juror. The district court denied tire request.
A few days later, Clay objected on the record that all of the jurors had observed two deputies walk Clay down tire hallway and they could see that Clay was “obviously in custody.” The district court asked if Clay was handcuffed at the time, and the deputies indicated he was not. The district court then denied Clay’s “motion.”
After the juiy entered its verdict, Clay filed a motion for new trial. Among the asserted bases for Clay’s request was that the district court erred in not granting a mistrial after Sikorsld testified he knew Clay from prison and members of the jury twice saw Clay in custody and “in shackles.”
The district court concluded Sikorski’s statements did not affect the jury’s verdict. Further, tire court noted that although Clay wore a leg brace, the brace was underneath his clothing while he was transported and deputies removed the brace whenever possible. The court also determined the single instance in which a jury member may have seen Clay in handcuffs did not present sufficient basis to grant a mistrial.
Standard, of Review
A district court should grant a defendant’s request for a new trial when doing so is in “the interest of justice.” K.S.A. 22-3501. This court reviews a district court’s ruling on a motion for new trial for abuse of discretion. State v. Rodriguez, 295 Kan. 1146, 1158, 289 P.3d 85 (2012). A district court abuses its discretion when the action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. 295 Kan. at 1156.
Analysis
Members of the Jury See Clay in Custody
On appeal, Clay asserts the district court should have granted him a new trial because the jury saw him being escorted by deputies and thus learned he was in custody.
But we see no error in the district court’s refusal to order a new trial. Notably, the defendant cites no authority indicating a jury’s momentary view of the defendant in police presence unfairly prejudices the defendant. Nor is this a case where a defendant is forced to wear visible restraints during trial, constantly reminding a jury the defendant is in custody and implying the defendant is dangerous. Estelle v. Williams, 425 U.S. 501, 504-05, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976) (forcing defendant to appear in prison garb before jury is “constant reminder” of defendant’s status).
Further, Clay’s brief faults the district court for not asking the members of the juiy whether seeing Clay in custody impacted their view of the defendant. But any fault in failing to inquire rests with Clay. He specifically requested that the trial court not question the juror who first saw Clay in die deputies’ presence about what the juror saw. Additionally, when the entire juiy saw Clay with deputies, defense counsel merely placed an “objection” on the record.
Finally, Clay’s motion for new trial did not even focus on the impact of the jury seeing Clay being escorted by deputies. It focused on the potential impact of the jury seeing Clay in handcuffs, but there was no evidence any member of the jury saw Clay in handcuffs.
Under these circumstances, we conclude the district court did not abuse its discretion in denying Clay’s motion for new trial based on the jury’s observation of Clay in the presence of deputies.
Sikorski’s Testimony that He Knew Clay from Prison
Clay argues Sikorski’s testimony that he knew Clay from prison justifies a new trial when considered in conjunction with the prejudice associated with the jury seeing him in the presence of deputies.
A mistrial is warranted only if prejudicial conduct is so great it is “impossible to proceed with the trial without injustice.” K.S.A. 22-3423(l)(c). Here, any prejudice arising from Sikorski’s testimony was not strong. Sikorski only fleetingly referenced knowing Clay in prison, and neither party mentioned it in closing argument. Additionally, the trial court offered to attempt to cure the prejudice by admonishing the jury not to consider Sikorski’s testimony, but Clay rejected that offer. See State v. Rinck, 256 Kan. 848, 853-54, 888 P.2d 845 (1995) (concluding witness’ remark that defendant had been in prison did not warrant a mistrial because testimony was unsolicited, court offered limiting instruction, and statement was isolated).
Under these circumstances, we conclude the isolated statement did not sufficiently prejudice the defendant to justify a mistrial or a new trial.
The district court’s failure to ansioerjury questions orally in open court is not reversible error.
During deliberation, the juiy asked two questions: (1) whether felony murder required the State prove premeditation, and (2) whether the record included the photographic lineup containing Richardson’s picture. In open court with Clay present, the district court drafted responses to both questions with the assistance of counsel. The court then submitted those written responses to the juiy, and neither party objected to that procedure.
On appeal, Clay argues that by responding to the jury’s questions in writing, the district court violated his constitutional rights to an impartial judge and a public trial and his statutory and constitutional right to be present.
Right to an Impartial Judge and Right to a Public Trial
Clay asserts without authority that the district court violated his fundamental right to a public trial by delivering its written answers to the jury’s questions to the jury room, thus preventing members of the public from having an opportunity to observe this stage of the trial. As we previously have observed, courts have addressed similar assertions with mixed results. See State v. Bowen, 299 Kan. 339, 356, 323 P.3d 853 (2014). Plus, Clay has failed to adequately brief this issue by failing to cite relevant authority or engage in substantial analysis. See 299 Kan. at 356 (noting claim of error supported by little authority or analysis is “particularly suspect” when defendant asserts structural error); see also State v. Verser, 299 Kan. 776, 790-91, 326 P.3d 1046 (2014) (refusing to consider whether answering jury questions in writing violated right to public trial and impartial judge because law cited by defendant only supported rights “in the abstract”); State v. Torres, 280 Kan. 309, 321, 121 P.3d 429 (2005) (“ ‘[Pjressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority ... is akin to failing to brief an issue.’ [Citation omitted.]”).
Clay’s assertion that the written responses violated his right to an impartial judge suffers from a similar lack of support. Clay relies almost exclusively on State v. Brown, 362 N.J. Super. 180, 827 A.2d 346 (2003), but the Rrown court did not comment on Brown’s right to an impartial judge. See also Bowen, 299 Kan. at 356 (deeming similar argument abandoned when defendant cited only Brown in support of argument).
Because Clay has failed to adequately brief either claim, we decline to consider their merit.
Right to Be Present
Finally, Clay raises the more familiar argument that the district court violated his statutory and constitutional rights to be present by sending written responses to the jury rather than answering the jury’s questions in Clay’s presence. See K.S.A. 22-3420(3) (providing that responses to jury requests for information on law or evidence shall be given “in the presence of the defendant”); State v. Calderon, 270 Kan. 241, 245, 13 P.3d 871 (2000) (noting defendant’s right to be present arises from Sixth Amendment’s Confrontation Clause and due process right to attend critical stages of criminal proceeding).
We recently clarified that a district court violates a defendant’s constitutional and statutory right to be present when it answers a jury question in writing. See Verser, 299 Kan. at 789; Bowen, 299 Kan. at 357-58; State v. King, 297 Kan. 955, 967, 305 P.3d 641 (2013).
Because the error violates both the Constitution and statute, we apply a constitutional harmless error standard of review. Bowen, 299 Kan. at 357. When a district court communicates with a jury outside of a defendant’s presence, we evaluate the impact of the error by considering: (1) the strength of the prosecution’s case; (2) whether an objection was lodged; (3) whether tire communication concerned a critical aspect of the trial; and (4) the ability of a posttrial remedy to mitigate the error. See Bowen, 299 Kan. at 357 (citing State v. Herbel, 296 Kan. 1101, 1111, 299 P.3d 292 [2013]).
We are convinced any error here was harmless. Notably, Clay does not quibble with the content of the answers, only the manner in which the court delivered them. Further, Clay was present and participated in constructing the answers, and aside from rampant speculation, there is no evidence anything questionable occurred when the courier delivered the response. See King, 297 Kan. at 965 (finding harmless error when district court answered jury question in writing, in part, because procedure did not impact answer). Further, Clay failed to lodge an objection to the procedure and elected not to pursue any posttrial remedies, preventing both the district court and this court from fully exploring any actual harm. Bowen, 299 Kan. at 357-58 (finding no reversible error in district court’s failure to answer jury question in defendant’s presence in open court because defendant lodged no objection and pursued no posttrial remedies).
In sum, we are confident that the procedure used by the trial court, though error, had no appreciable impact on the jury’s verdict, and we decline to reverse Clay’s convictions.
Clay’s sentence must be vacated.
Finally, Clay asserts his sentence is unlawful because of three sentencing errors: (1) the district court orally sentenced Clay to 25 years to life when K.S.A. 22-3717(b)(2) only permitted a sentence of 20 years to life; (2) the district court orally indicated Clay was subject to lifetime parole but the journal entry improperly subjected Clay to lifetime postrelease supervision; and (3) the district court failed to inquire about Clay’s ability to reimburse the Board of Indigent Defense Services (BIDS) for attorney fees before ordering him to pay $1,000.
The State concedes each error. See K.S.A. 22-3717(b)(2) (providing offenders sentenced for certain off-grid crimes, including first-degree felony murder, “shall be eligible for parole after serving 20 years”); State v. Ross, 295 Kan. 1126, 1134, 289 P.3d 76 (2012) (holding that defendant convicted of felony murder is subject to lifetime parole rather than lifetime postrelease supervision); State v. Robinson, 281 Kan. 538, 543, 132 P.3d 934 (2006) (holding district court is statutorily required to inquire on the record about defendant’s ability to repay BIDS fees). Accordingly, we vacate Clay’s sentence and remand for resentencing consistent with these authorities and for the district court to inquire about Clay’s ability to repay BIDS.
Convictions affirmed, and sentence affirmed in part, vacated in part, and remanded with directions. | [
113,
100,
-3,
-65,
59,
34,
106,
-68,
120,
-32,
34,
115,
47,
-53,
20,
107,
-79,
125,
85,
105,
-124,
-81,
-73,
-31,
-78,
-77,
50,
-43,
-78,
-24,
-9,
127,
12,
68,
-118,
85,
102,
72,
-29,
86,
-126,
-121,
-119,
-48,
-127,
2,
48,
62,
94,
15,
113,
-100,
-29,
10,
-104,
-54,
105,
40,
90,
41,
64,
-23,
9,
13,
-55,
18,
-93,
-74,
-33,
-93,
-6,
20,
-104,
53,
0,
-24,
-13,
-74,
-124,
116,
111,
-117,
4,
102,
99,
1,
77,
77,
-23,
-119,
63,
127,
-105,
-89,
25,
89,
13,
36,
-108,
-33,
120,
45,
38,
80,
111,
92,
121,
-28,
-112,
-34,
-112,
-111,
109,
48,
-34,
-6,
-7,
5,
52,
101,
-51,
-86,
84,
-31,
113,
-65,
-117,
-43
] |
The opinion of the court was delivered by
Rosen, J.:
Following a bench trial, the Reno County District Court found Mark Kendall guilty of stalking and violating a protective order based on his July 7, 2010, acts of placing telephone calls from the State prison in El Dorado, where he was an inmate, to his former wife, D.K. Notably, D.K. and Kendall never spoke over the telephone, but based on her phone’s caller ID, D.K. knew that Kendall was calling her from the prison.
On appeal, a majority of tire Court of Appeals panel agreed with Kendall that insufficient evidence was presented at trial showing that Kendall had committed an “act of communication” as proscribed by the stalking statute. As a result, die majority reversed Kendall’s conviction for stalking and remanded the case to tíre district court with instructions that Kendall be convicted of attempted stalking and sentenced accordingly. State v. Kendall, No. 106,960, 2013 WL 4404174, at *3-5 (Kan. App. 2013) (unpublished opinion).
With regard to Kendall’s conviction for violating a protective order, the entire panel rejected Kendall’s argument that die State was required to prove that he was in Reno County when he placed the telephone calls to D.K.’s cell phone—as alleged in the complaint. The panel also rejected Kendall’s argument that the district court judge, despite finding him guilty of violating a protective order—a crime that prohibits knowing or intentional conduct— found drat his conduct in violation of tire order was reckless and, thus, the finding was contrary to the verdict. Kendall, 2013 WL 4404174, at *5-7.
We granted the State’s petition for review to determine whether a majority of the Court of Appeals erred in construing tire phrase “act of communication” and whether the majority’s construction of the phrase led it to erroneously conclude that the State presented insufficient evidence to convict Kendall of stalking. We also granted Kendall’s cross-petition for review to determine whether the Court of Appeals erred in affirming Kendall’s conviction for violating a protective order.
Facts
A review of the record confirms the accuracy of the Court of Appeals’ summation of the factual and procedural history of this case. Accordingly, that section of the opinion is quoted below.
“Kendall and D.K., his ex-wife, had a difficult marriage. D.K. obtained a protective order against Kendall. He was in prison for convictions arising from earlier incidents in which he stalked D.K., violated drat protective order, and victimized her through computer crimes. [Prior to Kendall going to prison,] the two maintained a relationship of sorts because they have a young daughter A.K. For example, notwithstanding the protective order, they had an arrangement by which Kendall would call D.K.’s cell phone to speak with A.K. When D.K. saw Kendall’s phone number come up on her phone, she would answer and simply hand the phone to A.K.
“Kendall pled guilty to the crimes for which he was imprisoned in El Dorado on February 1, 2010, and was sentenced on March 5, 2010. Between the plea and sentencing, D.K. obtained a new protective order against Kendall from the Reno County District Court. The protective order, among other restrictions, directed Kendall not to ‘telephone, contact or otherwise communicate with’ D.K. and not to ‘contact’ her ‘either directly or indirectly.’ The protective order went into effect on February 22, 2010, and remained valid for a year. A sergeant with the Hutchinson Police Department testified that he informed Kendall of the new protective order and the restrictions it imposed.
“When he arrived at the prison in El Dorado, Kendall listed D.K.’s cell phone number for inclusion on his approved call list. But he identified the number as his daughter’s. At trial, Kendall testified he knew he was not supposed to call D.K. and listed the number that way so he could talle with A.K.
“The prison telephone system inmates use tracks the calls placed. Those records show Kendall dialed D.K.’s cell phone number once on May 23, four times on July 6, three times on July 7, and once on July 8, 2010. The records indicate each of the calls as a ‘[n]o [a]nswer’ with a time of ‘0.00.’ The Reno County District Attorney charged Kendall with one count of stalking, a felony under K.S.A. 2010 Supp. 21-3438(a)(3) and (b)(3), and one count of violating a protective order, a misdemeanor under K.S.A. 2010 Supp. 21-3843, for each date. At Kendall’s preliminary hearing, the district court dismissed the charges based on the July 6 calls for lack of venue in Reno County. The State did not appeal that ruling. At the bench trial, tire district court acquitted Kendall of the charges related to the calls on May 23 and July 8 without giving a detailed explanation. The district court mentioned D.K.’s failure to report those calls in her initial contact with law enforcement about Kendall’s violation of the February 2010 protective order. The State may not appeal die acquittals. That leaves the two charges based on die July 7 calls Kendall placed.
“D.K.’s testimony about all of the calls, including those on July 7, is less than clear. Based on the identification information that appeared on her cell phone, she initially believed they were from a collection agency. D.K. said she tried to return one of the calls and found she was contacting ICS. She investigated the acronym on the internet and determined it to be ‘Inmate Correctional Solution’ and, coupled with the area code for the calls, deduced they came from the El Dorado prison and, thus, Kendall. The testimony suggests D.K. determined the calls came from Kendall on or before July 6. D.K. testified that meant Kendall ‘was trying to prove to me he would still find me no matter what and he could get through the system no matter what.’ D.K. said, as a result, she was ‘scared’ and ‘sad’ because ‘it just pretty well showed he would find me and my daughter.’ Nonetheless, D.K. said she answered at least one of the calls on July 7, but she did not testify that she heard anything or anyone when she did. Kendall testified that he heard a clicking sound when he placed the calls and nobody answered.” Kendall, 2013 WL 4404174, at *1-2.
At the conclusion of the bench trial, the district court found Kendall guilty of both counts arising from July 7,2010. The district court sentenced Kendall to a controlling 60-month prison sentence and ordered that the sentence be served consecutive to the prison sentence Kendall was already serving.
Pertinent to the issues now before us, Kendall argued before the Court of Appeals that the stallring statute, K.S.A. 2010 Supp. 21-3438(a)(3), required the State to show that he engaged in an “act of communication” resulting in a specific message being imparted to D.K. Kendall contended that merely placing multiple calls to D.K.’s cell phone without ever speaking to her was insufficient to show that he engaged in an act of communication.
With regard to his conviction for violating a protective order, Kendall raised two issues arguing for reversal. First, he maintained that the district court judge, in explaining the verdict, found that he recklessly violated the protective order. Accordingly, he argued that the district court’s finding of reckless conduct was essentially an acquittal because the applicable statute proscribed the act of “knowingly or intentionally” violating a protective order. See K.S.A. 2010 Supp. 21-3843(a)(l). Second, he claimed that because the State alleged in the complaint that he was in Reno County on July 7, 2010, when he violated the protective order, the State was re quired to prove this fact at trial. Kendall contended that because the evidence clearly showed that he was in prison in Butler County at the time of the crime, the State failed to prove all the elements necessary to convict him of violating a protective order as charged in the complaint.
A majority of the Court of Appeals agreed with Kendall that his conviction for stalking had to be reversed, construing the stalking statute as requiring the delivery or communication of a message to the victim (i.e., D.K. answered her phone and Kendall spoke to her). Accordingly, the majority believed that Kendall’s act of placing calls to D.K.’s cell phone without ever speaking to her was insufficient to show that he engaged in an “act of communication”—an essential element of stalking as charged by tire State in this case. Furthermore, the majority rejected the notion that the inference D.K. drew from receiving phone calls from Kendall (i.e., that Kendall would contact her despite being in prison) constituted evidence of Kendall imparting a message to her for purposes of the stalking statute. Kendall, 2013 WL 4404174, at *3-4.
As a result, the majority reversed Kendall’s conviction for stalking. But, because the majority found that Kendall committed an overt act towards perpetration of stalking (i.e., placing phone calls to D.K.’s cell phone), the majority remanded the case to the district court with instructions that Kendall be convicted of attempted stalking and sentenced accordingly. Kendall, 2013 WL 4404174, at *4-5. Judge Buser dissented, concluding that based on the evidence presented at trial, a reasonable factfinder could conclude that Kendall’s act of placing a phone call to D.K.’s cell phone and D.K. realizing that Kendall was calling her constituted an act of communication under tire stalking statute. Kendall, 2013 WL 4404174, at *8-9.
With regard to Kendall’s conviction for violating a protective order, the entire panel agreed that sufficient evidence was presented at the bench trial to sustain the conviction. The panel concluded that Kendall was misconstruing the district court’s findings at the conclusion of the bench trial. According to the panel, the district court did not find that Kendall’s actions in dialing D.K.’s phone number were reckless and, thus, not intentional or knowing forpurposes of K.S.A. 2010 Supp. 21-3843(a)(l). Instead, the panel construed the district court’s statements as explaining that it was reckless or, stated another way, foolhardy for Kendall to rely on his prior arrangement with D.K. (i.e., calling D.K.’s phone so Kendall could speak to their daughter) as a legal excuse or defense for his actions in calling D.K.’s cell phone in violation of the protective order. Kendall, 2013 WL 4404174, at *6-7.
Additionally, the panel found that it was insignificant that the complaint charging Kendall with violating a protective order alleged that Kendall was in Reno County at the time of the offense and that no evidence was presented at trial establishing this fact. The panel reasoned that because Kendall had failed to raise the issue before the district court, he had likely waived dre issue. Regardless, the panel noted that Reno County was the proper venue for prosecuting Kendall’s violation of the protective order due to D.K.’s presence within Reno County on July 7, 2010, when she received Kendall’s telephone calls. Kendall, 2013 WL 4404174, at *5-6.
Stalking
The State contends that Kendall’s act of calling D.K.’s cellphone numerous times on July 7, 2010, and, in turn, D.K.’s recognition that Kendall was calling her was sufficient to show that Kendall committed an “act of communication” under the stalking statute. In order to resolve this issue, we must first construe the phrase “act of communication” to determine what actions are encompassed within this phrase. Our determination of this issue will shape the analysis of the second issue: Whether the evidence presented at trial was sufficient to show that Kendall committed an act of communication which violated the stalking statute as charged by the State.
“Interpretation of a statute is a question of law over which appellate courts have unlimited review.” State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). 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). Furthermore, in State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010), we stated:
“An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. [Citation omitted.] When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute’s language or text is unclear or ambiguous does the court use canons of construction or legislative history or other background considerations to construe the legislature’s intent. [Citation omitted.]”
A. Construction of the Phrase “Any [A]ct of [C]ommunication”
As mentioned above, the State charged Kendall with stalking in violation of K.S.A. 2010 Supp. 21-3438(a)(3). That particular subsection of the statute defines stalking as:
“[A]fter being served with, or otherwise provided notice of, any protective order included in K.S.A. 21-3843, and amendments thereto, that prohibits contact with a targeted person, intentionally or recklessly engaging in at least one act listed in subsection (f)(1) that violates the provisions of the order and would cause a reasonable person to fear for such person’s safety, or the safety of a member of such person’s immediate family and the targeted person is actually placed in such fear.” (Emphasis added.) K.S.A. 2010 Supp. 21-3438(a)(3).
K.S.A. 2010 Supp. 21-3438(f)(l) of the statute proscribes a “ ‘[c]ourse of conduct,’ ” which is defined as
“two or more acts over a period of time, however short, which evidence a continuity of purpose. A course of conduct shall not include constitutionally protected activity nor conduct that was necessary to accomplish a legitimate purpose independent of malting contact with the targeted person. A course of conduct shall include, but not be limited to, any of the following acts or a combination thereof:
“(G) Any act of communication.”
K.S.A. 2010 Supp. 21-3438(f)(2) of the statute defines “ ‘[(Communication ” as
“to impart a message by any method of transmission, including, but not limited to: Telephoning, personally delivering, sending or having delivered, any information or material by written or printed note or letter, package, mail, courier service or electronic transmission, including electronic transmissions generated or communicated via a computer.” (Emphasis added.)
Construing the entire statute as a whole, we conclude that the phrase “act of communication” requires a showing that the perpetrator transmitted a communication to the victim. The word “act” is modified by the prepositional phrase “of communication.” As used in the stalking statute, “communication” is defined as “to impart a message by any method of transmission . ...” K.S.A. 2010 Supp. 21-3438(1)(2). Thus, an act which falls under tire umbrella of K.S.A. 2010 Supp. 21-3438(f)(l)(G) (“A course of conduct shall include . . . [a]ny act of communication.”) must result in the im-partation of a communication or message to the victim by any method of transmission. See Webster’s Third New International Dictionary 1131 (1993) (defining “impart” as “to give or grant. . . communicate, transmit” or “to communicate the knowledge of . . . disclose” or “to give utterance to . . . reveal in writing or speaking”); Webster’s Third New International Dictionary 460 (1993) (defining “communicate” in part as “to make known . . . inform a person of. . . convey the knowledge or information of’). The statutory definition of “communication” indicates that an “act of communication” is more than a mere attempt at communicating with a victim; the act must entail the perpetrator sending a communication that is received by the victim.
K.S.A. 2010 Supp. 21-3438(a)(3) supports this conclusion. In addition to proof that the defendant engaged in a course of conduct (in this case, “[a]ny act of communication”) that violates a protective order, subsection (a)(3) requires a showing that the course of conduct “would cause a reasonable person to fear for such person’s safety, or the safety of a member of such person’s immediate family and the targeted person is actually placed in such fear.” K.S .A. 2010 Supp. 21-3438(a)(3). The requirement that die victim be placed in fear and that such fear be reasonable suggests that attempted forms of communication where the victim is never made aware that the perpetrator tried contacting him or her would not constitute an “act of communication” or, in turn, a course of conduct sufficient to violate the statute.
Thus, we conclude that the phrase “act of communication” as used in the stalking statute requires evidence that a perpetrator transmitted a communication to a victim. Now, we must determine whether there was sufficient evidence presented at trial to establish this element.
B. Did the State Present Sufficient Evidence to Establish That Kendall Imparted a Communication to D.K ?
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Stafford, 296 Kan. 25, 53, 290 P.3d 562 (2012); see State v. Frye, 294 Kan. 364, 374, 277 P.3d 1091 (2012) (“[Cjonvictions arising from bench trials and those arising from juiy trials are reviewed by this court utilizing the same standards on appeal.”)- In making a sufficiency determination, the appellate court does not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility. Stafford, 296 Kan. at 53. Furthermore, this court has recognized that there is no distinction between direct and circumstantial evidence in terms of probative value. State v. Evans, 275 Kan. 95, 105, 62 P.3d 220 (2003). “A conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom.” State v. McCaslin, 291 Kan. 697, Syl. ¶ 9, 245 P.3d 1030 (2011).
The evidence presented at trial clearly showed that D.K. had an abusive relationship with Kendall. Based on Kendall’s conduct towards her, D.K. testified that she had a general fear of him. The evidence showed that Kendall routinely disregarded protective orders that were put in place to prevent him from contacting D.K. Journal entries introduced into evidence at trial showed that on September 9, 2009, Kendall pleaded no contest to violating a protective order in Hutchinson Municipal Court and that on February 1, 2010, he entered guilty pleas in four separate cases originating in Reno County District Court: (1) 09-CR-819, two counts of stalking and one count of violating a protective order; (2) 09-CR-982, violating a protective order and eavesdropping; (3) 09-CR-907, three counts of stalking and one count of violating a protective order; and (4) 09-CR-1005, two counts of computer crime and one count of stalking. D.K. was the victim of all these crimes. Kendall was sentenced on March 5 for the four separate district court cases.
The protective order at issue in this case was established on February 22, 2010. Part of the basis for this new order was that D.K. had learned that Kendall had surreptitiously filmed and photographed her while she was bathing, undressing, and while she was unconscious (at trial, D.K. indicated that Kendall may have drugged her). Most disturbing, Kendall filmed himself sexually fondling D.K. and filmed himself masturbating until ejaculation while standing over her—all while she was unconscious. According to the police officer who discovered the videos and pictures and later showed them to D.K., D.K. was very emotional upon seeing the material.
As noted above, the protective order, among other restrictions, directed Kendall not to “telephone, contact or otherwise communicate with” D.K. and not to “contact” her “either directly or indirectly.”
D.K. indicated at trial that she determined on July 6 that the calls she was receiving on her cell phone from ICS were actually from Kendall. The record shows that on July 7—the date on which the charges now at issue arose—Kendall called D.K.’s cell phone three times. D.K. stated that when she realized the calls were from Kendall, she was scared and in fear. During D.K.’s direct examination, the prosecutor asked her about her reaction upon receiving the telephone calls from Kendall.
“Q. How did receiving these nine phone calls from tire defendant make you feel personally?
“A. He had said during sentencing and even before that, that he would always find me. No matter what he would contact me. He would never leave me alone regardless of what I would do, and he would follow me across the country if he had to. He told me before he woidd hunt me down and kill me.
“Q. Hunt you down and what?
“A. Hunt me down and kill me.
“Q. Kill you?
“A. Yes.
“Q. How did these phone calls make you feel when you got them from die prison?
“A. That he was trying to prove to me he would still find me no matter what and he could get through the system no matter what.
“Q. Did they cause emotional reaction on your part?
“A. Yes.
“Q. What was that?
“A. I was afraid. I was scared. I was sad. I—it just pretty well showed he would find me and my daughter.” (Emphasis added.)
As mentioned above, the Court of Appeals majority believed that Kendall’s act of simply placing calls to D.K.’s cell phone without ever speaking to her was insufficient to show that he engaged in an act of communication. Furthermore, the majority rejected the notion that the inference D.K. drew from receiving telephone calls from Kendall (i.e., that Kendall would contact her no matter what she did) could constitute evidence of Kendall imparting a message to D.K. for purposes of the stalking statute. The majority stated:
“The evidence fails to show that was an established or common message they attached to his act of calling her. Again by way of illustration, a person untrained in semaphore might nonetheless recognize that someone was using that code and, thus, conclude he or she had learned the skill in the military. Whatever the accuracy of that conclusion, it would not be a communication in the sense that the semaphorist was imparting that message unless he or she actually was signaling, ‘This is semaphore, and I learned to do this in the Navy.’
“The record evidence indicates D.K. had not changed telephone numbers, so Kendall had called what he already knew to be her number. He did not independently track down a new number D.K. intended to keep secret from him. That undercuts the notion that Kendall meant the calls to communicate the idea he could find D.K. even if she didn’t want to be found. The State’s position, at best, overtaxes the statutory language and imputes an unusual meaning to ‘communication.’ Again, even if that position were remotely plausible, it could not be reconciled with the rule of lenity.” Kendall, 2013 WL 4404174, at *4.
Judge Buser disagreed with the majority’s assessment of the evidence. He believed that a reasonable factfinder could conclude that actual communication occurred between Kendall and D.K. Judge Buser wrote:
“At trial, D.K. testified that prior to and during Kendall’s March 5, 2010, sentencing for stalking, violation of a protective order, and computer crimes, he told her:
“ ‘he would always find me. No matter what he would contact me. He would never leave me alone regardless of what I would do, and he would follow me across the country if he had to. He told me before he would hunt me down and fell me.’
“When D.K. later received the offending calls from Kendall in prison, she understood this to mean that Kendall ‘was trying to prove to me he would still find me no matter what and he could get through tire system no matter what.’ In D.K.’s view, the telephone calls communicated that, although he was in prison, Kendall could still contact D.K. and in this way threaten her or cause her to fear for her and her family’s safety.
“Given D.K.’s past victimization by Kendall for exactly the same offense—• stalking, there was a factual basis for an objective factfinder to conclude that the simple act of placing the call and its receipt by D.K. constituted a powerful and threatening communication, indeed. By placing the calls, Kendall had made good on his promise to continue stalking D.K. Upon receipt of the calls, D.K. understood that Kendall was, once again sending her a message. Spoken words or signals were unnecessary in this context. And D.K.’s reaction holsters the conclusion that Kendall had ver}' effectively communicated with her. She testified that she ‘was afraid. I was scared. I was sad. I—it just pretty well showed he would find me and my daughter.’ ” Kendall, 2013 WL 4404174, at *8-9.
We find Judge Búser’s review of the evidence compelling. Kendall’s acts of placing calls to D.K.’s cell phone on July 7 and, in turn, D.K. realizing that Kendall was calling her from prison were sufficient to show that Kendall engaged in an act of communication. Based on D.K.’s testimony, a reasonable factfinder could infer that by calling D.K.’s cell phone, Kendall was communicating to D.K.—-just as he promised her at sentencing—that.he would contact her no matter what, regardless of the protective order put in place or the fact that he was in prison, and that this message was received by D.K. Accordingly, we conclude that Kendall committed an act of communication towards D.K. sufficient to find him guilty of stalking in violation of K.S.A. 2010 Supp. 21-3438(a)(3).
Violation of the Protective Order
Kendall raises two arguments for why the Court of Appeals erred in affirming his conviction for violating a protective order. First, he notes that in order to be convicted of this offense, there must be evidence showing that he “knowingly or intentionally” violated the protective order. See K.S.A. 2010 Supp. 21-3843(a)(l). Though he does not dispute that he knowingly and intentionally called D.K.’s cell phone, that such conduct was in violation of the protective order, and that the district court found him guilty of violating the protective order, he argues that the judge, in announcing the verdict, found that he had recklessly violated the protective order. Kendall contends that the judge’s finding of recklessness was tire equivalent of an acquittal and that his conviction for violating a protective order should be reversed as a result.
Second, Kendall argues that because the State alleged in the complaint that he was in Reno County on July 7, 2010, when he violated the protective order, the State was required to prove this fact at trial. Kendall argues that because the evidence clearly showed that he was in Butler County at the time of the crime, the State failed to prove all the elements necessary to convict him of violating a protective order as charged in tire complaint. Kendall’s arguments will be addressed in turn.
A. Did the District Court Find That KendalVs Act of Dialing D. K ’s Phone Number Was Reckless P
The State charged Kendall with violating K.S.A. 2010 Supp. 21-3843(a)(1), which defines the crime of violating a protective order as “knowingly or intentionally violating: (1) A protection from abuse order issued pursuant to K.S.A. 60-3105, 60-3106 and 60-3107, and amendments thereto.”
As noted above, the protective order at issue here directed Kendall not to “telephone, contact or otherwise communicate with” D.K. and not to “contact” her “either directly or indirectly.” Kendall admitted to knowing about the restrictions put in place by the protective order. Despite this knowledge, however, Kendall conceded that he placed multiple calls to D.K.’s cell phone on July 7. He stated that his intent for doing so was to speak to their daughter, A.K. According to Kendall, he believed that a prior custody agreement with D.K. allowed him to call her in order to speak to A.K.
During closing arguments, the prosecutor noted that the stalking statute prohibited both intentional and reckless conduct and that Kendall’s conduct, as it related to the stalking charge, could be considered either intentional or reckless. See K.S.A. 2010 Supp. 21-3438(a)(3) (prohibiting both intentional and reckless conduct). In response, defense counsel argued in part that Kendall’s acts in calling D.K.’s cell phone were justified because he was tiying to contact his daughter. See K.S.A. 2010 Supp. 21-3438(f)(l) (“A course of conduct shall not include constitutionally protected activity nor conduct that was necessary to accomplish a legitimate purpose independent of making contact with the targeted person.”)-
After finding Kendall guilty of stalking and violating a protective order, the district court explained its reasoning:
“As to the July 7th phone call I do find that the State has shown that the defendant at least recklessly disobeyed a protective order. The defendant, I’m certain that he is genuine in his effort to continue contact with his daughter. I don’t believe the defendant was dishonest with the Court in that statement, but when you have created a situation which was of the defendant’s own creation where you are under a protective order as to the child’s mother, you are going to be limited in your contact with that child, and that protective order does not exempt any contact with the child. It does not say it’s okay to contact [D.K.] if it’s their daughter. It says the defendant is not to contact [D.K.]. Period. If, if it said otherwise, I might consider this case differently, but it doesn’t and the contact was made with [D.K.]. That was the only way that the defendant could reach his daughter, I understand that, but again, the defendant, this situation is due to tire defendant’s actions. Most fathers don’t have protective orders against them as to their child’s mother. And whether the defendant had in mind, I hope [D.K.] answers this call and I wanted to talk to her, or I hope [D.K.] will hand the phone to [A.K.], I don’t find, I don’t know. But at any rate, I find sufficient evidence to say the defendant was reckless in making that call because he knew that was [D.K.’s] phone number, and she testified that that focusing on the call on July 7th scared her, and I find she had good reason to be scared. No contact means no contact. Not having your phone number or your place of residence show up ... on a victim’s phone, or have some way for the victim to find out that, that you are tire one making that call. So I am finding the defendant guilty as to Counts III and Count VII.”
As mentioned above, the entire Court of Appeals panel concluded that Kendall was misconstruing the district court’s findings at the conclusion of the bench trial. According to the panel, the district court did not find that Kendall’s actions in calling D.K.’s cell phone were reckless and, thus, not intentional or knowing for purposes of the crime of violating a protective order. Instead, the panel construed the district court’s statements as explaining that it was reckless or, stated another way, foolhardy for Kendall to rely on his prior arrangement with D.K. {i.e., calling D.K.’s phone so Kendall could speak to their daughter) as a legal excuse or defense for his actions in calling D.K.’s cell phone. Kendall, 2013 WL 4404174, at *6.
Based on the evidence presented at the bench trial and the parties’ closing arguments, we conclude that the Court of Appeals’ interpretation of the judge’s statements was correct. The judge was merely trying to explain why Kendall’s explanation for calling D.K.’s cell phone did not prevent him from being convicted of stalking. The judge certainly did not find that Kendall’s actions were reckless. Instead, the judge found that it was foolhardy or imprudent (i.e., reckless) for Kendall to think that his intentional actions were justified by the custody agreement or whatever prior arrangement he had with D.K. for contacting their daughter.
Regardless of the district court’s statements after finding Kendall guilty of both stalking and violating a protective order, in a criminal case, a district court is not required to explain its decision and may render the equivalent of a general verdict of guilty or not guilty. See State v. Scott, 201 Kan. 134, 137, 439 P.2d 78 (1968). We conclude that there was sufficient evidence presented at the bench trial to show that Kendall intentionally and knowingly violated the protective order by calling D.K.’s cell phone.
B. Was the State Required to Prove That Kendall Was in Reno County on July 7 in Order to Convict Him of Violating a Protective OrderP
Count VII of the complaint charging Kendall with violating a protective order stated:
“That on or about the 7th day of July, 2010, in Reno County, Kansas, one Mark R. Kendall then and there being present did unlawfully, intentionally, and knowingly violate a protective order and/or restraining order, to wit: 10 DM 156, issued pursuant to K.S.A. 60-3105, 60-[31]06, and 60-3107, and amendments thereto.” (Emphasis added.)
Kendall argues that because the State alleged in the complaint that he was in Reno County on July 7, 2010, when he violated tire protective order, the State was required to prove that specific allegation in order to convict him of violating a protective order. He contends that because the evidence presented at the bench trial clearly showed that Kendall was incarcerated at the El Dorado Correctional Facility (located in Butler County) on July 7 when he called D.K.’s cell phone, his conviction for violating the protective order must be reversed.
Because the location of where Kendall violated the protective order is not an element of the crime, Kendall’s argument essentially raises the question of whether Reno County was the proper venue for prosecuting him for the crime. See K.S.A. 2010 Supp. 21-3843(a)(1) (defining the crime of violating a protective order); State v. Rivera, 42 Kan. App. 2d 1005, 1008-10, 219 P.3d 1231 (2009) (unless specified in statute defining tire crime, location of where the crime was committed is generally not an element of the crime; however, venue is a necessary jurisdictional fact that must be proven along with the elements of the actual crime), rev. denied 290 Kan. 1102 (2010).
Because venue is jurisdictional and implicates the district court’s subject matter jurisdiction, our standard of review is de novo. State v. Jackson, 280 Kan. 16, 20, 118 P.3d 1238 (2005), cert. denied 546 U.S. 1184 (2006). In this case, resolution of the venue issue also involves interpretation of K.S.A. 2010 Supp. 21-3843, which is subject to de novo review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
K.S.A. 22-2602 authorizes the State to prosecute a crime in tire county where the crime was committed. But, when two or more acts are requisite to the commission of the crime charged and such acts occur in different counties, K.S.A. 22-2603 authorizes the State to prosecute the crime “in any county in which any of such acts occur.”
Again, K.S.A. 2010 Supp. 21-3843(a)(l) defines the crime of violating a protective order as "knowingly or intentionally violating: (1) A protection from abuse order issued pursuant to K.S.A. 60-3105, 60-3106 and 60-3107, and amendments thereto.” As noted above, the protective order, among other restrictions, directed Kendall not to “telephone, contact or otherwise communicate with” D.K. and not to “contact” her “either directly or indirectly.” At the bench trial, the State argued that Kendall violated tire protective order by making three calls to D.K.’s cell phone on July 7 which placed her in fear. D.K. testified that she was in Reno County on July 7 when she received the calls on her cell phone and that the calls placed her in fear.
Based on the restrictions within the protective order preventing Kendall from communicating with or contacting D.K., we conclude that pursuant to K.S.A. 22-2603, a violation of this particular protective order could be prosecuted in the county where Kendall initiated the contact {i.e., Butler County) or the county where D.K. received the contact {i.e., Reno County). See Webster’s Third New International Dictionary 490 (1993) (defining “contact” in part as “an instance of establishing communication with someone ... or of observing or receiving a significant signal from a person or object . . . .”). D.K.’s testimony at trial established that she was in Reno County on July 7 when she received Kendall’s telephone calls in violation of the protective order. Accordingly, the State satisfied the requirement of showing that Reno County was a proper venue for prosecuting Kendall’s crime. The language within the complaint suggesting that Kendall was in Reno County on July 7 when he made the phone calls is mere surplusage that can be disregarded. See K.S.A. 22-3201(d) (“The court may strike surplusage from the complaint, information or indictment.”); State v. Glazer, 223 Kan. 351, 359, 574 P.2d 942 (1978) (“Surplusage in the information may be disregarded. We do not feel that defendant was prejudiced in his defense even though the information set forth many unessential facts.”).
Judgment of the Court of Appeals affirming in part, reversing in part, and remanding to the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed.
Moritz, J., not participating. | [
-112,
124,
-36,
-98,
10,
96,
50,
48,
48,
-93,
123,
-45,
43,
-53,
9,
123,
58,
47,
84,
113,
-43,
-77,
79,
-63,
-10,
-13,
-39,
-33,
-77,
95,
-27,
-58,
72,
48,
-54,
85,
102,
72,
-57,
92,
-118,
6,
-103,
-16,
-111,
8,
32,
43,
22,
15,
113,
-97,
-29,
110,
20,
-61,
-87,
10,
75,
-11,
-48,
-47,
-5,
31,
95,
18,
-93,
-92,
25,
37,
-40,
62,
-116,
57,
8,
-22,
-13,
-106,
-58,
100,
79,
-101,
-107,
6,
99,
33,
12,
-31,
38,
-119,
-114,
92,
-67,
-81,
-104,
8,
9,
37,
-106,
-99,
96,
54,
42,
122,
87,
-60,
125,
108,
-119,
-37,
-16,
-109,
77,
123,
-44,
48,
-21,
-75,
32,
113,
-49,
-30,
94,
71,
115,
-109,
-33,
-75
] |
The opinion of the court was delivered by
Wedell, J.:
This appeal arises out of the petition of a guardian of an incompetent widow to sell her interest in the homestead, she being the sole owner thereof. There were no children.
A demurrer to the guardian’s petition by Roy Glace, a prospective purchaser of the ward’s interest, was sustained in the probate court and the district court on the ground the sale would violate the homestead provisions of our state constitution. The appeal by the guardian is from that ruling.
The material portions of the guardian’s verified petition to sell the real estate were, in substance, as follows:
R. M. Lockridge, petitioner, is the duly appointed, authorized and acting guardian of the person and estate of Mabel Lilly Younkin, an insane person; Robert B. Younkin, the same, person as Robert Younkin, had been the owner of the farming lands described in the petition; he and his wife, Mabel Lilly Younkin, occupied the land as their homestead prior to his wife’s insanity; by their joint consent they executed and delivered a first and second mortgage on the homestead to separate corporations; the husband died intestate; there were no children and the wife was her husband’s sole heir at law; she continued to occupy the homestead until she was adjudged insane and committed to the state hospital where she now remains, without prospect of recovery; the second mortgage was foreclosed and the homestead was sold subject to the first mortgage; the sale was confirmed and the period of redemption will expire April 13, 1944; there are no funds in the estate of the insane widow with which to make redemption; the homestead is worth more than the total mortgage indebtedness and taxes against it; the guardian has an offer of $7,500 for the land from one Roy Glace, which is the fair and reasonable market value thereof, provided the prospective purchaser can obtain good title by guardian’s deed; the offer is the highest bid that can be obtained and is more than three-fourths of its appraised value; if the offer is accepted the homestead may be redeemed with a saving to the estate of the ward of more than $550; the sale would be and is to the best interests of the ward’s estate; if it cannot be made the ward will lose all right, title and interest in and to her homestead.
The homestead provision of our constitution (art. 15, § 9) concerning farming -land, reads:
“A homestead to the extent of one hundred and sixty acres of farming land . . occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon: Provided, The provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife.” (Emphasis supplied.)
Our homestead exemption statutes conform with the constitutional provision. (G. S. 1935, 60-3501; G. S. 1943 Supp. 59-401.)
Is the constitution a barrier to the sale of the incompetent widow’s interest in the homestead under the facts conceded by the demurrer, if the sale is approved by the probate court? We do not think it is. In the first place the sale now sought by the guardian is not a forced sale of -the ward’s interest. If the widow were sane, she could, of course, under the facts in this case, sell her homestead or any interest therein. It was determined long ago that in legal contemplation this is a petition for the sale of the homestead by the. incompetent widow through her guardian, as the law requires. (Guy v. Hansow, 86 Kan. 933, 936, 122 Pac. 879.) This phase of the subject will receive further attention presently.
In the second place it is conceded the mortgages on the homestead were valid encumbrances placed thereon by the joint consent of husband and wife. The homestead provision of the constitution authorizes such encumbrances. One of the liens created by such joint consent has been foreclosed and the homestead has been sold pursuant to law, subject to the first mortgage. The only interest in the homestead now remaining is the right to redeem. That right vests entirely in one person, the incompetent widow. Manifestly in this case the sale of her interest no longer requires the joint consent of husband and wife. The joint consent provision, as expressly provided by the constitution, is a requirement only when the relation of husband and wife exists. Here that relation no longer exists and clearly the joint consent provision of the constitution is not applicable.
The next inquiry is, does the probate court have jurisdiction over the parties and the subject matter involved? Touching the jurisdiction of probate courts, article 3, section 8 of our constitution provides:
“There shall be a probate court in each county, which shall be a court of record, and have such probate jurisdiction and care of estates of deceased persons, minors, and persons of unsound minds, as may be prescribed by law . . .” (Emphasis supplied.)
It will be observed the above constitutional provision does not deny jurisdiction in the premises to the probate court. Under that provision the probate court has such jurisdiction over the care of persons of unsound mind, as may be prescribed by law. (Sheneman v. Manring, 152 Kan. 780, 782, 107 P. 2d 741.) What jurisdiction and powers does the law prescribe for probate courts insofar as here material?
G. S. 1943 Supp. 59-301 provides:
“The probate courts shall be courts of record, and, within their respective counties, shall have original jurisdiction:
“(6) To appoint and remove guardians for minors and incompetent persons, to make all necessary orders relating to their estates, to direct and control the official acts of such guardians, and to settle their accounts.
“(11) Such other jurisdiction as may be given them by statutes pertaining to particular subjects.
“(12) And they shall have and exercise such equitable powers as may be necessary and proper fully to hear and determine any matter properly before such courts.”
In the Sheneman case, supra, we held the probate court had jurisdiction and power to compel the guardian of an incompetent father to contribute to the support of his incompetent, indigent daughter. In that case we quoted with approval from 1 Bartlett’s Probate Law and Practice, 82, with respect to the powers of the probate court, as follows:
“The legislature authorized the probate court to appoint a guardian for the estate of a person incapable of managing his estate because of unsoundness of mind. The probate court has full power to control the guardian of such person in the management of the person and estate and the settlement of his accounts. The court is a court of general jurisdiction with respect to the subjects committed to it, and manifestly one of those subjects is the management of the estate of an insane person. . . . The law evidences an intent to impose a broad power in the guardian, subject to the supervision of the probate court.”
G. S. 1943 Supp. 59-1804, pertaining to the duties of a guardian, provides:
“A guardian shall be subject to the control and direction of the court at all times and in all things. A guardian of the person shall have charge of the person of the ward. A guardian of the estate shall (1) prosecute and defend for his ward; (2) sell assets of the estate when the interests of the ward and his estate require the sale thereof; . . (Emphasis supplied.)
G. S. 1943 Supp. 59-1806, pertaining to the guardian’s right to lease the land of his ward for a limited period, reads:
“A guardian of the estate may, subject to the approval of the court, lease for three years or less the possession or use of any real estate of his ward whenever it appears to be for the best interests of the ward and his estate.” (Emphasis supplied.)
G. S. 1943 Supp. 59-1807,. pertaining to the guardian’s right to sell, lease or mortgage real estate of the ward, provides:
“A guardian of the estate may, pursuant to article 23, sell, lease for more than three years, or for oil and gas or other minerals, or mortgage any real estate of a ward subject thereto to provide for the support, maintenance, and education of the ward, his spouse and children, or whenever the personal property is insufficient to pay his debts and other demands against the estate, or whenever it shall be determined by the court that such sale, lease, or mortgage is for the best interests of the ward and his estate.” (Emphasis supplied.)
There is another statute which pertains to a sale, lease or mort-. gage of real estate by a guardian, but it applies to a situation where both spouses are involved and hence is not applicable here. (G. S. 1943 Supp. 59-1808.)
It will be observed that in the pertinent statutes the legislative grant of power and authority to the guardian, subject to the supervision of the probate court, is in nowise limited or restricted to any particular kind or character of real estate which the ward may own or in which he may have a particular kind or type of interest. The guardian’s powers and duties are made broad and general and are subject only to the supervision of the probate court. They apply to all of the ward’s property. No exception is made with respect to the sale, lease or mortgage of property which constitutes the ward’s homestead. G. S. 1943 Supp. 59-1807 expressly embraces any real estate subject to sale, lease or mortgage. Manifestly a homestead constitutes real estate, which like any other real estate, is subject to sale, lease or mortgage by the owner. As already indicated the homestead may be conveyed by a sane widow in whom absolute title vests and she may convey it, or any interest therein, free from all claims of creditors except those who have a valid lien thereon. (In re Estate of Casey, 156 Kan. 590, 596, 134 P. 2d 665.) G. S. 1943 Supp. 59-1807 provides the guardian of the estate may sell any real estate of an incompetent whenever it shall be determined by the court that such sale is for the best interests of the ward and his estate. It is therefore clear a guardians’ sale always remains subj ect to the consent and approval of the probate court. In the final analysis the sale is therefore passed upon and in reality is a sale by the court, the deed being executed by the guardian of the ward, his legally appointed representative.
In the instant case it is conceded the guardian’s sale would be to the best interests of the ward. Failure to make the sale inevitably will result in complete loss of the ward’s remaining right and interest in the homestead. On the other hand, a sale will enable her guardian to salvage at least $550 for her estate.
Appellee contends the consent of the remaining spouse to the alienation of any interest in the homestead must be freely, voluntarily and knowingly given. Manifestly such consent cannot be given by an insane person for any purpose. Appellee further argues the probate court can never substitute its consent for that of an incompetent person where the homestead is involved. If that be true the court is powerless to protect the best interests of this ward.
Whatever merit appellee’s contentions may' have under a different factual situation, we think they cannot be sustained in the instant case. Here only one person, the insane widow, is involved. An insane person, of course, can never give a valid personal consent to the alienation of his property, whether the property be his homestead or of any other character. It is not the character or type of property involved that determines the mental condition of a ward. It is by reason of his mental incapacity to act for himself that a guardian is appointed to act for him and to protect his estate, whatever the nature or character of the property belonging thereto might be. The consent of a guardian to alienate his ward’s property, under sanction and approval of the probate court, constitutes a legally substituted consent where the property is not his homestead just as definitely as where the property is his homestead. Appellee concedes the validity of the substituted consent where the property alienated is not the homestead, but denies its validity where the property is the homestead. The logic of the contention is not sound, and in the absence of a legislative intent to support the contention we would not be justified in sustaining it. The legislative intent, as applied to the facts in the instant case, appears to be contrary to appellee’s contention.
We have previously indicated the reasons which compel the conclusion that there is no constitutional barrier to a guardian’s sale in' this case. We also have indicated what we believe to be the legislative intent as applied to the particular facts here presented. In so doing we have not overlooked the language of G. S. 1943 Supp. 59-1807, which provides for the sale, lease or mortgage of any real estate subject thereto, when the specified conditions exist. That the interests of wards in lands generally are subject to management by a guardian under the direction of the probate court was well established long prior to the adoption of the new probate code. In Charles v. Witt, 88 Kan. 484, 129 Pac. 140, it was held:
“Guardians are required to manage the interests of their wards under the direction of the probate court (Gen. Stat. 1909, § 3975), and may lease the lands of the wards or loan their money, but can do so lawfully only under the direction of the court.” (Syl. ¶ 5.)
In Smith v. Landis, 93 Kan. 453, 144 Pac. 998, the guardian of an insane widow and minor children executed a lease upon the homestead. The power of the guardian to execute such a lease, however, was not raised, but in that case and in the Charles case the lease on the property was not obtained by the free and voluntary consent of the wards. It was obtained'by a substituted consent.
In Guy v. Hansow, 86 Kan. 933, 122 Pac. 879, the court had before it an action for the specific performance of a contract- of a guardian to sell a homestead in which minors had an interest. The defense was that a guardian’s deed executed pursuant to the guardian’s contract would be neither good nor marketable. This court held otherwise. It said:
“The minors had an interest in the land which was property, and any property of a minor or any interest in any kind of property, real or personal, may be sold whenever circumstances make it beneficial to the minor that it should be sold. (Gen. Stat. 1909, § 3991.)
“In 22 Cyc. 568, it is said of statutes of this kind:
“ ‘Under a statute authorizing generally the sale of real estate of infants, the court may order the sale of any interests of an infant in such estate, whatever may be the character of that interest, whether legal or equitable, vested or contingent, in common with others or separate, or in whatever manner it may be held, whether by descent, devise, or by contract.’ (Emphasis supplied.)
“‘A naked right to redeem, however,-may be valuable, and can be sold if the probate court should decide that a sale would be advantageous to the minors.’ ” (p. 935.)
In the same opinion it also was said:
“The contract of the guardian to sell the minors’ interest was of course ineffectual, but the sale authorized and approved by the probate court was binding upon them and the defendant is to receive not only what he contracted for but all the interest the minors have in the land. The title which the defendant will receive is, therefore, perfectly good, and the only question is whether, notwithstanding its good character, it will be sufficiently free from judicious question to be marketable.
“The hesitation of purchasers to take titles of this character arises because the courts exact such right compliance with all the provisions of law governing the sale of property belonging to one not sui juris. All doubt of the- validity and propriety of this sale, however, is removed by the decree of specific performance. This decree was procured-by the minors themselves. The suit was instituted by them by their guardian and next friend, as the law requires. (Gen. Stat. 1909, §3975; Civ. Code, §30.) They are the real parties in interest. (22 Cyc. 630.) Infancy is not a bar to the commencement and prosecution of such suits as may be necessary and appropriate to protect and advance an infant’s property and other rights. (22 Cyc. 628.)” (p. 936.) (Emphasis supplied.)
Touching the binding character of a court decree upon the minors, the same opinion states:
“On the authority of the English case, Flight v. Bolland, (Eng. Ch.) 4 Russ. 298, it is frequently said that specific performance can not be maintained on behalf of an infant because the remedy is not mutual. This, however, is not true when the sale is not that of the infant alone but is one made through the intervention of a guardian duly authorised to bind him. (Guard v. Bradley, 7 Ind. 600.) The court had power to dismiss the action in case it were not for the benefit of the infants (Civ. Code, §30), and by proceeding to judgment must be held to have determined that the action was for the benefit of the infant plaintiffs. The petition set up the entire transaction and described fully and accurately the interest which the minors had to convey. The answer challenged ability to convey and made the specific defense that the title tendered was neither good nor marketable. The very issues, therefore, which the infants might raise on coming of age were presented to the court, with the burden resting on them to show that they were concluded by the sale. The court held that they were so concluded, and they are concluded.” (p. 937.) (Emphasis supplied.)
We think the incompetent widow in the instant case would be concluded just as effectually by the guardian’s sale, approved by the probate court, as the incompetent minors were in the Guy case.
We think the lawmakers intended to grant, and did grant, to the guardian power and authority, under the direction of the probate court, to sell any interest the ward might have in the homestead under the conceded facts in this case.
The cause is remanded with directions to overrule the demurrer to the petition. | [
113,
124,
-36,
-97,
26,
112,
42,
-38,
115,
-66,
39,
87,
-29,
-102,
4,
41,
127,
47,
21,
107,
-58,
-14,
82,
-127,
-48,
-45,
-111,
-51,
49,
124,
-12,
85,
12,
32,
-54,
29,
-26,
-122,
79,
80,
14,
-93,
-85,
-27,
-39,
82,
48,
31,
116,
76,
85,
-98,
115,
46,
92,
99,
72,
40,
-21,
37,
81,
-72,
-85,
-113,
-37,
15,
0,
38,
-104,
-25,
104,
-90,
-112,
53,
1,
-24,
123,
-106,
-106,
116,
67,
-101,
40,
102,
103,
1,
-51,
-17,
-16,
-104,
14,
94,
-83,
-89,
-128,
24,
67,
0,
-68,
-99,
112,
80,
37,
116,
-17,
-108,
76,
108,
13,
-113,
-106,
-95,
-115,
-8,
-104,
2,
-53,
37,
51,
113,
-117,
34,
93,
71,
51,
27,
-116,
-8
] |
The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal from a judgment for damages which plaintiff sustained in a collision of automobiles on highway No. 9 about a mile east of Gaylord.
Plaintiff was a farm employee of one Dannenberg, and was'riding westward with him on the highway. As Dannenberg and plaintiff, approached a narrow bridge there came from the west an automobile belonging to the Fairmont Creamery Company. It was driven by one Jasperson, the company’s employee. He was going to Osborne with two women who were to take a state examination in cream testing that forenoon.-
The cars collided on the bridge and plaintiff was injured. He sued the owners of both cars, charging negligence in various particulars. Plaintiff failed against Dannenberg but got a verdict against the creamery company. On its motion that verdict was set aside and a new trial granted. In the second trial, the issues were joined on plaintiff’s second amended petition, to which defendant had answered with a general denial, a plea of contributory negli gence, and an allegation that whatever injuries plaintiff sustained were not due to any fault or negligence of defendant but to the negligence of others over which the defendant company had no control. Jasperson’s separate answer was similar to that of his employer, the creamery company.
The cause was tried by a jury. The evidence showed-that the highway was level for a long distance on each side of the bridge where the collision occurred. The bridge was 53% feet long, and 15 feet 8 inches wide. There was a road sign “Narrow Bridge” some 282 feet west of the bridge and a similar sign 278 feet east of the bridge. There were wooden approach banisters to the bridge. Both cars were about 5 feet 8 inches wide. The right wheel treads of the creamery company’s car showed dimly that its driver was keeping close to the south side of the highway as he came upon the bridge. Dannenberg’s car veered and skidded from the north side to the south side of the highway into the path of defendant’s car when Dannenberg slammed on his brakes as he approached the bridge. After the accident, one of the persons present obtained some flour from a near-by house and sprinkled it in the wheel tracks of the two cars, and also at the point of collision. Photographs were then taken and they showed (without dispute) that Dannenberg’s car had skidded almost completely over to the south side of the highway as it entered the bridge. One photograph also showed that defendant’s car veered sharply to the north just before the point of collision.
The rates of speed of the two cars, and whether either or both slowed down as they approached the bridge, and whether each driver assumed that the other was yielding to him the right of way were subjects of disputed evidence. So, too, the distance from the bridge when plaintiff warned Dannenberg, and whether Dannenberg heard such warning, and whether one of the women riding in defendant’s car on noticing Dannenberg’s car getting over on defendant’s side of the road remarked “What is that fool trying to do,” — these and other details of evidence were developed at great length.
The jury returned a verdict for plaintiff, and answered a number of questions to which we must give space:
“1. How far was the front end of Henry Dannenberg’s ear on the bridge at the time of the collision? A. 8 feet.
“2. At what rate of speed was the oar driven by Mr. Jasperson travelling at the following places:
(a) At the ‘narrow bridge’ sign? A. 40 to 45 miles per hour.
(b) At the west end of the bridge? A. 35 miles per hour.
(c) At the time of collision? A. 30 to 35 miles per hour.
“3. Did plaintiff at any time warn Mr. Dannenberg of danger? A. Yes.
“4. If you answer question No. 3 in the affirmative, then
(a) State of what such warning consisted? A. Stop, Henry, you can’t make it.
(b) How far east of the bridge was it given? A. 300 feet.
“5. Did Dannenberg decrease his speed and if so, how far east of the bridge? A. 90 feet.
“6. If you answer question No. 5 affirmatively did Dannenberg later increase his speed, and if so, how far east of the bridge did he so increase his speed? A. No.
“7. If you answer question No. 6 affirmatively did plaintiff again warn Mr. - Dannenberg of danger at or after the time of increase of speed? A. No.
“8. If you find the defendant, Jasperson, guilty of any negligence which was the proximate cause of the collision, then state what he did that constituted such negligence? State fully. A. Making no attempt to consider the other driver and not applying his brakes.
“9. Which car reached the bridge first? A. Dannenberg’s.
“10. Was the car driven by Jasperson wholly on the south half of the road and bridge until just before the impact of the collision? A. Yes.
“11. How far north of the south banister of the bridge was the left front wheel of the Dannenberg car at the time of the collision? A. 3 feet.'
“12. Did the left side of the Dannenberg car cross to the south of the center line of the road just before entering the bridge? A. Yes.
“13. Did Jasperson proceed across the bridge because it appeared to him that Dannenberg was giving him the right of way? A. No.
“14. Would the cars have collided had the Dannenberg car remained at all times north of the center line of the road and bridge? A. No.
“15. If you find for the plaintiff how much, if any, do jmu allow him for:
(a) Permanent injuries? A. $4,000.
(b) Pain and suffering? A. $875. '
(c) Loss of time? A. $1,500.
(d) Medical expense? A. $625.
$7,000.”
Defendant’s motions for judgment on the special findings and the undisputed evidence, and to set aside certain findings, and for a new trial were overruled, and judgment rendered on the verdict.
Defendant appeals with a formidable assignment of errors, some of which will require critical attention.
'But first let us summarize the alleged negligence of the defendant creamery company and Jasperson, its employee. The petition alleged that the bridge where the collision occurred was so narrow that two cars could not safely pass thereon except at very slow speed, and that Jasperson knew that fact; that both cars were visible to their drivers at long distances before they met on the bridge, and that the danger of their passing on the bridge was apparent to each driver; that Jasperson neglected and failed to slacken his speed—
“And with full knowledge of all the facts aforesaid carelessly and negligently continued to drive his car at a high and dangerous rate of speed making no attempt to slow down but in such a manner as to meet the car of . . . Dannenberg, on said bridge, where the cars collided ...”
It will be noted that the jury’s findings 2 (a), (b), and (c) do not altogether support the allegation of the petition that Jasperson drove his car to the point of collision on the bridge at a high and dangerous rate of speed and that he failed to slacken his speed. The pertinent findings are that at the narrow bridge sign, which was 282 feet west of the bridge, Jasperson was driving at 40 to 45 miles per hour, and at the point of collision 30 to 35 miles per hour. So Jasperson did not continue his high and dangerous rate of speed — whatever it had been, but did slacken his speed some 10 to 15 miles per hour as he approached the point of collision. In this connection it will be noted that in its 8th finding, the jury found the proximate cause of the accident to be Jasperson’s negligence in “making no attempt to consider the other driver and not applying his brakes.” It is elementary that when various negligent acts are alleged against a defendant and the jury specifies the particular ground of negligence of which he is guilty, such specific finding acquits him of all other negligence charged in the petition. (Jones v. A., T. & S. F. Rly. Co., 148 Kan. 686, 692, and syl. ¶ 2, 85 P. 2d 15; Shepard v. Thompson, 153 Kan. 68, 109 P. 2d 126.) And in respect to finding No. 8, that Jasperson made “no attempt to consider the other driver,” it can hardly be said that such a finding was within the allegations of negligence charged in the petition, nor within the evidence, and is measurably inconsistent with finding 2 (a), (b), and (c). Defendant also argues that Jasperson’s failure to apply his brakes was not an alleged ground of negligence. However, failure to slacken his speed was alleged, and doubtless the jury inferred, fairly we think, that in the short distance from the narrow bridge sign where Jasperson began to slacken his speed to the point of collision (327% feet) a jury would be entitled to usé their common knowledge that due care required a reasonable use of his brakes to effect a sufficient slackening of his speed under the circumstances. Defendant inveighs against finding No. 13, but we think it was within the issues and the evidence, and cannot be disturbed.
We come, however, to some findings of the jury of greater significance than those we have already noticed. Finding No. 10 says that the Jasperson car was wholly on the south half of the bridge until just before the collision. The bridge was 15 feet 8 inches wide. The south half of the'bridge, in Jasperson’s line of traffic was therefore 7 feet 10 inches wide. Jasperson’s car had a width of 5 feet 8 inches, so it was feasible for his car and another no wider (Dannen- 1 berg’s) to pass on the bridge without a collision if both cars were driven with due care. Now, noting findings 11, 12 and 14, the Dannenberg car had crossed over and into the path of the east bound line of traffic so that its left front wheel was only 3 feet from the south banister of the bridge at the time of the collision and that it had crossed to the south of the center line “just before entering the bridge.” The jury’s answer to the 14th special question is that if the Dannenberg car had remained north of the center line of traffic the collision would not have occurred. It will thus be seen that the jury’s finding of proximate cause and defendant’s negligence, finding No. 8, and its categorical answer in finding No. 14 are quite inconsistent with each other; and it is not possible to harmonize them both with the general verdict, even if finding No. 8 considered alone would support the verdict, which is debatable.
Where does this conclusion leave this lawsuit? The general verdict and judgment cannot stand in view of finding 14. Defendant moved for judgment on the special findings “and the undisputed evidence.” We do not regard that motion as a clear-cut motion for judgment non obstante veredicto. Moreover, while the civil code authorizes the rendition of a judgment on the special findings' where they are inconsistent with the general verdict (G. S. 1935, 60-2918) that rule implies that the special findings must be consistent with each other. In Anderson v. Pierce, 62 Kan. 756, 64 Pac. 633, it was held: 9
“Where the general verdict is in plaintiff’s favor, and the special findings made by the jury are supported by the evidence and are inconsistent with one another, or consistent with one another and inconsistent with the general finding, but not destructive of plaintiff’s right of recovery, a new trial should" be ordered and not judgment entered for defendant.”
In Willis v. Skinner, 89 Kan. 145, 130 Pac. 673, it was held:
“Consistent special findings control the general verdict when contrary thereto; but when they are inconsistent with one another — some showing a right to a verdict and others showing the contrary — the case is left in the condition. of being really undecided, and a new trial should be granted.”
Governed by the same rule of law were Edwards v. Railway Co., 86 Kan. 257, 119 Pac. 872; Underwood v. Fosha, 89 Kan. 768, 133 Pac. 866; Burnett v. Street Railway Co., 90 Kan. 282, 133 Pac. 534; Roediger v. Railroad Co., 95 Kan. 146, 147 Pac. 837; Green v. Hutson, 139 Kan. 475, 32 P. 2d 490; Whitacre v. State Bank, 140 Kan. 106, 34 P. 2d 569; Berry v. Weeks, 146 Kan. 969, 973, 73 P. 2d 1086; McGuire v. McGuire, 152 Kan. 237, 103 P. 2d 884.
It therefore follows that the trial court did not err in overruling 'defendant’s motion for judgment on the jury’s special findings “and the undisputed evidence,” but it seems clear that defendant’s motion for a new trial should have been sustained.
The judgment is reversed and the cause remanded for a new trial. | [
-16,
-24,
-40,
-83,
26,
104,
58,
90,
65,
-125,
-91,
115,
-87,
-33,
28,
113,
-1,
29,
-47,
107,
-9,
-77,
19,
-94,
-46,
-13,
-13,
-52,
-77,
-56,
-4,
101,
76,
50,
10,
-107,
-26,
24,
-60,
28,
-52,
-108,
-71,
-22,
89,
18,
-80,
126,
64,
79,
113,
-113,
-57,
38,
24,
-61,
41,
40,
-21,
41,
-47,
-15,
-56,
5,
127,
22,
-78,
18,
-102,
39,
-56,
12,
-104,
49,
0,
-8,
114,
-90,
-42,
-12,
43,
-101,
8,
-30,
103,
1,
85,
-63,
-20,
-104,
6,
-1,
13,
-89,
12,
24,
11,
1,
-73,
-99,
123,
114,
10,
124,
-4,
77,
27,
-16,
-125,
-117,
-106,
-95,
-49,
120,
20,
5,
-53,
-113,
54,
113,
-60,
-16,
77,
69,
115,
27,
87,
-78
] |
The opinion of the court was delivered by
Smith, J.:
In this action the defendant was convicted of a violation of G. S. 1935, 21-1909. He appeals.
G. S. 1935, 21-1909, provides that a larceny committed in any railway depot, station house, telegraph office, passenger coach, express or freight car, or any caboose on any railway in this state, may be punished by confinement and hard labor not exceeding seven years.
The larceny in this case was of a can of Fortnite oil from what is sometimes described in the record as a tool car. The circumstances concerning the commission of the offense were that the railway company had an extra gang employed near Thayer. On the siding at that town there was a string of railroad cars consisting of bunk cars, commissary cars, water cars and the car that is referred to in this testimony as a tool car. About the 16th of August, 1943, the defendant and some others were employed with this extra gang. Ordinarily the defendant slept in one of the bunk cars. A witness for the state testified that he heard a noise early in the morning of that day; that the car in which he was sleeping was just south of the tool car; that he looked out and saw one man, the defendant, on the ground by the tool car and someone inside handing some cans down to the other. A little later that morning the witness reported that occurrence to the night watchman of the city of Thayer. That officer arrested defendant in an automobile in company with a woman and one other man. This officer testified that just before he arrested these people he looked into what he called the turtle shell of the car and saw some cans which he recognized to be cans of oil. He was able to do this as the car drove past him because the can of oil was so big that it would not permit the top of the turtle shell to shut clear down. Upon this general evidence the defendant was convicted of larceny from a freight car and found not guilty of burglary from a freight car.
The first point argued by the defendant is that the evidence did not disclose that the larceny was from a freight car. In connection with this he also argues that the court did not properly d°fine “freight car” in the instructions. The court instructed the jury that the term ‘/freight car” meant just what it said. It means a “freight car.” “A freight car is a railroad car for the transportation of freight.” There might be some question as to whether or not this instruction was not more favorable to the defendant than he was entitled to. However, under the evidence it was certainly as fair as he was entitled to. A witness for the state testified that it was a regular boxcar that they used for a tool car and there seems to have been no question about that. The car was certainly used for the transportation of freight unless the work train, as it is called, was going to remain permanently at Thayer. It is a fair assumption that when it did move the tools that were in it would be carried with it. The statute in question' was passed with the intention of affording the railroad companies extra protection for their property because it is scattered over such a wide territory and quite often is not under surveillance. We see no question at all in this case as to whether this was a freight car as described in the statute. Certainly there is ample evidence to warrant the matter being submitted to the jury.
The defendant next argues that the court erred in instructing the jury as follows—
“Some evidence has been introduced tending to show that after the time that it is claimed the property of the Atchison, Topeka & Santa Fe Railway Company, a corporation, was stolen, it was found in the possession of the defendant, Oran Granger. You are instructed upon this branch of the case that the unexplained possession of stolen property shortly after the same is stolen is prima facie evidence that the possessor is the thief. In this case, it is for the jury to say from all the testimony: First, whether the personal property described in the information was stolen; second, if it was stolen, was it found in the possession of the defendant recently thereafter; third, if it was so found, is it now explained, or unexplained, by the defendant.”
Defendant argues there was no evidence to warrant the giving of this instruction. His argument is that the state never did prove that the defendant was in exclusive possession of the can of oil and that exclusive possession was necessary to warrant the giving of the instruction. This is not quite a correct statement of the matter. There was some evidence that the people in whose possession the property was found along with defendant might have been guilty of counseling, aiding and abetting in the commission of the larceny. In fact, the record discloses that the woman was tried on that theory and acquitted. In any event, there was evidence that the can of oil found in the automobile in which the defendant was riding was handed to him from the tool car earlier that morning. The fact that several people might be implicated in the larceny would not prevent possession of stolen property from being admissible against whichever one of them happened to be on trial. We find nothing wrong with this instruction.
The defendant next argues that the defendant was guilty of petty larceny if anything. He points out that the can of oil stolen was worth about $1.35. The question of whether larceny in a freight car should be a graver offense than larceny under other circumstances is one of policy with which the legislature should deal. It apparently did deal with it in the enactment of G. S. 1935, 21-1909.
We find no error in this record and the judgment of the trial court is affirmed.
Wedell, J., not participating. | [
112,
122,
124,
-67,
58,
96,
42,
-72,
113,
-75,
-92,
-109,
-19,
71,
0,
41,
-5,
95,
116,
49,
-9,
-13,
7,
-77,
-110,
-13,
115,
-59,
63,
75,
108,
-44,
12,
32,
-62,
85,
102,
-56,
69,
92,
-50,
37,
-70,
-29,
81,
56,
-92,
58,
-124,
15,
113,
-114,
-25,
46,
28,
-53,
41,
44,
75,
-81,
-64,
121,
-78,
-51,
109,
54,
-93,
0,
-99,
37,
-8,
29,
-100,
17,
0,
121,
115,
-92,
-111,
-12,
105,
-119,
12,
34,
102,
32,
61,
-17,
-20,
-120,
30,
-70,
-113,
-89,
-72,
80,
35,
38,
-98,
-99,
102,
16,
46,
118,
-21,
85,
89,
96,
3,
-49,
-76,
-127,
13,
36,
-100,
123,
-53,
-89,
33,
101,
-51,
-70,
93,
4,
120,
-101,
15,
-74
] |
The opinion of the court was delivered by
Smith, J.;
This is an action wherein the trial court was asked to declare an oil and gas lease to be terminated by its own terms on ■account of the failure of the lessee to comply with the terms of the lease, and for damages. Judgment was for the defendants. Plaintiffs appeal.
Plaintiffs are husband and wife. The petition alleged that they owned the land in question; that on May 13, 1941, they gave Stark an oil and gas lease on it for a term of five years and as long thereafter as oil or gas should be produced; that the lease contained a provision as follows:
“If no well be commenced on said land before the 13th day of May, 1942, this lease shall terminate as to both parties, unless the lessee on or before that date shall pay or tender to the lessor, or to the lessor’s credit in The Lyons State Bank at Lyons, Kansas, or its successors, which shall continue as the depository regardless of changes in the ownership of said land, the sum of Eighty and No/100 Dollars, which shall operate as a rental and cover the privilege of deferring the commencement of a well for Twelve months from said date.”
The petition alleged further that this lease was assigned to Weaver on May 7, 1942; that Weaver failed to cause any well to be commenced on the land on or before May 13, 1942, and failed to pay or tender to plaintiffs, or to their credit in the Lyons State Bank at Lyons, Kan., $80 on or before that date, and that the lease by its terms and failure of the lessee to comply was terminated; that Weaver assigned an interest on October 22, 1942, to Farber; that plaintiffs on November 16, 1942, notified Weaver and Farber that the rent had not been paid; that thereafter Weaver, with intent to defraud plaintiffs, made a pretended assignment of the lease to Stapleton for the purpose of hampering plaintiffs in their efforts to cause it to be canceled of record; that on January 11,1943, plaintiffs notified all the lessees that the delay rental had not been paid and plaintiffs desired the lease released of record and unless it was released within 20 days an action would be begun; that the lease had not been released and was a cloud on plaintiffs’ title. The petition further alleged that the land adjacent had been leased and oil was being produced from it and the land of plaintiffs was being exposed to waste; that plaintiffs were unable to lease their land on account of the cloud on their title; that the lease at the time the action was filed was of the value of $1,600. The prayer of the petition was for a judgment that the lease was terminated, ordering it canceled and quieting plaintiffs’ title and for a judgment for $1,600 damages, $500 attorney fees and exemplary damages.
Weaver and Stapleton filed an answer in which they made a general denial. They admitted plaintiff’s ownership, the execution of the lease, the transfer to Weaver on May 7, 1942; that Weaver failed to drill on the lease or to deposit the $80 to plaintiffs’ credit in the Lyons State Bank at Lyons, Kan., on or before May 13, 1942, and the assignments to Farber and to Stapleton.
The answer denied that defendants failed to pay the $80 on or before May 13, 1942; that they had violated any provision of the lease and that Weaver fraudulently made the assignment to Staple-ton. The answer further alleged that when Stark secured the lease he had leases on adjacent land and planned to drill a test well either adjacent to or on the land in question; that he was unable to finance this drilling and early in May offered to sell Weaver the leases in question provided he would drill; that Weaver had worked with Stapleton for years and Stapleton had the legal title to many leases upon which he had drilled; that on May 7, 1942, Weaver purchased several leases on land in the vicinity from Stark; that on the same day the leases were assigned to Weaver by Stark; that he prepared and delivered a rental remittance and banker’s receipt in favor of the Chase State Bank; and that Weaver did not know the provision of the lease as to where the money was to be paid but accepted the statement of Stark that the rentals were payable to the Chase State Bank and on May 9, 1942, Weaver caused to be deposited in the Chase State Bank the sum of $80 to the credit of plaintiffs and on that date Weaver believed that the original lease provided for the payment of delay rentals to the Chase State Bank; that immediately thereafter the Chase Bank on behalf of Weaver tendered to plaintiffs the $80 deposited in the bank and advised plaintiffs that the money was on deposit for the account of plaintiffs. The answer then alleged that Weaver believing that the rent in question had been paid contracted on July 29, 1942, for the drilling of a test well on a location about 660 feet south of plaintiff’s land; that drilling-was commenced during August, 1942, and in October, 1942, oil and gas in paying quantities was discovered; that Weaver paid for the drilling of this well in cash and assignments of oil and gas leases over $16,000, all this expense being incurred believing that Weaver held a valid lease upon the land in question; that only after the well in question was proved to be a producer in October, 1942, did plain- . tiffs on or about November 16, 1942, notify Weaver that they were claiming that the delay rentals had not been paid; that plaintiffs remained silent from May 13, 1942, to November 16, 1942, and retained the right and privilege of accepting the $80 as delay rentals if the well drilled had proved to be a noncommercial producer; that prior to the drilling of this well the lease on plaintiffs’ land had no value; that the conduct of defendants showed that they had no intention to abandon this lease; that the payment of the $80 to the Chase State Bank was in full compliance with the terms of the lease; that the act and conduct of plaintiffs, as alleged, estopped them from contending that the lease was not valid; that the $80 paid by Weaver to the Chase State Bank has never been returned to him; that by reason of the expenditure of large sums of money the lease in question had a potential value of about $4,000 and it would be inequitable to now permit plaintiffs to cancel it.
For a cross petition, defendants made the allegations of the answer a part, and alleged that plaintiffs were denying the validity of the lease and prayed judgment that the lease in question was a valid lease. . .
In- his answer Farber adopted the allegations of the answer of Weaver and Stapleton and prayed for the same relief.
The plaintiff moved that all the allegations in the answer concerning the Chase State Bank tendering the $80 deposited for-Browning and the drilling of the well by Weaver, and Browning waiting until he saw whether the well was a producer before he claimed the payment was not made, and about his being estopped, be stricken. This motion was overruled. The case was submitted to the court without a jury. When it came on for trial the plaintiffs moved for judgment on the pleadings. This motion was overruled. The trial court then stated that the burden of proof was upon the defendants, whereupon counsel for plaintiffs moved for judgment on the pleadings and opening statement. This motion was overruled. At the close of the evidence of defendants plaintiffs demurred to it. This demurrer was overruled. After hearing the evidence of both parties the trial court found the issues in favor of the defendants and rendered judgment accordingly. Hence this appeal.
It will be noted that the plaintiff took the position in trial court, and takes it here, that the answer of defendants did not state any defense to the cause of action set out in the petition. Plaintiffs argue that the lease required that one of three things should have been done to extend it past May 13, 1942: First, the drilling of a well on the land on or before May 13, 1942; second, payment of $80 to the lessor, or third, payment to the lessor’s credit in the Lyons State Bank of $80. They argue that none of these three alternatives was taken and that, therefore, the lease was terminated. They insist that the lease called for payment of the delay rental at the -Lyons State Bank and nowhere else except to Browning and his wife individually.
In view of this argument, we shall examine the undisputed evidence as to what was done. On May 7, 1942, this lease, along with other leases, was assigned to Weaver. On May 9, 1942, the $80 delay rental on the lease in question was received by the Chase State Bank and deposited to plaintiff’s credit. A duplicate deposit slip was mailed to the Brownings at their address. Browning, one of the plaintiff’s, testified that he received the deposit slip but he could not say when; that the children got the mail that day and placed this mail with some circulars in a drawer; on July 29 a contract for drilling the offset well was made; that on August 19 it was commenced. During August plaintiff saw the beginning of the drilling of this well. He then began looking for the deposit slip. He found it after inquiring at both banks and learning from the Chase State Bank that the money was there for him. He testified that he inquired at the Lyons State Bank and on learning that the delay rental money had not been paid to that bank he stopped at the Chase State Bank and found for the first time that the rentals had been paid at the Chase State Bank by Weaver, who he knew was interested in drilling the offset well. At that time all he needed to do to get that money into his actual possession was to write a check for it. He testified, in part, as follows:
“I didn’t take the money for the reason that they charge bank service, and I wasn’t going to accept any less than $80. I might have taken it if it hadn’t been for the bank service, but I was not going to accept any less.”
The situation does not appear any different in this respect than if the money had been deposited in the Lyons bank. Early in October when the final potential was taken for this well it showed a potential production of 1,320 barrels of oil a day. On November 7, 1942, Weaver received a notice for the first time from Browning that the delay rental had not been paid when due. He then found his canceled check which he had sent to the Chase Bank and his rental receipt. There were then some negotiations between Weaver and the Brownings wherein Weaver attempted to reach an agreement with Browning as to ratifying the lease on the land in question so that a well could be drilled on it. These negotiations failed and this action followed. There w'as evidence from which the trial court was warranted in finding that the delay rental money for this particular lease was sent to the Chase State Bank by mistake, because out of several leases in the same block this was the only one that required that the rental should be deposited in the Lyons Bank. All the rest of them provided that it should be paid to the Chase State Bank; that Weaver thought in good faith that he was sending the money to the right bank; that he would not have drilled the well where he did drill it had he not believed that the money on the Browning lease had been paid and that the fact that this well was a producer increased the value of the Browning lease.
Under such circumstances should we hold that the lease had expired by its own terms on account of failure of the lessee to comply with its terms either by drilling or paying the delay rentals?
The question has received the attention of this court on a number of occasions. We have uniformly held that we would consider the surrounding facts and circumstances and upon those would base our decision as to whether equity did require that the lease should be held to have expired on account of noncompliance. A clause such as the one with which we are dealing here is known as the “unless” clause. It is a common provision in oil and gas leases. In Kays v. Little, 103 Kan. 461, 175 Pac. 149, the lease provided that the delay rental money should be paid quarterly. A twenty dollar payment was due on December 2, 1916. A check in a registered letter had been sent by the lessee to his agent in Eureka with which to pay this rental. It was not received by the agent until December 5, 1916. On that date payment of the twenty dollars was tendered the lessor through the designated bank and the bank would not accept it. On December 2,1916, an oil well had been drilled to a depth of about 1,600 feet at a cost of $16,000 on land adjacent. At the time of the trial it had been completed and was producing oil. This court said:
“The plaintiff attempted to enforce the forfeiture of Foster’s rights under the lease, although Foster was diligent in doing what the lease required that he should do. He manifested no intention to abandon his rights under the lease, not even by neglecting to make any effort to pay the rental required until after the time fixed for that payment. He attempted to make those payments before the stipulated time. It was not through any act of his that the payment did not reach the plaintiff in ample time. Under the circumstances, it would have been inequitable to have granted the plaintiff the relief he asked.”
It should be noted that the decision turned upon whether or not the conduct of the lessee had been such as to manifest an intention to abandon his rights in the lease. It is pointed out in the decision that he had attempted to comply and that it was through no act of his that the payment did not reach the landowner. This opinion was distinguished twice within a few years, once in Doornbos v. Warwick, 104 Kan. 102, 177 Pac. 527. All that case did, however, was to point out under the particular facts and circumstances the lessee was not excused from strict performance of the conditions with reference to either drilling or paying delay rentals. The fact was that the lessee did not construe the lease as providing that the rentals should be paid in advance and hence did not so pay them. Also, in Baldwin v. Oil Co., 106 Kan. 848, 189 Pac. 920, we held that under the peculiar facts and circumstances the lease had expired by its own terms by noncompliance. In that case there was no effort to pay the- delay rentals and certain facts relied upon had prevented the completion of the well.
In Gasaway v. Teichgraeber, 107 Kan. 340, 191 Pac. 282, a check was put in the mail on the same day that the lease expired and did not reach the bank until the next day. No money had been expended in the drilling of a well in the meantime and we held that the payment was due on the day in question and there was no excuse for its not being paid when it was due.
All three of these cases, however, recognized the principles laid down in Kays v. Little, supra, that there are facts and circumstances which will excuse the lessee from strict compliance with the terms of the lease.
In Parris v. Oil Co., 108 Kan. 330, 195 Pac. 879, the lease contained an “unless” clause. The rent was due July 24, 1919. A tender of payment was made that day but was not received because the bank had been instructed not to receive it. There was a question as to whether or not a party making a tender was the correct party. We are interested in the case because the court said:
“It is possible that the rule with reference to the tender of rent for the purpose of keeping in force an oil and gas lease may in some respects be less severe, the element of good faith being given greater weight in comparison with more formal exactions. For illustration, a payment which did not reach the lessor in time because of a delay in the mails has been upheld.”
In Young v. Arkansas Fuel Co., 117 Kan. 698, 232 Pac. 871, the lease provided that it was to end on December 7, 1921, if the delay rentals were not paid to the plaintiffs or to their credit in the Howard National Bank on that date. The defendants did not make this pay ment nor did they begin a well. They relied for a defense on the fact that they mailed a check in Oklahoma in plenty of time for it to have reached the bank before the day in question, but it was never received, and that they did not know it had not been received until they were served with notice that the lessor claimed that the lease had expired. In the meantime they had spent about $80,000 drilling wells in land adjacent to the land in question. We said:
“This court has held, however, that cancellation may be refused in such a situation as that here presented, where the default is unintentional and excusable and the lessee had expended considerable sums in developing tracts in the vicinity.”
See, also, Gloyd v. Midwest Refining Co., 62 F. 2d 483, also Oldfield v. Gypsy Oil & Gas Co., 123 Okla. 293, 253 Pac. 298. The court in the latter case said:
“The act of the lessee, in forwarding the draft addressed to the depository named in the lease 15 days before the payment was due, is no less the expression of a clear intention to continue the life of the lease than if the draft had been received by the depository named in the lease, and to which the draft was addressed. As the lessee made a clear, unequivocal expression of its election to exercise its option to continue the life of the lease before the date the renewal payment was due . . . the contract must be construed in the light of the election exercised by the lessee.”
See, also, Brunson v. Carter Oil Co., 259 Fed. 656. In that case the rule claimed in the case of Kays v. Little, supra, was approved.
The latest discussion of this question is in Stady v. The Texas Company, 150 Kan. 420, 94 P. 2d 322. There the delay rental money was not paid to the bank named in the lease because the bank became defunct. It was not paid to the party named in the lease because that party had died and the lessee claimed it was not able to learn the identity of all the heirs. The action to cancel the lease was brought sometime after the date named. We held that the lessee had not done what he could have done, that is, secured the appointment of a trustee to receive the rental payments and had permitted the time to pass when this could have been done. The case turned upon that point.
In the case we are considering the lessee did everything that he could to evince his intentions to keep the lease in force. The court found and it is a matter of common knowledge that one who has a valid lease upon an 80-acre tract of land would not drill an oil well within 600 feet of it and permit the lease to expire while he was doing this drilling. The well drilled did about as much to ascertain the value of the lease we are considering as it did to ascertain the value of the lease upon the tract where it was actually drilled.
Furthermore, this lessor actually had the money available to him in the Chase State Bank. He said in his own testimony that he did not draw it on the date he found it was there because he thought there would be a bank charge against it. All of the facts and circumstances lead us to the conclusion that was reached by the trial court, to the effect that the lessor watched the well being drilled and did not draw the $80 from the Chase State Bank because he wanted to be in a position so that if the well was a producer he could claim that the lease had expired by its terms and if it was a nonproducer he could then get his $80.
Equity under such circumstances will not permit us to hold that this lease had expired.
The judgment of the trial court is affirmed. | [
112,
106,
-16,
28,
24,
96,
40,
-103,
121,
-71,
-27,
83,
-51,
66,
4,
121,
11,
37,
101,
105,
-9,
-77,
68,
84,
-45,
-77,
89,
-51,
-72,
-33,
-12,
84,
76,
36,
74,
-41,
-122,
-46,
69,
28,
-50,
5,
-119,
-19,
89,
0,
58,
43,
48,
15,
21,
-81,
-13,
45,
25,
-57,
8,
44,
-21,
40,
89,
-16,
-102,
-122,
95,
50,
51,
-123,
-100,
-59,
64,
30,
-112,
48,
9,
-24,
114,
38,
-60,
116,
39,
41,
44,
38,
107,
35,
20,
-17,
108,
24,
14,
-34,
-115,
-90,
-46,
24,
35,
32,
-106,
-99,
124,
4,
-121,
-10,
-18,
5,
93,
40,
14,
-53,
-10,
-95,
15,
-7,
-104,
25,
-5,
-125,
-96,
96,
-55,
-82,
92,
71,
50,
27,
15,
-16
] |
The opinion of the court was delivered by
Smith, J.:
This is a claim for workmen’s compensation. The examiner found the injury did not arise out of and in the course of the workman’s employment and denied compensation. On appeal the trial court made the same finding and reached the same conclusion.
There is not much dispute about the facts. Claimant was em ployed on the grounds of the ordnance plant near Eudora, spoken of in the record as the Sunflower Ordnance Works. His employer' was the Lozier-Broderick company. This company was engaged in the construction business on the reservation. The work of the claimant was hauling cement blocks. ' The injury occurred during the time when the plant was under construction. The reservation where the plant is located is about two or three miles wide and five miles long. It is operated by the Hercules Powder Company. There were a number of entrances to the grounds. At each entrance guards were placed. No one was allowed to enter any of the gates without the proper credentials. There were several miles of road throughout the reservation. At the time of claimant’s injury the Hercules Powder Company operated buses along these roads for the purpose of transporting guards and watchmen to their stations. There were several subcontractors operating there at the time, each doing work at a different place.
The plan followed for keeping account of the time each man worked was for him to report at what is called in this record a time shack, where he would be given a brass tag with his number on it and the workman would also sign his name on a card which he would hand to the timekeeper. His time for the day did not start until he obtained this tag and signed this card. Each subcontractor maintained one of these shacks in the vicinity of the work it was doing. The time shack maintained by respondent by whom claim - ant was employed was designated as time shack No. 11.
Claimant lived in Leavenworth and rode to his work each morning in an automobile with three other workmen. These three workmen worked for a subcontractor other than the one by whom claimant was employed. The time shack to which they reported was No. 7. It was located about 200 feet from No. 11. On the morning of the injury claimant with his three companions in the car presented himself at one of the gates at the reservation. The credentials were examined by a guard stationed there and they were admitted. These credentials consisted of a button reading “Sunflower Ordnance Works” with a number for each workman and with the workman’s picture on it, also another button upon which was printed “Sunflower Ordnance Works”' — name, “James Harrison,” giving his social security number, his birth date, weight and other descriptions. As soon as they were admitted they all rode in the car directly to time shack No. 7. Near it they parked their car and the three companions of claimant reported at their time shack and went to work. Claimant started walking down the road to time shack No. 11. On his way there and before he reached it he was struck by a bus operated by the Hercules Powder Company, and injured. He was due to start work at 7:30 and it was not quite that time when he was injured. He never did get to work that day. These facts are undisputed. " -
On such a record the examiner for workmen’s compensation denied compensation on the ground that the claimant had not yet reached the place of his employment — hence the injury did not happen in the course of the employment, as it must do before the workman is entitled to compensation for his injury. (See G. S. 1935, 44-501.) On appeal the trial court held to the same effect. Hence this appeal by the claimant.
Claimant argues here that the undisputed evidence brings the case under the rules laid down in Corpora v. Kansas City Public Service Co., 129 Kan. 690, 284 Pac. 818, where we held that a workman who was injured while in his place of employment putting on his overalls a few minutes before time to go to work was entitled to compensation. We have held to that general effect many times. The trouble with that argument in this case is that this claimant had not yet reached his place of employment when he was injured. The place of his employment was in the vicinity of the time shack No. 11. He was on his way there. There was no relationship between the man at the gate and claimant’s employer. They were employees either for the Sunflower Ordnance Works or the Hercules Powder Company. Claimant’s employer was not operating the bus which struck him nor was the bus being operated for it. The respondent bore no different relationship to the road on which the bus was operating and along which claimant was walking than any of the other subcontractors who were doing work at this plant. Time shack No. 7, near which was parked the car in which claimant had ridden to work, bore no relation to respondent.
We have examined the authorities cited and relied on by claimant and find that they are all cases where either the injury happened on the premises of the employer or while the workman was acting on business of the employer. Neither is the situation here.
Claimant asks us to read this record and reach a different conclusion as to the-facts than was reached by the commissioner of workmen’s compensation and the trial court. This we cannot do.
The judgment of the trial court is affirmed. | [
-44,
120,
-40,
-33,
24,
96,
58,
-104,
97,
-128,
-89,
87,
-19,
-113,
13,
107,
-18,
13,
-44,
59,
-10,
-93,
83,
-101,
-14,
-77,
123,
-59,
24,
75,
-84,
84,
77,
20,
78,
-43,
-90,
72,
71,
92,
-52,
21,
-85,
-21,
25,
0,
60,
62,
-76,
79,
17,
-98,
-5,
46,
24,
-53,
41,
46,
107,
-87,
-47,
-15,
-94,
5,
-51,
21,
-95,
6,
-98,
79,
88,
31,
-104,
49,
-56,
104,
81,
-74,
-125,
116,
33,
-71,
4,
98,
98,
33,
-99,
-25,
104,
-72,
30,
-70,
-99,
-91,
-96,
24,
42,
35,
-98,
-99,
-8,
20,
38,
-6,
-30,
13,
95,
41,
-125,
-117,
-78,
-77,
79,
96,
-100,
-121,
-21,
-123,
53,
96,
-58,
-94,
92,
69,
115,
31,
-113,
-102
] |
The opinion of the court was delivered by
Parker, J.:
This is a workmen’s compensation case. The claimant recovered in the proceeding before the compensation commissioner and in the district court. The respondent appeals.
So far as it affects appellate review no dispute exists as to the facts. The respondent operates the electric power, light, and water system in Kansas City, Kan., and is subject to the workmen’s compensation laws of the state of Kansas. The claimant, a man 64 years of age, worked for it as a steam locomotive crane operator for almost a quarter of a century and was a trustworthy and valued employee. On February 19, 1943, while engaged in the performance of his duties he suffered an accidental injury resulting in a double hernia — a direct inguinal hernia on the right side and a direct hernia on the left side. For twelve years preceding its occurrence he had been suffering from and taking treatments for diabetes. Twenty-two years before its happening a physician had performed a left side herniotomy on claimant and eight years prior thereto he had undergone a similar operation.
There was medical testimony to the effect claimant could not be successfully operated upon because of his diabetic condition and that in the plight he was in when examined he was totally disabled from performing manual labor. In addition, one expert testified that aside from the diabetic complication an operation, if performed; would not be successful for the reason it would not hold and the hernia would come back notwithstanding.
No evidence is to be found in the record claimant suffered any other injuries as a result of the accident or that his diabetic condition was in any way affected or aggravated by those he did receive. Nor does the record disclose any evidence, either direct or inferential, that his status so far as ability to perform manual labor was concerned would improve or change without an operation.
Based upon the evidence just summarized, the compensation commissioner made the following finding and a corresponding award:
“It is found from the evidence that the claimant herein as a result of the accidental injury of February 19, 1943, has been, is now and will be temporarily totally disabled for an indefinite period in the future and that he is, therefore, entitled to compensation for not to exceed four hundred fifteen (415) weeks, payable at the rate of eighteen ($18) dollars per week. Compensation now due and owing for thirty-two (32) weeks from February 26, 1943, one week after the accidental injury, to October 8, 1943, or five hundred seventy-six ($576) dollars should be paid in one lump sum. The balance of the compensation awarded this claimant should be paid at the rate of eighteen ($18) dollars per week until fully paid, or until the further order of the Commissioner.”
In explanation of his award, which was in writing, the commissioner among other things stated:
“The respondent company contends that claimant has a scheduled injury of hernia for which it is willing to pay the statutory amount of compensation. The claimant contends that by reason of the double hearnia he is not [sic] temporarily totally disabled for an indefinite period and will continue to be in such condition by reason of the fact that his preexisting condition of diabetes prevents a successful operation being performed. . . . It is true that a hernia is an injury set out in the schedule, but it cannot be applied as affecting a body member. A hernia occurs in the body itself and not to one of the body members. In this respect a hernia injury is different than the rest of the scheduled members. In the opinion of this Commissioner the age of this man, his diabetic condition, his lack of education, and his two hernias, do render him totally disabled as far as the performance of work and labor as contemplated by the workmen’s compensation law is concerned. His condition in the opinion of this Commissioner, is covered by the statute previously quoted at the beginning of this award [G. S. 1935, 44-510; 3(b)]. He is now temporarily totally disabled by reason of a scheduled injury, as well as the preexisting condition of diabetes, and his temporary total disability will last for an indefinite and uncertain period of not more than four hundred fifteen weeks, and it is so found. In connection with this opinion see the case of Texas Employers Insurance Association v. Howell, 37 S. W. 2d 343.”
On appeal the district court affirmed the award made by the commissioner but based its affirmance upon the following grounds, which as they appear in the journal entry of judgment are:
“That claimant’s disability, being temporary and total, is not such a disability as is covered by the schedule provided for hernia in the Workmen’s Compensation Act.
“That the schedule provided in the Workmen’s Compensation Act covers only a single traumatic hernia and does not cover double traumatic hernias of the character and kind which this court finds to exist in the claimant.”
Appellant’s specification of errors, while predicated on several grounds, really raises but one material issue. Briefly stated, its position is that the allowance to the appellee by the commissioner and the district court of “temporary total disability for a period not to exceed 415 weeks” is contrary to the provisions of the Workmen’s Compensation Act. In fact, in the final paragraph of its brief it frankly states:
“We believe the judgment of the court should be that the appellee is entitled to compensation for his scheduled injuries, two hernias, and any benefits under Par. 1 of G. S. 1943 Supp. 44-510, to which he may be entitled, and that the judgment of the District Court should be reversed.”
We therefore limit our consideration to the question of whether the act, giving full weight to the evidence, permits the award made by the commissioner and the trial court.
The section of the statute providing' for compensation is G. S. 1943 Supp. 44-510. That portion of the section on which the award was made, and regarded by appellee as applicable, is subdivision 3(b). It reads:
“Where temporary total disability results from the injury no compensation shall be paid during the first week of disability, except that provided in paragraph 1 of this section, but after the expiration of said first week payment shall be made in accordance with the provisions of this act, during such temporary total disability of a sum equal to sixty percent of the average weekly earnings of the injured workman, computed as provided in section 44-511 of the General Statutes of 1935, but in no case less than six dollars per week nor more than eighteen dollars per week: Provided, That where such temporary total disability is followed by temporary partial disability, the compensation shall be sixty percent of the difference between his average weekly wages before the accident and the average weekly wages he is earning or is physically able to earn during such period of temporary partial disability, in any employment, not exceeding, however, eighteen dollars per week: Provided, The minimum of six dollars per week elsewhere provided for in this act shall not apply to compensation under this provision, and such payment shall not extend over a longer period than four hundred and fifteen weeks from the date of the accident.”
Pertinent portions of the section on which appellant relies are subdivisions 3(c) and 3(c) (20), which read:
“Where disability, partial in character but permanent in quality, results from the injury, the injured workman shall be entitled to the compensation provided in paragraph 1 of this section, but shall not be entitled to any other or further compensation for or during the first week following the injury. Thereafter, compensation shall be paid as provided in the following schedule, the average weekly wages to be computed as provided in section 44-511 of the General Statutes of 1935, and the compensation in no case to be more than eighteen dollars per week: . . .
“For traumatic hernia, 60 percent of the average weekly wage during twelve weeks.”
Before consideration of arguments advanced by the parties in support of their respective positions we direct attention to subdivision 3 (c) (21) which in part reads:
“Whenever the workman is entitled to compensation for a specific injury under the foregoing schedule, the same shall be exclusive of all other compensation except the benefits provided in paragraph 1 of this section and no additional compensation shall be allowable or payable for either temporary or permanent disability. . . .” (Emphasis ours.)
Whatever we may have said heretofore, in an effort to liberally construe the provisions of the Workmen’s Compensation Act in order to effectuate its purpose, with respect to the purpose of the enactment of the subdivision just quoted, the fact remains the plain import of the language there found, which cannot be disregarded, is that if a workman is entitled to compensation for any injury suffered and scheduled under subdivision 3 (c), then the compensation to which he is entitled for that specific injury is exclusive of all other compensation provided for under any and all other provisions of the act. So construed, it must follow in the instant case that if the two hernias suffered by appellee as a result of his injury are scheduled injuries he is limited in his recovery to the compensation provided for by subdivision 3(c), unless, of course, it appears from the evidence his subsequent disability, irrespective of whether it was temporary or permanent, was so unusual and extraordinary, within the meaning of those terms as used in decisions presently referred to, as to justify an additional award beyond the statutory schedule. Notwithstanding the somewhat broad language to be found in some of our decisions this conclusion is inescapable and is in accord with our recent decision in McCullough v. Southwestern Bell Telephone Co., 155 Kan. 629, 632, 127 P. 2d 467. In the opinion in that case we quoted from Ossic v. Verde Central Mines, 46 Ariz. 176, 187, 49 P. 2d 396, thus:
“. . . when the injury consists of one of the specified scheduled ones and of that alone, the commission is without jurisdiction to make an award on any different basis than that set forth in the statute, . . .”
It is also in harmony with another recent decision, Amos v. J. E. Trigg Drilling Co., 153 Kan. 617, 113 P. 2d 107 where in part we held:
“The record examined, and held, that the statutory schedule for specific injuries constituted the full award to which claimant was entitled, and that the evidence was insufficient to justify an implied exception thereto under the rule announced in Chamberlain v. Bowersock Mills & Power Co., 150 Kan. 934, 96 P. 2d 684, 129 A. L. R. 654.”
And stated:
“Both aspects of this precise question are tersely stated in the recent case of Ottens v. Western Contracting Co., 296 N. W. 431, by the supreme court of Nebraska. Two of the headnotes read:
“ ‘Where disability resulting from compensable injury to fingers is the normal, usual, logical and expected consequence of the injury, no compensation can be awarded in addition to that provided by statutory schedule.
“ ‘Where a compensation claimant has suffered a schedule injury to some particular member, and some unusual and extraordinary condition affecting some other member has developed as result of the accident, an increased award should be made.’ ” (p. 620.)
So, also, it complies with the doctrine announced in the earlier case of Stefan v. Elevator Co., 106 Kan. 369, 187 Pac. 861, where it was said:
“The legislature evidently believed the loss of a specific member or organ deserved the compensation stated, whatever else occurred. If, however, additional injury should increase the workman’s partial disability, either permanently or temporarily, he should receive additional compensation.” (p. 373.)
We turn now to contentions advanced by appellee in support of the award. A careful examination of his argument discloses an attempt, by process of elimination, to establish reasons why under the evidence the injuries suffered by him were not within the purview of subdivision 3(c) (20) and in the main, except for an argument later referred' to, he proceeds upon the assumption that if his injuries are not found to be scheduled ones compensation therefor is determined by the provisions of subdivision 3(b). For that reason, we approach and devote most of our discussion to the subject of whether such injuries fall within the scope of the subdivision first referred to.
It is first argued that since the language found in this subdivision is “for traumatic hernia” its scope is limited to one hernia only and precludes the allowance of compensation for two hernias as scheduled injuries when they follow as the result of one accident. This argument if pursued to its ultimate conclusion requires allowance of compensation for disability resulting from two hernias under 3(b) or some other provision of the act without regard to the provisions of 3(c). We cannot concur in any such view and see no more legal justification for differentiation between two hernias than we do between the loss of two great toes, two thumbs or two first fingers in any one accident. In reaching that conclusion we are guided by a familiar rule of statutory construction. G. S. 1935, 77-201(3), reads:
“Words importing the singular number only may be extended to several persons or things, and words importing the plural number only may be applied to one person or thing. . . .”
It is a matter of common knowledge that in the absence of some unusual condition — as in this case diabetes — a hernia, or in fact two hernias, are curable by scientific means and their result so far as disability is concerned is no more partial in character and permanent in quality, if as much so, than the loss of the members heretofore referred to. Neither does the fact the legislature saw fit to speak in the singular in one schedule and in the plural in another mean that one cannot recover compensation for two specific injuries suffered in the same accident if but one is listed in the singular number in the schedule. We believe it was the intention of the legislature to allow recovery of compensation for two hernias under the same schedule in the same manner recovery is permitted for the loss of any two of the other members of the body hereinbefore mentioned. So far as we have been able to find the question of whether there may be recovery for two hernias under the circumstances just related is one of first impression in this state, and in our limited investigation of the authorities we have failed to find any decisions from other states dealing with that subject. However, there is authority to the effect that an injured employee suffering from total disability due to two hernias cannot recover as for total disability under a workmen’s compensation act, but must recover under its provisions covering hernia. (See Beeson v. Sayers, 7 La. App. 72.)
It is next urged that the language to be found in some of our decisions, presently referred to, implies that scheduled injuries are confined to those received by “a specific member or organ of the body,” and precludes recognition of two hernias as being within the purview of the statute. We find little merit to the suggestion. If appellee’s position is to be upheld as a result of the use of such language it must necessarily follow that one hernia could-not be regarded as within the scope of 3(c) (20), a consequence clearly contrary to the intention of the framers of the act. It was within the power of the legislature to designate hernia as a scheduled injury and when so designated it is of little moment whether it be considered as an injury to some member of the body or as an internal injury. Nor do we feel there is anything, as suggested by counsel, in the opinion of Hering v. San Ore Construction Co., 130 Kan. 70, 285 Pac. 592, cited in Blythe v. State Highway Comm., 148 Kan. 598, 83 P. 2d 678, which precludes this view. True, as is urged, at page 76 of the opinion in that case, dealing with a compound fracture of a leg, the statement is made that subdivision 10 (3) (b) is regarded as being applicable to an injury received at some place on the body other than to one of the members set out in the schedule, but likewise appearing is the statement:
. . Also it seems clear that section 10 (3) (c) pertains to compensation for injuries to the specific members set out in the schedule in subdivision (c) . . .” (p. 73.)
The language quoted is clear and concise and nowhere in the opinion is it hinted or even suggested that since the legislature had exercised its prerogative to list hernia as a scheduled injury compensation therefor did not fall within the scope of subdivision 3(c). The conclusion that any contrary construction is to be placed upon our opinion in the decision just referred to is unjustified.
We are next confronted with the argument there can be no scheduled disability unless the injury “is partial in character but permanent in quality.”
In support of his position appellee points to the case of Blythe v. State Highway Comm., 148 Kan. 598, 83 P. 2d 678, and in his brief singles out a phrase to be found in the opinion wherein it is stated, “The scheduled injuries apply when the disability is permanent, and not where it is temporary only.” We are familiar with the facts and circumstances of that case as well as the language to be found in the opinion. It involved a situation where it was stipulated the claimant’s injury was a contusion of the distal joint of the second finger of the left hand which necessitated a surgical opening and removal of splintered bone material, resulting in temporary total disability and no permanent disability whatsoever. The appellant claimed compensation under such circumstances was limited to the amount allowed under the schedules set out in G. S. 1943 Supp. 44-510 (3) (c) (3) and (19). In denying the appellant’s contention the court held:
“Where a stipulation in a compensation case states that there was no ‘permanent disability’ whatsoever, but that it was a ‘total temporary disability,’ the compensation to be allowed is not limited by the terms of the scheduled injuries enumerated in subsection (c) of G. S. 1935, 44-510(3).” (Syl.)
A careful examination of the opinion reveals the decision was predicated upon the stipulation and that while it contains language as above quoted, such language has reference to injuries suffered by members of the body which in their very nature would be permanent because they could not be replaced and did not, as we construe it, have reference to hernia, which, while it was a scheduled-injury, was of a character that it could be entirely cured by a surgical operation. Here again any other construction would contravene the manifest purpose of the legislature in enacting subdivision 3(c). A cardinal rule of statutory construction often referred to is that when a statute is susceptible of more than one construction it must be given that which when considered in its entirety gives expression to its intent and purpose. (See Shumaker v. Kansas State Labor Dept., 154 Kan. 418, 118 P. 2d 550 and Egnatic v. Wollard, 156 Kan. 843, 851, 137 P. 2d 188.) Guided by this rule we believe, so far as it pertains to traumatic hernia, which it should be noted, was not included as a scheduled injury under provisions of the compensation act until it was amended by the Laws of 1927, chapter 232, the proper construction to be placed on 3(c) is that under its terms hernia alone is a scheduled injury for which compensation has been fixed by the legislature regardless of its character and/or quality.
We are not unaware that in some instances — as here — the rule just stated will bring about a result contrary to what we would have were we to permit our sympathies to guide our legal judgment. In other cases the rule may permit more than what we might deem proper under the exigencies of a given situation. Be that as it may, it is not for us to make the law, but to construe it as we find it for the benefit of all who may come in contact with it without regard to the result in specific cases. Our duty with respect to statutory construction and “the remedy for statutory enactments requiring a construction inconsistent with the wishes and desires of those affected by them were well defined by former Chief Justice Johnston in the opinion in Anderson v. Oil & Refining Co., 111 Kan. 314, 206 Pac. 900, when he said:
“It was competent for the legislature to make classifications of disabilities and prescribe the rule to be applied in measuring the compensation for each class. The legislature prescribed a measure for certain scheduled disabilities, and a different rule for partial disabilities not scheduled. The fact that the application of these rules may seem to some to operate unjustly, requires a close scrutiny of the act to ascertain the legislative intent, but affords no ground for the court to substitute rules different from those enacted by the legislature. If the practical operation of the law is found to bring disproportionate or unjust results, it may be assumed that the legislature will amend it, but this is a function which belongs alone to that body.” (p. 316.)
We turn now to consideration of those of our decisions where, even though the original injury was a scheduled one, an additional award beyond the statutory schedule was allowed because of subsequent unusual and extraordinary conditions. Appellee cites Bidnick v. Armour & Co., 113 Kan. 277, 214 Pac. 808, and Chamberlain v. Bowersock Mills & Power Co., 150 Kan. 934, 96 P. 2d 684. He places particular emphasis on the Chamberlain case and asserts it is authority for the award made by the commissioner and the trial court in the instant proceeding. We do not agree. Without entering into a detailed discussion regarding the doctrine announced in those decisions it can be summarized by stating it is applicable only in cases where some subsequent complication, distinct and apart from the scheduled injury itself as originally sustained, but resulting from its sufferance, has developed and affects that portion of the body originally injured or some other portion or member of it and results in further and additional temporary or permanent disability. A careful and painstaking review of the record fails to disclose any evidence establishing such a situation in the case at bar. The only injuries suffered by appellee were the hernias herein referred to. The diabetes which prevented a successful operation was something which for years prior to the occurrence of the injuries had been a constant source of trouble and treatment. Subsequent complications were not established by evidence. Under such circumstances, there is no room for application of the doctrine announced in the Chamberlain case, et cetera.
It is true as suggested by appellee, the compensation act provides no standard of health for workmen and that accidental injuries are compensable thereunder where the accident only serves to aggravate or accelerate an existing disease or intensifies the affliction.
From what has been said it must already be apparent the award below cannot be upheld. Both the commissioner and the trial court were in error in awarding compensation under G. S. 1943 Supp. 44-510(3) (b). In addition, it should be stated the commissioner’s finding that the suffering of a scheduled injury as well as the preexisting condition of diabetes, since the evidence failed to disclose the latter was affected by the injuries, formed a basis for the award was erroneous. Likewise erroneous was the finding of the trial court that G. S. 1943 Supp. 44-510 3(c) did not authorize allowance of compensation for two traumatic hernias.
In passing, we note, although we do not base our decision on that ground, there is another reason why the award cannot be approved. From a careful examination of the record we fail to find any evidence on which an award for temporary total disability could be based. The appellee’s evidence was' that under all the circumstances his injuries were permanent and appellant did not attempt to dispute it.
Perhaps unnecessary, in conclusion, is the statement a proper award for the disability resulting from the injuries suffered by appellee includes compensation for two hernias as authorized by 3(c) (20) and any additional benefits the trial court may from the evidence find appellee is entitled to under subdivisions (1) and 3(c) -(21) of section 44-510.
’ The judgment of the district court must be modified and the cause is therefore remanded for final disposition in accordance' with the views herein expressed. | [
-48,
104,
-103,
-99,
26,
-27,
42,
26,
113,
-91,
-89,
119,
-19,
-114,
13,
127,
-26,
125,
81,
51,
-9,
-77,
19,
-21,
-46,
-13,
-7,
-51,
-71,
79,
-12,
-43,
77,
48,
10,
-107,
-26,
66,
69,
92,
-52,
4,
-86,
-24,
89,
0,
52,
46,
-108,
72,
17,
46,
-21,
42,
24,
-57,
109,
44,
107,
-86,
-47,
-15,
-94,
13,
125,
16,
-94,
4,
-100,
111,
-40,
62,
-104,
16,
112,
-116,
82,
-74,
-61,
53,
43,
-87,
4,
98,
98,
33,
29,
-89,
-20,
-72,
15,
-42,
-99,
-91,
-70,
24,
-101,
-117,
-108,
25,
82,
20,
22,
124,
-11,
21,
79,
45,
3,
-114,
-76,
-79,
79,
100,
-98,
-69,
-17,
15,
-109,
113,
-36,
-94,
93,
7,
58,
31,
-13,
-70
] |
The opinion of the court was delivered by
Harvey, J.:
This was an action to quiet title to real property. Judgment was for plaintiff, and defendants have appealed.
In the petition, filed May 13, 1943, plaintiff alleged that he was the owner in fee simple and in the actual possession of a described quarter section of land in Gove county; that defendants claim some right, title or interest in or lien upon the property, which in fact exist only as clouds upon plaintiff’s title; that the defendant, Kate Saathoff, is the holder of a mortgage upon the property, duly filed of record, to secure a note for $300 dated February 29, 1936, and due in one year, upon which nothing had been paid, and that the same “is now void and of no effect by reason of the five-year statute of limitations.” It is further alleged that the defendant Kate Saathoff is the holder of a mineral deed for the property which has not been listed for taxation, and that the same was not recorded within ninety days after its execution, and that the same is void and of no effect by reason of G. S. 1935, 79-420. The prayer was that defendants set up any estate or lien which they had or claimed to have upon the property, that the same be adjudged void, and plaintiff’s title quieted. Defendants answered and alleged that plaintiff had given to defendant Kate Saathoff a note for $300 and a mortgage upon the real property described in the petition to secure its payment as a part of of the purchase price of the property, and admitted that no part of the principal or interest accrued upon the promissory note had been paid by plaintiff to defendants, or either of them, and also admitted the allegations of the petition with reference to the certain mineral deed.
With respect to the mortgage, plaintiff predicates his right to quiet title upon our statute (G. S. 1935, 60-1802; Laws 1911, ch. 232, § 1), which reads:
“When any mortgage on real estate has been in default for more than fifteen years, or the lien thereof has ceased to exist, or when action to enforce such mortgage is barred by the statute of limitations, the owner of the land may maintain an action to quiet his title and have the cloud removed.” (Italics ours.)
This statute first came before the court in Shepard v. Gibson, 88 Kan. 305, 128 Pac. 371, in which it was held to be valid, and in the opinion it was said:
“To avoid the 'sword and shield’ rule declared by the court, and overcome the disability of the landowner to ask for affirmative relief, the act in question was passed. Under its provisions the owner of the land need not wait the institution of an action by the holder of the mortgage in order to have the vitality of the mortgage adjudicated, but may take the affirmative of the question and obtain from the court a determination whether a right of action exists on the mortgage or has been lost by lapse of time.” (p. 308.)
This case was followed in Zuege v. Mortgage Co., 92 Kan. 272, 140 Pac. 855, where the statute was again approved and the reasons for it were stated. See, also, to the same effect, Jones v. Hammond, 118 Kan. 479, 235 Pac. 857, and Troxell v. Cleveland Oil Co., 145 Kan. 658, 66 P. 2d 545.
In Berkley v. Idol, 91 Kan. 16, 136 Pac. 923, the court declined to apply the statute in an action brought by a vendee under a contract for the purchase of real property, and also declined to apply it in Sallee v. King, 128 Kan. 270, 277 Pac. 49, where an action to quiet title was brought against a mortgagee in possession. By these decisions the court limited the statute to the type of instrument named in the statute, namely, a mortgage where an action to foreclose the same is barred by the statute of limitations.
Appellants contend that since the mortgage in this case was given for a part of the purchase price the statute should not be applied. No such exception is made in the statute, and we do not feel justified in making it. Since appellant could not foreclose her mortgage it would serve no good purpose to reverse this case. Appellant does not complain of the judgment insofar as it quiets title against the mineral deed.
We find no error in the record. The judgment of the court below is affirmed. | [
-45,
106,
-44,
60,
-86,
96,
-86,
-118,
97,
-79,
-93,
83,
111,
-64,
20,
45,
-10,
45,
101,
122,
67,
-78,
39,
-118,
18,
-77,
-48,
93,
-71,
-51,
-12,
-41,
76,
48,
66,
117,
70,
-70,
-115,
84,
-114,
-121,
-103,
68,
-39,
64,
48,
59,
84,
12,
81,
-57,
-13,
45,
52,
67,
9,
46,
-53,
61,
-47,
-8,
-69,
12,
127,
2,
-79,
20,
-108,
-61,
-24,
10,
-128,
57,
1,
-24,
119,
54,
-122,
116,
75,
-101,
40,
102,
98,
50,
101,
-17,
-24,
-104,
15,
118,
13,
-89,
-14,
88,
3,
40,
-66,
-99,
124,
16,
103,
-2,
-22,
-115,
93,
108,
15,
-18,
-44,
-109,
15,
60,
-109,
67,
-9,
3,
-32,
81,
-50,
-96,
92,
103,
59,
27,
14,
-79
] |
The opinion of the court was delivered by
Hoch, J.:
This is a workmen's compensation case. An award by the commissioner was affirmed by the district court and the respondent employer and its insurance carrier appeal. The only question is whether there was substantial evidence to support the finding that the accident suffered by the claimant caused or aggravated the defective vision upon which right to compensation was predicated, and that such defect is permanent and of the extent determined by the court.
We first take note of appellee’s motion to dismiss the appeal on account of appellants’ failure to file a specification of errors as required by Rule 5. The rule is founded on sound reasons and we again emphasize its importance. However, in view of the instant record the appeal will be considered on its merits. The issues were definitely drawn in the trial court and it is perfectly clear from the briefs of both appellee and appellants that the issue here was mutually understood. As soon as the failure to observe the rule was noted by appellants they had a specification of errors printed and inserted in the abstract.
Benjamin M. Long, the appellee, went to work for Lozier-Broderick & Gordon, appellant, at the Sunflower Ordnance plant as a welder and structural steel worker in July, 1942. Near quitting time on August 1, 1942, as he was passing by a bench where workmen were knocking slag from steel plates, a piece of slag struck him in the left eye. A fellow workman tried to get it out and he thought it was out but the next morning the eye was paining him and he went to the hospital. A doctor there worked at the eye and told him to report again the next morning. At that time the eye was further examined and he was then sent to Doctor Powell, an eye specialist at Lawrence. Doctor Powell treated the eye regularly for five weeks, and was then called into the armed services. Appellee was then sent to Doctor Nelson at Lawrence and five more weeks of treatment followed. At a date not disclosed by the record claim was filed under the workmen’s compensation act and hearing held before an examiner on July 7, 1943. At the commencement of the hearing parties agreed that the relationship of employer and employee existed at the time of the accident; that the parties were covered by the act; that the average weekly wage was over $30; that notice had been given to respondent; that the claimant met with the accidental injury alleged and that it arose out of and in the 'course of employment. Respondent did not at that time admit that written claim had been duly made nor that the amount of compensation claimed, if any, was due. However, appellants now only contend that the “nature and extent of claimant’s loss of use of the left eye, if any” is in issue, and both parties appear to interpret this issue to include the question o,f whether the accident was the cause of the loss of vision.
In addition to the testimony of the claimant the evidence on the present issue consisted of affidavits of three doctors, to which reference will presently be made. Approving the findings of the examiner the commissioner found that the claimant had suffered a a sixty-five and eight-tenths (65.8) percent permanent partial loss of vision of his left eye as a direct result of the accident and made an award for a period of seventy-two and four-tenths weeks at the rate of eighteen dollars per week. Appeal was taken to the district court, and on November 2, 1943, the findings and award made by the commission were affirmed. This appeal followed.
As frequently stated, the jurisdiction of this court in workmen's compensation cases is specifically limited to questions of law. (G. S. 1935, 44-556; Brown v. Olson Drilling Co., 155 Kan. 230-231, 124 P. 2d 451, and cases there cited.)
No purpose would be served by narrating the evidence except that which- bears upon the narrow issue before us. It is not our function to weigh conflicting evidence. Was there substantial evidence to support the findings as to the cause and extent of claimant’s loss of vision?
Claimant’s eyes had been tested in 1940 by Doctor Mussallem of Macon, Mo. He found the vision at that time to be normal in both eyes, but recommended glasses for reading purposes to relieve any eye strain. On March 19, 1943, he again tested claimant’s eyes and found a four-fifths impairment in the left eye. Claimant testified that he had never had any infection in his left eye that he knew of prior to the time he got the slag in it, and that the left eye had suffered no previous injury. In a letter to the claimant dated April 10,1943, and admitted without objection, Doctor Nelson said:
“In response to your letter I wish to state that my conclusion in regard to your eye is that you were recovering from an attack of uveitis when I first saw you and that you have had some resulting effect on your crystalline lens with a permanent streaking of the lens. This leaves you with a decrease in your vision to 20/150 with very little aid from the use of glasses.”
After this letter was introduced counsel for claimant stated to the examiner that there wlas one “failing” in the medical testimony, in that neither doctor had made a direct statement that the condition of the eye was a direct result of the accident, nor that the foreign object in the eye “aggravated or caused a flare-up of those conditions,” and that he might have to “call Doctor Nelson and ask him to send another statement amplifying this statement.” Thereafter claimant went to Lawrence and brought back a letter from Doctor Nelson, which was received without objection, in which Doctor Nelson stated: “It is my opinion that a foreign body in the eye may have been the cause of the uveitis with which you were suffering when I first saw you.”
We also have the following testimony by the claimant:
“Doctor Nelson examined me and kept close watch on it. He said I had a bad ease of some kind of infection and he wanted to watch it pretty close. I think I went every day for three weeks, then after that about two or three times a week. He said it wasn’t entirely healed up.
“Q. What did he tell you the slag had done to your eye? A. He said it had caused little scars on the eyeball, the pupil and caused me not to be able to have the vision out of that eye that I should.”
Appellants urge that this latter testimony should not be considered because it was hearsay. Appellee contends that hearsay evidence is admissible in a workmen’s compensation case, citing Parker v. Farmers Union, 146 Kan. 832, 73 P. 2d 1032. It is true that in that case we refused to apply the rigid common-law rule touching the admissibility of hearsay evidence, but the modified rule there stated applies only to cases where the workman had died from his injuries, and where other conditions not necessary to restate here are present (see Parker v. Farmers Union, supra, p. 840). However, it is not necessary to determine here whether the hearsay rule should be further relaxed to permit the admission, over objection, of the instant testimony. The record does not disclose that objection was made at the time and the evidence was entitled, the same as any other evidence, to such weight as the trial court might give to it. (71 C. J. 1149.) As to this evidence appellants also contend that appellee’s narration of what Doctor Nelson told him was not corroborated by Doctor Nelson’s letter. It is true that the letter does not recite that the statements were made as reported by the claimant but it cannot be said, we think, that the letter is clearly inconsistent with the claimant’s testimony. In any event such questions were for the trial court to pass upon. It may also be well to note at this point that we are not here dealing with the question of whether hearsay evidence alone is sufficient to establish causality in a compensation case. There is present here the other testimony as narrated.
Appellants’ principal contention is that the statement of Doctor Nelson that the slag in the eye “may have been the cause of the uveitis” (italics supplied) is insufficient to establish causal connection. If that statement by Doctor Nelson were the only evidence it might well be urged that the judgment should not stand, being based upon evidence conjectural in character. We agree with appellants that Son v. Eagle Picher M. & S. Co., 144 Kan. 146, 58 P. 2d 44, which is one of the cases principally relied upon by appellee, does not rest upon a mere statement that the accident there involved may have caused the injury. In that case, although the medical testimony was otherwise weak in the matter of establishing causal connection the doctor did, at one point, make the unqualified statement that “the injury was the beginning of the trouble.”
Cases more helpful to appellee’s cause are Vera v. Swift & Co., 143 Kan. 593, 56 P. 2d 96, and Smith v. Cudahy Packing Co., 145 Kan. 36, 64 P. 2d 582. In the Vera case the employee died from a streptococcic infection. No abrasion of the skin or other “port of entry” for the infection was shown to have resulted from any accident while at work for the employer. Such an abrasion, however, had resulted from a fall from a ladder at home about twelve days before the employee quit work at the plant and went home sick. A compensation award, upheld by this court, was based upon the theory that shock, sustained by the employee the day he last worked at the plant, when an elevator he was operating descended out of control several stories to the bottom of the elevator pit and rebounded a foot and a half, aggravated the infection then present in his body and contributed to his death. One doctor testified that such a shock'could lower resistance so that if an infective organism were present it would enhance activity of the organism. Another doctor testified as follows:
“Q. So that it is your opinion, if I understand you correctly, that this fall that Juan Vera sustained at Swift & Company’s plant on the 27th day of July, 1933, could have activated or aggravated a preexisting streptococcic infection that was within the body? A. I think it is possible.”
He testified further, however, that in his opinion the fall with the elevator did not have that effect. Another doctor testified as follows:
“Q. Would a fall such as described to you, six or eight floors, have a tendency to aggravate or light that thing up and make it flare up? A. Yes.
“Q. It would? A. Yes.
“Q. In other words the .streptococcic infection might be lying dormant? A. Yes, sir.
“Q. And this trauma which I have described might have lighted it and flared it up? A. Yes.” (p. 602.)
It will be noted that in the Vera case there was no positive medical opinion that the elevator fall contributed to the employee’s death nor even that it probably did so. The testimony only was that such a fall could lower resistance and enhance the activity of an infective germ, if present, or that the fall might have caused the in fection to flare up, or that it was possible that the fall activated or aggravated a preexisting infection. But this court said that considering all the circumstances of the case it did not feel justified in saying that there was no substantial evidence to sustain the finding of the trial court.
In the Smith case, supra, in which three justices dissented, the claimant, while at work as a cattle butcher for a meat packing company, received a small cut or skin wound on his right arm. The wound was treated and about a week later had entirely healed. Several days later he developed ringworm on his right leg. In answer to a hypothetical question as to whether it was possible that the claimant could have gotten the infection into his system by allowing hides from infected cattle to slip over the cut on the arm, one doctor answered, “He certainly could.” To a similar question another doctor answered “It would be possible,” although he testified that ringworm is a local and not a systemic infection. There was no other medical evidence. In affirming the judgment it was said in the opinion:
“The majority of the court regard this evidence as proof of more than possibility the infection resulted from the wound. The evidence made certain the possibility of contracting the disease and practically eliminated every other source of infection than infection arising out of and in the course of employment.” (p. 39.)
The evidence in the instant case, including the claimant’s testimony' — unobjected to — as to what the eye specialist told him, is stronger than the supporting evidence in either the Vera or Smith cases, supra. (Although not directly in point, but as bearing upon the question of whether facts as to physical disabilities may be established only by medical testimony, see Cowan v. Kerford Quarry Co., 146 Kan. 682, 684, 72 P. 2d 999; Hardwell v. St. Louis S. & R. Co., 146 Kan. 870, 876, 73 P. 2d 1120; Bull v. Patti Const. Co., 152 Kan. 618, 106 P. 2d 690.)
. We now note appellants’ contention that there was no evidence to support a finding that the defective vision is permanent or of the degree found by the trial court. Having passed the question of causal connection we find no difficulty about these findings. Claimant testified that Doctor Nelson told him the infection “was liable to reappear at any time within a period of ten years and that the ball might have to be taken out,” and that “I understood it was possible, from the injury, for it to reappear if it was ever injured again and I might lose my eyeball, was the way I understood it.” In Doctor Nelson’s letter, heretofore set out, he reported “a permanent streaking of the lens” which “leaves you with a decrease in your vision to 20/150 with very little aid from the use of glasses.” And although Doctor Small, respondent’s witness, rejected the theory that the slag could have caused the eye condition his report clearly indicates a conclusion that it is permanent in character.
As to the finding of a sixty-five and eight-tenths loss of vision in the left eye, that was Doctor Small’s testimony. The other two doctors who gave an opinion on the question fixed the loss of vision at a still higher percentage.
Our question is one of law only. Reviewing all the evidence and considering all the facts and circumstances in the light most favorable to the claimant as we are enjoined to do both by the statute and the rule often reiterated we conclude that there was evidence to support the findings and judgment.
The judgment is affirmed. | [
48,
122,
-40,
-3,
26,
98,
98,
-70,
125,
-83,
-89,
91,
-43,
-37,
-115,
121,
-25,
61,
-47,
43,
-2,
-93,
18,
90,
-46,
-73,
-5,
-59,
57,
79,
-10,
116,
77,
48,
10,
-107,
-26,
-64,
-59,
20,
-50,
4,
-85,
-18,
121,
80,
40,
62,
-80,
91,
49,
-98,
-29,
42,
28,
-33,
45,
44,
106,
-88,
-63,
-15,
-125,
13,
119,
16,
33,
3,
-98,
103,
-40,
46,
-104,
49,
17,
-83,
82,
-90,
-62,
-76,
97,
-71,
4,
98,
98,
53,
21,
-25,
-24,
-72,
14,
-44,
-115,
-91,
-111,
56,
-104,
5,
-98,
29,
116,
16,
39,
124,
-17,
85,
87,
32,
3,
-125,
-92,
-79,
79,
108,
-100,
-118,
-17,
-127,
-77,
116,
-34,
-90,
94,
5,
123,
27,
-97,
-104
] |
The opinion of the court was delivered by
Harvey, J.:
Counsel for appellees filed a motion for rehearing, which consists largely of reargument of the points previously argued and considered by the court. The arguments presented have been fully considered by the court and the motion is denied;
In the alternative appellees moved for an extension of time in which to redeem the property from the appellant. This application is considered by the court and allowed, and appellees are hereby given three months from the date of the filing of this opinion within which to redeem the real property from appellant. | [
-46,
-6,
87,
-116,
42,
96,
34,
-98,
65,
-96,
39,
83,
-81,
-54,
16,
121,
110,
47,
-28,
107,
86,
-77,
87,
81,
86,
-77,
115,
-35,
-79,
-2,
-10,
87,
76,
52,
-62,
-107,
70,
-23,
-39,
84,
6,
-121,
-101,
-52,
-39,
0,
52,
35,
84,
11,
5,
-50,
-29,
44,
29,
-63,
8,
40,
-101,
117,
-48,
-8,
-117,
-115,
127,
5,
-95,
36,
-100,
-61,
-40,
46,
-112,
57,
17,
-24,
115,
-74,
-121,
116,
79,
-101,
8,
34,
98,
0,
65,
126,
-8,
-88,
15,
90,
-115,
-90,
-111,
24,
10,
96,
-74,
-97,
60,
20,
37,
126,
110,
-107,
29,
46,
15,
-49,
-106,
-77,
79,
56,
-120,
11,
-13,
-125,
48,
112,
-51,
-94,
92,
99,
51,
-5,
-114,
-72
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.