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Opinion by
Holt, C.:
In the spring of 1879 Sophia C. H. Martin settled on the west half of the northwest quarter of section 25 and the east half of the northwest quarter of section 26, in township 33 south, range 6 west, in Harper county, Kansas. This land was then a part of the Osage trust land, and she settled upon it to secure it under the preemption laws of the United States. She resided thereon until her death, April 25, 1880. On the 6th of May, 1880, one A. G. Everett was duly appointed administrator of her estate. Afterward, on October 5, the said administrator duly entered the land in the name of and for the benefit of said Sophia C. H. Martin’s heirs, and soon after obtained a patent conveying the said land “unto the said heirs of Sophia C. H. Martin, deceased, and to their heirs.” Shortly afterward the said administrator applied to the probate court of Harper county for leave to sell said land for the payment of the debts of the estate of Sophia C. H. Martin, and notified all of these plaintiffs, as her heirs, of such application. The probate court, after hearing testimony, directed this property to be sold to pay the debts of the estate, and it was accordingly sold to James L. Nickers, who, on the 13th of October, 1881, conveyed it to George H. Coulson, plaintiff in error. The defendants in error filed their petition in ejectment against him in the Harper district court, on the 24th day of January, 1886. They are the children, and all the children, of Sophia C. H. Martin, deceased. The defendant filed a general denial, and -in addition set forth the facts as detailed above, by which he acquired possession of the land. The action was tried in the Harper district court at the January term, 1887, and a judgment rendered in favor of the plaintiffs for the possession of.the land.
We think the judgment of the có’u;rt below was correct. The defendant had no valid title to the land; the proceedings of the probate court under which this land was sold were absolutely null and void, and conveyed no title whatever in the land as against the heirs of Mrs. Martin. This tract was never her property during her lifetime, nor did it become a part of her estate after her death; the patent conveyed the land to her heirs, not to her. Chief Justice Horton, in Rogers v. Clemmans, 26 Kas. 522, speaking for the court in a similar case, said:
“The title to the land was derived by the heirs-at-law under the act of congress directly from the United States. They did not take it from the decedent, subject to the debts and costs of administration. They had the right to convey and give possession as grantees of the United States, and any attempted sale made by the administrator of the estate of Charles Mayo, deceased, was an absolute nullity, and no title was communicated thereby to any purchaser. As the land was no part of the estate of the decedent, the probate court had no power to make any order to sell the same for the debts of the estate, or for the costs of administration. The proceedings to subject this land so patented by the United States to the heirs of Charles Mayo, deceased, to pay the debts of such deceased, were not only without authority of law, but absolutely null and void, as the probate court had no jurisdiction over the land and property so patented to the minors. While the probate court has, by the constitution and statutes, jurisdiction over the settlement of estates of deceased persons, and upon due proceedings may subject the personal and real property thereof to the payment of the debts of the decedent, and also the costs of administration, it has no authority to reach out and dispose of property belonging to the heirs of a decedent which is in no respect subject to the debts or liabilities of such decedent. While the probate court has jurisdiction to hear and determine all applications made by administrators to sell the real estate of their decedents which is liable to sale, and while this necessarily involves the power of determining whether in any particular case the real estate sought to be sold is liable or not, yet where it appears from all the proceedings that the land is no part of the estate, and no way subject to the debts of the decedent, jurisdiction is not obtained. In this case the proceedings had before the probate court on January 7, 1863, granting the sale of the lands, show upon their face that the lands were preempted after the death of the intestate; therefore the probate court had no authority to treat them as a part of the estate, or to sell or otherwise dispose of them.”
In that case the heirs of the deceased were not notified of the proceedings in the probate court — in this case they were; yet we think that is immaterial. The probate court had no jurisdiction whatever over the property in question; it never belonged to Mrs. Martin, nor was it a part of her estate in any way. (Delay v. Chapman, 3 Ore. 459.)
It is claimed further that the debt of the estate for which this land was sold, was incurred by the administrator to obtain the money to pay out this land in controversy; this would not change the rule enunciated above. (Black v. Dressell’s Heirs, 20 Kas. 153.) He obtained no order from the probate court to borrow the money; in fact it would not have been in the power of the probate court to make such an order; he had under the law.no right to incumber the estate by borrowing money for the purpose of paying out on this land.
The defendant claims, however, that there was a defect of parties. This was not raised by demurrer, (it could not have been, to the petition filed in this case,) nor by the answer. It was sought, however, on the trial to prove that Sophia C. H. Martin at the date of her death was a married woman, and therefore that her husband would be one of her heirs, and the failure to join him as a party plaintiff in this action would be such a defect of parties that they could not recover. The defendant alleges that the refusal of the court to allow them to prove that Mrs. Martin was a married woman at the time of her death was error. We think that the question of defect of parties cannot be raised in the introduction of evidence. Our statute provides (Civil Code, §§ 89 and 91) that if a defect of parties plaintiff or defendant does not appear upon the face of the petition, the objection may be taken by answer; and if no objection be taken either by demurrer or by answer, the defendant shall be deemed to have waived the same. There was nothing in the answer to indicate there was a defect of parties, (K. P. Rly. Co. v. Nichols, 9 Kas. 235; Parker v. Wiggins, 10 id. 420; Humphreys v. Keith, 11 id. 108; Seip v. Tighlman, 23 id. 289; Jeffers v. Forbes, 28 id. 174; Thomas v. Reynolds, 29 id. 304.) In any event these parties were tenants in common. (Markoe v. Wakeman, 107 Ill. 251; Tarrant v. Swain, 15 Kas. 146; Freeman, Cot. and Part., §§86 and 92.) As tenants in common they had the right to bring this action against one who had no title, even though the other tenants in common were not joined in the action. (Robinson v. Roberts, 31 Conn. 145; Sherin v. Larson, 28 Minn. 523; Weese v. Barker, 7 Col. 178; Sharon v. Davidson, 4 Nev. 419; Perkins v. Blood, 36 Vt. 273; Hart v. Robertson, 21 Cal. 346; Treat v. Reilly, 35 id. 131.)
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The plaintiff in error asks a review of an order of the district court dismissing an appeal and adjudging costs against him. It appears that on October 12, 1886, a petition signed by thirty-eight persons was presented to the board of county commissioners of Labette county, asking that such section-line road, established under chapter 181 of the Laws of 1872, be opened. The application was granted, and the county clerk was instructed to give proper notice to the township trustee of the township, directing him to cause the road to be opened as requested in the petition. Within thirty days after this action was taken, William Kent, who claimed to be aggrieved thereby, executed an undertaking for appeal, and filed the same with the county clerk, and undertook to prosecute an appeal from the action of the board directing the opening of the road. The bond and transcript of the proceedings were transmitted to the clerk of the district court, where the case was docketed and entitled as “William Kent, plaintiff, v. The Board of Commissioners of Labette County, defendant;” and the matter came on for hearing in that court at the October term, 1887. A jury was impaneled and sworn, and the county board, being deemed to have the affirmative of the issue, put a witness upon the stand, whose testimony was offered; and thereupon the plaintiff Kent objected to the introduction of any evidence, and pending that objection the board of county commissioners moved to dismiss the appeal for want of jurisdiction. The latter motion was allowed, and the costs were adjudged against the plaintiff; and these rulings are assigned for error.
The action of the court must be sustained. It is admitted that Kent was the owner of land over a portion of which the road was established, but he made no claim for damages before the board of county commissioners. If such a claim had been presented and decided upon, an appeal would lie from the award in favor of an aggrieved party. (Comp. Laws of 1885, ch. 89, §7.) An appeal under the provision cited, however, takes up simply the award of damages, and proceeds upon the assumption that a highway has been legally established. (Comm'rs of Lyon Co. v. Kiser, 26 Kas. 279; Comm’rs of Wabaunsee Co. v. Bisby, 37 id. 252; Briggs v. Commr's of Labette Co., 39 id. 90.) There is a general provision in the act relating to counties and county officers, providing for an appeal by any person aggrieved from any decision of the board of commissioners to the district court, but this provision is not without limitation. (Comp. Laws of 1885, ch. 25, § 30; Linton v. Comm’rs of Linn Co., 7 Kas. 79; Fulkerson v. Comm’rs of Harper Co., 31 id. 125.) The limitations upon appeals under this provision are discussed at considerable length in the case last cited, and where it was held that many decisions made by the board in the performance of its duties are not appealable. It was there said that—
“The district court is simply a oourt, and exercises only judicial power; hence we would suppose that appeals from the board of county commissioners to the district court must be limited to such cases as require the exercise of purely judicial powers; and therefore that when the board of county commissioners exercises political power, or legislative power, or administrative power, or discretionary power, or purely ministerial power, no appeal will lie.”
That was a case where an appeal was attempted to be taken from the decision of the board refusing to set off and organize a new township, which it is empowered to do by statute, and there was a petition requesting it to exercise that power, as there is in the present case. The reasoning in that case shows that the district court ruled correctly in dismissing the appeal in the present case. It cannot be seriously claimed that the action of the board in directing the township officers to open an established road was the exercise of a purely judicial power. What was there for the board to decide in the present case? The legislature had established the road by declaring the section line in question a public highway. The questions of utility, convenience and practicability had all been considered and decided by the legislature, as well as its location, and the limits of its extent and width. (Laws of 1872, ch. 181.) No claim of damages was made before the board, and hence no question of a judicial nature was before it for decision. In directing the township officers to open the road the board was simply executing the will and decision of the legislature already expressed, and, like many other orders and directions given in the exercise of its administrative and legislative powers conferred by the constitution which may directly or indirectly affect individuals, was notan exercise of judicial power, and hence no appeal will lie.
The land-owner is not without remedy, and cannot be deprived of the damages suffered by the establishment and opening of the road. The act declaring this section line to be a highway provides that the provisions relative to damages in the general road law shall apply to all cases where damages are claimed under the act; and therefore the board has ample au tkority to allow damages either before or after the opening of the road. If damages have been suffered by the land-owner, and no notice given to him of the proposed opening of the road, and no provisions made by which he can obtain compensation for the land, he may enjoin the township officers from carrying out the direction of the commissioners. (Hughes v. Milligan, ante, p. 396; same case, 22 Pac. Rep. 313.)
It is next contended by plaintiff in error that if the appeal was rightly dismissed the court erred in adjudging costs against him. After sustaining the motion to dismiss the appeal the court ordered and adjudged “that said defendant have and recover of and from the said plaintiff its costs herein expended, taxed at $45, for which execution is awarded.” The authorities are divided upon the question of allowing costs where there is a want of jurisdiction. The rule of the federal courts is that when a case is dismissed from the court in which it is instituted because the court is without jurisdiction, no judgment for costs can be awarded. (Bradstreet Co. v. Higgins, 114 U. S. 262, and cases cited.) Some of the state courts have taken the same view. (Barlow v. Burr, 1 Vt. 488; Hopkins v. Brown, 5 R. I. 357; Derton v. Boyd, 21 Ark. 264; Norton v. McLeary, 8 Ohio St., 205; Taul v. Collinsworth, 2 Yerg. 579; Bartels v. Hoey, 3 Col. 279; Mazange v. Slocum, 23 Ala. 668.) These cases proceed upon the theory that as the court is without power to adjudicate upon the merits, it possesses no jurisdiction or power to give costs to either party, and can only strike the case from its docket. A contrary view has been taken by many able courts, and perhaps it may be said that the weight of authority is in favor of giving costs to the party who is successful in securing a dismissal of the case. (Brown v. Allen, 54 Me. 436; Call v. Mitchell, 39 id. 465; Dixon v. Hill, 8 Ind. 147; Moran v. Masterson, 11 B. Mon. 17; Jordan v. Dennis, 7 Metc. 591; Hunt v. Hanover, 8 id. 343; Elder v. Dwight Mfg. Co., 4 Gray, 201; The State v. Kinne, 41 N. H. 238; Balfour v. Mitchell, 12 Smedes & M. 629; Work v. Mallory, 25 Miss. 172; Coal & Iron Co. v. Hoffman, 39 Barb. 16; Paine v. Chase, 14 Wis. 653; Ens- worth v. Curd, 68 Mo. 282; The State v. Thompson, 81 id. 163; Blair v. Cummings, 39 Cal. 667; Winchester v. Jackson, 3 Cranch, 514; Freeman on Judgments, §121.) Many of these decisions are placed to some extent upon statutes awarding costs to the successful party in the litigation, or as the court in its discretion may deem just. In Dixon v. Hill, supra, it was urged, as it is here, that the power of the court to render any judgment except upon the question of jurisdiction depends entirely on whether the court has jurisdiction, and if there was no jurisdiction there could be no judgment for costs. The supreme court of Indiana responded that—
“This reasoning, though ingenious, is not conclusive. The court had jurisdiction of the parties. The parties have the right to appear, the plaintiff to insist on his right to have the action maintained, the defendant to urge the motion to dismiss — and the court must adjudge the matter. Upon the result of such adjudication it seems to be reasonable and proper that the prevailing party recover a judgment for his costs.”
In Missouri, where there is a provision allowing costs to the prevailing party, the court, iii supporting a judgment for costs, where the action was dismissed for want of jurisdiction, said:
“Although the court is without jurisdiction to hear and determine the subject-matter of the action, yet the party by bringing his action improvidently calls his adversary into court. And to bring the jurisdictional question before the court, the adverse party must file his motion, or other appropriate plea raising the issue. The court must pass on this plea. It has jurisdiction to determine the issue thus raised, and must adjudicate in that particular. If the motion be sustained, the party prevails on that issue, and he is, under the section of the statute above quoted, entitled to judgment for his costs.”
This view seems to be reasonable, and is conformable to our statute upon the subject of costs. It was obviously intended by the legislature that costs should be awarded in every case, as § 593a of the code provides that the clerks of the district court shall tax the costs in each case. Except where it is otherwise provided by statute, costs are allowed to the sue cessful party in a certain class of cases; and in the other cases costs are adjudged as the court in its discretion may think right and equitable. (Code, §§ 588-591.) Then, again, in providing for appeals to the district court the appellant is required to give a bond for the payment of costs, and he and his sureties are made liable for costs when the appeal is dismissed. (Comp. Laws of 1885, ch. 81, §§121,124,129.) Under a fair construction of these provisions it would seem the party who came into court and obtained a dismissal of the appeal because the court was without jurisdiction to try the appeal, would be entitled to his costs. Appeals do lie in many cases from the board of county commissioners to the district court. When an undertaking for an appeal was given, and a transcript of the proceedings before the board was filed in the district court, that court necessarily took jurisdiction of the cause so far as to hear and determine the question of the jurisdiction to try the appeal. The parties have a right to appear and submit this issue to the court; and when they come before the court, the appellant contending that the case is appealable and the appellee thabthe appeal should be dismissed for want of power to try the same, they are entitled to be heard and to have that question tried and adjudicated. In this way a real controversy is presented to the court by two adverse parties, and when the case is decided in favor of the appellee he is, under the statutes and authorities mentioned, entitled to recover his costs.
The order and judgment of the district court will be affirmed.
Horton, C. J., concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This is a condemnation proceeding similar'to the two cases just decided, wherein the same plaintiff is plaintiff, and Wilkinson and Morrow are the defendants. The first point presented by the plaintiff in error in this case is disposed of by those two cases just mentioned.
The second point is with regard to the admission of testimony. This point, however, includes several points; for the plaintiff in error, defendant below, objected on the trial in the court below to the introduction of several different portions of the testimony. With respect to the introduction of evidence by the defendant in error, plaintiff below, the record shows among other things as follows:
“Q. What in your judgment was the fair market value of that land of Dr. Turner’s just before it was appropriated by the defendant railroad company ? [Objected to by defendant on the ground that witness had not shown sufficient knowledge to answer. Objection overruled, to which ruling the defendant excepts.] A. That half-section as a farm was worth about eight thousand dollars.
“Q,. What in your judgment was the fair market value of the land just after the appropriation by the railroad comphny, exclusive of any benefits now which this lo/nd derives in common with other lands by reason of the construction of it through the lands? [Same objection, and same ruling. Defendant excepts.] A. I believe as a stock farm it destroys the value of it one-third.”
With respect to this evidence the plaintiff in error now claims as follows:
“ Evidence of the above character is improper, because it authorizes the witness to take into consideration the question of benefits, and give his opinion of the effect; and what he may consider as benefits or not, we are not informed.”
Evidently the question now presented is not the one that was presented to the court below. The one presented to the court below was really whether the witness had sufficient knowledge or not to answer as to market value. That is not the one now urged. The witness was shown to be a competent witness as to market value. But even if the present question had been presented to the court below, still we would not think under all the facts of the case that the ruling that was made would constitute material error. It may be that the words in italics should not have been added to the question. The record with regard to the evidence of the plaintiff below further shows as follows:
“ Q,. What, if any, danger is there in handling stock on a farm through which a railroad runs, if the railroad is run in a proper and legal manner? [Objected to; overruled; defendant excepts.]
“ Q,. If they run trains as railroads ordinarily run trains, in a lawful and proper manner, what, if any, danger is there to stock? [Objected to as incompetent and no foundation laid. Overruled; defendant excepts.] A. It is a good deal of danger to kill them, and to run away, and about teams running away at any time, and the horses can’t be catched at all times.
“Q,. What, if any, danger is there to a farm by reason of fire, where the road is operated in a lawful manner, with ordinary and proper care? [Objection as incompetent, irrelevant and immaterial; overruled; defendant excepts.] A. Well, there is big danger; there is danger every day, and you don’t know when.”
No motion was made to strike out any of this evidence. The land in question was in part a stock farm, and the witness was a German farmer and stock-raiser who had lived near the land in question for about 31 years, and was well acquainted with it, and knew for what purpose it was used, and knew its value. The objection now urged to the testimony is substantially as follows: It is claimed that the evidence was improper for the reason that it called for the opinion of the witness as to whether there was any danger or not, and did not call for facts upon which the jury might base their conclusions as to whether any danger existed or not. And it is further claimed that the evidence was improper because it asked the witness to draw his conclusions as to what was meant by the railroad being run in a proper and legal manner, which, it is claimed, is a conclusion not only of fact, but also of law. Perhaps the foregoing questions should not have been asked as they were asked, but still no material error was committed; for it must always be presumed, in the absence of anything to the contrary, that a railroad company will operate its road in a lawful and proper manner, and everybody must know that even then there will be some danger to stock on a farm through which the railroad is operated, and some danger from fire to buildings, etc.; and the facts with respect to this farm, the stock and the improvements, etc., upon it, and how this railroad was constructed through it, were fully shown, and also the witness’s knowledge was fully shown by examination and cross-examination, and the jury could not well have been misled by the witness’s conclusions. Hence we think that no material error was committed in permitting these questions to be asked and answered.
There was some other evidence introduced by the plaintiff and objected to by the defendant, but we do not think that any material error was committed by the court in permitting the evidence to be introduced.
Indeed, we do not think that any material error was committed in the case. We do not say that no error was committed in the case, for errors are committed on the trial of almost every case of any magnitude; but what we do say is that no material error was committed by the court in the case; and immaterial errors will not require a reversal.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by Simpson, C.:
This action was commenced in the district court of Elk county, to recover from the railroad company damages caused by a fire alleged to have been set out by the railroad company in the operation of its trains. The case was tried by a jury, and a verdict returned for $200 damages; and the special .interrogatories submitted were answered as follows:
“1. What was the. railroad known and called from which the fire started? Ans.: Atchison, Topeka & Santa Fé.”
“3. What railroad company was operating that road at the time the firing was done ? A. Atchison, Topeka & Santa Fé.”
“5. Was the person in charge of said engine guilty of either carelessness or negligence? A. Yes.
“6. Was the engine of the most improved invention and construction to prevent the escape of fire therefrom? A. Supposed to be.
“7. Was the engine in good condition as far as the escape of fire is concerned? A. Doubtful.”
“ 9. How was the fire started ? A. From the engine.
“10. From what cause did it start? A. .Carelessness of engineer and fireman; one or both.
“11. Who was to blame for the fire, and in what does the blame consist? A. Carelessness of engineer and fireman; one or both.
“12. Was the defendant guilty of any negligence or carelessness in starting the fire? A. Yes. ’
“13. If you in answer to interrogatory 12 say yes, then tell how and in what manner that negligence and carelessness consisted ; state it fully as shown by the evidence. A. Carelessness consisted in scattering fire along the track, as shown by the evidence of Mr. Black, that the fire originated in several places along the said road-track.
“14. Was the engine defective in any way? A. No, not as shown by the evidence.”
All exceptions were saved, a motion for a new trial made and overruled, and exceptions saved on this ruling. The specific complaints contained in the brief of counsel for plaintiff in error that demand serious consideration are, first, the trial court overruled a demurrer to the evidence of the plaintiff below, and it is insisted that this ruling was erroneous because “there was no legal evidence introduced by the plaintiff to show that this defendant was the owner of the railroad, or that it had leased it, or that the engine and cars which it was claimed set out the fire belonged to or were employed by it.”
I. The action was brought against the Atchison, Topeka & Santa Fé Railroad Company. The petition charged that the said railroad company was controlling and operating a line of railroad in and through Elk county known as the Chicago, Kansas & Western Railroad; and that the defendant railroad company did use an engine on said line in said county in such a condition that it was wholly unsafe. The plaintiff below proved on the trial, by the agent of the Atchison, Topeka & Santa Fé Railroad Company stationed at Howard, in said county, that he was in the employ of that company, and was paid by it; that he had been the agent at that station for four years. "He then stated the line of road, showing that it ran past the locality of the fire — and that was the only line of road that did. The locality of the fire and the line of the defendant railroad company were testified to by three or four other witnesses. The evidence of the plaintiff below made a strong prima faeie case. Even if this were not so, every deposition taken by the railroad company and read in its behalf on the trial fixed the liability (if any) on the Atchison, Topeka & Santa Fé Railroad Company; so that if there was a failure of proof originally, it was supplied by the depositions. There was no error in overruling the demurrer to the evidence, in any view that can be taken from this record. It is immaterial what the name of the local road is or was, it being abundantly and satisfactorily shown that it was operated by the plaintiff in error.
II. Complaint is made because it is alleged that there was no evidence tending to show that the fire originated from the engine drawing the train. There was the evidence of three or four witnesses to the effect that within a very few minutes after the train passed a fire started very close to the track, within two to four feet of it, and that the fire caught in several different places along the track. In the absence of all testimony tending to show in the slightest degree some other origin of the fire, it may be fairly said that the most timid mental operation applied to this state of facts would eventually reach the same conclusion the jury did. It is true that there was some very positive evidence on behalf of the railroad company that the fire was not occasioned by the negligence of its employés; but we will not weigh it, with all the other evidence, and the accompanying circumstances that “speak so strongly,” as it is in the province of the jury and the trial court to do that.
III. We do not think there is any prejudicial error in the ruling of the court in admitting evidence on behalf of the plaintiff below, or excluding that offered by the plaintiff in error. If it had all been admitted, the result could not have been changed.
IY. Lastly, the instructions are complained of, those that were given, as well as the refusal to give those that were offered by the plaintiff in error. Of the latter class, our particular attention is called to instructions Nos. 1, 2, 7, and 9.
No. 1 “instructs the jury that the plaintiff had failed to make out a case against the defendant by his evidence, and they must elect a foreman and return a verdict for the defendant.” This was very properly refused, because from this record there was a case made out of liability on the part of the defendant for the damages resulting from this fire.
No. 2 is to the effect “That the plaintiff must prove his case by a preponderance of the evidence, and to do this he must show that the fire was set out by the engine of the defendant, and that said engine was defective in construction, out of repair, or carelessness on the part of the person operating the same, whereby the fire was allowed to escape therefrom.” All the law requires is for the plaintiff to show that the fire resulted from the operation of the railroad. It might be caused from sparks from the engine, or it might be caused from ashes thrown out by the fireman, or in many other ways. A land-owner can never determine the exact manner in which the1 fire that does him damage originated, and hence the reason of the legislation in 1885. This instruction, mingling some good law with some that was bad, was properly rejected.
The7th instruction was to the effect “That before the plaintiff can recover in this case, the jury must believe from the evidence that the railroad from whence the fire started was on the date the fire was started, known as the Chicago,- Kansas & Western Railroad, and that the Atchison, Topeka & Santa Fé Railroad Company was then controlling and operating it; and unless the evidence shows both of these propositions to be true, you must find for the defendant.” In view of what we have already said on the demurrer to the evidence, it is not necessary to further comment on this instruction, except to say that we cannot conceive of any state of facts in connection with this record in which the trial court would have been justified in giving the last sentence in this instruction.
The 9th instruction is to the effect that “if the engine of the defendant was in a safe condition at the time the fire was set out, then the plaintiff cannot recover under his petition in this case.” This is founded upon the most strict construction of the allegations of the petition, and it must be confessed that it is not a very artistic pleading; and yet it would be doing violence to the essence of things to hold that the allegations of the petition were confined to a defective engine. While it is so alleged, yet it is followed by another allegation, that the damages were the result “of the gross neglect and gross negligence of the employés of the company, by allowing fire to escape from the engine.” We think there is no material error in the refusal to give this instruction. Now the instructions given are denounced by general phrases, but no specific objection is pointed out, nor objectionable statement mentioned, and hence we do not feel called upon to critically examine each one and pass upon them, but can say that they fairly embody the law of this case, as influenced and controlled by the legislation of 1885.
The last complaint is about the answers of the jury to the special interrogatories submitted. We do not regard them as so inharmonious with each other or so- inconsistent with the general verdict as to come within any of the cases decided by this court, so as to compel a new trial. Two of them are rather indefinite, but this should have been remedied at the time they were returned into court, by an application to the court for that purpose. The answers, taken and considered all together, find that the Atchison, Topeka & Santa Fé Railroad Company was operating this line of railroad at the time the firing was done; that the person in charge of the engine was guilty of either carelessness or negligence; that the engine was supposed to be of the most improved invention and construction to prevent the escape of fire therefrom; that it was doubtful if it was in good condition; that the fire started from the engine; that the carelessness of the engineer or fireman, or both, caused the fire to start; that the carelessness consisted in scattering fire along the track; that the evidence does not show that the engine was defective in any way.
From these answers there was no escape by the company from liability, and the verdict against the company naturally follows. There was some evidence to sustain the answer to every question submitted. In this state of the record we can do nothing but recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The principal question involved in this case is with reference to the validity or invalidity of a certain purchase by the board of county commissioners of Pratt county, of certain real estate to be used for a poor-farm. The authority given by statute to the board of county commissioners to purchase laud to be used for such a purpose, and to levy taxes to pay for the land so purchased, will be found in §§ 25 and 29 of the act relating to relief for the poor. (Comp. Laws of 1885, ch. 79, §§25, 29.) These sections read as follows:
“Sec. 25. It shall be lawful for the board of county commissioners, in the several counties in this state, whenever they may deem it advisable, to purchase a tract of land, in the name of their respective counties, and thereon to build, establish and organize an asylum for the poor, and to employ some humane and responsible person or persons, resident in their respective counties, to take charge of the same, upon such terms and under such restrictions as the board shall consider most advantageous for the interests of the county, who shall be called ‘Superintendent of the County Asylum” and when two or more counties shall have jointly purchased any tract of land and erected an asylum for the poor of their several counties, they shall have the power to continue such joint ownership during their pleasure; and it shall be lawful for the county commissioners of two or more counties to jointly purchase lands, erect asylums, or do other things proper and necessary for the relief and comfort of the poor within the counties forming such joint ownership as is by this act provided for their respective counties.”
“Sec. 29. To raise the sum necessary for the purchase of land, and the erection and furnishing of the buildings for such asylums, the board of county commissioners in the several counties shall have power to assess a tax on property liable to taxation for raising a county revenue, not exceeding five hundred' dollars, unless the amount of taxes to be assessed shall be submitted to a vote of the people at some general election, and a majority of all the votes cast at a poll opened for that purpose shall be in favor of such assessment.”
By virtue of the foregoing statutes an election was ordered by the board of county commissioners of Pratt county, and the election was held and the land purchased; but it is claimed that all this was void, for the reasons following:
I. It is claimed that the election was void for the reason that no record of the order of the board of county commissioners calling the election was ever made. It is true that the county clerk failed to enter of record the order of the county board calling the election, but the order was nevertheless made and published, and the election was in fact held in pursuance of such order, and the people of the county generally voted at such election, and the proposition received in its favor a vast majority of all the votes cast at such election; and no effort it would seem was ever made until this action was commenced to contest the election or to set it aside, or to have it declared illegal or void, but on the contrary it was treated as legal and valid, and the rights of third parties have now intervened; and for all these reasons we think that the election should now be held to be valid. See the following cases where records were either defective or not made at all: Gillett v. Comm’rs of Lyon Co., 18 Kas. 410; K. C. Ft. S. & G. Rld. Co. v. Tontz, 29 id. 460; C. K. & W. Rld. Co. v. Comm’rs of Stafford Co., 36 id. 121; Bigelow v. City of Perth Amboy, 1 Dutch. (N. J.) 297; Taymouth v. Koehler, 35 Mich. 22; Bank of U. S. v. Dandridge, 12 Wheat. 64, 74; Hutchinson v. Pratt, 11 Vt. 402, 421; City of Troy v. A. & N. Rld. Co., 13 Kas. 70.
II. It is further claimed that the election is void for the reason that the order of the county board calling the election submitted to the electors to be voted upon the question of a rate per cent, as the limit of the amount of the tax that might be assessed on the taxable property of the county, and did not fix, as it is claimed that the board should have done, a single and specific amount of money to be voted on, above which and below which the commissioners could not go in procuring a poor-farm fund by taxation; and the following cases are cited in support of this claim: Johnson v. Comm’rs of Wilson Co., 34 Kas. 670, 691; Mercer Co. v. P. & E. Rld. Co., 27 Pa. St. 389; Dowdney v. Mayor of New York, 54 N. Y. 186; also Burroughs on Public Securities, 273. We do not think that the authorities above cited are in point. In fact, the first case cited, that of Johnson v. Comm’rs of Wilson Co., is to some extent adverse to the plaintiff’s claim. The amount designated in that case was not a specific amount, but it was “ a sum not to exceed thirty thousand dollars; ” and yet the election in that case was held to be valid and binding. The next case, that of Mercer Co. v. P. & E. Rld. Co., might at first glance seem to be applicable; but even that case is not in point. In that case, under the statutes of Pennsylvania the county commissioners were meye instruments for carrying out the will, intention and determination of the grand jury, and had no discretionary power of their own. Under the laws of Pennsylvania the grand jury determined everything and the commissioners determined nothing. The court in that case says: “The action of the grand jury was intended to be mandatory— a command, and not merely an authority.” The other authorities cited are not in point. Under our statutes, and especially under § 29, above referred to, we think the election held in Pratt county conferred an authority upon the board of county commissioners to purchase a poor-farm for an amount greater than $500, but not for an amount exceeding the amount that a tax of eight mills on the dollar of the taxable property of the county for the year 1887 would bring. After that election the commissioners had the power to purchase any piece of land in the county'for a poor-farm, and to pay therefor whatever it might be worth, provided of course that they kept within the limits above mentioned. Their discretion was not limited and controlled under our statutes to the extent that the discretion of the board of county commissioners in Pennsylvania was limited and controlled under their statutes. There is no statute in Kansas requiring that prior to an election such as was held in Pratt county the county board should determine and submit to the electors any specific amount of money to be voted on. Sections 17 and 19 of the act relating to counties and county'officers, providing for the borrowing of money in definite amounts, have no application to this case.
III. It is further claimed that the election is void for the reason that the abstract of the votes made at the time of the canvass of the election returns by the board of county commissioners acting as a board of canvassers was not signed as provided by law. The abstract was not in fact signed by any person. This was another failure of duty on the part of the county clerk. It does not appear from the statutes that the members of the canvassing board should sign the abstract of votes, but the statute does require that the county clerk should certify and sign the same. (Comp. Laws of 1885, ch. 36, § 31.) We do not think that such failure on the part of the county clerk invalidates the election.
IV. It is further claimed that the purchase of the land was void for the reason that the land was not worth the amount which the commissioners agreed to pay for it. Now several witnesses testified that it was worth that amount, and several others testified that it was not worth that much, some of them testifying that it was not worth even half that much. In this connection the plaintiff'in error also claims that the court below erred in limiting the number of witnesses to prove the value of the land, to six on each side. Under the circumstances of this case, however, we think the court below certainly did not err. The question as to the value of the land was not directly in issue in the case, and had but very little materiality therein. The value of the land could be shown only as a circumstance tending to show either good faith or bad faith in the purchase and sale of the property. If the purchase and sale were in good faith and without fraud, it is immaterial whether the commissioners paid too much or too little for the property. Under the circumstances of the case we think that the limitation imposed by the court as to the number of witnesses was very reasonable. (Hilliard v. Beattie, 59 N. H. 462; Union Rld. Co. v. Moore, 80 Ind. 458; Everett v. U. R. Rly. Co., 59 Iowa, 243; Bays v. Hunt, 60 id. 251.)
V. It is further claimed that the time limited by the election for purchasing a poor-farm, or for levying a tax to pay for the same, had expired before the land was purchased in this case. The election, however, furnished no such limitations. The election was held in November, 1886, and it authorized the raising of a fund to purchase a poor-farm by an assessment on the next year’s valuation of taxable property not to exceed eight mills on the dollar. The proper time for levying the tax under this election would have been on the first Monday of August, 1887, (Tax Law, §83,) provided the commissioners could at that time have known that they would need the money to pay for the poor-farm within the next year, but the commissioners failed to levy the tax in August, 1887, and had not done so when they purchased the land, which was on October 6, 1887. But they still had time, after purchasing the land, to levy a tax for that year and put the tax upon the tax-roll of that year; but this action was immediately commenced and a temporary injunction allowed which prevented them from doing so; but they can still levy the tax provided they have not heretofore done so, for their failure at the proper time to levy the tax will not prevent their levying it afterward. And certainly under the circumstances of this case, their failure to levy the tax at the proper time will not invalidate their purchase of the land; and that is the only question now to be considered.
We have now examined every point presented in this case that merits consideration, and we do not think that the court below committed any material error, and therefore its judgment will be affirmed. .
All the Justices concurring. | [
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Opinion by
Holt, C.:
At the May term, 1889, of the Ness district court, the defendant was convicted of rape, and sentenced to ten years’ imprisonment in the penitentiary. From this sentence he appeals. The body of the indictment charging the crime is as follows:
“At the January term of said court, 1889, the jurors of the grand jury of said county, duly impaneled, sworn, and charged to inquire and true presentment make of all public offenses against the laws of the state of Kansas, cognizable by said court, committed or triable in said county, on their oaths do find and present, that on the 1st day of April, 1888, in the county of Ness and state of Kansas, one Jacob B. Spidle did then and there unlawfully, feloniously and carnally know one Alfaretta Salisbury, she, the said Alfaretta Salisbury, being then and there a female person under the age of eighteen years; contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the state of Kansas.
“Second count: And the jurors aforesaid on their oaths aforesaid, do further find and present, that the said Jacob B. Spidle, on the 10th day of April, 1888, in the county of Ness and state of Kansas aforesaid, did then and there unlawfully, feloniously and carnally know, ravish and .have sexual intercourse with one Alfaretta Salisbury, then and there being a female person under the age of eighteen years and of the age of seventeen years; contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the state of Kansas.
“Third count: And the jurors aforesaid on their oaths aforesaid, do further find and present, that the said Jacob B. Spidle, on the 30th day of June, 1888, in the county of Ness and state of Kansas aforesaid, did then and there unlawfully, feloniously and forcibly make an assault upon one Alfaretta Salisbury, and her, the said Alfaretta Salisbury, against the will of her, the said Alfaretta Salisbury, then and there forcibly, unlawfully and feloniously did ravish and carnally know; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas.
“Fou/rth count: And the jurors aforesaid on their oaths aforesaid, do further find and present, that the said Jacob B. Spidle, on the 13th day of July, 1888, in the county of Ness and state of Kansas aforesaid, did then and there, in and upon one Alfaretta Salisbury, unlawfully, forcibly and feloniously make an assault on her, the said Alfaretta Salisbury, being over the age of eighteen years, then and there forcibly and against her will, feloniously did ravish and carnally know; contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the state of Kansas.
“Fifth count: And the jurors aforesaid on their oaths aforesaid, do further find and present, that the said Jacob B. Spidle, on the 1st day of August, 1888, in the county of Ness and state of Kansas aforesaid, did then and there unlawfully, feloniously and forcibly make an assault upon the said Alfaretta Salisbury, and her, the said Alfaretta Salisbury, did forcibly, unlawfully and feloniously and carnally know, without the consent of her, the said Alfaretta Salisbury; contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the state of Kansas.”
In this indictment it will be seen that the defendant is charged with having committed the crime of rape upon Alfaretta Salisbury five times between the 1st of April, 1888, and the 1st of August of the same year. The testimony introduced at the trial tended to show that if the crimes were committed at all, it was in February, March and April, 1887. The state elected to stand upon the third count of the indictment, and relied upon the testimony offered to establish the offense in April, 1887. The complaining witness was at that time about seventeen years of age. She was an illiterate girl, and had some trouble with her eyes; but nothing in the record would indicate any feebleness of mind, and she appears to have been healthy and vigorous physically. The defendant, her uncle by marriage, was a married man, and had not yet reached middle age. She stated in her direct examination that he first assaulted her in February, 1887, at a place called the “cheese factory,” which her folks occupied as their residence; and assaulted her again the next month, and also in April. In her cross-examination she testified that he had perpetrated the crime of rape upon her five times, although she detailed the circumstances of only four of the alleged crimes. She gave the particulars at length, which it is unnecessary to repeat here in full. It may be stated, however, that her accounts of all the offenses are strikingly alike, even in the details of the accompanying circumstances, and told in very nearly the same language.
The evidence is voluminous. That which was offered to prove the specific offense in April, 1887, upon which the state relied for a conviction, is substantially as follows: The prosecutrix testified that when this particular offense was committed, she was in the cheese factory with her younger sisters and brothers; one of the sisters, Frances, being at that time fifteen years old, another, Tase, eleven, a brother eight, and the other children younger. The defendant came into the room where they all were, grabbed her at once around the body in the presence of her sisters and brothers, and dragged her into an adjoining room where there were some beds. When he seized her her sisters and 'brothers fled, while she, left alone with him, cried out, slapped and fought him, pulling his whiskers and hair, and telling him to behave himself; he held her by the shoulders and hands, and laughed at her, and mocked her by repeating everything she said, and finally threw her down upon the bed and forcibly ravished her. On cross-examination she said her clothes were not torn, except one sleeve of her dress; her body was not bruised, and that the act of coition did not hurt her — “not one bit”; she was not afraid, and she knew “Jake” would not hurt her. She testified that she told her mother, after the assault in February, and again the evening of this assault in April; but that she told no other person except Mr. Stidger, and then not until January, 1889, a short time before the indictment was found by the grand jury.
Tase, her eleven-year-old sister, testified in corroboration, that she was in the cheese factory in April, at the time the defendant came there; that she saw him grab her sister Alfaretta, and then she and her sister Frances ran out of the room up stairs, and looked down through a hole in the floor and saw the defendant having criminal intercourse with Alfaretta. She states that her sister was fighting and “hollering.” She testified in this connection:
“Q,. Was he lying still? A. I don’t know how he was lying.
“Q,. Was your sister lying still? A. No, sir.
“Q,. What was she doing; was she holding him ? A. No, sir.
“Q,. Did she have her legs still? A. Yes, sir.”
She also testified that she heard Alfaretta tell her mother that evening what “Jake” had done; that her mother scolded her, but that she did not hear Alfaretta tell all of it; Alfaretta had never said adythiug to her about it. The state did not call either her mother or the sister Frances. Her mother, called by the defense, testified that Alfaretta had never told her of this affair, nor of any other improper relations with the defendant; and she knew nothing of the charge until the grand jury was investigating it. Her sister Frances, who was at the time of the alleged offense fifteen years old, denies the matter in toto. There is considerable testimony to establish the fact that the reputation of the prosecutrix for truth and veracity was not good in the neighborhood where she had been living.
There are a great number of errors complained of, but we shall discuss those only that might be important if this case should be tried again. In the cross-examination of Alfaretta, she was asked the following question:
“Q,. I will ask you if you were present when the grand jury drew this indictment, and testified it was on the 13th of April, 1888, that Jake Spidle assaulted you ?”
An objection to this question was sustained. The indictment charged that the offenses were committed in the year 1888, beginning April 1, and continuing until August. All of her testimony at the trial related to offenses committed in the months of February, March, and April, 1887. This discrepancy in the dates in the indictment and the proof at the trial, was a proper subject of inquiry^ made more important by the fact that nearly two years had elapsed before a criminal prosecution had been commenced. These facts would have justified a reasonably wide range of inquiry on cross-examination, and this question, under the circumstances, was competent and material. It should have been answered.
When Frances Salisbury, sister of the prosecutrix, was placed upon the stand by the defendant, she was asked the following question:
“Q. I will ask you whether or not, during the month of April, Spidle came to your house, and yourself and your sister Tase became scared and xan up stairs, and Spidle got your sister by the shoulders and pushed her in a room, and you and your sister ran up stairs and saw what was going on down there through the cracks?” [Objected to, and objection sustained.]
This was a proper question, and should have been answered. Alfaretta, in her testimony, had said that Frances was in the room with her when the defendant grabbed her and began to drag her into the other room; her sister Tase had testified that she was also in the room with Frances, and they had run up stairs together, and looked down through the cracks in the floor and saw the crime perpetrated. The defendant was offering to introduce testimony disproving the very fact that had been sworn to by two witnesses for the state, and upon which this verdict must have been largely based. The mere statement of the question and the facts surrounding it are sufficient to show that it was error to refuse to permit the witness to answer.
We notice in the record that leading questions were asked continuously by the state, over the objection of the defendant. We believe that it is a matter largely resting in the sound discretion of the court, when and under what circumstances leading questions may be asked, but there is nothing in the record that would seem to justify the latitude given by the court in this case. The prosecuting witness was at the time of the trial nineteen years of age; was then a married woman, and although she might have had some reluctance in relating the filthy details of what she claimed to have been a crime, yet under the peculiar circumstances of the case she should have been compelled to tell her story without the constant suggestions given her during the trial. During a good part of the examination, concerning the most material and important parts of her testimony, even the language used was put in her mouth to be repeated by her. We cannot approve such a course of examination of anyone of full age, and who seems to have been a willing witness.
We deem these errors material, especially under the evidence for the state, which is very unsatisfactory. Five distinct crimes are charged in the indictment, and the testimony of the prosecutrix tends to show that there were five distinct offenses of rape perpetrated upon her by the defendant, in the period of little more than two months; that at the time there was no injury to her body, nor were there bruises or marks thereon • that her clothes were not torn, except one sleeve of her dress; that the crime of which defendant was convicted was committed in a house where the prosecutrix was with her younger sisters and brothers, one of them being fifteen years of age, another eleven, and another eight; that this matter was never talked over by her with them, and that she made complaint to her mother only directly after the offense, and that the only other party to whom she complained was a Mr. Stidger, and to him not until twenty months after the commission of the crime. Ordinarily it would have been necessary to call her mother and her sister Frances as witnesses for the state, who were said to have witnessed the crime; they were not called by the state, but by the defendant, and in testifying the mother denied that Alfaretta had ever made any statement to her, or that she had any knowledge of any improper relations between her daughter and the defendant, and the sister Frances denied the testimony of Alfaretta and Tase flatly and squarely.
We have purposely refrained from citing the testimony of the defense, and have embodied in this opinion and statement only the testimony of the state and those witnesses which the prosecutrix testified were either witnesses of the act itself, or to whom she made complaint shortly after its commission. (The State v. Burgdorf, 53 Mo. 65; Dickey v. The State, 21 Tex. App. 430; 3 Wharton & Stille’s Med. Jur., § 689; Russell on Crimes, 690.)
We recommend that the case be reversed, and remanded for new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This is an application to this court for a writ of mandamus, commanding the board of county commissioners of Bourbon county to execute and deliver to Franklin C. Smith $125,000 in bonds of that county upon a subscription to the capital stock of the Fort Scott & Allen County Railroad Company, alleged to have been made on July 23, 1869. The alternative writ alleges, among other things, that on June 6, 1871, F. C. Smith & Co., composed of this plaintiff and one John Dunn, entered into a contract to grade a road-bed for said railroad company as provided in the resolution of the board of July 23, 1869; that under the contract Smith & Co. for their services were to receive $125,000 of the bonds of Bourbon county, and bonds of other counties and townships, for the grading and building of the road-bed, etc.; that the work was to be completed on June 30, 1872; that Smith & Co. completed the road-bed in substantial compliance with the terms of the contract, and with the resolution of July 23, 1869, prior to June 30, 1872; that thereafter Smith became the owner of the interest of John Dunn in the former firm of Smith & Co.; that on July 28, 1871, after the work had been comménced by Smith & Co. on the roadbed, parties representing the Fort Scott & Allen County Railroad Company waited upon the board of county commissioners of said county and requested action on the part of the board relative to the issuing of the bonds voted by the people on August 24, 1869, under the resolution of July 23, 1869, and that the board in the resolution, among other things, entered of record the following, to wit:
“Whereas, the board having this day been waited on by parties representing the Fort Scott & Allen County Railroad Company with a request for action on the part of the board relative to the issuing of bonds voted by the people on the 24th of August, 1869, and it appearing to the board that considerable progress has been made in the work upon said railroad in this county, it is therefore ordered that the bonds aforesaid be prepared as soon as the same can be lithographed, and that they be laid in the ike-proof safe in the vault attached to the treasurer’s office, with the signature of the chairman affixed to the bonds and coupons, to await further action by the board.”
That as one of the inducements of Smith & Co. to enter into the contract, it was represented to them by the board of county commissioners and other residents of the county that the vote was all right, and that the bonds would be issued and delivered to the railroad company, so that they would receive pay for the work as soon as the work was completed in accordance with the resolution of July 23, 1869, a portion of the directors of the railroad company with which they made the conkact being the same directors selected by the county to represent it in the board of directors of the company; that upon the completion of the work by Smith & Co. the railroad company at a meeting of its directors, a part of whom were the directors selected to represent Bourbon county, accepted the railroad, the directors representing the county voting in favor of accepting the railroad, and that it was well known to all the inhabitants and citizens of Bourbon county while Smith & Co. were building and grading the road-bed, that work was being done and money expended by them, and that no objection was ever made during the time that they were grading the road-bed, nor until after it was completed, that there were any defects in the election or vote of August 24, 1869; that plaintiff and the directors believed that everything was all right; that no objections being made either by the board of county commissioners, or any of the inhabitants of the county, that the election was not legal and proper, they went ahead and completed the work in accordance with the terms of the contract and the resolution of July 23, 1869; that on July 28, 1871, a request was made by the Fort Scott ■& Allen County Railroad Company to the board that it issue the bonds voted by the people on August 24, 1869, as before stated; that on June 30, 1872, the officers of the said railroad company appeared before the board and requested that the bonds voted on August 24, 1869, be executed and delivered to the company; that the board of county commissioners declined to issue and deliver the bonds at that time; that soon after, the Fort Scott, Humboldt & Western Railroad Company, having theretofore been incorporated and organized, and been consolidated with the Fort Scott & Allen County Railroad Company, appeared before the board on September 28, 1872, and demanded the execution and delivery of the bonds which had been voted in favor of the Fort Scott & Allen County Railroad Company on August 24, 1869; that the board refused to issue the bonds, not because the road had not been completed in accordance with the terms of the resolution of July 23, 1869, nor because the bonds which had been voted with the other resources of the company were not ■sufficient to build the line, but for other reasons, and in a resolution of the board of September 28, 1872, the county required that the railroad company should perform other and different conditions to be complied with, than those set forth in the resolution of July 23,1869, before it, the board, would execute-the bonds; that this was some three months after the road-bed had been completed in accordance with the terms of the resolution of July 23, 1869, and the work had been accepted by the railroad company from the contractors, Smith & Co.; that in August, 1873, the board in open session destroyed and burned the bonds which had been lithographed and signed by the chairman and deposited in the treasurer’s office; that by reason of the failure of the county to deliver the bonds to the railroad company the railroad company was unable to deliver the bonds provided in its contract with Smith & Co. to Smith & Co., and pay them for their work; that in 1874 Smith brought an action in the United States circuit court for the district of Kansas against the Fort Scott, Humboldt & Western Railroad Company, the board of county commissioners of Bourbon county, and Bourbon county, praying that the commissioners be ordered to issue the bonds referred to, so that the company might pay him; that a demurrer to that bill was sustained by the federal court for the reason that he had no judgment against the railroad company as yet; that upon the sustaining of the demurrer, he appealed to the United States supreme court; that at the October term of that court for the year 1878, the court ‘affirmed the ruling of the United States circuit court, on the ground that there had been no assignment, legal or equitable, to Smith by the railroad company of its claim against Bourbon county, and on the further ground that, if there had been an assignment, the circuit court of the United States could not have taken jurisdiction of the cause; that on the 28th of January, 1880, Smith filed his bill in equity in the circuit court of the United States for the district of Kansas against the Fort Scott, Humboldt & Western Railroad Company, the board of county commissioners of Bourbon county, aud Bourbon county, the same being an action in equity, praying, among other things, an order assigning to the complainant the claim of the said railroad company against said county of Bourbon, and further praying that the said county of Bourbon through its proper officers be ordered and decreed to cause the said county bonds to be issued and delivered to this plaintiff to pay the indebtedness due him from the said railroad company; that issue was joined in said action by the board of county commissioners of Bourbon county, and Bourbon county, and thereafter said cause was tried and determined upon its merits, and the complainant’s bills in said action dismissed; that thereafter Smith appealed to the supreme court of the United States from the ruling of the said circuit court of the United States for the district of Kansas, and at the October term, 1887, of the supreme court of the United States, an opinion was filed in said cause affirming the judgment of the said lower court in favor of the defendants, the board of county commissioners of Bourbon county, and Bourbon county, it, the said supreme court, holding and deciding that the said circuit court of the United States for the district of Kansas had no jurisdiction of the said cause as between the plaintiff and the said Bourbon county, and the board of county commissioners thereof, 'but reversing the cause as against the Fort Scott, Humboldt & Western Eailroad Company, the court holding that under the bill this plaintiff was entitled to a decree assigning the right of the railroad company to the issue of the bonds as against the county, to this plaintiff; that thereafter, and on or about the- day of June, 1888, the proper mandate was issued from the supreme court of the United States to the said circuit court of the United States for the district of Kansas, ordering and directing the said circuit court to dismiss the bill of complainant for want of jurisdiction as against the county of Bourbon and said commissioners, and further ordering and directing the said circuit court to entertain the bill as against the said railroad company for the assignment of its right to the issue of the said bonds by the said county, to wit, under and by virtue of the subscription voted hereinbefore referred to; that on the 5th day of December, 1888, at the November term, 1888, of the circuit court of the United States for the district of Kansas, the said circuit court, upon a hearing of said cause between the complainant Franklin C. Smith and the said railroad company, caused to be entered of record the following order, to wit:
“Now, to wit, on this 5th day of December, 1888, this cause came on for hearing upon the complainant’s bill as against the defendant, the Fort Scott, Humboldt & Western Railroad Company, the plaintiff appearing by H. E. Long, his counsel, and the defendant being in default for want of answer, demurrer, or other pleading. The court, being fully advised in the premises, finds that the equities of the cause are with the complainant as against said defendant. It is therefore ordered, adjudged and decreed that the right to have issue to said railroad company $125,000 of the county bonds of Bourbon county, Kansas, as set forth in the bill of complainant herein, be and the same is assigned to the complainant; and full power is hereby given to the complainant to bring an action in his name, or in the name of the said railroad company for his benefit, against the county of Bourbon, in the state of Kansas, and the board of county commissioners of said county of Bourbon, state of Kansas, to obtain the issue and delivery of the bonds described' in the bill of complainant, as prayed in said bill herein filed by the complainant. It is further ordered that the defendant,, the Fort Scott, Humboldt & Western Railroad Company, pay the costs of this proceeding, taxed at-dollars.”
This' action was commenced in this court on December 31, 1888. The board of county commissioners of Bourbon county has filed a motion to quash the writ, and of course this must be treated in the nature of a demurrer. In our view of the case we need refer only to one matter presented, and that is the statute of limitations. It appears from the allegations of the writ that the road-bed was completed prior to the 30th of June, 1872, and that the officers of the Fort Scott & Allen County Railroad Company made a demand for the bonds in dispute on the 30th of June, 1872. It is questionable whether Smith had any valid right whatever to sue for the bonds until December 5, 1888, when he obtained the transfer from the Fort Scott, Humboldt & Western Railroad Company of its right or claim thereto, because no privity existed between him and the county of Bourbon. It does not appear from the allegations of the writ that either railroad company ever brought any action to recover or obtain possession of these bonds, or any part of them, between June 30, 1872, and December 5, 1888; therefore it is a very serious question whether on apcount of the failure of the railroad companies to bring any action, the cause of action was not wholly barred as to all parties at that time. If Smith obtained his rights from the Fort Scott, Humboldt & Western Railroad Company, he stands in its shoes. If on December 5, 1888, neither of the railroad companies could have maintained this action, on account of the statute of limitations, can Smith do so ? It appears further from the writ, that the judgment of the circuit court of the United States, in favor of Bourbon county, was affirmed by the United States supreme court, at its October term, in the year 1878. The second, or new suit against the board of county commissioners of Bourbon county was commenced by Smith on the 28th of January, 1880 — more than one year after October, 1878.
Counsel for Smith claims that under § 23 of the civil code his action is in time. That section reads:
“If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure.”
Even if the action to recover the bonds was not barred on December 5, 1888, on account of the failure of either of the railroad companies to commence any proceedings 1 to recover the same, yet as more than one year elapsed after the reversal or failure of the action jn October, 1878, before the commencement of the action on the 28th of January, 1888, § 23 does not benefit or avail the plaintiff in any way. He is too late under that section. The writ recites that Smith obtained a judgment in December, 1879, against the Fort Scott, Hum boldt & Western Railroad Company, for the sum of $267,-113.19 and costs, but it is not stated that in this action the board of county commissioners was a defendant, or in any way a party. The commencement of the prosecution of an action against the Fort Scott, Humboldt & Western Railroad Company is not the commencement or the prosecution of an action against the board of county commissioners of Bourbon county, or against Bourbon county; and therefore that action cannot be considered as staying the running of the statute of limitations. The second or new action commenced after the decision in October, 1878, was the one of the date of the 28th of January, 1880.
Upon the allegations of the writ, Smith has lost his rights under the statute of limitations, and therefore the motion to quash must be sustained.
Valentine, J., concurring.
Johnston, J,, having been of counsel in a matter involved in this litigation, did not participate in the decision of this cause. | [
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Opinion by
Clogston, C.:
Two errors are presented — first, sustaining a demurrer to the plaintiff’s third cause of action alleged in her petition; and, second, sustaining a demurrer to the plaintiff’s evidence at the trial. Both of these questions must be decided in favor of the defendant. First, plaintiff saved no exception to the overruling of the demurrer; therefore the ruling on the demurrer to the plaintiff’s third cause of action cannot be reviewed. Before a ruling on a demurrer can be reviewed in this court, exceptions must be saved in the court below.
As to the second error assigned, the record shows that there was no motion made by the plaintiff for a new trial. Before this court can review a demurrer to the testimony, or other errors occurring at the trial, a motion for a new trial must be made. None having been made in this case, no review can be had. (Gruble v. Ryus, 23 Kas. 195; Norris v. Evans, 39 id. 668.)
It is therefore recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Wedell, J.:
This was a proceeding by a divorced husband to set aside a purported judgment for alimony.
Defendant’s motion was filed in the original divorce action which was decided in 1925. The motion was based upon the ground the judgment was for alimony and as such was null and void for the reason it was indefinite in that it was made payable in monthly installments without fixing the total amount to be paid. Another question arising out of the instant proceeding pertains to the order directing defendant to pay an attorney’s fee to plaintiff’s attorneys for services rendered in resisting defendant’s motion to set aside the 1925 judgment. The trial court overruled defendant’s motion to set aside the former judgment and in response to plaintiff’s motion for an order nunc pro tunc corrected the journal entry of judgment so as to make it clearly appear the installment payments were made for the support of four minor children. Defendant appeals from those rulings and from the above mentioned order involving the allowance of an attorney’s fee.
We shall treat the rulings complained of in the order stated. For clarity we shall continue to refer to the parties as plaintiff and defendant. The portion of the journal entry of judgment relied upon by the defendant as embracing a void judgment was as follows:
“. . . that the plaintiff be and she is hereby awarded alimony for the support of herself and said minor children in the sum of sixty ($60.00) a month, payable in installments of fifteen dollars a week to begin immediately and to continue until the further order of the court; said payments are to be made to the clerk of this court and shall not be made later than Tuesday morning each week; the court hereby retains jurisdiction of said cause for the purpose of making any further or different order or orders, which it may deem necessary respecting the custody, maintenance or education of said children.”
Defendant’s motion to set aside the 1925 judgment was sustained on December 8, 1943. Plaintiff promptly filed a motion to set aside that ruling and requested the court to make an order nunc pro tunc correcting the journal entry of judgment filed July 28, 1925, upon the ground it did not conform to the order actually made by the court, at that time. In support of this last motion the trial court received and considered evidence. The journal entry of judgment discloses the court made the following specific findings of fact:
“Thereupon evidence was introduced by plaintiff in support of said motion, including the appearance docket in this case and the original trial docket sheet showing the minutes and order made by this court on July 28, 1925. After hearing the evidence and arguments of counsel, the court took this matter under advisement.
“Now on this 24th day of December, 1943, the above matter comes regularly on for decision by the court.
“After considering the evidence and arguments of counsel, and after being fully informed in the premises, the court finds that said motion should be sustained; that the order and judgment actually made by this court on July 28, 1925, did not contain an order for the payment of alimony to the plaintiff, and that no alimony was requested or prayed for by the plaintiff in her petition. That the judgment and order actually made by this court on July 28, 1925, granted a divorce to the plaintiff, granted the plaintiff the custody of the four minor children of the parties, and ordered defendant to pay the sum of $60.00 per month for the support of the minor children. That no part of said order of $60.00 per month was made or intended to be as alimony to said plaintiff, and that the journal entry as written and filed in this case at that time erroneously stated that said allowance of $60.00 per month was for alimony for plaintiff and for support money for said children. The order and judgment of this court as shown by the minutes on the trial docket was as follows:
“July 28, 1925, ‘Divorce granted plaintiff. Plaintiff given the custody of minor children, ffm. Harold, John V., Betty Jane and Victor C. Bush, and defendant ordered to pay into court the sum of $60.00 per month for support of said children. Defendant permitted to take said children at certain times as provided in journal entry. Costs taxed to defendant.’
“The court further finds that the order it made herein on December 8, 1943, in which it held that the judgment for alimony and support money in this case as entered on July 28, 1925, was void for the reason that the amount of alimony was not definitely fixed, was erroneously made without full information of the facts and records of this case, and without evidence relative to the above trial docket minutes, and that said order of December 8, 1943, should now be forthwith set aside and held for naught.”
The trial court set aside its order of December 8, 1943, and ordered the original journal entry of judgment corrected in compliance with the above findings. The 1925 order as it appears on the trial docket was made by the Hon. James A. McClure, who at that time was one of the district judges of Shawnee county. Judge McClure was not called as a witness in the instant proceedings. We are, however, advised the Hon. George A. Kline, the district judge who heard the instant proceeding, was Judge McClure’s court reporter in 1925. From an examination of the entire record in the original divorce case, including the pleadings, we cannot say the findings made by the trial court in the instant proceeding are not supported by substantial evidence. From the record it also appears the nature of the 'order actually made, and previously quoted, was recorded on the appearance docket just as it was on the trial docket.
It is true the journal entry of judgment purports to be a record of the judgment rendered but it is not necessarily the judgment actually rendered. (Tincknell v. Tincknell, 141 Kan. 873, 44 P. 2d 212; Perkins v. Ashmore, 144 Kan. 540, 61 P. 2d 888.) It is the duty of the clerk of the district court to keep a journal and to record thereon all judgments, decrees and orders of the court. (State v. Linderholm, 90 Kan. 489, 135 Pac. 564.) The power to enter judgments, decrees and orders nunc pro tunc is inherent in courts, both in law and equity, and its existence is not dependent upon any statute. (Victory Life Ins. Co. v. Freeman, 145 Kan. 296, 65 P. 2d 559; Elliott v. Elliott, 154 Kan. 145, 114 P. 2d 823.) If the journal entry fails to accurately reflect the judgment actually rendered it is the duty of the court to make it speak the truth. (State v. Linderholm, supra.)
It was established early that the record of a judgment can always be corrected so as to make it speak the truth and upon any satisfactory evidence, parol as well as written (Martindale v. Battey, 73 Kan. 92, 84 Pac. 527; Christisen v. Bartlett, 73 Kan. 401, 84 Pac. 530; Chemical Co. v. Morrison, 76 Kan. 799, 92 Pac. 1114) and that the minutes of the trial court may be presumed to be a trustworthy chronicle of events as they transpired at the trial, and that they are competent and ordinarily controlling on the question of what order was in fact made. (Aydelotte v. Brittain & Co., 29 Kan. 98; Packard v. Packard, 95 Kan. 644, 652, 149 Pac. 404; Boatman v. Boatman, 142 Kan. 107, 108, 45 P. 2d 592.)
Of course, it is not the function of an order nunc pro tunc to alter the judgment actually rendered. Its purpose is merely to correct the record of that judgment. The function, therefore, of a nunc pro tunc entry is not to make an order now for then, but to enter now for then an order previously made. (Schneider v. Schneider, 147 Kan. 621, 73 P. 2d 16.) Such an order may be made after the term as well as during the term in which the judgment is rendered. (Cazzell v. Cazzell, 133 Kan. 766, 3 P. 2d 479; Schneider v. Schneider and Elliott v. Elliott, both supra.) A notable instance of the application of this rule appears in the case of Rogers v. Bigstaff’s Executor, 176 Ky. 413, 195 S. W. 777, where the nunc pro tunc order was made fifty-five years after the rendition of the judgment. (See, also, Cazzell v. Cazzell, supra, p. 768.)
Prior to the correction of the journal entry of judgment the trial court denied plaintiff’s motion for an attorney’s fee to be paid to her attorneys for their services in resisting defendant’s motion to set aside the 1925 judgment. When the trial court subsequently heard the evidence and determined the judgment actually rendered was for the support of the minor children, it sustained plaintiff’s motion for an attorney’s fee.
Defendant concedes the statute authorizes the allowance of a fee which will insure the efficient preparation of a wife’s case and its prosecution or defense. (G. S. 1935, 60-1507.) He, however, contends the statute does not authorize such a fee for the purpose of collecting a judgment. He further argues the judgment is now unenforceable by reason of plaintiff’s laches and cites McKee v. McKee, 154 Kan. 340, 118 P. 2d 544. He also urges that since the minors are now of age the order for their support has spent its force and relies especially upon the decision in Noonan v. Noonan, 127 Kan. 287, 273 Pac. 409. On the other hand, plaintiff contends:
This was a judgment rendered in her behalf for the support of the minor children over which she was given the care and custody; that defendant violated the order by paying the installments only for approximately one year; that defendant has just recently returned to the state and in the interim shifted to her the financial burden of the maintenance, support and education of the minor children; that defendant is the moving party to set aside the order made in 1925 and that she is merely resisting his efforts to deprive her of the benefits of the order actually made; that the court in 1925 reserved jurisdiction over the subject of the maintenance, support and education of the minor children and that under all the circumstances the trial court was justified in providing her with counsel at defendant’s expense.
Concerning the contentions advanced by the respective parties on the subject of an attorney’s fee it is sufficient to say the record before us now presents no question whatsoever with respect to the actual collection of the judgment as corrected. The record before us discloses no ruling of the trial court upon that subject. The only orders from which an appeal was taken are the orders previously discussed, namely, the order overruling defendant’s motion to set aside the judgment of 1925, the order sustaining plaintiff’s motion for an order nunc pro tunc and the order allowing an attorney’s fee.
The contention the court was without power or authority to allow an attorney’s fee to plaintiff’s attorneys for their services in resisting defendant’s attempt to set aside an order intended for the support of minor children has been decided adversely to defendant’s contention. (Hipple v. Hipple, 128 Kan. 406, 278 Pac. 35; Davis v. Davis, 148 Kan. 826, 84 P. 2d 849.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is a workmen’s compensation case. On May 12, 1941, while employed by respondents in building work, the claimant fell from a ladder on which he was standing to paint the house which was being constructed, and sustained personal injuries. His employers provided hospital and medical attention and paid compensation for four weeks at the rate of $18 per week, but there appears to have been some controversy among them as to which was liable for the payments. On July 1, 1941, claimant filed with the compensation commissioner his claim for compensation. Notice was given and' a hearing had thereon, which was postponed from time to time, and on January 10, 1942, the workmen’s compensation commissioner found each of these respondents liable, also the insurance carrier mentioned; found claimant’s weekly wages at the time of his injury were $30 per week and that the payments of compensation should be $18 per week; further found that claimant was temporarily totally disabled for a period not exceeding 415 weeks, subject to review, and made an award accordingly. Respondents appealed from these findings and award to the district court, where the case was heard on March 25, 1942, and taken under advisement, and on June 5, 1942, the award made by the compensation commissioner was approved by the district court. No appeal was taken from that order.
On February 18, 1943, respondents filed with the compensation commissioner an application for review and modification of the award, alleging that final payment pursuant to the award had not been made, that the award was excessive, and that the disability of the workman had diminished. This application was heard by the commissioner on March 24 and 25, 1943, and on May 25, 1943, the commissioner modified the award previously made on January 10, 1942, and made a finding of total temporaiy disability for the period from the time of the injury up to February 17, 1943, followed by forty percent permanent partial disability for not more than the remainder of the 415 weeks. Respondents appealed to the district court from this award. This appeal was heard by the district court August 16, 1943, and taken under advisement. On September 7, 1943, the court, having considered the transcript of the evidence and the argument of counsel, found:
“ . . . that the award of the workmen’s compensation commissioner, dated January 10, 1942, and the award of the said commissioner, on review, dated May 25, 1943, should be set aside and said awards of compensation canceled for the reasons: (1) That the claimant was and is gaining an income greater than the wages he was earning at the time he was injured. (2) That the claimant has recovered from the disabilities claimed to have been caused by his accidental injury on May 21, 1941.”
Judgment was rendered setting aside both awards and taxing the costs to claimant.
The pertinent facts may be summarized as follows: On May 12, 1941, when the ladder claimant was using fell, claimant fell several feet and lighted in a sitting position on the ground. One of the respondents helped him to a doctor’s office and soon thereafter he was taken to a hospital. Though suffering some pain he was able to walk. X rays taken promptly disclosed that he had a compression fracture of the first and also of the second lumbar vertebrae, also that he had a fracture of the navicular, one of the small bones of the left wrist. His body, and also the left wrist, were placed in plaster casts for several weeks, then a steel brace was substituted for the cast on the body. At the-time of the hearing of the claim for compensation claimant’s disability at that time was not seriously contested. None of the several physicians who had treated him was called to testify. One physician who had examined him October 20, .1941, testified claimant was unable at that time to work, and that perhaps a year from the time of his injury it could be determined to what extent his injury was permanent. The compensation commissioner correctly found total temporary incapacity, subject to review.
At the hearing of the application to review and modify claimant testified and other evidence disclosed that soon after his claim for compensation was approved by the district court claimant took employment at the Sunflower Ordnance Plant near De Soto as an inspector of buildings at $55.20 per week, working eight hours or more per day, six or seven days per week. He had worked continuously, with but a few days off, at that kind of work and at that wage since about July 25,1942, to the date of the hearing, March 25,1943. The evidence was somewhat conflicting as to whether the work claimant had been doing for these several months was as difficult to perform as the painting work he was doing at the time of his injury, and there was direct conflict in the medical testimony as to whether claimant had fully recovered from the injury sustained. Our statute pertaining to review and modification or cancellation of award (G. S. 1935, 44-528), after outlining the circumstances under which such a review may be had and providing for the hearing by the compensation commissioner, contains the following:
“. . . and if the commission shall find that the workman has returned to work for the same employer in whose employ he was injured or for another employer and is earning the same or higher wages than he did at the time of the accident or injury, or is gaining an income from any trade or employment which is equal to or greater than the wages he was earning at the time of the accident or injury, . . . the commission shall cancel the award and end the compensation: . . .”
Counsel for claimant, as appellant here, argues that there is no substantial, competent evidence to sustain the trial court’s finding that the claimant has recovered from the disabilities caused by his accidental injury. The argument upon this point really goes to the weight to be given to t'he testimony. Without taking space to set it out at length an examination of it clearly discloses positive evidence by the only physician who had ever treated plaintiff and who testified at any of the hearings that claimant had fully recovered from the injuries sustained, and is regarded as industrially sound.
With respect to evidence that claimant has been employed at a salary in excess of what he was receiving at the time of his injury, counsel cite McGhee v. Sinclair Refining Co., 146 Kan. 653, 73 P. 2d 39, and authorities cited therein, where it was held:
“In an action to recover under the workmen’s compensation act, the fact that a workman returned to work for the same employer for whom he was working at the time of his injury, for greater wages than he was receiving at the time of his injury, does not preclude a finding that he suffered partial permanent disability when a finding of such disability was sustained by other competent evidence.” (Syl. ¶ 1.)
That case is not controlling here for the reason, first, that the trial court did not find that the workman sustained permanent, partial disability, but on the contrary found that he had recovered from the disability sustained by his accidental injury, and second, the McGhee case was decided upon a hearing of an application for compensation and was not upon an application to review and modify under G. S. 1935, 44-528, the wording of which makes it mandatory upon the court to cancel the award and end the compensation upon a finding that the workman is receiving higher wages than at the time of his injury. In this connection see Beal v. El Dorado Refining Co., 132 Kan. 666, 296 Pac. 723. Prior to 1927 the statute used the permissive word “may.” (See Mansfield v. Crane, 116 Kan. 2, 225 Pac. 1087.) Since the amendment of the statute the court, in Dobson v. Apex Coal Co., 150 Kan. 80, 91 P. 2d 5, applied the statute in its mandatory form. We see no reason why it should not be so applied here.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Valentine, J.:
The only question presented to this court in this case is, whether it is the duty of the state auditor to issue his warrant upon the state treasurer to pay a debt due to the contractors for work done by them in the construction of the state house, where it is admitted that everything is regular," and legal, and valid, and that a sufficient fund has been provided for by statute, known as the “ state-house fund,” with which to pay such debt, and where the warrant should be issued except for the reason that for the time being there is no money in the state treasury belonging to the aforesaid state-house fund with which to pay such warrant if it were issued.
In the year 1879, and since, at every regular session of the legislature, taxes have been levied for the purpose of creating a state-house fund, to be used under the direction of a board designated as “the board of state-house commissioners” for the purpose, first, of building the west wing of the state house, second, of repairing the east wing thereof; third, of erecting the central portion thereof; and, fourth, of making such repairs as might from' time to time become necessary. The principal question, however, to be considered in this case, is with reference to the true construction and interpretation of the act of 1889 levying taxes and creating a fund and making appropriations of the same for the construction of the central portion of the state house, and for making repairs of the wings thereof. (Laws of 1889, ch. 51.) The act provides for levying for each of the years 1889 and 1890, a tax of two-fifths of a mill upon each dollar of the taxable property in the state, and then enacts that “the proceeds of the levy herein provided for are hereby appropriated for the exclusive purpose of continuing the construction of the main or central building of the state house,” etc. We think the appropriation provided for by this act was in prcesenti. It was an appropriation dating from the time of the taking effect of the act. The legislature says in the first section of the act that • the proceeds of the levy “are hereby appropriated,” using the present tense, and does not say that such proceeds shall at some future time.be appropriated. At the time this act was passed a considerable amount of the fund provided for by the levies of the several previous years from 1879 up to the present time for state-house purposes had not yet been collected or paid into the state treasury, and much of it might not be collected or paid into the state treasury for some years .yet to come; and by §2 of the aforesaid act of 1889, the legislature enacted as follows:
“Sec. 2. That the money in said state-house fund unex pended at the expiration of the present fiscal year, and also all money which shall come into said fund by virtue of taxes heretofore levied, be and is hereby reappropriated for the purposes specified in section 1 of this act.”
It will be seen from this section that the legislature “re-appropriated” any money that might subsequently and for the next two years come into the state-house fund by virtue of previous levies of taxes for state-house purposes. Now this money could not have been reappropriated unless it had previously been appropriated, and its previous appropriation was made in precisely the same manner as the appropriation of the proceeds of the levies for the years 1889 and 1890 was made. Hence it will be seen from this language also that the legislature intended by its use of the word “appropriated,” in the first and third sections of the act of 1889, a present appropriation.
Also, from the beginning of 1879 up to the present time the state-house commissioners have let contracts and had work done upon the state house for which the contractors were to receive compensation, whether any money was at the time actually in the state treasury, or not; and unless the appropriation made in each of the several years shall be considered as having been made at the time of the taking effect of the several acts making the same, then at least since 1886 these acts of the state-house commissioners have been in violation of law; for under the statutes hereafter cited they had no right to pledge the credit of the state in any manner for any greater sum than was appropriated. (Laws of 1886, ch. 103, §2; Laws of 1887, ch. 37, § 1; Laws of 1889, ch. 51, ,§ 3.) That provision of the act of 1886 above referred to applies to officers in general. The provisions of the acts of 1887 and 1889 above referred to have relation only to the board of state-house commissioners. The act of 1887 provides that “the board of state-house commissioners are hereby prohibited from making any contract whereby the expenditure of any greater sum of money shall be required than is herein appropriatedand the act of 1889 provides substantially the same thing, and is in almost the same language. And yet the board of state-house commissioners has at all times proceeded to make contracts whereby the expenditure of money would be required, whether there was any money in the state treasury, or not; and the legislature, knowing this, passed the acts of 1887 and 1889 without further prohibition, and of course meaning that the appropriation of the state-house fund was an appropriation of all the fund that the levies would bring, and an appropriation in prcesenti, and having from the time of the taking effect of the act making the appropriation, and was not merely a future appropriation, to come into force only as the proceeds should be actually paid into the state treasury, and an appropriation of only so much of the proceeds as should be at any particular time in the state treasury. Of course, under the terms of the statute the appropriation is only of the proceeds of the levy of the taxes, but evidently the' legislature meant a present appropriation of the proceeds to be collected or realized in the future, and not a future appropriation of such proceeds.
But taxes collected under a levy made by or for the state certainly become proceeds of such levy long before they reach the state treasurer’s office. They are proceeds of such levy as soon as they are paid into the offices of the various county treasurers of the state, and do not remain something else than proceeds until they reach the state treasurer’s office. "When they are received by the county treasurers they then become public funds, and belong to the state, and cannot then or afterward be used for any other purpose than the purpose for which they were appropriated. And how much of the proceeds of the various levies from 1879 up to the present time, for statehouse purposes, remains in the hands of the various county treasurers, neither the state auditor nor the state treasurer at any time knows. It is true that the constitution provides that “No money shall be drawn from the treasury except in pursuance of a specific appropriation made by law, and no appropriation shall be for a longer period than two years.” (Const., art. 2, § 24.) Of course whether the auditor issues his warrant, or not, it is certain that no money will be “drawn” from the treasury upon such warrant unless there is a sufficient amount of money belonging to the state-house fimd in the state treasury from which such warrant might be paid. Hence the constitution will not be violated in this respect. We think the appropriation is sufficiently specific, for it is an appropriation for the whole amount of the proceeds of the levy, and such proceeds are to be used for a particular and specific object or purpose, and for no other object or purpose; and the amount of the appropriation can be approximately ascertained as soon as the assessment is made. The state-house commissioners have from the beginning let contracts and created debts against the state whether any money belonging to the state-house fund was in the state treasury, or not. Now if such debts may rightfully be created, then why should not the state furnish proper evidence of such debts ? It does in fact in one way furnish some such evidence, and has done so from the beginning, for the state-house commissioners and their superintendent of construction in all cases issue to the contractors vouchers for the amount of money due to the- contractors. These are certainly some evidences of the debts owing by the state to the contractors, and if such vouchers may legally be given whether there is any money in the treasury, or not, then why may not the auditor’s warrant be issued? Chapter 168 of the Laws of 1879, among other laws, governs in this case. (See Laws of 1885, ch. 186, §2.) Section 12 of chapter 168 of the Laws of 1879, reads as follows:
“Sec. 12. That upon vouchers itemized and duly authenticated by the superintendent of construction as being in accordance with the conditions of the contract or contracts for material furnished, or work done, or service rendered, and the board of commissioners being satisfied of the correctness of the same, it shall be the duty of the said board, through its president and secretary, to certify said accounts to the auditor of state, who shall draw his warrant upon the treasurer of state for the payment thereof out of the building fund provided for in this act, and the treasurer shall pay said warrants out of said fund upon presentation thereof to him in accordance with the general provisions of law.”
And § 3 of chapter 51 of the Laws of 1889 reads as follows:
“Sec. 3. That the auditor of state is hereby authorized and directed to issue the warrants necessary to properly carry out the provisions of this act, and the board of state-house commissioners are prohibited from making any contract whereby the expenditure of any greater sum of money shall be required than is herein appropriated.”
"We think under these sections it is the duty of the auditor of state, whenever the vouchers from the state-house commissioners are presented to him, showing that the state is indebted to the contractors for any specified amount, to immediately issue his warrant to such contractors for 47 such amount, whether there is any money in the state treasury, or not. But it is objected that if the auditor issues his warrant when there is no money in the state treasury with which to pay such warrant, and the payment thereof is thereby delayed, the state may have to pay interest. Now if this is true, is there anything wrong in it? And if it is wrong, then should not all interest laws be abolished ? For if it is wrong for the state to pay interest on its debts, then it would also be wrong for any debtor to pay interest on his debts. It is also said that if interest is paid on these debts, then that the whole amount of the debts for state-house purposes with interest might be more than the amount realized from the levies, or in other words, more than the appropriation, and that the state-house commissioners might in that way violate the law. There is no question of this kind, however, in this case, and in all probability the state-house commissioners will see to it in letting contracts and in creating indebtedness against the state, that the state shall not become indebted to a greater amount than can be realized from the levies and appropriations for state-house purposes."
It has also been suggested that with this construction of the statute the state-house commissioners might let the contracts and have all the work done immediately after the appropriation is made, and long before a sufficient amount of money to pay for the construction of the work could be realized from the taxes, and that the state might therefore be required to pay a very large sum of money as interest. Now public trust and confidence must be reposed somewhere, and we suppose that the state-house commissioners will always look to the best interests of the state. If the necessities of the state should require that the work should be done without delay, notwithstanding that interest might be required to be paid on the debts contracted for such work, then the commissioners would probably have the work done without delay; but if the best interests of the state should require a different course, they would probably pursue a different course. In practice a different course has generally been pursued.
Before closing this opinion, and as some evidence of the general understanding of the legislature in making appropriations as to what an appropriation includes, we would further state that generally more money is appropriated by the legislature for each particular object than there is money in the state treasury at the time of the passage or the taking effect of the act that could be used for such object.
After a careful consideration of all the questions involved in this case, and with some doubts, we have come to the conclusion that the auditor should issue the warrant prayed for by the plaintiffs.
As furnishing some support to these views, see the case of The State v. Hoffman, 35 Ohio St. 436, 443.
The peremptory writ of mandamus will be issued as prayed for.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The errors alleged as grounds for reversal are, that the court erred in its instructions to the jury upon the question of the defendant’s allowing and permitting a hedge to grow upon its right-of-way, thereby obstructing the view. The instructions objected to are as follows:
“2. It is averred in the petition that plaintiff’s said two cows were struck and killed by one of defendant’s trains ona its railroad while said cows were being driven along a public road, and at a crossing of said railroad; that the killing of said cows was caused by the negligence of the defendant and its agents and servants, in permitting a hedge to stand upon its right-of-way so as to prevent the approach of its said train from being seen, and by failing to sound the whistle of its locomotive, so as to give warning of the coming of its train.”
“6. The jury are instructed that if you believe from the evidence that the defendant company permitted and suffered a hedge to stand upon its right-of-way so as to obstruct materially the view of the track, and of approaching trains by persons about to cross the railroad, on the crossing in question, and that but for such obstruction the injury in question would not have happened, then the company is liable in this case for the injury so caused, unless you further believe from the evidence that plaintiff’s own negligence contributed directly to the injury.”
The court also, at the request of the railroad company, submitted certain questions of fact to the jury. The eleventh and twelfth questions and answers are as follows:
“11. Did the person in charge of these cows take any precautions as she approached this crossing, to ascertain whether any 'train was coming or not, prior to letting the cattle get upon the crossing ? A. Yes.
“12. If the jury answer the last question affirmatively they may state fully what acts the person in charge of the cattle did toward ascertaining, or what steps she took to find out whether a train was coming or not. State fully. A. We believe that she took the same precaution that she did in always crossing, by listening and looking as far as she could; the defendant being behind-time with its train, it was as much the defendant’s place to use an extra precaution on the part of the train, being off time, to give an extra signal. Furthermore, the defendant was negligent in leaving the hedge in the condition it was to prevent the seeing or hearing the approach of the train.”
It is claimed that the jury in these answers required of the defendant, under the circumstances, a duty not shown by the evidence, and that by reason of that fact the motion for a new trial ought to have been granted. It seems to us that this case was decided by the jury upon the ground that the railroad company was negligent in permitting a hedge to be grown upon its right-of-way so as to obstruct materially the view of its track and approaching trains, and not upon anything else. An instruction was given imputing negligence to the railroad company on account of the hedge upon its right-of-way, and the jury specially found the company was negligent in leaving the hedge in the condition it was in. All the evidence shows that both the plaintiff and his daughter, who was in charge of the stock, were well acquainted with the crossing, and knew of the hedge, its height, and its condition. The hedge was from fifteen to twenty-five feet on the right-of-way, and twenty-five to thirty-five from the track. If the hedge in any way prevented the person in charge of the stock from seeing or hearing the approaching train, then, of course, being well acquainted with the hedge and the premises, additional precaution should have been taken to see whether any train was coming.
We think the instruction concerning the hedge upon the right-of-way was misleading, and that the verdict was returned upon a wrong theory. If the growing of a high hedge upon a right-of-way near a public crossing is negligence on the part of the railroad company as to a traveler or person upon a public highway, and thoroughly familiar with the hedge, the crossing, and adjoining premises, then also a high fence inclosing a railroad track would be an act of negligence on the part of the company, and permitting trees to grow upon the right-of-way near a public crossing would also be negligence. If the jury had based the verdict upon the failure of the railroad company to sound the whistle of its locomotive as prescribed by the statute, the testimony concerning the hedge would not have been erroneous, nor affected prejudicially the case. The bill of particulars expressly alleged that “if the whistle had been sounded as prescribed by law, the person in charge of the stock could have prevented the injury.” Yet under the instructions of the court the jury were permitted to return a verdict against the company without regard to whether the whistle sounded, or not. The jury made a great many special findings, but they made no finding, however, that there was any failure of the company to sound the whistle to its locomotive. In addition, the jury specially found that the person driving the stock was on horseback; therefore she.might, as she approached the crossing, have ridden ahead of the stock and ascertained whether any train was coming, before she started the stock across the track.
The judgment of the district court will be reversed.
Valentine, J., concurring.
Johnston, J., dissenting. | [
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Opinion by
Clogston, C.:
This was an action originally brought by Hamilton Irish, plaintiff in error, against Ed. Foulks and Robert M. Blair, to foreclose a mechanics’ lien upon lot 18 in Maxwell’s Addition to the town of Stafford, Kansas. At the trial of the action, Foulks made default, and Blair answered setting up that he was the owner of the lot in controversy, and that he had never authorized the purchase of the lumber and material claimed in plaintiff’s petition. Judgment was rendered on default against Foulks and in favor of Blair, denying the plaintiff a lien upon the lot in question. This judgment was rendered in October, 1884. After the rendition of this judgment and before any steps had been taken to set it'aside, Blair sold the lot to W. E. Gregg, and Gregg afterward sold it to Price and Price, the defendants in error herein. In April, 1885, plaintiff filed a petition in the district court praying for a new trial in the action against Foulks and Blair, and in June, 1885, the petition was heard by the district court — Foulks again making default. Upon such hearing the court set aside the judgment as to Foulks and refused to set aside the judgment as to Blair. No action was taken to have said judgment reversed or set aside as to Blair. The court then ordered that Gregg be made a party defendant in the action, which was done, and afterward, Price and Price of their own motion were made defendants and filed their answer, setting up as a defense thereto that they were the purchasers of the property from Gregg, in good faith, and without notice of any intention on the part of the plaintiff to have said judgment opened, and that they purchased the same long before the petition was filed to set aside the judgment, and also alleged and set up the original judgment in favor of Blair and against the plaintiff, denying plaintiff’s lien, and also the judgment of the court refusing to set aside and vacate the judgment as to Blair; Gregg disclaiming any interest in the property. Upon the issues so joined, trial was had, and judgment again rendered against Foulks on default, for $955.55, and in favor of the defendants, denying plaintiff’s lien upon the property. Of this judgment the plaintiff complains.
Plaintiff now insists that the court erred in refusing to render judgment establishing a lien upon the property, and bases that claim upon the fact that the statute gave him a year in which to file a petition to set aside the judgment; and he insists that during the pendency of that year defendants could obtain no right or interest in the property that would interfere with his lien. This question need not be determined. The plaintiff failed to establish his lien against Blair in the first instance, while Blair was the owner of the property, and as long as that judgment stands unreversed it will protect his grantees, the defendants; and as no effort was made by the plaintiff to have that judgment reversed, he cannot complain because the court refused to establish the lien against the property. While we are free to say that upon the record as brought here, plaintiff perhaps ought to have had a lien in the first instance, yet the court on the evidence held against it, and that judgment is binding and conclusive, and plaintiff has no cause of complaint here.
It is therefore recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This is an action in the nature of quo warranto, brought originally in this court by H. L. Brown against R. C. Jeffries, to oust the defendant from the office of county commissioner of the first district of Rush county. The petition alleges, among other things, that on the 8th day of November, 1887 — that being the regular time for the election of a member of the board of county commissioners of Rush county for the first district — the plaintiff and the defendant were candidates for that office; that at said election in the district the plaintiff received 308 legal votes for the office of commissioner, and that the defendant received 303 only; that no other person was voted for at the election for the office; that plaintiff received a majority of all of the legal votes for the office, and that the returns of the election were made according to law; that on the 11th day of November, 1887, they were duly canvassed by the board of county canvassers of Rush county, and that upon the face of the returns the plaintiff was duly elected to the office as county commissioner of the first district of the county.
The petition further alleges that the plaintiff at the date of the election was a voter, resident, and tax-payer of said first district of Rush county, and in all respects eligible to the office to which he was elected; that after the returns of the election had been canvassed, the plaintiff duly qualified in the manner prescribed by law, and had his bond properly approved; that subsequently he demanded the office of R. C. Jeffries, the defendant, and has also demanded the office of the board of county commissioners of said Rush county; that the defendant refused and continues to -refuse to surrender to the plaintiff the possession of the office in which he has unlawfully and improperly intruded himself.
The answer of the defendant admits that the plaintiff, according to the returns of the election, received a majority of all the votes cast for the office of county commissioner of Rush county for the first district, and that subsequent to the canvass of the votes he qualified as such officer and demanded possession of the office. The answer further alleges that 230 votes cast for the plaintiff at the election were illegal, and should not be counted; that the election board of Center township in the district formed a conspiracy to defeat a fair expression of the popular will, and refused to perform their official duties as members of the election board; that the persons who acted as the members of the election board for Center township knowingly received illegal votes and counted a large number of duplicate votes for the plaintiff; that the plaintiff was present when the returns were canvassed by the board of county canvassers; that he admitted the frauds committed at the election in his interest, and acquiesced in the action of the canvassing board in declaring the defendant elected as county commissioner from the first district of said Rush county; that he, in the presence of the canvassing board at said time, refused to accept the office of commissioner, and then and there voluntarily waived all his right to the same; that subsequently the defendant qualified and took possession of the office and is now discharging his official duties as a member of the board of county commissioners of the county of Rush.
Since the answer of the defendant was filed, no attention whatever seems to have been paid to the interests of the defendant. When the case was called for trial, the attorneys for the defendant failed to appear and no testimony was on file sustaining the allegations of the answer, nor has any testimony ever been presented to this court supporting or tending to support the allegations of the answer as to the illegal votes and frauds in the election of November 8th. Under the admissions of the answer to the effect that upon the face of the returns of the election of the 8th of November, 1887, the plaintiff received the majority of all the votes cast for the office of county commissioner of the first district of Rush county, and the other concessions in the answer, the plaintiff is entitled to the office claimed by him, unless the allegations of the answer avoiding such election for fraud or illegal votes be sustained by testimony. In election contests, the face of the returns controls, unless for good and sufficient reasons the returns are set aside, or illegal votes are shown to have been cast for the person claiming his election under the returns. The duty of the canvassers is mainly ministerial, in counting the votes returned and making a statement of the result. (Steele v. Martin, 6 Kas. 439.)
“Where returns are regular in form and genuine, a canvassing board may not reject and refuse to canvass them on the ground that illegal votes had been received, or other frauds or irregularities practiced at the election. Such matters are to be inquired into by a tribunal for contesting elections, or in quo warranto proceedings. It is a common error for a can vassing board to overestimate its powers. Whenever it is suggested that illegal votes have been received, or that there were other fraudulent conduct and practices at the election, it is apt to imagine that it is its duty to inquire into these alleged frauds, and decide upon the legality of the votes. But this is a mistake. Its duty is almost wholly ministerial. It is to take the returns as made to them from the different voting precincts, add them up, and declare the result. Questions of illegal voting and fraudulent practices are to be passed upon by another tribunal.” (Lewis v. Marshall Co., 16 Kas. 102.)
When the returns of the election for the office of county commissioner from the first district of Eush county were canvassed, the board should have taken the returns made from the different voting precincts of the district, added them up, and then declared the result. This would have given the certificate to the plaintiff. If there were any questions of illegal voting or frauds in that election, the board of canvassers ought not to have passed upon or determined that matter. Such things are to be passed upon in another way and by another tribunal. If, however, the allegations of the answer had been established upon the trial, we would have declared that the defendant and not the plaintiff was legally entitled to the office. Under the issues made up in this case the burden rested upon the defendant, and he is the party who ought first to have introduced his testimony. (Civil Code, § 275.)
For some reason or other there has been negligence on the part of the defendant or his counsel, as no testimony has been filed or produced to support the allegations of the answer. We are therefore compelled to declare the plaintiff entitled to the office which he claims, and judgment of ouster against the defendant will be rendered accordingly.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
It is first insisted that this case was prematurely tried. This claim, however, is decided adversely in Railroad Company v. Wilkinson, just disposed of. The facts in that case upon this point are the same as those in this.
Again, it is insisted that the court should have given the instruction prayed for by the railroad company, “that an independent action for damage to the land in question, or crops, would lie against the company by reason of its damming or obstructing a natural watercourse.” In support of this, it is claimed that there was testimony tending to show that the embankment of the railroad prevented the water from flowing in a natural watercourse, as such a course is defined in Palmer v. Waddell, 22 Kas. 352. The testimony of the depression or slough on the premises of the land-owner was in substance as follows. Mr. Turner testified:
“Q. Are you acquainted with the natural drainage of this land of Morrow’s, and the lands northeast of it? A. Yes, sir.
“ Q,. How are they drained, if you know ? A. There is a slough that arises on section 31, north of the road running from here to Neosho Falls, and runs across the public highway through the north half of the northwest quarter of 36, and it runs down within — well, I would say, three or four rods of Morrow’s house; and it runs in a southeast direction from his house, through the farm.
“ Q,. As it is now, how will that naturally be affected ? A. There is no apparent drainage at present; that is, the railroad has cut him off from Harter’s land, and they have made a cut there, and the cut is considerable deeper at the center, as far up as where this ravine runs, than it is at the creek. I believe that the water, to run over the ditch at all at the opening at the creek, would cover Morrow’s land at any ordinary time.
“ Q,. About what is the volume of water that flows down that natural drainage in an ordinary season ? A. That is a slough that in an ordinary shower will carry three to four feet of water. I have often seen it four feet deep of a rain. It is not a stream, or running water, but a slough that drains nearly all of the south half of the southwest quarter of section 31; the head of the ravine runs up pretty well to the northeast corner of section 31.
“ Q. How much does it drain altogether ? A. The south half of that quarter, and the eighty acres between that and Morrow’s land and his own farm.”
In relation to the manner in which the water approached the farm:
“ Q. I will ask you if there was a draw that drained upon the west side of the place? A. There is a strip of land that runs low, a little south of the northwest corner of his farm, that Mr. Harter has left as a water-way, and he has not plowed it for some time; it is in a bend here, and in ordinary time when the creek overflows, it runs through this gap in a southeast direction, and runs into the south line of Morrow’s place, and continues on a line and leaves Morrow’s place not far from where the line crosses between him and Harter, and it runs on through Harter’s land, and it enters into the other slough about, I would say, a quarter east of this public road running north and south, inside of Harter’s premises.”
It is very clear from this testimony that the depression or slough lacked the essential features of a watercourse. For a watercourse there must be a channel, a bed to the stream, and not merely low land or a slough over which water flows. (Palmer v. Waddell, 22 Kas. 352; Gibbs v. Williams, 25 id. 214.)
We think there was not sufficient testimony tending to show that any natural watercourse was obstructed by the embankment of the railroad, and therefore that the action of the court in refusing the instruction asked was not erroneous.
The judgment will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson C.:
On the lOtb day of March, 1887, Mitchell and Minx made an exchange of properties, whereby Mitchell conveyed to Minx one hundred and sixty acres of land incumbered with a mortgage of $300, and Minx conveyed to Mitchell two acres of ground adjoining the city of Lincoln, upon which there was a mortgage of $450, Minx paying Mitchell the sum of $150 as the difference between mortgages. When the trade was made, Minx pointed out what he claimed and represented to be the corners of the two-acre tract, and represented that it extended as far west as the east line of Second street extended; and Mitchell, relying on this representation, and believing it to be true, made the trade, induced by this statement. In a short time after the trade was consummated Mitchell discovered the true boundaries of the two-acre tract, and found that it did not extend to the line of Second street, but was east of such a line more than 100 feet; that it did not embrace certain high ground pointed out by Minx, and that it included very low ground.
On the 7th day of July, 1887, Mitchell^ commenced this action in the Lincoln county district court, to recover damages because of the false representations made concerning the location of the land traded him by Minx. At the October term, 1887, a trial was had by a jury, and a verdict and judgment rendered in favor of Mitchell for $417 and costs. The jury returned answers to the several questions submitted to them, as follows:
“1. Did the defendant, L. V. Minx, know the exact locality of the corners of the tract of land which he conveyed to plaintiff? A. Very nearly.
“2. How much land did defendant Minx agree to convey to the plaintiff? A. Two acres.
“3. How much land did defendant convey to plaintiff? A. Two acres.
“4. Was plaintiff duly informed as to the locality of the house on the tract conveyed, and if so, where was it said to be located with regard to the points of the compass ? A. Yes; near the northeast corner.
“5. Was Second street extended at the time of the trade? A. No.
“6. Did defendant Minx represent to plaintiff that Second street was extended ? A. No.
“7. If you answer that Second street was not extended, did plaintiff know it at the time of the trade? A. He did.
“8. What was the value on March 10, 1887, of the land conveyed to Mitchell by defendant ? A. $1,000.
“9. What was the value on March 10, 1887, of the tract conveyed to Mitchell taken together with the piece between such tract and Second street ? A. $1,400.”
The defendant below now brings the case here for review, and insists upon the following assignments of error: First, that the court erred in permitting the plaintiff below to prove that shortly after he acquired the title to the land traded for from the plaintiff below, he mortgaged it for a large sum of money; second, the court erred in permitting a cross-examination of the defendant below that was not warranted in the examination in chief; third, that the court erred in refusing to give instructions numbered seventh, tenth and eleventh, requested by the defendant below; fourth, the verdict was not sustained by the evidence, and was excessive. There are other causes that are suggested as sufficient for a reversal.
The plaintiff below introduced evidence over the objection of the plaintiff in error, showing that on the 23d day of March, 1887, the plaintiff in error had executed and caused to be recorded two mortgages upon the one hundred and sixty acres of land that he had received in trade from the defendant in error, for the sum of $1,500 and $150 respectively, with interest at 7 per cent, per annum. It is now claimed that the admission of this evidence is material error, because it is not responsive to any of the issues made by the pleadings in the case; is a separate and distinct transaction having no connection with the trade; that its sole object was to create a prejudice against the plaintiff in error; and for other reasons. This trade was completed by an exchange of titles, on the 10th day of March, 1887, and the land traded by defendant in error to the plaintiff in error was incumbered by a mortgage of $300, the payment of which was assumed by the plaintiff in error.
It is now said that the mortgage executed by the plaintiff in error on the 23d of March, thirteen days after the exchange was completed, by the delivery of the deeds, is competent to be admitted in evidence against the plaintiff in error for two reasons: First, to show a reason why Mitchell did not bring his action to rescind the contract of exchange; and second, as bearing on the good faith of Minx in the transaction; as tending to show that he had some reason for his hasty action incumbering the land received from Mitchell. As to the first reason given, we have no hesitation in saying that it is not good. Mitchell had the election either to bring the action he did, or to rescind the contract, if the property had remained in the exact condition it was at the time the exchange was made. The existence of the subsequent mortgage might necessarily compel him to resort to his action for damages, but no explanation was required of the jury why the action was instituted in this particular form. The sufficiency of the second reason must be determined by the application of certain principles of the law governing the admissibility of evidence. The evidence offered must correspond with the material and necessary allegations, and be confined to the point in issue. In this case the issue was this: Was the plaintiff below induced to make the exchange by the misrepresentation of Minx as to the corners, boundaries and location of the two-acre tract? This constituted the transaction that was wrongful. This transaction consisted of a group of facts so connected together as to be referred to by a single legal name, as a wrong or fraudulent misrepresentation to induce an exchange of land. Every fact that is a part of that transaction is a relevant one, and every other fact that tends to support or rebut a relevant fact, although the explanatory fact is not in issue, and although if it were not part of the same transaction it might be excluded, is admissible to prove the issue. In this case the evidence of the execution of mortgages by Minx to Neal and the Western Farm Mortgage Company, does not put in issue any question affecting the validity of these mortgages, but it is sought to show the existence of these mortgages as a circumstance from which an inference might be drawn of the bad faith of Minx in making the trade with Mitchell, and then so placing the land received from Mitchell in such a condition that he would encounter legal difficulties in his attempt to redress the wrong. Now, whether any particular fact, such as the existence of these mortgages, is or is not a part of the same transaction as the facts in issue, is a question of law; and the exact question to be determined by the court is, does the existence of these mortgages have the effect or tendency to induce in the mind an affirmative persuasion of the existence of the main fact in issue, the misrepresentations as to boundaries and location of the two-acre tract? It is beyond dispute on these facts presented by this record that as the execution of the mortgages did not occur until about two weeks after the exchange of land, the fact of the existence of the mortgages had no necessary connection with the group of facts constituting the wrong complained of. It is not a part of the res gestee. It did not influence or induce the exchange, and hence the ■existence of the incumbrance is not a relevant fact in the sense that it so related to the fact of misrepresentation, that according to the common course of events, it renders probable the fact ■of misrepresentation. Is the existence of these mortgages admissible as showing motive by subsequent conduct? In cases of this character, where fraud is alleged, it is always permissible to prove every act of the party charged, con-.r , , , ° „ , nected m any way with the subject-matter oí the fraud, and sometimes the subsequent action of par(;y more clearly demonstrates the fraudulent intent than any or all of the circumstances that occurred prior to or at the particular time of the transaction that is alleged to be fraudulent.
As to the subsequent conduct, the case of Banfield v. Whipple, 10 Allen (Mass.), 29, is the nearest approach to the case at bar that we have noticed. That was an action to recover ■damages for an injury to a hired horse by immoderate driving, and in the course of the trial it was held that evidence was competent to prove that the defendant, immediately after the injury charged, made an assignment of all his property. This ruling is affirmed by the supreme court, Justice Gray saying only this much in the opinion: “ The single exception taken to the admission of evidence relates to the assignments made by both defendants to all of their property on the day after the accident. But these assignments, made simultaneously, without any proof of consideration, were some evidence that the defendants were conscious of liability, and endeavored to escape from it, the weight of which was to be determined by the jury.” It will be observed that while this case states no principle or gives no rule to govern the admissibility of such evidence, it is decided upon the general theory heretofore referred to, that in cases of fraud, every act of the party charged in connection with the subject-matter of the fraud may be scrutinized. It is true that the execution of the mortgages occurred some time after the trade was made, and probably on this account the fact was not entitled to much weight; but this was a question for the jury. We are inclined to think that the evidence was competent to go to the jury for what it was worth, the other party having the right to make any such explanation of the existence of the mortgage as the facts would justify.
The next assignment of error is based upon the cross-examination of the plaintiff in error, when testifying on his own behalf on the trial. Counsel for plaintiff below asked him if he did not, about the time he made the trade with Mitchell, take Wagley out into the country and show him a nice' farm and sell it to him, and then make a deed to a rough piece of hilly land. He was then asked if there were not other trades in which he was interested wherein he showed the wrong piece of land. He answered all questions of this character in the negative, but admitted that in the instance of the sale to Wagley, he had by mistake shown the wrong land. It is claimed that this cross-examination was not warranted by the examination in chief; that it was incompetent, and its effect highly prejudicial. There is a number of very respectable authorities that sustain the proposition that on the trial of an issue wherein the quo animo of the transaction is the fact to be arrived at, it is competent to show that the party accused was engaged in other similar frauds at or about the same time. The transactions must be connected in point of time, and be so similar in their other relations that the same motive may be reasonably imputed to them all. (Hall v. Naylor, 18 N. Y. 588; McKenney v. Dingley, 4 Greenl. 172; Cary v. Hotailing, 1 Hill, 311; Ross v. The State, 62 Ala. 224; Street v. The State, 7 Tex. App. 5; Butler v.Watkins, 13 Wall. 456; Map Co. v. Jones, 27 Kas. 177.)
The plaintiff below, for some reason, chose to attempt to prove similar frauds by the cross-examination of the defendant below. Proper objections were made and all exceptions saved to this mode of cross-examination. As there was a specific and distinct denial by Minx of other similar fraudulent practices, it is perhaps unnecessary for us to consider any feature of this cross-examination except the one that it caused a prejudice in the minds of the jurors against him. In order to cause a reversal, it must be shown to us affirmatively that prejudice was created in the minds of the jurors by this cross-examination, or the mode, manner and subject of the cross-examination must be such that we would irresistibly infer that prejudice was created. It has been said time and again by this and other courts, that when a party charged with fraud is being examined on his own behalf, the greatest latitude will be allowed in the cross-examination, and assuming that this was not proper examination, it seems to us that the prompt denial of the plaintiff in error that he had shown men to whom he sold or was endeavoring to sell land, the wrong tract, resulted in his favor. The plaintiff below asked these questions in such a manner that probably he would not be allowed to contradict the answers to them, so that on the whole record it affirmatively appears that the defendant below had not committed simat or near the same time. We are at a loss to disilar frauds cover how he was prejudiced, and hence cannot reverse for this reason.
We can say generally that the instructions given were a very fair statement of the law applicable to the state of facts presented to the jury, and that we do not find that when they are all considered together, any reasonable criticism can be made. The measure of damages was correctly stated in substance, and not with the ambiguity that counsel for plaintiff in error suppose. The verdict is amply supported by the evidence in every particular.
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
Dixon commenced his action in the district court of Ford county, on the 12th day of January, 1886, against Farrington, the maker, and Leighton, the indorser, of a promissory note. Farrington made default, but Leighton filed a verified answer denying that he had indorsed the note. The cause was placed on the trial and bar dockets for trial at the regular November term of the district court of Ford county in the year 1887, and was set for Wednesday, the 16th day of November, in the second week of the term. The attorneys of Leighton notified him by letter that the case had been set for trial on Wednesday, the 16th, and this letter was received by Leighton’s father, at Cimarron, in Gray county, the place of Leighton’s residence. At this time Leigh-ton was absent from Cimarron, and was at Meade Center, and a messenger was sent to him, who reached him on Sunday, the 13th day of November, conveying to him the information that his case was set for trial on Wednesday, the 16th. He immediately started for home, and passed through Dodge City in the night-time, between the 14th and 15th days of November. He reached Cimarron on the morning of the 15th, and later in the morning received a telegram from his attorneys that his case was set for trial on that day.
Near the close of the first week of the term, the court reset the civil causes for trial, and assigned this case for trial on Tuesday, the 15th day of November, instead of on Wednesday, the 16th, the date of the original assignment. Leighton’s attorneys promptly advised him of the change of the day of trial, by letter, mailed on Saturday, the 12th, at noon. This letter never reached Leighton, as he was then en route from Meade Center home.
On the morning of Tuesday, the 15th, the cáse was called for trial at the opening of the court. Counsel for Leighton requested the court to allow them until noon to get their client and his witnesses into court, and the counsel of the plaintiff below offered to wait until the noon train; the counsel for Leighton offering to proceed with other matters so as not to delay the court. The trial court refused to wait, ordered a jury impaneled, the case was tried, and a judgment rendered .against Leighton for $448.21 and costs of suit. Leighton’s counsel promptly filed a motion for a new trial in the afternoon, Leighton himself being personally in court, and supported their motion by affidavits of counsel and Leighton, reciting the above facts of diligent action by both counsel and client to be ready for trial on the 16th, and also the failure of Leighton to receive notice of the change of date of trial.
We take judicial notice of the fact that Cimarron, the place of Leighton’s residence, is in an adjoining county to Ford, and is situated in Gray county, on the line of the Atchison, Topeka & Santa Fé Railroad, and that Gray county before its organization was attached to Ford for judicial purposes. Under the showing made on the motion for a new trial, it appears to us that the request made by Leighton’s counsel, that the hearing of the case on the 15th should be delayed until the arrival of the noon train, was a very reasonable one; especially is this so in view of the fact that the counsel on the other side consented thereto, and offered to wait until that hour.
This case was commenced in January, 1886. The answer was filed in March, 1887. The case stood for trial at the November term, 1887. Three weeks before the term, counsel for Leighton notified him by letter that the case would be reached for trial early in the term, but not specifying on what day. This letter never reached Leighton. When the regular November term convened there were thirty criminal cases on the docket, and the civil causes were not assigned for trial on special days until Wednesday, the 9th, when this cause was set down for the 16th. The letter of counsel notifying Leighton of this was received by his father, and the messenger was sent to him as above stated.
It appears from this that counsel for Leighton had acted promptly and well on all occasions, and that Leighton himself so acted that he would have been ready for trial on Wednesday, the 16th.. As we regard the facts, it seems evident to us that the reason why Leighton was not in attendance on Tuesday, the 15th, was because in his attempt to be ready for trial on the 16th he was so circumstanced that he did not receive notice in time that his case had been reset for the 15th. We are disposed to rule, under all the peculiar circumstances presented by this record, and being necessarily ignorant of the undercurrents that flow around such contentions, that there was such an affirmative showing as fairly entitles the plaintiff in error to a new trial; a showing too, that is in no manner controverted by anything in the record.
We recommend that the cause be reversed, and remanded, with instructions to grant a new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This is an original action in this court. It was submitted on an agreed statement of facts, as follows:
“The following are agreed by the parties plaintiff and defendant to be the facts upon which the above-entitled action is to be determined, to.wit: That the county of Ellis is one of the duly organized and existing counties of the state of Kansas; that on the 5th day of July, 1888, the board of county commissioners of said county consisted of the following persons and members, to wit: John Pearson was the duly-elected and qualified member of said board from the first district of said county, the same consisting of the townships of Ellis, Hamilton, and Smoky Hill, and said Pearson was then and is now a resident of Ellis township; C. W. Miller was the duly-elected and qualified member of said board from the second district of said county, the same consisting of the townships of Big Creek, Lookout, Saline, and Walker, and that said Miller was then and now is a resident of Big Creek township; and said defendant, Conrad Leiker, was the duly-elected and qualified member of said board from the third district of said county, the same consisting of the townships of Catherine, Hartsook, Wheatland, Victoria, and Freedom, and that said defendant, Conrad Leiker, was then and now is a resident of Wheatland township. That afterward, to wit, on said 5th day of July, 1888, the said board of county commissioners of Ellis county, the said board consisting of the said members as hereinbefore set forth, were in legal session at their office, to wit, the office of the county clerk of Ellis county, in the court house in Hays City, the county seat thereof, in said county, and were then sitting and holding their regular July session of said board; and at said meeting on said day, the said board made and entered of record an order redividing the said Ellis county into commissioner districts, a true copy of which said order, duly certified by the clerk of said county, is attached to plaintiff’s petition and made a part thereof, and marked ‘Exhibit A;’ that by said order the first commissioner district of said county was made and established to be as follows, to wit: to consist of the townships of Ellis, Hamilton, Smoky Hill; the second commissioner district was made and established to be and consist of the townships of Big Creek, Lookout, Wheat-land ; and the third commissioner district was made and established to consist of the townships of Catherine, Hartgook, Victoria, Freedom, Saline, and Walker; that the said Leiker was then and now is an actual resident of Wheatland township, in the second commissioner district, as now constituted; that the said commissioner districts so constituted by said order, have remained unchanged to this day.
“Afterward, to wit, on the 12th day of October, 1888, the sheriff of Ellis county, Kansas, did make his proclamation as provided by law, to the effect that on the 6th day of November, 1888, and at the general election to be held in the state of Kansas for the election of state and county officers on that day, there would be an election of a member of the board of county commissioners for and from the third commissioner district of said county of Ellis, to fill vacancy existing in said board. A copy of said proclamation published for the space of thirty days in said Ellis county, as provided by law, is attached to plaintiff’s petition, marked ‘ Exhibit —,’ and made a part thereof; that plaintiff is an elector of Ellis county, Kansas, and an actual resident, both now and for the year last past, of the township of Victoria, in said county, and in said third commissioner district, as constituted by said order; and that at the general election held on the 6th day of November, 1888, as aforesaid, the plaintiff was a candidate for election as a member of said board of county commissioners from the said third district, and that' he then and there received one hundred and eighty-three votes in said third commissioner district for member of said board, from said district, and that said number of votes so received by him were a majority of all the votes cast for commissioner and member of the board of county commissioners of Ellis county, in said third district of said county; that the votes cast for him were duly canvassed and counted and returned to the county clerk of said county, by the election boards of the several townships included within the boundaries of said third commissioner district, to be canvassed and counted by the board of county commissioners of said county, sitting as a board of county canvassers, in the manner provided by law; that the said board of county commissioners, on the day appointed by law for that purpose, refused to canvass and count said votes so cast for county commissioner in said third commissioner district, refused to declare the plaintiff the legally elected member of the board of county commissioners of said Ellis county from the third district, and refused to cause certificate of such election to be issued according to law to this plaintiff.
“Afterward, to wit, on the 9th day of January, 1889, in a suit then pending in the district court of Ellis couuty, state of Kansas, wherein this plaintiff, B. Brungardt, was plaintiff, and said C. W. Miller, John Pearson and this defendant, Conrad Leiker, county commissioners as aforesaid, were defendants, plaintiff obtained a peremptory writ of mandamus, commanding the defendants therein to forthwith convene as a board of county commissioners, canvass and count the vote for commissioner from the third commissioner district, and issue a certificate of election to this plaintiff in accordance with said vote, as a member of the board of county commissioners of Ellis county from the third district.
“A true copy of the petition and affidavit of the plaintiff in said case, and of the writ of mandamus issued therein, are attached to said plaintiff’s petition, marked ‘Exhibits C and D,’ and a true copy of the final journal entry of judgment in said action is attached to this statement of facts, and marked ‘Exhibit A;’ that what purports to be a true copy of the same, attached to the plaintiff’s petition, marked ‘ Exhibit E,’ is erroneous and incorrect; that ‘Exhibit E,’ attached to plain tiff’s petition, was certified by the clerk as the journal entry in said cause, on the 23d day of January, 1889, and that afterward the said journal entry was duly amended, as shown by ‘Exhibit A’ of this statement; that afterward, to wit, on the 10th day of January, 1889, in pursuance and in compliance with the command of said peremptory writ of mandamus in said cause, the said board of county commissioners duly canvassed said vote, a copy of which said canvass is attached to plaintiff’s petition, marked ‘Exhibit F;’ that on the 10th day of January, 1889, the county clerk in the aforesaid county duly issued to the plaintiff a certificate of election in pursuance of said canvass for the office of county commissioner for the third district in the said county, a copy of which said certificate is attached to plaintiff’s petition, marked ‘Exhibit G;’ that said judgments in said proceedings in mandamus against the board of county commissioners still remain in full force, unreversed and unappealed from; that the said defendant still continues to act as and exercise the authority of a member of the board of county commissioners from the third district, aforesaid county of Ellis, and refuses to surrender the said office to this plaintiff; that the said county of Ellis is, and was at all times and during all the transactions above set forth, a county having less than thirty thousand inhabitants; that the said Conrad Leiker, on the said 5th day of July, 1888, was the duly-elected, qualified and acting member of the said board of county commissioners of said county of Ellis, Kansas, and that he had been elected from the said third district, and was at the time a resident of the said third district, and that the term for which he was elected will not expire until the second Monday in January, 1890, and that said Conrad Leiker has never resigned the said office, and has never ceased to be a resident of the said county of Ellis from the time he was so elected, and has never done or suffered to be done any act whereby his said office became vacant, save and except as above set forth; that the diagram hereto attached and marked ‘ Exhibit B ’ shows the said first, second and third districts of the said Ellis county, Kansas, as the same were prior to the order of the board of county commissioners, changing the same as above set forth, and that the diagram marked ‘ Exhibit C,’ and hereto attached, shows the said districts as organized after and by virtue of said order.”
It will be seen from this statement that the question is whether or not the office of county commissioner from the third commissioner district of Ellis county, held by the defendant, Conrad Leiker, was vacated by a change of the districts that placed Wheatland township, wherein Leiker resides, in the second district. Leiker has not removed his residence; he still lives in the identical place as when elected. The board changed the boundaries of the districts, and by the change he is placed in the second district. Section 3, article 9, of the constitution of the state, provides:
“All county officers shall hold their offices for the term of two years, and until their successors shall be qualified, except county commissioners, who shall hold their offices for the term of three years: Provided, That at the general election in the year eighteen hundred and seventy-seven the commissioner elected from district number one in each county shall hold his office for the term of one year, the commissioner elected from district number two in each county shall hold his office for the term of two years, and the commissioner elected from district number three in each county shall hold his office for the term of three years; but no person shall hold the office of sheriff or county treasurer for more than two consecutive terms.”
Leiker was elected for a full term of three years. His office would become vacant on the happening of one of the following events: His death, resignation, removal from the county, his conviction of an infamous crime, or any offense involving a violation of his official oath; and other causes enumerated i'n § 218, chapter 25, Comp. Laws of 1885. No one of these events has happened, but there has been an attempt to legislate him out of office by the other two commissioners, by a change in the districts. The county commissioners are authorized by statute to change the districts at least once in three years, so as to adjust them to the changing conditions and locations of the population of the county, (Comp. Laws of 1885, ch. 25, §11,) but this provision must be construed so as to harmonize with that provision of the constitution that makes the term of county commissioners three years. The change in the districts, then, can only take effect, so far as the election of a county commissioner is concerned, at the expiration of the three years from the time from which the member was elected from the changed territory. Leiker’s term of office will not expire until the second Monday in January, 1890.
In the case of Hayes v. Rogers, 24 Kas. 143, the change of districts was made so as not to interfere with the three-years tenure. The change in districts was made on the 5th day of July, 1888. We give effect to the language of the constitution, and hold that Leiker is still a member of the board for the full term of three years, notwithstanding the change in the districts; that his successor must be elected this fall, and take the office next January.
The case cited from Nebraska is not in point. In that case there was a voluntary removal from the district. If the construction contended for by counsel for the plaintiff should prevail, it would give any two commissioners power to dispose of a third one who was not acting on any public question as they might desire, and thus subvert the principle upon which the constitutional provision dividing counties into districts rests. The reason for that amendment to the constitution was to give all parts of the county a fair representation in local affairs, and an equal voice in the location and distribution of local favors; and if it is within the power of two members to vacate the office of a third, by a change in the boundaries of his district, before the expiration of the three-years term, then the constitutional provision is practically nullified.
The electors of the third commissioner district as constituted by the order of the board made on the 5th day of July, 1888, last fall elected the plaintiff in this action, Brungardt, as commissioner from that district. The board of county commissioners refused to canvass the vote and declare the result, and a peremptory writ of mandamus was awarded against the board by the district court of Ellis county. They made the canvass, and there was issued and delivered to the plaintiff a certificate of election. This judgment is pleaded in this case, and it is claimed that it is res judicata on the question of vacancy. The result of the writ against the board is a certificate of election, and that is never conclusive. This is an action against Leiker personally; the other was against the board of county commissioners of Ellis county, of which he was a member; the writ ran against the office, and not against those who were exercising the duties thereof. In such cases as this, the action is regarded as against the office to compel the performance of a duty devolving upon it, regardless of the incumbent. (High, Ex. Rem., § 38, and authorities cited.) We do not think this question is res judioata.
It is recommended that the judgment be rendered in favor of the defendant.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The plaintiff below brought this action to recover for personal injuries inflicted on him on the 6th day of November, 1885, while working under the direction and by the express command of the pit boss, by the fall of a part of the wall of an entry in the coal mine of the defendant company. The pit boss — whose authority to direct the work and employ and discharge workmen seems to be admitted — directed Morgan and others to dig.a ditch from the end of the main entry, running north and south, to a cross-entry that ran west. This ditch was to -be from ten to sixteen inches deep, and from eight to ten inches wide — the object being to drain off water that had accumulated, in a room to which the cross-entry running west, led. ■ They-dug the ditch the length of the main entry, and then turned west, and had gone perhaps thirty feet, when the accident occurred. At this point is what miners call a “horseback,” composed of fire-clay, and other foreign material. This horseback was supported by two posts about three feet apart, reáting on. caps, and on the top of each of these two posts, caps supported the horseback. The horseback had been thus supported. ever since the entry was made, in the last days of September. The theory upon which the evidence was introduced and the case went to the jury was, that the digging of this ditch' so near the supporting posts, caused the earth about the post to crumble and slide into the ditch and the post to fall, and-this let a large portion of the horseback onto Morgan, striking him on the side, and throwing him onto the track used by the coal cars, covering his legs with the fire-clay, and injuring him very seriously.
While the petition of the plaintiff below alleges that at the time of the making of the entry the horseback was not properly or carefully supported, there was no evidence offered tending to establish it; but on the contrary, James Broscoe, the first witness for the plaintiff, below, testified that in his judgment (and he was a coal miner with; forty-four years’ experience), the accident would not have happened if the earth had not been loosened around the bottom of the supporting posts by the digging of the ditch. Holliday^ the man who made the entry, and who placed the supports in position and worked beyond them in completing the- entry, and would necessarily have some regard for his own ‘safety;’ testified that they were safe. He is a miner with a’large experience. We will not stop to rehearse the whole evidence,, but suffice it to say that there was practically no evidence tending to show negligence or want of care in the original construction, except an opinion by Morgan, who never saw the support until after he was injured. There was sufficient evidence to satisfy the ordinary mind that the immediate cause of the injury to Morgan was occasioned by the construction of the ditch, in digging too close to the caps and supporting posts, this loosening the earth and causing one of the posts to fall. . But the jury in their answers to special interrogatories find that there was no evidence as to what was the immediate cause of the falling of the prop in the west entry. And they say again in answer to the fourth special interrogatory, that there is not sufficient evidence to find that the digging of the ditch by the said employ és in the west entry was the cause of the falling of the said wall and roof of the entry. But they do find specially, that the coal company was guilty of slight negligence in the construction of the west entry, in not having the props on the north side of the entry properly secured. We have scanned this record closely to try to discover the motive that prompted the jury to come to such conclusions, and to return such answers to the special interrogatories. We say again, that the evidence offered at the trial fairly established that the digging of this ditch, at the place and in the manner directed by the pit boss, was the immediate cause of the injury to Morgan, and why the jury should have found that .there was not sufficient evidence on this point, is beyond our comprehension. According to their findings, the digging of the ditch was not the immediate cause of the injury. They find that the coal company was guilty of slight negligence in the construction of the west entry, in not having the props on the north side of the entry properly secured.
It is only a matter of inference that it can be said that this finding applies to the post that fell and precipitated a mass of fire-clay on Morgan. The jury were asked if the negligence of the company in the original construction was slight, ordinary, or gross, and they said it was slight. The trial court having submitted these questions to the jury, it may be said that there must have been some evidence of negligence in making the entry, but there was none except a declaration by the injured man, who testified'he never noticed the props until after the accident happened; that the support was not constructed in the same manner as;others in the same mine. The slight negligence of the company in- the construction of the entry and the support of the .wall, might not render the coal company liable for the injurie^' to Morgan. This court has said, in Morrow v. Comm’rs of Saline Co., 21 Kas. 484:
“Answers should be direct and positive. A case is to be tried on the evidence, and according ás an alleged fact is or is not established by that evidence,, it does or does not for the purposes of that case exist. The main object of special questions is to bring out the various facts separately, in order to enable the court to apply the law correctly, and to guard against any misapplication of the law fey the jury. It is a matter of common knowledge that a jury influenced by a general feeling that one side ought to recover,.will bring in a verdict accordingly, when at the same time it will .find a certain fact to have been proved which in law is an inseparable barrier to a recovery in accord with the general verdict. And this does not imply an intentional dishonesty in the jury, or a failure on the part of the court to instruct correctly, but rather a disposition to jump at results upon k general theory of right and wrong, instead of patiently grasping, arranging, and considering details. Scarcely any jury will, when questioned as to a single separate fact, respond that it exists, without some sufficient evidence of its existence.- Its response will as a rule be correct, if direct, and if not correct, then evasive and equivocal. And such evasive and equivocal answers always cast suspicion on the verdict.”
The case will have to be reversed because of the conduct of the jury in returning their special findings. There is not sufficient evidence to support the verdict upon the theory of negligence in construction. This view renders it unnecessary to notice the exceptions to the very voluminous instructions.
We recommend 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. | [
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Opinion by
Simpson, C.:
On the 30th day of December, 1887, the mayor and council of the city of Kansas City, a city of the first class, passed an ordinance extending the limits of said city. The extension, if legally made, includes certain tracts of land belonging to the Union Pacific Railway Company. These lands consist of irregular tracts, situated on both sides of the line of railroad, and extending from the Kansas river on the east, to the western line of the proposed extension. The tracts of land sought to be taken within the city limits each embraces more than five acres of ground, and are unplatted, and neither of said tracts is circumscribed by platted lands. The mayor and council of said city passed the ordinance under the authority conferred by § 1, ch. 99, Laws of 1887. The section is in the following words:
“Whenever any territory adjoining to the city limits shall be subdivided into lots, blocks, streets and alleys, the same may, when approved by the mayor and council, be added to the city: Provided, No unplatted territory of over five acres shall be takeu into said city against the protest of the owner thereof, unless the same is circumscribed by platted territory that is taken into said city. Any city of the first class may enlarge or extend its limits or area by an ordinance specifying with accuracy the new line or lines to which it is proposed to enlarge or extend such limits or area. Within twenty days after the passage of such ordinance the same shall be published in the city official paper published in said city, to be designated in said ordinance. When said publication shall have been made, the mayor of said city, at the first regular term of the district court of the county in which said city is situated, commencing after said twenty days, shall present to said court a copy of said ordinance, duly certified by the clerk of said city under its seal, and also therewith an affidavit or affidavits showing the publication of said ordinance as hereinbefore provided, which said certified copy of said ordinance and said affidavits shall be filed with the clerk of said court. Thereupon said court shall determine whether said publication has been made as herein required, and shall then consider said ordinance, and by its judgment either approve, disapprove or modify the same, first hearing all objections, if any, and proofs, if any, offered by said city or persons affected by said ordinance. Should said ordinance be approved or modified by said court, then the limits or area of said city shall be enlarged or extended as therein designated, from the date of such approval or modification; but should it be disapproved entirely, then the limits or area of the city shall remain unaffected by said proceedings; but should the same be approved entirely, or modified and approved, the judgment of said court shall stand, and the limits of such city shall be extended as in said judgment specified; and the determination of the matter thus submitted to said court shall be final, and all courts of the state shall take judicial notice of the limits or area of such city as thus enlarged or extended, and of all steps in the proceedings leading thereto. The district court shall make a record of its finding and determination in the premises, which shall be conclusive evidence of the facts so found and determined; and after the disapproval or modification of one ordinance, another or others may be passed and acted on.”
The trial court made general findings, and some special ones as to the land of the railroad company, as follows:
“1. Upon December 30, 1887, the ordinance herein presented was duly and regularly passed in council, and the same was duly approved by the mayor of said Kansas City on the 4th day of January, 1888.
“2. Within twenty days after the passage of said ordinance, to wit, on January 5, 1888, the same was duly published in the Kansas Pioneer, a newspaper regularly published in said Kansas City, and upon said day the city official paper of said city, and the paper designated in said ordinance as provided in section 1 of chapter 99, of Session Laws of 1887.
“ 3. The territory proposed by said ordinance to be added to said Kansas City comprised both platted and unplatted lands.
“4. After the publication of said ordinance had been made, as found in finding 2, and a copy of said ordinance was duly presented by the mayor of said city of Kansas City to the district court of Wyandotte county at the first regular term thereof commencing after the expiration of twenty days from the passage of said ordinance, which said copy was duly certified by the clerk of said city under the seal of said city, and there was attached thereto and filed therewith an affidavit of the publisher of said official paper, showing the publication of said ordinance as provided in said § 1 of ch. 99 of the Laws of 1887.
“5. Thereupon due notice was given and a regular hearing was had in the said matter, and all parties interested were heard, and proofs and protests received by the court.
“6. And the court finds that said ordinance is legal, and was published as required by law, but adjudges and decrees that the same be and said ordinance is hereby modified in the following particulars, to wit: That the boundaries of said Kansas City as set out in said ordinance, shall be modified so as to read as follows, and said ordinance is approved as modified, to wit:
“Desoeiption op City Limits.' — Commencing at the intersection of the west line of sec. 21, township 11 south, range 25 east, with the center line of the Kansas river; thence north between sections 20 and 21, 16 and 17, 8 and 9, also 4 and 5, township 11 south, range 25 east, to the second standard parallel south 247 feet; thence north 1,617 feet; thence west 365 feet; thence north to the north line of section 32, township 10 south, range 25 east; thence east on said north line of said section 32, to the northeast corner of said section 32; thence south 1,320 feet; thence east to the east line of the right-of-way of the Missouri Pacific Railway; thence southeasterly along the said east line of said right-of-way to the second standard parallel south; thence east to the center of the Missouri river; thence south along the center line of the Missouri river to the intersection of said line with the line between the states of of Kansas and Missouri; thence south on said state line to the old Shawnee reserve line; thence west on said old Shawnee reserve line to the center of the Kansas river; thence up the center of said Kansas river to the point of beginning.
“And it is ordered and adjudged and decreed by the court, that the boundaries of said Kansas City shall be and the same are hereby fixed and designated by the court as herein above set forth, and all lands embraced within such boundaries are adjudged and decreed to be a part of said Kansas City.”
The court made the following special findings of fact in relation to the lands belonging to the Union Pacific Railway Company included within the extended limits of Kansas City as found by the court in its general findings and decision herein:
“That the three tracts marked in red ink on the map which is filed in this case marked ‘Union Pacific Exhibit A’ belonging to the Union Pacific Railway Company in fee simple, and that each of said tracts contains more than five acres, and that neither of said tracts by itself is circumscribed by platted lands, and that neither of said tracts of land is platted.”
The railroad company made a motion to dismiss the proceedings in the district court for the reasons that the court had no jurisdiction, that the laws purporting to give jurisdiction were unconstitutional, and that they attempted to confer legislative power upon the judicial branch of the state government. This motion was overruled, and an exception saved. The railroad company filed a remonstrance against including their land within the city limits, and this was overruled, and an exception saved to such ruling. The railroad company also excepted to the general and special findings of the court. A motion for a new trial was overruled, and an exception saved to that ruling.
In this court two principal questions are raised, argued, and insisted on. The first is, that the power conferred by the section on the district court is legislative, and not judicial. The second is, that the power is not given to the city to so extend its limits as to embrace tracts of land containing more than five acres unplatted, and not entirely surrounded by platted land. It is necessary to consider but one of the questions presented, because in our opinion it is a conclusive settlement of the case. The act of 1887 amending the law relating to cities of the first class provides among other things, that “no unplatted territory of over five acres shall be taken into said city against the protest of the owner thereof, unless the same is circumscribed by platted territory that is taken into said .city.”
The special findings of the trial court with reference to the lands of the Union Pacific Railway Company, recite that “these three tracts of land belong to the railroad company in fee simple, and that each of said tracts contains more than five acres, and that neither of said tracts by itself is circumscribed by platted lands, and that neither of said tracts is platted.”
This brings these tracts squarely within the protection of the proviso above quoted, and they cannot be taken into the city without the consent of the owner. The record shows that the railroad company filed a remonstrance against the extension of the city limits so as to include these tracts of land.
It is recommended that the judgment of the district court be reversed, and the cause remanded, with instructions to render a judgment in favor of the railroad company.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
This is an application for a rehearing. It is asserted “that the evidence in the ease does not support the opinion heretofore rendered; that there is no evidence to show that Thomas knew a thing about the ten-dollar payment, and surely nothing to indicate that he kept back a thing in the case.” The twenty-sixth finding of the trial court commences as follows:
“That on December 2,1885, the said Thomas, in pursuance of the request of said Hillmer, wrote the said home office a letter, and inclosed therein ten dollars in money, which said letter was duly registered and mailed at Topeka, Kansas,” etc.
The affidavit of A. B. Jetmore, filed in support of a motion for a new trial, and not denied or controverted in any respect, states:
“That at the time of the trial he had no knowledge of the return to the plaintiff of the ten dollars, which he (the plaintiff) and J. Thomas testified to having paid by sending a registered letter to said defendant, to pay the note given to secure the first installment of the premium.”
At the trial, after the plaintiff below had introduced his documentary evidence, he called as his first witness W. S. Burgenthal, who, after stating that he was employed as a clerk by Jonathan Thomas, was asked and answered the following questions:
“Q. Look at that instrument: what is it? A. copy of my letter.
“ Q,. Sent to whom ? • A. R. J. Taylor, superintendent Continental Insurance Company, Chicago, Illinois.
“Q. Did you mail it? A. Yes, sir.
“Q,. Was the postage paid? A. Yes, sir.
“Q,. By registered letter? A. Yes, sir.
“Q,. Look at that. A. Yes, sir; Mr. Taylor returned receipt.
“Q. You may state what this money was sent for, if you know. A. It was sent to pay the first installment note of Hillmer’s, which was due on the first day of December, 1885.
“ Q,. At whose request was this money sent ? A. It was sent on account of this notice that was mailed Hillmer that his note was due on that day.
“Q,. Were you or Mr. Thomas authorized to send it for him? A. Yes, sir.
“Q,. To meet this payment? A. Yes, sir. He brought the notice into our office.”
(Oross-examination.)
“Q,. You say, Mr. Witness, that you sent this through the mail? A. Yes, sir; I sent it.
“Q. Had Mr. Hillmer ever employed you as his agent, or to do any work for him about this matter? A. Not any more than he brought that notice in that they sent him, stating that the ten-dollar note was due.
“ Q,. But you were in the employ of Thomas ? A. Yes, sir.
“Q. The defendant here, or one of the defendants? A. Yes, sir.
“Q. And for Mr. Thomas, and while in his employ, you sent this? A. No, sir; I sent that for Mr. Hillmer, and signed his name, per myself.
“Q. Per yourself? A. Yes, sir.
“Q. You were then in Thomas’s employ? A. Yes, sir; I was his clerk, and am his clerk.
“Q,. How do you come to say the sender is J. Thomas, if Hillmer ordered you to send it ? A. The money was sent by me from his office.
“Q,. Is that your handwriting? A. No, sir; that is the postmaster’s.
“Q,. You sent it in the name of J. Thomas? A. No, sir; I sent it in the name of Hillmer.
“Q. Then the receipt — how about that? A. It came from Mr. Thomas’s office, and was sent with the knowledge of Mr. Hillmer.
“Q,. Was not the order made out in Thomas’s name? A. The order? No, sir. What order do you mean?
“ Q. The postal order. A. It was a ten-dollar bill.
“Q,. How is it if it purports to be sent by Hillmer it came to have been received from J. Thomas ? A. It was sent from J. Thomas’s office; we took them over, and they usually did not give us a receipt, but put it right in our box; but the letter shows that I sent it in Hillmer’s name.
“ Q,. But when it came, J. Thomas signed his name to it ? A. He did not sign his name to that at all.
“Q. How then did the postmaster get J. Thomas’s name there ? A. I suppose he looked at it and saw that it was our envelope, which has J. Thomas’s name on it.
“Q. You could not tell any other way? A. No, sir.
“ Q,. Who gave you the money to send ? A. We furnished the money.
“Q,. Mr. Thomas furnished the money ? A. Yes, sir. Mr. Hillmer is bound for it, I presume, yet.
“Q,. Is it not true that Thomas was keeping this up for Hillmer? A. It was paid with Hillmer’s knowledge.
“Q. You did it for Mr. Thomas? A. No, sir; for Mr. Hillmer, and his name is signed to the letter; it is true that Mr. Thomas furnished the money, but it was done with Mr. Hillmer’s knowledge.
“Q,. Hillmer was not present when the money was furnished and sent? A. No, sir.”
We give a copy of the letter registered and sent, and a copy of the receipt for it:
“Dec. 2-5. — JR. J. Taylor, Supt, Chicago, III. — Dear Sir: Herewith find ten dollars in currency to pay my note of like amount due Dec. 1-4, on account of insurance policy F520,733. Please cancel note and mail same to me. Very truly,
Dec. 3. R. B. Hillmek, per B.”
“ Registry return receipt, sent Dec. 2,1885. Regular number, 119. From post-office at Topeka, Kansas. Reg. letter, addressed to R. J. Taylor. Post-office at Chicago, Illinois. After obtaining receipt below the postmaster will mail this card without cover and without postage, to address on the other side. Received the above-described registered letter. Sender’s name on the other side. Sign on dotted lines to the right. When delivery is made to other than addressee, the name of both addressee and recipient must appear. R. J. Taylor, 32,526. Varleck. Erase letter or parcel according to which is sent. Post-office department. Official business. Return to (name of sender). J. Thomas. Street, or number of post-office box-. Post-office at North Topeka, county of Shawnee, State of Kansas.”
“ Q,. Where is that receipt ? A. The receipt from whom ?
“ Q,, The receipt received from the postmaster for the registered letter. A. I presume among the other receipts over there. I suppose I could find it; we usually file them.
“ Q,. And it shows that it was J. Thomas’s name, the same as this card ? A. Yes, sir.”
The witness Burgenthal distinctly states that this money was sent to pay the first installment note of Hillmer’s, due the 1st day of December, 1885. Thomas furnished the money. Hillmer was not present when the money was furnished and sent. Whatever Burgenthal, his clerk, did, was by the instruction, for the benefit and with the knowledge of Thomas. The effect produced by this evidence will be found in the twenty-sixth special finding of the trial court, and it reads thus:
“On December 2, 1885, the said Thomas, in pursuance of the request of said Hillmer, wrote the said home office a letter, and inclosed therein ten dollars in money, as requested by said company in its letter of November 18, 1885, which letter was duly registered and mailed at Topeka, Kansas, and which letter was received by said defendant insurance company at its home office in Chicago, Illinois, on the 4th day of December, 1885. At the time of the sending of said letter of November 18, 1885, to Thomas by said company defendant, and the sending of said letter by Thomas and the ten dollars 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-authorized 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 Hillmer, and of all incumbrances that were placed on said land and property before the issuance of said policy.”
The two controlling facts in this finding are, that the $10 was paid; and at the time of the payment the company, by its duly-authorized agent, had full knowledge of the incumbrances. These findings compelled a judgment against the company. The first finding, to wit, the payment of the ten-dollar premium note, of date December 1, 1885, was procured by the fraudulent suppression of a fact well known to Hillmer and Thomas. This fraudulent suppression is conclusively demonstrated by the evidence in support of the motion for a new trial. Proof of this payment was very important to the plaintiff’ below. The acceptance by the insurance company of the payment of a premium note after the loss had occurred, with knowledge of the loss and of the assignment by Hillmer to Mrs. Jarrett, would be a controlling fact. The fact that the $10 had been promptly returned was suppressed by Thomas. He had possession of the Hillmer policy. He notified the company of the loss. He conducted the negotiation for its payment with Kneutson, the adjusting agent of the company. He sent the registered package containing the $10. He furnished the money, and did it to protect his interest in the policy. The receipt for the registered package was in his name. When Thomas attempted by his clerk to prove the payment of the $10 premium note, he suppressed the very material fact that the money had been promptly returned. He thus sought a very unfair advantage. The Continental Insurance Company could not anticipate that Thomas would attempt to prove payment of this note. We totally dissent from the view taken of this transaction by the attorneys of the defendants in error. Their contention is not good in morals or law. It is true that the insurance company “had full, complete and positive knowledge that the note had not been paid/* and so did Hillmer, and so did Thomas. Without some previous knowledge of or experience with Thomas, the company had no right to presume that Thomas would claim a payment when in truth and in fact there had been none. The duty of disclosing the fact that the note had not been paid, rested on jjjpmer an(j Thomas; and knowing it had not been paid, they had no legal or moral right to attempt to show that it had been.
We submit the following extracts from the brief of counsel of defendant in error, for the motion for a rehearing, as samples of professional ethics:
“What was Burgenthal to do? Was it his duty to walk over to the attorney for the company and whisper in his ear that ‘You forgot to ask me about that $10: it was returned by the company*? No; the law does not require any such thing. No court or lawyer ever heard of such a thing until a commissioner of this court saw fit to say that was the law. What was Thomas to do? Was he and Burgenthal bound by law to get up in court and say, ‘You fellows have forgotten .■something: that $10 was returned* ? The law makes no such requirements; justice does not demand it; equity would not ;ask it; and fair play in a lawsuit would laugh at it.**
All this from a source that seeks to prove payment that they ¡knew never was made. A lawsuit is not a game to be won or l°st by sharP practices and shuffling devices; the 0^je0j¡ 0f j udicial investigation is to ascertain the facts, not to suppress them.
The case is very much like Mays v. Strauss, 8 Abb. N. Cas., 274. This was an action for rent, and the tenant testified that he had paid the rent by a check, but after the trial it was discovered from his bank account that no such cheek existed. A new trial was granted. The court say:
“The humane and saving principle that a new trial may be granted when a witness has fallen into an error which might have an effect in turning the verdict, as in Coddington v.Hunt, 6 Hill, 595, and cases cited by Bronson, J., applies.**
The case at bar is stronger than the reported one. We doubt whether the witness in this case “fell into an error.”
Wehrkamp v. Willett, 1 Daly, 4, was an action by a married woman against the sheriff for taking personal property on an execution against her husband. She claimed the property as her separate estate, and on the trial testified that at the time it was purchased she had money in the Bleeker Street Bank, and had checked money out to pay bills. It was discovered after the trial that she had no money in the bank, and a new trial was granted.
The motion for a rehearing is denied. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action for the specific performance of a contract for the sale of real property. The trial court heard the evidence and rendered judgment for defendants. Plaintiff has appealed.
The facts disclosed by the record may be summarized as follows: H. O. Thurstin and his wife lived in Sunnyvale, Calif. He owned a residence situated on two lots in Liberal, Kan., and two adjoining vacant lots which he had acquired at a tax sale. He had listed the property for sale with Miss Mabel Grainger, a real-estate, broker at Liberal, but from her listing it was not clear whether he wanted $1,500 for the house and two lots, or for all the property. On July 8, 1943, plaintiff went to Miss Grainger to buy the property. She told him she was uncertain about the price. He offered to buy the entire property for $1,500 by paying $500 in cash by the time the deal was closed and the balance in payments much like rent. She prepared the form of a contract, which plaintiff signed, and he gave her a check for $300. She testified that she told him that what she had prepared was only a temporary contract and if Mr. Thurstin was willing to sell at that price and on such terms a more complete contract would be drawn. Plaintiff denied there was any talk of a second contract. This is about the only conflict there is in the testimony. Miss Grainger sent the contract to Mr. Thurstin in a letter which in part reads:
“I have sold your property providing it meets your approval. I am enclosing a temporary contract for approval before drawing a regular contract. . . .”
Mr. Thurstin signed the contract and returned it to Miss Grainger, who then prepared a more complete form of contract which included several necessary or appropriate provisions which were left to inference or not mentioned in the first contract. She sent this to Mr. Thurstin and had it signed and then presented it to plaintiff for his signature. He declined to sign it and consulted his attorney. There was some correspondence and telegrams between plaintiff’s attorney and Mr. Thurstin. Among other things plaintiff’s attorney prepared what he called a supplement to the contract of July 8, which in some respects differed from the more complete contract prepared by Miss Grainger for the parties to sign. Thurstin declined to sign the supplemental contract. These negotiations appear to have closed with a telegram from Mr. Thurstin to plaintiff’s attorney which reads: “Received wire today. Have decided to call the deal off.”
Soon thereafter plaintiff filed this action upon the original instrument of July 8, naming as defendants Mabel Grainger as well as H. O. Thurstin and his wife.
Generally speaking, it may be said the petition stated a cause of action upon the agreement between plaintiff and Miss Grainger, acting for the defendant Thurstin, in language which differed slightly from the contract of July 8, no copy of, which was attached to the petition. The differences, hóweye'r,’-áre not sufficiently important to be noticed here. It is alleged-the contract had been signed by plaintiff and'by Thurstin; that • plaintiff ha'd performed all the things required of him to be performed, and the prayer was that it be specifically performed. H.' O'. Thurstin by his answer admitted that the property had been listed for sale with Miss Grainger and that she had found the plaintiff as a purchaser; thát on July 8, 3943, the temporary contract for the sale of the premises was prepared; that it was understood between plaintiff and Miss Grainger that the same was only a temporary contract and if accepted a different and more complete contract of sale and purchase would be prepared and entered into by the parties; that such a contract had been prepared and executed by Mr. Thurstin, but that plaintiff had refused to execute the same. The temporary contract, .and also the one later prepared, were attached to and made parts of the answer, and defendant pleaded his willingness to comply with and carry out the more formal contract. The record does not show that a reply was filed.
At the beginning of the trial plaintiff moved for judgment on the pleadings. This was denied, and appellant complains of that ruling. In making this motion plaintiff necessarily conceded, for the purpose of a ruling upon the motion, that the allegations of the answer adverse to those of the petition were true. There was no error in the ruling of the court on plaintiff’s motion for judgment on the pleadings.
There were two hearings before the court. Pending'the -final hearing plaintiff and his counsel prepared an entirely new written contract, which differed in. several respects from any of those previously prepared, and presented it to the defendant Thurstin for his signature, but he declined to sign it.
At the close of' plaintiff’s evidence each of the defendants demurred thereto. The court sustained the demurrer as to the de•fendants Mabel Grainger and Mrs. H. O. Thurstin. Appellant complains of this ruling. . It is not contended that Mabel Grainger had any authority to execute a contract for sale on behalf of Thurstin, and in fact she did not undertake to do so, and no cause of action was either pleaded or proved against her. Mrs. H. O. Thurstin had not signed any of the contracts, and there was no error in sustaining her demurrer to the evidence.
At the close of all the evidence the trial court announced the view that the evidence failed to show that the minds of the plaintiff and the defendant Thurstin had met upon the terms of the contract of sale, and in the journal entry of judgment specifically found "that the contract sued on by the plaintiff in this case was only a preliminary contract and as such is not enforceable by the said plaintiff,” and rendered judgment accordingly. This was a question of fact to be determined by the trial court. (17 C. J. S. 1276.)
We think the finding of the trial court is well sustained by the evidence; indeed, that no other finding could reasonably' have been made. See Nichols v. Coppock, 124 Kan. 652 (and cases cited, p. 656), 261 Pac. 574. It necessarily follows that the final judgment of the trial court is correct and should be affirmed. It is so' ordered. | [
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The opinion of the court was delivered by
Parker, J.:
This was an action for forcible detainer originally commenced in the city court of Wichita for the possession of a certain residence property located' in that city and for one month’s rent alleged to be due. The plaintiff recovered in the city court and on appeal in the district court, from which judgment the defendant appeals.
From July, 1936, until January 22,1943, the date it was purchased by plaintiff, the defendant made her home in the property referred to under an oral agreement with.the then owner as a tenant from month to month. On January 22 the plaintiff purchased such property under a contract for deed subject to the tenancy rights of defendant who continued to occupy the premises. Subsequently, there were some unsatisfactory negotiations about payment of rent and plaintiff, who claimed the rent due on February 11, 1943, had not been paid, served on defendant a notice terminating the tenancy and demanding surrender of the premises for nonpayment of rent, a statement thereof being included. Thereafter, defendant having failed to surrender possession within three days as provided for in such notice, this action for forcible detainer was instituted.
In district- court a jury was waived and the cause was tried to the court on the pleadings and the evidence adduced by the respective parties. So far as the record discloses the only' pleading available for consideration by the trial court was plaintiff’s verified bill of particulars, which in substance alleged: Plaintiff was the owner of the property sued for which was occupied by defendant as his tenant and had served her with a notice to quit for nonpayment of rent due on February 11, 1943, a copy of which was attached to and 'made a part thereof; although more than three days had elapsed since service of such notice, defendant had failed to pay rent or deliver possession of the premises and now held unlawful possession thereof; at the time the notice to quit was served on defendant plaintiff mailed a copy of such notice-to the O. P. A. (Office of Price Administration) at its local office in Wichita, Kan. As for the evidence, although there was some dispute in the testimony, it can be said it was sufficient to justify the trial court-, which found in favor of plaintiff for restitution of the premises and the rent claimed to be due, in concluding the plaintiff had established the allegations of fact set forth in his bill of particulars. A motion for new trial and later a supplemental motion for new trial on the ground of newly discovered evidence were filed by defendant. Both motions were overruled and judgment was rendered in accordance with the trial court’s findings. Defendant then perfected her appeal.
Before going directly to the legal questions determinative of the main issue raised on this appeal it might be helpful to refer briefly to general rules applicable to the institution and maintenance of cases of forcible entry and detainer as that term is commonly used in textbooks, law treatises and the decisions. Proceedings in forcible entry and detáiner are based upon and by modern legislation have been evolved from the English forcible entry and detainer which was purely a criminal measure. Although originating from such source the action is no longer a criminal but a civil proceeding specifically regulated by statute and summary in its nature and character. Since its enactment our statute (G. S. 1935, art. 13, ch. 61) has been so recognized by this court in its earliest and in its most recent decisions. (See Soden v. Roth, 9 Kan. App. 826, 61 Pac. 500; Hale v. Brown, 119 Kan. 303, 239 Pac. 963, and McHenry v. Hubbard, 156 Kan. 415, 420, 134 P. 2d 1107.)
In late years actions predicated on “forcible entry” of real estate, are not as frequent as those based upon “forcible detainer” thereof and rare indeed is a proceeding to which both of such terms apply. However, it can be said that irrespective of what source they spring from, or the factual elements involved, rules governing the institution and maintenance of “forcible-entry-and-detainer” cases generally, including questions of procedure, apply to all such actions with equal force and effect. The general rule is well stated in 36 C. J. S. 1171, § 31, as follows:
“Since, . . . , the action of forcible entry and detainer is -a special statutory proceeding, summary in its nature,-and in derogation of the common law, it follows that the statute conferring jurisdiction must be strictly pursued in the method of procedure prescribed 'by it, or the jurisdiction will fail to attach, and the proceeding will be coram non judice and void, unless the defects in procedure may be, and are, waived. There is no presumption in favor of the record. It must appear that the statutory remedy was strictly pursued and the facts which give jurisdiction must appear affirmatively on the face of the record, otherwise the proceedings will be not merely voidable, but absolutely void, as being, coram non judice.”
To the same effect is 22 Am. Jur. 934, § 35.
With specific reference to our own state it must be conceded our decisions are in accord with the general rule announced in the preceding quotation. See Stuller v. Sparks, 51 Kan. 19, 31 Pac. 301, wherein it was held:
“A plaintiff cannot maintain an action of forcible entry and detainer, if the three-days notice to leave the premises, prescribed by § 161 of the justices act, is not given, and the plaintiff, to obtain judgment in such a case must affirmatively show the service of the notice.”
Also, Kellogg v. Lewis, 28 Kan. 535, holding that:
“To maintain an action of forcible detainer, the plaintiff must have a perfect right of possession at the time the notice to quit is given.” (Syl. ¶[ 1.)
Another principle of law, peculiarly applicable to special statutory proceedings summary in character and nature, deals with the existence of conditions precedent to the institution or maintenance of such actions. This rule is that unless excused or waived conditions precedent to the maintenance of an action, whether arising from statute, agreement, or circumstances, must ordinarily be performed or complied with before the action may be instituted. (See 1 C. J. S. 1066, § 25, and 1 Am. Jur. 426, § 34!)
Under our statute, G. S. 1935, 61-1304, one of the conditions precedent to the institution and maintenance of a forcible detainer action is the service on the adverse party of a notice to quit, which notice must be served at least three days before the commencement of such action, unless it is brought for the purpose of ejecting a tenant' for the nonpayment of rent, in which event, no notice is required if a statement is included in the notice terminating the tenancy that unless the tenant shall vacate in the time provided therein suit will be brought to eject him. So in a case where a party seeks to terminate a tenancy for nonpayment of rent, the notice to quit— in the instant case a three-day notice in writing as required by G. S. 1935, 67-508' — must be given, and service of such notice as required is a condition precedent to the institution of a forcible detainer action. Such was the effect of our decision in Stuller v. Sparks, supra.
Coming now to the situation in the case at bar, it would seem from an examination of the record that appellee so far as our own statute is concerned has alleged in his bill of particulars all facts required in order to enable him to institute and maintain his action, and under the evidence has established the existence of facts which would uphold a judgment giving him the possession of the property involved in the action. Therefore, assuming, but not determining the propriety of the trial court’s ruling on other questions urged as error, if the appellant is to reverse the judgment rendered by the trial court, it must be on the theory there now exists and is in force and effect other legislation in addition to that enacted by our own legislature, which has superimposed conditions upon and is cumulative to the requirements of our own statute relating to the subject matter of an action in forcible detainer.
While it does not appear from the record that appellant specifically directed the trial court’s attention to the matters to which we shall presently refer, her specification of errors is sufficiently comprehensive to cover the subject and the issue is one which must be given consideration on appellate review.
In her brief appellant points out that in January, 1942, the congress of the United States passed the Emergency Price Control Act of 1942 (Pub. L. 421, 77th Cong. 2d Sess., C. 26; 56 Stat. 23, 50 U. S. C. A. App. 901 et seq.) creating the Office of Price Administration under the direction of a price administrator (referred to in the act as the “Administrator”) and authorizing such administrator to make rent regulations in critical defense areas and providing against practices which might result in rent increases therein. (See 50 U. S. C. A. App., § 902 [b], [c] and [d].) Also that under the act, by proper order, there were created certain defense areas, one of which included the city of Wichita, Kan., and adjacent territory (7 Fed. Reg. 1684).
Subsequently, and pursuant to the provisions of the act referred to, the Office of Price Administration promulgated and issued maximum rent regulations applicable to the defense-rental areas created under the act. Without attempting to detail the substance of all such regulations, for they are many in number and some of them have no bearing on the issues involved herein, it can be stated generally that they 'purport to restrict the rights -of landlords owning residence properties in defense areas and in particular require such landlords to give certain notices to the administrator through an official appointed by him and known as the area rent director at the local area rent office and obtain the-consent of the administrator prior to the institution of actions for the possession of real estate under the provisions of our forcible entry and detainer statute or other existing laws of the state.
It is hardly necessary to state that many of such rules and regulations impose conditions and restrictions with respect to the procedure to be followed in obtaining the possession of rented residence premises not to be found in our state laws. As a result, in the recent past, many controversies have arisen between landlords and tenants, state and federal officials, and differences of opinion between the various courts having jurisdiction of such matters, as to the rights and remedies of a landlord and the procedure to be followed in obtaining possession of residence premises located in the divers critical defense areas and affected by the regulations promulgated by the Office of Price Administration. Whatever may have been said with respect to the legal questions involved in a determination of such controversies, the issues raised regarding them are no longer an open, question in this state. In the case of Ritchie v. Johnson, post, p. 103, 144 P. 2d 925 (this day handed down by this court), it was held that the Emergency Price Control Act of 1942, as enacted by congress, is constitutional and valid as a war measure and that regulations of the administrator of the Office of Price Administration, relating to defense areas created under the act, with reference to notices pertaining to termination of tenancies, are conditions precedent and must be affirmatively pleaded as necessary elements of a cause of action in forcible entry and detainer proceedings and in other proceedings' wherein a party seeks to obtain the possession of residence properties located within such areas. Also, where under the provisions of our code of civil procedure, proof of the existence of such conditions precedent have not been waived or otherwise rendered unnecessary they must be established by evidence in the same manner as are other necessary elements of a cause of action in order to sustain a judgment for restitution of property in> a forcible detainer action. We do not here attempt to discuss the fundamental principles of law enunciated in and forming the basis of our decision in Ritchie v. Johnson, supra. They are well stated by Mr. Justice Thiele in the opinion in that case and we refer those who are interested in a discussion of such principles and the reasoning which supports the rule announced therein to that opinion.
In support of her position and with specific reference to the defense-rental area of Wichita, Kan., appellant directs our attention to the fact the administrator of the Office of Price Administration has promulgated what is known as Maximum Rent Regulation No. 10, 7 Fed. Reg. 4069-4072, inch (U. S. C. Congressional Service, 1942, No. 9, 1487), as amended by Supplementary Amendment No. 7 to Maximum Rent Regulations, 7. Fed. Reg. 8505 and 8506 (U. S. C. Congressional Service, 1942 No. 11, 2026), which in part reads as follows:
“.....(2) Removal or eviction of a tenant for occupancy by a purchaser who has acquired his rights in the housing accommodations on or after October 20, 1942, is inconsistent with the purposes of the Act and this Maximum Rent Regulation and would be likely to result in the circumvention or evasion thereof, unless (i) the payment or payments of principal made by the purchaser, excluding any payments made from funds borrowed for the purpose of making such principal payments, aggregate 33% % or more of the purchase price, and (ii) a period of three months has elapsed after the issuance of a certificate by the Administrator as hereinafter provided. For the purposes of this paragraph (b) (2), the payments of principal may be made by the purchaser conditionally or in escrow to the end that they shall be returned to the purchaser in the event the administrator denies a petition for a certificate. If the administrator finds that the required payments of principal have been made, he shall, on petition of either the vendor or purchaser, issue a certificate authorizing the purchaser to pursue his remedies for removal or eviction of the tenant in accordance with the requirements of the local law at the expiration of three months after the date of issuance of such certificate. In no other case shall the administrator issue a certificate for occupancy by a purchaser who has acquired his rights in the housing accommodations on or after October 20, 1942, unless he finds that the vendor has or had a substantial necessity requiring the sale and that a reasonable sale or disposition of the accommodations could not be made without removal or eviction of the tenant, or unless he finds that other special hardship would result; under such circumstances the payment by the purchaser of 33% % of the purchase price shall not be a condition to the issuance of a certificate, and the certificate shall authorize the vendor or purchaser to pursue his remedies for removal or eviction of the tenant in accordance with the requirements of the local law.”
Although not mentioned by appellant we call attention to the fact that Regulation No. id has also been amended by supplementary amendment 6 to Maximum Rent Regulations, 7 Fed. Reg. 8505 (U. S. C. Congressional Service, 1942, No. 11, 2026), it reads in part:
. . (d) (1) Every notice to a tenant to vacate or surrender possession of housing accommodations shall state the ground under this section upon which the landlord relies for removal or eviction of the tenant. A written copy of such notice shall be given to the Area Rent Office within 24 hours after the notice is given to the tenant.
“No tenant shall be removed or evicted from housing accommodations, by court process or otherwise, unless, at least ten days prior to the time specified for surrender of possession and to the commencement of any action for removal or eviction, the landlord has given written notices of the proposed removal or eviction to the tenant and to the Area Rent Office, stating the ground under this section upon which such removal or eviction is sought and specifying the time when the tenant is required to surrender possession.
“Where the ground for removal or eviction of a tenant is nonpayment of rent, every notice under this paragraph (d) (1) shall state the rent for the housing accommodations, the amount of rent due and the rental period or periods for which such rent is due. The provisions of this paragraph (d) (1) shall not apply where a certificate has been issued by the Administrator pursuant to the provisions of paragraph (b) of this section.
“(2) At the time of commencing any action to remove or evict a tenant, including an action based upon nonpayment of rent, the landlord shall give written notice thereof to the Area Rent Office stating the title of the case, the number of the case where that is possible, the court in which it is filed, the name and address of the tenant, and the ground under this section on which removal or eviction is sought.”
The foregoing supplementary amendments to Maximum Rent Regulation No. 10 were in force and effect on March 11, 1943, the date on which the instant proceeding was commenced. In an action of forcible entry and detainer, the right to judgment depends on the facts as they existed at the time of the commencement of the action (22 Am. Jur. 942, §46). At that time appellants residence property, for possession of which his action was instituted, was covered by and subject to the restrictive provisions of such regulations. The ten-day notice required by supplementary amendment 6 was not referred to in the bill of particulars, nor does the record disclose any evidence to the effect it was given-. Neither did appellee, who had acquired the property subsequent to October 24, 1942, allege or prove compliance with the requirements of. supplementary amendment 7. All such requirements were conditions precedent to the institution and successful maintenance of an action in forcible detainer. Having failed to prove compliance with them, appellee, under the rule announced in Ritchie v. Johnson, supra, was not entitled to judgment. (See, however, Part 1388 — Rent Regulation for housing effective June 1, 1943, 8 Fed. Reg. 7322-7334, inch, [Sec. 6(b) (2) and (d) (1)], which make certain changes in the requirements above referred to so far as they affect the defense-rental area of Wichita.)
We have not here attempted to pass upon any question pertaining to the status quo of the bill of particulars since appellant did not file a motion to make it more definite and certain or demur to it on the ground it failed to state facts sufficient to constitute a cause of action. For all we know if that had been done appellee might have sought and obtained permission to amend it so ás to show full compliance with the requirements of all statutes and regulations then in force and effect. Moreover, appellant raises no question as to the sufficiency of the bill of particulars on this appeal. All we hold is that since the record discloses appellee failed to prove the elements necessary to establish his cause of action the appellant’s demurrer to the evidence should have been sustained.
The judgment is reversed and the cause remanded with instructions to render judgment for defendant. | [
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The opinion of the court was delivered by
Parker, J.:
The action is for forcible detainer, originally commenced in justice court in Harvey county, Kansas, for the possession of a farm. Judgment in that court was rendered in favor of defendant for his costs, and the plaintiff appealed. In district court the plaintiff recovered judgment for restitution of the property and costs, and defendant brings the case here for review.
It is not necessary to relate at length the facts responsible for the commencement of this lawsuit. They can be briefly stated. The plaintiff claimed right of possession on March 1, 1943, of a certain farm which defendant had been occupying as a tenant from year to year. Prior to that date differences had arisen regarding possession. Defendant claimed those differences had been settled a few days before by an oral agreement between the parties wherein he agreed to deliver possession of the premises on March 1 upon payment to him by plaintiff of $250, and that the agreement was to have been reduced to writing but remained oral because of plaintiff’s failure to so execute it. The $250 was not paid, the defendant refused to give possession of the farm and the action was instituted.
At the trial in district court, plaintiff adduced evidence in support of her claim she was entitled to possession on March 1, 1943. Defendant in defense sought to show the contract of settlement, the terms of which according to his version, authorized him to retain possession of the premises until payment of the sum agreed upon. The trial court first received the evidence as to the terms of the alleged agreement, but later struck it out on the theory that an agreement pertaining to the right of possession of real estate, and alleged to have settled such right even though entered into prior to the institution of the action, could not be relied upon as a defense in a forcible detainer suit. Without this testimony defendant had no evidence to support his position he was entitled to retain possession until payment of the amount agreed upon, and the trial court thereupon rendered judgment against him as heretofore indicated.
Appellant’s specification of error raises but one question and that is whether the trial court erred in excluding the evidence sought to be introduced by him with respect to the settlement agreement. Appellee concedes that fact, but has filed a motion to dismiss and insists such question cannot be heard upon its merits because the principal issue involved in the lawsuit — possession of the real estate —has become moot.
We fully understand the desire of counsel for appellant to have determined the issue raised by him in his specification of error. We, too, are interested in that question, for it comes to us with somewhat of a shock it should be seriously questioned that the right of possession to real estate involved in a forcible detainer action cannot be determined by a contract of settlement entered into between the parties prior to the institution of the action, or, to put it in different form, that evidence as to the terms of such a contract should be held to be inadmissible on the ground that regardless of the import of those terms they had no bearing upon the rights of the parties to possession of such property.
Long ago, in Conaway v. Gore, 27 Kan. 122, 126, cited with approval in McClain v. Jones, 60 Kan. 639, 57 Pac. 500, and Dineen v. Olson, 73 Kan. 379, 85 Pac. 538, as well as other cases which could be mentioned, this court in determining the right of possession in a forcible detainer action said:
“Every defense which a party may have to any action brought against him, whether such defense be legal or equitable, he may interpose in that action, and is not driven to another court or another form of action to assert such defense.” (p. 126.)
That this statement is in accord with the weight of authority seems to be unquestioned. (See 36 C. J. S. 1166, § 26; 22. Am. Jur. 939, § 41, and 36 C. J. 644, § 1846.)
Regardless of what has just been said and notwithstanding the temptation this case presents for a decision on its merits we feel compelled, in view of appellee’s motion and what has been held by this court in the past in disposing of appeals where it appears the issue has become moot, to hold the instant action must be dismissed.
The general rule that courts will not ordinarily consider and decide a question where it appears that any judgment they might render would be unavailing is too well recognized to admit of any dispute. It has been applied frequently and under varied circumstances by this court. (See Dickey Oil Co. v. Wakefield, 153 Kan. 489, 111 P. 2d 1113, and cases there cited.) This is true notwithstanding the fact a decision on the merits of the appeal might result in a different judgment so far as costs of the action are concerned. (Anderson v. Cloud County Comm’rs, 90 Kan. 15, 132 Pac. 996, and Meyn v. Kansas City, 91 Kan. 29, 136 Pac. 898.)
With specific reference to the subject of moot issues on appeal in forcible detainer actions we have held:
“The court will not consider the merits of an appeal from a judgment of forcible detention, rendered against a tenant claiming under a lease, after the lease has expired; and the fact that in the course of the litigation the tenant has given bond not to commit waste and to pay double value of the use, and damages, does not give him a continuing right to a decision on the merits.” (Geinger v. Krein, 103 Kan. 176, syl., 173 Pac. 298.)
“An appeal by the plaintiff in a forcible entry and detainer case will not be considered on its merits where his right of possession will expire before a reversal would, in the usual course of procedure, become effective, and the time for which the defendant claimed a right of possession has already expired.” (Hall v. Briggs, 104 Kan. 277, syl., 178 Pac. 477.)
And said:
“Assuming that the defendant’s version of the contract is correct, his right of possession under the lease has now expired. The controversy having become moot, the appeal is dismissed.” (Hesser v. Bale, 114 Kan. 750, 220 Pac. 274.)
. . when the tenant moved off the real estate the question at issue in the forcible detainer action became moot.” (Leander v. Main, 140 Kan. 610, 612, 38 P. 2d 319.)
We are not unaware of the fact that a careful analysis of the opinions in the cases just referred to will reveal that the decision in each of them was based upon facts not altogether similar to the factual situation herein involved and that at first glance there may seem to be some room for differentiation between those cases and the one at bar. It must, however, be conceded by the careful analyst that the general principle involved is identical. With that thought in mind we turn to a consideration of the ease at bar. It must be remembered the contract relied upon by appellant is an oral one. Notwithstanding, he contends its terms gave him the right to remain on and retain control of the real estate until the $250 was paid. Giving this oral agreement, conceding it was a completed contract, the force and effect placed upon it by appellant it purported to create an interest in and concerning land and was within the provisions of our statute of frauds (G. S. 1935, 33-106). So considered, since appellant’s rights in and to the premises must be predicated upon such oral agreement, we think the instant case comes within the rule announced in the decisions last above referred to, that the controversy as to possession of the real estate, is now moot and the appeal must be dismissed. Under the circumstances we think the fact the appellee was placed in possession of the property under a writ of execution does not alter the situation. A different conclusion might be reached had the contract been reduced to writing, but since it was not this court could accomplish no practical result by rendering a formal judgment on the issue raised by appellant’s specification of error.
For the reason that the question involved in the forcible detainer action — the right of possession to the real estate — is no longer a subject of controversy and is a mooted issue, the appeal is dismissed. The result is, the judgment of the district court will remain undisturbed. Since under the issues there considered the alleged contract of settlement was regarded as having no force and effect in the action, such judgment is now interpreted as having to do only with the right of possession to the real estate, and it will not be a bar to a proper proceeding if and when one is instituted on the theory the terms of such contract entitle appellant to other relief.
The appeal is dismissed.
Smith, J., dissents. | [
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The opinion of the court was delivered by
Thiele, J.:
The question in this appeal is whether the trial court erred in denying plaintiff’s motion to dismiss defendant’s cross petition for want of jurisdiction.
On January 23,1943, plaintiff commenced his action in the district court. The petition alleged that plaintiff was the duly appointed, qualified and acting administrator of the estate of Albert Renspeas, who died November 6,1942, being at the time of his death the owner of certain personal property of the reasonable value of: $957.50, an exhibit being attached showing the items and value of that property; that defendant had wrongfully taken possession of the property, claimed to own it and had converted it to his own use; that plaintiff waived the tort and was entitled to recover the value of such property as on implied contract. He prayed judgment accordingly.
To this petition, defendant filed an answer and cross petition. In his answer defendant alleged that he and Renspeas occupied a farm belonging to the latter, under an arrangement where each owned a one-half interest in sixty-seven head of sheep; that defendant owned the property set forth in the above-mentioned exhibit, as well as certain other personal property; that Renspeas, in addition to the share of crops and a one-half interest in the sheep, owned certain other described personal property and that about November 24, 1942, the administrator, with full knowledge of all the facts, procured an order of sale from the probate court and sold to the defendant all of the personal property on the farm which belonged to Renspeas, it being understood and agreed by the administrator and the defendant that all of the personal property on the farm and belonging to the estate of Renspeas was thereby sold. Copies of various probate court records were attached as exhibits.
In his cross petition defendant alleged that in 1942 there was sold from the farm wool in the amount of $209.41, and sheep in the amount of $443.17, in which defendant had a one-half interest, but that the proceeds were deposited to the credit of Renspeas, and by reason thereof the estate of Renspeas should account to defendant for one-half of the proceeds. The prayer of the answer and cross petition was that plaintiff be denied a recovery of any amount upon his petition, but that he be required to account for the amount belonging to defendant and directed to pay such amount to the defendant.
Plaintiff filed his motion setting forth that the district court had no jurisdiction of the matters and things alleged in the cross petition and moved that the cross petition be dismissed for lack of jurisdiction. This motion was denied and plaintiff appeals. Both parties treat the motion as though it were a demurrer and we shall so consider it.
We here note that there is no claim that any partnership existed, and that defendant had any right as surviving partner to administer the partnership estate.
In support of the trial court’s ruling, the appellee construes his cross petition as an assertion of his ownership of one-half of the proceeds of the property sold and which were deposited to the credit of Renspeas, and he argues that if the deposit was made by mutual agreement or in some other manner in which he did not part with his ownership, there should be no reason why he is not legally entitled to prove his interest. The argument assumes facts not pleaded. As has been stated, in his answer defendant pleaded an oral agreement between himself and Renspeas, whereby each was entitled to a one-half share in the crops produced and each of them owned a one-half share of the sheep. Giving to the cross petition a liberal interpretation, all that is alleged is that Renspeas sold jointly-owned property and failed to account to defendant for one-half of the proceeds. Defendant asks for an accounting and that the administrator be directed to pay him. Ordinarily a prayer is no part of a petition or answer but at times it is informative. We think that defendant is not seeking recovery of a specific asset which he owned, but is merely asserting a claim against the estate. Under repeated decisions of this court that claim had to be pursued in the probate court. See Egnatic v. Wollard, 156 Kan. 843, 137 P. 2d 188, and cases cited. Had the defendant instituted an original action on the same matters alleged in his present cross petition, it would have had to be in the probate and not in the district court.
Appellee, however, further directs our attention to those provisions of the code of civil procedure that in an answer a defendant may set up a counterclaim or setoff (G. S. 1935, 60-710) and that—
“When cross demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim or setoff could have been set up, neither can be deprived of the benefit thereof by the assignment or death of the other or by reason of the statute of limitations; but the two demands must be deemed compensated so far as they equal each other.” (G. S. 1935, 60-715.)
and contends that by reason thereof, he may assert the matters alleged in his cross petition.
It may be observed that the allegations of the cross petition are such that they do not constitute a counterclaim under the definition of our code. (G. S. 1935, 60-711.) They may, however, constitute a setoff under provisions of section 60-713 of that code.
We here note appellant’s contention that the above-quoted statute has no application here for the reason that no cross demands existed in the lifetime of Renspeas; that at his death he was in possession of the property converted, and that the conversion occurred thereafter. We shall not pursue the argument to determine whether it is sound.
The general rule as to when the court may entertain a setoff is stated thus in 57 C. J. 374:
“In the absence of statutory provisions extending its jurisdiction a court may entertain a counterclaim, setoff, or reconvention only where it would have jurisdiction to entertain'the claim originally; and the cross demand must be within the jurisdiction of the court as to subject matter, amount, or territorial limitations, . . .”
That rule was followed by this court in Lyman v. Stanton, 39 Kan. 443, 18 Pac. 513, 40 Kan. 727, 20 Pac. 510, wherein territorial limitations were involved. See, also, Penn. R. R. Co. v. Musante et al., 42 F. Supp. 340, and 47 Am. Jur. 736.
The record as abstracted does not disclose the trial court assigned any reason for its ruling, but it is stated in appellant’s brief the trial court held the view that if an action based upon the allegations of the cross petition had been originally filed in the district court, that court would not have had jurisdiction, but that it seemed to be the view of the trial court the matters could be pleaded as a matter of pure defense, and considerable space in the briefs is devoted to that phase of the matter. Both parties refer to Muckenthaler v. Noller, 104 Kan. 551, 180 Pac. 453, in which it was held:
“Statutes of limitation, are not applicable to mere defenses.
“Section 24 of the code of civil procedure, which declares that, ‘When a right of action is barred by the provisions of any statute, it shall be unavailable either as a cause of action or ground of defense,’ is construed to mean that a barred right of action cannot be used as a setoff, or counterclaim, or for the purpose of obtaining affirmative relief, but not to apply to matters of pure defense.” (Syl. ¶¶ 3, 4.)
It is not clear that the rule of that case is applicable here. According to the record as abstracted Renspeas died November 6,1942, and an administrator of his estate was appointed soon thereafter. The present action was filed January 23,1943, the answer and cross petition was filed March 19, 1943, and at the later date no claim was barred. In the Muckenthaler case, the trial court had held a defense that defendant’s signatures had been procured by fraud was barred. The correctness of that holding was the principal basis of the appeal, and it was the determination thereof that led to the rulings quoted above. The above case and others that followed it were all noticed in McCarthy v. Sink, 152 Kan. 659, 107 P. 2d 790, and in the course of the opinion it was said:
“In the cases where the rule stated was applied, the defensive matter was connected with and grew out of the same transaction or matter which formed the basis of the plaintiff’s claim.” (1. c. 671.)
Were the rule of the Muclcenthaler and succeeding cases followed we would still be confronted with the fact that the alleged conversion by the defendant and the alleged basis of accounting did not arise out of the same matter, and only by going back to the original arrangements between Renspeas and the defendant may it be said they pertain to any transaction common to the claims of both.
Further, an examination of the cross petition shows it was not pleaded as a matter of pure defense. It seems clear from that pleading, the purpose was that regardless of the outcome of the cause of action alleged in the petition and as defended in the answer, the cross petitioner sought to recover a money judgment against the estate of Renspeas.
We think the trial court erred in its ruling, which is reversed and set aside. | [
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The opinion of the court was delivered by
Johnston, J.:
The testimony held by the court to be insufficient to send the case to the jury showed that the 250 steers sold to Martin on November 9, 1885, and the 109 steers sold in the following March, were undoubtedly the property of the Inter-State Galloway Cattle Company at the times of sale. If further disclosed that the company had never received payment for the cattle sold. When the first lot of 250 steers was sold, Martin executed a mortgage on them to secure the payment of the purchase-money, in which the cattle were described by marks and brands, and all must concede that the mortgage on its face was valid. When a sale of the remainder of the herd was made, in March, 1886, a mortgage was made to secure the payment of the purchase-money, and the cattle were then properly described by marks and brands, and that mortgage appears on its face to be valid. The two mortgages covered all the cattle sold by the plaintiff to Martin, and so far as the testimony shows, all the cattle which Martin owned or had in his possession. The mortgages were taken in good faith to secure the payment of the purchase-money, which has never been paid, and the mortgages have never been assigned, canceled or satisfied by the plaintiff. On November 1, 1886, when the defendant claims to have acqnired an interest in the cattle, the plaintiff’s mortgages were on file in the office of the register of deeds, in Lincoln county, where Martin resided, and anyone examining the records would have discovered that the mortgages were then in force and apparently valid.
The nature of King’s interest in the property is not clearly shown. Martin claimed that he drove the cattle to Jewell county to be fed, and it seems that some of his employés continued to care for the cattle after their removal to King’s ranch. There is testimony tending to show that King was informed of the mortgages given by Martin to the plaintiff, and some testimony tending to show that Martin obtained part of the money derived from the loan made by McClain. It is claimed by McClain that he made the loan to King, whom he did not know, without seeing the cattle, or without examining the records; and he further states that “it is a rare thing to make an examination in Kansas.” In addition to the notice disclosed by the records in Lincoln county, it appears that an additional mortgage was given by Martin to the plaintiff after the cattle had been removed to Jewell county, and that mortgage-was on file before any of the alleged negotiations had occurred between King and McClain. The conduct of Martin and King casts suspicion on them, and the time and manner in which the cattle were shipped by McLain, as well as the shifting of them from one side of the state line to the other when discovered, should be considered in determining the good faith of their transactions. There was testimony tending to show that the cattle were worth about $18,000 at the time they were taken by McLain, while according to his own testimony the amount of his lien was $10,000. The plaintiff did not even get the benefit of the 'surplus under the judgment that was given. In our opinion the demurrer to the evidence should have been overruled. If the mortgages given by Martin to the plaintiff can be upheld, then both King and McLain are charged with notice of the liens which they created, and the plaintiff is entitled to recover. To sustain the ruling of the court it is urged that because there was no separation at the time the sale was made to Martin and the mortgage executed by him on November 9, 1885, the mortgage is invalid. It is true that the 250 steers were not separated from the rest of the herd at that time. There were 361 in the herd, and Martin purchased 250 of an average of the 361, agreeing to drive the remaining 111 to his place in Lincoln county and keep them until called for. For the plaintiffs it is contended that by this agreement they held the cattle as tenants-in-common, and the interest of each was fixed in proportion to their respective shares — that is, Martin owned and plaintiff of the herd, and therefore no difficulty could arise in the matter of selection. If it is granted, however, that the mortgage first given was invalid in law, it would at least constitute a valid equitable lien as •between the immediate parties, which could be enforced in accordance with their intention. Long before the rights of King or- McLain, if they had any, intervened, the second sale was made, and Martin became the owner of the entire herd. The mortgage then made covered the rest of the cattle, and the two together covered the entire herd. After he became the owner of all, and had mortgaged all, the necessity for separation no longer existed. No rights intervened between the filing of the first mortgage and the execution of the second; and the first, creating at least an equitable lien, was cured of any defects in the description or for lack of separation by the subsequent action of the parties. The agreement and action of the parties indicate that they intended Martin to become the owner of all the steers, and that he should mortgage all to secure the payment of the purchase-price ; and by relation, the second mortgage cured the invalidity of the first. The mortgage on the 109 head was dated at the same time as the one first given, Martin taking them as of November 9, 1885, upon the same terms and conditions as the first were purchased upon, and relieving the plaintiff from any charge for feeding the 109 head while Martin had them in his possession. We are only following the purpose and action of the parties when we treat their several actions as a single transaction. If the company had sold 250 steers out of the herd to Martin on one day, and taken a mortgage back on that number, and on the following day had sold the 111 steers and taken a mortgage on them, it would hardly be questioned but that it should be treated as a single transaction, and that, as all were mortgaged, no selection or separation would be necessary. As no rights intervened during the time that elapsed between the tw.o sales, the case supposed does not differ from the one we are considering. Taking these transactions together, as they should be considered, the mortgages include all the steers sold to Martin, and so far as the testimony shows, all that he owned or had had under his control, and hence the description cannot be regarded as insufficient. (Brown v. Holmes, 13 Kas. 482; Shaffer v. Pickrell, 22 id. 619; King v. Aultman, 24 id. 246; Mills v. Lumber Co., 26 id. 574; Sims v. Mead, 29 id. 124; Crisfield v. Neal, 36 id. 278; Schmidt v. Bender, 39 id. 437.) All the steers which Martin had purchased or which he owned having been mortgaged, there could be no difficulty in identifying the property covered by the mortgages.
We may look beyond the description in the instruments for purposes of identification. In general, a description which will enable third persons, aided by such inquiries as the mortgage itself suggests, to identify the property, is sufficient. If the defendant had examined the records of Lincoln county, as it was his duty to do, he would have found the two mortgages dated November 9, 1885, in which the cattle were described by their ages and the marks and brands which they bore, and wherein it is stated that they are the cattle purchased from the plaintiff. If he had pursued the inquiry suggested by the instrument, he would have discovered that Martin had purchased the entire herd of cattle, and had mortgaged them all to the company to secure the payment of the purchase-price; and that all the cattle which Martin had purchased or held in his possession were those particularly described by marks and brands in the mortgages which he had given. He could not possibly have been deceived in respect to the property intended to be mortgaged, nor could he be prejudiced by the failure to separate the cattle when the first purchase was made. If he had examined the records of Jewell county, where the cattle were held at the time the mortgage to him was executed, and where King, who claimed to be the owner, resided, he would have learned the history of the transactions between the cattle company and Martin; but instead of examining the records of either Lincoln or Jewell counties, as ordinary prudence even would dictate, he claims to have invested $10,000 in a roving herd of cattle that he had never seen, the owner of which he does not know, and without examining the records to ascertain whether this stranger had a title to the cattle, or whether there were any existing liens upon them. The contention of the defendant that the lack of separation when the first, purchase was made invalidated the mortgages, if good, goes too far for his purpose, and virtually denies his own claim of title. If that fact rendered the mortgage void, it would for the same reason invalidate the sale to Martin; and as a person cannot sell or mortgage property which he does not own, neither Martin nor King could convey any interest in the cattle to the defendant. But as we have seen, the purchase of all the cattle rendered the separation unnecessary, and the mortgaging of all removed any doubt as to what property was intended to be covered by the mortgages. If the defendant had taken the description contained in the mortgages and gone to Martin for explanation, and to the place where the cattle were kept, and there examined them to see if they bore the marks and brands described in the mortgages, and pursued the inquiries which the mortgages suggested, he must have been satisfied that the Inter-State Galloway Cattle Company held an existing lien upon the steers offered to him as security for his loan, and that neither King nor Martin had any right to mortgage, sell, or otherwise dispose of them. If the plaintiff showed upon trial that it owned all or any of the cattle, or had any interest in them or in the surplus over and beyond any claim of the defendant, then the judgment is erroneous. Before the court can take a case from the jury upon a demurrer to the evidence, it “must be able to say that, admitting every fact that is proved which is favorable to the plaintiff, and admitting every fact that the jury might fairly and legally infer from the evidence favorable to the plaintiff, still the plaintiff has utterly failed to make out some one or more of the material facts of his case.” (Brown v. Railroad Co., 31 Kas. 1.) The evidence offered clearly tended to establish the issue prerented by the plaintiff, and should have been submitted to the jury. The judgment of the district court will therefore be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Opinion by
Clcígston, C.:
The defendant was charged with the murder of her husband, J. I). Tennison, by means of poison, and was convicted of murder in the first degree upon that charge. Numerous errors are assigned in the record for reversal; but deeming the last one of the most importance, and of sufficient magnitude to require the reversal of the judgment, we shall not pass upon the other questions presented.
The defendant at the trial did not testify as a witness on her own behalf, and no confession of the commission of the offense charged was proven. John T. Burris, one of the counsel for the state, made the closing argument, and in the latter part of his argument used the following words: “The defendant is the only living person who knows the truth of the charge against her, and she has refused to divulge it. She says that she is innocent, and it devolves upon the state to prove her guilt by circumstantial evidence.” To this statement counsel for the defendant at the time objected and excepted; and the court then said that no reference must be made to the defendant’s failure to testify, and said to the jury that they had been instructed upon that point, and must not consider the same. Thereupon counsel Burris said that he had no “reference to that matter, but far from it,” and proceeded with his argument. Defendant insists that this statement by counsel was in violation of §215 of the criminal code, part of which section is as follows:
“And provided further, That the neglect or refusal of the person on trial to testify, or of a wife to testify in behalf of her husband, shall not raise any presumption of guilt, nor shall that circumstance be referred to by any attorney prosecuting in the case, nor shall the same be considered by the court or jury before whom the trial takes place.”
With some hesitation, we agree with counsel for defendant. While it is not very clear that this statement was made with the intention of calling the jury’s attention particularly to the fact that the defendant did not testify, yet we think it was calculated to attract their attention in that direction. The crime charged was death caused by the administration of poison, and the state relied upon circumstantial evidence to establish it. The record fails to disclose any direct testimony that poison was administered by the defendant. She then was the only living person who knew the truth of that charge, and as counsel said, she refused to divulge it. As far as the trial was concerned, there was but one of two ways in which she could have divulged it: either by confession of the crime, or.by going upon the witness stand and testifying to her innocence; and doubtless the jury so understood it. It is obvious from the remarks of the court, that the court thought the jury likely to so consider it, and therefore instructed them, or referred them to a former instruction upon that point.
In conclusion, we can do no better than to quote the language of Mr. Justice Valentine in the case of The State v. Moseley, 31 Kas. 357:
“We understand the statute is explicit that when a defendant in a criminal case declines to testify in his own behalf, absolute silence on the subject is enjoined on counsel in their argument on the trial, and that the court will hold the prosecuting attorneys to a strict observance of their duty in this respect.”
(See Long v. The State, 56 Ind. 182; The State v. Balch, 31 Kas. 465, and cases there cited; City of Topeka v. Myers, 34 id. 500.)
Counsel for the state, however, insist that if the statement made in the argument was error, it is not properly included in the bill of exceptions, and cannot be revived here. This claim is based upon thé fact that it is included in the bill of exceptions, and is not in the form of an affidavit presented to the court upon which counter proof might have been made. Counsel seem to forget the universal rule that what is done in the presence of the court and made of record, cannot be disputed by affidavit. Coming in this way, it is the best form that it could be made of record, and is the better practice and ought to prevail. (Henning v. The State, 106 Ind. 391.)
Again, counsel insist that the objection, being made in the motion for a new trial, came too late; that at the time the counsel for the state made the objectionable statement to the jury, it wás the duty of the defendant, if she saw fit to avail herself of the error, to ask that the jury be discharged and a new trial granted. We think this claim not tenable. This occurred in the closing argument of the case, at the last moment of the trial, and we think when presented in the motion for a new trial it was in time.
It is therefore recommended that the judgment of the court below be reversed, and the cause remanded for a new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The plaintiffs in error now contend that the tax-payers of Chetopa are not liable for this tax, for the reasons, first, that the city of Chetopa is no part of the township of Richland. Second, that the funding bonds were illegally issued — first, because in excess of the amount authorized by law; second, in excess of the amount stated in the notice and proclamation of election; third, because the notice of election gave only fifteen days’ notice, whereas the statute requires that thirty days’ notice of such election be given the electors. Third, that the funding bonds created a new obligation upon Richland township, which was created after the city of Chetopa became a city of the second class and had ceased to be a part of the township. Fourth, and lastly, they claim that they are protected by the statute of limitations. Plaintiffs in error base their claim that the city of Chetopa is a city of the second class, and no longer a part of the township of Richland, upon chapter 59 of the Laws of 1871, which by title is an act authorizing certain cities therein named to incorporate as cities of the second class. This statute was an act to incorporate the city of Chetopa and the city of Garnett, in Anderson county, cities of the second class; and plaintiffs in error contend that under the authority of Corporate Powers of Council Grove, 20 Kas. 619, they are at least a de facto city of the second class, and that, being a defacto city, the defendants cannot question its organization. In other words, that the state, having attempted to incorporate the city as a city of the second class, alone can question the regularity of that proceeding. While on the other hand it is claimed that this act is in violation of §1, article 12 of the constitution. This statute is in direct violation of the constitution, and conferred no powers upon the city by which it could become a city of the second class. It is true, as stated in Corporate Powers of Council Grove, supra, that the city was a de facto city of the second class, and as such might not defend against its own acts done while purporting to act as a city of the second class; but this case presents a different question. Here, the city is claiming protection by reason of its organization under an act which violates the constitution. The city is claiming protection from the payment of a debt which was created when it was a part of the township of Richland, and is seeking immunity from taxation by reason of this unconstitutional act of the legislature. This we think the city cannot do. And as far as this act of the legislature is concerned, the city of Chetopa must be held to be still a' part of Richland township, and a city of the third class.
The next proposition — that the city of Chetopa is not liable, because these funding bonds must be collected of the township only, as the city is no longer a part of the township — falls with the first proposition. It was a part of the township, and therefore a part of Richland township, at the time of the voting and issuing of the bonds last named. However, if not a part of the township at the time of the issuing of the funding bonds, that, under the authority of Comm’rs of Marion Co. v. Comm’rs of Harvey Co., 26 Kas. 181, would not protect the city against the tax. In that case, bonds were issued while the territory songht to be taxed was a part of Marion county; afterward a township was detached, and added to Harvey county, and at the time the funding bonds were issued this township was so detached. Mr. Justice Brewer in that case said:
“There were, therefore, at the time of the division, certain bonds outstanding, which were a lien upon the detached territory, and the indebtedness evidenced by which bonds has never in fact been paid. The funding amounts to this, and nothing more: in lieu of one certain evidence of debt, another is issued. In consideration, it is true, of a change in the time and interest, a change was made in the amount promised to be paid. But this change was a reduction, and therefore a benefit to the debtor. Still, neither the one paper nor the other was the debt itself, but only the written evidence thereof. The debt remains the same. The change was in the evidence of that debt.”
The plaintiffs still insist that even if this be true, the city is not liable for this debt, for the reason that these funding bonds were illegally and irregularly issued; that a greater amount was issued than was authorized to be issued; that the notice of election gave fifteen days’ notice, when under the law there ought to have been given thirty days’ notice. It is true that these defects did exist, and if properly raised and at the proper time would defeat and destroy the bonds issued thereunder.
One fact is not disclosed by this record, and it is an important fact to be considered in connection with these irregularities : Who owned the bonds at the time this suit was brought ? If in the hands of the original purchasers, one question is presented; but if in the hands of innocent purchasers, a very different question. The plaintiffs are seeking to relieve themselves of a liability. They admit their original liability under the original indebtedness, and now if they can escape this tax it must be upon the ground of irregularity in the issue of these new bonds. As above said, the question whether or not these bonds can now be declared void must be largely deter mined by the question as to who owned the bonds. Before this court would be warranted in restraining and enjoining a tax, it must be shown that the tax is absolutely void; not void under a possible condition of facts, but void under the facts as they actually exist. The plaintiffs have given us no information in their petition, and the court does not aid us in its findings, and does not show whether these bonds were held by innocent purchasers, or not; and in the absence of that showing we must hold against the plaintiffs, and that they are held by innocent purchasers.
But to go back to the question: Defendants in error claim, admitting the irregularities, that this could not avail the plaintiffs, for the reason that after the issue of these bonds, Rich-land township levied taxes and paid for some nine years the interest and principal, and at the time this action was brought more than one-third of the funded debt had been paid; and they say that that township would be estopped from setting up these irregularities if suit was brought upon the bonds, because at the time the bonds were issued the bond-holders gave up to that township a valid indebtedness against it of $80,000, and took in lieu thereof these funding bonds for $49,000; that after this had been done the township could not keep the original bonds and then say that the funding bonds were void on account of these irregularities on the part of the municipal corporation or its officers. Against this argument plaintiffs urge that they are now called upon for the first time to pay taxes for this debt, and up to this time have never had any cause of complaint and no ground upon which they could have founded an action to enjoin the payment of the bonds; and this claim, so far as the facts go, is true. Can this avail them ? Why did they not take part in the proceedings leading up to the issuing of the funding bonds ? And why is it that no tax has been levied' upon their property ? It is by reason of their claim that they were outside of and no part of the township. It is perhaps true that the people of the township thought that the city was outside of the township, and for that reason the tax was not carried out upon the property of the city. This was a mistake of facts. Can this mistake on the part of the township serve as a protection to the city from this tax? In the first place, the city is in a better condition than it was before the original indebtedness of $80,000 had been cut down and merged into this new indebtedness, now less than $30,000. In equity can plaintiffs be allowed to say that by reason of these things they should not pay? "We think not. The findings of the court show that these bonds were voted by a majority vote of Richland township; they also show that the city took no part in the election, but there is no showing but that the votes cast at that election were a majority of all the votes even if the city had voted. The strong probability is, however, that the city had the larger number of voters, but no presumption can be indulged in to assist the plaintiffs in this action, and therefore we can fairly presume that the finding of the court was supported by the facts; that the votes cast at that election were a majority of the votes in the township, including the vote of the city. "We see no reason why the rule of estoppel should not be applied as against the township, and if good against the township then as to every inhabitant and tax-payer of the township; and for the purpose of this action the plaintiffs are estopped, as well as every other tax-payer, and the fact that they have escaped taxation heretofore is no ground why the doctrine should not be applied to them as well as against the township. The township paid taxes many years; the township received and canceled the bonds of the original indebtedness ; and while standing in this relation, with the’ presumption that the bonds are in the hands of innocent holders for value, we think that the township, as well as the plaintiffs, is estopped from alleging and setting up the irregularities complained of by plaintiffs. (Comm’rs of Morris Co. v. Hinchman, 31 Kas. 729; Brown v. City of Atchison, 39 id. 37; County of Tipton v. Locomotive Works, 103 U. S. 523; Marcy v. Township of Oswego, 92 id. 637; Ward v. Johnson, 95 Ill. 215; Thatcher v. The People, 98 id. 632; Meyer v. Brown, 65 Cal. 583; Whitney Arms Co. v. Barlow, 63 N. Y. 65; In surance Co. v. Bruce, 105 U. S. 328; Block v. Commissioners, 99 id. 686.)
The last claim made by plaintiffs is, that the statute of limitations has run in favor of the plaintiffs. The action of the township or township authorities determines this question. By an oversight, or by mutual mistake, the city has been left out, and has paid no part of this indebtedness during the nine years since the issuing of the funding bonds. Does this omission protect it from the payment of the balance of this indebtedness ? The township is liable still for the debt. There is no bar that the township could plead, and no limitation that it could claim, to protect it against suits, and we think that these individual tax-payers of the city of Chetopa are in no condition to claim protection from such a bar.
It is therefore recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The only question presented is, whether the amended petition states a cause of action against the Fort Scott, Wichita & Western Eailway Company. The defendant in error, whose property abuts on Kansas avenue, a street in the city of Newton, seeks to recover damages for the total obstruction of the street by the railway company, whereby he is deprived of the means of ingress and egress to and from his property. According to the averments of the petition, the road was built by the St. Louis, Fort Scott & Wichita Eailroad Company, in July, 1886; and in laying down its main and side-tracks on the street, deep ditches and trenches were made in front of Fox’s property rendering the street wholly useless to him as a means of access to his lots, or for any purpose except the operation of the railroad. The road was operated and the obstruction continued until May, 1887, when the railroad property was sold under a decree of foreclosure rendered by the United States circuit court. It was purchased by the Fort Scott, Wichita & Western Railway Company, which took possession of the property in July, 1887, and has continued to own and operate the road since that time. Whether either of the railroad companies obtained the consent of the city to appropriate the street for railroad purposes is not stated in the petition, but we understood counsel in the argument to concede that such consent was given. But whether the consent was given or withheld, the decision of the case under the allegations of the petition must be the same. In either event, Fox was entitled to damages. It is alleged that the entire street opposite this property is obstructed and rendered wholly useless as a highway or as a means of access to and from the lots. Under the doctrine repeatedly stated by this court, the abutting lot-owner is entitled to damages irrespective of any municipal authority or consent, and his right and the liability of the railroad company where there has been a complete obstruction of the street have been so well defined in this state that we need only to refer to the decided cases: Railroad Co. v. Garside, 10 Kas. 552; Railroad Co. v. Twine, 23 id. 585; Railroad Co. v. Andrews, 26 id. 702; same case, 30 id. 590; Railroad Co. v. Larson, 40 id. 301; Railway Co. v. Cuykendall, ante, p. 234; Railway Co. v. McAfee, ante, p. 239.
The plaintiff in error claims that the rule established by these cases does not apply, for the reason that the railroad was skillfully and properly constructed. This fact is conceded in the petition, but it does not relieve the railroad company from liability, or affect the determination of the question involved. If the city had granted permission to lay the railroad in the street, and it had been constructed in a proper manner, so as not to impair the usefulness of the street for public travel, or to prevent access therefrom to the abutting lots, Fox would suffer no injury for which he could recover; but neither the authority nor the manner of construction can make any difference where the entire street is appropriated and the lot-owner is cut off from all access to the street from his property. He suffers an injury not shared by the public generally when he is denied the use _ . „ . . , . aric* eDj°ymeufc or the adjoining street, and it is immaterial whether the proper and skillful construction of the road required the appropriation of the entire street or not. The right of access from the street to his property is an individual one as inviolable as the property itself, of which he cannot be deprived in any way without creating a liability against the wrongdoer for the consequential damages occasioned.
The principal contention of the plaintiff in error is, that it cannot be held liable in any way for these damages, for the reason that the road was built and the nuisance created by the St. Louis, Fort Scott & Wichita Railroad Company. It is true that a sale made as alleged would convey a title to the purchasing company, free from all claims for the general debts of the old company, but the liability for either the creation or continuance of the nuisance does not fall within that class. The old company was a wrongdoer, and had acquired no right to deprive Fox of the use of the street as a means of access to his lots. The company had made no compensation for this appurtenant to his property, nor had he in any way released or waived his claim for damages. The old company, having no right in this appurtenant, could convey none, nor could the claim for the continuing wrong and injury be divested by a sale under the mortgage foreclosure. If the owner had consented to the appropriation in any way, or had stood silent for a long time with knowledge of the occupancy, a different question would arise; but in this case he promptly pressed his claim for damages against the old company, and when the transfer of the property and franchises was made, he as promptly adapted his pleadings to the change of ownership, and proceeded against the new company. There has been neither waiver nor payment of the claim for damages. The obstruction and nuisance has been continued by.the purchasing company, and while it cannot be held liable for the wrongdoing of the old company, it cannot escape liability for the injury inflicted after it purchased and took possession of the road. The blocking of the street and continuance of the nuisance by the new company is as great an injury to the lot-owner as though that company had originally built the road and created the nuisance. It might have limited its liability if after taking possession of the road it had restored the street to its former condition, or to such a condition as not materially to impair its usefulness as a means of access to and from the property. Assuming the facts to be as stated, the company has chosen to block and appropriate the entire street for its own purpose, and both the company and the owner have treated the appropriation as a permanent one. For this permanent appropriation the plaintiff in error must respond in damages if the proof sustains the averments of the petition.
It is further said that as Fox’s premises extend to another street, over which the property may be reached, no action for damages can be maintained; and Railway Co. v. Cuykendall, supra, is cited as authority. The Commissioner, in writing the opinion in the case cited, used language of that import; but the court placed its judgment on the ground that the facts in the case showed the building of the railroad on the street as authorized by the city council did not destroy the street in front of the lots, nor prevent its use as a means of ingress and egress to and from the property. The additional reason for the judgment stated by the Commissioner is inconsistent with the former rulings of the court, and is not approved. In the Twine Case, 23 Kas. 585, damages were claimed and allowed because of an obstruction of an alley at the south end of the lot, notwithstanding it was accessible from a street a^. 0^er end 0f the ]0t. Tu the Andrews case damages were allowed for the obstruction of an alley at the south end of the property, although there was unobstructed access to the injured property by means of streets on the west side and the north end of the same property. (26 Kas. 702; 30 id. 590; 41 id. 370; 21 Pac. Rep. 276.)
The judgment of the district court will be affirmed.
All the Justices concurring.
In the cases of Fort Scott, Wichita & Western Rly. Co. v. T. V. Morse, No. 4983, and the same plaintiff v. D. Hamill, No. 4984, the facts are substantially the same as in the Fox case, were submitted on the same argument, and as the same legal questions are involved, it follows that the judgment of the district court in each case must be affirmed.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The plaintiff in error now claims that this judgment is erroneous, upon two grounds: First, that the judgment was for the entire tract of land, when the plaintiff below only claimed and proved ownership of the undivided three-fourths; and second, that by reason of his contract with James R. Greer, and the subsequent contract with Joseph D. Greer to carry out the former contract, and the fact that after such contract he (plaintiff in error) purchased Janes’s title and interest, paying full value therefor, and thereafter, with, the knowledge of Greer, made improvements upon the land, that by reason of these facts he has an equitable title and interest in the land paramount to the rights of plaintiff Janes. In answer to this claim the defendant in error insist» that the contract made with James R. Greer was entirely destroyed by reason of the foreclosure proceedings by the A. T. & S. F. Rld. Co., and in that sale all the rights of Greer, and the rights flowing through Greer were extinguished, and that the contract made by Joseph D. Greer to carry out that contract afterward was without consideration, and therefore void.
We are inclined to the former of these views. There is no serious contention but that this judgment was erroneous as to the undivided one-fourth of the land, and as to that the plaintiff below had no right, and the court below could not render judgment for that fourth; and in that respect the judgment was wrong. It is true that the proceedings of the A. T. & S. F. Rid. Co. to foreclose that contract against Fielding Johnson and son, and Greer extinguished whatever claim Janes and Holmden had to the land. That contract was not of record, and there was nothing to notify the company that they claimed an adverse interest to Greer; and therefore, perhaps they were not necessary parties to that suit. After the land was purchased by Joseph D. Greer, he agreed to carry out that old contract made by his father. This he had a right to do. His father had received $190, and a piece of land had been turned over to him under that contract; and when Greer made this contract with Janes and Holmden, and permitted Holmden to purchase Janes’s interest therein at its full value, in good faith, relying upon this contract with Greer, and thereafter made valuable improvements upon the land, with Greer’s knowledge, these facts we think would remove this contract from the statute of frauds, and was binding upon Graves and binding upon Janes, who had knowledge of the contract. It is claimed that there is some evidence showing that Graves never consented to this arrangement, but we think the evidence is overwhelming that he did agree to this contract, and that he would carry it out; but if he did not, still we think he would be bound by the fact that Holmden was holding the adverse possession of the land. He knew that Holmden was in possession, and with this knowledge he was bound to know at the time he purchased the land of Holmden’s rights, whatever they may have been; and as to Janes, the defendant in error, there is no pretense but that he had full knowledge of the entire facts.
We are therefore of the opinion that the judgment of the court below was erroneous, and recommend that the judgment be reversed, and the cause remanded for a new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The information upon which the defendant was convicted was based upon § 57 of the crimes act:
“Every person who shall burn any building, boat or vessel, or any goods, wares or merchandise, or other chattels, which shall at the time be insured against loss or damage by fire, with intent to defraud or prejudice the insurer, whether the same be the property of such person or any other, shall be, upon conviction, adjudged guilty of arson in the third degree.”
No motion to quash was filed or presented, and the defendant pleaded not guilty, and afterward, upon the trial, objected to the introduction of any evidence against him, upon the ground that the information did not state facts sufficient to constitute a public offense. This objection was overruled. Of this, complaint is made. In overruling the motion to exclude the testimony, there was no error. It was decided many years ago in this court, in Rice v. The State, 3 Kas. 141, that—
“ The proper time to raise the question of the sufficiency of the indictment before verdict, is by motion to quasb; after verdict, by motion in arrest of judgment: and it seems it is not correct practice, after the jury is sworn and trial commenced by placing a witness on the stand, to move to exclude all testimony under the indictment, on the ground that it does not charge a public offense.”
No motion in arrest of judgment was filed, and hence we might end the case at this point with an affirmance of- the judgment. But treating the language of the motion for a new trial as a motion in arrest, we will examine further. The contention is, that the following words of said § 57, “ which shall at the time be insured against loss or damage by fire,” are omitted from the information, and therefore that it is fatally defective. Upon a motion in arrest, we do not think the objection well taken. It was necessary at the trial, under the allegations of the information, to prove that the barn was insured against loss or damage by fire, in order to establish the intent of the defendant to defraud the insurers. The insurers were named as the German Insurance Company, of Freeport, Illinois, and the Fireman’s Fund Insurance Company, of San Francisco, California. So the testimony that was presented, and was necessarily presented under the information, was the same as if the omitted words were embraced therein. There could be no intent to defraud the insurers in burning the barn described in the information, unless at the time of the fire the property was insured against loss or damage, by the companies named. We think that the averments of the information as made, were in legal effect equivalent to a charge that the barn, at the time of its destruction, was insured against loss or damage 'by fire. It is a principle of pleading that whatever is included in, or necessarily implied from, an express allegation, need not be otherwise averred. (Baysinger v. The People, 115 Ill. 419.)
The defendant, the court and the jury all well understood from the information the offense with which the defendant was charged; this is too clear to admit of serious doubt. If the insurance of the barn at the time of the burning was neces sarily implied from the express allegations in the information, the indictment is certainly sufficient as against an attack after trial and a verdict of guilty. The criminal code provides that “words used in the statutes to define a public offense need not be strictly pursued, but other words conveying the same meaning may be used.”
Section 109 of the criminal code declares that —
“The indictment or information is sufficient if it appear therefrom: . . . Third, That the offense was committed within the jurisdiction of the court, or is triable therein. Fourth, That the offense charged is clearly set forth, in plain and concise language, without repetition; and, Fifth, That the offense charged is stated with such degree of certainty that the court may pronounce judgment upon conviction, according to the right of the case.”
Section 293 of the criminal code further says that—
“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect, the substantial rights of the parties.” „
In City of Kingman v. Berry, 40 Kas. 625, there was no motion made to quash the complaint, and its sufficiency was never brought to the attention of the court until after trial and verdict, when a motion in arrest of judgment was filed. It was said in this case that—
“It then was too late [for the defendant] to avail himself of any technical error in the form of, or mere imperfection in, the statement of the complaint. Defects in a criminal pleading which might be held bad in a motion to quash, if one was made, are not always sufficient, after a verdict of guilty, to arrest a judgment.” (See also The State v. Rook, just decided.)
All the exceptions will be overruled.
The judgment of the district court must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This is an original proceeding in mandamus, brought to compel the county officers of Wallace county to hold their offices at Sharon Springs, which is alleged to be the county seat of Wallace county. The cause was submitted upon the pleadings and admissions of the parties, and the material facts upon which the controversy depends are substantially as follows: Wallace county was organized by the governor on January 5, 1889, and a majority of 94 of the legal voters of the county having expressed a choice for Sharon Springs, that place was designated by the governor as the temporary county seat. Following upon the organization, the legislature passed an act entitled, “An aot to enable the county commissioners of Wallace county to settle and prevent controversies arising out of the organization thereof, by retaining the town designated by the governor as the temporary county seat of said county for five years; and by paying certain claims which accrued before its valid organization.” This act was approved on February 27, 1889, and went into operation on March 2, 1889. (Laws of 1889, ch. 114.) Section 1 of this act provides for the settlement of claims which accrued after the first organization of the county, in 1868, and prior to the present organization, effected in 1889. Sections 2 and 3 of the act authorize the retention of the county seat at the place designated by the governor for a period of five years, and prescribe the method of accomplishing it, and are as follows:
“Sec. 2. The board of county commissioners of Wallace county, in the state of Kansas, are hereby authorized to retain the town designated by the governor as the temporary county seat of Wallace county as the county seat of said county for five years from the passage of this act.
“Sec. 3. If the said board shall within thirty days from the taking effect of this act find and enter on the journal of its proceedings that it is for the public interest to retain the town designated by the governor as the temporary county seat of Wallace county as the county seat of said county for five years, then no election for the location or relocation of the' county seat of said county shall be called or held during the five years mentioned in section one.”
In pursuance of this act, and at a meeting regularly called for that purpose, the board of county commissioners of Wallace county, on March 7, 1889, found and determined that it was for the public interest to retain the town of Sharon Springs as the temporary county seat of Wallace county for five years, and that no election should be called for the location or relocation of the county seat during that period. The finding and order were duly entered in the journal of the proceedings of the board. The county commissioners then divided the county into townships, and called and gave notice of a special election to be held on April 15,1889, for the election of county officers, but no mention was made of a county-seat election, nor was any notice given that the question of permanent county seat would be voted upon at that election. When the election was held, votes were cast for the town of Wallace for county seat; but the friends of Sharon Springs, relying upon the legis lative act, assumed that uo election for the location of the county seat could be held within five years after the passage of the act, and therefore did not vote upon the question. After this first election a canvass was made of the votes cast for county officers, but no notice was taken of those cast for county seat. A new board of county commissioners was chosen at the election, and this board, being favorable to Wallace, convened and recanvassed the result of the election, and it found and declared that the town of Wallace had been chosen as the permanent county seat of the county by a majority of 54 votes. The county officers chosen at the first election, being favorable to Wallace, on April 25, 1889, removed the records and files of their respective offices from Sharon Springs to Wallace, where they still remain. The attorney general brings this proceeding to compel their return.
There is involved in the proceeding the validity of the act of February 27, 1889, and if that should not be sustained, then there would arise the question of whether the votes cast for county seat at the special election held on April 15,1889, are valid and can be counted in favor of the town of Wallace, no notice of such election having been given. It will be unnecessary to go further than an examination of the question as to the validity of the statute mentioned. The contention is that the act is in violation of §16 of article 2 of the constitution, in which it is provided that “no bill shall contain more than one subject, which shall be clearly expressed in its title.” It is claimed by the defendants that the authority to settle the claims which had accrued against the county of Wallace prior to the present organization constitutes one subject, and the provision authorizing the retention of the county seat at the place designated by the governor for five years is another subject, having no connection or relation with the first. There can be no complaint that the title to the act does not fairly indicate its subject-matter. It is comprehensive, and clearly covers the provisions and purpose of the act, which were a settlement of the controversy concerning the organization of the county. The status of that county had been a subject of dispute for more than twenty years. An organization was first effected in 1868, which was maintained for a time, and was vacated and set aside by the legislature in 1879. The effect of the act vacating the organization was not fully understood, some contending that the organization was not thereby annulled. In time the population of the county became so far reduced that all effort to maintain a county government was abandoned; but in 1886, a large number of people having settled in the county, some of them undertook to resuscitate the old organization and to set up a county government at the town of Wallace. This organization was continued for a period of nearly two years, during which time property was purchased for the county, debts contracted, and taxes were levied and collected. A full complement of county officers was chosen by the electors of the county, who severally performed the duties that are incumbent upon such officers in an organized county, and their organization was recognized as valid by some of the state officers. In 1888 a proceeding was begun in this court in which it was finally determined that that organization was invalid, and that Wallace was an unorganized county. (The State, ex rel., v. Hamilton, 40 Kas. 323.) Following this determination, the present temporary organization was effected, and Sharon Springs was chosen for county seat, as has been already stated. In addition to the debts contracted by the Wallace government in 1888 and 1889, a judgment had been rendered against the county in 1876, which had never been satisfied. When the present organization was effected these obligations stood unpaid, and within 120 days from that time another election upon the question of permanently locating the county seat would, under the general law, have been held. It seems that a sentiment existed among some of the people in favor of compromising and ending the controversy over the organization and the location of the county seat, by permitting Sharon Springs to retain the county seat for a period of five years without further contests, in case the indebtedness incurred by the Wallace government, and that which had ac crued before the present organization, should be paid. The outgrowth of this was the passage of the act, the validity of which is now challenged.
Viewed in the light of the facts, we think that neither the title nor the act itself embraces more than a single subject within the meaning of the constitution. The constitutional 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.” (The State v. Barrett, 27 Kas. 217.) As determined in that case, the title to an act may be as broad as the legislature may desire to make it, and it and the act may include innumerable minor subjects, provided all of these minor subjects are capable of being so united as to form one grand and comprehensive subject. The provisions of this act cannot be said to be incongruous or foreign to each other. They have a natural connection and relate to one general subject — the organization of the county or the settlement of a controversy concerning its organization. The act entitled “An act to establish a code of criminal procedure” is divided into 17 articles, each treating of separate matters. One of the articles treats solely of the custody and management of the estates of convicts, and provides for the appointment by the probate court of a trustee of the estate of a convict imprisoned in the penitentiary for a term less than life. The validity of this article was challenged in Woodruff v. Baldwin, 23 Kas. 491, and it was held not to be violative of §16 of article 2 of the constitution. In Comm’rs of Cherokee Co. v. The State, 36 Kas. 337, the validity of chapter 75 of the Laws of 1886, “An act to authorize the board of county commissioners of Cherokee county to build a court house and to build and pay for bridges in said county, and to provide a fund therefor,” was challenged upon the ground that the act contained more than one subject. Under the act a court house was authorized to be built, at a cost not exceeding $40,000, and also bridges in certain parts of the county — all of which were to be paid for out of a fund created by the levy of taxes which the act authorized. It was held that these Ejects or provisions were not so diverse and foreign to each other as to render the act void, Following the rule of these and other cases, it must be held that the statute under consideration is not open to the objection which is made. (Bowman v. Cockrell, 6 Kas. 311; The State v. Ewing, 23 id. 708; Philpin v. McCarty, 24 id. 400; Comm’rs of Marion Co. v. Comm’rs of Harvey Co., 26 id. 181; The State, ex rel., v. Cross, 38 id. 696; Pox v. Cross, 39 id. 350; Blood v. Mercelliott, 53 Pa. St. 391; The State v. County Judge, 2 Iowa, 280; Insurance Co. v. The Mayor, &c., 8 N. Y. 241; Smith v. Commonwealth, 8 Bush, 108.)
The next objection is that the act is in conflict with §17 of article 2 of the constitution, it being claimed that there is a general law applicable, and that the special law affects the uniform operation of the general one. The interpretation which was placed upon this provision of the constitution at an early day, and which has been accepted and acted upon by both the legislature and the courts since that time, must be regarded as settled and binding upon the court, whatever the views of its present members might be. In The State v. Hitchcock, 1 Kas. 178, it was decided that “the legislature must determine whether its purpose can or cannot be expediently accomplished by a general law.” In Comm’rs of Norton Co. v. Shoemaker, 27 Kas. 77, it was decided that “the legislature, under the constitution, has discretion to determine the necessity for such special laws, and such statute is analogous to those conferring authority by special acts upon counties, townships and school districts to issue bonds.” In City of Wichita v. Burleigh, 36 Kas. 34, it was held that—
“ The legislature may pass a special act where a general law cannot be made applicable, and this although the special act may to some extent affect the uniform operation throughout the state of other laws; and generally, it is a question for the legislature to determine whether a general law can be made applicable, or not.” (See also Beach v. Leahy, 11 Kas. 23; Harvey v. Comm’rs of Rush Co., 32 id. 159; Knowles v. Board of Education, 33 id. 692; Washburn v. Comm’rs of Shawnee Co., 37 id. 217.)
The people of Wallace county have not been deprived of an opportunity to locate the county seat. The temporary county seat of a newly-organized county is not located at the will or discretion of the governor. It is the will of the electors which controls, and the governor is required to designate and declare the place chosen by the greatest number of electors to be the county seat. (Laws of 1887, ch. 128, §1.) Sharon Springs was selected as the county seat of Wallace county with the consent of a majority of the electors of the county, and hence the retention of that place cannot in any view be regarded as an infringement of § 1 of article 9 of the constitution.
We find that none of the objections urged against the act can be sustained; and, holding it to be valid, it follows that judgment must be given in favor of the plaintiff in accordance with the prayer of the petition.
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Opinion by
Simpson, C.:
This is an original action in this court, commenced by the attorney general in the name of the state, to compel the defendants, who are county officers of Gray county, to remove their offices from the town of Ingalls to the town of Cimarron, alleging the latter place to be the permanent county seat of the county. The material allegations in the writ of mandamus are, that at an election held in Gray county on the 31st day of October, 1887, for the permanent location of the county seat, the town of Cimarron received seven hundred and fifty-three votes, and the town of Ingalls seven hundred and thirteen votes; that the returns of said election were duly canvassed by the board of county commissioners, and Cimarron declared the permanent county seat of said county; that notwithstanding that official declaration, the defendants named in the writ persist in keeping their offices at the town of Ingalls. To avoid the result as shown by the returns, the answer of the defendants to the alternative writ alleges that the returns from Foote and Logan townships are false and fraudulent; that in these townships there existed a secret, oath-bound society, with an agreement that the members thereof would cast their votes for the permanent location of the county seat for the town that would pay them the largest amount of money for their votes; that this conspiracy consisted of about seventy-two resident electors of these two townships; that immediately preceding the election the members of this society were informed by their agents that the society had received a bond in the sum of ten thousand dollars, signed by prominent and responsible citizens of the town of Cimarron, conditioned that the sum of money mentioned therein was to be paid to the members of the society if they cast their votes for the town of Cimarron for permanent county seat; and that, acting under the belief that the bond was a valid one, and that the money would be paid according to its terms, forty-eight members of the society residing in Foote township, and twenty-four members residing in Logan township, each voted for Cimarron for county seat. The answer also alleges that the judge of the election, whose duty it was to receive the ballots from the voters in Foote township, changed at least ten ballots that were for Ingalls, and deposited in lieu thereof the same number of ballots for Cimarron ; that the members of the election board in that township were all members of the secret society; that they all had knowledge of, connived at, and permitted the alleged fraudulent substitution of the ballots; and that the true results were different from the returns. The vote as returned from Foote township was one hundred and seventeen for Cimarron, and twenty-five for Ingalls. In Logan township there were returned for Ingalls sixty-nine, and for Cimarron thirty-five.
With respect to Cimarron township, the allegations of the answer are, that while there were returned by the election board four hundred and ninety-four votes for Cimarron and forty-five for Ingalls, in fact only four hundred and thirty-eight votes were polled, and of these Ingalls received at least one hundred, leaving only three hundred and thirty-eight for Cimarron ; that the board of election in that township knowingly and fraudulently permitted the ballot-box to be stuffed with seven or eight hundred fraudulent ballots for Cimarron; that they consumed unnecessary time in the count, waiting until they had learned the result of the other townships in the county, withholding all knowledge or declaration of the number of votes polled at that precinct, and then counted enough of the fraudulent ballots in the box to give a majority for Cimarron. The votes in controversy, then, are those from Foote, Logan and Cimarron townships.
It is claimed by the relator that in Cimarron township the agents of Ingalls were present all day at the polls or about the town buying votes for Ingalls for the county seat, and the evidence details circumstantially instances of voters who were bribed to vote for Ingalls. These are the principal questions for investigation and determination. The evidence is unusually voluminous, even for a county-seat case, aggregating over three thousand pages of printed matter. We have waded through the scum, filth, and mercenary degradation of this record, and find but little to commend in the action of either party. We must conclude as a matter of legal inference, from want of attack More probably than from any other circumstance, that there were some honest votes cast at that election. There is nothing left for us to do but to endeavor to give expression to the declarations of an honest majority. We hope and trust that we have found it rightfully.
Gray county was organized by proclamation of the governor, on the-day of July, 1887. At the date of the filing of the memorial for organization of the county there were thirteen hundred and fifty-five voters returned by the census-taker. The vote for the temporary location of the county seat was as follows: For Cimarron, seven hundred and five; for Montezuma, five hundred and sixty; for Ingalls, eighty-eight; and for the center of Gray county, one. The temporary board of county commissioners divided the county into townships, named Cimarron, Montezuma, Ingalls, Hess, Foote, and Logan. Logan lies north of Ingalls, and Montezuma south; Foote lies north of Cimarron, and Hess south. The declared result of the election of October 31, 1887, by townships is as follows:
INGALLS. CIMARRON.
Montezuma 236 30
Hess....... 195 60
Ingalls..... 143 17
Cimarron.. 45 494
Foote...... 25 117
Logan..... 69 35
Totals 713 753
The towns of Cimarron and Ingalls are both situated on the banks of the Arkansas river, and on the line of the Atchison, Topeka & Santa Eé Railroad; and they are about seven miles apart; Ingalls about twelve miles from the northern line of the county, and Cimarron about fourteen. The geographical center of the county is several miles south of the Arkansas river, the county being twenty-four miles wide from' east to west, and thirty-six long from north to south.
I. For some time preceding the election, the people of In-galls endeavored to make an agreement and perfect such an arrangement with the people of Cimarron as would have resulted either in an honest election or in furnishing undoubted evidence of a fraudulent one, if the negotiation had been successful. The proposition submitted by the representatives of Ingalls to those of Cimarron was this: They proposed to permit the citizens of Cimarron to select two reputable men to be present at the election and count in all the precincts of the county which were known to be favorable to the town of Ingalls for county seat, and in return asked to have two representatives present at the election and count in all the precincts known to be favorable to Cimarron for the county seat. These representatives of the respective towns were to be in the room in which the election was to be held in each of the precincts, to witness the reception of the ballots, the count, the sealing of the ballots in the boxes. They were to be permitted to inspect the poll-books before the same were sealed up and transmitted to the county clerk. This proposition was refused by the representatives of Cimarron. On the day of election, in all the precincts controlled by the partisans of Ingalls, a representative Cimarron adherent was chosen as a member of the election board, except in Moutezumá township; but in that township persons friendly to Cimarron were permitted to be in the polling-room during tl e entire time of receiving votes, counting them, and making returns. In the township of Ingalls one of the judges of the election was a Cimarron man, and voted for that town, and he states that he was put on the election board because he .was a Cimarron man. In Logan township this matter was discussed at the time of the selection of judges and clerks of election, and it was agreed that one R. S. Moudy, who was known to be a supporter of Cimarron, should be one of the judges of election. He was chosen, acted as such, and voted for Cimarron. In Hess township R. J. Maxfield was elected as a member of the election board. He was a friend of Cimarron, and voted for that town. He testifies that it was general talk among the people who assembled to elect the board in the morning, that both sides should be represented on the board, and that he was elected because he was a Cimarron man. In Montezuma township a number of persons who supported Cimarron for the county seat were in and out of the polling-room during the entire day, coming and going at their pleasure. They were permitted to be where they could see the ballots cast during all the time, and see every voter that offered a ballot and the votes counted, and were also permitted to have two challengers on the outside. In the townships of Logan, Ingalls, Montezuma and Hess the Ingalls men were in the large majority, and had full and complete control of the polls and the selection of the election board. In the townships of Cimarron and Foote the friends of Cimarron were largely in the majority, and had control of the election, and the friends of Ingalls were not permitted to have either a judge or clerk of the election friendly to that town, nor was anyone representing Ingalls or the candidates for county offices on the Ingalls ticket permitted to have access to the room in which the election was held, during the day. It seems to be clearly established by these facts, that the propo .sition made by representatives of Ingalls to the Cimarron people preceding the election was made in good faith, and faithfully adhered to by the Ingalls men on the day of election, notwithstanding the refusal of the Cimarron people to accede to their request. It seems clearly established, also, that the refusal of the Cimarron people to allow Ingalls, and the candidates for county offices on the Ingalls ticket, to have representative friends in the polling-rooms of Foote and Cimmarron precincts, was because they intended to conduct the election in these townships in a corrupt and fraudulent manner. They denied to all those interested in Ingalls, and to all others who 'thought that for any reason the permanent county seat of Gray county ought to be located in that town, and to all those persons who were candidates for office on what was known as the “Ingalls ticket,” a right . iti° ' . ° clearly given them by the statutes of this state, We consider this denial as a strong circumstance cjeajqy injjcating a fraudulent intent on the part of the Cimarron managers to dishonestly and corruptly, conduct the election. And if there were no other facts pointing in the same direction, and this fact stood alone, we should require a strong showing to relieve it of that irresistible inference of bad faith and dishonest conduct that is inseparable from a refusal to let all see what was going on in the polling-room. If an honest election was intended, the adverse party would be invited to inspect every act. It is an unmistakable badge of fraud, and stamps every election board that refuses inspection, with a flagrant violation of the law at the threshold of its duty, and I believe ought of itself to be sufficient to cause the rejection of the returns of any township whose board of election pays no regard to the mandates of a law framed and passed for the express purpose of preventing and exposing dishonest practices at an election. Section 18 of the general election law provides:
“That the judges of election shall, if requested, permit the respective, candidates, or one or more, not exceeding three, of their friends to be present in the room where the judges are during the time of receiving and counting the votes.”
It is doubtless true that under some circumstances the mere refusal of the election board to permit candidates, or their friends, to be present in the room during the continuance of the election, when such refusal is unaccompanied by evidence of other fraudulent acts, is but such an irregularity as will not vitiate the returns. (Gilleland v. Schuyler, 9 Kas. 569.) But in cases where there is direct and positive evidence establishing the fact that there was perpetrated a gross and corrupt fraud, either by stuffing the ballot-box, by repeating, or by the manufacture of false and fraudulent poll-books and tally-sheets, then such a refusal becomes very important as sustaining the direct or circumstantial proof of the crime, by ■ showing the preparation and opportunity for its commission. The construction sought to be given this statute by the election board of Cimarron township, that it had the right to say what persons among the opposition should be “admitted,. is a villainous one, and totally nullifies its provisions. The candidates have the sole and exclusive right to designate the persons who are to represent them in the polling-room, and the election board that suggests or expresses a preference for others should be regarded with suspicion. If this statute is obeyed, and its provisions observed, the frauds that have become an integral part of every county-seat election would cease to exist. It seems to me that this is the most important and effective provision that is made by the legislature to secure an honest election; that it is a matter of substance more directly affecting the conduct of the election than any other section of the statute regulating elections; that if it is faithfully observed, oue of two things imperatively follows; and these are that either there is a fair election, or the evidence of fraud is primary and convincing.
We have neither the time nor inclination to reproduce here the repeated efforts of the Ingalls party to be allowed to have representatives of that town in the rooms in which the elections were held in Cimarron and Foote townships, and the persistent refusals of the adverse party to allow it. Suffice it to say that they made an honest effort to do so, and their repeated failures only tend to more strongly impress our minds with the conviction that there was an evident purpose and predetermined design on the part of the Cimarron people to commit frauds in these two townships. There are many other circumstances that strengthen this conviction, and among the principal ones is the action of the county clerk in' making the supplemental registration. Section 4, ch. 128, Laws of 1887, requires a supplemental registration to be taken by the county clerk daily from the time of his qualification until five days prior to the time fixed for the first election. The manner of making this supplemental registration list is prescribed by the act, and a form is prescribed, showing the date of the registration, the age and nativity of the voter, his place of residence, and requiring a description of his land, or the number of his town lots, and various other things that would make his qualifications certain, and his identity reasonably sure. The polling-list is prepared from the duplicate census schedule and the supplemental registration lists. In this case it is admitted that the county clerk, who was in the interest of Cimarron, made the supplemental registration lists in the following manner: He took the blank polling-lists and proceeded to put on them the names of persons having the qualification of electors, whose names appeared on the enumerator’s census, and as voters came in to register supplementally he would register them on the several polling-lists; and these polling-lists, when complete, were sent to the election officers of the several election precincts, leaving on file in his office the enumerator’s census, but no record of the supplemental registration until the polling-lists should be returned after the election. This is not the manner of making out the supplemental registrations pointed out by the statute, as by it there is no record of such registration left in the county clerk’s office for public inspection. We have no doubt but that in this particular instance the manner employed was a deliberate design, and for a definite purpose. Repeated efforts were made to inspect the supplemental registration lists before the election, and copies were demanded, and fees tendered for that purpose, but the clerk failed either to furnish copies or permit an inspection. One demand was enough to make of a public officer for an inspection of a public record. Any citizen of Gray county had the unquestionable legal right to inspect these supplemental registration lists, and take copies of them if he so desired, and it was the duty of the county clerk to furnish, on demand, the fees being tendered, a certified copy of the same. His refusal to do so was a gross abuse of an official trust, and is accumulated evidence of a dishonest purpose. It happens in this particular case that the polling-list, the poll-book and tally-sheet of the election held in Cimarron township on the 31st day of October, 1887, for the permanent location of the county seat of Gray county, and for the election of county officers, have all mysteriously disappeared, and, there being no original supplemental lists on file in the county clerk’s office, by reason of his non-compliance with the plain requirements of the statute- in that respect, the doors to every avenue of fraud were left wide open, and the accomplishment of the dishonest purpose made apparently easy.
In a word, every provision of the statutes of this state made for the purpose of preventing fraudulent and corrupt practices in the conduct and result of elections was wantonly disregarded by the election boards in Cimarron and Foote townships, and by the clerk of the county, and by all the officers whose duty it was to see that a free and fair election was held and an honest count had. These repeated omissions of duty and willful violations of positive requirements were not the result of ignorance or carelessness, but were produced by a settled determination to carry the election in favor of Cimarron by any means and at all hazards. No other construction can, with the slightest exercise of reason, be placed upon the action of an election board which deliberately refuse to allow representatives of an opposition sentiment to see and observe what takes place in the polling-room during the day, than that they intend to commit frauds, and permit dishonest and illegal votes to be deposited in the ballot-box. Their refusal to permit inspection is such a violation of law on their part as ought at once to destroy the prima facie character of their returns. There can be no plausible excuse or fair explanation for such conduct. Such a refusal stamps their proceedings with such indelible fraud that it cannot be washed out by their subsequent attempts at vigorous verification.
In the case of Smith v. Shelly, 6 Cong. El. Cases, 40, it was held that a refusal on the part of the election board to permit a United States supervisor of elections to be present at an election for a member of congress was conclusive evidence of fraud. In two other cases, Buchanan v. Manning, 6 Cong. El. Cases, 287, and Smalls v. Tillman, 6 id. 430, returns were rejected because the supervisors were not permitted to be present. In In re Duffy, 4 Brewster (Pa.) 531, where under a statute of Pennsylvania there were overseers of elections, and they were driven away from the polling-room by the judges of election, it was held that improper conduct by the election board could be the only reason for a desire to keep the overseers away.
Chapter 128, Laws of 1887, p. 190, amending §5, ch. 24, Gen. Slat., provides that immediately after the closing of the polls in county-seat elections the judges shall cause to be prepared two statements of the number of votes cast, which shall be signed by themselves and attested by the clerks, one copy of which shall be immediately posted on the outside of the voting-place, and maintained there until after the canvass of the votes by the board of county commissioners; the other statement to be immediately forwarded, under cover, to the county clerk of the county. The plain object of Ibis provision is to prevent the judges and clerks of the election from returning a greater number 0p voj.es than Were actually cast. It prevents them from withholding the returns from their township until they hear from others, and then increasing the number of votes polled in their township, to meet all the requirements of the occasion. Of course these objects are frustrated when the election board does not comply with the commands of this statute. While there is some little conflict in the evidence on this sub ject, we are satisfied that the overwhelming weight of the evidence is to the effect that this requirement of the law was wantonly disregarded by the election board in Cimarron township.
We come now to the loss, theft, or suppression of the polling-list, the poll-books and the tally-sheets of the election in Cimarron township. On the 8th day of November, 1887, at the general election, county officers were elected for Gray county, and a person friendly to the town of Ingalls was elected county clerk. The returns of this election were not canvassed until the county commissioners were compelled to do so, by a peremptory wrrit of mandamus. Antrim, the person elected county clerk, procured a peremptory writ of mandamus against Pratt, who was in possession of the county clerk’s office, to compel Pratt to turn the office over to him. Pratt evaded the service of this writ for some days, when a deputy sheriff, finding the room vacant, entered it, took possession, and placed Antrim in charge. He immediately, in presence of two witnesses, took an inventory of all books, papers, records and documents that were in the office at that time. The poll-books of every township in the county, except Cimarron, were found in the office. The next day after Antrim obtained possession of the county clerk’s office, Pratt returned, acknowledged service of the writ, and told Antrim that all the books were in the vault of the Cimarron bank. Antrim had Pratt arrested for embezzling the census enumeration, but this was finally delivered to him by an officer of the Cimarron bank. Other witnesses testify to the same state of facts, with reference to the disappearance of these poll-books, tally-sheets, and the polling-list. When the officers friendly to Ingalls finally got possession of the county records, these important documents were missing, and they never have been found.
II. We are next to consider the allegations of the answer with reference to the conduct of the election in Cimarron township, and the evidence introduced to support them. We have already noticed the fruitless efforts of the friends of Ingalls to have representation on the election board, or to have representatives of that town, and of the ticket known as the “Ingalls ticket,” in the polling-room. We have also commented on the suspicious manner in which the supplemental registration was made. Reference also has been made to the theft of the poll-books and tally-list of this township. We cannot escape the conclusion that these returns were stolen, or suppressed, by the friends of Cimarron. No possible motive has been shown, and in the nature of things none can exist, for the disappearance of these poll-books and tally-lists, except the necessity to make the proof of the fraud which was perpetrated that day at Cimarron difficult and unsatisfactory. While the other facts established clearly demonstrate that every preparation was made and an opportunity was created for the commission of the fraud, the disappearance of these returns is a conclusive cir- . . . . cumstance showing that the opportunity was utilized, and the crime committed. The prima facie character of the declaration of the board of canvassers is at once destroyed, when it appears that the party in whose favor the declaration was made steals or destroys the evidence upon which it is based. It is said by Greenleaf, vol. 1, § 37—
“That the presumption of innocence may be overthrown, and a presumption of guilt be raised, by the misconduct of the party in suppressing or destroying evidence which he ought to produce, or to which the other party is entitled.”
When a party voluntarily destroys written evidence, he must show that it was innocently done, before he can be allowed to give secondary evidence of the contents of the writings destroyed. (Joannes v. Bennett, 5 Allen, 169; Tilton v. Beecher, Sup. Ct. N. Y. 1875; Bagley v. McMickle, 9 Cal. 430; Tobin v. Shaw, 45 Me. 331.) In the case oí Blade v. Noland, 12 Wend. 173, it was expressly held that “where a party has voluntarily destroyed a written instrument, he is not allowed to prove its contents by secondary evidence, until he has repelled every inference of a fraudulent design in its destruction.” (See also the cases of Pollock v. Wilcox, 68 N. C. 46; Blake v. Fash, 44 Ill. 302; Rudolph v. Lane, 57 Ind. 115.) So, if a party withholds papers which would explain doubts, the doubts must be to his prejudice. (Atty. Gen’l v. Windsor, 24 Beav. 679.) If the charge be of fraud or misconduct, and the production of the papers would establish his guilt or innocence, the jury will be amply justified in inferring guilt from the unexplained fact of their non-production. (Clifton v. United States, 4 How. [U. S.] 242.) The maxim is that every presumption is made against the wrongdoer. (Broom, Leg. Max., 5th Am. ed., p. 633.) It is said in support of the rule:
“If a man by his own tortious act withhold the evidence by which the nature of the case would be manifested, every presumption to his disadvantage will be adopted.”
And again:
“Where the party has the means in his power of rebutting and explaining the evidence adduced against him, if it does not tend to the truth, the omission to do so furnishes a strong inference against him.”
The legal effect, then, of the destruction or suppression of the poll-books and tally-sheets of the election held in Cimarron township by the friends of that town, is not only to destroy the prima fade character of the returns, but to cast upon them the burden of proving, circumstantially and in detail, every vote cast at that election. This they have not attempted to do, and we start in the investigation of the vote in that township confronted with the fact that the best evidence is destroyed, and the secondary evidence is meager, detached, and unsatisfactory; and it will be almost impossible to credit the town of Cimarron with what we believe to be all the honest votes that were cast in its favor. We say this because in all cases it is very desirable that all honest ballots shall be counted, notwithstanding the fact that there may exist such a state of affairs as authorizes the court, acting in accordance with well-established rules, to reject the whole returns as untrustworthy and unreliable. In every case of this character there is still left a certain number of votes that are admitted to be honest, or that could be easily proved to be so if ordinary diligence is exercised; and no matter how grievous the wrong committed by the election board, and how actively the great body of the supporters of the town assisted in the perpetration of the fraud, still the disposition is, and should be, to count every honest ballot that can be established as such.
The question is, how many votes were polled in Cimarron township? On one side, it is alleged that there were five hundred and thirty-nine votes cast; on the other, it is claimed that there were but four hundred and thirty-eight. To sustain the allegation that there were five hundred and thirty-nine votes polled, there is: First, the five hundred and thirty-nine ballots on file in this court; second, the evidence of one of the judges and one of the clerks of the election as to the number of persons voting; third, the evidence of the temporary county clerk as to the number of names on the polling-list; fourth, the evidence of Williams, Hoover, Berry, Lemert, and others, giving the population of the town of Cimarron and the country included in the township; the result of a preliminary canvass, and the expectation of the number of votes that would be polled. These witnesses were early settlers, and had knowledge of the population of the town and surrounding country. To sustain the allegation in the answer that only four hundred and thirty-eight votes were polled, are the following: First, on the 8th day of November, 1887, at the general election, at which all county officers for Gray were to be elected, only three hundred and fifty-five votes were polled; second, the evidence of Tracy, Goodwin, Baron, Etrick, and others, who, before the election, made repeated enumerations of the voters in Cimarron township; third, a list of voters made by the person appointed by this court as commissioner to take the evidence, made from the census enumeration, with those voters who made affidavits at the polls; fourth, the evidence of those persons who kept' the number of votes polled during the day on the outside; fifth, the repeated declarations of one of the judges of election at the close of the polls; sixth, the vote of G. W. Dunn, the time it was cast, its number on the poll-book, and the number of the last vote that was cast a few numbers after Dunn’s; sixth, a subpena was issued for one hundred persons who were claimed to have voted in that township, and the officer to whom it was directed returned that they could not be found. We shall not stop to comment upon the unusual manner in which the sole power to designate persons to act as judges and clerks of the election was delegated to a single individual, because, no matter how the board was constituted, they were de facto an election board. The polling-room fronted on a street, was about eight feet wide and twenty feet long, had a door and dirty windows in front. Back of this room was a vacant one, and alongside of it a shed-room with an outside door. Doors opened from the polling-room into the vacant one in the rear and into the side shed-room. The voting-place was surrounded by a wire fence, and fifty feet away there was a gate with armed guards stationed on each side of the gate. One voter at a time was permitted to enter the gate and go to the polls. The ballots were received at the door, it being opened a few inches for that purpose. Numerous armed men surrounded the polling-place and marched up and down the streets. During the day no one friendly to Ingalls was permitted to be in the polling-room. Very soon after the voting commenced, the friends of Ingalls placed a man on the outside of the polling-room, and he kept the number of votes polled during the entire day. He made frequent inquiries of the judges and clerks of the election as to the number of votes polled. He would also challenge a vote, and then get the number of the vote challenged, and thus verify his list. He made an inquiry of the election board at the close of the polls, as to how many votes were polled, and was told by Wicks, one of the judges of election, four hundred and thirty-eight. This witness is corroborated to some extent by Wright, Goodwin, Dunn, Carver (one of the clerks), Dickson (one of the judges), and others. An affidavit made by the judges and clerks of the election on the 4th day of November, 1887, and published as a reply to a sworn statement of Edward Artt, that was published on the 1st day of November, states that Wicks told Artt that the total number of votes cast was four hundred and thirty-nine. It is claimed on the other side, that Tracy, the man who kept the tally on the outside, was drunk, and was careless and inattentive, and that many persons voted that he did not notice; that the reason Wicks told Tracy and Artt that there were only four hundred and thirty-nine votes polled was because he found that if “the gang of toughs,” that were in Cimarron from Dodge City, knew that there were over five hundred votes polled they would destroy the ballot-box. It appears that the judges and clerks of the election did not know at the close of the polls the number of votes Tracy had listed; and the fact that his number corresponded with the number Wicks said had been polled, is a very remarkable and suggestive one. Another very insinuating fact is found in the evidence of Geo. W. Dunn. This gentleman testifies that he voted as late as 5 o’clock in the afternoon; it was almost dark; that one McGill, a prominent resident of Cimarron, who all day had been absent from the town in another township, was notoriously the last man to vote in Cimarron on that day; that from the time he voted until McGill deposited his ballot it would be impossible for more than thirty or forty persons to vote; that on the day of the county canvass he saw the poll-book of that township, as presented to the county board to canvass, and that his number on that poll-book was 405, while McGill’s number was 539. If these things were not true, how easy it would have been, by the production of the poll-books, to disprove them, and all the other damaging presumptions that hang around these election proceedings.
During the months of August and September, 1888, and during the time the evidence in this case was being taken by a special commissioner appointed by this court, several subpenas were caused to be issued for one hundred and eighty-four persons, whom it was alleged had voted in Cimarron township at this election. These subpenas were issued by the special commissioner, and directed and delivered to a special marshal of the court', appointed to serve process. The marshal returned that one hundred and fifty-four of these persons could not be found. Their exact locations were specified in the subpeuas. If they resided in the town of Cimarron, the number of their lot and block was given. If they resided in the country, the quarter-section, township and range were designated. The force of this return is attempted to be broken by several witnesses, who testify that about the time of the election, and for some months prior thereto, persons of that name were about the town, and a dim recollection is indulged in as to what they were doing, and, in some instances, who they worked for. It is not within the range of fair probabilities that one hundred and fifty-four men could drop out of the every-day life of a quiet country village, and there would be no one left to tell with some reasonable certainty where some of them could be found, within a year after their departure. Their disappearance is not satisfactorily explained, and it may be seriously doubted whether they had any existence in, or connection with, the town of Cimarron. In connection with this fact, it must be recollected that within eight days after the county-seat election there was a general election, at which county officers for Gray county were to be chosen, and at this election but three hundred and fifty-five votes were polled in Cimarron township. This shows a decrease of the vote in eight days of one hundred and eighty-four, and is a circumstance of such significance as to require a very lucid explanation. No satisfactory solution of the cause of such an exodus of voters is given. No friend of the town of In-galls was permitted to know until the second morning after the election, how many votes were claimed to have been polled at the election. Repeated inquiries by numerous persons, made after the polls were closed, and up until the second morning, failed to elicit answers from those who were in a position to know the exact state of the polls. The judges and clerks who testify, state that about daylight of the morning after the election, they had completed the count, and de posited the poll-books, tally-sheets and polling-list in the vault of the Cimarron bank. The night succeeding the election, the judges and clerks assembled at the county clerk’s office — that being situated in a building adjoining the bank —and took the election returns from the bank vault, and carried them to the clerk’s office. The transparent pretense for this movement was an expressed desire to guard the election returns, and protect them from an anticipated raid by the toughs employed by the partisans of Ingalls. C. J. Dickson, one of the judges of the election in Cimarron township, testifies :
“ The ballot-box was taken out of the bank by the board about 3 or 4 o’clock on the afternoon of Tuesday, and was taken up-stairs in the county clerk’s room, where all the judges and clerks were present, except Mr. Day; and they all went into the room with the returns, and all the board stayed in the room that night with the returns, except himself. He stayed there only about five minutes; and he stayed at the head of the stairs, on a bale of hay, that night; and his brother stayed with him at the door all night; that he, Wicks and Perry delivered these returns to the county clerk two days after the election.”
This statement must have been made on the assumption that there is no limit to human credulity. There is an old Scottish phrase descriptive of an individual who was always complaining about Providence frowning upon him, which can be applied to this judge of election — he has been “sinning his mercies.” It would be a queer exercise of reason to determine that the returns were safer on the outside of the vault than within, and our great wonder is that it never occurred to the fruitful minds of this election board that by taking the returns out of the bank vault to a quiet room up-stairs, there would be an opportunity created to manufacture some poll-books and tally-sheets. While there are other facts and many more circumstances that go to strengthen our conviction that there was gross and outrageous fraud perpetrated in this township, we will not enter into the details of other transactions. Those already commented on are sufficient to convince the most incredulous mind that the returns from this township are not worthy of any credence. There is no trace of honor, no pretense of fairness, nor any attempt to obey the law, discernible in them. No member of the adverse party was permitted to witness the reception of the ballots and their deposit in the box. No certificate of the number of votes cast was posted on the outside of the polling-place. The number claimed to have been cast, as shown by the pretended returns, did not accord with the declaration of one of the judges on the night of the election. No public announcement of the number of votes polled was made un£jj secon(j morning after the election. The election returns were stolen or suppressed immediately after the canvass. The supplemental registration lists were made in such a manner that no record of them was left in the county clerk’s office. Everything was done that would render the ascertainment of the honest vote difficult and unsatisfactory. False, fraudulent and dishonest poll-books and tally-sheets were manufactured and substituted in place of those used on the day of the election. The election returns irom Cimarron township do not show 1 the true state of the polls. The evidence does not disclose what the honest vote was. It is impossible for us to estimate it, and the return is rejected, and will not be considered.
III. As to the townships of Foote and Logan, the evidence discloses the same reckless determination on the part of the friends of Cimarron, in the conduct of the election in Foote township, not to allow any inspection by the friends of the town of Ingalls of the reception of the votes. The election board was composed exclusively of the friends of Cimarron. The judge of election who received the votes, Israel Herr by name, was a candidate for trustee of Foote township. His opponent was Mr. Marble, who made a demand that some one of his friends, or that he would be permitted to be in the polling-room during the reception of the ballots. A similar demand was also made on behalf of the town of Ingalls, but they were all refused. The attention of the election board was called to the provisions of the statute in this regard, without avail. The election in Foote township was held in a sod building, about 10 by 14 feet in size. There' was a door opening to the south, and windows in the east and west sides. Herr, who received the ballots, was stationed at the east window. This window was composed of four lights, 10 by 12 inches. The ballot-box was placed on a table near the center of the room, and about six feet from the window. Herr was a large man, weighing in the neighborhood of one hundred and eighty pounds, and as he received a ticket from the voter and turned around to go to the ballot-box, the voter could not see whether he deposited his ballot in the box, or not. Numerous complaints were made about this, and toward noon they became so frequent that all the persons in favor of In-galls were ordered by the board of election not to come nearer the polls than fifty feet, and a barbed wire was stretched before the polling-place to keep them away. The polls were surrounded by armed men, who were partisans of Cimarron. There is in the record the evidence of Black, Simpson, "Win. McCloskey, Smith, Shoemaker, Roffins, Neidiger, J. F. McCloskey, Masters, Watson, Lee, Tinsley, Hill, Edwards, A. J. Switzer, Lindsay, and T. J. Switzer, showing how Herr placed himself, so that they could not tell whether the tickets they handed him were placed in the box, or not.
H. P. Lee, one of the judges of election, testified that—
“He, with Israel Herr and Townsley Roby, were judges of election in Foote township; that Frank Kirchner and James E. Wilson were the clerks; and that Herr received the ballots; polls were held in a sod building 10x12, or 10x14, having one door in the south, and' two windows, one in the east and the other in the west. Herr was located at the east window, where he received the ballots, and witness was south of him, near the window. Herr is now in California. Ballots were handed in at the east window. He put one ticket in the box every time, and there was a name checked off. He had an extra ticket in his hand. He took tickets out of his pocket frequently, and made passes to his left pocket, where he had Cimarron tickets. He received tickets from voters with his right hand, and deposited tickets with his left hand, and no one was in the room but the judges and clerks when the votes were received, except one time when Charles Bishop and some others brought dinner. There was no Ingalls man. A demand was made on behalf of Ingalls for admission on the morning of election, but was refused by the board; and no one as a friend of Ingalls was allowed in the room during the day. A wire fence surrounded the polling-place, about fifty feet distant. In the morning two persons acting as challengers for either place, were allowed at the window, and until noon; after that the board, who were all Cimarron men, ordered all Ingalls men outside the wire fence. They were ordered not to challenge by writing or any other way. There were 14 or 15 armed men there acting as deputies — all Cimarron men — and were inside and outside the limits of 50 feet. Herr told him he knew every man’s vote who voted, by flipping the top of the ticket. Every time I noticed him at all, I could see the end of a ticket in his hand, and he made frequent passes to his vest pocket. He tore up one ticket he said was an Ingalls ticket. They let no one stay in the house who was friendly to Ingalls, until the count took place. Herr had every opportunity to change ballots. He had Cimarron tickets in his left vest pocket; saw him put them there. The voter from the outside could not see where his ballot went. Objections were raised just before dinner; still louder complaint among the voters as to Herr’s position and manner of handling the ballots, and then Herr ordered everybody to stay outside the wire fence. Roby, also a Cimarron man, seconded it. He left a short time after the election. All the board belonged to the secret organization except Roby. This witness voted for Cimarron.”
Frank Kirchner, who was a clerk at the election, says:
“ Israel Herr received the ballots at the east window. When a ticket was handed in by the voter, Herr took it; Roby hunted the names on a register, and when the name was found, called the name, and the clerks wrote it down. Plerr stood at the south side of the ballot-box, where he could stand with his back to the voter, and between him and the ballot-box, and when the name was being checked Herr would examine the ticket, while holding another ticket in his hand. If it was a Cimarron ticket, Herr would place it in the box; if it was an Ingalls ticket, he would twist his hands over and slip another ticket around and just look at it, but would take it just as it was folded and put it in the box. Frequently his hand would visit his vest pocket. Saw him folding up Cimarron tickets and putting them in his vest pocket. When the polls were opened for the voters, witness told Herr to set the ballot-box close by the window, and as a ballot was handed him, to take it between his thumb and fore-finger, and pass it right into the box, so that every man that put his vote in there could see just exactly where his ballot went; and Herr told him to attend to his own business, and if he did not they would get somebody that would, and witness then said it was ‘all right — just go ahead.’ Plerr set the ballot-box a little more than half-way in the room from the east window, on the table. The box and table were about six or seven feet from the east window, and Herr stood between the window and the box. The voter standing outside could not see whether his ballot was deposited. Saw Herr change tickets that were handed him. Saw him change eight or nine. ‘ He might have made some changes that I did not see,’ but is positive he ■saw Herr change at least eight or nine by substituting other ballots for those handed him. Was a member of the secret organization. At its meetings, when Dunlap was not present, Herr read the oath and by-laws to persons joining, and either Herr or Dunlap administered the oath. Voted for Cimarron. Witness was about six feet from Herr when he was taking the ballots. Did not see inside of any ballots that Herr received, or read one, but did see him change tickets. Saw Herr put his hand into his vest pocket quite a number of times, both in the forenoon and afternoon. In the forenoon there was a man from Ingalls and one from Cimarron outside the window, and the board was in the room. Called Wilson’s [the other clerk] attention to what he saw; saw him [Herr] •change ballots eight or nine times. He put the ballot he received in his vest pocket, right-hand side; saw his hand go into his left-hand pocket and take out tickets folded up. He took tickets handed him with his right hand. When he received a ticket he got his back to the voter, facing west, and would hold ticket up and take hold with his left hand and turn them back. Witness sat in front and a little to the right of Herr — about three feet away. Deputy sheriffs with guns kept the men outside of the wire fence; done by order of the board. The election was peaceable — no quarreling or threats of any kind. In the forenoon a challenger for each side was .allowed at the window. In the afternoon both were excluded beyond the wire fence.”
This evidence is rendered the more trustworthy because of the refusal of those controlling the election in this township to admit representatives of those in opposition to their sentiments to the polling-room. It may be safely said in every case when such a refusal is made, that the parties making it intended a fraud, and wanted no witnesses present to see its perpetration. The position of the ballot-box away from the window, the action of Herr, his disappearance shortly after the election, and his wholesale verification at so late a period, are all of themselves suspicious and damaging. These things all lead to the conclusion that he was there for the express purpose of actively aiding in the commission of frauds by changing ballots; and we have no doubt but that he did so, and that there were credited to the town of Cimarron more votes than were actually received. The concealment of v ^ ballot-box from the view of the voter so that he could not determine whether the identical ballot that he delivered to the member of the election board was deposited or not, is evidence of a dishonest purpose. And when a suspicious voter requests that he may have an opportunity to see his ballot deposited in the box, and this is refused, there cannot be any risk in resolving all doubts against the judge of an election who so conducts himself. We believe from the evidence that at least ten tickets containing the name of Cimarron for permanent county seat were substituted for that number of tickets containing the name of Ingalls which were handed to this member of the board of election, and that he fraudulently changed the same for the dishonest and corrupt purpose of defeating Ingalls, and to secure success to the town of Cimarron. One arises from a perusal of the pages of this accumulated villainy with a suspicion that it is rotten from rind to core — and-so we have found it.
We now come to consider a branch of the case where bribery, intimidation, forgery, perjury and foul conspiracy ooze from every page of the voluminous record; and the more it is considered, and the more thoroughly it is examined, the more the noxious thing smells. It is alleged that there existed in Foote and Logan townships a secret organization that was called the “Equalization Society,” whose pretended object was the protection of its members against town rings, tricksters, and shysters, but whose real purpose was to sell the vote of its members to that town for the permanent location of the county seat which would pay them the most money. The meetings were held at night, and were secret; the men were bound together by blood-curdling oaths to vote as a unit. A meeting of this secret organization was held on Friday, October 28. An assurance was given by some one at this meeting that if the society voted as a unit for the town of Cimarron for the permanent county seat, the sum of ten thousand dollars was to be donated. A committee of the members of the society was appointed to go to Cimarron and procure the money or its equivalent. The persons active in this negotiation and agreement were one Dunlap, who it seems organized the society, and Reeve, a prominent and active partisan of Cimarron. This society was composed of seventy-two or seventy-three members, two-thirds of whom resided in Foote township, and the remainder in Logan. "While the greater portion of the members were originally for Cimarron for the county seat, a minority consisting of nearly one-third were for Ingalls. When a new member joined, the by-laws were read to him, and these pledged the members to vote solidly together for their protection; and then an oath was administered, and the penalty for its violation was death. The committee appointed to go to Cimarron were Dozier and Chipman, and they were instructed to receive $10,000 in money, or a bond for that amount signed by fifteen responsible citizens of the town of Cimarron. If a bond was taken, the money was to be paid on the day after the election, and a meeting of the society was called for Tuesday evening for the purpose of making an equitable division of the corruption fund. The committee went to Cimarron on Saturday before the election, and not being able to get the money, a bond was delivered to them containing the following conditions :
“Know all men by these presents, that we, the undersigned citizens of Gray county, Kansas, do hereby bind ourselves in the sum of ten thousand dollars, unto J. L. Dozier, of Gray county, Kansas.
“The conditions of this bond are such that, if the association in the northern part of Foote township, Gray county, Kansas, organized for the protection of the best interest of its members, shall, on Monday, October 31,1887, cast a solid and united vote for Cimarron for the permanent county seat of Gray county, and said association shall furnish proof of such voting to the undersigned on Tuesday, November 1, 1887, before this bond is paid. And it is further agreed that if any member of aforesaid association shall give information to Ingalls, or anyone, so that this bond and transaction shall become known to Ingalls or the general public, then this bond shall become void, and of no force or effect either in law or in equity.
“This bond to be paid Tuesday, November 1, 1887, after furnishing evidence as aforesaid, and delivering the votes as aforesaid; and then and there to be void if not so complied with.
T. H. Reeve. A. B. Mayi-iew. J. Y. Coffman.
J. Q. Shoup. E. M. Ratcliff. A. D. Wettick.
H. A. Barnett. John Perry. D. Beathom.
W. M. Findly. G. C. Nichols. L. L. Alt.
J. C. Stewart. Max. Lawrence. A. T. Riley.”
The existence of this society is established conclusively, the evidence on both sides stating in detail its organization. That its main object and primary purpose was to vote for that town for the permanent county seat that would pay them the most money, is also so clearly set forth in the record that there is no reasonable doubt but that its character was wholly and purposely mercenary. The men who composed its members are satisfactorily identified, and they consisted of resident electors of Foote and Loga'n townships. These things are so conclusively established by the evidence that we have no doubt of their absolute truth. In Foote township, where the greater portion of the members of this secret organization voted, two of the judges of the election and both of the clerks belonged to the society. There is evidence tending very strongly to show that the election board in this township were to receive an additional sum of one hundred dollars, to be divided between them, for their important services at this election. While there is a strenuous denial of this independent and disconnected scheme of corruption, we are inclined to believe that such a promise was made as an inducement to the dirty-work performed by this board on that day. That the members of this society voted for the town of Cimarron, influenced and controlled by the promise of money, we entertain no doubt; but when we come to determine the exact number of votes and the names of the voters, the proof is not so satisfactory. There were a number of witnesses who testified very frankly that they voted for Cimarron to get a share of the “boodle.” There are others to whose actions must be applied the inferences and presumptions naturally arising from their conduct. Of the first class, Dozier says he voted for Cimarron, and expected to get his part of the money. Bulwin says he was naturally for Ingalls, but voted for Cimarron; “wanted the boodle.” Geo. W. Feagans swears that he was for Ingalls, but voted for Cimarron: “Wanted my part of the boodle.” Sanner swears: “ Ingalls was my natural choice; voted for Cimarron because they offered money.” William Ziese: “Voted for Cimarron, but Ingalls was my choice; thought I’d get some money for my vote.” Gus. Ziese: “Voted for Cimarron ; thought I was going to get a big lot of money out of it.” John Lepard: “Voted for Cimarron; didn’t have any other choice, but the reason was because Cimarron made the best offer.” J. J. Estes: “Was informed that Cimarron had made a bond before I voted, and to vote for Cimarron; I voted for Cimarron; I don’t know how I would have voted if it had not been for that, but expect for Ingalls; I said I never would vote for Cimarron for anything.” Levi Owens: “ I was originally an Ingalls man, but thought a little money would be more good than the county seat.” Andrew J. Gibson: “Voted for Cimarron; had no preference for county seat; I was there for money.” Thomas Estes: “Voted for Cimarron; Kopp told me on election day it was all right; I had not thought to vote for any other place than Ingalls, except for this.”
Of the other class, comprising the remaining members of the society, who were not so refreshingly frank as to come upon the witness stand and proclaim their mercenary lust, there are a number of facts in the record that prove that the by-laws and oath were observed by all those belonging. When the committee came back from Cimarron, word was given out that “it was all right.” Persons were selected, or before that time had been appointed, to see the members and see how they voted, and to keep a list of all those voting, and to be prepared to prove to signers of the bond that the vote had been cast according to contract. McGill and Kopp attended to this matter in Logan township. They stood at the gate leading to the polls, and as each of .the organization men walked in, Kopp would say “This is all right” to McGill, who was the editor of a newspaper at Cimarron. Then McGill would take down the names, so as to know that all the members residing in Logan township had voted. Kopp furnished the tickets to the voters. We have no hesitation in declaring our belief that every member of the secret society ' who voted at that election m boote and Logan townships for Cimarron did so induced solely by the belief that by so doing he would receive a proportionate share of the $10,000 in consideration for his vote. It makes no difference where their natural inclinations would lead them, whether to Ingalls or Cimarron — the controlling fact is that they were bound together to get the most money for their votes; and the fact that some of them were for Cimarron is not a mitigating one, but aggravates their offense, because they would be guilty of robbing their friends if their scheme had succeeded and they had received their money.
We are glad to record the fact that payment of the bond was refused on the ground that it is a forgery. The persons whose names are signed thereto swear that they never signed the bond, or had any knowledge of its existence until after the election. We hope this is true; but as it is entirely immaterial to us whether the bond was executed in fact or is a mere forgery, we have no occasion to express the very strong conviction we have on the subject, for it was just as effective as a bribe, whether signed or forged. Spme sympathy ought to be bestowed upon a people who have borne all the discomforts and inconveniences of a pioneer life, and who have made many sacrifices to build up a town, with the fond hope that some day it would be a county seat, and that they would be remunerated by the increased value of property, when their future prospects are darkened by a swarm of vulturous speculators, and in the frenzy of their disappointment they commit some lawless acts; and yet their misdeeds are pleasant things to contemplate when compared to a secret, oath-bound conspiracy, composed of men who have no honest choice influenced by either personal interest or public convenience, but are willing to vote this way or that way, depending entirely upon the amount of money that is placed in their hands. Such; a conspiracy, governed by such a motive, and controlled by such means, could never have originated elsewhere in the, state-of Kansas but in the actual presence of a county-seat contest. It would be an everlasting disgrace in the years to come, and always fresh and vivid as now, if the ballot-boxes of Kansas were permitted to be tainted by this supreme villainy. Judicial condemnation has no language with which to befittingly characterize a crime that violates the first law — the spirit and the essence — of this government. In the presence of such a high crime, what a miserable excuse, what an abject apology it is to urge that the bond is a forgery, and of no value. It is a satisfaction to learn that the degraded wretches who sold their votes for a hope or a promise that they would be rewarded, were in turn cheated out of the proceeds of their villainy by a forgery. This comes as near a justifiable or excusable forgery, probably, as it can ever be approached. One of its good effects was to open the lips of the oath-bound conspirators, and, induced by an unmanly feeling of spite, many of them told the truth about its purposes and objects. The election board of Foote township was controlled by this secret organization, and the members thereof were influenced by an independent promise of $100. They wantonly disregarded the law, and would permit no one among those who ■differed with them to witness the reception of votes. The ■other members of the board knew that Herr was changing-ballots. • A large number of the voters were corrupted by the action of the secret society. And all these things are not only sufficient, but they have a compulsory force that 7 J 1 J compels us to reject the returns from this township as being so tainted with fraud, and so festered with corruption, that no reliance can be placed upon them as a matter of evidence. In Logan township twenty-two votes in favor of Cimarron are to be rejected and not counted, as having been procured by fraud, bribery, and corruption.
IV. To counteract the effect of the frauds iu Cimarron, and as a set-off to the villainy of the practices indulged in by the Cimarron board of election, assisted by the great mass of the adherents of the town, it is claimed by them that the friends of Ingalls bribed many of the voters of that township by the payment of money to vote for Ingalls. We have no doubt but that this charge is true. It is fairly demonstrated by the evidence contained in this record, that Gilbert and other agents of the owner or owners of the town of Ingalls were actively engaged all day long during the election in the town of Cimarron in buying and attempting to buy residents of that town to vote against their own interests, and suppress their natural preferences, and vote for the town of Ingalls for a small moneyed consideration. These practices were not ■confined to the day of election, but for some time before they had, by a purchase of property at extravagant prices, and by ■ •other corrupt means, secured quite a number of friends in the town of Cimarron. There is abundant evidence in this rec•ord to justify the conclusion that the friends of Ingalls were guilty of the most gross and aggravated bribery of voters on that day; that they kept an open market-house, hedged about and protected by a gang of reputed cut-throats and villains, where men’s votes were bought and sold as so many steers in the pasture or sheep in the pen. All this is true, and it affords another and a very important reason why the returns from this township will not be considered. It seems as if all the demons that infest the extreme western part of the state-had met at Cimarron on that day and vied with one another in efforts to disregard the laws for the protection of the ballot-boxes, and engaged in a rivalry as to who could best intimidate and bribe voters. We shall not attempt to discriminate between the action of these accomplished villains of all classes'; The history of such an election is an everlasting infamy. All we can do is to say that the returns of this indelible fraud shall not enter into the consideration and determination of the questions involved in this case. We have no doubt of the truth of the assertion that the bribery of voters by the active agents of Ingalls was not confined to the township of Cipiarron, but that it extended to and embraced most of the townships in the county. The direct proof of such bribery and corruption does not establish a sufficient number corrupted to change the result, and in no instance does it in any manner cast the shadow of suspicion on the election boards in Ingalls, Hess, Logan, and Montezuma townships. The election boards in Cimarron and Foote townships monopolized all the fraud that has been traced to the officers of that election. This case can fairly be said to embody the sum of all election villainy. If there is any one particular crime connected with the conduct and the result of an election that was not committed in Gray county on the 31st day of October, A. D. 1887, our research has been in vain, for we have failed to find it.
V. While there is some evidence in this record tending to show that the voters in two townships were to some extent influenced to cast their votes for Ingalls for the county seat by a promise to construct and operate a railroad through these townships, it fails to establish the names and residences of the men that were so influenced, and to show how they voted. The returns from these townships have not been attacked, except in this general way. There is not, in fact, enough of a showing to require us to pass upon the specific question as to whether the promise to build this railroad was bribery, or not. A speech at a public meeting, and a resolution adopted by a vote of those who attended it, are not enough to provoke the inquiry. If it had appeared that on the strength of a promise to build a railroad through these townships the great mass of the voters therein were solely influenced to vote for a certain town for county seat, and that they did so vote, and if it had not been for that promise they would have voted for the opposing town, and all these facts were established by the evidence of the voters, and not from hearsay, a very interesting question would be presented. But as the facts in evidence do not necessarily compel us to pass upon it, we shall not attempt to do so. It probably would make no practical difference in the ultimate determination of this question anyhow. We have determined to reject the returns from Cimarron and Foote townships, and twenty-two votes from Logan, and this leaves but one hundred and twenty for Cimarron; while with Montezuma and Hess rejected, because improperly influenced by the promise of the railroad, there would still remain a majority of the legal vote in favor of Ingalls as the permanent county seat. If we give the relator the benefit of the most favorable view that possibly arises on the state of facts presented, the result is that the majority of the honest vote was in favor of the town of Ingalls.
VI. The prevailing practice in these county-seat contests is for each party to import into the county a crowd of men who have the reputation of being “killers.” It may be in some cases they do not vote, but we suspect that generally they do. The evident purpose of such an importation is to intimidate voters, and to have on hand and ready for any emergency that may arise, a class of men who would not hesitate to commit any crime, or number of crimes, which would give success to the party that pays them. The importation of such men causes a very strong presumption that they are employed for purposes connected with these elections that all ordinary men would hesitate to perform. Their employment is a reflection on the courage and honesty of the community which suffers such an outrage to be perpetrated, and causes their own acts to be regarded with some degree of suspicion. Their presence in a county cursed with a county-seat contest is a constant menace to the lives of many quiet and innocent people. One of the best indications that people desire an honest and peaceable election is their refusal to employ a horde of these conscienceless scoundrels; while on the other hand, their presence at the polls irresistibly leads to the conclusion that they are hired for criminal purposes.
Inasmuch as it is established by the evidence that the town of Ingalls received a majority of the honest votes for the permanent county seat of Gray county at the election held on the 31st day of October, 1887, it is recommended that the peremptory writ of mandamus be denied.
By the Court: It is so ordered.
Valentine and Johnston, JJ., concurring.
Horton, C. J.:
As my brothers are satisfied with the foregoing opinion, and have concluded to follow the recommendation of the commission, it is unnecessary for me to discuss the evidence upon which the returns from Cimarron and Foote townships are rejected. Assuming all the charges against these returns to be clearly established, there are other facts disclosed in the testimony, which, in my opinion, have not received sufficient consideration. In the opinion of the commission it is stated:
“It is fairly demonstrated by the evidence contained in this record that Gilbert and other agents of the owner or owners of the town of Ingalls were actively engaged all daylong during the election in the town of Cimarron, in buying and attempting to buy residents of that town to vote against their own interests, and suppress their natural preferences, and vote for the town of Ingalls for a small moneyed consideration. These practices were not confined to the day of election, but for some time before they had, by a purchase of property at extravagant prices, and by other corrupt means, secured quite a number of friends in the town of Cimarron. There is abundant evidence in this record to justify the conclusion that the friends of Ingalls were guilty of the most gross and aggravated bribery of voters on that day; that they kept an open market-house, hedged about and protected by a gang of reputed cut-throats and villains, where men’s votes were bought and sold as so many steers in the pasture, or sheep in the pen.”
Again, it is stated in the opinion that—
“We have no doubt of the truth of the assertion that the bribery of voters by active agents of Ingalls was not confined to the township of Cimarron, but that it extended to and embraced móst of the townships in the county.”
These conclusions are not only true, if the testimony is to be believed, but are a mild and faint statement only of the open, public, and notorious acts of bribery and corruption committed by the promoters, owners, and adherents of the town of Ingalls to secure the county seat. These persons seem to have been abundantly supplied with money with which to purchase votes, and were lavish in its use in carrying out a systematic and wholesale corruption of voters. While I have no reason to believe that the witnesses have traced all the money that was illegally and corruptly expended for the purchase of votes, sufficient is shown in the conduct and acts of the owners and adherents of Ingalls and the voters of Montezuma and Hess townships, if the voters of Cimarron and Foote townships are to be disfranchised because of the misconduct of their election officers, to make the whole election impure and invalid. Courts are established for the protection of innocence and justice, and not for the protection of supposed rights founded upon fraud and injustice; but, if the decision in this case is to be followed as to the other county officers, a county seat will be established upon an impure election, tainted with every species of fraud, bribery, and corruption, and completes the triumph of persons who, in this election, were guilty of flagrant violations of the laws of the state, of unblushing infamy, of notorious corruption and wrongs. The opinion confesses that—
“The acts of bribery of voters by the active agents of In-galls extended to and embraced most of the townships of the county.”
It is painful that in such a case as this the court cannot see its way clear to say that all of the wrongs disclosed by the testimony go to the validity of the election, and have the effect to make it absolutely void. It is said in the opinion, “That rejecting the returns from Cimarron, Foote, Montezuma, and Hess townships, gives a majority for Ingalls.” This, however, leaves only a few votes in Logan township and the 160 votes in Ingalls to be counted. This conclusion gives the adherents of Ingalls, who with others inaugurated the system of bribery and corruption which flooded Gray county at the county-seat election the 31st of October, 1887, the determination of the seat of justice. Is this fair, or in accordance with the usual proceedings of the courts? Is it justice that the adherents of a town guilty of the acts and outrages described in the opinion, be permitted to triumph in their selection of the county seat of a county which has 1,400 voters ? Nearly one-half of the voters of the county lost their votes by the direct and indirect corruption of the adherents of the town alleged to be successful, and nearly all of the other half lost their votes by the misconduct of the election officers. In The State v. Marston, 6 KCas. 524 — a county-seat case — 4,552 votes were cast: one-half were illegal and fraudulent. This court refused, upon such an impure election, to establish the county seat. It was stated in that case:
“When two parties, who have both by their fraudulent and wrongful acts put vast obstacles in the way of justice, and incumbered the case with embarrassing difficulties, invoke the aid of courts, the courts will not feel very much inclined to assist either to a very great extent; and especially not in an action of mandamus, where so much rests in the discretion of the court. Courts will seldom, in such eases, weigh the claims of the parties in golden scales, and give a decision on a bare preponderance of evidence. The right of a party in such a case, if he expects a decision, should be clear beyond all reasonable doubt. Neither party in this action has made a clear case. Neither party has shown a clear right beyond a reasonable doubt, to the county seat of Neosho county; and neither party is in a condition to demand, as a matter of right, anything from this court; and therefore we shall leave the parties where we found them.”
In The State v. Stevens, 23 Kas. 456 — a county-seat case —a large fraudulent vote was polled. This court refused an order to canvass, because it did not wish to give even an apparent sanction to such an outrage, so gross and so manifest.
If, however, it be said that the votes of Montezuma and Hess townships should be counted for Ingalls, and thereby permit a very small part of the votes of Gray county to decide the county seat, then I answer, the testimony shows that a very large per cent, of the votes received by Ingalls in these townships was transferred to that town by the promise of a large owner of Ingalls to build a railroad free of cost, east and west through and across these townships. James H. Kelly testified that this railroad scheme transferred from one-half to three-fourths of the votes of those townships. John A. Headley testified that seventy-five per cent, of the votes of Montezuma township were transferred to Ingalls in consideration of those propositions, and about sixty per cent, in Hess township. G. L. Ensign testified that the arrangement for the building of the railroad gave Ingalls, directly and indirectly, seventy to eighty-five per cent, of all the votes it got in the country. S. S. Van Wye testified that he preferred Cimarron, but the prospect of getting a railroad influenced his vote for Ingalls. He further testified that he thought the prospect of getting a railroad without bonds was the influence which made the vote in Montezuma township almost solid for Ingalls. In an address, published only ten days before the election, in a newspaper of Gray county, to induce the voters of Montezuma and Hess townships to support In-galls for the county seat, the agreement with Mr. Soule concerning the railroad was referred to. I quote a short extract:
“We all remember how enthusiastically we told Mr. Soule in mass meeting assembled, that we were unanimous, first, last and always, for Ingalls for county seat, and offered this as an inducement, and urged him to build a railroad. And now if we should change and go back on this, and fail to be united, we would justly deserve to lose our road. Think a moment what we would lose! — railroad without bonding, our county seat at Ingalls without cost, no taxes for either, with all the benefit from having a millionaire spend his money in our county. Don’t let us lose all this, but rather help ourselves while he is willing to help us. And people of middle and north Gray county will remember the compact and understanding that if Montezuma was not a candidate for county seat they would join hands and make Ingalls county seat.”
The railroad route runs east and west through the southern part of the county, and does not increase the railroad advantages or facilities for Ingalls, nor in any way enhance the public convenience of that town as a county seat. Therefore, the law as declared in the syllabus of The State v. Elting, 29 Kas. 397, does not apply. While there is no question of moral character involved in the selection of a county seat, yet the questions of convenience and material advantages for the transaction of public business are, or ought to be, uppermost in the minds of the voters making the decision. As the railroad was not for the benefit of Ingalls, and in no wise tended to increase its advantages for the transaction of business of any kind, a portion of the opinion of The State v. Elting is worthy to be reproduced, as it shows, under the facts disclosed by the testimony, that the railroad scheme was the inducement or bribery which tempted the voters of those townships.
In that case Mr. Justice Brewer said:
“A further question may arise when the offer of the candidate carries with it no pecuniary benefit to the voter; as, for instance, should a candidate for a county office offer to give, if elected, a portion of his salary for the erection of a public fountain; or, if a candidate for a state office, if elected, to endow a chair in some college: here it may be said that the voter is in no way influenced by considerations of personal gain. He receives no money in hand, his taxes will not be reduced, and he may in no manner be pecuniarily benefited by the donation. This presents a case going still beyond those which have been decided, and yet very probably the same decision should control such a case, and for this reason: wrong considerations are thrown into the scale to influence the vote of the elector. The theory of popular government is, that the most worthy should hold the offices. Personal fitness — and in that is included moral character, intellectual ability, social standing, habits of life, and political convictions — is the single test which the law will recognize. That which throws other considerations into the scale, and to that extent weakens the power of personal fitness, should not be tolerated. It tends to turn away the thought of the voter from the one question which should be paramount in his mind when he deposits his ballot. It is, in spirit at least, bribery, more insid ious, and therefore more dangerous, than the grosser form of directly offering money to the voter.”
Therefore I may say that the proposition of a large owner and backer of Ingalls to the voters of Montezuma and Hess townships, which induced those voters to wholly disregard the conveniences, accommodations, and material or superior advantages of the places contesting for the county seat, in spirit at least, “was bribery, more insidious, and therefore more dangerous, than the grosser form of directly offering money” to the voters of those townships.
The buying of 71 votes with a bond of $10,000 is fittingly censured and denounced in the opinion; but is not the purchase of over 400 votes with a railroad scheme, or in default to pay as a forfeit $75,000, deserving of equal if not greater condemnation ? If it is impossible to separate the good and bad votes in Cimarron and Foote townships, it is equally impossible to separate the good and bad votes in Montezuma and Hess townships. If the Cimarron and Foote votes are to be excluded, then I think there should also be excluded the votes of Montezuma and Hess.
Further, the scheme whereby Montezuma was taken out of the contesting towns for county seat was corrupt, and against public policy. To understand the full nature of the scheme it is necessary to state that the legislature formed Gray county in 1887. The town of Ingalls was formerly the post-office of Soule, named after A. T. Soule, a maker and seller of “bitters,” of Rochester, New York. According to the evidence, he is a man of unlimited wealth. He was a large owner in Soule, and the builder of the railroad through Montezuma and Hess townships after the election. Soule was changed to the name of Ingalls, thereby adopting a very popular name in Kansas to attract attention and votes. The testimony shows that for temporary county seat the voters of Gray county expressed their choice as follows: For Ingalls, 88; for Montezuma, 560; for Cimarron, 705; for Stowe, 1; for center, 1; total, 1,355. At a meeting held in Montezuma prior to the election, at which the railroad scheme was fully considered, discussed, and approved, the following resolution was unanimously adopted:
“Resolved, That we, the citizens of South Gray, unanimously resolve and do hereby withdraw Montezuma and every other possible town in South Gray county from the candidacy for permanent-county seat in the coming election to be held for locating the same. And we hereby pledge ourselves individually and unitedly to use our best endeavors, our influences, and every honorable and lawful measure to locate the permanent county seat at Ingalls at the coming election.”
By the promise to build the railroad free of cost east and west through. Montezuma and Hess, Montezuma was withdrawn as a candidate for county seat, and upon election day those two townships cast 431 votes for Ingalls and 77 only for Cimarron. If it were legitimate to buy off Montezuma, it was equally legitimate to buy off the other town contesting for the county seat, and in this way a county seat could be established by bribery and corruption, without regard to location, public conveniences, consequences, or results. In voting for Ingalls in Montezuma and Hess townships, the location for the county seat was practically lost sight of, and when the voters of those townships cast their ballots for the county seat, they were voting for a railroad to be built free of cost for their benefit, rather than deciding where the interests of the county demanded the location of the seat of justice. As was said in The State v. Elting, this was the result of “bribery, •more insidious, and therefore more dangerous, than the grosser form of directly offering money to the voters.”
In 1871, the legislature of the state attempted to elect a United States senator. The election was subsequently investigated by the United States senate. It appeared upon the hearing that another person, who had been a candidate for the ■same office, through corrupt and improper influences withdrew his name from the canvass. Upon this showing the committee of the senate reported that the person holding the election ■certificate was not duly and legally elected to a seat in the United States senate. That report was based upon the following proposition:
“The buying-off opposing candidates, and in that way securing the votes of all or the most of their friends, is in effect buying the office. It recognizes candidacy for office as a merchantable commodity; a thing having a money value, and is as destructive to purity and freedom of elections as the direct bribery of members of the legislature.” (U. S. Senate Rep., Nos. 233-456, 1872-3, pp. 2-6.)
Subsequently the person holding the certificate of election accepted the result of the report and voluntarily resigned, and retired from senatorial and political life.
Within the well-settled principle announced in the foregoing report of the United States senate, the proposition made by one of the large owners of Ingalls to the voters of Montezuma and Hess townships, and. acted upon by them, goes to the validity of the county-seat election of Gray county, and had the effect, if that principle be followed, to make the election absolutely void.
If the election was void, then the county seat remains where it was temporarily established by the governor, and the officers of the county should hold their offices there until the people determined by a legal election where the permanent county seat should be located. This result would certainly be in the interest of substantial justice, because, in the opinion of the commission, it is stated:
“ This case can fairly be said to embody the sum of all election villainy. If there is any one particular crime connected with the conduct and the result of an election, that was not committed in Gray county on the 31st day of October, 1887, our research has been in vain, for we have failed to find it.”
There are very many other matters in the testimony that I would gladly refer to and comment upon, but the few hours which I have had since the report of the commission was presented, in which to formulate my views, prevent me from more extended comment, which I deem the merits and importance of the-legal questions involved in the case deserve and demand. | [
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The opinion of the court was delivered by
Valentine, J.:
This is a criminal prosecution upon indictment instituted in the district court of Cowley county, wherein it is charged that the defendant, J. H. Jackson, “did unlawfully set up and keep a certain bawdy-house, in the city of Arkansas City, in said county.” We suppose the prosecution was instituted under § 242 of the act relating to crimes and punishments. The case was tried before the court and a jury, and the court instructed the jury among other things as follows :
“Theevidence is abundantly satisfactory that this place was a place of ill-repute, and that this house was, at the times mentioned, or at least some of the times mentioned, in the evidence, a house of ill-fame or a bawdy-house. And the circumstances surrounding this place, and the circumstantial evidence surrounding this case, are, in the judgment of the court, abundantly sufficient to satisfactorily show to the court and this jury that illicit sexual intercourse was carried on at this place at the times mentioned in the testimony; so that, in the opinion of the court, the vital and only question in this case is, whether or not this defendant set up and kept this place, or had anything to do with setting up and keeping and encouraging this business, at the times when it was carried on at that place: that is the vital question of fact I desire to submit to you.”
The defendant was found guilty, and sentenced to pay a fine of $1,000, and costs, and to stand committed to the county jail until such fine and costs were paid; and he now appeals to this court.
We think the above instruction is erroneous. By it the court in effect took away from the jury the question whether the alleged bawdy-house was in fact a bawdy-house, or not, and decided the question itself. Now it is just as necessary in cases like this, where all the questions of fact are disputed and none admitted, for the prosecution to show that the house in ques tion was a bawdy-house, as it is for the prosecution to show that the defendant was the keeper thereof. Such a question is one of fact for the jury to determine, and not one of law for the court to determine. If there had been no dispute with reference to this matter; if the defendant had admitted that the house in question was a bawdy-house; or if all the evidence in the case, without the slightest exception, had clearly, conclusively, beyond all question and directly shown that the house was a bawdy-house, then the instruction might not have been prejudicially erroneous; but such is not this case. In this case the defendant never admitted, either expressly or tacitly, that the house was a bawdy-house, and he attempted during the trial, and by his evidence as well as by his general plea of not guilty, to dispute this fact. In criminal cases it is never competent for the court to take a question of fact away from the jury and to decide it itself. Of course a necessary fact may in some cases not be a question of fact, for the fact itself might be admitted by the parties, or it might not be disputed, and the entire and uncontradieted evidence in the case might clearly, unquestionably, conclusively and directly prove the same. In such a case there might not be any question of fact to be decided by either the court or the jury, and the only question with reference to such fact might be a question of law to be stated by the court. But such is not this case. For the purposes of this case it will be admitted that the evidence clearly proved that the house in question was a bawdy-house, and that the evidence so clearly proved the same that if the question had been submitted to the jury the jury would and should have found that the house was in fact a bawdy-house; but that is not sufficient to authorize the court to take the question away from the jury. A court is not authorized in any criminal case tried by a jury to make findings of fact, and especially not where it is necessary in doing so to draw inferences or conclusions from a number of merely probative facts or circumstances. Indeed it is not the province of the court in any criminal case tried by a jury to draw inferences of fact at all for the purpose that such inferences should gov- era the jury or be treated as facts in the case; but it is the province of the court only to announce the law correctly to the jury.
There were other instructions given by the court to the jury upon this same subject, some of which were correct statements of the law, and others were not, and were erroneous; but we do not think it is necessary to make any comment upon any of these other instructions. As to when a court may instruct the jury in a criminal case with reference to the facts of the case, see on one side the case of The People v. Richmond, 26 N. W. Rep. 770; and on the other side the case of U. S. v. Taylor, 3 McCr. 500. See also criminal code, § 236.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Opinion by
Holt, C.:
The.plaintiff in error, defendant below, complains of two errors in the trial of the action: one, allowing damages for the boiler and its removal; the other, in decreeing a perpetual injunction against the removal of the pump. Both of the alleged errors involve the application of the same principles and require the determination of the same question, namely, whether the several pieces of property retained their character as chattels, or became fixtures. What we may say of one thing in this connection will usually apply to all the others. It will be conceded that before plaintiff could recover for the conversion of the boiler, it must have become a part of his real estate. The boiler originally was the property of defendant, and it could have done with it as it pleased; and the only way it could have become divested of its ownership, under the facts in this case, was in the manner of placing it.on plaintiff’s land. If it then became a fixture, it was the property of plaintiff.
Hill gives this definition of fixtures: “By the term fixtures are designated those articles which were chattels, but which, by being physically annexed or fixed to the real estate, become a part of and accessory to the freehold.” It is frequently a difficult and vexatious question to ascertain the dividing-line between real and personal property, and to decide upon which side of the line certain property belongs. When we compare a thing at the extremity of one class with a thing at the extremity of the other, the difference is obvious; but when we approach the question of fixtures, which is the dividing-line between real and personal property, there is often great difficulty. The decisions of the courts are apparently as diverse as the peculiarities of the facts in the different cases that are decided; and being largely governed by the particular facts of each case, the citation and examination of decisions often tend to confuse rather than to enlighten the judgment.
In the statement of facts it is agreed that the boiler was placed on the ground upon a cast-iron base, was not set in masonry, and was connected with the pump by a steam pipe for the purpose of furnishing steam from the boiler to operate the pump, and thereby carry water to the tank. This of itself does not necessarily show such a physical attachment to the realty as constitutes a fixture. (Hendy v. Dinkerhoff, 57 Cal. 3; Towne v. Fiske, 127 Mass. 125; Kimball v. Grand Lodge, etc., 131 id. 139; Balliett v. Humphreys, 78 Ind. 388; Hoyle v. P. & M. Rld. Co., 51 Barb. 45.)
But attachment to the realty is not alone sufficient to change the character of personal property; it is only one of several tests to determine whether property originally a chattel has become a fixture by being used for a particular purpose, and however the rule^may have been formerly it is not now deemed to be the controlling test. Tyler, on page 101 of his treatise on Fixtures, says:
“The simple criterion of physical annexation is so limited M its range, and so productive of contradiction, p. wm n0f; apply with much force except in respect to fixtures in dwellings.”
In Meigs’s Appeal, 62 Pa. St. 28, it is said:
“In determining what is a fixture, the notion of physical attachment is exploded; it is now determined by the character of the act by which the structure is put into its piaee? the policy of the law connected with its purpose, and the intention of those concerned.”
This Pennsylvania case lays down the rule more broadly, perhaps, than that of some other courts, yet it shows the tendency of modern decisions. (See also Ewell on Fixtures, pp. 20, 293.) There is scarcely any kind of machinery, however complex in its character, or no matter how firmly held in its place, which may not with care be taken from its fastenings and moved without any serious injury to the structure where it may have been operated and to which it may have been attached. That the simple fact of annexation to the realty is not the sole and controlling test of whether a certain article is a fixture or not, is very well illustrated by the fact that trees growing in a nursery and kept there for sale are personal property, while trees no larger, if transplanted to an orchard, become real estate. On the other hand, there are very many things although not attached to the realty which become real property by their use — keys to a house, blinds and shutters to the windows, fences and fence rails, etc.
It can readily be seen that one of the tests of whether a chattel retains its character or becomes a fixture is the uses to which it is put. If it be placed on the land for the purpose of improving it and to make it more valuable, that is evidence that it is a fixture. Applying: this criterion to the boiler, we are led to inquire whether this benefited the land of plaintiff. The real estate upon which this boiler was placed was a narrow strip in the city of Burlingame, and it cannot be contended that this well, boiler and the attachments could have greatly benefited this small tract of land. They were not placed there for the purpose of enhancing its value; ordinarily it would not enhance the value of such property in a city, as this small piece of ground, by digging a well thereon like the one in question; and the only value added thereto by placing a pump, boiler and boiler-house like those in controversy would be what they were worth as chattels. The test of whether real estate is benefited by the act of annexation has been repeatedly applied by the courts, to determine whether the chattel annexed became a fixture or not. (11 Alb. L. J. 151; Woollen Co. v. Hawley, 44 Iowa, 57; Taylor v. Collins, 51 Wis. 123; Huebschmann v. McHenry, 29 id. 655; Minnesota Co. v. St. Paul Co., note, 2 Wall. 645; N. C. Rld. Co. v. Canton Co., 30 Md. 347; Wagner v. C. & T. Rld. Co., 22 Ohio St. 563.)
It has been held that before personal property can become a fixture by actual physical annexation, the intention of the parties and the uses for which the personal property is to be put, must all combine to change its nature from that of the chattel to that of the fixture. (Teaff v. Hewitt, 1 Ohio St. 511; Ewell on Fixtures, p. 293; Woollen Co. v. Hawley, supra.) In this connection it is well enough to note, also, the circumstances under which this boiler was placed upon the land of plaintiff. It is conceded that the railroad company was a trespasser, yet it was not a willful one; it dug the well, put in the pump and boiler and erected the boiler-house under the belief it was occupying its own land, and only discovered its mistake after some years of occupation. There is nothing to show that it wished to gain anything by digging the well where it was located rather than on its own land; in fact, it is stated that two feet of the well is upon its own land. It can be safely presumed that the well would have been as good a one if it had been placed on defendant’s side of the division line instead of plaintiff’s. It dug the well, put in the pump and boiler for the sole purpose of operating its railroad, and not to improve the land where the property was placed.
The company began condemnation proceedings to obtain the laud, but did not follow them to a conclusion; if it had, it would have been compelled to only pay for the land and not for its own improvements thereon. This rule is well established by authority: Cohen v. St. L. Ft. S. & W. Rly. Co., 34 Kas. 158; Justice v. N. V. Rld. Co., 87 Pa. St. 28; Daniels v. C. I. & N. Rld. Co., 41 Iowa, 52; Lyon v. C. B. & M. Rld. Co., 42 Wis. 538; Greve v. St. P. Rld. Co., 26 Minn. 66; Wagner v. C. & T. Rld. Co., supra; Schroeder v. DeGraff, 28 Minn. 299.
While it is the general rule in regard to annexation made by a stranger with his own materials on the soil of another without his consent, that the owner of the materials loses his property because he is presumed to have parted with it and dedicated it to the owner of the land, yet the peculiar circumstances under which this well was dug would indicate there should be a modification in this instance. (Lowenburg v. Bernd, 47 Mo. 297.) If the company had placed it there, even uiider a mistake, for the purpose of ultimately improving the real estate, the law might under this state of facts have held it to be the property of the owner of the real estate; but under the agreed statement it was placed there solely for the purpose of better operating its own railroad. If it had been placed on its own right-of-way and that afterward abandoned, then under a respectable list of authorities it would have been permitted to take away the pump, boiler, and boiler-house. We can see no reason for a distinction that would have allowed any compensation to plaintiff if condemnation proceedings had been instituted, after occupation and placing improvements upon the land, and prosecuted to a conclusion, and an action brought in the way this one was. In one case the authorities are an almost unbroken current that the railroad company could not have been compelled to pay for its own property placed upon the land. We also think it should not be required to do so now. We believe, in this action, because the improvements did not and were not intended to benefit the realty, that the pump, boiler and building should be held to be personal property and not fixtures. We are well aware that very many authorities hold that the buckets in a well are real property; unquestionably, between vendor and vendee and mortgagor and mortgagee this is the rule; but under the facts in this case, considering the use to which these articles were put, and the relations of the parties, we are constrained to believe that that rule does not apply.
For the reasons given above, we recommend that the judgment awarding damages against the defendant be reversed, and the injunction so granted be modified as to allow the defendant to remove the pump.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was commenced originally as an action to quiet title, in which the plaintiff in error was the plaintiff and the defendant in error was the defendant. Service of summons was obtained only by publication. The title was quieted in the plaintiff upon a default on the part of the defendant, and immediately afterward the plaintiff sold and conveyed the land to an innocent purchaser. The judgment was afterward opened under § 77 of the civil code. The defendant answered, setting up that she owned the land, and asking for damages. Judgment was afterward rendered in her favor, and the plaintiff now seeks a reversal thereof in this court. The plaintiff claims the land under a tax deed executed to Charles S. Kenderdine, and through intermediate conveyances down to himself. The defendant claims the land under the original patent issued by the United States to John Bement, and through intermediate conveyances dqwn to herself.
The first question presented to this court for consideration is, whether the tax deed under which the plaintiff claims is valid. He proved his tax deed only by a supposed record copy of the same found in the office of the register of deeds. This copy purports to show that the tax deed was acknowledged before the probate judge of Coffey county, but it does not show that such probate judge ever attached the seal of his office to the acknowledgment. Without this seal, or some showing that the seal had been attached to the acknowledgment, the record of the deed is void, (See Meskimen v. Day, 35 Kas. 46, and the statutes hereafter cited.) And even the deed itself without the seal would be no evidence of title, and would probably be void. (See act relating to taxation, §.138; act relating to conveyances, §§ 7,15, 19 and 27, and other sections from 7 to 27; and the act relating to probate courts, § 2.)
There are other questions presented with reference to the tax deed, but as no valid proof was introduced in the court below that any tax deed of any kind was ever executed, it is unnecessary to consider them.
The next question to be considered is, whether the defendant proved by any competent evidence that she had any title to the land. We think that she did not. It is admitted that the title to the land was originally in John Bement, and the defendant, in order to show that the title passed from him to her by a chain of intermediate conveyances, introduced in evidence, among other papers, what purported to be a power of attorney to make a deed, and a deed from heirs of John Bement; but there was no evidence introduced outside of this power of attorney and this deed that tended to prove that John Bement was dead, or that he had any heirs, or who his heirs were if he had any, or that the persons who executed this power of attorney and this deed were his heirs. And certainly, recitals in a power of attorney to make a deed of conveyance of land and in the deed stating that the persons executing the power of attorney and the deed are the heirs of a person who previously owned the 1 ^ land, are not sufficient evidence as against a stranger to these instruments of the death of the supposed ancestor, or that the persons represented to be his heirs are in fact his heirs. (Costello v. Burke, 63 Iowa, 361; same case, 19 N. W. Rep. 247; Potter v. Washburn, 13 Vt. 558; same case, 37 Am. Dec. 615.) There-is no evidence that John Bement himself ever executed any power of attorney, or any deed, or any other instrument affecting his real estate. The foregoing power of attorney, purporting to have been executed by the heirs of John Bement, was executed May 25, 1869, and the above-mentioned deed was executed August 2, 1869, and both were recorded on April 19, 1870; but no person ever took or held the possession of the property under either of these instruments; and the final trial in this case, at which both these instruments were introduced in evidence, was had in April, 1887. Evidently neither this power of attorney, nor the deed, nor the record thereof, can be considered as an ancient document, and could not be introduced in evidence or considered under the rules of evidence relating to ancient documents; and evidently there is sufficient evidence in existence to show whether John Bement is dead or not, and if dead, who are his heirs.
There are other questions presented in this case, but with the views we have taken of the questions already discussed, we think it is unnecessary to consider the other questions.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
Yernon M. Reynolds was prosecuted in the district court of Wichita county for murder. The information upon which he was tried charges substantially that on the 15th day of July, 1888, Dr. Reynolds unlawfully and feloniously and with malice aforethought wounded and injured one Samanda Biehn with a certain steel instrument, called a surgeon’s sound, thereby inflicting a mortal wound on her womb, which caused her death on the 14th day of November, 1888. Upon the trial, which occurred at the June term, 1889, the defendant was convicted of manslaughter in the first degree; and from a judgment upon this conviction he appeals to this court.
It is quite clear that the judgment is unsupported by the testimony, and must be reversed and set aside. Samanda Biehn died on November 14, 1888, and the evidence derived from the post-mortem examination tended to show that the immediate cause of her death was peritonitis, which was probably induced by a cut discovered on the womb, about half an inch long and one-eighth of an inch deep. The appellant was a practicing physician and surgeon, and Samanda was his patient, who had applied to and received treatment from him for womb disease. She was working in a tailor-shop from February, 1888, and in the early part of July complained of her health, when her employer advised her to consult with Dr. Reynolds, which she did. There is no dispute but that he treated her for some illness, and that an examination was made by him about the 15th of July, 1888, in which an instrument called a surgeon’s sound was used. The theory of the prosecution, and the one on which the case was given to the jury, was, that the sound was used by the appellant for the purpose of producing an abortion, and that while engaged in the commission of that act he inflicted the wound which caused her death. In submitting the case the court instructed the jury that “if Vernon M. Reynolds did, by the use of some instrument, while in the commission of an unlawful act, inflict a wound upon the person of the deceased, and that said wound was the cause of the death of said deceased, and that said wound was inflicted without malice, express or implied, then the offense would be manslaughter in the first degree.” And further, that “homicide is excusable when committed by accident or misfortune in doing any lawful act, by lawful means, with usual and ordinary caution, and without unlawful intent.”
There is a total failure of proof to show any malice or intent to kill, and none to show that the surgeon’s sound was used by the doctor in the commission of an unlawful act. The attorney general frankly concedes that if the conviction stands it must rest alone on what is termed a dying declaration of the deceased. This declaration was made about three months after the sound had been used by the doctor, and thirty-four days before her death. She continued in her regular employment until the day preceding the one on which the statement was made, and although the physician who attended her is called as a witness, he was not asked and did not state that he ever told her the illness would be fatal, or that she was likely to die.
From all the circumstances surrounding the case, which need not be detailed here, we entertain great doubts of the admissibility of her dying statement in evidence. The conclusion we have reached, however, makes it unnecessary to determine that question. If we assume her declarations to be competent testimony, they still fail to show any criminality on the part of the appellant. She states that the doctor had sexual intercourse with her, after which he used the sound. According to the witness Kammer, to whom the statement is said to have been made, when asked why the sound was used she said: “ He told me he was afraid she was becoming in a family way; that she had not had her monthly courses at the proper time. It was a week or ten days past the time.” She did not state the purpose for which the sound was used — whether for an abortion, dr merely to examine and ascertain her condition; and the proof of the experts who examined the womb is that she had not been pregnant. The testimony offered by the state is to the effect that the sound is a proper instrument for making an examination of the womb, and not one likely to be used to produce an abortion. The testimony of Ur. Reynolds as to the treatment and the purpose of the operation is as follows:
“Q. Now state, doctor, what operation you performed upon the person of Samanda Biehn on that occasion. A. I suppose you are aware that I had been doctoring her ? You just want that question answered. I went there for the purpose of seeing how she was getting along, and she was complaining as she had been before, and I told her I had better make an examination of the parts, and she said, ‘All right;’ so I took this instrument just in that shape [shows the jury how he did it], and I introduced it just as you see right there, introduced it in that way, and then it is turned up in that shape.
“Q,. Explain to the jury what that is. A. That is a speculum.
“Q,. State to the jury whether or not that is the same kind of a speculum that you used in that case. A. I would say it is not.
“Q. What is the difference? A. The difference between them is this: this one has three prongs; the one I used was in only two parts.
“Q,. Any other difference? A. Yes, sir, some other difference. It is best that this here run down in this way and these two places here. After I got the instrument inserted in that shape, I turned it so. The mouth of the womb was turned in. While I was doing that, she complained — she was very tender — and after I did that I looked there and the mouth of the womb was in shape so that I could see it. Says I, ‘You are unwell?’ And she says, ‘I don’t know.’ She had been troubled with ulcers, and I thought it might be caused by these ulcers.
“Q,. State to the jury whether you used that kind of an instrument. A. I had an instrument similar to that. And I took my dressing forceps first; I took up a piece of cotton just in that way, and I sponged off the parts and found that it was ulcers which had made her trouble, and I sponged the places and found the ulcers were bleeding to some extent. There was too much hemorrhage there for it to come from ulcers. I says, ‘You are surely unwell.’ Says she, ‘It may be that I am.’ I says, ‘If you are unwell it is useless for me to make any application.’
“Q. State to the jury what wound, if any, you inflicted upon the person of Samanda Biehn that day. A. I never inflicted any wound at all.
“ Q. Did you ever perform any operation on her, except that which you have testified to? A. I have performed no operation, only that stated.
“ Q. State to the jury whether you ever inflicted any wound upon the person of Samanda Biehn. A. I never did.
“ Q,. State for what purpose that instrument was used upon that Sunday. A. I used the instrument for doctoring the patient the same as I would any .other patient.
“Q. What was the matter with the patient? A. She had been troubled with womb troubles.
“ Q,. I will ask you to state to the jury if this girl was pregnant at that time — at the time you performed this operation. A. I would say that she was not, because she was unwell at the time.
“Q,. State to the jury whether or not at any time you have ever performed any operation for the purpose of performing an abortion. A. I never did.”
Accepting the statement of the deceased to the fullest extent, there is an absence of evidence to prove that the sound was used for the purpose of procuring an abortion, and, as we have seen, the appellant specifically denies that such was the purpose for which the operation was performed. As a matter of fact there was no pregnancy, and therefore no occasion for an attempt to produce abortion. It will be conceded that if the doctor was not engaged in an unlawful act, but used the instrument to make an examination with a view of ascertaining her condition, and did so without culpable negligence or unlawful intent, he is not guilty, although while doing so he may have accidentally inflicted the injury which caused her death. (The State v. Schulz, 55 Iowa, 628; Rice v. The State, 8 Mo. 561; Commonwealth v. Thompson, 6 Mass. 137; 1 Hale, P. C. 429; 2 Bish. Crim. Law, 695; 3 Whar. & Stil. Med. Jour., §§ 754, et seq.)
The testimony goes no farther, and the conviction cannot stand. The appellant was a physician and surgeon, and there is no attempt to show that he was not competent and skillful in his profession. The instrument used in the examination was suitable and proper, and such as is commonly used for that purpose; and proof requisite to a conviction of recklessness in the use of the instrument, or of evil intent, is entirely wanting. In fact the record does not fairly establish that , the wound found on her womb was even inflicted by the instrument which Dr. Reynolds used in the examination, or. that it could have been made at a period so remote as when that operation was performed.
Dr. Smith, a witness for the state, who examined Samanda in October and attended her in the last illness, was unwilling to give an opinion that an instrument had been used prior to the time he was called to attend her in October. He was then inclined to think that violence had been used in the treatment of the womb, either by herself, or some one else, but that the inflammation or peritonitis from which she died might have been caused by a cold, or any rough treatment of the womb. He stated that a well-defined wound, apparently made by some instrument, was found on the womb at the post-mortem examination, but that it might have been made by an instrument like the point of a probe or a syringe.
Dr. Knapp, another witness called by the state, who was a practicing physician and the coroner before whom the postmortem examination was conducted, gave the following testimony :
“ Q,. I will ask you to state if you could tell upon the examination you made, if you are able to state the cause of the death of Samanda Biehn ? A. I had an opinion of it at that time.
“ Q,. What is that opinion. A. That she died from peritonitis.
“Q,. What was the condition, if you know, of the womb? A. It was highly inflamed and congested; the cervix was highly congested.
“Q,. What was the condition of the mouth of the womb as to its being injured? A. I should think that it had been meddled with.
“Q,. State to the jury whether on that examination which was made there was anything from which you could ascertain the cause of the death, except the appearance and condition of the womb. A. There was nothing.
“Q,. Describe the wound that was on the mouth of the womb at that time. A. I don’t know that I can very well.
“ Q,. State to the jury what was indicated by the condition of the wound that you refer to; how long had it been made? A. From the appearance of it, it would seem that it had been made very recently. Half the neck of the womb presented the appearance of having been handled very roughly.
“ Q,. What do you mean by the expression, ‘ very recently ’ ? A. Well, within three or four weeks.
“ Q,. State what your conclusion is in regard to the likelihood of that wound having been inflicted as long previous as July 15. A. I don’t believe it was.
“Q,. What kind of an instrument would you say produced that wound ? A. Some blunt instrument. It could be inflicted with the nozzle of a syringe, or with a blunt-pointed lead pencil, with a family catheter, or any blunt instrument of the size of a lead pencil.
“Q. Doctor, I will ask you to state to the jury whether or not a wound like that which appeared upon this womb, inflicted in July, 1888, would be recognizable in November, 1888. A. In my opinion it would not be recognizable if it was left alone.
“Q. State to the jury whether or not such a wound as that you have described as being upon this womb might not have been a cut. A. I think it was a cut. It didn’t look to me as if it was made by a blunt instrument.
“ Q,. State to the jury whether or not in your opinion that-wound was made with a surgeon’s sound, or any kind of a sound. A. I don’t believe it was.
“Q. State to the jury, doctor, what is the ordinary use of the sound. A. Explorations of the outside of the womb, and where you can see, to explore the interior of the womb; and it is never used for abortions at all.”
This is the evidence of the prosecution, and is corroboration of that given by Dr. Reynolds. It is the testimony of two of the principal witnesses for the state, and tends strongly to show that the wound which caused the peritonitis and death was inflicted long after July, when the sound was used by Dr. Reynolds, and also that it was made by some other instrument than a surgeon’^ sound. If a wound was made subsequent to July, 1888, as seems to have been the case, it was done by some one other than the defendant, for the undisputed evidence is, that he did not use an instrument nor perform an operation on the patient after the one conceded to have been performed in July.
We are clearly of the opinion that the judgment is unsupported by the testimony and unauthorized by law, and it will therefore be reversed, and the defendant discharged from custody.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
Three actions were begun in the district court of Marshall county against D. Fuget — one by John W. Allen & Co., another by D. D. Douglas & Co., and still another by G. W. Chase & Son. In each an order of attachment was obtained, it being alleged that the defendant had sold, conveyed, and otherwise disposed of his property with the intent to cheat and defraud his creditors, and to hinder and delay them in the collection of their debts, and was about to dispose of his property with the same fraudulent intent. A motion was made by the defendant in each case to dissolve the attachment, and one of the reasons for the dissolution was that the facts stated in the affidavit as grounds for attachment are not true. A hearing was had upon these motions upon the testimony submitted in the case of John W. Allen & Co., when the attachments were dissolved. Exceptions were taken to these rulings, and they are now assigned for error here. The three cases are submitted upon the same argument and record, and will be disposed of by a single opinion.
There was considerable testimony offered concerning the conduct of the defendant and the good faith and honesty of his business transactions, upon which the court found in his favor, and we are only to inquire whether the testimony is sufficient to sustain those findings. It appears from the evidence that Euget was a physician and druggist, who practiced his profession and carried on a drug business at Vermillion. The drug business was being carried on in' a business-like way, and no sales made except in the usual course of trade. The stock had not been allowed to run down, but was kept up to the standard of a country drug store. The goods were worth about $1,000, and while the amount of the defendant’s indebtedness is not clearly shown, one witness put it at from $500 to $600. The business was small, but considering that it was a country drug, store and only a small stock was carried, it was said to be fairly profitable. His practice as a physician was reasonably remunerative. He was, however, unable to meet the claims of the plaintiffs when they became due, but at the time of the attachments was endeavoring to collect and obtain money with which to pay his indebtedness. The attachments were levied in his absence, during which time he visited St. Joseph, and paid a liability of about $100.
The main ground urged to support the attachments is, that he had given a mortgage upon this stock to his brother for $500, whereas the actual indebtedness was only $350. It appears that this mortgage was given long before he became indebted to the plaintiffs, and also that it had been filed in the office of the register of deeds. He wanted to borrow $500 to put in his business, and asked his brother in Pennsylvania to loan him that amount, or if he did not have it to borrow it for him. To obtain the money he executed a note for $500 and a mortgage upon his stock to secure its payment. His brother declined to borrow the money for him, but loaned him several sums from time to time until they amounted to $350, and would probably have loaned the balance to him in time, or as soon as he could spare the amount. At the end of a year the mortgage was renewed as though the full amount was due. This note and mortgage were permitted to remain in the hands of the defendant for a time, and when the creditors threatened to attach his property he warned his brother of his trouble, and asked him to forward his claim and to protect himself. The fact that the mortgage was given for a larger amount than had actually been borrowed from the brother is not conclusive of fraud, but is open to explanation as to whether if was taken or given with any fraudulent intention on the part of the mortgagor or mortgagee. It could not have deceived the creditors in the present case, for it had been executed nearly a year before the plaintiff’s debts were contracted, and had been made a matter of record. There was no concealment of facts by the defendant, no misrepresentation at the time the goods were purchased, and even at the time the attachments were levied the defendant was negotiating a loan on his home for the payment of his debts.
It is unnecessary to go into a detailed statement of the evidence offered, as we cannot re-try the facts and determine on which side the preponderance of the evidence is. It was mostly oral testimony, and we think it abundantly sustains the findings of the court in favor of the good faith and absence of fraud on the part of the defendant.
The judgments of the district court in the three cases will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
On March 2, 1889, an act of the legislature relating to the registration of voters, etc., in certain cities of the first class, was passed, and on March 13,1889, the act took effect. The title to the act reads as follows:
“An act to provide for and regulate the registration of voters; to regulate elections, and to provide for the appointment of a commissioner of elections in certain cities of the first class.”
The remainder of the act, so far as it is necessary to quote the same, reads as follows:
“Section 1. That in cities of the first class where the metropolitan-police law is or may be in force, and where more than 6,000 votes were cast at the general election in November, 1888, or shall be so cast at any future general election, the members of the board of police commissioners and a commissioner of elections, to be appointed as hereinafter provided, shall constitute a board of supervisors of elections, of which the president of the board of police commissioners shall be president and the commissioner of elections shall be secretary,” etc.
“Sec. 2. The governor of the state shall appoint for each city of the first class to which the provisions of this act apply, immediately upon the going into effect of this act, a commissioner of elections, who shall hold his office for the term of four years, and until his successor is appointed and qualified,” etc.
“Sec. 19. That in any city of the first class where more than 6,000 votes were or may be cast as specified in section 1 of this act, but where the metropolitan-police law is not in force, a commissioner of elections shall be appointed as previously provided; and it shall be his duty to appoint one councilman from each ward, who shall act as a board of supervisors of elections, to be confirmed by the council, whose duties as such supervisors shall be identical in every respect with those prescribed for such supervisors in cities where the metropolitan-police law is in force.”
At the time of the passage and the taking effect of this act the city of Leavenworth was, and still is, a city of the first class, in which the metropolitan-police law was and still is in force. At the general election held in November, 1888, less than 6,000 votes were cast in said city, but at the city election held in April, 1889, more than 6,000 votes were cast in said city, to wit, 7,439, of which 3,000 were east by women. On April 10, 1889, the governor, under the aforesaid act, appointed William W. Eoberts, a citizen and householder of Leavenworth city, a commissioner of elections for the city, and he duly accepted the office and qualified. At that time and since, the defendant, Carrie Shepherd, was and has been the city clerk of said city. On April 24,1889, Roberts, as such commissioner, demanded of the defendant, as city clerk, the entries of registration made by the clerk since the first Monday in January, 1889, and all records of registration and the books and papers connected therewith; which demand was refused by the defendant. On April 25, 1889, this action, which is mandamus, was commenced in this court by the attorney general, in the name of the state of Kansas, to compel the defendant, as city clerk, to deliver to Roberts, as commissioner of elections, the aforesaid registration records, etc. Upon these facts the legal question arises, and it is the principal question involved in this case: Does the aforesaid registration act apply to the city of Leavenworth ? If it applies, then Roberts was and is entitled to the aforesaid records; but if it does not apply, then his appointment was a nullity, he was not and is not entitled to the records, and the defendant, as city clerk, properly refused his demand. The plaintiff claims that the aforesaid registration act is “applicable to all cities of the first class where the metropolitan-police law is or may be in force,” regardless of the fact whether more than 6,000 votes have ever been cast in such cities at a general election, or not; and claims that the act is also applicable “to all cities of the first class where more than 6,000 were cast at the general election in November, 1888, or shall be so cast at any future general election, regardless of the fact whether these last-named cities casting more than 6,000 votes are or are not under the operation of the metropolitan-police law.” On the other hand, the defendant, so far as this case is concerned, will admit that all that the plaintiff claims is correct except as follows: she denies that the law is applicable to any city in which not more than 6,000 votes have ever been cast at a general election. Indeed, the only question involved in this case is, whether the law is applicable to cities of the first class or not, where the metropolitan-police law is in force and where as many as 6,000 votes have never been cast at a general election.
The first section of the act makes the law applicable only to cities of the first class where the metropolitan-police law is or may be in force, and where more than 6,000 votes were cast at the general election in November, 1888, or shall be cast at any future general election; and does not make the law applicable to any city other than a city of the first class, nor to any such city where the metropolitan-police law is not in force, nor to any city where not more than 6,000 votes have been cast at a general election. Section 19 of the act, however, extends the applicability of the law to any city of the first class where more than 6,000 votes have been cast, although the metropolitan-police law may not be in force in such city; but neither this section nor any other section or provision of the act attempts to so extend the law as to make it applicable to any city other than a city of the first class, or to any city other than one where more than 6,000 votes have been cast at some general election. When this law took effect, it immediately applied, under section one of the act, to the cities of Wichita and Kansas City, for each of such cities was a city of the first class, each was under the metropolitan-police law, and in each more than 6,000 votes were cast at the general election in November, 1888; and under section 19 of the act the law immediately applied to the city of Topeka, for it was a city of the first class in which more than 6,000 votes were oast at the general election in November, 1888, although it was not at that time under the operation of the metropolitan-police law; and by the terms of the act the act might become applicable in time to every city of the first class in the state of Kansas.
It is our opinion that the aforesaid act does not apply to the city of Leavenworth, and therefore the peremptory writ of mandamus will be refused, and judgment will be rendered in favor of the defendant.
All the Justices concurring. | [
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Opinion by
Holt, C.:
On May 2, 1885, Mary A. Gary' executed a lease to W. R. Skillman for eighty acres of land in Bourbon county, for the agreed rental of $300, evidenced by two notes, one for $100, payable to James P. Clark; the other for $200, payable to Mary A. Gary, of which the following is a copy:
“Fort Scott, Kansas, May 2, 1885. — On or before Oct. 1, 1885, after date, I promise to pay to the order of Mary A. Gary the sum of two hundred dollars, value received, payable at the First National Bank, Fort Scott, Kansas, with interest from date at the rate of 8 per cent, per annum.
W. R. Skillman.
J. H. Plank.
Fletcher Oliver.”
She brought suit on this note against Fletcher Oliver, and at the May term, 1887, of the Bourbon district court recovered a judgment of $233. This judgment is complained of, and asked to be reversed in this court. It was admitted at the trial that the title to the eighty acres was in Benjamin Gary, husband of the plaintiff, and that when the lease was made the land was the homestead of Benjamin Gary and Mary A. Gary his wife. It also appeared that he was then insane —confined in the insane asylum at Osawatomie. The defend ant offered to prove at the trial by the probate records that he had been adjudged insane before the lease was executed, and that no order had ever been made by the probate court to lease or sell this land; this testimony was held to be incompetent. On the other hand, it is also proven beyond any question that Mrs. Gary gave possession of the land described in the lease to William R. Skillman, and that he remained in peaceful possession thereof until the 1st of March, 1886, occupying and cultivating the land as her tenant.
The defendants in their answer say that he received no valid and legal consideration for said note. In their brief, however, they contend that this land was the homestead of Benjamin Gary, and that his wife, this plaintiff, had no authority to make this lease. This proposition is conceded to be correct abstractly, and were it not controlled by other principles applicable to the facts and circumstances, would be accepted as the rule in this action; but this lease, bad once, is good enough now; this paradox the law permits in actions of this nature. In this case the lessee received everything that he bargained for; was given possession of the land, and held it peaceably until after the expiration of the lease. Having received all the benefits of his contract, he cannot now be permitted to dispute the authority of Mrs. Gary to lease him the land, and thereby escape paying for what he has received; the law does not allow him this immunity.
In Grant v. White, 42 Mo. 285, w'here White, the tenant, after he had taken possession and held under the lease, disputed the authority of Julia Grant to make a lease without the concurrence of her husband, the court said:
“ The defendant voluntarily entered into this contract, went into possession under it, peaceably occupied the premises according to its terms, and on the plainest principles of justice is estopped from disputing its validity.”
Benedict v. Morse, 10 Metc. 223; Jamaica v. Hart, 52 Vt. 549; Northampton County’s Appeal, 30 Pa. St. 305; Mauldin v. Cox, 67 Cal. 387. See also Prevot v. Lawrence, 51 N. Y. 219; Russell v. Erwin, 38 Ala. 44; Taylor on Landlord and Tenant, § 629; Gear on Landlord and Tenant, §165, note 16.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This is an appeal from an award made by the county commissioners of Cowley county for damages sus tained by Elizabeth C. Hurst in the appropriation of a right-of-way, and the building of a railroad across her land by the Kansas City & Southwestern Railroad Company. The damages were appraised by the commissioners at $153, and at the trial in the district court the award was increased to $600. It is now contended that the court erred in refusing to dismiss the appeal, and also in permitting the introduction of any testimony whatever. It is claimed that the appeal was not taken within the time prescribed by law, and hence the court was without jurisdiction to entertain and determine the controversy. The basis of this contention is that the report of the commissioners is dated December 23, 1885, and the appeal bond was not filed with and approved by the county clerk of Cowley county until the 6th day of January, 1886. The time when the report of the commissioners was filed with the county clerk is not indorsed upon the report, but that it was so filed less than ten days before the appeal was taken, sufficiently appears. The time of making the award, or the time when the commissioners reduce their report to writing and sign the same, is not the starting-point from which to reckon the. time within which an appeal may be taken. Their duty is only partially performed when their doings are embodied in a written report, as the same statute that provides for making the report requires them to file it in the office of the county clerk. (Comp. Laws of 1885, ch. 23, § 82.) Until it is so made and filed, it is incomplete, and not binding on either party. The land-owner has no notice of the final action of the commissioners before the report is filed, and until it is made a matter of record, showing the definite line, the extent of laud appropriated, and the condition in which the land not taken will be left, as well as the amount awarded, his property is not affected by their action, and no appeal need be nor in fact can be taken. If the taking of an appeal was limited within ten days after the commissioners reached their conclusion and reduced the same to writing, it would be within their power to deprive the owner of the lands condemned from the right of appeal by withholding the report from the records until after the ten days had expired. It is clear that the owner may exei’cise the right of appeal at any time within ten days from the filing of the report, regardless of when it may have been made. (Gulf Rld. Co. v. Owen, 8 Kas. 409, 414; Comp. Laws of 1885, ch. 23, § 86; id. ch. 81, § 121.)
Enough is shown by the record to establish that the appeal was taken within the prescribed time. The fact that no file-marks are upon the report does not preclude a party from showing when it was actually deposited or filed with the county clerk, and the record discloses that it was filed on December 30, 1885. The appeal bond itself recites that the report was filed with the county clerk at that time, and in the record of the facts and proceedings brought before us there is a statement that “plaintiff by counsel offers to introduce in evidence the report of the right-of-way commissioners, filed in the office of the county clerk of this county 30th of December, 1885.” This statement of fact is uncontradicted in the record, and was passed over without question by the railroad company. When the motion to dismiss the appeal was made, counsel for the railroad company did not indicate that the appeal was not taken in time, or that there was any question in respect to the time when the report was filed. It is obvious that the appeal was perfected within ten days from the filing of the report hence this objection must be overruled.
The railroad company further assails the validity of the appeal bond on the ground that it does not contain a definite description of the appellant’s premises through which the railroad was laid, and the defect referred to is that the range in which the land lie's is not stated. The bond recites that the route laid off was across and through “the following lands, situated in said county of Cowley, state of Kansas, owned in fee simple by the above bounden Elizabeth C. Hurst, to wit: Lots numbered 5 and 6 in the northwest quarter of section number 2, in township number 35 south, 3 east, as shown in said report.” This description is sufficient. By locating the land in Cowley county the omission of the range becomes unimportant. Besides, the bond specifically refers to the report of the commissioners, which also contains an accurate description of the land. When the whole instrument is taken together, the location of the appellant’s premises is made definite and certain, as well as the land taken for the right-of-way.
There are objections to the evidence given by certain farmers in regard to the value of the land taken and of the farm before and after the appropriation, but these objections are the same that were made and answered in another case wherein the same railroad company was a party, and further discussion is not required. (K. C. & S. W. Rld. Co. v. Ehret, 41 Kas. 22; same case, 20 Pac. Rep. 538.)
Finding no error in the record, the judgment of the district court will be affirmed.
All the Justices concurring. | [
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Per Curiam:
This case will be affirmed, upon the authority of Comm’rs of Franklin Co. v. Lathrop, 9 Kas. 453. | [
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The opinion of the court was delivered by
Horton, C. J.:
On May 24, 1886, A. Shuster filed his complaint against O. P. Overturf, before a justice of the peace of Newton, in Harvey county, alleging that he was entitled to the immediate possession of the livery barn situated on lot 16 and part of lot 18, in block 33, in the city of Newton, and the stable of the said lot and part of lot used in connection with the barn. He prayed for restitution and costs. The trial was had on the 28th day of May, 1886, before the justice, and judgment for restitution and costs was rendered in favor of the plaintiff and against the defendant for the property described. Subsequently, the defendant attempted to appeal. On the 8th day of June, 1886, there was filed in the district court of Harvey county the transcript of the case. The transcript was duly certified by the justice of the peace, and stated that it was a full and true copy from his docket of the proceedings in the action, had by and before him at his office. The transcript of the justice of the peace did not show that any appeal had been taken, or that any bond had been approved or filed. Among the papers on file with the district clerk there was an appeal bond, of which the following is a copy:
“The State of Kansas, Harvey1 County, ss. — Before Samuel Lupfer, Esq., a Justice of the Peace in and for said County and State. — A. Shuster, Plaintiff, v. O. P. Overture, Defendant. — Appeal Bond. — Whereas in this case judgment was rendered in favor of above-named plaintiff and against above-named defendant, for the immediate possession of the livery barn situated on lots Nos. 16 and 18, in block No. 33, in the city of Newton, said county, and said judgment was rendered on May 31, 1886, and defendant intends to appeal from said judgment:
“Now we, the undersigned residents of said county, bind ourselves in the sum of $214.30 to the plaintiff aforesaid, that said defendant will not commit or suffer waste to be committed on the premises in controversy; and if upon the further trial of this cause judgment be rendered against him, he will pay double the value of the use and occupation of the property from date of this undertaking until the delivery of the said property pursuant to the judgment, and all costs and damages that may be awarded against him. O. P. Overture.
Joseph Gerson.
“Approved by me, this 1st day of June, 1886.
Samuel Lupeer, J. P.”
[Indorsed:] “1988. Appeal bond. Filed June 8, ’86.
J. W. Puett, C'Z/c.”
The plaintiff filed his motion in the district court to dismiss the appeal from the justice’s court, for the following reasons:
“1. No undertaking has been filed or given for an appeal as required by law.
“ 2. The undertaking pretended to have been filed and given is not sufficient in form and amount.
“3. The amount mentioned in the pretended undertaking given herein for an appeal, is wholly insufficient to secure this plaintiff for double the value of the use and occupation of the premises, and for the waste to the premises.”
When the motion was called for hearing, the defendant made application to the court for leave to file an additional undertaking. The court overruled the motion to dismiss, and permitted a new bond to be filed. The new bond also recited that the judgment from which the appeal was taken was rendered against the defendant on May 31,1886. The plaintiff excepted to the rulings of the district court, and brings the case here.
In addition, the failure of the transcript of the justice to show that any appeal bond was approved or filed, both the original bond and the new bond did not recite the judgment referred to in the transcript. By the transcript it appeared that the judgment in favor of the plaintiff and against the defendant was rendered on the 28th day of May, 1886; whereas both bonds recited a judgment from which the appeal was taken as having been rendered on May 31, 1886.
. It is claimed on the part of the defendant that as a matter of fact the judgment was not rendered until May 31, 1886 as stated in the bonds; that the appeal bond of the defendant was properly deposited with the justice of the peace and approved by him on the 1st day of June, 1886, within ten days from the rendition of the judgment; therefore it is urged as the appeal bond was transmitted by the justice with his transcript to the clerk of the district court, the district court properly considered the bond as having been presented and approved in time.
We must assume that the entries on the docket of the justice were correctly made. The transcript is certified as of the 8th of June, 1886. Section 188 of the justices act requires every justice of the peace to keep a book denominated “a docket,” in which must be entered by him if an appeal be taken, the undertaking and the time of entering into the same, and by which party taken. The certified transcript which the justice transmits to the clerk of the district court with the papers in the cause should affirmatively show that the appeal has. been taken within ten days from the rendition of the judgment. (Struber v. Rohlfs, 36 Kas. 202.) The transcript of the justice should control rather than any affidavits or papers not mentioned or referred to in the transcript.
Again, there was a variance in the time of the rendition of the judgment as shown by the transcript, and that as it was recited in the bonds, hence the bond was not an appeal from the judgment rendered on the 28th day of May, 1886. The new or additional appeal bond did not remedy this defect, as that bond also recited a judgment rendered on May 31,1886. The appeal bond should describe the date of the judgment appealed from. (Dinkle v. Wehle, 13 Abb. N. C. 478; Lemon v. Stephenson, 40 Ill. 45; Deitrich v. Rumsey, 40 id. 50.)
If the transcript was incorrect as to the date of the rendition of the judgment, or if it improperly omitted the presentation or approval of the appeal bond, the defendant had an ample remedy. When the motion to dismiss was made, he might have suggested a diminution of the record. The justice could then have been compelled to correct his transcript according to the facts of the case. This was not done.
As the transcript was never corrected or amended to show the facts alleged by the defendant, we think the district court committed error in refusing to dismiss the appeal. The judgment of the court below must be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The parties to this proceeding own adjoining lots on which buildings have been erected that are united by a party wall. By agreement of the parties, a common stairway was to be erected between the buildings, which was to serve as an entrance from the street to the second stories of both buildings. A dispute arose between them as to the rights and liabilities of each in respect to the stairway and landing, and the bank brought an action to settle this dispute, and to enjoin Hill from obstructing the bank in the reasonable use of the stairway and landing which have been erected. - The-action was tried by the court at the January term, 1887, when a decree was rendered in favor of the bank; and Hill, as plaintiff in error, asks for a review and reversal.
It is now insisted by the defendant in error that nothing is presented by the record for our determination. Attached to the petition in error is a case-made, which it is argued should not be considered, because it was not settled and signed at the time fixed by the court. When the decree was given; time was asked in which to make a case for the supreme court, and the court granted the application and fixed the time when the case should be made and served, also the time within which amendments should be suggested; and further ordered that the case should be settled and signed on the first day of the succeeding term of court. The case was made and served and the amendments suggested within the prescribed times, but was not presented for settling and signing on the day set for that purpose. When it was presented, counsel for defendant in error objected to the jurisdiction of the court, claiming that Hill, having procured an order fixing the time of settlement, is bound by the terms of the order. The court, for reasons which it deemed sufficient, extended the time for settling and signing the case, but required that five days’ notice should be given to the opposing party. This was done, and in pursuance of that notice the case was settled and signed, both parties being present, although counsel for defendant in error still insisted that the plaintiff in error had forfeited his right to have the case settled and signed.
It was certainly within the power of the court to settle and sign the case, although the time first fixed by its order had expired. When the case is not made and served within the prescribed time, and no extension of time has been granted, the court is without power to act, (Life Insurance Co. v. Koons, 26 Kas. 215;) but this ruling is based on the ground that the statute limits the time within which a case must be made and served. No such limitation exists with respect to settling and signing a case, and hence the court may postpone such action and cause it to be done upon reasonable notice at a later time. (Hammerslough v. Hackett, 30 Kas. 57.) A very different question would arise if the court had declined to settle and sign the ease. An order of the court fixing the time for such action, or providing that it should be done upon certain notice to be given by either party, should not be disregarded. If the party making the case ignores the order, he does so at the peril of the refusal of the court to settle and •sign at a later date. If he disregards the order, or without sufficient excuse fails to present his case at the proper time, and the court should decline to grant him another opportunity, he would hardly be in a position to compel the court to settle and sign the ease at a later time. Of the power of the court, however, to grant another opportunity, there can be no question; and having done so in this instance, and settled and signed the case upon proper and sufficient notice, this objection of the plaintiff in error must be overruled.
Upon the record presented it is alleged that the judgment and decree of the court is not sustained by the evidence. This question is not before us, for the reason that it is not shown that all the evidence offered on the trial is included in the record. Such a statement is found in the certificate of the case-made, but it has been repeatedly held that this is not sufficient.
“Where a case is made and settled for the supreme court, and the party making it desires that it should be shown that the case contains all the evidence that was introduced on the trial, a statement to that effect should be inserted in the case itself, and not in the certificate of the judge who settles the case.” (Eddy v. Weaver, 37 Kas. 540; Rld. Co. v. Grimes, 38 id. 241; Bartlett v. Feeney, 11 id. 594; Brown v. Johnson, 14 id. 377; Insurance Co. v. Hogue, 41 id. 524; same case, 21 Pac. Rep. 641.)
For a like reason we are precluded from examining the question as to whether the pleadings support the judgment, although there is little if any contention that they do not. The record shows that the plaintiff in error concedes that when the case was settled and signed it did not include all the plaintiff’s petition. A very important part of the same, namely, a copy of the deed upon which the bank largely rested its claim, was lacking. More than six months after the case had been settled and signed by the judge and attested and filed by the clerk, the case-made was opened, and what purports to be a copy of the deed has been inserted and attached to the petition of the plaintiff. Counsel for the plaintiff in error say that at the time the case was prepared the exhibit in some manner became detached from the petition and could not be found by the clerk, and was therefore not copied ; but having since found the exhibit, it has been copied and attached to the record. There was no authority for nor propriety in that action. While it seems to have been thought that no wrong could be committed in adding the exhibit to the case-made, yet when it was settled, signed, and attested, it was as sacred, and should have been as carefully protected from alteration or mutilation, as any record in the office of the district clerk. After that time the judge of the district court even is powerless to amend or change the case-made, and much less has any other officer of the court, or a party to the action, or anyone else, the right or authority to alter or add to such record. It has been decided that “neither the judge of the district court, nor the supreme court, can amend or add to a case-made for the supreme court after it has been settled, signed, and attested.” (Graham v. Shaw, 38 Kas. 734.) It is admitted that the case-made has been materially changed since it was attested and filed, and, not being the case which was settled and signed by the judge, it is not entitled to consideration.
The judgment will be affirmed.
All the Justices concurring. | [
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Opinion by Clogston, C.:
On the 25th day of November, 1887, plaintiffs commenced five separate actions, original in this court, to oust from office Clarence Yan Patten, county clerk; F. W. Dunn, register of deeds; J. E. T. Kephart, probate judge; J. M. Knapp, county surveyor; and N. A. Johnson, county commissioner, of Garfield county, Kansas, and for damages; and afterward a stipulation was entered into between the parties by which the evidence taken in the ease of The State, ex rel., v. Fulton, ante, pp. 164, et seq., to compel Fulton to remove his office to the town of Eminence, and to determine the permanent location of the county seat in Garfield county, should be used and taken as the evidence in this case. As the decision in that action determined the validity of the election for county officers in Center township, and the opinion in that case states the facts, they will be omitted here. The contention is as to who was elected at that election to the several county offices named above. The returns as canvassed and declared show that Clarence Yan Patten re ceived 385 votes, and J. V. Killion 363 votes, for county clerk. The number received by Van Patten from Center township was 229; by Killion, 69; showing a majority for Van Patten of 22. Frank W. Dunn received 411 and D. E. Gregory 404 votes, for register of deeds; majority for Dunn, 7. Of the votes received by Dunn, 235 were from Center township; and for Gregory, 76 from Center township. J. E. T. Kephart received 424 votes, and George W. Hovey 389 votes, for probate judge. Of this number, Kephart received 238 from Center township, and Hovey 77 votes. J. M. Knapp received 426, and P. H. Guy 390 votes, for county surveyor. Of these votes Knapp received 238 from Center township, and Guy 75 votes. N. A. Johnson received 273 votes, and Daniel Goddard 190 votes, for county commissioner of the second district. Of this vote Johnson received 243 votes from Center township, and David Goddard 100. Prom this it will be seen that if the vote cast at Center township is not counted, each of the plaintiffs received a majority of the votes cast in the county, and that they were entitled to the several offices. As before stated, this action is to be determined from the testimony taken in the county-seat case. Upon the same state of facts the vote of Center township was rejected and not counted, and for the reasons there given the same action will be had in this case. This leaves for each of the plaintiffs a majority, and entitles them to the several offices.
The evidence shows that Van Patten received $1,970.85 as salary of county clerk during the time for which he held the office, and for which the plaintiff J. V. Killion was entitled to hold the office; that Frank W. Dunn received as register of deeds fees amounting to $585.80 while he so held the office, and for which time D. E. Gregory was entitled to hold the office and receive the fees; that J. E. T. Kephart received as salary as probate judge $320.10 for the term of office held by him, during which time plaintiff George W. Hovey was entitled to hold .the office and receive the fees and salary; that N. A. Johnson received $100 as county commissioner for the term of office for which plaintiff David Goddard was entitled to hold the office and receive the salary. It is therefore recommended that the judgment of the court be in favor of the plaintiffs, J. V. Killion, D. F. Gregory, David Goddard, Geo. W. Hovey, and Prior H. Guy, and against the defendants, Clarence Van Patten, Frank W. Dunn, N. A. Johnson, J. E. T. Kephart, and J. M. Knapp, for the possession of the offices; and also against Clarence Van Patten for $1,970.85, Frank W. Dunn for $585.80, J. E. T. Kephart for $320.10, N. A. Johnson for $100; and against all the defendants for costs.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an appeal by Procule Martineau from an award of damages for injuring his property in the city of Topeka by lowering the established street grade in front of the same. The trial resulted in a verdict and judgment against the city for $800, and it brings the case here, complaining of rulings on the admission of evidence and in charging the jury. It is claimed that witnesses were permitted to give an estimate of the damage suffered, and to do that which the jury alone can do; but the record does not sustain the claim. One witness who was competent to testify had given the value of the property before the change of grade at $10,000, and was allowed to state that it was $2,000 less after the grade was lowered. Another witness who had given the value immediately before the change stated that it was worth one-third less after the change had been made. No prejudice could result from this testimony. It is conceded that the correct method of proving the damages is to show by the opinions of competent witnesses the value of the property before the injury and afterward, and the difference would be the amount .of damages which should be awarded. There is but little practical difference between this plan and the one adopted — no difference between $8,000 and an amount $2,000 less than $10,000. Having given the value before the change, it is not error for the witness to testify that the property was worth a certain sum less than that value or a fraction of such value. Nor is there any force in the objection that the court permitted evidence to go to the jury of the cost of lowering the building to the established grade. It may be conceded that it is not the proper measure of damages in the action, but this cost is an element which the jury may properly consider to ascertain the damage or difference in the value of the property before and after the injury.
The last objection is, that after the court had permitted the jury to view the premises it gave this instruction:
“The court has sent you under charge of a bailiff to examine the premises in question. You may, in considering your verdict, take into consideration the result of your observation in connection with the evidence produced before you.”
It is assumed that the instruction given warrants the jurors in basing, their verdict on the knowledge gained at the view, in disregard of the testimony given in court, if they so desire. This assumption is unwarranted by the language employed. The court does not even say that the information so acquired is evidence, much less that the verdict may rest alone on such knowledge. It advises them to use the^result of their observation in connection with the evidence. In a prior instruction the jury were told that their verdict should be founded on the evidence and on the law, which, taken in connection with the instruction objected to, was no more than to say that in arriving at a verdict they were to judge the evidence in the light and with the aid of what they saw at the view. We think the instruction was not erroneous. In reaching ° the conclusion it is not necessary that we should indorse the theory adopted by some of the courts, that the jury are not bound by the testimony of the witnesses, but may rest their verdict solely on what is learned at the view. (Remy v. Municipality, 12 La. Ann. 500; Toledo &c. Rld. Co. v. Dunlap, 47 Mich. 456; Chamberlin v. Brown, 2 Dougl. 120.) Neither are we disposed to go to the extreme length contended for in this case, and which finds support in some of the decided cases, that it is error to instruct the jury to take into consideration in any degree the knowledge acquired at the view, as it is not evidence at all upon which a verdict is to be founded. (Close v. Samm, 27 Iowa, 503; Wright v. Carpenter, 49 Cal. 607; Heady v. Turnpike Co., 52 Ind. 117.) The jurors are the judges of the facts, and to enable them to correctly determine the facts the legislature has provided that in certain cases they shall be conducted in a body and be shown by some one appointed for that purpose the property which is the subject of litigation, or the place in which any material fact occurred. (Civil Code, § 277.) The evident theory and intention of the legislature were that cases would arise in which it would be necessary and proper that the evidence offered in court should be supplemented by the knowledge gained by the jury from a view. It would be impracticable and foolish to require a court, after having sent a jury to view the property or place, to direct them not to consider what they had there observed and what was obvious to all who might look. In considering this question the supreme court of Wisconsin said:
“We understand that the object of a view is to acquaint the jury with the physical situation, condition, and surroundings of the thing viewed. What they see they know absolutely. If a witness testify to anything which they know by the evidence of their senses on the view is false, they are not bound to believe, indeed cannot believe the witness, and they may disregard his testimony, although no other witness has testified on the stand to the fact as the jury knew it to be. For example, if á witness testify that a certain farm is hilly and rugged, when the view has'disclosed to the jury and to every juror alike that it is level and smooth, or if a witness testify that a given building was burned before the view, and the view discloses that it had not been burned, no contrary testimony of witnesses on the stand is required to authorize the jury to find the fact as it is, in disregard of testimony given in court.” (Washburn v. Milwaukee &c. Rld. Co., 59 Wis. 364, 368.)
In the excellent work of Judge Thompson on the subject of Trials, he thoroughly examines this question and the decisions relating to the same, and reaches the conclusion that the information obtained at the view is evidence to be considered in connection with that offered in court:
“But the evidence which the jurors may acquire from mak ing the view is not to be elevated to the character of exclusive or predominating evidence. They are not to disregard other evidence in regard to the character and value of the property; and an instruction which conveys to them the impression that they may do so, is erroneous.” (Thompson on Trials, § 895.)
To meetthe objection that the knowledge acquired in making the view cannot be incorporated in a bill of exceptions so as to be conveyed to the minds of the appellate judges, it is held to be necessary that the verdict should be supported by other evidence, and unless it is supported by substantial testimony given by sworn witnesses, the reviewing court should set aside the verdict. This theory is more reasonable than the one that what jurors see and know while making the view is to be shut out of their minds as evidence, and is not without support. (Thompson on Trials, §§ 893, et seq.; Neilson v. Rld. Co., 58 Wis. 517; Washburn v. Rld. Co., 59 id. 364; Parks v. City of Boston, 15 Pick. 209; Rld. Co. v. Dunlap, 47 Mich. 456. See also K. C. & S. W. Rld. Co. v. Baird, 41 Kas. 69; same case, 21 Pac. Rep. 227.) The instruction given in the present case, however, is not objectionable under either theory. The other evidence given by the witnesses in court amply sustains the verdict, and it is manifest that the court did not intend to charge that the jury might ignore such evidence; nor does the language employed by the court go beyond the theory first mentioned, that the view which the jury make is only to enable them to understand and apply the evidence which they have heard.
We find no error in the record, and therefore the j udgment will be affirmed.
All the Justices concurring. | [
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Opinion by
Holt, C.:
The defendants in error, as plaintiffs, filed their petition in the Harper district court, in which they set forth that they were partners, negotiating sales of real estate and stock ranches in Kansas, and of stock ranches in the Indian Territory; that in August, 1883, they entered into a contract with the defendants as Hammers, Forbes & Co., for the sale of their ranch in the Indian Territory, or an undivided one-half thereof; that by its terms they were either to sell, or to find a purchaser; that for their services in selling, or procuring a purchaser, Hammers, Forbes & Co. agreed to pay them 5 per cent, of the entire sum for which said ranch or the undivided one-half should be sold; that they procured J. McElwain and V. L. Lewis as purchasers; and they ask judgment for $2,025, being 5 per cent, of the amount for which the undivided one-half of the ranch was sold. The defendants answer by a general denial, which is sworn to by one of the defendants; and also that plaintiffs had released the said defendants from all liability of the claim set forth in plaintiffs’ petition. The action was tried by the court without a jury, and the plaintiffs introduced testimony tending to show that they had entered into such a contract with the defendants as set forth in their petition, and had secured a sale of an undivided one-half of their ranch by introducing and showing it to McElwain & Lewis, and that they had paid therefor the sum of $40,500. The defendants introduced testimony tending to show that the contract was not made by the firm, but by one member thereof who did not have authority to bind the firm, and that the plaintiffs had released the defendants from- any liability for services performed. There were no allegations nor any attempt to show the value of the services rendered by plaintiffs. The defendants stated that they sold the ranch for $37,000 instead of $40,500; the difference between the two amounts presumably was on account of the number and value of certain cattle included in the trade as a part of the ranch. The court rendered judgment for $798.17.
We have searched the record to find, either in the pleadings or the evidence, any allegation or testimony upon which we could sustain the judgment, but have been unable to find anything to support it. From both the pleadings and the evidence in the case as presented to us, there should have been a judgment for defendants for costs, or in favor of plaintiffs for 5 per cent, of $37,000 or $40,500. There was no testimony to sustain the judgment rendered, and no attempt to establish the value of the services performed as a basis for a judgment. The plaintiffs relied entirely upon what they claimed to be the contract, and their services under it; and the defendants, that the contract of plaintiffs with Forbes, was entirely unauthorized by the firm; and further, that plaintiffs had relieved them of all liability for anything they may have done in procuring the sale of the ranch.
Under the issues in this cáse and the testimony introduced, there is no foundation for the judgment rendered. We recommend that it be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The one question to be determined is, is the plaintiff barred by the statute limiting the time in which to bring his action ? The statute under which this bar is claimed is as follows:
“No suit to set aside the special assessments, or to enjoin the making of the same, shall be brought, nor any defense to the validity thereof be allowed, after the expiration of thirty days from the time the amount due on each lot or piece of ground liable for such assessment is ascertained.” (Laws of 1887, oh. 101, §1.)
It is shown that the cost of the improvement was ascertained and assessed against the abutting property upon the street on the 27th day of August, 1887, and this action was brought in January, 1889. The defense to this claim is, that the city council had no power or jurisdiction to make the improvement and to assess the same upon abutting property — first, because the petition presented requesting such grading was insufficient to give the city jurisdiction; second, that the city never legally ascertained the cost of the improvement and legally assessed the same upon the abutting property. The statute under which this petition was presented is as follows:
“That in case a petition of a majority of the resident property-owners of a majority of the tront feet on any street, or part thereof, shall petition the mayor and council to grade any street, and to grade and pave the intersections thereof at the cost of the owners of the lands fronting upon the street described in the petition, and if such petition shall be ordered spread upon the journal of the council by a majority of the council elect, the mayor and council shall thereafter have power to assess the cost of such improvement against the lots and parcels of land abutting on such street so improved abutting property.” (Laws of 1887, ch. 99, § 4.)
Was the petition sufficient? It is claimed that because the petition does not ask for grading and paving the intersections of the street, that therefore the city had no authority to act. Or, in other words, the petition, to be valid, must contain a request for the entire improvement named. This calls for a construction of §4. What the legislature meant the petition to contain, is difficult to ascertain. The object was to permit property-owners to improve streets without expense to the city, and the kind of improvement authorized was to grade a street or part of a street, and to grade and pave the intersections. To say that if it was necessary to grade and open a street, to accomplish this there must be coupled therewith the paving of the intersections, would be an anomaly in the history of city improvements. To have a street graded and the intersections paved, without paving the remainder of the street, would be inconsistent, and such a construction as would require it ought not to be given if it can be fairly avoided. The grading of a street would include the grading of the intersections.
The petition being valid, and duly spread upon the journal of the city, gave jurisdiction to make the improvement, to ascertain the cost, and to assess the same to the abutting property. The means and manner of doing the work, the ascertainment of the cost, the apportionment between abutting property-owners, even if irregularly made and done, do not affect the jurisdiction of the city. Where jurisdiction is once obtained, irregularities can only be corrected in the manner and within the time prescribed by statute; and the time having been fixed by statute within which to bring an action to correct such irregularities, it must govern.
Plaintiff however insists that the statute limiting the time to thirty days within which to bring the action is unconstitutional, for the reason that the time is too short. This, if true, might be a good reason to change the law. The fixing of a time when a cause of action will be barred, or in which actions may be brought, is in the discretion of the legislature, and will rarely be disturbed by courts. (Price v. Hopkin, 13 Mich. 318; Jackson v. Lamphire, 3 Pet. 280; Swickard v. Bailey, 3 Kas. 512; Plum v. Fond du Lac, 51 Wis. 393; Smith v. Cleveland, 17 Wis. 583; Wright v. Tacoma, 19 Pac. Rep. 42; Cooley, Const. Lim., p. 366, and note.) We think thirty days’ limitation not such a restriction upon the rights of litigants as calls for interference on the part of courts.
It is therefore recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
This is an action of ejectment, commenced by plaintiff in error against defendant in error, John C. Tarr, the plaintiff claiming title to the south 60 feet of lots 14, 15, and 16, in block 1, Day’s subdivision to the city of Leavenworth, under a tax deed for city taxes. The defendant answered by a general denial. On the trial, at the April term, 1886, of the Leavenworth district court, the plaintiff’s tax deed was held to be void; and thereupon the plaintiff asked the court to find that the taxes paid by him were a lien upon this- tract. After the application of plaintiff was made, M. E. Tarr, the wife of John C. Tarr, on her own motion was made a party defendant over plaintiff’s objection, for the purpose of resisting the application of plaintiff for the allowance of a tax lien. The court, trying the case without a jury, made the following findings of fact and conclusions of law:
“1. On the 6th day of March, 1872, the city of Leavenworth, then and ever since and at all times therein, was a city of the first class, in Leavenworth county, slate of Kansas, and by its clerk conveyed to the plaintiff by tax deed the property in controversy, to wit: The south 60 feet of lots 14, 15, and 16, in block 1, in Day’s subdivision of said city. Said tax deed was for all delinquent taxes for 1871 and 1872, and which, with interest and costs, now amount to $403.84, estimated under the provisions of § 142, ch. 107, p. 967, Dassler’s Comp. Laws of 1879; said tax deed contains no recital that the land was subject to taxation for those years, and no recital that the lots were advertised for sale by public notice, etc., further than the recital that the sale was in conformity with the charter and ordinances of said city, which deed the plaintiff admitted on the trial was null and void under the previous rulings of this court; in all other respects the deed, and all the acts of all the officers and parties anterior to the delivery of the deed, were in conformity with the charter and the ordinances of said city providing for the sale and conveyance of lands for the non-payment of taxes, and said lands were taxable for said years. Said deed was duly acknowledged, and was duly recorded in the office of the register of deeds of said county, on the 20th day of May, 1882.
“2. The defendant John C. Tarr is the husband of the defendant M. E. Tarr; and ever since 1861 they have been residing with their family on the property in controversy, and occupying the same as their homestead; and during all of that time the defendant M. E. Tarr has held in her own name the patent title to said property.”
“The defendant, M. E. Tarr, is the owner of said property, the lots in controversy, and is entitled to the enjoyment and possession of the same, free and clear from all taxes and tax liens of the plaintiff. And as conclusions of law, the court finds for the defendants J. C. Tarr and M. E. Tarr, and that they are entitled to recover their costs herein from the plaintiff, and finds for said defendants.”
The complaint of plaintiff is, that the court refused to find the taxes paid by him were a lien upon the tract described in his tax deed. The court evidently held that the right he might have once had was barred by the statute of limitations. The plaintiff’s deed was filed for record May 20, 1882. This action was commenced against John C. Tarr May 20, 1884, but the other defendant, Mrs. M. E. Tarr, who was the owner of the property, was not made defendant until June 23, 1886. She had been occupying the premises ever since the taxes were levied. Ordinarily, where the owner occupies the premises, all right under a tax deed, either of recovery of the land or for a tax lien, is barred in two years. The plaintiff does not controvert this, but claims that the tax deed was absolutely void, and therefore the recording of it would not set the statute of limitations running. Neither the tax deed nor the ordinance of the city of Leavenworth has been brought here, but it is stipulated in the ease that said ordinance contained no form for a city tax deed, nor any statement what the deed should contain. In the absence of both the deed and the ordinance, it will be presumed the court held correctly, and that the deed was sufficient on its face to set the statute of limitations running against it from the date of its filing for record.
The plaintiff contends that the ordinary rule concerning the owner of land should not apply in this case, because it was occupied jointly as a homestead by the defendant John C. Tarr and M. E. Tarr. It is true that the husband had some interest in the homestead — a .contingent, inchoate and uncertain one, differing from that of any. other person —but the estate is vested in the wife, and at her death would descend to her heirs, or if alienated before death the consideration would belong to her. Under our law, where the husband and wife are allowed to have separate property and to carry on separate business, he has not such an interest in his wife’s property that an action brought against him would prevent her from asserting any rights or defenses she might have against a party bringing such action. M. E. Tarr, the wife, was the owner of the land; all the taxes levied thereon were levied against her, and the husband would not certainly be individually responsible for taxes levied upon his wife’s property.
Plaintiff further claims because Mrs. Tarr was made a defendant upon her own application during the trial, she is bound in an action the same as though she had been made defendant at the commencement of the suit. His claim is without foundation. She was bound to all the proceedings from and after the day she became a party to the action, not until then. This matter was settled in this state in Toby v. Allen, 3 Kas. 399.
Chief Justice Crozier, speaking for the court, says:
“Being a party, the law also gave Toby a right to set up his claim as against Allen, the administrator, and the mortgaged premises; and in regard to his claim, he stood in precisely the same position with reference to the statute of limitations that he would have occupied had he commenced the suit himself at the time he first took affirmative action upon his demand. Making him a party did not affect his claim in the least, with reference to the statute. That gave him the privilege of setting it up in that proceeding, and nothing more. Had the plaintiff omitted to make him a party, the court, at any time before final judgment upon his own application, would have made him a party; in which event it would not have been pretended that the statute would have ceased to run as to his claim until such application was made. Why in the nature of things, then, should the making of him a party originally, suspend the running of the statute ? Whether that law shall operate to bar his claim is made to depend entirely upon his own action, subject to the conduct of the debtor as to absence, concealment, payment, etc. Its operation in no event is made to depend upon the action of third persons. No matter who shall commence a suit or who shall forbear, the operation of the statute depends wholly, subject to the exceptions above referred to, upon the action of the owner of the claim sought to be enforced.”
In that case the plaintiff made Toby the defendant — in this case Mrs. M. E. Tarr was made defendant upon her own motion. The difference, however, would not change the rule as therein enunciated. (Lanoue v. McKinnon, 19 Kas. 408.)
We believe the judgment of the court was right, and recommend its affirmance.
By the Court: It is-so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
The plaintiff claims that there was error in the introduction of testimony, and in giving and refusing instructions. The railway divides the farm through which it runs, so that a part of the pasture land is separated from the water in another part thereof. There is nothing upon the profile or notes filed with the county clerk to show that there would be a passage under the track, nor was there any contract entered into between the parties concerning one. Upon the trial, testimony was offered of Mr. Bardeen, of the engineer corps of defendant, concerning a passage-way to be left under the róad-bed in a ravine which the railroad would cross. He testified that the engineer’s profile showed that there would be an under-crossing near the east boundary of the land, sufficient in every way for the passage of cattle. He stated that the road-bed was not completed at the time of the trial, but directions had been given after they had commenced work on the road-bed not to fill up this ravine by an embankment] that there had been but very little dirt placed in the ravine when the change had been made. This testimony was objected to by plaintiff, and its admission is one of the errors claimed by plaintiff. The court instructed the jury in this connection as follows:
“In assessing the damages to plaintiff’s land, outside of the strip taken for a right-of-way, you may and should consider the way in which the railroad cuts or divides the plaintiff’s land, the shape in which the land is left, the depth of excavations or height of embankments, and how they may affect the drainage, the obstruction or interruption of access to and the division of the lands into different parts, so that persons or stock cannot pass from one to the other, or can only pass with greater or less difficulty and danger.
“In connection, however, with this question as to any alleged inconvenience as regards stock passing across the right-of-way to or from the different parts of the farm: If you should believe from the evidence that a passage-way exists or can be maintained under said right-of-way, by which the stock can pass from one portion of the farm to the other, you will take that into consideration with all the other evidence, facts and circumstances in the case, as regards the lessening or diminishing thereby the inconvenience claimed to exist by reason of stock having to cross the right-of-way.”
Plaintiff asked the following instruction, which was refused:
“The roadway for cattle and wagons testified to may be filled up at any time by the defendant, said defendant not being under any obligations to keep up and maintain the same.”
We cannot say that there was material error in the introduction of this testimony, although we think it would have been of very little value under proper instructions. The presumption was that the road would be built in accordance with the profile in the county clerk’s office, and under the report made by the commissioners. To be sure, the road-bed might have been changed, and if it had been changed before the case was tried, such change would have been proper to be introduced in evidence; and probably the statement of the engineer, and his profile showing a proposed change in the road-bed, might have been competent testimony tending to show the intention of the railroad company to build its road in the manner therein indicated. But if it had built its road in such manner there was nothing in the statement and profile of the engineer to compel it to maintain it for any length of time. In the absence of any report and profile filed with the proper officer, showing this under-crossing, the company would not have been under obligations to maintain it, but could have filled up the ravine at its pleasure.
We think the instruction asked for by the plaintiff should have been given, and, for the refusal to give it, shall recommend that the case be reversed. The case goes back for a new trial, and it is probable that the road-bed is now constructed across this ravine. If the railroad company has made an under-crossing and intends to maintain it, that fact should appear either by amendment of the profile and report in the office of the county clerk, or by a recital in the judgment that the case was tried and damages awarded upon the theory that the crossing was to be maintained by the company. (St. Paul Rld. Co. v. Murphy, 19 Minn. 500; Mills, Em. Dom. 213.) We recommend that the judgment be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The purpose of this proceeding is to obtain a determination of what place is the county seat of Kearny county. The county was organized on March 27,1888. At the same time the following officers were appointed by the governor, viz.: W. J. Price, H. A. W. Corfield and S. R. Hibbard, county commissioners; James H. Waterman, county clerk; and R. F. Thorne, sheriff; and the town of Lakin was designated as the temporary county seat. On July 21,1888, the first election was held, for the purpose of choosing a permanent county seat and a full set of county officers. At the time of this election there were six election precincts in the county, viz.: Kearny, Kendall, Hibbard, Hartland, Lakin, and South Side. On July 27, 1888, the county clerk and county commissioners of the county convened for the purpose of canvassing the returns of the election, which had been received from the several precincts, when a restraining order, issued by the judge of the district court in an action brought in the name of the state, was served upon them, restraining the canvass of the returns from Kearny and Kendall precincts until the hearing of an application for a temporary injunction, which hearing was to take place on August 7, 1888. Upon service of this writ the canvassing board adjourned until August 17, 1888. The following day the chairman of the county commissioners, upon the request of the other two members, reconvened and resolved “ That upon the. advice of our attorneys it is our duty to canvass all returns not restrained ; that we now proceed to do so.” The canvass of the returns from the townships of Lakin, Hartland, Hibbard, and South Side was then made, and it was ascertained that Lakin had received 358 votes, Hartland 140 votes, Omaha 120 votes, and Deerfield 1 vote. The returns from Kearny and Kendall precincts were not canvassed, and they caused an entry to be made upon the journal that these returns “were not canvassed, by reason of a restraining order granted by the Hon. A. J. Abbott, judge of the 27th judicial district.” Following the abstract of votes which is set out upon their journal, the canvassing board certify that, according to the partial canvass as made, Lakin received a majority of the votes for permanent location of the county seat, but did not declare that any place was chosen as the permanent county seat. On August 24, 1888, the application for a temporary injunction in the action in which the restraining order was issued was heard before the district judge, and the injunction was refused, the court finding that there was no just cause or ground for the allowance of a temporary restraining order against the canvass of the votes of Kearny and Kendall townships, and the restraining order was dissolved. The canvassing board as then constituted did not reconvene upon the dissolution of the restraining order, to complete the canvass, and never took any further action on the returns from Kearny and Kendall precincts. On the same day that the restraining order was set aside, an action was brought by the county attorney in the name of the state against R. F. Thorne, the sheriff of Kearny county, to perpetually restrain and enjoin him and his successors in office from calling a new election for the permanent location of the county seat of Kearny county. A temporary order of injunction was allowed by the probate judge of Kearny county, which was to take effect after service on the defendant, and after the plaintiff had given a bond to the defendant in the sum of f200, to be approved by the clerk of the district court. No injunction bond was ever executed, and the action was finally dismissed on April 17, 1889. In August, 1888, the district judge, at chambers, allowed two peremptory writs of mandamus on the application of private parties, commanding the county commissioners to canvass the votes of Kearny and Kendall precincts for county officers and for county seat, which were vacated by the district judge sitting at Garden City on November 5, 1888, but no record of this action was filed in Kearny county until April, 1889, when a nunc pro tunc order was entered. The county officers chosen at the first election hold until the next general election, and at the general election in November, 1888, a complete change of county officers was made by the defeat of the Lakin candidates and the election of the opposing ticket. The new board of county commissioners then elected, consisting of W. B. Logan, J. J. Clark and H. Grace, and D. H. Brown as county clerk, J. E. Duckworth as sheriff, and J. A. Wilson as county attorney; qualified at once and entered upon the duties of their respective offices. Among the first acts of the county commissioners and county clerk was to convene as a canvassing board, and complete the canvass of the vote had on July 21, 1888, for permanent county seat. This canvass was made on the 11th and 12th days of January, 1889, and the returns from Kearny and Kendall precincts, which had not been canvassed at the July meeting of the former board because of a restraining order, and which the former board had failed and neglected to reconvene and canvass, were canvassed. The result of the election as ascertained by the complete canvass was, that no town had received a majority of the votes cast, and that therefore no place had been chosen as permanent county seat of Kearny county. The vote is as follows: Lakin, 425; Hart-land, 218; Omaha, 233; Deerfield, 1. When this canvass was made, the board found that the returns from Kearny precinct were missing, and the duplicate returns retained in the township were sent for, and used in making the canvass. The returns filed in the county clerk’s office had been taken therefrom by the former clerk, James H. Waterman, and had thereafter been lost or stolen. After the declaration was made that no place had been chosen as permanent county seat, and on January 14, 1889, the sheriff issued a proclamation calling a sec ond election to determine the permanent county seat, to be held on February 19, 1889. In pursuance of this notice an election was held, and returns were made thereof from all the precincts in the county. The board, on February 22, 1889, met to canvass the returns, when, being served with a restraining order issued by the district judge in an action entitled “Frank P. Lindsay v. W. B. Logan el al.” they adjourned the canvass to await the further action of the district court. On February 27, 1889, after the temporary restraining order had expired, they reassembled as a canvassing board, and canvassed the returns of the election of February 19,1889, with the following result: Lakin received 144 votes, Hartland 371, Chantilly 96, Deerfield 65. The board thereupon certified that the city of Hartland had received a majority of 66 of all the votes cast, and declared it to be the permanent county seat of the county. Immediately following the declaration of this result, an injunction proceeding was instituted in the district court by an elector to contest the election of February 19, 1889, but after the commencement of the present proceeding that action was dismissed.
As will be seen from the foregoing recital, two elections are involved in this proceeding — that of July 21, 1888, and the one held on February 19,1889. The plaintiff claims that no place received a majority of all the votes cast at the first election, and that when this result was ascertained, it was the duty of the sheriff to call a second election, as was done, and that at that election Hartland received a majority of all the votes cast. In behalf of some of the defendants it is claimed that Lakin is the permanent county seat by virtue of the July election, and that there was no authority to call or hold the February election. There is little, if any, contention over the integrity of the July election, or that the result as ascertained and declared at the second canvass was not correct. But while the defendants do not attack that election, they insist that there was no authority for the second canvass, because that on the first canvass Lakin was declared to have received a majority of the votes canvassed, and that this result has never been contested or set aside by any competent tribunal, and that the result so ascertained, having been acquiesced in for several months, and until the new board was elected, cannot now be disturbed, and that the new board cannot of its own motion come together and make a second canvass. The duty of the first board to canvass the entire returns is clear, and that it did not finally do so is probably due to the partisan feeling of themselves and friends for the town of Lakin. The restraining order served on them when they first convened is a sufficient reason for delay until it was dissolved; but after that they should have reconvened and completed the canvass, which their own record shows was incomplete. According to-the entries on their journal, the canvass of all the precincts was not made, because of the restraining order, and not because the returns were not regular and true; nor does the journal show that a formal declaration of what place had been chosen county seat was made by them, although it is claimed that such an order was made which was never entered; but in the view we take, this is unimportant. The canvassing board cannot tie its hands or defeat the will of the people by a mere declaration upon an incomplete canvass and by an adjournment. It was their duty to canvass all the returns after the injunction was removed, and that duty continued and rested equally upon their successors as upon themselves until it was performed. The fact that a board canvasses a part of the returns, declares the result, and adjourns sine die, will not relieve it from the duty imposed by statute, nor cut off the right of interested parties to have the board reassemble and perform their full duty. That this duty may be compelled after the dissolution of the canvassing board, is well settled in Kansas.
It is true, as counsel for defendants contends, that language is used in the case of Light v. The State, ex rel., 14 Kas. 489, which supports to some extent the view urged by him. That case is firmly relied on as authority; but while the language-employed in the opinion may have been misleading to counsel, the facts in the two cases are unlike, and the decision itself is not out of harmony with the doctrine we have stated, and which has been declared in numerous other cases. A county-seat election was held in Howard county, with three candidates contesting, no one of whom received a majority of the votes cast. Only the two highest could be candidates at the second election, and at the canvass of the votes the board ignored a part of the returns and declared A and B to have received the highest number of votes, and to be the candidates to be voted for at the second election, while if a full canvass had been made it would have appeared that A and C were the two highest. The result of the canvass as made was accepted, and a second election was held between A and B, without any question as to the legality of the canvass, when A received the highest vote and was declared to be the permanent county seat. After the second election, an effort was made to obtain a recanvass of the first election. In giving judgment in that case, Mr. Justice Brewer expressed some doubt whether mandamus would lie to compel a correct canvass after the dissolution of the canvassing board, and whether, when the board has met at the legal time and place, made a canvass and adjourned, it can of its own will thereafter come together and make a second canvass. Without deciding the question suggested, he added:
“ But whatever may be the rule as to the power of the court by direct proceeding to compel a recanvass after the dissolution of the canvassing board, it seems to us that any proceedings to compel such recanvass as to the first election should be had before the second. In other words, parties cannot accept the canvass of the first election as correct, enter into the contests of the second upon the basis of such prior canvass, and then, when disappointed in the result of the second election, obtain a reeanvass of the first, or contest the result of the second on the ground of an incorrect canvass of the first.”
This holding was based in part upon the provisions of chapter 126 of the Laws of 1872, where it is provided “that in no ease shall the validity of any election be inquired into beyond the one last had and upon which the proceeding is based.” In the present case only one election had been held, and the canvass of that had never been accepted and made the basis of a second election ; and hence the argument and decision in that case do not apply here. In that case, lest a wrong inference might be drawn from the language used, Mr. Justice Valentine, in a concurring opinion, stated that there was no doubt of the power of any proper court to compel a board of canvassers to recanvass the election returns where the board has in the first instance neglected or refused to canvass the same or any part thereof. And this although a particular day is fixed by law for the canvass, and the board has met on that day and canvassed a portion of the returns and adjourned.
In Lewis v. Comm’rs of Marshall Co., 16 Kas. 102, the precise question involved here was presented, and the court determined that a canvass of part of the returns, a declaration of the result, and an adjournment sine die, is to be treated as a non-performance of the duty, and that the board may be compelled thereafter to reassemble and make the canvass as the law requires. Mr. Justice Brewer wrote the opinion in that case also, and after stating that the authorities were not uniform upon the question, remarked that —
“ It is the duty of the canvassers to canvass all the returns, and they as truly fail to discharge this duty by canvassing only a part, and refusing to canvass the others, as by refusing to canvass any. And it is settled by abundant authority, that where the board refuses to canvass any of the votes it may be compelled so to do by mandamus, and this though the board has adjourned sine die. Hagerty v. Arnold, 13 Kas. 367, is a case in point. The canvass is a ministerial act, and part performance is no more a discharge of the duty enjoined than no performance. And a candidate has as much right to insist upon a canvass of all the returns as he has of any part, and may be prejudiced as much by a partial as by a total failure.”
This doctrine has been repeatedly held and applied in other cases. (The State, ex rel., v. Comm’rs of Hodgeman Co., 23 Kas. 264; Brown v. Comm’rs of Rush Co., 38 id. 436; Patten v. Florence, 38 id. 501.) If the board may be compelled to reassemble and canvass the returns of the election, it would seem that it might voluntarily do so. Mandamus is employed to enforce the performance of a duty, and since it is a duty, it certainly may be performed by the officers without the command or compulsion of the court. It is held that mandamus will not lie to compel an officer to do an act which without its command it would not have been lawful for him to do; and hence the county commissioners of Kearny county were authorized to proceed without the compelling force of a writ from the court. (Johnson v. Lucas, 11 Humph. 306; The State v. Judge, 15 Ala. 740; Hawes, Jur. of Courts, § 141.)
One of the reasons given by the new board for recanvassing the returns of the election was that a mandamus had been issued to compel the canvass; but these writs it seems had been set aside, although the orders vacating the same had not been entered of record in Kearny county. This was not the only reason, however, which prompted them to recanvass the returns, as it was well known that the old board had only made a partial canvass, and the members of the new board gave this fact as an additional reason for their action in making a recanvass. About the only objection made against that canvass is that the original returns from Kearny township, which had been deposited with the county clerk, were not used. When the new board came into office these returns were not on file, and the duplicate returns of the election retained in the township were sent for, and upon these the canvass was made. This duplicate was not in the hands of the township trustee or township clerk, for the reason that there were no such officers in the township at that time, but was kept in the possession of one of the judges of the election, who delivered it to the board. The original returns had been taken from the records of the county clerk’s office by Waterman, the ex-county clerk, who was a friend of Lakin, to be used as evidence on one of the proceedings had before the district judge, and instead of returning them to the county clerk’s office he took them to his residence, where they were left until he sold his house, and for some reason the returns were not thereafter found. There is nothing in the testimony from which we can attribute the loss of the original returns to the friends of Hartland, or any of the candidates in opposition to Lakin. duplicate returns were fully indentitled, and we are satisfied that they were safely preserved an(j the genuine and, true returns of the election, and hence were properly used by the board in making the canvass. The result of this canvass was the basis of the call for a second election, made on January 14, 1889, and it is now insisted that the sheriff could not legally call an election at the time he did, because of an injunction which had been procured to prevent such a call. As has been stated, an action was brought by the county attorney against Thorne, the sheriff, to perpetually enjoin him and his successors in office from calling another election for the permanent location of the county seat. In the absence of the district judge, application was made to the probate judge of Kearny county for a temporary order of injunction, and it was allowed by him, to take effect, however, on the execution of a bond in the sum of $200. No service of this order was made, and the summons was not indorsed “injunction allowed,” nor was the injunction bond ever given. In the absence of a bond, the injunction order which was issued was inoperative and void, and was properly ignored by the sheriff. (Civil Code, § 242; The State, ex rel., v. Comm’rs of Rush Co., 35 Kas. 150.) After the canvass had been made, and it was ascertained that no place had received a majority of the votes cast, it was clearly the duty of the sheriff to at once issue his proclamation calling a ^ A ° second election. Authority for his action is found in. § 8, chapter 128 of the Laws of 1887, which provides “that in case no place shall receive a majority of the votes cast, the sheriff shall at once issue his proclamation for another election for the permanent location of the county seat.”
Having reached the conclusion that the election of February 19, 1889, was properly called, we have disposed of the most important question presented in the case. The result of that election as canvassed is that Hartland received a majority of 66 votes, and from all the testimony J , , , „ . . , we think that place was tairly chosen as permanent county seat. The returns from the townships of Hart-land and Kendall only are attacked. The most serious objection raised against the election at Hartland was the exclusion of a representative of Lakin from the polling-room for a short time on the morning of election day. The refusal was a qualified one, it being proposed that a representative would be admitted as soon as a Hartland representative was admitted into the polling-room in Lakin, and that in the meantime a representative of Lakin might stand at the window, in plain view of the ballot-box, and take the names of voters as ballots were cast, and that when a telegram was received from Lakin stating that a Hartland representative had been admitted there, the Lakin representative would be admitted at Hartland. This was agreed to, and the agreement was faithfully carried out. The reason given for this action was that at the former election the people of Lakin, in violation of an agreement, had denied admission to a Hartland representative to the polling-room, while Hartland had honestly carried out the agreement by admitting the Lakin representative, and the denial in the present case was retaliatory and to compel the Lakin people to admit a Hartland representative. While the friends of Hartland may have thought that this was the only means of compelling the Lakin board to allow a Hartland representative in the polling-room at Lakin, it was not justifiable. The exclusion of the representative of an opposing candidate from the polling-room is generally to be regarded as evidence of a fraudulent purpose on the part of the board, but it is not conclusive evidence, and is always subject to explanation. (Gilleland v. Schuyler, 9 Kas. 569; The State, ex rel., v. Malo, ante, pp. 54, 120; 22 Pac. Rep. 351.) In the present case the board was fairly or-. ganized, ballots were received at a large open window, the ballot-box was in front of the window, and the Lakin representative was permitted to stand at the window, where he could see the reception of the votes, the conduct of the election board, and keep a list of the voters as they presented their ballots. In pursuance of the agreement, a messenger was sent to Lakin, who telegraphed back that a Hartland man had been admitted to the polling-room at Lakin, and at that time, which was about an hour and a half after the polls were opened, the Lakin man was admitted at Hartland. There is considerable testimony with reference to the organization and conduct of the board, and from it all we are inclined to believe that the exclusion of the representative was for the purpose stated, and that there was no dishonest motive or any purpose to corrupt the poll.
It is further claimed that 42 votes were added to the poll-book, and that 42 illegal ballots were put in the box at Hart-land, but the proof does not establish the claim. The witness Perry, who undertook to keep a list of voters, says that when he left the window and went into the polling-room he found that the poll-book contained a large number of names which did not appear on the list which he was keeping, and that soon after coming into the room his book was lost or stolen, and that at once he procured another book and copied from the poll-book the names there entered. He says there were 56 names when the book was lost, and 101 on the poll-books when he finished copying the names. The plaintiff contends that the loss of the book and the charge of theft against the people of Hartland was a prearranged plan on the part of the representatives of Lakin, and an attempt to cast a shadow on the returns of that precinct. There are several things which tend to discredit the claim made by Perry: In the first place, the list or book was not kept by Perry alone, but the names had been taken down by several persons, some of whom were not witnesses. Perry, who represented the opposition, says that he discovered the extra names when the copy was made, but said nothing about it; did not check the names or in any way indicate the ones which he thought were wrongfully added to the poll-book. These so-called fictitious names were written down by him without protest or any marks by which they could be identified in the future. After copying the names on his book and verifying them by comparison with the poll-books, he claims to have kept a complete list of all subsequent voters, but when called on for the list or book he only produced a part of it; all that part in which the first 139 names were recorded was gone. He states that the names on the poll-book after and including number 89 were genuine, and that the fictitious 42 preceded that number, and hence the list of these was absent. This portion of the book Perry admits that he destroyed, using the leaves from time to time for waste paper. The names contained in the remnant which was produced did not appear in the order that they were written in the poll-book, indicating that the list was carelessly kept. It is strange indeed that if Perry really suspected that a fraud was committed that no objection or protest should be made, and also strange that the evidence by which the fictitious names might be identified was thought of so little value that it should not be preserved. According to his statement the fictitious votes occurred between the 44th and the 101st names recorded on the poll-books, but the testimony shows that these are the names of some of the most prominent and best-known people of that township. Aside from that, several witnesses well acquainted with the voters of the township identity all the voters, and other testimony introduced shows that no names were written upon the poll-books except of persons who appeared at the window and presented their ballots, and that no ballots were put in the box except those presented by legal voters for that purpose. To sustain the claim that illegal votes were cast at Hartland, evidence was offered that a number of persons who voted there had previously voted at an election in Grant county. This is accounted for by the fact that they were residents of Appomattox, a candidate for county seat in Grant county, and that town, having been defeated, was nearly depopulated, and its residents moved to other places, a number of whom settled at Hartland. If these voters removed to Hartland with the bona fide purpose of permanently locating there, and had been located there thirty days or more prior to the election, they were entitled to vote there at that time. A great deal of proof is taken with reference to the purpose of these voters, and it fails to convince us that they were not legal voters of Kearny county at the time of the election. Only four of the number ever returned to Grant county, and these swore that they went to Hartland in good faith, expecting to make it their home, and located there with their families.
It is finally urged that there was corruption in the election in Kendall, which should destroy the poll. There is testimony that a number of persons in that township organized for the alleged purpose of controlling the election. Some of the members who were witnesses state that their purpose was to ascertain the place which had the greatest number of votes, and then to throw the votes of the organization in favor of that place, and in that way end the county-seat controversy. There is testimony indicating that some of the officers and members expected to use the organization to obtain money from one of the candidates; but whatever their purpose was, it is apparent that they failed to carry it out, and, as one witness said, the organization broke up and each member voted as he pleased. The officers and leaders of the organization did not vote for Hartland, but cast their votes for Chantilly. They further claim, however, that more votes were cast for Chantilly and Lakin than were actually returned. The returns from that precinct show that 67 votes were cast for Hartland, 11 for Chantilly, and one for Lakin. Thirteen persons went upon the witness-stand and testified that they voted for Chantilly; and they claim that there were still others who had voted for Chantilly; and further, that two persons voted for Lakin, while only one vote was returned. The testimony of Moses Miller, one of the thirteen who it is claimed voted for Chantilly, is not very satisfactory. When he gave his testimony he was in doubt as to the name of the place for which he voted. He was a native of Virginia, and was a slave up to the time of the emancipation proclamation, who said he cast his first vote for Abraham Lincoln for presi dent, and voted for Johnson when he was a candidate for the United States senate from Tennessee. In regard to voting, he speaks of signing a paper in favor of Chantilly. He was unable to read, and when asked how he knew he had voted for Chantilly, answered because a man gave him the ticket and that they voted together, and he said he voted for Chantilly. The man who gave him the ticket was not produced as a witness. Another of the thirteen was a German, who is unable to read English, who first said he voted for Omaha, and afterward stated that he voted for Chantilly. When shown the printed word “ Hartland,” he inquired, “Ain’t that 'Chantilly’ ?” Another of the thirteen who swears that he voted for Chantilly at that election, states that he did not see what name was on the ticket for county seat; that the ticket was given to him by another; and further, he admitted on cross-examination that he sold his vote to Lakin for $10 at the July election. Murphy, who testified that he voted for Chantilly, admits that he had sold his vote on the question of county seat at two different times prior to this election.
Other testimony which would weaken the force of the defendants’ claim might be mentioned, but this is sufficient. They have failed to impeach the conduct of the election board or to destroy the prima facie character of the returns. The election board was openly and fairly chosen, and we are not convinced that it acted dishonestly in the performance of its duties. Even if it was granted that the individual votes, the validity of which is challenged, should be thrown out, it would not change the result of the election, as they would not nearly equal 'the declared majority of 66 votes in favor of Hartland.
There is a good deal of incompetent testimony included in the report of the commissioners, such as the general rumor about the honesty of the several county-seat elections held in Kearny county, and other hearsay testimony, as well as ex parte affidavits, which have not been referred to in this opinion and should not have been brought into the record. An examination of that which is admissible leads us to the opinion that the election of February 19, 1889, resulted in favor of Hartland, and that it must be adjudged to be the county seat of Kearny county.
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OPINION ON REHEARING
The opinion of the court was delivered by
Dawson, C. J.:
This is a rehearing. The case has been rebriefed and reargued, but our original statement of facts and the jury’s general and special' findings as set forth in ante, p. 191, 146 P. 2d 401, need not be repeated.
Considering once again whether finding No. 14 and the special findings which supplement it, No. 10 and No. 12, should compel judgment for defendant notwithstanding the general verdict, a majority of this court holds otherwise. It reasons thus: The jury .found that defendant’s negligence lay in failure to apply his brakes and in making no attempt to consider the other driver. (Finding No. 8.) Since the Dannenberg car reached the bridge first (finding No. 9), and it only traveled eight feet on the bridge (finding No. 1), and the bridge was 53% feet long, it was fairly within the evidence that if Jasperson who drove defendant’s car had given any consideration to the other driver, who was obviously having some difficulty with his car since it crossed over from its own lane of traffic into the path of the Jasperson car a few feet before it reached the bridge, Jasperson might have applied his brakes and might have averted or greatly minimized the force of the collision. At least a jury might so conclude. Moreover, by the jury’s finding No. 2 (a), (b) and (c), Jasperson did not reduce his speed more than about ten miles per hour between the narrow bridge sign 282 feet west of the bridge and the point of collision- — a distance of 327% feet. Finding No. 13 accords with the details of finding No. 2, and likewise accords with so much of No. 8 as states that Jasperson made no attempt to consider the other driver. Furthermore, while Jasperson testified that he heard no such remark from one of his passengers, “What is that fool trying to do?” at the time the Dannenberg car crossed out of the west-bound lane of traffic into the path of the Jasperson car, the jury had the right to believe she did say so, and that Jasperson heard her, yet he drove ahead, as shown in the jury’s findings No. 8 and No. 13.
The court reaffirms its judgment that the special findings of the jury did not require the rendition of judgment for defendant non obstante.
In the motion for a rehearing counsel for appellant also suggests that our first opinion did not discuss the question of Packer’s con- tributary negligence. When he and Dannenberg were 300 feet east of the bridge he said, “Stop, Henry, you can’t make it.” (Finding No. 4 [a].) Henry Dannenberg did not stop, and did not even slacken his speed (which was 35 to 40 miles per hour, according to plaintiff’s testimony) until he was about 90 feet east of the bridge (finding No. 5), yet Packer gave no second warning and made no other protest. Defendant insists that the want of any further protest or warning by plaintiff after the one given at 300 feet from the bridge, which brought no response or compliance by Dannenberg who continued to maintain his high speed of 35 to 40 miles per hour for añother 210 feet before he made any attempt to decrease it, was contributory negligence on the part of plaintiff which should bar a recovery. Mayhap a jury would be justified in such a conclusion; but we think it was a jury question, not one which could be decided adversely to plaintiff as a matter of law. The trial court’s instruction, No. 17, fairly covered the question of plaintiff’s contributory negligence, thus:
“It was the duty of the plaintiff in this ease to warn the witness, Dannenberg, of any apparent or probable danger of continuing down the road, in his automobile under the situation presented as soon as possible after plaintiff realized such danger, and in giving such warning plaintiff was bound to use ordinary care and diligence in making the driver of the car hear and understand such warning, and if such warning was ignored or not heeded by the driver it would then be the duty of plaintiff to reasonably remonstrate with the driver of the car and demand the car be stopped if there were time and opportunity to do so, and if plaintiff did not use such ordinary care and reasonable effort as the situation offered to perform such duties his own negligence bars a recovery on his part and your verdict should be for the defendants.”
In our recent case, Orr v. Hensy, 158 Kan. 303, 147 P. 2d 749, we commented on its earlier companion case where the question was whether a passenger in an automobile was guilty of contributory negligence in failing to warn the driver of an impending collision. We said the passenger—
“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.” (p. 311.)
Counsel for appellant urge that some of the other errors assigned in its first brief not discussed in our original opinion should be treated here, as they are likely to arise again. One of the, items included in the jury’s verdict was “Medical expense, $625.” It is contended, correctly we think, that there was no evidence to support that item. The collision occurred on October 2, 1941; this action was tried at the March term, 1943 — almost a year and a half later; and in that long interval no medical or surgical treatment had been given the plaintiff, nor was there any evidence that such treatment was contemplated. There was testimony that a local doctor in Gaylord had examined Packer the day of his alleged injury, and told him to go home and go to bed, and that Packer returned the next day and that he gave him some medicine and told him to go home. Doubtless Packer did incur' some nominal expense for this professional service and medicine but there was no evidence of its amount, or what Packer paid for it. On the whole, we think that the court’s instruction No. 21, which assumed that competent and relevant testimony had been offered in respect to this particular item of expense, although not inaccurate as an abstract statement of law, tended to mislead the jury and should not have been given.
There was also some evidence that plaintiff incurred an expense of $32.50 for X-ray examinations and photographs but this was for the amassing of evidence for use in this lawsuit, not for medical treatment nor incidental thereto. It seems superfluous to say that any such item should not have been included in the jury’s verdict. The other monetary items included in the verdict are sharply criticized as excessive, but since they and the general verdict are set aside they need no consideration.
Another error urged by appellant was based on the admission of Packer’s testimony that he was having trouble with his sinuses. There was no allegation in his petition of such affliction and damage, and defendant’s timely objection thereto was well taken.
Error is also urged against the admission of certain testimony of medical experts, which objection to this testimony, in part at least, was its absurdity — that plaintiff’s inability to use his left hand and left leg might be caused by pressure on the nerve fibers which control those members of the body, as those nerves passed through the cartilaginous tissue which forms a cushioning between the bones of the cervical vertebras. Well-informed folk who make no pretension of medical skill usually know that the nerve fibers do not pass from the spinal cord through the cartilage which serves as a cushion between the vertebrae, but through orifices in the vertebrae themselves. But this elementary fact of anatomy and physiology was probably set straight before "the examination of the experts was completed. If not, it must have supplied a good, talking point before the jury against the plaintiff’s whole case. However that may be, this curious bit of evidence is not likely to be offered again and needs no further comment.
Appellant also complains of the extent to which the professional experts were permitted to testify on matters of mere possibility, conjecture and the like. Expert witnesses should confine their opinions to relevant matters which are certain or probable, not those which are merely possible. (Myers v. Shell Petroleum Corp., 153 Kan. 287, 302-303, 110 P. 2d 810.) We think, however, that the trial court’s instructions completely and competently dealt with this subject, thus—
“23. . . . You are not justified in finding that a fact is proven solely on the statement of an expert witness that such fact is possible. No fact can be proven by expert' evidence alone unless such evidence shows the probability of the existence of such fact or the evidence of the expert shows a justifiable opinion of the existence of such fact. But you are the sole judges of the facts proven or not proven by a careful consideration of all the evidence submitted to you.”
In the first trial plaintiff charged both Jasperson’s employer and Dannenberg, plaintiff’s own employer, with negligence. The jury exonerated Dannenberg, so in the second trial the issue of Jasper-son’s alleged negligence was stressed — quite properly of course; but the fact that Dannenberg will not have to pay damages does not lessen in the slightest degree every pertinent fact concerning what he did or failed to do, which may have caused or contributed to plaintiff’s injury and damage, or which tended to show that the accident and injury of plaintiff was not caused by the negligence of the driver of the Jasperson car.
The other matters urged on our attention in the several briefs of the parties have all been diligently considered, but we discern nothing further which needs discussion.
The order of this court reversing the judgment and remanding this cause for a new trial is adhered to (ante, p. 191, 146 P. 2d 401). | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action to recover disability benefits under a health and accident policy dated October 28, 1940. It was initiated by the filing of a bill of particulars in the city court of Kansas City, May 8, 1943, where plaintiff recovered judgment. Defendant appealed.
A day or two before the trial in the district court defendant filed an answer in which it alleged that plaintiff’s accidental injury occurred while the policy was in default; that plaintiff paid the premiums at the home office up to and prior to September 15, 1942; that another monthly premium due on that date was not paid until September 24 and that plaintiff was injured on September 23; and that defendant had disallowed the claim because of the fact that plaintiff was in default at the time of his injury. By leave of court plaintiff amended his bill of particulars, alleging “That by reason of a custom established the defendant waived payment of the premiums on the due date.” The case went to a jury trial on this issue. The evidence disclosed that because of the time in the month plaintiff received payment where he worked his premiums were paid late uniformly. The payments for some months were made to a collector, but thereafter were made directly to the home office of the defendant; that in fact the payments continued to be made by plaintiff and accepted by defendant up to the date that suit was brought on the policy. The trial court gave proper instructions upon the question as to mutual waiver of the date of paying premiums in accord with Ellis v. Fraternal Aid Union, 108 Kan. 819, 197 Pac. 189, syl. ¶ 3. No objections were made to the instructions when given, and none is made in this court. The instructions became the law of the case. A verdict was rendered for plaintiff, which was approved by the trial court, and defendant has appealed.
In this court appellant’s abstract is not certified and contains no assignments of error. In its brief it is stated that the question is whether plaintiff should be allowed to recover on the disability provisions of the policy when he has failed to pay the premiums within the period provided by the policy. Under the record in this case we think appellant is not in position to present that question. On behalf of appellant it is argued that evidence of a waiver is incompetent in the absence of a pleading of waiver. Of course, the answer to that is that the waiver was pleaded, a fact not disclosed by appellant’s abstract, and the question was thoroughly tried out. There is no occasion to state all parts of the record with respect thereto.
The court allowed plaintiff a sum as an attorney fee. Defendant complains of that, not because the amount is unreasonable, but on the ground that no statute authorizes it. We think G. S. 1935, 40-256, authorizes the allowance of the fee, and that under G. S. 1935, 40-201, defendant is not in position to contend that it is not liable.
We find no error in the record. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action for the balance claimed to be due on a promissory note. The parties are brothers. Plaintiff lives at Glen Elder in Mitchell county, which place was the old family home of the parties. Defendant is a dentist at Sioux City, Iowa, where he has lived since 1919. In plaintiff’s petition, filed January 31,1942, it was alleged that on September 27, 1917, defendant, being then indebted to plaintiff, executed a promissory note in the sum of $741 payable to plaintiff at the Glen Elder State Bank with interest at six percent per annum, a copy of which note was attached to and made a part of the petition. No due date was named in the note. It was further alleged that upon stated dates in 1926 payments were made on the note which aggregated $125 (a credit of $75 endorsed on the note as of October 27, 1926, is listed as $15); that $10 was paid in January, 1927, and that upon stated dates beginning July 1, 1935, and to November 10,1939, payments aggregating $575.23 were made, leaving an alleged balance due plaintiff of $1,465.47, for which plaintiff prayed judgment. (This computation must have been at compound interest, which the note does not appear to warrant.) Upon the filing of the petition plaintiff, filed an affidavit for attachment, and an attachment order was issued and levied upon an undivided one-sixth interest in 327 acres of land in Mitchell county alleged to be owned by defendant, subject to a mortgage. The only service of process was by publication. On April 13, 1942, judgment in rem was rendered by default in which the court found $1,483.05 due plaintiff on the note. The attachment was approved and the attached real property ordered sold for the satisfaction of the sum due plaintiff..
On May 25, 1942, defendant, proceeding under G. S. 1935, 60-2530, filed his verified notice and motion and answer to open the judgment and to be permitted to defend. In the answer defendant admitted the execution of the note, but alleged payment, and specifically alleged that in the spring of 1935, nothing having been paid on the note for more than eight years and there being some disagreement as to the amount due, and the parties both regarding the note as being' outlawed and that no liability except a moral obligation existed, it was agreed between the parties to settle the liability on the basis of $1,000, defendant to have credit for $135 previously paid and to pay the remainder, without interest, at such time as might reasonably be convenient to him. The answer further alleged in detail payments which had been made since that date, some of which had not been credited upon the note, and that all the $1,000 had been paid except $65, which sum was tendered into court. There was a contest over the opening of the judgment, but an order was made to that effect.
Plaintiff filed a reply in which he denied that .the statute of limitations had run upon the note at any time; alleged that during the period from 1927 to 1935 defendant had been a nonresident of the state, and specifically denied any payments or credits other than those pleaded in the petition, and expressly denied that in the year 1935, or at any other time, any agreement was made between the parties as to change of payment other than as represented by the note, and further alleged that if there was any evidence to support such a modification or new contract’that the same was without legal consideration.
The only witnesses were the parties, both of whom testified. When they finished their testimony there were but two controverted questions between them. Plaintiff testified that the agreement on which he was to accept $1,000 without interest on the indebtedness was made in 1926', while defendant testified it was made in 1935. On this point the jury, answering a special question, found it was made in 1926. We regard the controversy over this date as not being important. The testimony of both was that the $1,000 was to be paid along as defendant could pay it, without interest, and that part of it was to be paid in dental work performed by defendant for plaintiff and members of his family. Such work was done and it is agreed that the reasonable value of the dental work was $220. There was a credit on the note as of the date of December 13, 1937, of $150. Defendant’s testimony was that this payment was made by a check which he had given on his account in the Woodbury National Bank, but he did not have the canceled voucher. Plaintiff testified that he received no such check, but that the credit was his estimate of what the dental services then performed were worth. (During the trial it was stipulated the dental services were worth $220.) Answering a special question, the jury found this payment was not made in cash. So, on the two controverted points the jury found for plaintiff. The jury returned a verdict for plaintiff for $219.77, the sum found due after credits had been applied. Following the verdict plaintiff moved for judgment notwithstanding the verdict “for the sum of the note sued upon plus interest as provided therein, less the payments determined by the jury,” and also filed a motion for a new trial. Both motions were considered by the court and overruled, and plaintiff has appealed.
Appellant first contends that the court erred in permitting defendant to open up the judgment and defend the action. We find no error in that ruling.
Appellant’s principal contention is that the agreement the parties made was a novation and was invalid for lack of consideration, hence that plaintiff’s recovery should have been for the full amount of the note with interest. This point was urged by a demurrer to defendant’s evidence, by requested instructions, and in other ways during the trial. We think the point is not well taken. The evidence disclosed that the indebtedness originated in 1912 when defendant was in college and plaintiff loaned him $341. Interest on that sum at some rate, and possibly some additional advancements, were incorporated in the note executed by defendant in 1917. That the circumstances of the parties were such that no definite time should be fixed for payments is evident by the form of the note. Defendant went to Sioux City in 1919 and has continued to live there. He testified that he returned to Glen Elder for a visit for a week or more every year or oftener as long as his mother lived, which was until February, 1938, and always saw and visited with plaintiff. Nothing appears to have been paid on the note for more than eight years after its date. Beginning in April, 1926, some payments were made until January, 1927, then payments ceased until July, 1935, when additional payments were made until November, 1939.
On February 15, 1939, plaintiff wrote defendant a letter, which in part reads:
“Bred you know we offered to settle for $1,000 but if you are going to let it run why I got to come back for interest so if you still want to settle for $490.00 & fix Mary & my teeth why I will still settle with you. . . .”
It is not clear from the record what the $490 referred to. Defendant did do additional dental work at plaintiff’s request, and on June 10, 1939, plaintiff credited defendant $100 therefor. Defendant testified that he asked plaintiff to send the note to some bank at Sioux City, where it could be delivered to him when he finished paying the $1,000, but that plaintiff declined to do so, and was indicating that a much larger sum was due. On November 6, 1939, defendant wrote plaintiff, sending $100, and complained about some personal matters about which plaintiff is supposed to have spoken or written, and further saying that the remittance “is all you will ever get from me.” This is the first evidence in the record of a lack of harmonious feeling between the parties. Apparently at that time, counting the dental work at what it is agreed to have been worth, defendant had about paid the $1,000. After the suit was brought defendant thought he had paid all of it but about $65, which sum was tendered. The jury’s finding that defendant was still indebted to plaintiff in the sum of $219.77 seems fully as favorable to plaintiff as the evidence warrants, unless, of course, the agreement of the parties to settle on a $1,000 basis should be fully disregarded. We think there is no reason to do so.
In view of the fact that at. the time the settlement was agreed upon the debt was an ancient one, upon which nothing had been paid for many years, legal liability was open to question; it was payable in money at Glen Elder, Kan.; the parties agreed upon a sum approximately three times the amount of the original loan, and that it could be paid, without interest, at defendant’s convenience, and in part by services to be performed at Sioux City, Iowa. We think the consideration was sufficient under the doctrine of compromise and settlement (see 15 C. J. S. 725; 11 Am. Jur. 264); or under the doctrine of accord and satisfaction (1 C. J. S. 496; 1 Am. Jur. 236, and authorities there cited). In our own case of Sigler v. Sigler, 98 Kan. 524, 158 Pac. 864, it was held:
“Where it is shown that the minds of the parties, whether acting by themselves as principals or through others as agents, have met and agreed upon the proposition that the receipt of the lesser sum shall extinguish all right on the part of the creditor to exact further payment, any possible or probable benefit to the one, or loss or inconvenience' to the other, will be held to constitute a consideration for the new agreement.” (Syl. fl 3.)
This case has been cited and the rule followed in Garrison v. Marshall, 117 Kan. 722, 233 Pac. 119; Peoples Exchange Bank v. Miller, 139 Kan. 3, 9, 29 P. 2d 1079; and in Hall v. Swindell, 147 Kan. 382, 385, 76 P. 2d 769. The cases, Stanley v. Blair, 137 Kan. 469, 21 P. 2d 311, and Parkhurst v. Investors Syndicate, 138 Kan. 7, 23 P. 2d 589, relied upon by appellant, are not in point.
We find no error in the record. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This is an appeal from an order approving the final account of an executor.
A detailed statement of facts leading up to and responsible for this lawsuit is required in order that the issues may be fully understood. They are as follows: Sarah J. Charles died testate and her will was admitted to probate in Ford county, Kansas, on September 21, 1929; under its terms the executor therein named was directed to serve without bond and given authority to sell and make conveyance of any and all property of whatsoever kind left by the de cedent at public or private sale, subject to the approval of the probate court, in the same manner as such decedent could make sale thereof if living; on the day the will was admitted to probate Pearl Trebilcock was appointed executor and letters testamentary were issued to him; he failed to subscribe to the oath required by the statute and gave no notice of his appointment; however, he took over all property belonging to the estate, consisting mostly of real estate and for many years was recognized by everyone concerned, including heirs, creditors and debtors of the estate, and the probate court, as executor of the estate with full power, control and direction, over the real estate owned by the decedent on the date of her death; during that time he collected rents and made and paid for repairs on the property with full knowledge of such action on the part of the heirs and for most, if not all, of it with their consent and approval. On October 2, 1929, the executor filed an inventory and appraisement showing the assets of the estate to be real estate amounting in value to $11,000 and personal property amounting in value to $700, the greater portion of which was furniture and none of which was in the form of cash; Trebilcock made no report or account of his administration until subsequent to August 14, 1941, when on application of certain heirs, appellants herein, the probate court cited him to appear for examination; from July 21, 1932, the date on which it appears a petition for extension of time for final settlement was filed by the executor, until the date of the filing of the application referred to, the record is silent as to his activities.
Subsequent to August 18, 1941, the record in the probate court discloses the following facts so far as it involves action on the part of the executor: The filing on September 2, 1941, of an unsigned and unverified account consisting of a general statement of amounts received and paid out by him in his official capacity, without regard to receipts and expenditures pertaining to the real estate, and a statement of what he termed were “obligations of the estate,” alleged to be $1,300 for money advanced by him to pay off a loan on one of the properties and $276.57 for taxes advanced by him to pay taxes on real estate; the filing of an application on October 8, 1941, for extension of time in which to close the estate.
On October 11, 1941, the probate court directed the executor to file within thirty days a full accounting and report of his administration of the estate, including all moneys received and paid out by him, and on November 10 following, this report, which was also unsigned and unverified, was filed. It consisted of a general statement of all receipts and expenditures, including all rents collected, repairs made on the real estate, and other items of expense incurred by Trebilcock from the date of his appointment to the date of the filing of such statement.
Sometime between this last date and November 26, 1941, the day on which the executor filed his petition for final settlement, something happened, the nature of which is not disclosed by the record. At any rate, when the petition was filed it included no account of receipts and expenditures incurred in the management and control of the real estate, but did contain a statement, the truth of which is undenied, that at the direction of the probate court all items of that character were omitted therefrom.
Other material facts set forth therein were as follows: The only money received by petitioner as executor from the estate had been for rents which had been collected from the real estate and an attempted sale thereof; from moneys so collected there had been paid the expenses of the estate in the sum of $500.09, as listed in the petition and that all other money collected by him had been expended for repairs, maintenance and taxes on the real estate owned by the decedent on the date of her death.
The petition further alleged: Payment in 1929 of a note secured by mortgage on some of the real estate, $1,300 of which was paid by petitioner out of his own funds, for which amount he was entitled to reimbursement with interest at six percent from August 8, 1930; that for the purpose of securing the benefits for the estate of the privilege of the tax moratorium law, at the request of the heirs petitioner had advanced the sum of $276.57 from his own funds in payment of taxes for which he was entitled to reimbursement with interest at six percent from August 30, 1941, the date of such payment.
Further allegations of the petition, excepting certain matters immaterial for purposes of this review, to be found therein described the real estate owned by the decedent at the time of her death, and sought its sale for the purpose of paying costs of administration, executor’s fees, attorney fees, and the advancements made by the petitioner.
On December 29, 1941, the date of the hearing on the petition for final settlement, Bell Ensign, one of the heirs and a devisee and legatee under the will of decedent, objected to the approval of the executor’s account and the making of any order of allowance for any claims made by him for reimbursement and to any order for the sale of the real estate as prayed for in such petition. On the same date the probate court approved the final account, allowed the amounts claimed by the executor as due him for payments made by him personally for taxes and in satisfaction of the mortgage referred to and ordered the real estate sold for the purpose of providing funds for payment of such claims and other minor expenses of administration.
A few days thereafter, and within the time provided by statute for the taking of appeals, three of the heirs, the appellants herein, gave notice of an appeal from the probate court’s judgment, a portion of which notice reads:
“You and each of you are hereby notified that Bell Ensign, Etta Lulzen Hiser and Myrtle McKelvy appeal from the order, judgment, decree and decision of the probate court of Ford County, Kansas, rendered in the above entitled matter on the 29th day of December, 1941, in which the court made an order judgment, decree and decision allowing the claims of Pearl Trebilcock against the Estate of Sarah J. Charles, in the sum of $1,300 and $276.57, and order directing sale of the property.”
After the appeal had been certified to the district court the heirs filed a motion requesting that court to require the executor to file a full account of his administration of the estate, showing all receipts and disbursements claimed by him in his representative capacity, or otherwise, on the ground the report as made by him in his petition for final settlement was so limited it was impossible for them to know what disposition he had made of the property inventoried by him, what receipts he had charged himself with, what items he claimed credit for, and that in its then status and form it was impossible for appellants to join issue on the account set forth in such petition, or any item thereof, or to prepare for trial. This motion was overruled.
On the trial in the district court the trial judge limited the issues to questions specifically referred to in the notice of appeal from the probate court, namely, the propriety of the allowance of the amounts claimed to have been advanced by the executor for the benefit of the estate and the order directing the sale of the real estate for the purpose of supplying funds which were to pay such claims and other expenses of administration.
On direct examination, Trebilcock was a witness in his own behalf and among other things testified to the following facts:
“In May 1930 I paid $1,503.34 to pay off this mortgage. I used my money. $203.34 of this was paid back to me on June 2, 1930, from money I had on hand from rents. I never have received anything further on this amount I had advanced and no part of this $1,300.00 was ever repaid to me in any manner through the estate. ... In 1941 I advanced $232.04 on lots 11 and 12 and on lot 9 my report shows I advanced $44.53; total $276.57 as shown by my report. , That was my individual money. There were quite a bit back taxes on the real property and I used that money I had and then I had to have this much more money. At that time I had some balance on hand that I had received from collection of rents from these properties but not enough to pay all the real property tax but what I had on hand and the $276.57 I advanced was enough. No part of this $276.57 was ever repaid to me. . . .”
On cross-examination counsel for the heirs sought to interrogate this witness with respect to receipts received by him from all sources and expenditures paid out by him for all purposes from the date of his appointment to the date of the trial. Objection was made and sustained to each and all such questions on the ground they were incompetent, irrelevant and immaterial, not proper cross-examination and not within the issues. A similar objection was made and sustained to evidence offered by the heirs tending to show the amount of taxes paid by Trebilcock to the county treasurer during such period of time.
The judgment of the district court was substantially the same as the one rendered in the probate court. The executor’s claims for $1,300 and for $276.57 were each allowed and the real estate belonging to the estate of Mrs. Charles, or so much thereof that might be necessary, was ordered sold to pay such claims together with all costs of the action. After its rendition the heirs served notice of appeal.
We turn first to appellants’ contention the trial court unduly limited the issues on the trial. An examination of the record discloses beyond per adventure of a doubt its theory was that the notice of appeal, heretofore set forth, limited appellants to the issues of whether the estate, under the facts arid the law, was indebted to the executor for advancements made by him and, if so, whether the real estate should be sold to satisfy the amount found to be due therefor. All evidence pertaining to other items as to rents collected from' real estate by the executor and disbursements made by him from the proceeds thereof was rejected as not within the issues. It must be remembered the principal issue in probate court was approval or disallowance of the executor’s final account and one of the appellants had objected to its allowance. The judgment found such account to be correct and approved it in its entirety. The notice of appeal specified the appeal was from “the order, judgment, decree and decision of the probate court of Ford county, Kansas, rendered in the above entitled matter on the 29th day of December 1941.” True, it contained the additional language, “in which the court made an order judgment, decree and decision allowing the claims of Pearl Trebilcock against the estate of Sarah J. Charles, in the sum of $1,300 and $276.57, and order directing sale of the property,” which appellee insists and the trial court concluded limited the issues as heretofore indicated. We think not. A statute giving a litigant the right of appeal is to be liberally interpreted. We find nothing in our statute (G. S. 1943 Supp. 59-2401) requiring the use of any particular language in order to effectuate an appeal. Here the appeal was from the orders, judgment, decree and decision of the court, rendered on the 29th day of December, 1941, in connection with the Charles estate and the only matter pending or judgment rendered in the probate court in that estate on that day was one determining the rights of appellee on his petition for a final settlement and accounting. The inclusion in the notice of the additional language heretofore last quoted amounted in our opinion to “language of identification” not “language of limitation” as contended by appellee and we hold it should not be construed as limiting the issues to two items of many included, or that should have been included, in the account set forth in the petition for final settlement.
We next give our attention to the contention the trial court erred in overruling appellants’ motion to require the executor to make and file a full account of his administration of the estate, including all receipts received by him and all disbursements paid out irrespective of their source or purpose. Appellee in defense of that ruling points to the rule that an administrator ordinarily has nothing to do with real estate of a decedent when it is not necessary to pay debts. Quite so. We have thus held in Lindholm v. Nelson, 125 Kan. 223, 264 Pac. 50; Firmin v. Crawford, 140 Kan. 370, 36 P. 2d 970; Hill v. Grand Lodge of I. O. O. F., 157 Kan. 34, 139 P. 2d 438, and many other cases which could be cited. But this argument overlooks the fact that there are exceptions to this rule. In Firmin v. Crawford, supra, it was said:
“It needs little citation of authority to show that as administrator he had nothing to do with the rents from the real estate (Lindholm v. Nelson, 125 Kan. 223, 264 Pac. 50, and cases cited; 11 R. C. L. 123; 23 C. J. 1139), although under certain circumstances the heirs or devisees may be estopped to recover as against him where the moneys have been applied to taxes and mortgage payments with their knowledge and consent.” (p. 372.) (Emphasis ours.)
Under circumstances and conditions similar to those existing here a case more in point is Kothman v. Markson, 34 Kan. 542, 9 Pac. 218, wherein it was held:
“Where an administrator takes possession of the real estate of an intestate under an order of the probate court, and collects and receives rents for the same, which he reports to the probate court, and with which he charges himself as administrator, and a part of which is used for the benefit of the estate, and to pay the costs of its administration, and all is done with the knowledge and consent of the heirs of the intestate, held, that the administrator is estopped to deny that the rents so collected and received by him. are assets of the estate.” (Syl. ¶ 2.)
And said:
“By the death of Myers the legal title, and right of possession to the land became vested in his heirs, and therefore they were entitled to the rents and profits of the same prior to its sale to satisfy the plaintiff’s debt. (Head v. Sutton, 31 Kan. 616; Reading v. Wier, Adm’x, 29 id. 429.) As decided in the case of Head v. Sutton, supra, the administrator is not authorized by the statute to take possession of the real estate of an intestate, or to collect the rents and profits of the same; and as a general rule, where the administrator takes possession and collects the rents, they are not to be treated as assets of the estate. While this is true, we think that in this case the rents must be treated as assets of the estate, and that the facts herein come within the exceptions mentioned by the Chief Justice in Head v. Sutton. It is alleged in the petition that the defendant sought and obtained an order from the probate court authorizing him to rent the land belonging to the estate, and that in subsequent reports to the probate court he had charged himself with the rents in his representative capacity, and a portion of the same has been appropriated under the order of the probate court for the benefit of the estate, and in payment of charges for the expenses of its administration. This has all been done at the instance of the defendant, and with the knowledge, or at least the implied consent, of the heirs. The administration of the estate has been in progress since the early part of 1875); and the administrator has ever since that time received and charged himself with the rents as assets of the estate subject to administration. A report of this action was first made to the probate court on May 6, 1876, which was repeated in three subsequent annual settlements; but it does not appear that the heirs have ever objected to this action, or made any claims to. the rents. It would seem that the administrator at least would be estopped to deny that the rents so collected and reported were assets of the estate, and that he holds them in the capacity of administrator. (Head v. Sutton, supra, Wilson v. Wilson, 17 Ohio St. 150; Simpson v. Snyder, 54 Iowa, 557; Conger v. Atwood, 28 Ohio St. 134.) If the facts prove to be as alleged, it would seem that the heirs ought not now to be heard toi deny that the rents constituted assets subject to the payment of the debts of the estate.” (p. 548.)
See, also, 33 C. J. S. 1270, § 259, stating:
“The consent of heirs or devisees may warrant the collection of rents of real estate by the executor, and the receipt of rents and profits of real estate with such consent gives the representative a lawful possession and a good title against all persons except the heirs. ... An executor or administrator who takes over the possession, control, or use of the real property of his decedent must account for the rents and profits which he received or should have received, although it seems that where he acts diligently and honestly with regard to realty ini his possession and control he is liable only for such rents and profits as he may have received. . . . Whether the representative’s liability to account for rents and profits is in his representative or his individual capacity depends on the facts of the particular case. ... It is usually considered that, where the representative has received rents and accounted therefor or paid them out in discharge of the debts of his decedent, he is precluded from alleging that they belong to the heir and that he received them without authority, and those entitled to the rents may charge him therewith in his representative capacity as for assets rightfully received. . . .” (pp. 1270-1273.)
In the instant action the appellee for more than 13 years had been acting as executor of the estate of Sarah J. Charles. From the very moment of his appointment he took over and retained the possession and control of the decedent’s real estate. During all that time he collected rents and maintained the properties, he paid expenses of administration, including funeral expenses of the decedent, out of rents collected and received from such properties for he had no other source from which to pay them. All these things and many others pertaining to matters affecting the real estate he did with the full knowlédge, acquiescence, consent and approval of the heirs of the decedent, the devisees and legatees under the terms of her will, as well as that of the probate court which had supervisory power over his official conduct and action. So far as the heirs are concerned the record discloses this action on the part of the executor as well as his conduct in making advancements for the benefit of the estate for which he expected to be reimbursed, came about as a result of requests from some if not all of such heirs. At any rate, it is apparent it was not until after many years of understanding and cooperation between all the parties that it occurred to the executor or any of the devisees that the manner in which the real estate had been handled could be used either as a weapon of offense or one of defense when it came to the closing of the estate and the making of final settlement. Under the circumstances and conditions just related we think the rule announced in Kothman v. Markson, supra, is applicable and that not only the executor, but the heirs as well, are estopped to deny that rents collected and received by the appellee are assets of the estate and held by him in his fiduciary capacity.
Aside from the result just stated there is another reason why the parties would be precluded from successfully contending the executor’s control of the real estate over the years was without the scope of his duties as such. The will gave him power to sell and directed that the proceeds of the rest and residue of her estate, after a disposition of certain personal property, should be divided share and share alike among her children, naming them. Without deciding the question, it can safely be said that the probate court, the children, and the executor proceeded throughout on the theory the terms of the will gave the latter the custody and control of the real estate until it was sold and the proceeds divided as provided for therein. Certain it is that as between the children and the executor the legal title was in the latter and the practical interpretation to place on such a course of conduct, is that appellee held possession and had control of such property during the period of time involved with the consent of all parties and when he collected rents and paid out proceeds of collected rentals he did so for the benefit of and on behalf of the estate. No other conclusion could be just or equitable.
The conclusion just announced compels a decision that the trial court erred in refusing to require the appellee to make a full account of his administration of the estate and in overruling the motion to require that action. It requires also the conclusion it was error to restrict the cross-examination and refuse the appellants the right to bring forth in that manner or by direct testimony evidence relative to all receipts received and expenditures incurred by the executor during his tenure as representative of the estate, irrespective of their character or the source from which they sprang.
Finally appellants urge the claim of the appellee was barred by the statute of limitations and by the statute of nonclaim. Cases cited by them have been examined but we fail to see where they support their position. They deal with claims of creditors having demands against a decedent’s estate and not with the rights of an executor who seeks to be reimbursed at the time of his final settlement and accounting for advances made by him for the benefit of the estate he represents.
Other alleged errors are pointed to but for the most part are based on questions having to do with the limiting of the issues and the exclusion of evidence. Since the case is to be reversed and a new trial granted those matters will not be in controversy and do not require our consideration.
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The opinion of the court was delivered by
Parker, J.:
This action was instituted to recover damages alleged to have resulted from a collision between two motor vehicles on a Neosho river bridge near the city of Iola.
Pertinent allegations of the amended petition, omitting formal portions thereof, follow: Plaintiff is a resident of Allen county, Kansas; defendant, the National Mutual Casualty Company of Tulsa, is an Oklahoma corporation authorized tó do business in Kansas, and defendants Ed Lambert and Grant Murray are residents of Hutchinson, Kan.; on the morning of September 7, 1942, the plaintiff, who was the owner of a Ford V8 automobile, was driving in an easterly direction at a speed of approximately 20 miles per hour on a highway leading into the city of Iola, Kan.; when plaintiff reached the center of a bridge crossing the Neosho river on such highway, Murray, who was driving a 1938 Diamond “T” tractor with trailer attached, and who was also proceeding east on such highway, attempted to pass plaintiff on such bridge and negligently turned his vehicle to the south and into the north side of plaintiff’s automobile with the result plaintiff’s car was forced into the south cement railing of the bridge and completely wrecked; at the time Murray was an agent for and in the employ of defendant Lambert and was working for him and operating in his regular line of business under a permit granted by the state of Kansas; both Lambert and Murray were insured by the National Mutual Casualty Company of Tulsa, Okla., against any loss or damage caused by either of them as a result of the collision.
The record discloses that no service of summons was had upon Murray and his status as a defendant is of no consequence in deter mining the rights of any of the parties. It fails to disclose how service was obtained upon the defendants Lambert and the insurance company, but it does appear, that without the entering of a special appearance, the filing of a motion to quash service, or in any other manner raising the question of whether the court had jurisdiction of the person of such defendants, they filed a joint answer wherein each of them denied generally the allegations of the petition and specifically denied “they were guilty of.any negligence on the 7th day of September, 1942, which resulted in any damage to said plaintiff’s automobile,” and alleged such damages, if any, resulted from the negligence of the plaintiff. The answer filed by defendants was not verified and it contained no allegation or claim the defendants could not properly be sued in the county wherein the plaintiff had instituted his action.
On the issues raised by the amended petition and the answer the case came on for trial to a jury.
The defendants each demurred to the evidence adduced by plaintiff, whereupon, the trial court sustained the demurrer of defendant insurance company and overruled the demurrer of defendant Lambert. From this point in the proceedings Lambert alone remained as a defendant and he will hereinafter, in the interest of brevity, be referred to as “the defendant.”
After his demurrer had been overruled defendant, who did not personally appear at the trial or testify as a witness, offered his evidence. That evidence was limited solely by him to proof of the value of plaintiff’s automobile on the date of the collision and no testimony of any character was offered to refute other allegations of fact contained in the petition or evidence adduced by plaintiff in support thereof. The jury returned a general verdict for plaintiff. Defendant filed a motion for a new trial, and later, but before such motion was passed upon by the trial court, a motion in arrest of judgment and for a directed verdict. Thereafter, both motions were overruled. Judgment wás then entered on the general verdict, from which judgment defendant appeals.
Without detailing the grounds relied upon by appellant on his demurrer to the evidence, his motion in arrest of judgment and for a directed verdict non obstante v-eredicto, his motion for new trial or his specification of errors, it can be stated the principal questions urged by him on this appeal are, (1) there was no competent evidence submitted on behalf of appellee in proof of the fact the truck driver was the employee and agent, of appellant or acting in the scope of his employment and that irrespective of the general verdict the trial court was required to set it aside and render judgment in favor of appellant, and (2) the trial court, under existing facts and circumstances, had no jurisdiction of the person of appellant or jurisdiction to render judgment against him in Allen county, Kansas.
Appellant did not attempt to refute the evidence offered by appellee with respect to the negligence of the driver of the truck and makes no claim here that such negligence was not the proximate cause of the collision. Nor does he contend there was insufficient evidence to justify the jury in fixing the value of the appellee’s automobile at the amount stated in the verdict. It follows that if the conditions disclosed by the record did not require agency and authority of the truck driver to be established by evidence in order to support the judgment rendered by the trial court, appellant’s first contention cannot be sustained.
Heretofore we have referred to the allegations of the petition which in plain and unequivocal language state that at the time of the collision Murray was the agent for and in the employ of appellant and was working for him and was operating in his regular line of business under a permit granted by the state of Kansas. We have stated appellant’s answer was unverified and that except for a .general denial the only other allegation therein contained was a specific denial appellant was guilty of any negligence resulting ih damage to appellee’s automobile and a charge that damage to such automobile, if any, resulted from appellee’s own negligence. We have pointed out appellant did not testify as a witness and offered no testimony of any character in denial of the allegations of agency to be found in the petition. We have indicated, and the fact is, appellee filed no reply to appellant’s answer. And, while it is not determinative of the question, we call attention to the fact that on this appeal appellant does not pretend to claim Murray was not his agent and employee or he was deprived of an opportunity to present evidence to that effect by the trial court. He bases, his claim upon the sole and technical ground that notwithstanding the existence of the factual situation heretofore outlined it is incumbent upon the plaintiff in an action of the character here involved to establish the allegations of agency and authority set forth in his petition by evidence offered at the trial for that purpose. We have concluded our statute and our decisions will not permit approval of the proposition advanced by appellant.
Long ago, the legislature of this state in enacting our present code of civil procedure saw fit to provide (G. S. 1935, 60-729) that certain allegations when incorporated in a pleading were to be taken as true unless denied under oath by a party, his agent or attorney. Included within that category were allegations of any appointment or authority.
It is true, this court has held in many cases that where in an action in which an answer should be verified as required by the statute, if a defendant files an unverified answer and the plaintiff does not challenge the sufficiency thereof but pleads over by filing a reply the plaintiff waives the lack of verification. (See Livingston v. Lewis, 109 Kan. 298, 198 Pac. 952; Cook v Donner, 145 Kan. 674, 66 P. 2d 587; Greensburg Production Credit Ass’n v. Buckner, 152 Kan. 398, 103 P. 2d 881; Brandtjen & Kluge, Inc., v. Lucas, 153 Kan. 138, 109 P. 2d 197, and Schreiner v. Rothgarn, 154 Kan. 20, 114 P. 2d 834.)
So, also in Hamson v. Babbit, 123 Kan. 32, 254 Pac. 332, we held the purposes of a verified answer had been subserved after a defendant had been sworn and testified as a witness and the plaintiff had made no specific objection to the defect in su,ch pleading until it was called to the attention of this court on appeal.
Likewise, it should be noted, that in Collis v. Kraft, 118 Kan. 531, 235 Pac. 862, it was decided an objection to an answer based on its want of verification, where required by the code, must be clearly and precisely raised so that the trial court can understand it, otherwise no reversible error can be predicated on the ruling thereon.
We have not been unmindful of the principles enunciated in the foregoing decisions and recognize them as applicable to the situations involved in their inception. However, they are not determinative of the question presented in the instant case. Here we have no waiver by pleading over in a reply for no reply was filed. Neither do we have a subservient verification as referred to in Hanson v. Babbit, supra, for no witness attempted to deny the agency of Murray under oath or otherwise. Nor do we have a condition similar to that referred to in Collis v. Kraft, supra, for the appellee who stands on his allegations of agency seeks to affirm, not, reverse, the judgment of the trial court. What we have here is a case where not only the appellee, the plaintiff below, but the trial court as well, relied upon the plain language of the statute. True enough, ap pellant in all motions herein mentioned insisted appellee had wholly failed to prove agency but his position was that because some reference was made to that subject by the witnesses in appellee’s case in chief the elicitation of that testimony, even though immaterial under the issues raised by the pleadings, cured the defect in his answer. No such rule prevails. Under the facts and circumstances disclosed by the record appellant’s contention is determined by those of our decisions holding that in the absence of a waiver, or some other action, which subserves the purpose of a verified answer the failure to deny allegations of agency under oath admits the agency to the extent such allegations are well pleaded and relieves the party asserting the same from establishing it by affirmative evidence. (See Stimpson v. Motor Car Co., 114 Kan. 363, 365, 219 Pac. 501; Lumber Co. v. Petroleum Co., 116 Kan. 78, 225 Pac 744; Moore v. Insurance Co., 111 Kan. 420, 207 Pac. 760, and Davidson v. Maryland Casualty Co., 126 Kan. 365, 367, 267 Pac. 1001.) To the same effect, although involving an action founded on a written instrument, is Christy v. Kinsinger, 149 Kan. 437, 441, 87 P. 2d 615. Also, Livingston v. Lewis, supra, which, although it is authority for the rule that verification of an answer may under certain circumstances be waived also recognizes the force and effect of the principle announced in the foregoing cases.
Digressing for the moment from the principal questions raised by appellant we pause dong enough to note his position that the court erred in admitting incompetent evidence. During the course of the trial two of appellee’s witnesses testified that after some little time officers came out to investigate the cause of the accident and that then Murray, in the presence of a number of persons who were present said: “I am awfully sorry this thing happened, but accidents will happen. Now, my company carries insurance, and today being Labor Day they won’t do anything today, but they will have a man here in a couple of days and the whole thing will be straightened up.” Appellant objected to this testimony and moved it be stricken as a self-serving declaration and not a proper way to prove agency by the declaration of the employee. The trial court overruled the objection and admitted the evidence, stating that it was admissible as a part of the res' gestae. Appellant strenuously insists this statement, considering the time and circumstances under which it was made was no part of the res gestae and therefore should not have gone to the jury for consideration by it in deter mining his liability for the negligence of the driver in causing the collision. Perhaps so. There are many decisions indicating his position is tenable. But, irrespective of whether the trial court’s ruling is subject to criticism on the grounds urged, and we do not have the time or space to here determine that question, the admission of such testimony could not have prejudiced appellant’s case since agency of the truck driver was admitted by the answer and the jury would have been required to determine that issue in appellee's favor in the absence of any evidence on that subject. The rule is an appellant must show error of the trial court to his prejudice before a judgment will be reversed. (Phillippi v. Speer, 152 Kan. 325, 103 P. 2d 777.)
We turn now to the final error assigned by appellant. In his demurrer to the evidence, appellant states, and we concede it to be the fact, notwithstanding the substance thereof does not appear in the record, he not only objected to the sufficiency of the evidence but challenged the jurisdiction of the court. His motion in arrest of judgment and for a directed verdict was based on similar grounds. Prior to that time, without questioning the jurisdiction of the trial court in any manner whatsoever, he had filed answer denying generally the allegations of appellee’s petition.
Summarizing, it can be said, his position on this question is that the allegations of the amended petition were so framed that the insurance company was impleaded as the insurer of a contract carrier, which under G. S. 1935, 40-218, would permit the action to be brought in Allen county where the accident occurred. He contends further that when the demurrer of the insurance company was sustained and it went out of the case the trial court then ceased to have jurisdiction of appellant who was a resident of Reno county. We fail to find any merit in this contention. The error in appellant’s position arises because of his failure to make a proper differentiation between the question of general jurisdiction of courts over transitory actions and the subject of venue. The mere fact the venue of a transitory action may be fixed by statute, as it is in this case (G. S. 1935, 60-509), in the county where the defendant or some one of the defendants reside or may be summoned, does not mean that the trial of such an action is necessarily limited to the district court of that county or that such action may not be maintained in any other district court. It simply means the venue of such action is that fixed by the legislature if the defendant objects t-o any other and has not waived the right to make such an objection.
This court has been required on many occasions to pass upon legal propositions similar to that urged by appellant with respect to jurisdiction of the court over defendants and actions of the character herein referred to. In our decisions there is no exception to the general principle of law that where a party voluntarily appears and submits himself to the jurisdiction of the court he thereby waives all irregularities which may have intervened in getting him into such court. (Bury v. Conklin, 23 Kan. 460, and Kipp v. Carlson, 148 Kan. 657, 662, 84 P. 2d 899.) It is only in those cases where, during the trial, a defendant who has made an appearance in an action seeks to avoid the jurisdiction of the court wherein he has entered such appearance, that any difficulty is experienced. Even then, we are not without established precedents. Many decisions could be cited but we shall refer to only a few which in our judgment are determinative of appellant’s contention. In Wible v. Wible, 153 Kan. 428, 110 P. 2d 761, it was held the voluntary appearance by a defendant is equivalent to service under the provisions of G. S. 1935, 60-2515. In Butter Tub Company v. National Bank, 115 Kan. 63, 70, 222 Pac. 754, it was said, one who voluntarily submits himself to the jurisdiction of the court cannot thereafter question such jurisdiction. To the same effect is Kipp v. Carlson, supra. Hanson v. Hanson, 86 Kan. 622, 122 Pac. 100, and Abercrombie v. Abercrombie, 64 Kan. 29, 67 Pac. 539, each determine that any appearance in an action other than to challenge the jurisdiction of the court is a general appearance for all purposes of the action.
With specific reference to what constitutes a general appearance Bank v. Courter, 97 Kan. 178, 155 Pac. 27, holds:
“A general appearance is entered by a- defendant, (a) when he files a motion to make plaintiff’s petition more definite and certain; (b) when he joins in a stipulation that plaintiff may have further time to amend his petition; (c) when files a general denial; (d) when he files an answer to the cross petition of his codefendant.” (Syl. f 3.)
King v. Ingles, 121 Kan. 790, 793, 250 Pac. 306, is authority for the rule that where a defendant in an action appears specially to challenge the court’s jurisdiction by a motion to quash the' service of summons, and in such motion raises an issue of law or fact directed to the merits of the action, he thereby enters a general appearance and a motion to quash should be overruled. So, also, is Suter Bros. v. Hebert, 133 Kan. 262, 266, 299 Pac. 627 (and cases there cited). And, this court has repeatedly held, that a motion by a defendant to set aside a judgment rendered against him which contains both jurisdictional and non jurisdictional grounds operates as a waiver of the jurisdictional grounds and constitutes a general appearance of the defendant, even though designated as a special appearance, and makes the,defendant a party to the action as if he had voluntarily appeared at the trial. (Barnett v. Ins. Co., 78 Kan. 630, 97 Pac. 962, and Matthies v. Union Products Co., 138 Kan. 764, 28 P. 2d 754.)
Appellant urges the rule announced in the preceding cases is not applicable in a case where, as in the instant one, suit is brought against an insurance carrier in a county wherein it may be summoned and the insured is made a party defendant, especially when the insurance carrier escapes liability and is eliminated from the action as a party defendant through the medium of a demurrer to the evidence. To support his position he cites Schoonover v. Clark, 155 Kan. 835, 130 P. 619. Without attempting to discuss the details of that case it can be said it is authority for the matters therein determined but so far as appellant’s contention is concerned all it holds is, that having filed a timely motion to quash service and at no time having waived venue, the defendant who was the owner of a truck insured by an insurance company which was not liable under the provisions of its policy, could not be required to defend an action in the county wherein it was instituted. A later decision, Volok v. McCarter Truck Line, 156 Kan. 128, 130, 131 P. 2d 713, definitely determines appellant’s contention. In that case it was said: “But when the insurance company ceased to be a defendant the question of jurisdiction as to the remaining defendants, who had not waived jurisdiction, was to be determined as though the insurance company had not been joined as a defendant in the first instance.”
There being no error in the overruling of either the demurrer to the evidence, the motion in arrest of judgment and for a directed verdict, and the motion for a new trial, and it appearing that no prejudice resulted to appellant in the admission of the evidence objected to, the judgment rendered by the trial court should be and the same is affirmed. | [
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The opinion of the court was delivered by
Hoch, J.:
This is an appeal from an award under the workmen’s compensation act based upon the freezing of claimant’s fingers while helping to dig a ditch. The only question raised is whether the claimant suffered an “injury by accident arising out of and in the course of employment.” (G. S. 1935, 44-501.)
Lon Murphy, the claimant, was sixty-six years old. For several years he had worked as a janitor doing inside work, but had been unemployed for six months or more prior to the date of the injury. On January 24,1943, he was hired as a laborer by the I. C. U. Construction Company, respondent, which was doing work under gov ernment contract on an army air base at Independence, Kan. He reported for work the following morning, January 25, and went to work at 8:30 with a gang of men, digging ditches for foundations for buildings. He was using a sharpshooter, pick and shovel. He worked until five-thirty in the evening, with thirty minutes off at noon. After quitting work he rode back to town in a closed car. After he reached home and put his hands in cold water he discovered that fingers on both hands had been frostbitten. He called a doctor ' the next day and was sent to the hospital for treatment, and was there from January 28 to January 30. About two weeks later he was again hospitalized for a period of about two weeks.
In May, 1943, he filed application for compensation. On August 24, 1943, the commissioner made an award in his favor based on partial loss of use of the index, middle and ring fingers of the right hand. The award covered a period of forty-three and a half weeks at the rate of eighteen dollars a week, together with further medical and hospital treatment in an amount not to exceed five hundred dollars, and commissioner’s and reporter’s fees. Upon appeal to the district court the findings and award of the commissioner were affirmed and this appeal followed.
Appellants make two contentions; first, that there was no evidence that the freezing of appellee’s hand took place while he was at work; second, that frostbite does not constitute an “injury by accident” within the meaning of our compensation act.
The first contention is not strongly urged and will be treated briefly. Appellants say that appellee was warmly dressed while at work, did not feel anything wrong while at work, and that they “are inclined to think that he would come nearer freezing his hands on the way home after he had stopped using them than he would on the job while using the pick and shovel or sharpshooter and thus in a way submitting his hands to exercise.” This was clearly a question of fact. • Claimant testified that he rode out to the air base in a bus, reported to the foreman at the company’s office building, and was taken from there to the place of work by the foreman in a truck, together with other workmen. In the evening he rode home in a closed car. On this question we need not further review the evidence. There was ample evidence to support the finding that claimant’s injury was suffered during the hours he was working. Unlike the trial court which reviews the record as a trier of facts, our jurisdiction is specifically limited to questions of law (see pro viso in G. S. 1935, 44-556) and we are only concerned with evidence which supports or tends to support the findings. (Thompson v. Swenson Construction Co., ante, pp. 49, 56, 145 P. 2d 166; Goss v. McJunkin Flying Service, 157 Kan. 684, 143 P. 2d 659.)
Appellant’s second and principal contention is that appellee did not suffer an “injury by accident.” There is a marked conflict upon the question of whether injury suffered from heat or cold due to weather conditions is to be classed as an accident within the meaning of workmen’s compensation acts. After examining the textbooks, the cases cited by both parties, and many others, we have no hesitancy in saying that the great weight of authority is that frostbite is such an “accident,” at least, if the conditions from which it results are of a severe and unusual character and the workman by virtue of the circumstances under which he works is subjected to an unusual hazard not common to workmen generally in the locality. The rule is variously phrased, but the same idea occurs repeatedly in the cases from many jurisdictions. The same, rule is applicable to injuries from exposure to the elements whether it be heat or cold. We find such expressions as the following: “injurious consequences resulting from exposure to a sudden, extreme and exceptional degree of cold”; “extraordinary exposure to cold”; “it is necessary that it appear that the working conditions were unusual”; “peculiarly exposed to the risk of such injury” (71 C. J. 622, 626, 627, 759; 28 R. C. L. 795, 796.) In an annotation in 13 A. L. R., pages 974 et seq., on the subject it is stated:
“The rule is generally recognized, however, that if an employee, by reason of his duties, is exposed to a special or peculiar danger from the elements — that is, one greater than other persons in the community — and an unexpected injury is sustained by reason of the elements, the injury constitutes an accident arising out of and in the course of the employment.”
The same general rule is restated in supplementing annotations in 13 A. L. R. 974; 16 A. L. R. 1038; 25 A. L. R. 146; 40 A. L. R. 400; 46 A. L. R. 1218; 53 A. L. R. 1084; 83 A. L. R. 234-240. (For cases subsequent to 83 A. L. R., see A. L. R. Blue Book, 1943 Revision, pages 795-797.)
In 1 Schneider’s Workmen’s Compensation Law, 586, 589, numerous cases are summarized with reference to frostbite or freezing from exposure. The holding in most of the cases there cited is in line with the general rule.
A few of the cases most frequently cited may be briefly noted. In Kaiser v. Indus. Comm., 136 Ohio St. 440, 26 N. E. 449, the claimant was an employee at a filling station and was peculiarly susceptible to frostbite on account of the. sensitiveness of his feet due to previous freezing. He was compelled to work in the cold continuously for a long period of time in servicing cars. Compensation award was affirmed on the principal ground that the claimant’s hazard was different from that of people generally who happened to be out of doors in that locality.
In Larke v. John Hancock Mutual Life Ins. Co., 90 Conn. 303, 97 A. 320, the employee was a traveling representative of an insurance company and suffered a frozen nose while traveling fifteen or twenty miles on “an unusually cold day.” His business required him to visit definite persons and places at definite times, irrespective of weather conditions. The Connecticut statute did not contain the word “accident” but only the words “personal injury.” The court said, however, that even if the term “personal injury” be given its narrowest construction and confined to injuries of accidental origin, it would include “any form of bodily harm or incapacity, whether arising by direct contact, or lesion caused by external violence or physical force, or untoward mishap.” (Italics supplied.) Award was upheld on the ground that the claimant was subjected to “unusual exposure” “due to his employment” and that “the weather caused a frostbite.”
In Gibbons v. United Electric Railways Co., 48 R. I. 353, 138 A. 175, the claimant was employed in shoveling snow from the car tracks and while working continuously for twenty-four hours his toes were frostbitten. The Rhode Island court held that the injury was an accident, saying that the word “accident” should be construed in its “popular and ordinary sense of an unlooked-for mishap, an untoward event, which is not designed or expected and being unexpected has in it an element of suddenness.” The award was upheld on the ground that while cold is one of the forces of nature to the effect of which all are exposed, the claimant’s exposure for such a long period was a special condition which produced his injury.
In Days v. S. Trimmer & Sons, Inc., 176 App. Div. 124, 162 N. Y. Supp. 603, the claimant was employed as a helper in delivering coal to retail customers. His fingers and toes were frostbitten while delivering coal on “a very cold and stormy day.” The New York court held that the injury was accidental.
The John McManaman’s Case, 224 Mass. 554, 113 N. E. 287, is one of the earlier cases frequently cited. The claimant was a longshoreman and froze his fingers while unloading a steamer when the temperature 'stood at four degrees below zero. The court said that he was exposed to “materially greater danger and likelihood of getting frozen than the ordinary person or outdoor worker on the date in question” and upheld an award.
In State, ex rel. Virginia and R. L. Co., v. District Court, 138 Minn. 131, 164 N. W. 585, the claimant froze his thumb while cutting and handling timber in the snow when “the weather was severely cold.” The award was upheld, the Minnesota court stressing the fact that the employee had no facilities for warming himself, that the building of fires was not permitted, and that his work “subjected him to a risk of freezing not shared by the generality of the community.” Numerous cases were cited in support of the finding that the injury w;as an accident arising out of the employment.
In Gates v. Central City Ass’n, 107 Colo. 93, 108 P. 2d 880, the employee was an artist and froze his fingers while painting murals in an arcade which was open at both ends, permitting the cold wind to sweep through. The claimant had desired to do the work in the spring but the employer insisted that it be completed in the fall. In upholding recovery the court stressed the fact that the artist had no option as to where and when he would work and'that he was subjected to an exposure not common to people of the community ordinarily engaged in doing outdoor work in cold weather.
A case quite similar to the one before us is State, ex rel. Nelson, v. District Court, 138 Minn. 260, 164 N. W. 917. The employee was a janitor ordinarily performing the usual inside work of a janitor. He was injured from freezing while shoveling deep snow -when “the weather was very cold.” The Minnesota court said— after reviewing various authorities — that “the trial court was justified in finding that to an appreciable extent the relator was more exposed to the risk of injury from freezing than the generality of workers, and that the added risk was because of the character of his employment.”
(In support of a view contrary to what has been said, supra, see L. R. A. 1916A, 347; 28 R. C. L. 806, 808.)
We come to our Kansas cases. Appellants cite three of them, relying principally upon Wright v. Keith, 136 Kan. 393, 15 P. 2d 429. Syllabus 2 reads: “The freezing of a diseased foot of a work man while working in the mud and slush of a wheat field in erecting an oil-well derrick on a mild December day, where the minimum temperature was 28 degrees, lacks the elements of an accidental injury to make it a compensable injury under the compensation statute.” In the body of the opinion it was said: “The climate and soil conditions under which the claimant was working at that time were-not peculiar to the oil industry, but were in all respects similar to what any outdoor workman might expect to encounter at that time of year and in that vicinity.” Attention was, also called to the fact that the claimant was not an amateur at the business, having followed such work for twenty-two years in all kinds of weather. A number of cases, including some of those cited, supra, were reviewed and attention called to the fact that in most cases where recovery had been permitted there were unusual and unexpected climatic changes or conditions. The opinion stressed the fact that the temperature was quite normal in the case being considered, with no accompanying circumstances in any way out of the ordinary. No “untoward or unexpected event” had occurred.
A second Kansas case to which appellants call our attention is Hoag v. Laundry Co., 113 Kan. 513, 215 Pac. 295. In that case an engineer was overcome by heat while cleaning engine boilers in the regular course of his work. The heat reduced his physical resistance, he contracted pneumonia and died. Compensation was denied on the ground that death did not result from personal injury by accident. However, it was said in the opinion that although the workman was an engineer of experience and knew about the heat of boilers that “what happened to him was unexpected, and if what happened had been an identifiable injury then occurring, the event could have been described as personal injury by accident.” It was also stated in the opinion that “It is now generally recognized that what is known as heat stroke is an accident within the meaning of compensation laws and frostbite has been placed in the same category.” (p. 515.) (Italics supplied.)
The third case cited by appellants is El Dorado Refining Co. v. U. S. Fidelity & Guaranty Co., 157 Kan. 198, 139 P. 2d 369, in which the Wright case, supra, was noted with approval. The case is not helpful to appellants. It involved an injury alleged to have been caused over a course of years by inhaling poisonous gases incident to the operation of an oil refinery where the claimant was employed. Plainly the alleged injury was an occupational disease, which we have frequently held is not covered by our compensation act.
Some Kansas cases more or less in point in which recovery was permitted may now be noted.
Gilliland v. Zinc Co., 112 Kan. 39, 209 Pac. 658, was a case in which a workman employed to haul ashes became overheated, drank ice water, and suffered a fatal congestion of the vascular system.
Mathis v. Ash Grove L. and P. C. Co., 127 Kan. 93, 272 Pac. 183. A workman at a cement plant was required to go back and forth between two quarries connected with a three-steel-rail railroad in order to keep the fires going under the boilers. He was killed by lightning while walking on the railroad, which was located near high-power electric lines. The issue was raised by demurrer, and this court held that there was a prima facie showing that the claimant was injured “by an accident arising out of and in the course of his employment.”
Davis v. Packing Co., 101 Kan. 769, 168 Pac. 1111. It was contended that the claimant died as a result of his foot being frozen while at work in a packing house. Although a judgment in his favor was reversed, it was on the ground that there was “no evidence on which to base the conclusion that the foot was frozen while at work in the packing house.”
In Chop v. Swift & Co., 118 Kan. 35, 233 Pac. 800, the claimant was employed in a packing plant in carrying links of cold sausage from one part of the plant to another. In carrying them she draped them on her arm. The-sausages were very cold and the temperature of the room was low. After some time she suffered disability in the arm said to have been caused by the exposure. It was held that the injury could not have been regarded as ¡ accidental. The case is readily distinguished from the instant one. There was no unexpected circumstance. There was nothing unusual about the conditions in which the employee worked.
Similar to Chop v. Swift & Co., and equally distinguishable from the instant one, is the case of Taylor v. Swift & Co., 114 Kan. 431, 219 Pac. 516. In that case the employee worked in and out of a meat cooling room, the temperature inside being cold and that outside being hot. His disability was alleged to have been caused by exposure to the alternating heat and cold. Again there was nothing unusual in the conditions or circumstances under which he worked and it was held that his affliction did not arise from an accident.
The rule is firmly established that the Workmen’s Compensation Act is to be liberally construed. (Chamberlain v. Bowersock Mills & Power Co., 150 Kan. 934, 96 P. 2d 684.) In line with that rule we have in numerous cases broadly construed the words “by accident.” An important aspect of such an' issue was considered in the recent case of Peterson v. Safeway Stores; ante, p. 271, 146 P. 2d 657. We there held again, following the leading case of Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793, that injury by a strain sustained in the performance of usual tasks -performed in the usual manner may constitute an “accident,” even though there be no event in the nature of an outside and intervening cause.
The instant case may be readily distinguished from Wright v. Keith, supra. In that case the temperature was thirty-nine degrees above zero part of the day and the lowest temperature was twenty-eight. The day was properly described in the opinion as “a mild December day.” The claimant was thoroughly used to the kind of work he was doing, having., been doing it for twenty-two years. There were no unusual climatic conditions. There were no sudden changes of temperature. . •
We think the instant case is also consistent with Rush v. Empire Oil & Refining Co., 140 Kan. 198, 34 P. 2d 542. In that case the workman was employed to gather waste paper and trash from the alleys of a town built and maintained by an oil company for its employees. He was provided with a team and wagon. When a rain and windstorm came up he led the team to the side of a garage and while he was standing there the wind blew the garage over and he suffered severe injuries. Compensation was denied on the ground that the injury did not “arise out of” the employment. In the opinion it was said:
“When the injury occurs from the elements, as from lightning, cyclone, or the like, the majority of the cases hold, and the better reasoning is, that under statutes like ours . . . there is no liability unless the employment in some specific way reasonably can be said to have increased the workman’s hazard to such element,” and that there can be no recovery “unless some causal connection is shown between the employment and the injury caused by the elements.” (p. 201.)
Clearly the hazard of the falling garage was not an incident which had any causal connection with the employment.
' In the instant case the weather was mild on January 24, the day appellee was hired. That night a cold wave came — described by the commissioner, perhaps inaccurately, as a “blizzard.” On the morn ing of the 25tb — the day appellee went to work — the temperature was 5 degrees above zero. The temperature at sunset was 18 above zero, and the mean temperature for the day was 12% above zero. It was an unusual and extremely cold day for that locality. Appellee, a man sixty-six years old, was unaccustomed to outside work. He was hired in connection with construction of an army air base vitally related to the war emergency. He worked in the intense cold from eight-thirty to five-thirty with only a half hour off at noon. He wore two pairs of gloves — -a pair of jersey gloves and a new pair of leather gloves over them. The ground was frozen six or eight inches down and required the use of a pick. It was so cold that appellee did not have his gloves off even during the half hour at noon. Unlike the situation in the Rush case, supra, appellee’s employment in such extreme and unusual weather, with no fire and no fuel for making a fire' provided so that the workmen might occasionally warm themselves, did “increase the workman’s hazard to such element.” A causal connection between the employment and the injury from freezing is apparent. And there was ample medical testimony to connect the frostbite and the work appellee was doing. Upon these facts the commissioner and the trial court found that appellee suffered personal injury by accident arising out of and in the course of his employment. We cannot say, as a matter of law, that such a finding was erroneous.
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The opinion of the court was delivered by
Hoch, J.:
We are asked to construe a will. A testatrix devised certain real estate to her grandchildren — children of her three daughters. The question is whether the division is to be made per stirpes or per capita. Reversing the probate court the district court directed a division of interest to the grandchildren in equal shares. From that order two of the three daughters and their children bring this appeal.
Frances R. Bunnell, a resident of Cowley county, executed her last will and testament on May 28, 1924. She died in 1931 and the will was admitted to probate. At the time the will was made the testatrix had three married daughters — her only children — and twelve grandchildren. All were living at the time of her death and all were living when this action was tried. No grandchildren were born subsequent to the making of the will. The three daughters are Emma Covert, Hattie Kingsley, and Eva Daniel. Emma has one child, Hattie has five children, and Eva has six children. The youngest of the grandchildren became twenty-one years old in February, 1943.
The testatrix provided that all her property, real and personal, should be held in trust by G. G. Gary for purposes indicated. Gary duly qualified, and has since acted as executor and trustee. She made a number of specific cash bequests which were carried out and about which there is no contention. Among these was a bequest of $1,000 to each of her grandchildren upon reaching the age of twenty-one, except as to one named grandchild, for whose benefit a special trust fund of $2,000 was created. The trustee was directed to sell certain real estate located in Winfield, Kan., and to hold and treat the proceeds the same as provided for other personal property.
The residuary personal property was to be divided among the three daughters of the. testatrix, share and share alike, with provision that if any of the three daughters passed away before she did the child or children of such predeceased daughter should take the mother’s share. Household goods were to be equally divided among the three daughters and any articles they did not desire to retain were to be sold and the proceeds divided equally among them.
Included in the trust was certain real estate in Butler county. That is the only property directly involved in this litigation. The trustee was directed to hold and manage such property,- pay taxes, collect rents, royalties, and other income and distribute the net income in the same manner as stated, supra, for the residuary personal property. The trust was to continue “as long as oil'or gas is being produced from said land or any part of the same, except as stated in the next paragraph.” (Italics supplied.)
The instant controversy relates to the “next paragraph” (supra) and particularly to the portion which we have indicated by italics, and is as follows:
“Whenever oil or gas ceases to be produced from said land in paying quantities, then the said trustee shall sell said land for the reasonable value thereof, and at the best price obtainable cash in hand, and divide the net proceeds of the same in accordance with and in the same proportion and for the same beneficiaries as named above as being entitled to receive from said trustee the net incomes from the rents, incomes, profits and royalties from said land: Provided, however, That upon the attaining to the age of twenty-one years of the youngest of the grandchildren mentioned in this will, then my said trustee in case said trust has not been fully executed, shall execute and deliver to the then surviving children of my said daughters a good and sufficient deed to the said land and said trust shall thereupon terminate.’’ (Italics supplied.)
It will be noted that the real estate trust was to terminate upon the happening of either one of two events — first, whenever production of oil or gas in paying quantities should cease; and second, when the youngest grandchild should reach the age of twenty-one. Inasmuch as the land was still producing oil and gas when the youngest grandchild reached the age of twenty-one — and apparently was still so producing when this action was brought — the first contingency became impotent. In case the trust were to terminate by failure of the land to produce oil and gas the land was to be sold and the proceeds distributed in the same manner as the net income and the residuary personal property had been divided. If the trust terminated upon the happening of the second contingency — the one here involved — the land was to be deeded “to the then surviving children of my said daughters.” •
As heretofore noted, the probate court held that paragraph 11, swpra, provided for distribution per stirpes, of title interest in the land. That construction would give to the daughter of Emma a one-third interest; to the five sons and daughters of Hattie together a one-third interest, and to the six sons and daughters of Eva a one-third interest. Upon appeal the district court held that distribution should be per capita, which would give each of the twelve grandchildren a one-twelfth interest. In this connection it may be noted that in the lower courts Hattie and her five children asked that distribution be made per stirpes, although such distribution would give them only four-twelfths as against five-twelfths under a per capita distribution. They take the same position here, having joined with Emma and her one daughter in this appeal.
On its face and considered by itself alone the controversial portion of paragraph 11 presents no ambiguity. The devise was to “the then survivng children of my said daughters.” The expression “surviving children of my said daughters” clearly and definitely designates a class. Where a devise is made to members of a class the presumption is that division is to be made equally among members of the class. (69 C. J. 280, 289; 28 R. C. L. 267, 268; Thompson on Wills, 2d ed. 400.) This general rule is applied, ordinarily, where the bequest or devise is to grandchildren, regardless of the fact that some families will thus take more than others. (16 A. L. R. 51.) In McIntire v. McIntire, 192 U. S. 116, 121, 48 L. Ed. 369, 371, a case often cited, it was stated that the general rule of construction is that “in the case of a gift to the children of several persons der scribed as standing in a certain relation to the testator, the objects of the gift take per capita and not per stirpes.”
Appellants’ principal contention is that generally throughout the will the testatrix provided for distribution per stirpes, and that the provision here at issue should be construed to make like division, under the well-established rule that in construing a will the instrument is to be considered as a whole in order to determine the intent of the testator.
The cases are legion which deal with construction of portions of a will by reference to other provisions of the instrument. Within this broad class are those which consider the effect to be given to provisions elsewhere in a will for division per stirpes. (See 126 A. L. R. 166, supplementing 16 A. L. R. 30; 31 A. L. R. 802, and 78 A. L. R. 1393.) There is conflict in the decisions, though the apparent lack of harmony arises in considerable part, at least, from variance in the words and phrases under scrutiny in the different cases. The question in our present case would be more difficult if it could with more reason be said that the provision being considered is ambiguous — as it was in many cases which are cited upon the proposition. It is sufficient here to examine other provisions of the instant will to determine whether they are such as to overcome the .very strong presumption presented by paragraph 11 in favor of a per capita division of title interest, and to compel the conclusion that the testatrix intended such division to be made per stirpes.
' The other provisions of the will which provide for per stirpes division are: (ct) division of the residuary personal property among the three daughters of the testatrix or to the children of any deceased daughter; (b) similar division of the proceeds of the sale of the Cowley county land; (c) similar division of income from the Butler county land and of proceeds from sale of the land if the trust should terminate before all of the grandchildren reached the age of twenty-one. Over against these provisions, for division per stirpes should be noted, however, that the testatrix made to each grandchild the same specific bequest of one thousand dollars — except as to one grandchild, as heretofore noted. Appellants also put some stress upon the fact that in paragraph 11 the testatrix used the words “surviving children of my said daughters” instead of using the words “surviving grandchildren.” They contend that this shows an intention to divide by families, but cite no case supporting that contention and we have found none. If the provisions were otherwise ambiguous the contention might have some persuasion.
Appellants’ position really comes down to a contention that it would be an inconsistent and illogical thing for the testatrix to distribute her estate partly per stirpes and partly per capita, and that where most provisions of the will call for division per stirpes the instrument should be harmonized by so construing the provision at issue. We cannot reach that conclusion. In the first place, the testatrix was under no compulsion to pattern her will upon anyone’s idea of what would be consistent or logical. In the next place, the provision in question is the only one in which the beneficiaries are to get title to real estate and they are to get such title only when the youngest has reached the age of twenty-one before the trust has otherwise terminated. Even under the test of logic or consistency can it be said that no intelligent purpose is indicated by providing for a different disposition of property if the trust continues until all grandchildren are twenty-one years old? We think not.
We find nothing in the other provisions of the will, above recited, which impels a conclusion that the testatrix did not intend to divide the interest equally among her grandchildren in case they took title to the land under the will. On the contrary, it could be argued with some force that the fact that she understood — as shown elsewhere in the will — just how to provide for distribution equally among the families of her three daughters and did not do so in the case at issue indicates in itself that she intended distribution to be per capita. That reasoning was adopted in Davis’s Estate, 319 Pa. 215, 179 A. 73 (1935), where it was said: “It is further to be noted that testatrix knew how to direct a per stirpes distribution when she so intended. . . . On the other hand, no words of stirpital distribution were used in the gifts to her daughter’s and brother’s children. Clearly, therefore, testatrix did not intend such a distribution to those children.” (p. 219.)
We think the trial court correctly construed the will and the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action to quiet title to a half section of Washington county land which was devised by the will of the late Sylvanus S. Longley thus:
“I give to each of my six children, Wm. H. Longley, Jeff C. Longley, Jessie Longley Minshal, Bertha M. Longley Lueck, Vesta Longley Shearborn and Dorothy Longley McLeland, one sixth part of my estate share and share alike with the following provisions and exceptions.
“The executors of this will are hereby directed to hold Jessie Longley Minshal’s [share] in trust and earnings of it to be paid to her while she lives and to go to her children at her death. They may invest it in interest earning securities and pay her the interest and they may buy real estate for her use if she wishes and may sell it when they think best, Provided further, that if any of my children should die before this will goes into effect leaving no heirs of the body, such deceased child’s share shall be equally divided between my other children, Provided further that if any of my children should die before this will goes into effect leaving a minor child or children the executors of this will are hereby directed to act as guardian of such minors’ share and help them as they need it and they think best.”
The testator, a resident of Washington county, died on July 26, 1923, and his will was admitted to probate on September 27, 1923. On that date an executor was appointed and qualified. On October 20, 1924, upon application of the executor, the probate court made an order interpreting that provision of the will which conferred upon the executors the authority quoted above, pertaining to that portion of the estate devised to Jessie Longley Minshal. The probate court held that provision to be null and void. There was about $9,000 in cash in the hands of the executor available for distribution at the time that ruling was made, and Mrs.' Jessie Longley Minshal received her share of that sum as did her brothers and sisters. Following that1 ruling of the probate court in 1924 the executor never did assume control of that portion of her father’s real estate devised to Mrs. Minshal.
Early in 1940 the executor filed a petition in the probate court for final settlement. Notice thereof was duly published. The three children of Mrs. Minshal filed an answer alleging that they were of full age and were familiar with the terms of their grandfather’s will and claimed no interest in the property. On March 15, 1940, hearing was had before the probate court. It found that the estate was fully administered, and that the only property for distribution was the real estate of present concern. The court also found that William H. Longley, one of the sons of the testator, had died and that the share of the said William had been conveyed by his widow and sole heir to the remaining devisees of the testator; that the children of Mrs. Minshal had no interest in the real estate; and that it should be assigned in equal shares to the five surviving devisees, including Mrs. Minshal. All of which was done; the estate was closed; and the executor was discharged.
Some two and a half years later, on September 23, 1942, the five devisees entered into a contract with Donald A. and Charles L. Bitzer, plaintiffs herein, to sell them this half section of land for $12,800, and agreed to furnish a merchantable title. Some question was raised touching the sufficiency of Mrs. Minshal’s title, so the parties concerned agreed to place her share of the purchase price in escrow to await the result of a test case to determine the question.
Hence this lawsuit to quiet the title of the purchasers. The trial court appointed F. R. Lobaugh, Esquire, to serve as trustee for the unborn children of Mrs. Minshal. The trustee filed an answer which challenged the jurisdiction of the probate court to make the order of October 20, 1924, construing the will of testator in respect to the restrictions imposed by its terms on the devise and bequest to Mrs. Minshal. He alleged that the probate court did not have jurisdiction to render the decision and order announced by it on March 15, 1940, when the matters pertaining to the final settlement of the estate were before it for determination.
Mrs. Minshal answered, pleading her title based on her father’s will; that she was a widow seventy years old; that her three children had conveyed their respective interests to her. She also pleaded the judgment of the probate court of March 15, 1940, which had decreed that she was vested of an absolute undivided one-fifth interest in the described land, and that such judgment was final and conclusive.
The other defendants, although all were duly summoned, filed no answer.
At the trial, the evidence developed no dispute of fact. The files of the probate court relating to the probate of the testator’s will in 1923 and the probate court’s orders were introduced in evidence, likewise that court’s order of 1924 for the distribution of $9,000 between the six children of the testator, including Mrs. Minshal; also the probate court’s finding and judgment declaring void and of no effect that portion of the testator’s will which directed the executors to hold and manage Mrs. Minshal’s share of the estate, and holding that she took her share of the estate free from any trust or claim whatsoever.
There was also offered in evidence the proceedings which pertained to the final settlement of the estate and the discharge of the executor on March 15, 1940, in which among other matters the probate court found that all the valid provisions of the will of Sylvanus S. Longley had been fully complied with; and that the widow and sole heir of William H. Longley, deceased, one of the devisees, had conveyed her interest in the real property to the other devisees; and—
“That the provisions of said last will and testament in which the testator attempts to create a trust for Jessie Longley Minshall is void and was held to be void by the order of this court on the 20th day of October, 1924, and that by reason thereof the said Jessie Longley Minshall takes her interest in said estate absolutely and her children have no right, title, interest or estate therein.
' “The court further finds that the beneficiaries of said estate are now Jeff O. Longley, Jessie Longley Minshall, Bertha M. Longley Lueck, Yesta Longley Shearbom and Dorothy Longley McLeland, and that each are entitled to a one-fifth interest in said estate.”
One of the devisees, Bertha M. Longley Lueck (Mrs. C. D. Lueck), gave testimony touching the family relationship of the parties concerned — that Jessie Longley Minshal was 69 years old, that her husband had died in 1925, that Jessie’s three children had all attained their majority; that the youngest of them was bom in 1907; that Jessie’s husband had operated a grain elevator and speculated on the board of trade, and that Jessie’s father disapproved of such speculation, hence the provisions of the will for the management of Jessie’s share of the estate by the executors; that Jessie owns her home, but was in poor health; one of her arms was swollen to three or four times its normal size, and that one of her eyes had been operated on for a cataract and the other eye was similarly affected and requires an operation as soon as she can raise the money; that Jessie earns her living by'quilting, and that she has no means except her share of the purchase price of the farm which is being held in escrow to abide the determination of this action to quiet title.
Other matters somewhat relevant to the issues were presented to the court but need not be detailed here.
In an extended opinion the trial court narrated the pertinent facts summarized above, and held that the ruling of the probate court of 1924 which set at naught the provisions for the management of Mrs. Minshal’s share of the estate was void. So too, the trial court held that the probate court proceedings in-1940 touching the final settlement of the estate, that construction of the will, and the assignment and distribution of the real estate to the surviving devisees including Mrs. Minshal were invalid. Its most pertinent findings read:
“(2) That the provisions and exceptions contained in that part of the last will and testament of Sylvanus S. Longley, deceased, herein designated as paragraphs (2) and (3), constitute a valid testamentary trust in the nature of a spendthrift trust for the defendant, Jessie Longley Minshall, during her lifetime.
“(4) That that part of the order of said Probate Court, made and entered on or about March 15, 1940, declaring such provisions of said last will and testament inoperative and void, and holding and determining that the defendant, Jessie Longley Minshall, was the absolute owner of an undivided interest in said real property as devisee . . . was, to such extent, void.”
From a judgment in 'accord with the trial court’s findings and conclusions just quoted, the plaintiffs and Mrs. Minshal appeal. The briefs suggest various questions, but in our view the Controlling one relates to the significance which should be attached to the judgment which the probate court rendered on March 15, 1940, from which no appeal was taken.
Whatever limitations inhered in the jurisdiction of the probate court in 1924 when it first held invalid the restrictions upon the testator’s devise and bequest to his daughter, Mrs. Minshal — and something could be said in support of that holding — there should be no serious question touching the scope of that court’s jurisdiction to render the decision it did make on March' 15, 1940, since the new Probate Code of 1939, had taken effect on July 1,1939. (G. S. 1941 Supp. 59-la01 et seq., and particularly 59-301.) Under the provisions of the new code, the original jurisdiction of the probate court was extended so as to invest it with all necessary legal and equitable power to deal judicially with the administration of estates. Its errors, if any, have to be corrected by a timely appeal to the district court. (G. S. 1941 Supp. 59-2401 et seq.; Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438; Yeager v. Yeager, 155 Kan. 734, 129 P. 2d 242; Swisher v. Bouse, 155 Kan. 797, 130 P. 2d 565; Egnatic v. Wollard, 156 Kan. 843, 137 P. 2d 188.) See, also, 11 Kan. Bar Journal, 134-143.
In the instant case there is-no suggestion that there was any want of conformity with the statute (G. S. 1941 Supp. 59-2247) in the executor’s petition for final settlement of the testator’s estate nor in its presentation to the probate court for adjudication, nor in the scope of the probate court’s decree as prescribed in G. S. 1941 Supp. 59-2249 — part of which paragraph is most pertinent here. It reads:
“Upon such settlement and allowance the court shall determine the heirs, devisees, and legatees entitled to the estate and assign the same to them by its decree. The decree shall name the heirs, devisees, and legatees, describe the property, and state the proportion or part thereof to which each is entitled. Said decree shall be binding as to all the estate of the decedent, whether specifically described in the proceedings or not. . . . When the final decree includes real estate, such decree, or a certified copy thereof, may be entered on the transfer record of the county clerk of the proper county.”
And since the probate court had jurisdiction to render the decree it made on March 15, 1940, and that decree was never challenged by appeal, it is, as the statute declares, “binding as to all the estate of the decedent, whether specifically described in the proceedings or not.”
It therefore follows that the conveyance of Mrs. Minshal’s share of the real estate to the plaintiffs was precisely as good as that conveyed to them by the other devisees; and the title thereby vested in plaintiffs was good and merchantable; and plaintiffs were entitled to a decree quieting their title in accordance with the prayer of their petition.
The judgment is reversed with instructions to render judgment for plaintiffs. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover on a policy of insurance and from an adverse judgment the plaintiff appeals.
In the trial court a jury was waived and the cause was submitted on plaintiff’s petition and on stipulated facts. The defendant filed no answer, but it was agreed that it denied liability generally. For present purposes it may be said that it was alleged in the petition that on March 5, 1926, Frank S. Kenyon, bom September 6, 1889, procured from the defendant company a policy of insurance on his life for $2,000, the beneficiary being his wife, Rose L. Kenyon, the policy containing provisions for waiver of premium and for certain benefits in the event of insured’s total disability before attaining the age of sixty years; that the annual premium was paid each year as the same fell due until March 5, 1938, when two extension agreements were made for cash considerations, the latter extending time of payment of. the premium until August 5, 1938; that Kenyon on August 1, 1938, suffered a coronary thrombosis and collapsed, and was thereafter totally disabled until his death on April 14, 1939. Allegations concerning notice to the company and its denial of liability need not be detailed. Plaintiff alleged she was entitled to recover the sum of $2,000 (less a loan on the policy) disability benefits and interest thereon, or a total of $2,038.39 with interest from June 14,1941, for which she prayed judgment.
The following is a summary of the stipulated facts. On March 5, 1926, the defendant issued a policy of life insurance to Frank S. Kenyon, the annual premium being $67.94. Details of the policy will be set forth later. Kenyon paid the initial and other premiums on March 5 of each year until 1938 when the time for payment of premium was twice extended under agreements of like form. Details of the second agreement will be later mentioned. On August 1, 1938, Kenyon suffered a coronary thrombosis; thereafter he was continuously rendered incapable of following a gainful occupation from August 1,1938, until his death on April 14,1939. About thirty days prior to August 5, 1938, a notice was mailed to the insured advising him that August 5, 1938, was the last day for payment of premium under the extension agreement and shortly prior to August 5, 1938, a second notice was sent. On the 9th or 12th of August, 1938, a son of the insured took the second notice to the office of the company’s state agent in Topeka and advised the agent of the condition of his father and asked that disability benefits be granted and that payment be waived. The agent wrote the home office and advised it of the last above facts and' later the home office wrote its agent and directed that he advise Kenyon and those interested that for reasons stated in its letter, to which reference will be made, disability benefits could not be granted to Kenyon. The son also consulted with the state insurance department and copies of certain letters between it and the company were attached and will be mentioned later. About November 14, 1938, the company placed the policy upon extended term insurance for the amount of $1,635 after advising Kenyon’s son that was the only thing which could be done under the terms of the policy.
So far as need be noted the policy of insurance, dated March 5, 1926, and showing age of insured to be 36 years, stated that the company would pay to Rose L. Kenyon, beneficiary, the sum of $2,000 upon receipt of proof of death of Frank S. Kenyon, the insured, or $4,000 if death resulted from accident, as defined, and if insured was totally and presumably permanently disabled before age 60 would pay him $20 per month during such disability, besides waiving premium payments, all upon the conditions set forth in section 3. The policy further stated it was issued in consideration of the payment of the first premium of $67.94 and of the payment to the company of $67.94 (of which $2 was the premium for double indemnity benefit and $7.98 the premium for disability benefits) on the fifth of March thereafter until death of the insured. Section 3 of the policy provided for benefits in event of total disability. Among other provisions therein, it was provided that if, while no premium was in default, the insured should furnish to the company due proof that he was totally and permanently disabled, the company would pay him a monthly income of $20 per month beginning upon receipt of due proof of disability while total and permanent disability continued, and would also after receipt of due proof, waive payment of each premium as it thereafter became due during such disability. The policy also bore a printed endorsement noted as “Supplementary Benefits” to section 3 and which contained two paragraphs. The first provided that if while no premium was in default the proof furnished was such as to entitle the insured to the benefits provided in section 3, and if due proof was also furnished that such disability had been continuous since its beginning, the company would begin the monthly income payments as of the end of the first completed month of such disability if earlier than the date of receipt of proof, instead of as of the date of receipt of such proof and would return any premium due after the beginning of such disability which had been paid during the continuance thereof. The second paragraph (which is specifically referred to in letters later mentioned) provided that if not later than six months after the due day of any premium in default and provided no previously due premium was also in default, due proof was received by the company that the insured was totally and permanently disabled as defined in section 3 at the date when the premium in default fell due, and had since been continuously so disabled, the policy would be reinstated without evidence of insurability and the waiver of premium and disability benefits should be the same as if such default had not occurred.
As has been noted, two extension agreements were made, both of like form. The second covered the same period as the first but covered additional time. Owing to its importance here, we quote material parts:
“The undersigned hereby requests the Mutual Life Insurance Company of New York to extend the time for payment of the premium of $67.94 and of the policy loan interest of $13.02, both due on March 5, 1938 (herein called the ‘due date’), for four months on payment of an extension fee of $16.50,.and agrees if such extension is granted (a) that if both said premium and said policy loan interest, with interest at five per cent on both from the end of the days of grace to the date of payment, be not paid on or before July 5, 1938 (herein called the ‘end of the extension period’), or within thirty-one days thereafter, said policy shall thereupon cease, lapse and become void -as of said due date, except as otherwise provided in the policy, . . . and (d) that said premium shall not be waived under any provision in this policy for waiver of premium in event of total and permanent disability unless said premium would have been waived or refunded if there had been no extension.”
This agreement was dated at Topeka on June 4, 1938, and signed by Frank S. Kenyon. The extension was granted by the company on the same day.
We note also two of the letters incorporated as part of the stipulated facts. In a letter dated August 17, 1938, written by the company to the manager of its state office reference was made to receipt of information concerning Kenyon. The letter directed that the manager advise Kenyon that the terms of the disability clause are clear with respect to the conditions under which a claim shall be entertained. After quoting the second paragraph of the supplementary benefits heretofore mentioned, the letter continued:
“Inasmuch as this policy lapsed for non-payment of the premium due March 5, 1938 and extended to July 5, 1938 and proof was not received within the time required by the terms of the disability clause, the claim for disability benefits must be declined.”
In response to a letter from the claim adjuster of the insurance department of this state, the company wrote a letter reviewing the general facts and again directed attention to the second paragraph of the supplementary benefits and continued:
“The first notice of this claim was not received by the Company until August 12, 1938, or after the policy had lapsed. At that time we were 'informed that Mr. Kenyon had had a heart attack on August 1, 1938. Tram the foregoing it is apparent that the policy was not in full force and effect when notice was received by the Company and that Mr. Kenyon was not totally and permanently disabled on March 5, 1938 ‘at the date when such premium in default fell dire.’ ”
“This Company stands ready at all times to fulfill its part of the policy contract and not -withhold or deny the payment of any disability benefits to which a policyholder is justly entitled, but in view of the circumstances, as outlined above, the disability claim was declined.”
Other parts of the stipulation will be mentioned later if the same is necessary to a discussion of matters considered.
The legal questions arising under the stipulated facts were presented to the trial court on oral argument and written brief and after consideration that court found that judgment should be entered for the defendant for costs and it was so adjudged, and this appeal of the plaintiff followed.
The gist of appellant’s contention the trial court erred is that, by reason of the extension agreement, the policy in all its parts was in effect to and including August 5, 1938; that any construction of the extension agreement limiting benefits under the policy is void as being in violation of-G'. S. 1935, 40-416; that so construed the supplemental provisions of the policy required its reinstatement; and that proof of disability incurred August 1, 1938, could be given at any time within six months from August 5,1938.
The statutes of this state prior to the. enactment of the insurance code in 1927 (G. S. 1935, ch. 40) made no specific provision for certain inclusions in a policy of life insurance, nor any specific provision for subsequent or extension agreements like those here involved. Prior to the enactment of the above statute it was recognized that extension agreements could be made and, where not in contravention of other statutory requirements, were valid and binding. (See e. g. Cunningham v. Insurance Co., 106 Kan. 631, 189 Pac. 158; and Clover v. Bankers Life Insurance Co., 117 Kan. 683, 232 Pac. 1068.) We need not consider at length decisions dealing with situations under the law as it then obtained, for in 1927 the legislature adopted an insurance code which made provisions concerning insurance contracts and subsequent agreements. Under G. S. 1935, 40-420 (2) it was provided that each policy of life insurance shall contain a provision that the policy together with the application, if a copy be endorsed upon or attached to the policy, shall constitute the entire contract. Although that statutory provision was enacted after the policy in question was issued, we note the policy contains the following provision':' “This Policy and the application, copy of which is attached, .constitute the entire contract.” Standing alone the statutory provision noted would have precluded execution of subsequent agreements not made a part of the policy. Recognizing that such agreements had often been made for extension of time of payment of premiums, the legislature provided the circumstances and conditions under which such subsequent agreements could be made by G. S. 1935, 40-416, which reads:
“A life insurance company may enter into subsequent agreements in writing with the insured, which need not be attached to the policy, to extend the time for the payment of any premium, or part thereof, upon condition that failure to comply with the terms of such agreement shall lapse the policy as provided in said agreement. Subject to such lien as may be created to secure any indebtedness contracted by the insured in consideration of such extension, said agreement shall not impair any right existing under the policy.”
The parties disagree as to the construction to be given the above statute and as to its application to the facts. As applied to the extension agreement before us, appellant contends the effect was to defer the time for payment of premium from March 5, 1938, to August 5,1938; that until the last date the policy in all its parts remained in full force and effect; that any portion of the agreement limiting or attempting to limit coverage was void as being in contravention of the statute; that disability having occurred before August 5, 1938, she had six months to furnish proof by express provision of the policy. Appellee contends that premium not having been actually paid by August 5, 1938, all rights ceased as of March 5, 1938; that the company being under no obligation to extend time for payment of premium, could prescribe conditions for such extension, and in any event the agreement did not impair “any right existing under the policy.”
In support of their contentions as to proper construction of G. S. 1935, 40-416, neither party cites any authority closely in point, appellee stating that its research had disclosed no like provision in the insurance statutes of other states. It does direct our attention to Brown v. Illinois Bankers Life Assur. Co., 144 Kan. 670, 63 P. 2d 165, and quotes an excerpt from Lincoln Nat. Life Ins. Co. v. Hammer, 41 F. 2d 12, found therein, as well as to the later case of Mauck v. Great American Life Ins. Co., 150 Kan. 636, 95 P. 2d 325. Neither of the above cases dealt with the restrictive features of the last sentence of the statute, and they are in no sense decisive of the question presented by this appeal.
We need not labor the point that the company, not being under any contractual or statutory obligation to extend time for payment of a premium, could fix the conditions under which it would make such an agreement. Whatever may have been its right prior thereto, it is not open to argument but that its business in Kansas is subject to statutory regulation, and that such a regulation was made by the enactment of the above quoted statute, which expressly authorized the making of the subsequent agreement to extend the time for payment of the premium upon condition that failure to comply should lapse the policy as provided in the agreement, and provided further, however, that the agreement should not impair any right existing under the policy. There is no contention that the statute is not valid in all its parts.
An examination of the extension agreement and of the policy of insurance to which it referred, discloses first that it extends time of payment of the premium of $67.94. This was the total premium due on March 5, 1938, and included not only the premium for the straight life insurance, but the separately stated premiums for double indemnity benefits and for disability benefits — or in other words, payment of premium for all benefits under the policy was extended. The extension was made for a paid consideration totaling $16.50, and was on condition that if the payment, with stipulated interest, was not made by August 5, 1938, (July 5 plus 31 days thereafter) the policy should lapse and become void as of the due date (stated as March 5, 1938) “except as otherwise provided in the policy.” Giving to the remaining portion (d) of the agreement as quoted above, the construction most favorable to the contentions of the appellee, it is that there was no waiver of payment of premium for total and permanent disability, unless the payment would have been waived or refunded if there had been no extension; or stated more objectively, unless the total and permanent disability was incurred prior to March 5, 1938, and proof thereof made prior to March 5, 1938, or, under another provision, in six months there was no liability.
We note that the above agreement presents the anomalous situation of the company’s granting, for a consideration, a period of time to pay premium for disability benefits, and at the same time saying that during the extension period there are no benefits for disability incurred during that period.
The first portion of the agreement provides that if payment is not made by August 5, 1938, the policy “shall thereupon lapse and become void as of said due date, except as otherwise provided in the policy.” If the agreement is so interpreted that “due date” means March 5, 1938, (as at least inferentially stated) and not August 5, 1938, which was the last day a payment could be made, may it be said the provision impaired a “right existing under the policy” and further may it be said that subdivision (d) limiting disability benefits, impairs such rights?
The primary question is the construction to be placed on the clause “said agreement shall not impair any right existing under the policy.” Appellee contends that the phrase “right existing” means an accrued right such as the insured’s right to receive cash surrender values, if any, or to take extended paid-up insurance, and that he had only such accrued rights as he had paid for at the time the extension agreement was made, but it cites no authority in support. Standard dictionaries indicate that a right may be said to have accrued only when it has come into existence as an enforceable claim. It would follow if appellee’s contention were correct, that in the absence of provision therefor in an extension agreement, the beneficiary would not be entitled to the proceeds of the policy if the insured died during the extension period because her right thereto would not have accrued as of the time the extension agreement was made. The phrase “rights existing” is in effect the same as “existing rights” which has been said to have no special or unusual significance, but refers only to such rights as exist under general laws. (See Funk v. Inland Power & Light Co., 164 Wash. 110, 1 P. 2d 872.) It has been held that valid contracts issued under the War Risk Insurance Act of the United States are property and the rights of individuals arising under them are protected by the Fifth Amendment. (Lynch v. United States, 292 U. S. 571, 78 L. Ed. 1434, 54 S. Ct. 840.) Without isolating the words “rights existing,” but considering the entire clause of which they are part, we note, as has been stated heretofore, that under the statute the policy and application constitute the contract, and the clause in question may well be read as though it were, “said agreement shall not impair the contract.” Anything in the extension agreement which renders the contract less valuable impairs it. (12 Am. Jur. 20.) In our opinion the legislature meant to provide that if a subsequent agreement were made extending time for payment of premiums, the agreement could contain a condition that failure to pay the premiums should lapse the policy but that it could not contain terms restricting the right to benefits under the policy, or otherwise stated, during the period of extension the rights under the policy continued unabated and undiminished. In accordance with the above, we hold that the attempt by the extension agreement to limit the coverage for total and permanent disability was contrary to statute, void and of no effect.
We note appellee’s contentions that nothing short of actual payment of the premium within the extension period could prevent lapse of the policy, and that the reinstatement provisions of the policy are inapplicable to the instant case. These contentions are predicated on the proposition the appellee, by subsequent agreement, could limit the coverage of the policy. In view of what has been said, we need not separately discuss these contentions further.
Some argument is also made by appellee that the extension agreement fixed due date of the premium as March 5, 1938, and provided that failure to pay the premium within the extended period caused the policy to lapse.as of that date. It is true that the due date of the premium, as fixed in the policy, was on March 5 of each year, and therefore that the premium due March 5, 1938, might be said to have been in default after that date, even though days of grace were provided in the policy. But here the extension agreement, executed for consideration, definitely fixed a new period in which the premium could be paid and that was “on or before July 5, 1938 ... or within thirty-one days thereafter.” In sum, it gave the insured until August 5, 1938, in which to pay the premium. Of course during all of this time the premium remained unpaid, it could have been said to be due, but it is not to be denied that the insured did not have to pay until the last day. In ordinary parlance that was the due date. Appellee’s argument not only depends on the due date being March 5, 1938, but it ignores the language of the extension agreement that the lapse for nonpayment shall be “except as otherwise provided in the policy.”
The provisions of the policy for disability benefits are conditioned upon disability occurring while no premium is in default. Although decisions may be found where the word “default” has been variously applied, ordinarily it may not be said that one required to perform a duty within a stipulated period is in default before the expiration of the time fixed. As applied to the facts of this case, the premium was not in default until after August 5, 1938. An examination of the policy discloses that under section 3 it was provided that if while no premium was in default the insured should furnish to the company due proof he was totally and permanently disabled, he would be entitled to the stipulated benefits and the' company would waive payment of each premium as it thereafter became due. Under the first part of the “Supplementary Benefits,” it was provided, in effect, that under circumstances noted above the appellee would begin the payment of benefits at an earlier period and would return any premium paid during the period of disability. As has been noted, insured became totally disabled August 1, 1938, the premium lapsed after August 5 and the appellee had the equivalent of proof on August 12, 1938. Were the two policy provisions the only ones before us we would have to consider whether the furnishing of the proof was a condition precedent to fixing the appellee’s liability, but we need not decide that for the second part of the “Supplementary Benefits” expressly provided that if not later than six months after the due date of any premium in default, due proof was received by the appellee that the insured was totally and permanently disabled at the date when the premium fell due, the policy would be reinstated and waiver of premium and disability benefits would be the same as if the default had not occurred. That provision applies here — the disability occurred before the premium was in default, and proof sufficient was furnished the appellee which, under date of August 17, 1938, wrote its agent to advise Kenyon that it denied liability for disability benefits, and which under date of August 30, 1938, wrote the claim adjuster of the state insurance department it had notice of the claim on August 12, 1938, and that the disability claim was declined. It may be said, however, that no claim is now made that the appellee is not liable because due proof was never made. Even though such a claim were asserted, in view of its letters, it could not be sustained.
As we understand the entire appeal, there is no contention but that if appellant is entitled to recover sums due for her husband’s total and permanent disability during his life, she is likewise entitled to recover the death benefits under the policy, concerning the amount of all of which there seems to be no controversy.
The judgment of the trial court in favor of the appellee is reversed and set aside and the cause is remanded to the district court with instructions to render judgment in favor of the appellant as prayed for in her petition. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal from a judgment overruling defendant’s demurrer to plaintiff’s evidence in a suit for a divorce.
In her petition plaintiff alleged that she was and had been a resident of Reno county for more than a year; that she and defendant were married in Oklahoma in October, 1938, and that they had no children; and that — “Plaintiff for her cause of action against the defendant alleges that he is guilty of abandonment.”
Plaintiff also alleged that she was entirely without fault in respect to her duties as wife of defendant. She also alleged that there was no community property to be divided between them. She concluded her petition with a prayer for a decree of divorce and for restoration of her maiden name.
Service was obtained by publication, which was unsuccessfully attacked by defendant. He then answered alleging that he was and had been a resident of Oklahoma for more than one year last past, and that the affidavit filed by plaintiff to obtain service by publication was false.
Defendant’s answer also alleged that he and plaintiff were married in Oklahoma in October, 1937, and denied that he was guilty of abandonment, and alleged that he had never abandoned her; but that plaintiff left their home one day while defendant was at work, and that her whereabouts were unknown to defendant for about thirty days; that thereafter he learned that she was living in Hutchinson, Kan., and that he immediately telephoned and wired her to come home and sent her money to live on; that defendant came to Hutchinson to escort her back to their home, but that her relatives had him arrested by the Hutchinson police when he attempted to help her pack her clothes; that he had continuously thereafter attempted to persuade plaintiff to return with him to Oklahoma, but that her relatives prevailed upon her not to live with defendant.
Defendant verified his answer with a positive affidavit of its truth.
When the case came on for hearing, plaintiff in response to the first question asked her, how long she had been a resident of Kansas, answered:
■ '“Well, I have been here, I left my husband, it will be I think three years the 6th of this December, and I have been here all the timé but the time when my sister taken me to Oklahoma for treatments, took me back there for doctoring there.
“Q. Do you have any property that you [and your husband] accumulated? A. Well, we managed to buy a little furniture in Garber and I went off and left it, and I guess an old car; I forgot about that.
“Q. Now, how did your husband treat you? You allege he abandoned you. How did he treat you? A. He treated me very cruel,—
[Counsel for defendant]: “Just a minute; we object to that as not within the issues of this case. The evidence should be confined in this case to abandonment.
“By the Court: Well, I think it will be relevant to that issue. Overruled.”
Asked where she went when she left Garber, Okla., where she and her husband had been living she answered:
“I went out to my father’s. I asked my father if I could use the car at Enid, and he said ‘Yes.’ I never even told my father I was leaving because I knew he would ask me to go back again and I told him when I left him this time it would be the last time.
“Q. He has ’phoned you after you came up here? A. He has ’phoned me lots of times.
“Q. Your answer to that is ‘yes’ then. Did you tell him you would come home? A. Oh, no; I never told him that.”
A careful examination of the record reveals nothing further which bears on the issue of abandonment.
At the conclusion of plaintiff’s evidence defendant interposed a demurrer thereto on the ground that it wholly failed to prove abandonment, and likewise failed to maintain the burden of proof on the prerequisite of plaintiff’s residence in Kansas for one year -immediately preceding the commencement of her action. (G. S. 1935, 60-1502.)
This demurrer was overruled; and defendant appeals, assigning error thereon.
Abandonment for one year is one of the statutory grounds upon which a divorce may be granted in this state. (G. S. 1941 Supp. 60-1501.) On whatever theory the trial court overruled defendant’s demurrer to plaintiff’s evidence, a painstaking perusal of the record reveals no evidence of any sort which tends in the slightest degree to support the charge of abandonment. In the few cases in which this court has had to consider abandonment for one year as a ground for granting a divorce, we have held that in the absence of substantial evidence in support of the alleged charge, the action must fail. Thus in Smith v. Smith, 22 Kan. 699, 701, this court, speaking by Mr. Justice Brewer, said:
“But abandonment, which is a neglect or omission of all marital duty, must continue for a year. That being named as one of the grounds of divorce, and the duration of such abandonment prescribed, nothing less than the time prescribed will suffice. An abandonment for one month or ten, although it involves a total neglect of all marital duty, is not gross neglect of duty within the statute. Something more than mere neglect, although it is a neglect of all duty, is requisite. If neglect alone is shown, it must be a total neglect, and continue for a year.”
In accord with this early case is Banta v. Banta, 112 Kan. 713, 716, 212 Pac. 657. See, also, Tisdale v. Wilson & Co., 141 Kan. 885, 890, 43 P. 2d 1064.
In view of the foregoing we need not be concerned with defendant’s point on the insufficiency of the publication service to bring defendant into court.
The judgment is reversed and the cause remanded with instructions to sustain the demurrer to plaintiff’s evidence and to render judgment for defendant. | [
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The opinion of the court was delivered by
Harvey, J.:
Plaintiff brought this action for damages for the deiath of her husband, alleged to have resulted from the negligence of defendant. A demurrer to the second .amended petition was overruled, and defendant has appealed.
The allegations of the petition may be summarized as follows: That on a day stated defendant was engaged in the construction or repair of an abutment to a bridge on a county highway which had been damaged by rainfall; that the bridge was in a defective condition, a fact known to the chairman of the Board of County Commissioners for more than five days prior thereto; that Ed Lee, one of the commissioners, was in charge of the repair work and Roy Servos was in defendant’s employ as supervisor; that plaintiff’s husband, J.oe Clapham, was then and there in the employ of defendant and was directed to lay stone at a point near the bottom of the abutment and below some stone near the top of the place where Clapham Was directed to make the repair by the foreman and member of the Board of County Commissioners above mentioned; that defendant, by ordinary care, should have known that the place Joe Clapham was to do such work was a dangerous place to work; that in obedience to their commands, and while so employed in laying such stone, a large quantity of stone from the abutment above him caved in on his body and person, causing his death, “all through the negligence of the defendant in not providing a safe place for the said Joe Clapham to work, and directing him to work in a dangerous place on a defective bridge over which the defendant had control and supervision of the construction, . . It was further alleged, that the defendant at the time was not engaged in any governmental Work.
Defendant’s demurrer was ■ upon the ground that the petition did not state facts sufficient to constitute, a cause of action in favor of plaintiff and against defendant. Appellant contends the demurrer should have been sustained. The point is well taken. In Silver v. Clay County, 76 Kan. 228, 91 Pac. 55, it was held:
“Counties are involuntary gwasi-corporations and are mere auxiliaries to the state government and partake of the state’s immunity from liability. They arc in no sense business corporations. '
“A county is not liable in damages for the negligent or -wrongful acts of its board of county commissioners, unless such liability is expressly imposed by statute or necessarily implied therefrom.”
In Shawnee County v. Jacobs, 79 Kan. 76, 99 Pac. 817, it was held:
“A county, while engaged in building a bridge upon a public highway, acts as a subdivision of the state government, and is not liable for the negligent performance of such work unless expressly made so by statute.”
These rules have been recognized repeatedly throughout the history of our state, as shown by the following partial list of cases to the same effect: Fisher v. Township, 87 Kan. 674, 125 Pac. 94; Thomas v. Ellis County, 91 Kan. 443, 138 Pac. 409; Woolis v. Montgomery County, 116 Kan. 96, 226 Pac. 244; Bohm v. Racette, 118 Kan. 670, 236 Pac. 811; Robertson v. Labette County Comm’rs, 122 Kan. 486, 487, 252 Pac. 196; Isham v. Montgomery County Comm’rs, 126 Kan. 6, 266 Pac. 655; Kebert v. Wilson County Comm’rs, 134 Kan. 401, 5 P. 2d 1085; Smith v. Higgins, 149 Kan. 477, 87 P. 2d 544, and authorities cited therein.
. Appellee appears to rely upon G. S. 1935, 68-301, which in part reads:
. “Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge, culvert, or highway, may recover such damage from the county or township wherein such defective bridge, culvert or highway is located, as hereinafter provided; . . .”
We think this statute has no application to the situation described in- the petition in this case. We are cited to no case, and our own research discloses none, which would sustain plaintiff’s view. Indeed, some authorities above cited are specifically to the contrary.
The result is the judgment of the court below must be reversed with directions to render judgment sustaining the demurrer to the second amended petition. It is so ordered. | [
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The opinion of the court was delivered by
Wbdell, J.:
This was an action by the lessor of a building against the lessee, the Salvation Army, to recover for fire damage to plaintiff’s buildings alleged to have resulted from the negligence of defendant’s agents. The trial court sustained defendant’s motion for judgment on the pleadings and from that ruling plaintiff appeals.
The pleadings consisted of the petition, a verified amended answer and an unverified reply. The pertinent portions of the petition, in .substance, alleged:
Plaintiff is the owner of the real estate in question situated in the •city of Topeka; defendant is a corporation legally authorized to do business in Kansas; in connection with the operation of its business it rented from plaintiff a building; adjacent thereto was another building which plaintiff had rented to a third party; among defendant’s activities is the collection of waste paper by donation from the public and baling and selling the same for profit; upon request of Major L. A. Peterson, defendant’s duly appointed and authorized agent in charge of its property and who transacted defendant’s business in Shawnee county, plaintiff permitted the collection of waste paper on the premises; such permission was granted on Peterson’s representation the paper would be removed from the premises within four or five days, or not longer than one week; no additional charge was made for the privilege granted with respect to such paper; the paper was permitted to remain on the premises for longer periods than authorized and constituted a fire hazard and nuisance; on numerous occasions plaintiff notified defendant to remove the paper immediately, but defendant failed to do so; while the premises were littered with paper a fire started at the southern edge of the property and destroyed plaintiff’s buildings; the loss was the result of defendant’s negligence.
The verified amended answer admitted Peterson’s agency. After denying generally the allegations of the petition not admitted, the answer alleged defendant’s incorporation under the laws of Kansas and set forth its charter which, insofar as material, provides:
“That this corporation is organized not for profit and the purposes for which it is formed are to engage in charitable, educational, missionary, philanthropic and religious work of the character that has been and is being conducted by the branch of the Christian Church known as The Salvation Army, and to do everything and carry on every kind of operation necessary and incidental to the maintenance of such work. This corporation . . . may from time to time transact any business and carry on any work or operation in' connection with and for the purpose of the foregoing . . . and shall have generally all the rights, privileges, immunities and powers granted to religious or charitable corporations in their secular affairs and such other powers as shall be given said corporations by the laws of the State of Kansas.”
Facts further alleged in the answer, in substance, were:
When defendant rented plaintiff’s building there were weeds and grass on the place which extended to the southeast of the leased building and to the boundary of the premises; the fire approached-the building from the southeast; it did not originate among the scrap paper but was carried to the paper by the weeds and grass which plaintiff permitted to grow and dry on the premises.
P-laintiff’s unverified reply denied generally all new matters alleged in the amended answer and specifically denied that her own negligence or the acts of her agents in the maintenance of the premises caused the fire.
Appellee relies upon our former decision in Webb v. Vought, 127 Kan. 799, 275 Pac. 170, in which we held:
“The Salvation Army, a religious, charitable and philanthropic organization, is not liable in damages for the injury sustained by a third person in a collision with a motor truck negligently driven by an employee of the Salvation Army.” (Syl.)
In the opinion it was said:
“It is argued that the Salvation Army, being a religious, charitable and philanthropic organization doing work of that nature, is not liable for the negligence of Vought whereby injury was sustained by the plaintiff. The liability of charitable organizations for injuries caused by the negligence of agents or employees working in or for such organizations has often been presented to the courts of this country. The decisions are in hopeless confusion and irreconcilable conflict. . . .
“Any rule followed by this court will have ample authority to support it. An analysis of the authorities will not do any good.” (p. 800.)
In the same opinion the court further said:
“Similar questions have been before this court in two cases. In Nicholson v. Hospital Association, 97 Kan. 480, 155 Pac. 920, this court declared that—
“ ‘Charitable associations conducting hospitals are not liable for the negligence of their physicians and attendants resulting in injury to patients unless it is shown that the association maintaining the hospital has not exercised reasonable care in the employment of its physicians and attendants. (Syl. til.)’
“In Davin v. Benevolent Association, 103 Kan. 48, 172 Pac. 1002, a similar question was presented to this court, and the court there said:
“ ‘A Charitable hospital corporation is not liable in damages for the failure of its medical superintendent to comply with a contract made by him for the care of a patient being treated in the' hospital. (Syl.)’
“ ‘One reason for this rule is that “trust funds created for benevolent purposes should not be diverted therefrom to pay damages arising from the torts of servants.” Another reason is that “public policy encourages the support and maintenance of charitable institutions and protects their funds from the maw of litigation.” .. . . Both reasons are good. (p. 50.)’
“In these cases this court declared that charitable organizations are not liable for the negligence of its employees or agents. This court now prefers to follow that rule, and put it on the ground that the resources of charitable organizations are trust funds which cannot be subjected to the payment of damages in such cases. It follows that the Salvation Army is not liable to the plaintiff. This does not excuse the defendant Vought.” (p. 800.)
See, also, anno. 62 A. L. R. 724.
Appellant argues the rule announced in the Webb case has been relaxed and modified by our later decision in McMillen v. Summunduwot Lodge, 143 Kan. 502, 54 P. 2d 985. That case is not con trolling here. It was an action against a subordinate lodge of the Independent Order of Odd Fellows. Its incorporation as a subordinate lodge was authorized by statute. The laws governing the organization of such a lodge enabled the lodge to obtain a charter by which it was privileged to use a part of its buildings for purposes other than charity. Another statute authorized a limited satisfaction of a judgment obtained against such a lodge. The limitation was the property it owned and used, in part, for other than charitable purposes. It was by reason of the dual capacity in which the lodge was organized and operated that liability for judgment to the extent of the statutory limitation was upheld. The decision does not conflict with the conclusion or the opinion in Webb v. Vought, supra.
The bare allegation in the instant petition with respect to defendant — “that among its activities is the collection of waste paper by donation from the public and baling and selling the same for profit” —does not transform the charter purposes of defendant — “to engage in charitable, educational, missionary, philanthropic and religious work” — into a corporation for profit. The charter expressly states— “That this corporation is organized not for profit, etc.” That it is not organized for profit the unverified reply to defendant’s answer concedes. The charter further authorizes defendant — “to do everything and carry on every kind of operation necessary and incidental to the maintenance of such work.” The petition contains no allegation that defendant’s activities in collecting waste paper by donation and selling it for profit does not constitute a necessary and incidental method of maintaining the work of the defendant or that the proceeds from the sale of the scrap paper were not used for that purpose.
It is also common knowledge that one of the methods defendant employs in order to obtain funds with which to advance its charter purposes is to obtain articles by donation and to sell them for whatever can be realized for them. This fact the donor knows. He gives an article with the thought in mind that by reason of the fact it is a donation defendant may give it to some needy person or that it may realize something from its sale and thus enable it better to carry on its humanitarian work of aid and comfort to the distressed. Some of the donated articles in the Webb case, supra, were sold. Those transactions were incidental to the work of The Salvation Army-and aided it in realizing its charter purpose. They did not make it a corporation for profit. The same is true in the instant case.
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The opinion of the court was delivered by
Smith, J.:
This was an action for money and to foreclose a mechanic’s lien. The landowner and other materialmen and me chanics were made defendants. Judgment was for all the mechanics and materialmen. The defendant landowners appeal.
The action arose out of the activities of the Gibsons in preparing a building for occupancy. It was brought by Isbell, a plumber. He made all the allegations necessary to plead his right to a mechanic’s lien. He asked judgment for $575.32.
The Gibsons, the landowners, denied that there was any contract between themselves and Isbell, and alleged that the lien was ineffectual as a subcontractor’s lien because the name of the contractor was not mentioned; denied that the liens filed by the other defendants were valid; alleged that Isbell had failed to carry out his contract, and the Gibsons had been put to extra expense in the amount of $20.41.
The answer further alleged that defendant Walker had made a verbal contract with the Gibsons to furnish all the labor and material and to make the repairs upon the property in question for $2,000; that plaintiff was a subcontractor under Walker and Walker failed to complete the work and Gibsons were compelled to pay out $4,461.68 to complete the job. The prayer was for defendant’s costs.
To this answer Walker' first set out facts necessary to establish a mechanic’s lien for labor furnished under a contract with the Gibsons in the amount of $473.12. In a subsequent petition Walker alleged that he had expended $84.86 for workmen’s compensation and liability insurance.
The Gibsons answered in substantially the terms of their answer to Isbell’s petition and prayed a judgment against Walker for $2,461.68.
McDaniel, the floor sander, Elliott, the electrician, the SherwinWilliams -Paint Co., and the Badger Lumber Company all alleged the performance of labor or the furnishing of material to the Gibsons and all other facts necessary to give them a lien.
As to them, the Gibsons interposed general denials and allegations that the contract of these parties was with Walker and- not with them.
The action was submitted to the court without a jury. The court found in favor of Walker in the amount of $557.97 and gave him a lien in the amount of $425.81; and that the Gibsons were not entitled to a judgment against Walker. The court further found in favor of the other lien claimants in the amounts claimed.
As to the last four parties and Isbell, the Gibsons argue here that there was no substantial evidence that there was a contract between these parties and the Gibsons. We have examined the record in this connection. It would not add to this opinion to set out all the evidence in detail here. While the Gibsons testified there was no such contract, the parties claiming the liens, or their employees, all testified there was. Under such circumstances the findings in favor of these parties cannot be disturbed by this court.
As to Isbell, the Gibsons also argue that the court erred in not requiring him to elect whether to stand either on his lien as a subcontractor or the one he filed as a contractor. On this point the record discloses that counsel for plaintiff did say in his opening statement that he elected to stand upon the lien filed as a contractor.
This takes us to the question of the lien given Walker by the trial court. Aside from what has already been said in this opinion, the Gibsons point out that this lien was for wages due several carpenters who had been furnished the Gibsons by Walker. There is no question about this fact.
The Gibsons argue that a lien for labor may only be had by the person actually performing the labor. They cite and rely on G. S. 1935, 60-1401. The statute provides, in part, as follows:
“Any person who shall under a contract with the owner of any tract, or piece of land, ... by himself . . . perform labor by himself, . . . or who shall plant trees ... or furnish labor by himself . . . shall have a lien ... for the amount due to him for such labor of himself.”
A literal reading of the above statute lends some force to the argument of appellant. We prefer, however, to give the statute a broad enough interpretation to effectuate what we deem to be the manifest intention of the lawmakers. If we should place upon the language of this statute the construction contended for by appellants it would mean that no general contractor who had completed his contract could have a lien for as much of his contract as included labor even though he had completed the contract and paid his.laborers. Surely the legislature did not intend such an unjust and inequitable result. The language of the statute means to designate the sort of labor that is performed rather than the person who performs it. There can be no doubt but that the labor for which this lien is claimed went into the repair of this building and the laborers have not been paid. The practice in this state for many years has been for the general contractor to have a lien to include labor furnished. This may be ascertained from an exami nation of our opinions even though we have never passed directly on the question. In Clough v. McDonald, 18 Kan. 114, the point we have here was not raised but we allowed a lien to a subcontractor who had furnished labor and material. The statute in force at the time used the words “perform labor” much as our present statute does. This has been the consistent practice since that time. In Leidigh & Havens Lumber Co. v. Wyatt, 153 Kan. 214, 109 P. 2d 87, the lien claimant Powell was given a lien for labor and material furnished. In Golden Belt Lumber Co. v. McLean, 138 Kan. 351, 20 P. 2d 274, a plumbing company was given a lien for labor and material furnished. See, also, Security Stove & Mfg. Co. v. Sellards, 133 Kan. 747, 3 P. 2d 481; Southwestern Electrical Co. v. Hughes, 139 Kan. 89, 30 P. 2d 114; Potter v. Conley, 83 Kan. 676, 112 Pac. 608.
In 40 C. J. 129 we find the following statements:
“However, other courts interpret the term ‘laborer’ as used in mechanics’ lien legislation, to include contractors and subcontractors; and, . . . the terms of most mechanics’ lien statutes are broad enough to allow a lien to a contractor or subcontractor for labor furnished by him and actually performed by other persons working under him.”
In Moore-Mansfield Constr. Co. v. Indianapolis, etc., R. Co., 179 Ind. 356, 101 N. E. 296, 44 L. R. A., n. s., 816, the court referred to an earlier decision in which it had held that the word “laborer” in a mechanic’s lien statute did not include a “contractor” who performed labor by means of others, overruled that and analogous decisions, and held that a contractor who had furnished the labor that went into the construction of a railroad was entitled to a lien as one who had furnished labor. This is a well-reasoned opinion and cites and comments on many authorities. The court pointed out the situation in Indiana had been about as we have outlined it here in Kansas, that is, the word “laborers” as found in the statutes of Indiana had been commonly understood by the people, legislators and courts to include in its definition contractors and subcontractors as well as manual laborers. The court said:
“How did the people, legislators, and courts of Indiana, previous to 1883, understand and interpret the term ‘laborers’ or ‘persons performing labor’ in the construction of building, etc., as found in our mechanics’ lien acts? If such term was commonly taken to include only personal manual labor, appellants’ contention must fail. In consideration of this question, the fact that this court may never have defined the term in a cause where the question of the general or restricted definition of the word or term was involved cuts no figure. It was not intended that legislation should wait indefinitely on a judicial definition. Such question might never be directly presented. It was not raised here for seventy-five years. Courts do not rightfully make definitions for words; on the contrary they must apply to the words the definitions already made by common usage.” (p. 385.)
The statute we are construing, G. S. 1935, 60-1401, has been amended several times since 1862, usually by bringing some additional class of labor within its terms. An examination of these different amendments shows that the legislature has not been particular in the use of the term “furnishing labor” as distinguished from .the term “perform labor.” Section 21 of chapter 87 of the Laws of 1870 provided that one who performed labor in working on a building should have a lien, and that one who either furnished or performed labor in putting up any fixture or machinery should have a lien. There was obviously no logical reason for this distinction. The act was amended in 1871,1872 and 1889, but this provision was not changed. Section 1 of chapter 168 of the Laws of 1889 in addition provided that one who furnished labor or material for building, altering or repairing any fence or footwalk should have a lien. Section 1 of chapter 146 of the Laws of 1891 amended the act by using the words “furnish material” “or perform labor.” when referring to fixtures or machinery, but did not amend the provision giving a lien to one who should furnish labor or material for building any foot-walk. The act was amended in 1909, but this provision was not changed. It was changed by section 1 of chapter 235 of the Laws of 1919 when the section was amended, about as we have it, except for the correction of a typographical error. All this leads us to the conclusion that in construing this act we should pay more attention to what, we conceive to be the manifest intention of the legislature rather that to a meticulous definition of the words used. It follows that the trial court, in allowing Walker a lien for the amount of labor furnished the Gibsons by him, was correct.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by .
Harvey, J.:
This is an original action in quo warranto brought by the state on the relation of the county attorney of Harvey county. The defendants are the State Board of Agriculture, the Division of Water Resources within that board, and its chief engineer. The purpose of the action is to inquire into the authority of defendants to regulate the taking of subterranean waters for beneficial uses and to allot the same among such users. The facts are not controverted and the action is presented to this court upon plaintiff’s motion for judgment on the pleadings.
The pertinent facts as shown by the record may be summarized as follows: In Harvey and McPherson (and perhaps other) counties is a geological formation known as the Equus Beds. (See University Geological Survey of Kansas, Yol. II, pp. 287 to 296, for more detailed description.) This is alleged to cover an area about thirty miles east and west and seventy miles long. The Equus Beds are filled with water of excellent quality for domestic purposes. The city of Newton, situated about seven miles east of these beds, since 1899 has obtained its entire water supply for the use of the inhabitants of the city from the Equus Beds. The cities of Burrton and Halstead, situated within the Equus Beds, also obtain their water supply therefrom. About May, 1940, the city of Wichita leased land within the Equus Beds and put down as many as twenty-five wells, from which water is pumped and conveyed by pipes more than twenty miles to the city of Wichita and there used to supply water to the inhabitants of the city. This work was practically completed by September 1, 1940, at a cost of approximately $2,500,-000. On March 31, 1943, the city of Wichita made an application in writing to the chief engineer of the Division of Water Resources of the State Board of Agriculture for a permit approving the appropriation and application to beneficial use by the inhabitants of the city of Wichita and its environs, including defense and industrial plants, of water from the Equus Beds to the extent of not less than thirty-five cubic feet per second to a maximum of fifty cubic feet per second; stating the appropriation had commenced September 1, 1940, and that this was the only adequate supply of wholesome water available, and prayed that the application be set for hearing and granted. Notice of the filing of the application was published in the Newton newspapers advising persons interested, who desired to do so, to file protests with the chief engineer of the Division of Water Resources within thirty days after the first publication of the notice. Written protests were filed by the cities of Newton, Halstead and Burrton. The application and protests were set for hearing on September 13, 1943. Due notice was given to the cities of Wichita, Newton, Burrton and Halstead, also to the cities of McPherson, Moundridge, Hesston, Sedgwick, Valley Center, Galva, Canton and Inman, all within or near the Equus Beds. Since the protests filed raised the question of the authority of defendants to pass upon the application, the hearing was continued pending the bringing and determination of this action.
None of the users of water from the Equus Beds had made application to defendants for a permit to use the same, and at the present time there is ample for the needs of all of them. Therefore, the purpose of the action appears to be to determine the authority of defendants to control the use of the water in the Equus Beds, and particularly their authority to allot it among various claimants.
On behalf of plaintiff it is contended that there is no authority for defendants to regulate the use of the water in question among the cities or others now using it, or to allot such water, with certain quantities to one or another, and perhaps to deny to some the right to use it at all. On behalf of defendants it is contended that this authority is found in our statutes, and particularly in G. S. 1935, 24-901 to 24-905.
These contentions make it advisable to examine our statutes and decisions, so far as pertinent here, relating to water and its users.
From the beginning of our history as a state (Territorial Laws 1855, ch. 96, Laws 1862, ch. 135, G. S. 1935, 77-109) the common law of England has been the basis of the law of this state, and except as modified by constitutional or statutory provisions, by judicial decisions, or by the wants and needs of the people, it has continued to remain the law of this state. Our decisions over the years have held the common law to be applicable to water and the rights of parties thereto except and to the extent it has been modified by statutes, judicial opinions, or the wants and needs of the people. In Shamleffer v. Peerless Mill Co., 18 Kan. 24 (1877) it was held:
“Every man through whose land a stream of water runs is entitled to the flow of that stream without diminution or alteration.”
The decision was based upon the common law and it was said:
“This right he has as an incident .to the property in his land, and he cannot be deprived of it but by grant, actual or presumptive. . . . [It] is not what is called an easement, because it is inseparably connected with, and inherent in, the property in the land; it is a parcel of the inheritance, and passes with it.” (pp. 32, 33.)
In City of Emporia v. Soden, 25 Kan. 588, where Soden, having acquired the right to do so, built a dam, formed a pond to use in the operation of his mill, and the city bought property adjoining the pond and put down a well, from which it undertook to take the underground waters from the pond, it was held:
“While the general doctrine in respect to underground water percolating thi'ough the soil is, unquestionably, that the owner of the land may appropriate it to any use, and in any amount, and without reference to the effect of such appropriation upon his neighbor’s land or supply of water, yet it is limited to this extent, that he may not thus indirectly destroy or diminish the flow of a natural surface stream to the injury of a riparian owner thereof.” (Syl. 113.)
On a motion for rehearing (26 Kan. 492) it was held that if the city desired to take the water from Soden’s dam either through a pipe directly into it or through the percolating waters at the bottom of its well it would have to acquire the right to do so by condemnation proceedings.
In Wood v. Fowler, 26 Kan. 682 (1882) it was held:
“A riparian owner owns only to the bank and not to the center of a navigable stream,”
and that “the title to the bed of the stream is in the state.” (p. 689.) These conclusions followed the common law. (See pp. 689, 690.)
Pertinent common-law rules respecting water and the right to its use are stated and applied in A. T. & S. F. Rld. Co. v. Long, 46 Kan. 701, 27 Pac. 182 (1891); Mo. Pac. Rly. Co. v. Keyes, 55 Kan. 205, 40 Pac. 275 (1895), and Parker v. City of Atchison, 57 Kan. 29, 48 Pac. 631 (1897). In Campbell v. Grimes, 62 Kan. 503, 64 Pac. 62 (1901), it was held a lower riparian proprietor may enjoin an upper one from diverting waters from the stream which he did not apply to some beneficial use, and this right was based upon the common law. In Irrigation Co. v. Klein, 63 Kan. 484, 65 Pac. 684 (1901), the court held the use of water for irrigation is a public use in this state for which the legislature may authorize a private person or corporation to exercise the power of eminent domain; and further held the legislature had authorized such condemnation proceedings in at least a part of the state by chapter 133 of the Laws of 1891, and apparently in all the state by chapters 95 and 151 of the Laws of 1899. In Clark v. Allaman, 71 Kan. 206, 80 Pac. 571 (1905), after an extensive review of our statutes and decisions, it was held:
“The use of the water of a running stream for irrigation, after its primary uses for quenching thirst and other domestic requirements have been sub-served, is one of the common-law rights of a riparian proprietor.” (Syl. ¶ 10.)
In that case the district court had “apportioned the water among the various claimants according to the law of prior appropriation in vogue in certain of the Rocky Mountain states, rejecting altogether the rules of the common law relating to riparian rights.” The judgment was reversed, the court holding, however, among other things: “The doctrine of prior appropriation may exist in the same state with the common-law doctrine of riparian rights,” if there is statutory authority therefor.
In Gilmore v. Salt Co., 84 Kan. 729, 115 Pac. 541 (1911), it was held that one has no right to accumulate upon his own land refuse matter of any sort by which the water underlying the land of a neighbor, and feeding springs thereon, is so affected through percola tion as to be unfit for its ordinary use, citing City of Emporia v. Soden, supra, and other authorities.
In State, ex rel., v. Akers, 92 Kan. 169, 140 Pac. 637 (1914), affirmed in Wear v. Kansas, 245 U. S. 154, the validity of chapter 259 of the Laws of 1913, was involved. This authorized the state to make a charge for the taking of sand from the bed of the Kansas river for commercial purposes. The court held the river to be a navigable stream and the bed of the river to be the property of the state, and sustained the statute. In a lengthy opinion, reviewing many authorities, the common-law doctrine pertaining to the matter was announced and approved and our earlier cases cited and followed.
In Feldhut v. Brummitt, 96 Kan. 127, 150 Pac. 549 (1915), the court was asked to adopt the doctrine of the western states with respect to irrigation. The court declined to do so, saying:
“In eastern Kansas the Idaho or arid states’ doctrine would be entirely inappropriate; in central Kansas it would be of doubtful propriety; in the extreme parts of western Kansas it might do very well; but no court has power to divide this state, like all Gaul, into three parts, and impose a peculiar doctrine upon our western frontier.” (Citing Clark v. Allaman, 71 Kan. 206, 80 Pac. 571.) (p. 129.)
In Wallace v. City of Winfield, 96 Kan. 35, 149 Pac. 693 (1915), it was held a city which had become a riparian owner of the water of a stream had no special or additional rights to such water as against a lower proprietor or one who had acquired prospective rights to the unobstructed flowage of the stream, and that the city by purchasing land abutting on the stream acquired the rights of a riparian owner, “which is the reasonable use of water for domestic and other ordinary purposes incident to the land, but it does not thereby acquire the right to divert or take water from the stream for the purpose of selling it to the inhabitants of the city without making compensation to those who are thereby deprived of water rights.” (Citing City of Emporia v. Soden, supra, and other cases; and see the companion case of Wallace v. City of Winfield, 98 Kan. 651, 159 Pac. 11 [1916], in which the right of the city to condemn was sustained, following Irrigation Co. v. Klein, supra, and Clark v. Allaman, supra.)
In Piazzek v. Drainage District, 119 Kan. 119, 237 Pac. 1059 (1925), the difference between a navigable stream and one that is non-navigable is discussed, and it was held that the title to the bed of nonnavigable streams is in the riparian owners and not in the state, and that a patent from the government conveying land through which a nonnavigable stream flows conveys to the patentee the bed of the stream, following the common-law doctrine and our earlier cases.
In Durkee v. Bourbon County Comm’rs, 142 Kan. 690, 51 P. 2d 984 (1935), this court applied the common-law doctrine of the right to the water in a running stream which had been diverted for road-building purposes, citing our earlier cases.
In Frizell v. Bindley, 144 Kan. 84, 58 P. 2d 95 (1935), the court held our statute (G. S. 1935, 42-101), which authorized the riparian owner to appropriate water for irrigation purposes, ineffectual to confer on him priority as against riparian owners under United States land patents which antedated the statute. The court quoted at length from Shamleffer v. Peerless Mill Co., supra (p. 33), respecting the common-law rights of riparian owners, and said: "There has been no departure from this rule of law by this court.” And in Smith v. Miller, 147 Kan. 40, 75 P. 2d 273 (1938), the court had occasion to say:
‘'Under the common law as frequently declared by this court, water in the natural channel of a running stream is an inseparable attribute of the land through which the stream flows. In legal parlance it is part and parcel of the land itself.” (p. 42.)
In the recent case of State of Colorado v. State of Kansas, 320 U. S. 383, 64 S. Ct. 176, two paragraphs of the headnote read:
“Under the common law of Kansas, a riparian owner is entitled to reasonable use of waters of a stream for irrigation, but such use is subject to rights of other riparian owners to a like reasonable use.
“Under the common law of Kansas, what is a reasonable use of waters of a stream for irrigation by riparian proprietor must, in each instance, be determined in the light of total supply and total need of all riparian proprietors.” (U 6, 7.)
While the above list of our authorities is not designed to be complete, it is sufficient to show, we think, that throughout the history of the state there has been no departure from the basic principle that water rights in this state are governed by the common law except as they may have been modified by statute. While the statements of facts are not very full in some respects, it would appear from the pleadings before us that in the use of the water in the Equus Beds the various cities here involved have acted under their rights in harmony with common-law principles and the decisions hereinbefore cited. That is to say, it appears that those desiring 'wáter from the Equus Beds have contracted for the right to obtain it and have used it as an owner of the land might use it. No question of its drainage by one user from another appears yet to have arisen, but if so, no reason suggests itself why it cannot be handled under the principles: of the decisions cited above applicable thereto.
. .Under the above authorities underground waters are part of the real prpperty in which they are situated. The owner of land may convey or grant the underground water, or the right to take it from the land, by an appropriate instrument in writing to the same extent that he might convey or grant any other portion of the real property; or a party, having the right of eminent domain, may appropriate underground water to his use by condemnation proceedings.
Defendants concede our decisions respecting water have followed the common law, but contend the position for which they argue here has not been considered by the court in its former cases. The point is not well taken, as an examination of the cases will disclose.
Defendants ask us to take judicial notice of the fact that:
“Both surface and underground waters are [to some extent] migratory and under natural laws of gravity seek their own lowest level.”
Judicial notice may be taken of those facts as well as of the fact that by evaporation waters become elevated and mingle with the atmosphere. Defendants in their brief state:
“The corpus of the water in its natural state, and this includes water beneath the surface of the ground, is flowing, moving, circulating, oozing, filtering, percolating or falling from the physical confines of the realty owned by one person to realty owned by another.”
As a general statement' this may be conceded. They further assert:
“In this natural state the corpus of the water is not the exclusive property of any individual but is a public water resource.”
..This statement is too broad. An owner of land owns its surface and underground water by the same title as he owns the land itself, and the clay, gravel, coal or oil within it, even though these items of. property differ in component parts. The land itself, or any of its parts, is a public resource in the sense that it may be taken for á public use, or the state may prohibit its waste or its use in a manner detrimental to others.
Defendants further advise us:
..“Defendants do not recognize any private property right in unused water or in unused sources of water supply and believe that only when an established right or appropriation authorizing a user to take and use from that source is diminished or extinguished to point of causing injury to his prior established appropriation can the user recover any substantial damage or maintain any action for injunctive relief.”
This doctrine seems somewhat startling. All we care to say about it is that we think it contrary to the law of this state, repeatedly stated in our decisions hereinbefore discussed.
Our statutes pertaining to waters, their ownership, disposition and use have been builded about the common-law doctrines enumerated in the decisions above set out. Most of such statutes in force at the time were collected in G. S. 1935, chapter 24, pertaining to drainage and levees; chapter 42, pertaining to irrigation; chapter 59, pertaining to power plants and dams; chapters 74-506 to 74-510, pertaining to division of water resources, and chapter 82a, pertaining to water and watercourses. Changes made by the legislature in these statutes are noted in the G. S. 1943 Supplement. Some of these statutes took cognizance of the right to use water by appropriation, as chapter 115 of the Laws of 1886; G. S. 1935, 42-101 to 42-108, repealed in part by chapter 261 of the Laws of 1941; also chapter 133 of the Laws of 1891, G. S. 1935, 42-301 to 42-3,111, which related to the use of water for industrial purposes west of the 99th meridian; and chapter 210 of the Laws of 1911, relating to artesian wells, defined as those sunk to the artesian stratum or basin over 400 feet deep and the use of the water therefrom. Each of these statutes, however, recognized the common-law doctrine of the right of the landowner to the running waters or the underground waters on his land, and required others who desired to use such waters to obtain the right to do so by contract or by condemnation proceeding's.
By chapter 172 of the Laws of 1917 the legislature created a commission to be known as the Kansas Water Commission and provided how its members should be chosen. By chapter 218 of the Laws of 1919 the legislature created a Division of Irrigation within the State Board of Agriculture, provided for the appointment of a commissioner, and designated where he should hold his office. In 1927, by chapter 293, the Kansas Water Commission and the Division of Irrigation were specifically abolished and there was created a Division of Water Resources within the State Board of Agriculture. All of the authority, power and duties then conferred or imposed by law upon the Kansas Water Commission and the State Irriga tion Commission were conferred upon the Division of Water Resources, and as amended by section 7 of chapter 271 of the Laws of 1933, the State Board of Agriculture was authorized to employ a chief engineer and such other expert assistants, clerical and other help as might be necessary properly to carry out the provisions of the statutes.
The duties transferred to the Division of Water Resources by chapter 293 of the Laws of 1927, from chapter 172 of the Laws of 1917, sections 4 to 8, inclusive, now G. S. 1935, 24-901 to 24-905, read as follows:
“As soon as practicable after organization the commission shall in conjunction with the federal government by way of securing financial and professional aid and assistance, work out a systematic general plan for the complete development of each watershed in the state in order to secure the most advantageous adjustment of the interest involved in matters of floods, drainage, irrigation, water power and navigation. Where any department of the federal government is now or hereafter may be engaged in the development of plans, affecting any of the subjects referred to in this act this commission may cooperate with such federal department. Water development of all kinds throughout the state shall conform to the general plans adopted by the commission.
“This commission is hereby authorized and directed to establish and maintain river gauging stations and to make such surveys and other investigations as may be necessary to a complete knowledge of the subjects herein assigned to it for investigation.
“The following principles shall guide the commission in its decisions and plans: (a) Surface or underground waters of the state may be appropriated by the federal government by civic decisions, by corporations, and by individuals upon application to the commission and in accordance with the rules and regulations it may prescribe. Such appropriation shall not constitute absolute ownership of such waters, but shall remain subject to the principle of beneficial use. (b) Where appropriations of water for different purposes conflict they shall take precedence in the following order, namely: domestic and transportation water supply, irrigation, industrial uses, water power. In each of these decisions prior application is to govern in making allotments, (c) Appropriation in excess of the reasonable needs of the appropriators not to be allowed, (d) Waters appropriated for irrigation are to become appurtenant to the lands to which they are applied, and underground waters for all purposes to become appurtenant to the lands under which they flow.
“The commission shall study the laws of the state relating to floods, drainage and irrigation with a view to making such revisions as may be necessary to accomplish the ends prescribed in this act, and they shall report the results of their investigation and make such recommendations as they may deem proper to the legislature from time to time.
“The commission and its agents shall have the power of entry on private lands for the purpose of carrying out the provisions of this act.”
On behalf of defendants it is argued that the sections of the act of 1917 above set out have thrown off “the old common-law doctrine as voiced by the court in Clark v. Allaman, 71 Kan. 206, 80 Pac. 571, not only as to underground waters but also as to streams and other surface water resources as well.” We think the statute had no such effect. In the twenty-seven years since the statute was enacted the court has continued to recognize the common-law doctrine respecting water as set forth in Clark v. Allaman, supra, and earlier cases, and the legislature has continued to base statutes upon the common-law doctrine with respect to water rights even down to and including chapter 262 of the Laws of 1941. Defendants stress the last sentence in G. S. 1935, 24-901: “Water developments of all kinds throughout the state shall conform to the general plans adopted by the commission.” We are not advised that any such general plans ever have been adopted. The same section of the act made it the duty of the commission to “work out a systematic general plan for the complete development of each watershed in the state in order to secure the most advantageous adjustment of the interest involved in matters of floods, drainage, irrigation, water power and navigation.” We are not advised that this has ever been done. We are advised that the Commission of Water Resources and its chief engineer, in cooperation with the U. S. Geological Survey and the State Geological Survey, have made surveys and reports on ground water resources in Kansas for seven counties in the state and limited or partial reports for four other counties; that reports are in preparation for four more counties and some field work has been done in five other counties; so this work is far from complete. In the next paragraph the commission was authorized to establish and maintain river gauging stations. We understand that such stations have been established and maintained. The next section outlines certain principles which shall guide the commission in its work, and the next section makes it the duty of the commission to study the laws of the state relating to floods, drainage and irrigation with a view of making such revisions as may be necessary to accomplish the ends prescribed by the act and to make a report of such investigations and make such recommendations as it deems proper to the legislature from time to time. We are not advised that any such recommendations have ever been made to the legislature. Defendants stress some of the language in G. S. 1935, 24-903, and contend that this language gives the Division of Water Resources and its chief engineer the authority to entertain applications for and conduct hearings and make appropriations of water among different users thereof. This section contains statements confusing, to say the least, and to some extent contradictory and difficult if not impossible to apply as a specific grant of authority for the commission to act. The meaning of the section is clear enough if it be regarded simply as a guide to the commission in doing the things it is specifically authorized and required to do by G. S. 1935, 24-901 and 24-904; and this is the interpretation we give to it.
The duties transferred to the Division of Water Resources by chapter 293 of the Laws of 1927, from chapter 218 of the Laws of 1919, section 4, now G. S. 1935, 74-509, read as follows:
“It shall be the duty of such irrigation commissioner: (1) To gather data, information and statistics from the existing irrigation plants in the state concerning the water supply and methods of securing the same and the methods employed in applying water to crops, and he shall tabulate and preserve in available form such information and shall publish and distribute the same from time to time; (2) to visit the site of any proposed irrigation plant in the state upon the request of any citizen of the state and advise as to the feasibility of installing such plant and furnish plans and specifications therefor upon request, such visits to be made only when his actual expenses therefor are guaranteed by the person requesting such visit; (3) to operate by lease under competitive bids all existing irrigation plants now owned by the state of Kansas, and installed by the Board of Irrigation, Survey, Experiment and Demonstration, or the state irrigation commissioner, until such time as he shall have determined the feasibility of irrigation under conditions existing at each of such plants, and all proceeds from the operation of any such plants shall be paid into and become a part of the funds herein provided, for the payment of the expenses of conducting such department; (4) to immediately take charge of all property of every kind and nature now belonging to the state of Kansas and heretofore purchased or otherwise acquired by the Board of Irrigation, Survey, Experiment and Demonstration, and the state irrigation commissioner and shall have authority to sell and dispose of any such property not including real estate and not necessary for carrying out the work of such department; (5) to make quarterly reports to the State Board of Agriculture, including itemized accounts of all receipts and expenditures of such department.” (G. S. 1935, 74-509.)
There is nothing in that statute which authorizes the Division of Water Resources or its chief engineer to conduct the hearing and make the orders contemplated by the proceeding here involved.
In 1933 the legislature passed an act (Laws 1933, ch. 206) making it “the duty of the division of water resources of the state board of agriculture, under the direction of its chief engineer and other officers and employees, to distribute the water in any natural stream among the several ditches or water users taking water from such stream, according to the rights of each as adjudicated by court decree.” This and other sections of the statute are now G. S. 1935, 74-509b to 74-509e, inclusive. In each of the sections the duties imposed upon the Division of Water Resources and its chief engineer are simply to assist in carrying out decrees of the court. At no place in the statute is the Division of Water Resources or its chief engineer given authority to make any order of distribution of water among users thereof.
No statute cited to us, and none which we have found by our own research, authorizes the defendants, or any of them, to regulate, allocate or distribute, or otherwise interfere with the use and consumption of underground waters or to conduct a hearing upon the application of anyone desiring to use such waters, or for the allocation, distribution or regulation of the use of such waters.
The result is judgment should be for the plaintiff as prayed for in its petition. It is so ordered. | [
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The opinion of the court was delivered by
Parker, J.:
This is an appeal from a judgment of the district court of Clark county affirming the judgment of the probate court of that county in admitting to probate a certain instrument as the last will and testament of May Rinker, deceased.
May Rinker, the decedent, was a widow who died on’ September 17, 1942, a resident of Clark county. She had no children and her heirs at law were her two brothers Charles B. Daily and Frank E. Daily, the appellants in this action and her sister, Lizzie Moore.
On October 26, 1942, an instrument dated March 8, 1937, was admitted to probate as the decedent’s last will and testament. Throughout the entire proceedings the appellants’ contention has been that such will, which they concede was executed in due form, had been revoked by the decedent and that she died intestate. The basis of their claim is that revocation of the original instrument resulted from, (1) marks of cancellation and obliteration appearing upon its face, (2) words of revocation placed thereon by the decedent, and (3) the execution of a later will.
At the trial the only witnesses who testified were those produced by appellees. Pertinent facts applicable to the situation are, therefore, not in dispute. The trial court made findings of fact which in themselves tell most of the story. For that reason and because only two of them are challenged by appellants as not supported by the evidence they will, except for certain narrative facts heretofore related, be set forth in this opinion in toto. They are as follows:
“2. The Will offered for probate was duly executed by May Rinker on March 8, 1937, and witnessed by H. R. Daigh and Lela A. Floyd.
“3. In 1941, May Rinker went to the office of Lela A. Floyd in Ashland, Kansas, and had with her the will, which had been executed by her on March 8, 1937. At that time she told Miss Floyd that one of the Rinkers, whom she had mentioned in the fourth paragraph of the Will had passed away, and by reason of her death she was making some changes in the provisions concerning the Rinkers, and asked Miss Floyd to re-write her Will. She went ahead and gave Miss Floyd the information as to how she wanted to re-write the Will. The pencil marks drawn through and across the fourth paragraph of the Will were made by May Rinker at the time she was instructing Miss Floyd as to how she wanted the Will re-written. About a half a day was spent in re-writing the instrument.
“May Rinker requested Lela A. Floyd and some other person who was then in the office to witness her execution of it, and May Rinker then signed the instrument in their presence, and Lela A. Floyd and the other person in the office, signed as witnesses in her presence, at her request, and in the presence of each other.
“Upon the signing of the instrument, May Rinker wrote with ink upon the right-hand margin of the first page of the prior Will the words, ‘null and void— later Will.’
“4. The only testimony concerning the execution of a second, or later will, was given by Lela A. Floyd and her testimony was that she could not remember who it was that was in the office and was requested by May Rinker, and joined with her in witnessing the execution of the re-written instrument.
“5. The re-written instrument and the prior Will, the one now offered for probate, together with other papers belonging to May Rinker, were left with Miss Floyd for safekeeping.
“6. They remained in her possession until some months later, when May Rinker came to the office of Miss Floyd, destroyed the re-written instrument by tearing it into small bits and throwing it into the wastepaper basket. The Will now offered for probate, and the other papers which Miss Floyd had, remained in her possession until about August, 1942, at which time May Rinker took from Miss Floyd’s office the envelope containing the papers and the offered Will.
“7. Two or three days before her death, May Rinker requested Juanita Kennett to go to her home and get some checks, that Miss Floyd was figuring on her income tax report; she told her the checks were in a dresser drawer and that a black bag was under the mattress and she was to get the papers and put them in the bag and bring them back to her. She found the papers in the dresser drawer and the black bag under the mattress, put the papers in the bag and took them to May Rinker at the hospital. May Rinker took one paper out and left the others in the bag and had Miss Kennett take the bag to Miss Floyd. Upon receiving the black bag at the hospital, May Rinker looked in it and said, ‘That is exactly what I want.’
“8. The black bag remained in Miss Floyd’s possession until after May Rinker’s death, at which time it was opened and the offered Will was found therein.
“9. After May Rinker’s death, Miss Floyd opened the black bag, found the offered will in it and then, for the first time, she noticed or learned that a line in ink had been drawn through the words ‘null and void — later will.’
“10. The detailed contents of the re-written instrument have not been shown. Miss Floyd is the only witness who testified concerning the contents, and she stated that she did not remember well enough to state what the contents were. She did, however, testify that it was a disposition of all her property except certain properties described in deeds which she had executed and placed in her box, and which were found in her box at the time of her death.
“11. The evidence fails to disclose the contents of the so-called ‘later will,’ and fails to disclose whether it was in fact a valid Will; fails to disclose whether it expressly or impliedly revoked the offered Will; and fails to show whether it was duly executed, witnessed and published.
“12. The pencil marks now appearing over and across the next-to-the-last paragraph of the offered Will, the same being the residuary clause thereof, were not on the Will at the time it was filed for probate in Clark county, Kansas.
“13. At the time May Rinker made the cross-marks and lines through and across the fourth paragraph of the offered Will, and wrote the words thereon, ‘null and void — later Will,’ she was deliberating upon and considering the matter of altering or changing said paragraph merely for the purpose of reallocating among the Rinker heirs certain property therein described; but it was not her intention to revoke said Will nor the fourth paragraph, nor any part of said Will, and no intention nor act manifesting such intention to revoke was ever consummated.”
Based on the findings of fact the trial court made the following conclusions of law:
“1. The offered Will was executed, published and witnessed according to law.
“2. The offered Will was not revoked by any subsequent Will.
“3. The words ‘null and void — -later Will,’ written on the margin of said Will, not having been written and witnessed with the formality required by law, do not amount tó a revocation of said Will, nor any part thereof.
“4. The pencil marks appearing upon and across the -fourth paragraph of said Will were not made by testatrix with the intent to cancel or revoke said Will or any part thereof.
“5. The offered Will is the Last Will and Testament of May Rinker, and same should be admitted to probate.”
Appellants then moved to set aside findings of fact 11 and 13 on the ground they were not supported by and were contrary to the evidence and conclusions of law 2, 3, 4 and 5 for the reason they were each contrary to the law and the evidence. They next filed a motion for new trial in which they claimed the judgment was contrary to the evidence. Later they filed a second motion for new trial on the ground of newly discovered evidence. All these motions were overruled and they then gave notice of appeal.
The principal questions raised by the appeal depend upon the construction to be placed upon the provisions of our statute providing for the manner in which wills may be revoked. The pertinent section is G. S. 1943 Supp. 59-611, which reads:
“Except as provided in section 46 [59-610], no will in writing shall be revoked or altered otherwise than by some other will in writing; or by some other writing of the testator declaring such revocation or alteration and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the' testator himself or by another person in his presence by his direction.”.
Appellants’ first contention is that the lead pencil markings drawn through and across the fourth paragraph of the original will by Mrs. Rinker were marks of obliteration and cancellation within the meaning of the terms “canceled” and “obliterated” as used in the statute and that they were placed there by her with the intention and for the purpose of revoking that instrument. They insist finding No. 13 to the effect such marks were not placed thereon by Mrs. Rinker with that intent and purpose is erroneous and that it should have been set aside on their motion. We have examined the record and find ample evidence on which the trial court could base such finding. True it might have found the markings were made with the intention of revoking the will but it did not see fit to do so. This court has repeatedly held that where there is ample evidence to support a finding of the trial court it is conclusive on appeal even though there is some evidence to the contrary. (See Huston v. Tower, 126 Kan. 527, 268 Pac. 839; Farney v. Hauser, 109 Kan. 75, 198 Pac. 178, and Brown v. Brown, 146 Kan. 7, 11, 68 P. 2d 1105.) Appellants point to In re Estate of Kemper, 157 Kan. 727, 145 P. 2d 103, and urge it is the responsibility of the appellate court to review and decide for itself what the evidence established, substantially as we would in an original case. We so held in that case on the view the trial in the court below was upon written evidence, documentary in character and in the form of depositions and transcripts. The point is not well taken. The instant case does not fall within the rule just quoted. Parol testimony as well as written evidence was introduced and considered by the trial court. Under such conditions where a question is raised that the findings of fact are not supported by or are contrary to the evidence, this court merely examines the evidence to ascertain if there is substantial competent evidence to support them and in doing so it will not review the evidence for the purpose of determining its weight and precise preponderance. (Adams v. Morgan, 142 Kan. 865, 52 P. 2d 643; Stanley v. Stanley, 131 Kan. 71, 289 Pac. 406; Farney v. Hauser, supra, and Brown v. Brown, supra.) Since finding 13 was supported by substantial competent evidence it fixed the status of the markings in the fourth paragraph of the will and appellants cannot now be heard to say they revoked that instrument.'
The same holds true of the words “Null and void — later will” as they appear upon the original instrument assuming but not conceding the soundness of appellants’ suggestion they might have been regarded by the trial court as demonstrative of an intention on the part of the testatrix to effect its revocation by marks of cancellation and obliteration.
In reaching the conclusion just announced we are not unmindful of our decision in In re Estate of Kemper, supra, which appellants cite as authority for their position, nor do we wish to detract from the force and effect of the legal propositions there stated and discussed. The factual situation there so far as marks of cancellation and obliteration are concerned, although in our judgment more pronounced and convincing, may with some justification be compared to that of the case at bar. It is at that point the analogy ceases. There, because of a situation heretofore related, it was our province to determine the facts and apply the law — try controverted issues de novo, here, it was the duty of the trial court to act as the trier of the facts and conclude from the evidence what those facts disclosed, subject, of course, to the right of appellate review for a determination of the question of whether there was substantial competent evidence to support its conclusions. It is for this reason — • and others which we will not labor might be mentioned — our decision in the Kemper case cannot be said to be a criterion determinative of the rights of the parties in the instant action.
It is next contended that the will admitted to probate was revoked by another will in writing, namely, the instrument signed by Mrs. Rinker in 1941, in the office of Lela Floyd. Preliminary to our consideration of the evidence with respect to the execution and contents of this instrument and the effect its execution had upon the probated will it may be well to give our attention to our decisions dealing with the question of when and under what circumstances “some other will in writing” as referred to in G. S. 1943 Supp. 59-611 revokes a former will which has been executed with due formality and is conceded to be in force and effect at the time the subsequent instrument is executed.
At the outset certain fundamental principles well established by our decisions dealing with the construction of wills generally should be noted. They are summarized in Zabel v. Stewart, 153 Kan. 272, 276, 109 P. 2d 177. In the opinion in that case it was said:
“It is settled in this state that the fundamental rule for construing a will is that the intention of the testator is to be gathered from the instrument as a whole, and that intention must prevail if it is consistent with the rules of law. (See Johnson v. Muller, 149 Kan. 128, 86 P. 2d 569 and cases cited.) Generally the will should be upheld where possible (Klingman v. Gilbert, 90 Kan. 545, 135 Pac. 682); should be construed to avoid intestacy, if possible (Johnson v. White, 76 Kan. 159, 90 Pac. 810), the supreme test being to determine the actual intention of the testator (Thornberry v. Fletcher, 91 Kan. 744, 139 Pac. 391), although it has been said there is no occasion for employing rules of judicial construction where the intention is expressed clearly and unequivocally in the will (National Life Ins. Co. v. Watson, 141 Kan. 903, 905, 44 P. 2d 269). Many other eases may be found, but those cited are illustrative of the rules stated.”
And reaffirmed in In re Estate of Schnack, 155 Kan. 861, 866, 130 P. 2d 591, where the above quotation was copied verbatim.
Directing our attention to the specific question under consideration we note that portion of finding No. 11 stating the evidence fails to disclose the contents of the later will, fails to disclose whether it was in fact a valid will, and fails to disclose whether it expressly or impliedly revoked the offered will. It is not claimed the contents of the second instrument were known to any one but Mrs. Rinker and to the attesting witnesses thereto. It is conceded it was destroyed by Mrs. Rinker, hence appellants were obliged to prove its contents and affirmatively establish it revoked the original. With that question in mind we have carefully examined the record, assuming facts related in the unchallenged findings. At the trial the evidence consisted of the testimony of Lela A. Floyd, one of the attesting witnesses. On this phase of the subject the record discloses the following:
“Q. Are you able to state what was in that re-written instrument? A. No, sir.
“Q. Well, in substance do you remember anything that was in it, without trying to quote it? A. In substance, yes.
“Q. What do you recall as to the substance of it? A. Well, as to the paragraph that the markings are on, it was very similar aside from the fact that there was some differences in the portions, or amounts, that went to the Rinkers.
“That was changed some.
“I do not remember what difference was stated and do not remember anything else that was in it. In some respects it was similar to the former will. She dictated it to me and I wrote it where she dictated it. She said she had acted from this point to this point. I do not recall whether or not there was a residuary clause in it or not. I do not remember whether or not there were any changes in the disposition of property, other than the paragraph to the Rinkers.
“Q. She did, however, make some disposition of her property in that instrument? A. Yes, sir.
“Q. But you do not remember what it was. A. No, sir. I do not.
“Q. Miss Floyd, do you remember whether Mrs. Rinker undertook to dispose of all her property in this so-called second will? A. No, she didn’t.
“Q. Do you know of any particular piece of property not disposed of by that will? A. Well, she had some deeds, which she had written, which were in her box at the time of her death that wasn’t disposed of by the will.
“Q. That is what you meant when you answered Mr. Minner’s question, that the will didn’t dispose of all her property? A. Yes, sir.”
It will be recalled that after the trial a second motion for new trial was filed on the ground of newly discovered evidence. For our own purposes we relate portions of the testimony of the newly found witness, one Myrtle Kennett, at this point, notwithstanding it had no bearing upon the propriety of the trial court’s ruling on the motion to set aside finding No. 11. Her testimony insofar as it related to the contents of the instrument can be summarized as follows: At the request of Miss Floyd she witnessed a paper which she remembered as a will by signing it after Mrs. Rinker signed it. She did not read the instrument, no one told her what was in it and she could give no information whatsoever regarding its contents.
An analysis of all of the above quoted testimony not only fails to disclose any evidence as to the contents of the second instrument but affirmatively discloses the witnesses did not know its contents or that it was valid as a will. True enough, there is a suggestion in the testimony, from which an inference might possibly be drawn, that the only property undisposed of by its terms was that covered by some undelivered deeds but on the other hand there was positive testimony Mrs. Rinker did not dispose of all of it. In that situation under the rule announced in the cases heretofore referred to, the finding of the court to the effect the evidence failed to disclose whether such instrument expressly or impliedly revoked the offered will is conclusive on appeal. It follows all portions of finding No. 11 just referred to were proper and must stand.
For reasons to be later disclosed, and because of the additional testimony offered on the motion for new trial, we will pass without further discussion the objection to that portion of the finding stating the evidence fails to show whether the instrument was duly executed, witnessed and published.
Giving force and effect to the findings as herein indicated what, under the decisions, must we conclude was the effect of the second will on the original instrument? In our judgment our own decisions have determined the question.
In the early case of Caeman v. Van Harke, 33 Kan. 333, 6 Pac. 620, the purpose of the proceeding was to contest the validity of a will which had been admitted to probate, and to have it canceled and set aside on the ground it had been revoked by a subsequent will. In discussing what the plaintiff must prove in order to establish her contention, the opinion states:
“. . . and it must also appear that such instrument either in express terms revoked the former will, or that its provisions, in devising the property, were so far inconsistent with the earlier will that it would operate as a revocation. Have the plaintiffs offered such proof? It was determined by the court below that they had not, and a careful examination of the testimony in the record convinces us that the court rightly decided that there was not sufficient testimony to impeach the validity of the earlier will. There is no testimony offered showing when the alleged later will was made, by whom it was drawn, whether it was regularly signed by the testator, nor that it was subscribed in the presence of attesting witnesses. No witness is offered who claims to have seen such a 'will, nor does anyone assume to have personal knowledge of what its provisions were. The testimony that was offered was very vague and unsatisfactory. . . .” (p. 336.)
Later in Hill v. Kennedy, 134 Kan. 560, 7 P. 2d 88, we said:
“In this instance the claim was that the will had been revoked by another will. No revoking will was produced or accounted for. The petition alleged the revoking will had been destroyed, and consequently the contested will was opposed by a nonentity, which caused a woman having the will habit to die intestate. Under these circumstances it was necessary to establish the revoking will by strict proof of the acts essential to the making of a valid will. The court has already spoken on this subject: ... We have here a will of the testatrix, in existence at her death in the depositary provided by law, which had been proved to be a valid and effective will in every particular, and which the law regarded as her last will. To revoke it by will it was necessary that a later revoking will, valid and effective in every particular, should be established with the certainty which would entitle it to probate. . . .” (pp. 562, 564.)
Still later in Mann v. Haines, 146 Kan. 988, 73 P. 2d 1066, the issue was whether a subsequent will which had been destroyed had the effect of revoking a former one which had been admitted to probate. The plaintiff claimed the probated will was revoked when the testatrix signed the later instrument and when it was attested and subscribed by the witness. Such is the effect of the claim made by appellants here. In that case it was held: .
“G. S. 1935, 22-241 [now G. S. 1943 Supp. 59-611], construed and held: (1) it designates the various methods or means by which a will may be revoked; (2) one of the methods provided is the execution of some other writing signed, attested and subscribed in the manner provided for the making of a will; (3) in order for such writing to revoke a will it is insufficient that it merely be executed as therein stated, but it is necessary that its terms and provisions be shown to revoke the will by express terms or by terms inconsistent therewith; (4) the burden of showing such revocation is upon the party asserting the revocation.” (Syl. If 1.)
And said:
"A will may consist of any number of instruments. (Derr v. Derr, 123 Kan. 681, 687, 256 Pac. 800.) G. S. 1935, 22-241 [now 1943 Supp. 59-611], merely designates the various methods or manners in which a will may be revoked. One of them is by means of a subsequent will. Whether such later will in fact revokes a previous will depends upon its terms and provisions. In order for a will to work a revocation of a former will it must appear the later revoked the former by express terms or that its provisions are so far inconsistent with the former as to make it impossible for the two instruments to stand together. To the extent they cannot stand together the latter, of course, operates as a revocation of the former, but not otherwise. These principles are not only firmly established in this jurisdiction, but almost universally. (Caeman v. Van Harke, 33 Kan. 333, 6 Pac. 620; Derr v. Derr, supra; Hill v. Kennedy, 134 Kan. 560, 7 P. 2d 88.) See lengthy annotation, 51 A. L. R. 652. In the absence of proof of subsequent revocation, the probated will must stand, as the legal presumption is it continued to exist until the death of the testator. (Caeman v. Van Harke, and Hill v. Kennedy, supra.)
"Appellants, however, urge the evidence disclosed a second will and even though the second will had in fact been destroyed by the testatrix, such fact would not revive the former will as it was never republished. The contention is based upon a literal interpretation of G. S. 1935, 22-242 [now G. S. 1943 Supp. 59-612], alone, and without regard to the proper construction of G. S. 1935, 22-241. Let us examine G. S. 1935, 22-242. It provides:
“ ‘If after the making of any will the testator shall duly make and execute a second will, the destruction, canceling or revocation of such second will shall not revive the first will, unless it appears by the terms of such revocation that it was his intention to revive and give effect to his first will, or unless after such destruction, canceling or revocation he shall duly republish his first will.’
“First, it should be noted this section requires not only a writing subscribed and witnessed as a will, as is the case in the former section, but in fact requires a will. There was no competent evidence the later instrument in fact constituted a legal and valid will. That fact could have been established only by the instrument itself or by other competent evidence of its contents. An examination of the instrument might have disclosed it could not possibly operate as a will. The only evidence on the subject is that the testatrix said it was a will. The statement, of course, did not make it a will. We really need, therefore, not pursue further appellants’ last contention. A short additional statement, however, may be helpful. It must be borne in mind a second will does not necessarily revoke a former uiill, and if in the instant case the second instrument had in fact constituted a will, there was no evidence it revoked the former will by express terms or by operation of law, and hence the former mil was not in need of reviving by publication or otherwise, as it had always remained in full force and effect. There is obviously no need of reviving a will the effect of which has never been disturbed. Since several instruments may constitute a will, G. S. 1935, 22-242, must be interpreted to refer to a second will which had the effect of revoking the first will entirely or in part and not to a will which was in no manner shown to be inconsistent with the first will. The burden of showing such inconsistency was on the appellants who asserted it. In this they failed.” (p. 992.) (Emphasis ours.)
With findings of fact as herein set forth and which we have approved, we believe the decisions just referred to are determinative of appellants contentions. The burden was on them to establish the contents of the second will and that its terms either expressly or impliedly revoked the former one. This they failed to do.
As disclosed in the immediate preceding opinion the principles there enunciated are almost universal. We shall not attempt to cite them. Interesting and helpful cases are Williams v. Miles, 68 Neb. 479, 94 N. W. 705; and In re Connery Estate, 175 Mich. 544, 141 N. W. 615. For lengthy annotations on the subject of revocation of a will by a later will, see 51 A. L. R. 652 and 123 A. L. R. 1395.
In passing we pause to note appellants’ contention the trial court erred in overruling their second motion for new trial. Briefly, we doubt if there was a sufficient showing of diligence in obtaining and producing the new evidence adduced at the hearing on that motion. The evidence offered was cumulative. Moreover, it is apparent the evidence produced with respect to the execution, attestation and publication of the record would not have changed the result had it been available on the original or a later trial. Under such circumstances it cannot be said the trial court erred in overruling the motion.
Finally it is argued that the words “null and void — later will” when written upon the original will were sufficient to revoke it. The.statute provides for revocation — “by some other writing of the testator declaring such revocation . . . executed with the same formalities with which the will itself was required by law to be executed,” not some other writing on the original instrument executed without that formality.
In In re Estate of Grattan, 157 Kan. 116, 120, 138 P. 2d 497, wre said:
“. . . Likewise, it has been uniformly held that as far as the subject of revocation is regulated by statute, such statutes are mandatory, they must be strictly pursued and wills cannot be revoked in any other way than that provided by them, and this is true regardless of a testator’s intention.” (p. 120.)
Both the language of our statute and our decisions preclude persons who desire to revoke wills executed with the formality and solemnity provided for by law from accomplishing that purpose unless they can show strict compliance with the provisions of the statute fixing the manner in which revocation may be accomplished.
Other arguments advanced by appellants are interesting but their determination would not affect the result and it would serve no useful purpose to prolong this opinion by discussing them. Having concluded there was no revocation of the original will by cancellation, by execution of another will or by another instrument it follows the original will was valid and in full force and effect when offered for probate. The conclusions of law made by the trial court were warranted under both the law and the evidence, and its judgment admitting such instrument to probate is affirmed.
Harvey, J., not participating. | [
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The opinion of the court was delivered by
Wedell, J.:
This is an original proceeding in mandamus, instituted by the state on the relation of the county attorney of Comanche county, to compel the county clerk to sign and issue orders or war rants for the payment of salary or compensation claims of its county commissioners.
The claims of the commissioners were the same. Omitting all ■formal parts thereof, they were as follows:
“Nov. 29. For two regular meetings attended during the month of November, 1943, the same being the salary due said Commissioner for the month of November. $62.50.”
The claims were approved by the commissioners and the county attorney. The petition alleged defendant refused to sign the orders or warrants for the reason he believed the claims were in excess of the compensation or salary provided in section 11, chapter 162 of the Laws of 1943. The answer admits that allegation, and states:
“That defendant states that the claim vouchers presented to and allowed by the board of county commissioners of said county, copies of which are attached to plaintiff’s motion-referred to as Exhibits ‘A,’ ‘B’ and ‘C,’ disclose that said commissioners attended two official meetings of said board during the month of November, 1943; but the defendant has been informed, verily believes and so states the facts to be that said commissioners performed other services as such officers and on numerous other days and portions of days, during the month of November, 1943, the nature of the services being the inspection of roads and bridges and conferring with the County Engineer and the inhabitants of the said county pertaining to the building, repairing, improving and maintaining all roads and bridges of said county.
“The defendant further shows the Court because of the ambiguity of chapter 162, Session Laws of 1943, he is in doubt and uncertain as to whether the said commissioners are entitled to be paid monthly, based upon the maxim [maximum] annual salary as set forth in section 11 of the act aforesaid; whether they are entitled to be paid the amount of compensation they received during the month of February, 1943, irrespective of-the number of days which said commissioners spent in formal meetings of the board during the month of November; or whether said commissioners are to be compensated for their services only on a per diem basis for attendance of regular meetings of the board as set out in the said claim voucher.”
The defendant prajmd for interpretation of the law and guidance in the premises.
It is admitted Comanche county is one of twenty-five counties in the state which has adopted the county-road-unit system and that its population is not more than 10,000.
The pertinent provisions of chapter 162 of the Laws of 1943 are:
“Section 1. That all officers and employees herein mentioned shall receive for their services the compensation herein allowed, and no other fees, mileage, salaries or things of value of any kind or nature whatsoever unless specifically allowed to them by law: Provided, If any monthly salary specifically allowed under any section of this act is less than the monthly salary paid the person who held the office during the month of February in the year 1943,- then such officer shall receive, in addition to the salary prescribed in this act, such an amount as will permit such officer to receive the same amount of salary monthly as the person who held such office during the month of February in the year 1943: Provided, however, No such additional amounts shall be paid after December 31, 1944. [G. S. 1943 Supp. 28-157.1
“Sec. 11. Each member of the board of county commissioners of the several counties of the state shall receive as,full. compensation for his services for the county in counties having a population of 25,000 or less the sum of six dollars per day; in counties having a population of more than 25,000 and not'more than 80,000 seven dollars per day; and shall each be allowed and receive five cents per mile actually and necessarily traveled in the transaction of any of the duties of said office, to be paid out of the county treasury monthly or in quarterly installments; Prowded, That no allowance for mileage shall .apply where traveling is done by car owned by the county and at the county’s expense: Provided further, That the salary of each commissioner shall, not exceed in any one year the following amounts:
“In counties having a population of: Per annum . . . more than 5,000 and not more than 10,000, $660 . . . Provided, That in counties operating under the county road unit plan the annual salary of each commissioner shall not exceed the following amounts:
"In counties having a population of: Per annum not more than 10,020. $750 . . . Provided, That the salary herein provided shall be .in. full for all services of every kind performed by such commissioners.” (G. S. 1943 Supp. 28-121.) (Emphasis supplied.)
Plaintiff contends the’-commissioners of Comanche county are entitled to receive a monthly salary of one-twelfth of $750 or $62.50 irrespective of the number of days they have served in any one month. .. .
Analysis of the first portion of section 11 discloses the per diem compensation of commissioners in counties having a population of 25,000 or less is the same whether the county operates under the county-road-unit plan or otherwise. The statute fixes their compensation at $6 per day. It provides a commissioner shall receive that amount per day “as full compensation for his services.” It will be observed, however, that section 11 does make a distinction between the maximum salary a commissioner may receive annually in counties operating under the county-road-unit plan and the maximum salary he ma,y receive in other counties. In the former class of counties not exceeding 10,000 in population the maximum annual salary a commissioner may receive is $750 while in the latter class of counties with the same population the maximum salary he may receive is $660. As to each of such counties the statute provides: “That the salary of each commissioner shall not exceed in any one year” the amount stated. The concluding proviso of section 11 reads: “. . . the salary herein provided shall be in full for all services of every kind performed by such commissioners.”
To what salary does the last proviso refer? Plaintiff argues it refers only to the annual salary of $750. We think it refers to both the provision for daily compensation and annual salary. But it cannot aid plaintiff’s position if the last proviso be held to refer only to annual salary: The provision for annual salary is not that it shall be $750, but it is that the annual salary “shall not exceed” $750. It therefore seems to us the only reasonable interpretation to be placed upon all of section 11 is that the legislature intended the “full compensation for his [a commissioner’s] services” was to be $6 per day in counties having a population of 25,000 or less, and that his annual salary in counties having a population of not more than 10,000 and operating under the county-road-unit plan should in no event exceed $750.
The words, “not to exceed,” clearly indicate the legislature did not intend to provide a fixed annual salary for the commissioners in question in the sum of $750! This interpretation is further fortified by the fact the statute provides the per diem compensation is “full compensation for his services-.” There are other reasons for this conclusion. One of them is 'that the present law amended G. S. 1941 Supp. 28-121 and repealed that section. The applicable portion of the repealed statute read: “Provided, That in counties operating under the county-road-unit plan the annual salary of each commissioner shall be the following amounts: In counties having a population of not more than 10,000, per annum, $600.”
We must assume the legislature deliberately made the change from a fixed salary in counties operating under the county road unit plan to an annual salary “not to exceed” the amount stated.
Plaintiff directs our attention to the fact the 1943 legislature intended to increase officers’ salaries generally and that this fact plainly appears in the 1943 salary law. The contention is not helpful. That legislature,’ as previously shown, increased the maximum compensation or salary of commissioners in counties of not more than 10,000 population and operating under the county-road-unit' plan from a previous flat $600 annual salary to a possible maximum annual salary of $750. The possibility of receiving the maximum salary or compensation in the sum of $750, of course, depends upon whether a commissioner actually serves 125 days during the year, that being the necessary number of days to entitle him to the maximum annual salary.
Plaintiff also directs our attention to the first proviso contained in section 1 of the 1943 law, previously quoted. That proviso is not applicable to county commissioners for the reason that no specifically allowed annual salary is provided for them in the act which is subject to division into specific monthly installments. The provision clearly is applicable only to an officer whose exact annual salary is fixed by the act and whose monthly salary is therefore allowed as a matter of mere mathematical calculation.
Plaintiff further emphasizes the facts admitted by defendant, previously quoted herein, that, in addition to the two days served by the commissioners in regular meetings during the month of November, they performed, during the same month, other services on numerous days and portions of days. In this connection we are reminded section 11-expressly provides commissioners are entitled to receive five cents per mile actually and necessarily traveled in the transaction of any of the duties of their office, which is to be paid monthly or in quarterly installments. The statute does provide for such payment of each mile so traveled. The legislature, composed of men of ability and experience, knew that roads and bridges could not be inspected, and that some other official functions could not be discharged, by commissioners while seated in the office located in a county seat. It therefore provided for the payment of mileage actually and necessarily traveled in the transaction of the duties of the commissioners. The legislature did not restrict compensation for services actually performed in the official. capacity of commissioners to services performed while attending a regular meeting of the board of county commissioners. In the instant case, however, no statement for such services actually rendered in addition to the two regular meetings attended in the month of November was included in the claims filed. Only two days of service were alleged to have been performed in the claim presented. “Full compensation” for two days of service claimed was $12, and not 1/12 of $750, or $62.50.
Defendant properly refused to sign the orders or warrants in the sum of $62.50 and the writ is therefore denied. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action for damages or for possession of real property and reasonable damages, filed about July 1, 1942. Each of the defendants demurred to the petition. The demurrers were sustained and plaintiff has appealed.
Plaintiff, a farmer, argued his cause in this court and advised us that he personally prepared the petition and amendments thereto, represented himself in the trial court, and that he prepared his brief.
The petition sets out two contracts for the sale of real property, and facts relating thereto, by reason of which plaintiff claimed damages, or performance and damages. While not stated as separate causes of action the contracts are so distinct as to time of execution, property to be conveyed, parties, and other provisions, as to make it necessary to treat them separately.
On March 10, 1925, appellant entered into a written contract with Gus Hildebrand under which he had an option to purchase 2,760 acres of land in Hodgeman county for $69,000, which sum included a mortgage of $28,000 to the Kansas City Joint Stock Land Bank. By this contract appellant agreed to pay the interest to the Land Bank, taxes on the real property, which included some then back taxes, to break out 800 acres of sod for farming purposes, to raise wheat and other grains, and to deliver to Hildebrand one-fourth of the grain crops each year, and if the balance of the purchase price had not been paid by March 10, 1932, Hildebrand was to give appellant a deed to the property and take a second mortgage on the land for the balance due. With respect to this contract appellant alleged that he went into possession of the property, broke out 800 acres of sod, farmed the cultivated land, and delivered one-fourth of the grain grown to Hildebrand each year, which amounted to $1,448.10, and that he also paid taxes on the land amounting to more than $5,000 and paid the Land Bank more than $14,000, and paid other items; that in January, 1931, Hildebrand, by his attorney, served notice on appellant that unless all arrears were paid within thirty days he would commence suit; that such a suit was brought; that on May 18, 1931, the suit came up in court, at which time a receiver was appointed and time for filing pleadings fixed, and in June, 1931, judgment was rendered for Hildebrand. The present plaintiff appealed to this court, but the appeal was not followed up and eventually was dismissed.. Much of the damages claimed grows out of the alleged wrongful acts of the court and the attorneys in that case. Some of these are mildly characterized as fraudulent. We think the allegations inadequate for relief on the grounds of fraud, but we have no occasion to state them more fully, since, insofar as they tend to support any action on the grounds of fraud, the cause of action was long since barred by our statute of limitations (G. S. 1935, 60-306, third) before this action was brought, and insofar as the alleged injuries to appellant grew out of trial errors in that lawsuit, they should have been corrected on appeal..
On January 1, 1932, one Fred.E. McMurray entered into a purchase agreement with Gus Hildebrand and M. G. Osborne, who in the meantime appear to have acquired some interest in the property, by which McMurray was to purchase from Hildebrand and Osborne 960 acres of land in Hodgeman county, being a part of the 2,760 acres described in the earlier contract. The purchase price was $24,000, of which the purchaser was to assume $10,000 of .the $28,000 mortgage on the land. McMurray was to take possession of the property, farm the land, and pay a share of the crops to the vendors for each year, up to and including 1941, at which time, if the land had not been paid for, the vendors were to deliver to McMurray a deed and he was to give them a mortgage on the property for the balance due. It was alleged in the petition that McMurray went into possession of the property, made valuable improvements thereon, and made payments to the vendors; that about the first of June, 1940, appellant entered into a verbal agreement with Me-. Murray to purchase his contract of January 1, 1932, by the terms of which appellant took possession of the property and cut and harvested the crops, fulfilling the agreement on McMurray’s part, and that on May 21, 1941, Fred E. McMurray and his. wife made a written assignment to appellant of all their right, title and interest in the land described in the contract of January 1,1932. Hildebrand had died in 1933 and his administrator had sold his interest in the Hodgeman county land to M. G. Osborne. It was further alleged that M. G. Osborne sued Fred' McMurray for possession of the land, which suit came up at the February, 1941, term of court in Hodge-man county; that this appellant was not notified of the suit and made no appearance therein; that about the 2d of July, 1941, M. G. Osborne took possession of the property; that appellant notified Osborne to discontinue work on the property, but he paid no attention to such notice; that when Osborne took jpossession of the property, hé took or damaged property belonging to appellant, the amount of such damages being approximately, $2,000; that there had been a change in the loan on the place, which appears now to be held by the Federal Land Bank, resulting in damage to appellant in a substantial sum.
Among the defendants to this action wás John S. Simmons, who was the attorney for Gus Hildebrand in the first action mentioned, administrator of the Hildebrand estate and attorney for Osborne in the last action. Throughout the petition and amendments thereto there are criticisms of Simmons to the effect that appellant thought Simmons was acting for his own benefit, but there is no allegation of the petition which would place any liability upon Simmons. His demurrer to the petition, upon the ground that it stated no cause of action against him, was properly sustained. Appellant made no pretense to state a cause of action against the Federal Land Bank, but made it a party defendant only because it had a mortgage ón the property. Its demurrer, on the ground that the petition did not state a cause of action against it, was rightfully sustained.
Osborne demurred to the petition on two grounds: First, that it does not state facts sufficient to state a cause of action against him. Osborne was not a party to the contract of March 10, 1925, nor to the action in 1931 by which appellant’s rights in that contract were adjudicated; hence, none of the damages which appellant contends he suffered with respect to those matters is chargeable to Osborne. Osborne was a party to the contract of January 1, 1932, and the plaintiff in the action brought against McMurray which was tried in July, 1941. Favorably construed in plaintiff’s behalf, as it must be, the petition states a cause of action against Osborne for damages for taking possession of the 960 acres in 1941 and taking or damaging plaintiff’s personal property. The second ground of Osborne’s demurrer was that there was another action pending in the same court between the same parties for the damages alleged to have resulted to appellant from the fact that Osborne took possession of the 960 acres in July, 1941. In his argument before the court appellant stated that soon after Osborne took possession of the property and would not surrender it in 1941 he employed an attorney and brought an action in Hodgeman county against Osborne for damages growing out of that transaction, and that the action was still pending. The fact there is another action pending between the same parties for the same cause of action 'is a good ground of demurrer. (G. S. 1935, 60-705, third.) It follows, therefore, that Osborne’s demurrer was rightfully sustained upon this ground.
We find no error in the ruling of the trial court. Its judgment, therefore, is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
The appeal here is from a judgment of the district court of Shawnee county, third division, which upheld and sustained an order of the state commission of revenue and taxation which con firmed an assessment of inheritance taxes made by the director of revenue. The hearing in the trial court was upon a written stipulation of agreed facts. The legal question involved is whether the gifts to certain beneficiaries in a will constituted 'vested estates in remainder as defined by our statute (G. S. 1935, 79-1504), or estates in expectancy which.are contingent under G. S. 1935, 79-1505.
J. J. Grueter was a Catholic priest residing in Sedgwick county at the time of his death, March 27, 1940. He was an American citizen of German descent. He left a will, which was duly probated May 28, 1940, in which four persons were named as executors, and the same persons as trustees, of a trust created by the will. After making a few specific bequests the testator gave all the rest and residue of his property to his trustees for purposes mentioned. The trustees were directed to sell all of the personal property, other than money, which should come into their hands, and the will provides:
“With reference to the real estate that shall come into the hands of the said trustees, my present house-keeper, Julia Freund, shall have the possession thereof during her lifetime and shall be entitled to all the rents and profits thereof during her lifetime, except with reference to . . .” (some provisions not here important.)
“After the death of the said Julia Freund, in the event Eva M. Freund, sister of the said Julia Freund, shall have predeceased her, the said trustees shall take possession of all the said real estate . . . shall then proceed to liquidate thiq trust at the earliest convenient time. . . . shall sell all said real estate, . . .
“If the said Eva M. Freund survives the said Julia Freund, the said trust shall be continued, and the said Eva M. Freund shall become, and shall be during the rest o-f her lifetime the beneficiary of the said trust and shall be entitled to the possession, rents, and profits of said real estate in the same manner and to the same extent as was the said Julia Freund during her lifetime with the same rights, privileges, duties and obligations. Then after the death of the said Eva M. Freund, in the event this paragraph become operative,* the said trustees shall liquidate this trust in the same manner as above set forth.
“The funds coming into the said trust estate shall be paid out by the said trustees to the following beneficiaries and ire the following order, . . .” (naming nine beneficiaries, with the remainder, if any, to be divided equally among two brothers and a sister of the testator, all of whom reside in Germany.)
Of the nine specific bequests the beneficiaries of six of them were exempt from inheritance tax by applicable provisions of our statute (G. S. 1935, 79-1501). Three of the gifts were not so exempt. They were:
“. . . five hundred dollars to the corporation or association owning and operating St. Vincent’s Hospital in Cologne Nippes, Germany, for the use and benefit of the said hospital; one thousand dollars to my cousin, Aloysius Koenen, of Cologne, Germany; five hundred dollars to my cousin, Herman Bolder, of Cologne, Germany.”
In the course of the administration of the estate the probate court made a report to the director of revenue which included an inventory of the estate ánd a certified copy of the will. The value of the net estate was $14,321.31, which constituted the tax base for inheritance-tax purposes. Considering this report the director of revenue determined that the taxable portion of the estate passing to the persons liable for taxes, and the amount of their tax assessed to each of them, were as follows: To Julia Freund, value of estate $5,382.99, tax $269.15; to Eva M. Freund, value of estate $1,705.65, tax $85.28; to St. Vincent’s Hospital, value of estate $500, tax $25; to Aloysius Koenen, value of estate $1,000, tax $50; to Herman Bolder, value of estate $500, tax $25. No complaint is made of the amount of inheritance tax assessed to Julia Freund. Eva M. Freund declined to pay- the tax upon request to do so, and the St. Vincent’s Hospital, Aloysius Koenen and Herman Bolder could not be contacted because of war activities. In due time the executors filed with the director of revenue a petition for the abatement of the tax of Eva M. Freund in the amount of $85.28, St. Vincent’s Hospital, $25; Aloysius Koenen, $50, and Herman Bolder, $25. After a hearing the director of revenue denied the petition. Whereupon the executors appealed to the commission of revenue and taxation, which, after a hearing, sustained the order of the director of revenue denying the petition. Whereupon the executors appealed to the district court. After reciting the above matters more in detail than here given the stipulation filed in district court proceeds:
“XIII
“That the questions involved in this proceeding are as follows:
“1. Whether the bequest to Eva M. Freund made in the Last Will- and Testament of J. J. Greuter, deceased, constitutes a ‘vested estate in remainder’ as those words are used in G. S. 1935, 79-1504, or whether such bequest constitutes an estate in expectancy which is contingent in accordance with the provisions of G. S. 1935, 79-1505.
“2. Whether the bequests to St. Vincent’s Hospital, Aloysius Koenen and Herman Bolder under the Last Will and Testament of J. J. Greuter, deceased, constitutes a ‘vested estate in remainder’ as those words are used in G. S. 1935, 79-1504, or whether they are mere interests in expectancy which are contingent in accordance with the provisions of G. S. 1935, 79-1505.
“XIV
“That if it be determined that the said-bequests to Eva M. Freund, St. Vincent’s Hospital, Aloysius Koenen and Herman Bolder, or any of them, constitute ‘vested estates in remainder’ within the meaning of G. S. 1935, 79--1504, then with respect to those bequests which are determined to constitute vested estates in remainder, the relief prayed by the appellants should be denied and the assessment of the Commission with respect to such bequests should be found to be correct both as a matter of mathematics and as a matter of law but if it be determined that said bequests,-or any of them, create interests in expectancy which are contingent under the provisions of G. S. 1935, 79-1505, then with respect to such bequests as are determined to create interests in expectancy which are contingent, the court should be ordered to abate the tax assessed against the interests, or so many of them as are found to be interests in expectancy which are contingent and with respect to such interests, the commission should be ordered to proceed in accordance with G. S. 1935, 79-1505.”
The appeal came on for hearing in the district court on March 16, 1943. No further evidence was introduced by either party. Briefs were thereafter submitted and the executors made an application for the determination of an additional question of law, namely, whether the tax was properly computed. On June 28, 1943, the court rendered its decision, holding:
“ . . . that by applying the legislative definition .in section 79-1504, G. S. Kansas 1935, to the Last Will and Testament of J. J. Grueter, deceased, Eva Freund’s interest in said estate is vested for the purpose of taxation . . .”
And also holding:
“ . . . that by applying the legislative definition in Section 79-1504, G. S. Kansas 1935, to the Last Will and Testament of J. J. Grueter, deceased, the three special bequests made to St. Vincent's Hospital, Aloysius Koenen and Herman Boulder are vested interests . . .”
and as to all of the bequests here involved finding that the order of. .the state commission of revenue and taxation confirming the assessment of the tax by the director of revenue was properly made..
“The court further finds that subsequent to the time of trial in this case, the appellants filed an application for determination of an additional question as to the correctness of the mathematical calculation and computation of the tax assessed. The court finds that the question presented by this motion was not raised and presented either to the director of revenue or to the commission of revenue and taxation; that it is contrary and inconsistent with the agreed stipulation of facts and should, therefore, be denied.”
Judgment was rendered in harmony with these findings.
The pertinent portions of our statutes (G. S. 1935) to be considered read:
“The tax upon the several shares of an estate, as herein provided, shall be determined on the actual value of the property at the time of the death of the decedent; and when any property or interest therein, or income therefrom, shall pass or be limited for the life of another, . . . the value of the said life estate, . . . shall be fixed according to the 'American experience tables’ at five percent compound interest; and the value of the remainder in said property so limited shall be ascertained by deducting the value of the life estate, . . . from the actual value of the property as found at the time of the death of the decedent. The tax on the several shares of the estate, including shares of which vested estates in remainder may be a part or all, shall be due and payable to the treasurer of the proper county, . . . Provided, That the person . . . beneficially interested in the estates in remainder charged with the said tax may elect not to pay the same until the right to come into actual possession or enjoyment of such estates accrues, and in such cases said person . . . shall give bond to the state of Kansas .. . conditioned for the payment of said tax and interest thereon at the rate of four percent per annum until such time or period as they or their representatives come into actual possession or enjoyment of such estates; . . . Vested estate in remainder, as used herein, shall include all estates where the remainderman, being alive would take at once if the life tenant were to die. (79-1504.)
“Upon estates or interests in expectancy which are contingent, the rates of tax imposed by this act shall be determined upon the value of such estates or interests at the time when the persons entitled thereto shall come into the beneficial enjoyment or possession thereof, . . . Provided, That in case it is desired to pay the tax upon such future estates or interests immediately, . . . ” (a procedure is outlined.) (79-1505.)
With respect to the estate in the real property given Eva M. Freund by the will appellants contend it is a contingent estate and that the tax thereon should be computed under section 79-1505 of the tax act rather than under section 79-1504. We think the point is not well taken and that the gift in question comes within the definition of a “vested estate in remainder” contained in the last sentence of section 79-1504. Appellants argue that this definition is in derogation of the common law, citing the specially concurring opinion of Mr. Justice Allen in Buxton v. Noble, 146 Kan. 671, 677, 83 P. 2d 43. Even if this contention is correct, which we do not decide, it is immaterial. The legislature was stating a formula for the computation of inheritance taxes. In doing so it was not required to use the common law definition of a vested remainder, or, indeed, to use any other definition of that term. Definitions found in cases where the property rights of litigants are being determined under many varieties of facts,sometimes appear to be in conflict with respect to whether a vested estate or a contingent estate was created. The legislature prudently avoided those distinctions by stating a definition of a vested estate in remainder for the purpose, and for the sole purpose, of having a rule for the computation of inheritance taxes. Appellants further contend the statutory definition of a vested estate in remainder, as used in the statute, should be applied only in cases in which the remainder estate is a fee title. We think this point is not well taken. The statute (79-1504) reads: “ . . . and when any property or interest therein, or income- therefrom, shall ... be limited for the life of another . . .” So, the legislature here was not dealing altogether with remainders in fee. This is further made clear by the definition, which reads:
“Vested estate in remainder, as used herein, shall include all estates where the remainderman, being alive, would take at once if the life tenant were to die.”
Clearly it is not limited to estates in fee. Appellants argue Eva M. Freund may die before she receives any of the benefits of the estate. Of course that may happen to anyone who receives possession or enjoyment of an estate only after the life of another. But that is not the test of a contingent estate; certainly not the test provided by our inheritance tax law. We take note of the fact that she is not absolutely required to pay the tax at this time, but may give a bond conditioned to pay the tax, with interest, .at such a time as she may come into the actual possession or enjoyment of the estate. The statute provides a definite method of computing the value of the estate, not only of Eva M. Freund, but of her sister Julia, namely, “according to the ‘American experience tables’ at five percent compound interest.” This again is an arbitrary rule and a part of the formula for computing inheritance taxes. No contention is made that the tax in question was not computed in harmony with the statute.
With respect to the bequests to St. Vincent’s Hospital, Aloysius Eoenen and Herman Bolder, appellants argue that they are contingent and that the tax thereon should be computed under 79-1505 for the reason that the time of the liquidation of the estate is uncertain, hence the amount that may be realized from the sale of the real property is uncertain, and since the nine specific bequests made shall be paid in the order named there may be no funds with which to pay these last three specific bequests. We think this contention quite untenable. There appears to be in the estate enough personal property to pay the first two of the six bequests payable in order before the three here in question are to be paid. There is no reason appearing from the record why those two cannot be paid promptly, for the will requires the trustees to pay them as funds are available. This leaves but $1,500 of the specific bequests, which apparently will have to be paid out of proceeds of the sale of the real property. We do not regard that fact as making these bequests contingent. Appellants state they found no authorities to support their view, and we have found none. ' v
Lastly, it is contended the trial court erred in not permitting appellants to submit to the court an additional question of law, namely, whether the amount of the tax was computed properly. We think there was no error in this respect. If the point were to be raised at all it should have been presented to the director of revenue and to the commission of revenue and taxation. More than that, we can see some reason in the law why the amount of assessment was correctly computed, but we have no occasion here to go into that matter.
We find no error in the record. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an original proceeding in mandamus brought to secure an authoritative interpretation of the statute relating to the taxation of insurance companies. A similar course of practice and procedure was tacitly approved in State, ex rel, v. Wilson, 102 Kan. 752, 172 Pac. 41, L. R. A. 1918D, 955.
Briefly stated, the motion for the writ sets forth the status of plaintiff and the various defendants and that defendant New York Life Insurance Company issued policies containing or not containing provisions for waiver of premium, copies of the two types of policies, each issued at age thirty-five in the amount of $10,000, being attached. Summarized, the provision for waiver reads:
“Upon receipt by the Company ... of due proof . . . that the Insured has become totally disabled . . . the Company will waive the payment of each premium falling due after the commencement of such total disability . . .”
and
“The sum payable in any settlement of this Policy shall not be reduced by premiums waived under the above provisions.”
The extra premium required for the provision for waiver of premium under the illustrative policy is $13.50. Then follows allegations that a company makes its annual return to the state insurance department, and when a policyholder pays a premium including the extra amount for the waiver provision the extra amount is accounted for separately from the premium for the life insurance, and when a premium is waived by reason of the disability of the insured, the amount thereof is required by the form of annual statement to be included as a disbursement at one place and as an item of income at another place in the annual statement made by the company. Then follows an allegation that under G. S. 1935, 40-252, the life insurance company shall pay a tax upon all premiums received at the rate of two percent per annum and that the commissioner of insurance required the company to make return of all premiums waived “under so-called waiver of premium disability riders or endorsements.” The commissioner then asserts “that notwithstanding the designation of these benefits as ‘waiver of premium for disability,’ in truth and in fact the company continues to receive the premium on the life policy by the application of the benefit which is due the insured under the disability feature to the payment of premiums on the life policy.” Omitting details, it is alleged that pursuant to demand the company returned information that it had waived payment of premiums totaling $26,634, and the commissioner of insurance assessed a tax of $532.68, which the company paid under written protest to avoid delay in renewal of its certificate of authority to transact business in Kansas; that said payment is held in a special account and is not a part of the general revenue fund of the state. The substance of the relief sought is that the company should be compelled to show cause why said protested payment should not be paid into the general fund, and that the state treasurer should be required to pay it into the general revenue fund.
We need notice only the answer of the defendant New York Life Insurance Company. In its answer the company admitted prac tically all the facts alleged in the motion for the writ. It alleged the return of information made by it was on the form which the commissioner of insurance required and not on one which it prepared, and the fact that on such blank waived premiums had to be shown as a “disbursement” or as “income” did not create income in fact. After making detailed allegations as to the form of the annual statement to the commissioner of insurance with respect to the amount of premiums received, reference is made to the portion wherein it was required to show total of premiums waived and not otherwise included and on which the company added an endorsement that the items were credited as payments only to offset the disbursement item of premiums waived. The defendant denied the truth of the commissioner’s assertion as quoted above, and alleged the action of the commissioner in compelling it to pay a tax on premiums waived and which it did not collect was illegal, and the tax, having been paid under protest, should be returned to the company. It prayed for relief accordingly.
Shortly stated, the question here is whether the insurance company is liable during a particular year to pay a tax at the rate of two percent under G. S. 1935, 40-252, on an amount represented by the total of premiums waived during the preceding year under the provisions of an insurance policy.
No case where this particular question was the issue has been called to our attention, nor does our research disclose any. Both parties direct attention to phases of State, ex rel., v. Wilson, supra, where the question was whether the company was required to pay tax on the amount of the premium stated in the policy, or on that amount less the so-called “dividends” which were applied on the payment, and in which it was held:
“The annual state tax of two percent upon all premiums received by foreign insurance companies on account of their yearly business in this state, imposed by sections 5177, 5467 and 5468 of the General Statutes of 1915, should be computed upon the total amount of premiums collected, retained and devoted to the business of the insurance companies, but any surplus of premiums not so used, but returned to the policyholders or credited to them as abatements or dividends should be excluded from the computation.” (Syl.)
' Although the parties devote some space to whether the provision for waiver of premium constitutes a separable part of the entire contract, we do not find it necessary to pursue that subject.
As we understand, the principal part of plaintiff’s contention is that where disability occurs making the waiver provision effective, the policyholder receives a benefit measured by the amount of the premium and that benefit is applied to the payment of the premium, or as otherwise stated, the term “waiver of premium” is a misnomer because what actually happens is that the payment of premium is waived because the company already has in its possession the benefits due the insured and from which the payment may be and is paid. In connection with this argument it is said the company short-cuts the matter in its bookkeeping and seeks to avoid payment of the tax on the waived but nevertheless collected premiums. There is nothing in the record to indicate any short cuts in bookkeeping. To the contrary, it appears plaintiff’s claim is based in large part on the fact that the company has included the waived premiums as “income” and as a “disbursement” in order that it may make a proper report on blanks, the form of which is determined by the plaintiff (G. S. 1935, 40-225). As we view the matter it is not controlled by the bookkeeping of the company or the report form furnished by the commissioner of insurance.
By express terms of G. S. 1935, 40-401, a life insurance company may include in a policy of insurance a provision for waiver of premiums in the event the insured becomes totally and permanently disabled, and it is such a provision that is here involved. The word “waiver” has been defined repeatedly to mean the voluntary and intelligent renunciation or relinquishment of a known right. See Eikelberger v. Insurance Co., 105 Kan. 675, 681, 185 Pac. 139, Musgrave v. Equitable Life Assurance Society, 124 Kan. 804, 262 Pac. 571, Proctor Trust Co. v. Neihart, 130 Kan. 698, 705, 288 Pac. 574, and cases cited, and Webster’s New International Dictionary, second edition, and Words and Phrases — “Waiver.” We must assume the legislature used the word in that sense, and that the provision in the policy had the same meaning. Under appropriate conditions the company renounced or relinquished its right to collect the premium. In view of the statutory language it may not be said that the use of the word “waiver” is a misnomer. Under the circumstances here obtaining, the premium was not paid and there was nothing to which the asserted tax could be attached.
It may be observed that even if it be assumed the premium was paid by application of some benefit belonging to the policyholder, it would be difficult to say that such benefit was essentially different in character from a dividend which, he permits to be applied to reduce the premium which he must pay, and to say the matter was not determined by the rule in State, ex rel., v. Wilson, supra.
From what has been said, it is concluded that plaintiff is not entitled to the writ.
Insofar as the defendant company is concerned, there is no contention but that the payment made by it was under a fully sufficient written protest. It appearing that the payment is now held by the state treasurer in a special account and that the state has no right thereto, that officer is directed to repay the same to the defendant company, and it is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from a judgment admitting a will to probate.
The will in question is that of Eva I. Wallace, a resident of Osage county, who died January 10, 1943. She was survived by her husband, George W. Wallace, appellant here, and by some brothers and sisters, who with the administrator with the will annexed are appellees here. After the death of Mrs. Wallace, a petition was filed in the probate court of Osage county to have her will, dated March 15, 1938, admitted to probate. The husband filed written objections. After a hearing the will was admitted to probate. From that order the husband appealed to the district court, and after a hearing that court rendered a comprehensive written opinion covering the facts and the law applicable thereto, and in which it found generally in favor of the proponents and against the contestant and that the will should be admitted to probate, and in its formal journal entry of judgment it found that the judgment of the probate court should be affirmed and the will admitted to probate, and it rendered judgment accordingly. From that order the husband appeals to this court.
The only question presented by the appeal is whether the will was properly executed, and depends largely on the weight to be given to the attestation clause of the will. There is no dispute as to the signature of the testatrix to the will, but only whether that signature was duly attested and subscribed in the presence of the testatrix by two or more competent witnesses who saw her subscribe or heard her acknowledge the same, as required by G. S. 1943 Supp. 59-606. The attestation clause and the signatures thereto were as follows:
“This instrument was on the day of the date thereof, signed, published and declared by the said testator Eva I. Wallace to be her last Will and Testament in the presence of us who at her request have subscribed our names thereto as witnesses in her presence and in the presence of each other.
Bertie A. Garrett,
P. W. Robison.”
The witness Robison died before the testatrix and at the hearing in the district court it was conceded his signature was genuine. At the time of the hearing in the probate court the witness Garrett was ill at her home in Topeka and her testimony was taken by deposition. Later at the trial in the district court, she was still confined to her home and by agreement her deposition was again used. There was but little oral evidence offered, and such as was considered by the trial court dealt with matters preliminary to the execution of the will. Under the circumstances, appellant directs our attention to the fact that we are in as good position as the trial court to weigh the evidence and that it is our duty to decide what the facts established. Such a rule has been recognized in In re Estate of Kemper, 157 Kan. 727, 734, 145 P. 2d 103, and cases cited therein, and will be followed here.
Mrs. Durow, a sister of Mrs. Wallace, personally present as a witness, testified that Mrs. Wallace had fallen and broken her hip and shoulder and was bedfast on March 15, 1938, on which date Mr. Robison was at the home on two occasions. On the first visit he talked with Mrs. Wallace about her will and then left to prepare it. Later he returned with the instrument now in question, at which time he, the witness and Mrs. Wallace were in the room. Mrs. Garrett, later mentioned, was called to the room. The court sustained objections to questions as to what then occurred. Certain other testimony was later admitted over objection, but was later stricken out and will not be mentioned or considered.
The deposition of Mrs. Garrett shows that she was first examined by counsel for the contestant, and then cross-examined by counsel for the proponents of the will. On her direct examination Mrs. Garrett was shown the instrument and testified that she signed it as a witness; that she did not see anyone sign it; that at the time she did not know the instrument was a will; that neither Mr. Robison nor anyone else declared it was a will; and that she learned it was a will some days later in a conversation with Mrs. Wallace. On her cross-examination Mrs. Garrett stated that she was a nurse attending Mrs. Wallace and that she was present when Mr. Robison came; that she was introduced to him; that Mrs. Wallace asked her to leave the room; that later she was called back to the room and Mr. Robison told her Mrs. Wallace was fixing up some legal papers and they would have to have another signer and would like to have her sign as a witness and that she did so. In response to a question whether Mrs. Wallace’s name was on the will she said, “If it was I never saw it. He just showed me where to sign it and I wrote it . . .” In response to other questions she said that Mrs. Wallace and Mr. Robison were present when she signed, but she didn’t re member anyone else being present; that she didn’t know whether Mr. Robison signed after she did; that she didn’t remember if his signature was or was not on the instrument. In response to a question whether Mrs. Wallace’s name was on the will, she answered: '
“No, I didn’t see anybody’s name. It isn’t because I don’t try to remember. I didn’t see anybody’s name. I didn’t look for it. I just signed like they told me to and got out.”
On further examination Mrs. Garrett stated she did not read what appeared above her signature; that she signed where they told her to and got out; that while she was nursing she had signed a good many wills.
The original will was before the trial court. In commenting on its appearance, that court stated:
"Examination of the original document shows no folding which could possibly obscure the lower one-fourth of the instrument, commencing with the appointment of an executor, followed bjf the testimonium clause the signature of Mrs. Wallace, the attestation clause and ending with the lines for the signatures of two witnesses.”
It may be stated further that the contestant offered no testimony with respect to the manner of the execution of the will other than is contained in the deposition. The question may be said to be whether the proponents of the will made a prima facie case for its admission.
Our consideration of the facts disclosed by the oral testimony concerning matters preliminary to the execution of the will, and as to which there is no dispute, and of the facts disclosed in the deposition, leads us to the conclusion that the probate court in the first instance, and the district court on appeal, correctly considered and decided the issue presented. The written opinion of the latter court covered a full discussion of the facts and the law applicable thereto and in effect appellees have adopted it as their brief. Appellant, obviously not satisfied with that opinion, calls attention to authorities and decisions which he contends compel a contrary result. In our review we shall refer to authorities found in the opinion of the district court as well as in appellant’s brief.
There have been many decisions treating of the sufficiency of the execution of a will and the weight to be given a full attestation clause, and the weight to be given the testimony of a witness which tends to contradict the recitals of the clause, and a uniformity of result has not been reached due in part to varying circumstances of fact or in some cases to differences in statutory requirements. And in some cases opposite conclusions harm been reached. An extended annotation may be found in L. R. A. 1916C, 1218 et seq., and see also the authorities hereafter mentioned.
The general rule is that where a will is offered for probate, the burden of proof in the first instance is upon the proponent to make a prima facie case showing due execution of the will and when such a prima facie showing has been made, the burden shifts to the contestant to overcome that showing by clear, satisfactory and convincing evidence.
Prior to the enactment of our present probate code, the admission to probate in the probate court was ex parte and rather informal, and in a contest action in the district court such as was then provided the order of the probate court was prima facie evidence of the due attestation, execution and validity of the will (G. S. 1935, 22-223 and 22-224). Decisions arising under the last statute are not decisive now, for the present code provides for an adversary proceeding and for written objections and a contest in the probate court, and for a trial de novo in the district court if an appeal be taken. (G. S. 1943 Supp. 59-2220, 59-2222, 59-2224, 59-2401, and 59-2408, and other pertinent sections.) The instant case presents the question of what constitutes a prima facie showing, where one witness is dead, and the testimony of the living witness tends to contradict the recitals of a rather complete attestation clause. There is no question as to the competency of the testatrix, nor that the signatures of the testatrix and witnesses are not genuine, nor that the will, on its face, was not executed in full accord with statutory requirements.
As stated by the trial court, there is abundant authority that a proper attestation clause is presumptive evidence of the facts stated in it. Apparently the great weight of authority is to that effect. See 68 C. J. 982, § 749, and p. 1018, § 799; Thompson on Wills, 2d ed. 176, § 132; 1 Underhill on Wills, 276, § 201; 1 Page on Wills, Lifetime ed. 679, § 374; 2 S'chouler on Wills, 6th ed. 888, § 774, and Harrington v. Sax, 138 Ore. 283, 4 P. 2d 635, 79 A. L. R. 389; and see, also, German Evangelical Bethel Church v. Reith, 327 Mo. 1098, 39 S. W. 2d 1057, 76 A. L. R. 604, and the annotations in L. R. A. 1916C 1218 and 76 A. L. R. 617. As is shown in the above authorities, the purpose of a full attestation clause is to preserve in permanent form a record of the facts attending the execution of the will, and the clause is intended as a safeguard against defective memory or poor and imperfect recollection as well as intentional forgetfulness and deliberate misrepresentation. There can be no doubt under our stat ute that if the testator and both witnesses were dead, a prima facie case would be made by proof of the handwriting of the testator and of the subscribing witnesses. (G. S. 1943 Supp. 59-2224.) That leads up to the weight to be given testimony of a sole surviving attesting witness whose testimony tends to contradict the recitals of the attestation clause.
The showing made by a full attestation clause, execution of which is admitted, is not conclusive, neither is the testimony of a subscribing witness which tends to contradict the recitals of that clause. Either showing may be overcome by competent evidence. But the above authorities and many of the decisions cited therein make it clear that in order that the contradictory testimony be sufficient to overcome the recitals of the attestation clause, it must be clear, satisfactory and convincing. In view of the witness’ denial that she read the attestation clause, we note the language of the court in German Evangelical Church v. Reith, supra, that
“Neither does the presumption [of valid execution] wholly lose its force if the witnesses testify the attestation clause was not read to or by them, as a few cases say. In other matters the law does not ordinarily allow people thus summarily to destroy the effect of writings signed by them. . . . They can come on the stand and deny it, of course, and sometimes truthfully; but to say their denial, however impressive, robs their previous written attestation of its character as evidence, is to confuse weight, credibility or plausibility with substance.” (1. c. 1113.)
Appellant directs our attention to Fuller v. Williams, 125 Kan. 154, 264 Pac. 77, and quotes at length from that part of the opinion commencing on page 163 dealing with the importance and solemnity of witnessing a will. We need not review what is there said. In that case the principal question was the competency of the maker of the will involved, and not the manner of its execution. The purported will did not bear any attestation clause, and the case does not treat of the problem presently confronting us.
We note that the trial court placed weight on our opinion in Rice v. Monroe, 108 Kan. 526, 196 Pac. 756. That was an action to contest a will which had been duly admitted to probate in the probate court, under procedure now replaced by the provisions of the present probate code. There, in the district court, witnesses denied due execution of the will, although they admitted acting as subscribing witnesses to a will containing a full attestation clause, and although they had given testimony in the probate court, duly reduced to writing and signed, all to the effect the will had been properly and duly executed. This court held that although there was no affirmative testimony showing due attestation, the district court was not bound to believe the witness’ testimony in that court, for they were discredited by the law. Perhaps that case is distinguishable from the case at bar, because of the sworn testimony in the probate court, and therefore may not be said to be decisive here, but that it is highly persuasive may not be gainsaid.
Measured by the above principles of law, we examine the evidence in the case at bar.
We take up first the attestation clause of the will, which it is conceded was executed by Mr. Robison and which Mrs. Garrett testified she signed. In substance that clause recites that Mrs. Wallace signed the instrument and declared it to be her last will in the presence of the two witnesses and at her request they signed their names as witnesses in the presence of the testatrix and of each other. At that stage, the situation was comparable to that which would have obtained had both witnesses been dead and their signatures had been proved, in which case there would be no argument but that a prima facie case had been made that the will had been duly executed in accordance with the requirements of our statute. The situation would be no different where, as here, the signature of the living witness was proved by her own testimony. A prima facie case for admission of the will to probate was made.
Taking up next the testimony in the deposition, what is relied upon to overcome the prima facie showing? We are asked to give controlling weight to the testimony of Mrs. Garrett contradicting in part the recitals of the attestation clause. Although Mrs. Garrett testified that she saw no one sign the instrument and that she did not know it was a will, and that she signed the attestation clause without reading it, she also testified that she had been a nurse and had signed a good many wills; that she knew she was signing a legal document as a witness. Her denial that Mrs. Wallace’s name was on the instrument when she signed it was qualified by her later statement that if the name was there she didn’t see it, and that she didn’t remember whether anyone else was present, whether Mr. Robison signed after she did, or whether or not his signature was on the instrument. The abstract does not show clearly, but about five years had intervened between the making of the will and the taking of Mrs. Garrett’s deposition, and that she might not remember would not be unusual. We have somewhat the choice whether to accept the written recitals of the attestation clause made when the event occurred, or the possible frailties of memory of five- years later disputing those written recitals. The cross-examination of Mrs. Garrett cast some doubt on her answers on direct that she didn’t see anyone sign the instrument and that she didn’t know it was a will. And the trial court’s statement, embodied in its written opinion, that an examination of the original document showed no folding which could possibly obscure the testimonium clause, the signature of the testatrix and the attestation clause which she signed, is further evidence to us that Mrs. Garrett’s statement that she did not remember what signatures there were on the will is probably true, and that possibly her recollection as to other matters is also faulty. Be that as it may, the rule is that such controverting testimony must be clear, satisfactory and convincing. As was aptly stated by the trial court in its opinion:
“It is not persuasive and the court finds itself in that state of mind described by Thompson on Wills, 176, § 132: ‘When the testimony of the attesting witnesses or one of them leaves the court in doubt as to just what happened at the time of the execution of the will, the existence of the usual attestation clause, setting forth what transpired, signed by the witnesses, is sufficient to satisfy the court that all the requirements of the statute have been complied with.’”
In our opinion the controverting evidence is not sufficiently clear, satisfactory and convincing to overcome the presumption from the duly executed attestation clause that the will was executed with all the formalities required by the statute.
The judgment of the trial court is affirmed.
Harvey, J., not sitting. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover damages for injuries alleged to have been sustained by plaintiff growing out of X-ray treatments administered by defendant.
Defendant’s demurrer to the plaintiff’s petition, on the ground it did not state facts sufficient to constitute a cause of action, was overruled and defendant appeals. It is clear from the briefs submitted that in the trial court the plaintiff contended, as he does here, that he had stated facts sufficient to warrant application of the doctrine of res ipsa loquitur, and that defendant contended that the facts stated were not sufficient to constitute a cause of action and that in any event the doctrine had no application in this type of case.
As shown by the journal entry, the trial court, in ruling on the demurrer, held that the doctrine of res ipsa loquitur did not apply to the treatment of cases such as were outlined in the petition, but that an allegation, hereafter quoted in full, that defendant had delegated work to a person unknown to plaintiff, was a sufficient allegation of negligence, and it overruled the demurrer.
From that ruling the defendant appealed. The plaintiff perfected no cross-appeal, but in his brief seeks to have reviewed the correctness of the trial court’s ruling with respect to application of the doctrine of res ipsa loquitur to all parts of his petition.
Upon oral argument in this court, the court raised the question whether, in the absence of a cross-appeal as provided in G. S'. 1943 Supp. 60-3314, the plaintiff might complain of the trial court’s ruling insofar as it was against him, and appellant has filed a reply brief in which that question is treated. Before discussing this phase further we note the allegations of the petition which for all purposes necessary here are as follows:
Defendant was a duly qualified and regular practicing physician and surgeon who held himself out as an expert in treatment of human ailments by X-ray and radium therapy, and that his skill in such field was superior to the ordinary skill of the regular practitioner of the medical profession; that plaintiff relying upon such skill, submitted himself to defendant for X-ray treatments on his leg and received six treatments on alternate days; that as the direct, immediate and approximate result of some one or more of such treatments he received a severe burn on his leg from the treatment and the X-ray machine, of such severity that it permanently crippled and disabled him and compelled him to enter a hospital for extended treatment, a detailed statement of which is not here important. After alleging the amount of damages sustained, the petition continued, viz.:
“Plaintiff further says that in the giving of said X-ray treatment in a proper and careful manner, no injury would result therefrom and no injury results therefrom except when proper skill and care is not exercised.
“Plaintiff further says that the giving of X-ray treatments under the circumstances alleged herein is such a highly skilled and specialized art and science that he has no knowledge of what is the proper technique and method and manner of giving and applying said treatment, and for that reason is unable to set out in detail or in substance the negligence of the defendant which were the approximate results of said injury, with this exception: That among the acts of negligence was the delegation of said work to a person unknown to this plaintiff and who was not a physician and surgeon and otherwise not qualified, as plaintiff is informed and verily believes and, therefore, states the fact to be without additional and further knowledge which is not available to him.”
The prayer was 'for judgment for the amount of the damages alleged.
Taking up first the extent of our review, and whether the plaintiff is limited by reason of his failure to file a cross-appeal, we think it may be assumed that his petition was so drawn as to attempt to state a situation where the doctrine of res ipsa loquitur would be applied. Without repeating earlier allegations, it will be noted that although the pleader denominated it as an act of negligence, the simple statement of the allegation segregated by the trial court is that the defendant delegated work “to a person unknown to this plaintiff and who was not a physician and surgeon and otherwise not qualified.” There is no allegation that such person did anything whatever. Even liberally construed to mean that such person did the delegated work, there is no allegation that the delegated work was done negligently or contributed to the injury. The mere fact the pleader said the act was one of negligence did not make .it so. As we read the petition the delegation of work was only one of all facts pleaded to be considered in determining whether or not a situation was presented where the doctrine contended for should be applied. We are therefore of opinion the appeal presents the question whether the petition states facts sufficient to warrant application of the doctrine.
This court in former decisions has discussed and defined the doctrine as applied to certain types of negligence cases, and has held that the doctrine of res ipsa loquitur, which means “the thing speaks for itself” is a rule of evidence and not of substantive law, and that the mere fact an accident happens or an event occurs in which injury results is not sufficient to establish liability; that negligence is never presumed but must be established by proof; that where direct proof is lacking the circumstances may be proved and if they are such as to leave no conclusion to be drawn other than that defendant be at fault, they may be shown to make a prima facie case and to warrant application of the doctrine of res ipsa loquitur. The same opinions disclose that if the plaintiff proves specific negligence the doctrine does not apply, nor where it does apply, is the defendant precluded from showing an intervening cause, the act of a third person causing the injury, vis major or other proper defense to relieve himself of liability. (See, e. g., Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 249 Pac. 599; Stroud v. Sinclair Refining Co., 144 Kan. 74, 58 P. 2d 77; and Starks Food Markets, Inc., v. El Dorado Refining Co., 156 Kan. 577, 134 P. 2d 1102, and cases and authorities cited.) The above cases and the authorities generally hold that it is essential to the application of the doctrine that it must appear the instrumentality which caused the injury complained of was at the time of the injury under the sole and exclusive control of the defendant.
As has been stated, the rule is one of evidence and not of substantive law, but it has been held that the elements pertaining to application of the doctrine may be applied in determining the sufficiency of a petition. See Starks Food Markets, Inc., v. El Dorado Refining Co., supra, where this court held that a petition which did not allege defendant’s sole and exclusive control of the instrument alleged to have produced the accident, did not state a cause of action.
Although in our previous decisions little or nothing has been said with reference thereto, it has been frequently held that it is important in considering the doctrine and its application and effect in given cases, to distinguish the doctrine from the principle that negligence may be established by circumstantial evidence, and that there is some confusion because the distinction is not observed. Although not all-inclusive, it has been held that in a situation to which the doctrine as a distinctive rule applies, there is no evidence, circumstantial or otherwise, of probative value, to show negligence, apart from the assumed proposition, resting on common experience and not on the specific circumstances of the particular • case, that the physical causes, which produced the accident or injury complained of, do not ordinarily exist, in the absence of negligence or in the absence of a breach of duty such as the defendant owed to plaintiff. The fact the doctrine is not applied does not mean that negligence may not be proved by circumstantial evidence, as well as by direct evidence. For a fuller discussion see 38 Am. Jur. 992 (Negligence, §297). Compare, also, Root v. Packing Co., 88 Kan. 413, 129 Pac. 147.
With reference to the doctrine generally, it has been said that it is not a rigid or arbitrary doctrine to be mechanically applied, but a rule to be cautiously applied, dependent on the circumstances of the case. See 45 C. J. 1200 (Negligence, § 771); 38 Am. Jur. 998 (Negligence, § 301); as well as Mayes v. Kansas City Power & Light Co., supra.
As applied to medical cases generally, and as applied to X-ray cases specifically, there is great confusion in the decisions, as is disclosed by annotations in 13 A. L. R. 1414; 26 A. L. R. 732; 57 A. L. R. 268; and 60 A. L. R. 259. In the cases cited in those annotations, it will be found that in some instances the courts have held the doctrine applicable to actions where recovery for injury from X-ray treatment was sought, and other courts have held it was not. In the annotation in 57 A. L. R. 268, 269, published in 1928, it is stated that in a majority it was held the doctrine did not apply from the mere fact of unsatisfactory results of an X-xay treatment. Without intending to say the list is complete, in the following later cases not cited in the above annotations the doctrine has been specifically applied in X-ray cases: Moore v. Steen, 102 Cal. App. 723, 283 Pac. 833 (1929); Casenburg v. Lewis, 163 Tenn. 163, 40 S. W. 2d 1038 (1931); and Adamsen v. Magnelia, 280 Ill. App. 418, 432 (1935) (where it was said the cases dealing with application “are in an unhappy discord”); and it has not been applied in the following: Kelly v. Yount, 338 Pa. 190, 12 A. 2d 579 (1940). Limits of time and space preclude reference to or analysis of many other cases where recovery for injuries resulting from X-ray burns was sought, where a discussion may be found as to the effect of evidence, circumstantial and otherwise. We do note, however, in most of the cases, there is an extended statement of the evidence, and that in none of the cases heretofore referred to did the question arise on sufficiency of plaintiff’s petition.
In support of his contention the doctrine of res ipsa loquitur is here applicable, appellee cites our decision in George v. Shannon, 92 Kan. 801, 142 Pac. 967. He isolates an instruction which we approved and relies entirely on it. It is true that so taken, the substance of the doctrine may be deduced. However, in that case, specific acts of negligence were alleged, which ordinarily prevents application of the doctrine. For aught the opinion discloses, there was evidence to support those allegations. The approved instruction advised the jury that if the X-ray machine was properly used (for diagnosis, not treatment) and when properly used burning was not a necessary result, then the fact there was a burn was a circumstance that could be taken into consideration. Under the facts of that case, it appears the instruction was more properly one on consideration of circumstantial evidence than one stating a case for application of the doctrine of res ipsa loquitur. We do not think that decision decisive of the present appeal.
In discussing the question of inferences and presumptions to be indulged in actions against physicians and surgeons, it is said in 41 Am. Jur. 236 (Physicians and Surgeons, § 127) that a physician or surgeon is presumed to exercise his legal duty of ordinary skill and care, and that he carefully and skillfully treated or operated on his patient, and that no presumption of negligence is to be indulged from the fact of injury or bad result and further that:
“The mere fact of injury or adverse result from treatment or an operation does make the doctrine of res ipsa loquitur applicable. It has no application to the death of a patient under an anesthetic. Although some courts have taken the view, in effect at least, that the doctrine res ipsa loquitur applies to injuries resulting from the use of X-rays on the patient, this view is rejected by the majority, which holds that the fact of injury raises no inference of negligence, and the majority rule has been followed by the courts in a jurisdiction which does not recognize the doctrine of res ipsa loquitur.” (41 Am. Jur. 237.)
In support of the first sentence of the above quotation, the case of Schmidt v. Stone, 50 N. D. 91, 194 N. W. 917, is cited. Reference to that opinion will show the court held the doctrine not applicable. Evidently the word “not” was erroneously omitted in the quoted statement.
This court has recognized the general rule that a physician or surgeon is presumed to have carefully and skillfully treated or operated on his patient, and that there is no presumption of negligence to be indulged from the fact of injury or adverse result. See Pettigrew v. Lewis, 46 Kan. 78, 26 Pac. 458; Paulich v. Nipple, 104 Kan. 801, 180 Pac. 771; James v. Grigsby, 114 Kan. 627, 220 Pac. 267; Riggs v. Gouldner, 150 Kan. 727, 96 P. 2d 694, and cases cited. See, also, the classic case of Ewing v. Goode, 78 Fed. 442.
Bearing in mind the principles generally set forth above, we proceed to an examination of the petition to see whether it states facts sufficient to constitute a cause of action or whether it states facts to warrant application of the doctrine of res ipsa loquitur. In a preliminary way it may be noted there is no allegation defendant was in exclusive control of the X-ray machine or of the treatment administered. Possibly that may be inferred, or perhaps we should take judicial notice of things scientific or otherwise which are generally known. (See Valley Spring Hog Ranch Co. v. Plagmann, 282 Mo. 1, 220 S. W. 1, 15 A. L. R. 266.) If we do so, we should also take notice that patients receiving such treatments, especially on the extremities of the body, are not under anesthetic but are awake and capable of observing the general physical make-up of the machine, and what is objectively done in the treatment even though they know nothing about the effect intended or actually accomplished, and are in position to allege the ultimate facts concerning the same. There is no allegation whether defendant made the diagnosis leading up to the treatment, whether that diagnosis was made by some other physician or surgeon, or just what the situation was, nor is there any allegation of the purpose for which the treatments were administered. There can be no argument but that whether the- treatment was properly administered is usually a question of fact to be determined on expert testimony, and we need not speculate on whether plaintiff submitted to a treatment without knowing its purpose. We are not warranted in taking any judicial notice from the facts stated therein, but a mere reading of the many decisions dealing with injury from X-ray treatments discloses that the purpose in many cases was to destroy malignant growth, 'or arrest its growth, and so-called burning was to an extent the purpose to be served. In a case where the court is asked to apply a doctrine, the applicability of which depends on the entire circumstances, those circumstances should be divulged. It does not seem to us a sufficient answer to say that the plaintiff need not plead his evidence, for it is a fundamental rule of pleading that while he need not plead his evidence, he must plead the ultimate facts. Nor is it any answer to say that if the defendant wanted further information, he should file a motion to make more definite and certain. The defendant has no burden to induce the plaintiff to state a cause of action where none has been alleged. Where the plaintiff seeks to take advantage of the doctrine here involved, it is incumbent upon him to show fully a situation where it is applicable.
The substance of the allegations of the petition which would in any case warrant the application of the doctrine of res ipsa loquitur are included in the two paragraphs quoted above. The first quoted paragraph is somewhat negatively stated and is a conclusion rather than a statement of ultimate facts. The second paragraph seems intended to allege inability to state what is proper treatment or wherein it was not given. As has been stated above, we do not regard the latter part of the paragraph pertaining to allegations of work as adding anything vital to the other allegations. Appellant argues that in the sum and substance of these allegations plaintiff has pleaded no negligence, or in the alternative that he seeks only to recover for a bad result. Appellee argues that he does not seek recovery for a bad result; that the treatment was not for the purpose of burning or injuring him; that the bums which he received were something beyond the scope of the treatment and not merely a bad result; and that having been inflicted as the result of negligence, he may recover therefor.
We are of opinion that in the absence of any allegation as to the purpose of the treatment or the physical situation when it was performed, a mere allegation that if the treatment had been properly administered no harm would have resulted, but harm did result from causes of which the patient was not aware, did not state facts sufficient to make the doctrine of res ipsa loquitur apply, even though it be held that it may be applicable in certain types of medical treatment cases. If it is not applied there was no sufficient allegation of negligence, and the demurrer to the petition should have been sustained. As the petition now is, we think it only alleged a claim for damages for a bad result.
Under the situation presented in this appeal we need not determine whether in every case we would hold that the doctrine of res ipsa loquitur had no application in medical treatment cases. We content ourselves here in saying the petition under consideration did not disclose a situation where it should be applied.
The ruling of the trial court is reversed and the cause remanded with instructions to sustain the demurrer.
Wedell, J., dissents. | [
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The opinion of the court was.delivered by
Dawson, C. J.:
These appeals present for review a ruling of the trial court on defendant’s demurrers to plaintiffs’ separate petitions on the ground of misjoinder of causes of action.
The actions were to recover moneys paid by plaintiffs for speculative stocks which were never delivered. Plaintiffs based their respective rights of recovery on a specific provision of the blue-sky law. (G. S. 1935, art. 17, and later amendments, G. S. 1941 Supp. 17-1223 et seq.)
In the Deruy petition (case No. 36,046) four causes of action were pleaded. It was alleged that the late Virgil E. Hurt, of Emporia, was a licensed broker in speculative securities, doing business as Virgil E. Hurt and Company. He had brokerage offices in Emporia, Pittsburg and elsewhere. One Atherton F. Messmore was the agent in charge of Hurt’s brokerage office in Pittsburg. In 1937 Hurt had leceived from the corporation commission his license to sell specu lative securities pursuant to registration as a broker and on his giving the faithful-performance bond required by the statute. Mess-more was duly registered as an agent of Hurt and he continued in that capacity until April 8, 1940.
Following the issuance of bis license Plurt sold plaintiff Deruy four separate batches of speculative securities, viz.:
(1) 60 shares of Eastern Corporation stock, for $345 cash;
(2) 200 shares of National Paper & Type Co. for $900 cash;
(3) 100 shares of National Paper & Type Co. for $437.50 cash;
(4) 110 shares of National Paper & Type Co. for $440 cash.
• Hurt likewise sold plaintiff Robinson (case No. 36,052) a similar batch of securities, viz.:
(1) 200 shares of National Paper & Type Co. for $800 cash.
All these sales were made at Hurt’s Pittsburg office, which was in Messmore’s charge. None of these stocks was delivered to plaintiffs, and they never received anything therefor, — except that some time after these sales were made a draft of a Kansas City bank for $219.83 drawn on a Chicago bank, dated July 22, 1940, payable to A. F. Messmore and A. F. Deruy and endorsed by Messmore, was mailed by an attorney for Messmore to A. B. Keller, of Pittsburg, one of the attorneys for Deruy in this action, No. 36,046.
On the same date a similar draft for $108 in favor of Messmore and John Robinson and endorsed by Messmore was received by Robinson through the United States mails.
Hurt’s license as a broker was canceled on July 10, 1940, and he died April 3, 1941. His widow qualified as executrix; and these actions, Deruy, No. 36,046, and Robinson, No. 36,052, were begun on July 7, 1941.
The demurrers lodged by the defendant Royal Indemnity Company, surety on Hurt’s bond, were predicated on what it assumed was a material inconsistency in each of the causes of action alleged,- — -that they sounded partly in rescission and partly in- tort for damages, which would imply acceptance and ratification.
In the lengthy narrative of facts pleaded in plaintiffs’ petition, it was alleged that by the failure of Hurt to deliver the purchased stocks plaintiffs were damaged in the exact amounts of money they had paid for those stocks, but the actions first and last were predicated on the statute, the pertinent provisions of which, in part, read:
“Every sale or contract for sale made in violation of any of the .provisions of this act shall be voidable at the election of the purchaser; and the person making such sale or contract for sale and every director, officer or agent of or for such seller who shall have participated or aided in any way in making such sale shall be jointly and severally liable to such purchaser in an action at law in any court of competent jurisdiction upon tender to the seller in person or in open court of the securities sold or of the contract- made, and of any income from such securities or contract for the full amount paid by such purchaser, together with all taxable court costs and reasonable attorney’s fee in any action or tender under this section: Provided, That no action shall be brought for the recovery of the purchase price after three years from the date of such sale or contract for sale. . . .” (G. S. 1941 Supp. 17-1240.)
“Before, registering any such broker the corporation commission shall require such broker to enter into and file in the office of the corporation commission a bond in the sum of five thousand dollars (85,000) running to the state of Kansas, insuring the faithful compliance with the provisions of this act by said broker and his salesmen, such bond to be executed as surety by a surety company authorized to do business in this state. Such bond may be so drawn as to cover the original registration and any renewal thereof. . . . Any person having a right of action against a broker or salesman for making a sale in violation of this act shall ha.ve a right of action under the bond or deposit provided for herein: . . .” (G. S. 1941 Supp. 17-1230.)
It will thus be seen that while statutory redress for a victim of a blue-sky swindle savors somewhat of a common law action in rescission for breach of contract, the statute fairly indicates what are the required pleadings to state a cause of action against the broker and his bondsman. The fact that in each plaintiff’s narrative of the facts he alleged that the money he was out-of-pocket for the stocks he had bought and which were never delivered damaged him to the extent of the exact sum he had so paid did not pervert his statutory action into a common-law action for damages. The petition of each plaintiff conformed strictly with the provisions of the statute; they tendered back the drafts for the inadequate sums mailed to them or to their counsel; they tendered back whatever papers they had received from the broker or his agent. We discern no semblance of misjoinder of causes of action, and the overruling of defendant’s demurrers was correct.
The judgments in both cases are affirmed. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal from an award and judgment under the workmen’s compensation act in favor of Robert Harris, an employee of the Missouri Pacific Railroad Company at Osawatomie, at which place that company has a shop and roundhouse where its engines engaged in interstate commerce are serviced and overhauled.
Harris’s duties were to clean the shop grounds, haul materials, “knock and clean fires” and firepans, wash engines, clean out trash from inside the roundhouse, clean the yards, “shovel and clean up dirt, old paper, waste,” — or “just anything that he was asked to do outside of the shops.”
On February 16, 1943, while Harris was trying to load a 55-gallon barrel of oil on a truck to transfer it from defendant’s warehouse to its supply house, he slipped and strained himself so that he suffered an abdominal pain and a pain over his left hip. The barrel of oil was to be used for filling lanterns and cans to oil the company’s machinery, including its railroad engines.
Harris filed an application for an award of compensation, which the commission allowed, and on appeal the district court affirmed the award, with a finding that—
“The duties assigned this claimant and the work actually done as a common laborer were not primarily or secondarily involved in interstate commerce and that the work being performed by claimant at the time of the accidental injury .was not even closely connected with the furtherance of interstate com- • merce.”
The amount of the award is not complained of, but the railroad insists that its relation to Harris, its employee, was governed by the Federal Employers Liability Act and not by the Kansas Work-, men’s Compensation Act.
The pertinent provision of the federal act, as it was amended, August 11, 1939, reads:
“Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of.this chapter.” (45 U. S. C. A. §51, p. 118.)
Prior to the enactment of this amendment, there was an endless procession of cases passing through the courts of the entire country, purporting to decide when, and when not, an injured employee of a railroad company should look to the local law or to the federal law for compensation or other legal redress for his injuries. The main purpose of the amendment of 1939 was to broaden the field in which the federal remedy is applicable and to narrow the field to be governed by local law. As a practical matter the extension of, federal dominion over the railroads and over the relations of railroad corporations to their employees has virtually absorbed the whole field; and the amendment of 1939 does little more than give statutory countenance to the growing trend of the decisions which had begun long before that enactment. In Begley v. Missouri Pac. Rld Co., 128 Kan. 790, 280 Pac. 902, where the question was whether an injured railway employee’s right of redress should be invoked under federal or state law, we said:
“Counsel for the litigants have had no trouble finding plenty of decisions, all more or less analogous to the case at bar, to support their respective contentions. These decisions cannot be harmonized. In general it might be said of them that in the older decisions the state courts did not readily yield to' the view nor did the federal supreme court insist on the view that the indirect incidents pertaining to the operation of an interstate railroad were themselves a part of the interstate commerce of the country to the extent that the rights or parties thereunder should no longer be governed by local law. Twenty years ago, when the federal employers’ liability law was enacted, April 22, 1908 (U. S. Comp. Stat., 1916, § 8657), it is quite unlikely that our national lawmakers realized they were legislating to the effect that in carrying a sack of bolts for the repair of a bridge in Hoboken a workman should be deemed-to have been engaged in interstate commerce, yet a judicial holding to that effect followed when it was considered that the bridge was used for interstate traffic (as well as intrastate) and that its maintenance was requisite to that traffic, and of course the bolts which the workmen carried were necessary to keep it in repair. (Pedersen v. Del., Lack. & West. R. R., 229 U. S. 146, 57 L. Ed. 1125.)” (p. 793.)
In deference to the controlling federal decisions, and more lately to the amendment of 1939 to the federal act, we have held that cases not materially differing from the one at bar were governed by the federal employers’ liability act and not by our local compensation act. (Schaefer v. Lowden, 147 Kan. 520, 78 P. 2d 48; Krouse v. Lowden, 153 Kan. 181, 109 P. 2d 138, 314 U. S. 633; Piggue v. Baldwin, 154 Kan. 708, 121 P. 2d 183; Shanks v. Union Pac. Rld. Co., 155 Kan. 584, 127 P. 2d 431; Williams v. Chicago, Rock Island & Pac. Rly. Co., 155 Kan. 813, 130 P. 2d 596.)
The case of McFadden v. Pennsylvania R. Co., 130 N. J. L. 601, 34 A. 2d 221, was identical in its material aspects with the case at bar. There the railway employee was injured while rolling a barrel of oil up a skid in preparation for filling small containers by which oil was supplied to his employer’s tugboats engaged in interstate commerce. It was held that the employee was engaged in interstate commerce within the terms of the federal act, and his claim for compensation under the workmen’s compensation act of New Jersey was disallowed. In the opinion of the New Jersey supreme court, it was said:
“However the case in hand might have been viewed under the old law, claimant plainly was engaged in interstate commerce within the intendment of the amendment of 1939, supra." (34 A. 2d 222.)
There is a plethora of similar decisions in the annotations to the amended federal statute in full accord with those just cited, holding that railway employees whose duties were of trivial character were nevertheless under the federal act in respect to their relations with their employers. (45 U. S. C. A. 131 et seq.; U: S. C. A. March 1944 Supp. 469 et seq.) See, also, the recent case of Scarborough v. Pennsylvania R. Co., 154 Pa. Super. 129, 35 A. 2d 603, decided January 27, 1944, and cases cited therein.
The judgment is reversed with instructions to render judgment for appellant. | [
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Opinion by
Holt, C.:
The defendant in error, as plaintiff - brought an action in justice’s court upon a promissory note executed by the defendants. They filed the following answer:
“Now come the said defendants and for answer to plaintiff’s bill of particulars admits the execution of the note in question, but say said note was one of two notes given as the purchase-price for a heading machine, which said machine was purchased from this plaintiff and warranted by said plaintiff to be a good machine and do good work. Defendants say that, relying on said warranty and believing the representations to be true, they purchased said machine; that said machine was worthless and of no value; defendants further say that plaintiff is estopped from recovering on this note for the reason that on the 9th day of September, 1885, the said plaintiff prosecuted another action on one of said notes, which was dated, signed and delivered at the same time of the signing and delivery of this note; that both notes were given for the purchase-price of said heading machine, and the parties plaintiff and defendant in said first suit were the same as in this case, and said first case was prosecuted by plaintiff to final judgment, and verdict by the jury in said case was in favor of the defendants, after trial on the merits of the case; and judgment was rendered on said verdict in favor of said defendants for costs; and that said judgment has not been appealed from, vacated, reversed, or set aside, but remains in full force and effect in this court; a copy of this record in said first case is hereto attached, marked ‘ Exhibit A,’ and made a part of this bill of particulars.”
The exhibit referred to showed that a jury had been im paneled and the case tried, and that they returned into court the following verdict:
“We, the jury impaneled and sworn in the above-entitled suit, do find from the law and the evidence the issues in favor of said defendants, and that they recover of the plaintiff the sum of $50 as damages. It is therefore ordered and adjudged by the court that the defendants recover of plaintiff the sum of $50 as damages, together with the costs herein, taxed at
Then follows a motion for a new trial, and a continuance until the next day, when the following proceedings were had:
“Parties appeared; argument heard; on consideration whereof the court finds, that said verdict was intended by the jury as an offset of the $50 note sued on, and the defendants, by their attorney present, in writing then offer to remit the sum of fifty dollars from the verdict of the jury; the motion for a new trial is overruled, at the plaintiff’s costs. It is therefore considered and adjudged that the defendants recover judgment for the costs herein, taxed at thirty-two dollars and fifty cents; for which let execution issue.”
To this answer the plaintiff demurred, for the reason that it did not constitute a defense; the justice sustained the demurrer, and the defendants refusing to answer further, judgment was rendered for the amount of the note. The defendants carried the case to the district court on error, where the judgment of the justice’s court was affirmed; of that ruling the defendants complain. They insist that the judgment in the former action is an adjudication of the issues arising in this action. It may or may not have been. Unquestionably, from the record brought here, the question of damages was tried in the former action, but there is nothing to show whether the question of the worthlessness of the harvester was litigated at that time; if it had been, then that would have been an adjudication of that matter in an action brought upon the other note. The defendants in their answer fail to show what all the issues were in the former action; they do not allege that either the worthlessness of the machine was then litigated, or, what is of vital importance, that that issue was decided in their favor. For these reasons, we think the answer did not state a defense, and that the demurrer was properly overruled; hence the judgment was correct, and we recommend that it be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This action was commenced in the district court of Wabaunsee county, by the defendant in error, under article 7, chapter 36, Compiled Laws of 1885. The suit was to permanently restrain the officers of the city of Alma, a city of the third claiss, from executing, issuing and delivering certain bonds for general improvements, voted at an election held on the 18th day of July, 1887, alleging that said election was without authority of law, fraudulent, and void. A restraining order and a temporary injunction were both issued and served. The city officers answered, and with other defenses alleged that before the restraining order or the temporary injunction was served upon them, or any one of them, and before they had any notice of the issuance of the same, the said bonds had been executed, issued, sold, and delivered. At the trial, the court made special findings of fact, and among them is the following:
“That a temporary restraining order was granted in this case by the court on the 22d day of July, 1887, and on the same day served upon the defendants, John F. Limerick, mayor, and Tom. E. Guest, clerk, of the city of Alma; and that a temporary injunction was granted on the 9th day of August, 1887, by the judge of this court at chambers, upon notice; that upon the trial of this cause the defendants, without objection on the part of the plaintiff, offered evidence tending to prove that before the said restraining order was served upon the mayor and clerk, they had executed, issued and delivered said bonds; and the court finds as a fact that the bonds voted at the election on the 18th day of July, 1887, were executed, issued, sold and delivered before the temporary restraining order was served upon the mayor and clerk.”
The trial court also found as a conclusion of law, that the plaintiff below is entitled to a perpetual injunction to enjoin and restrain the defendants from executing, issuing or delivering the bonds voted at said election. The only error assigned which needs comment is the judgment for a perpetual injunction, in the face of the finding that the bonds had been issued, sold and delivered before the service of the restraining order. The function of a writ of injunction is to afford preventive relief; it is powerless to correct wrongs or injuries already committed. This is alphabetical law. The injunction provided by our code of civil procedure “is a command to refrain from a particular act.” (Sections 237, 238.) Equity will not entertain a bill for an injunction to restrain the issuing of municipal bonds in aid of a subscription to a railway when the bonds have been actually issued and delivered to the company. (Menard v. Hood, 68 Ill. 121.)
It is recommended that the judgment of the district court be reversed, and the cause remanded.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This was an appeal to the district court of Chase county from an award made by commissioners to George W. Cosper, in the condemnation of a right-of-way of the railroad company through his land. Cosper owned a farm of three hundred and sixty acres, adapted to and used exclusively for the raising of cattle. The line of road as constructed and operated, extended for more than three-fourths of a mile through his land. It separated his pasture laud from the creek and timber, and from his stock-water, and, by reason of cuts and embankments, made access from one to the other difficult, and crossings expensive to construct. The commissioners awarded him $672.50. In the district court the jury returned a verdict in his favor of $2,474.41. A new trial was refused, and many exceptions saved, which are assigned for error here, and among the most important are:
First: It is insisted that the record shows that many of the witnesses who testified at the trial to the value of the land taken and the damages to the whole tract, did not have the necessary qualifications to express opinions on these subjects. They were farmers living in the neighborhood, who had knowledge of the farm for years, knew . _ 7 its location, advantages, character or soil, and its market value compared to other lands surrounding it. This brings these witnesses fairly within the rule announced by this court in the recent case of L. & W. Rly. Co. v. Hawk, 39 Kas. 638.
Second: Witnesses were asked about tbe “value” of the land, and what the land was reasonably “worth,” and responded to these questions with opinions as to the “value” and “worth” of the land. These questions and answers were at first objected to by the attorneys of the railroad company, and finally apparently acquiesced in, as they used the same expressions on the cross-examination of Cosper’s witnesses, and in the examination-in-chief of their own. As 'a rule, both sides used the expressions “value” and “worth,” instead of “market value,” the latter being used very sparingly by either side. We are not disposed, in this state of the record, to give the plaintiff in error the benefit of the objections made and exceptions saved in .the first part of the trial, because practically they were abandoned and waived by the subsequent use by the complaining party of these same words. In fact, all understood that these words were used as synonymous with “market value,” and the court charged the jury that by “value,” it was meant market value, that is, the price the land was fairly worth in the market.
Third: There was evidence offered by the plaintiff below, under objection by the railroad company, of the fact that a ditch had been.made by the company in the construction of the road, in such a way that it caused injury to the land of Cosper, by bringing surface-water in such quantities that the ditch was continually deepening and widening, and the land of Cosper was crumbling into it, and the soil was washing into the ditch. This ditch was partly on the right-of-way, and partly on Cosper’s land. It was about one hundred and sixty rods long, and when constructed was three and one-half feet deep and from five to six feet wide. It was built to catch the surface-water, drain the embankments, and carry the water to the creek. It seems to have been a necessity, as without it the surface-water would overflow the land of Cos-per, undermine and wash away the embankment, and destroy the road-bed. There is no allegation that it was negligently or defectively constructed. It is now claimed that evidence as to the location, use and effects of the ditch, was improperly admitted. The plaintiff below could not recover in this action for that part of the ditch that was located on his land and was outside of the right-of-way; neither could he recover for the damages done the adjoining land by that part of the ditch. In the case of Reisner v. Depot & Rld. Co., 27 Kas. 382, this court says:
“Beyond the limit of what was condemned, the company had no right whatever, and if it has used other portions of the lot of the plaintiff, it is not a matter of inquiry upon an appeal from the condemnation. If the company has taken possession of any part of' the lot beyond that which has been condemned, it is a trespasser thereon, and an action of ejectment may be prosecuted for its recovery, or an action for damages may be maintained for all wrongful acts done outside of the right-of-way acquired by the condemnation.”
The plaintiff below had a right to show the location of this ditch, its length, depth and width, as affecting the inconvenience of access from one part of the farm to the other; and he had a right to show that the part of the ditch that b _ r . . . was located on the right-of-way inj uriously affected pjg adjoining land. The record shows that this question was a subject of much comment by the counsel on both sides and by the court, and the following instruction was given, that fairly states the law:
“No claim for damages can be founded upon the negligent and improper construction or apprehended negligent and improper operation of the railroad, or for digging ditches upon plaintiff’s land outside the right-of-way. For all such, actions other than this one, for the recovery of damages thereon will lie. It is only such damages as necessarily result from or which may fairly and reasonably be presumed to result from the construction and operation of the road in a legal and proper manner that can be taken into account by you.”
With this instruction, it was not error to refuse to give the tenth and eleventh instructions asked for by the railroad company. We have carefully examined the evidence, and cannot find that any one witness estimated the damages in dollars and cents, that resulted from the location and construction of the ditch. The verdict is a general one, there having been no special questions as to particular items of damages requested, or submitted. It may be that the jury in arriving at their verdict, estimated the damages done by that part of the ditch located on the right-of-way. It was proper that they should have taken this into consideration, and assuming that they did, and indulging in the luxury of the presumption that they obeyed the instruction of the court, and did not consider the effect on the adjoining land of that part of the ditch located on the land of Cosper, there is no cause of complaint on the part of the railroad company.
Fourth: The next complaint is based upon the refusal of the court to give the following instruction:
“You are instructed that the plaintiff, or any person claiming under him, has, and shall at all times hereafter have, the right to make any and all crossings over the right-of-way through plaintiff’s land which plaintiff or such person may desire to make, providing that in the use of the same they shall not so use them as to interfere with the operation of the railroad of defendant over such right-of-way.”
The evidence in the record, as a matter of fact, conclusively demonstrates that the line of road as constructed through this land — for the road was built at the time of the trial on appeal— was so located as to cause great inconvenience of access from one part of the farm to the other. The dwelling-house, stables, barn and pasture were upon one side, and the timber, water, and feed lots on the other. There was but one place on the line where a crossing could be had at grade. All the witnesses examined at the trial for the plaintiff below, made these facts very important and controlling in estimating the damages. It would seem, therefore, that this was a case in which the law as to farm-crossings should have been plainly stated to the jury; but the instruction offered is very objectionable, and it is not error to refuse to give it. The land-owner certainly has not the right to make any and all crossings that he may desire. It is said in the case of K. C. & E. Rld. Co. v. Kregelo, 32 Kas. 608:
“That as a general rule the land-owner has a reasonable right to farm-crossings over a right-of-way condemned by a railroad company running through his premises, at such places as the necessities of his farm demand.”
Mills on Eminent Domain, §213, says:
“The erection of farm-crossings is under the control of the railroad, and the owner has no right to make them when and where he pleases. His convenience must yield to the public safety.”
These two things must occur to authorize the land-owner to make a farm-crossing: the necessities of the farm must require a crossing: at that particular place, and x # 0 tx x use will not interfere with the paramount use of the railroad company. The instruction refused recognized the paramount use of the railroad company, but stated the right of the land-owner to construct a crossing much too broadly. The following instruction was given by the court: “The owner still retains the title, subject to such use by the railroad, and he may use and enjoy it for all purposes and at all times not inconsistent with the right of the railroad;” and it is claimed by the defendant in error that this “glittering generality” is a sufficient declaration of the law on that subject. While it may safely be said that it is included in the instruction, yet we think that the jury ought to have been told in plain words that the land-owner had the right to crossings at such places as the necessities of the farm demanded, so that this could have been taken into consideration in the determination of the question of damages. We do not assert that it was not, but would have much preferred if their particular attention had been called to it in the instructions. But as the assignment of error in respect to this matter is, that the court erred in refusing to give the instruction asked for, and as that instruction was not a fair statement of the law, there was no error committed by the refusal to give it.
Fifth: At a point on the line of road where a ravine makes a bend across the right-of-way, the railroad company built a bridge, which was fifty feet long on the top and about thirty-five feet long at the bottom, of the width of the road-bed, and about nine feet high. The water that gathers in the ditch referred to in a former part of this opinion, is discharged into the small stream under this bridge. It is insisted by the railroad company, that the opening under the bridge could be used by the defendant in error very advantageously as an under-grade crossing, and with this view it requested the trial court to charge as follows:
“7. You are instructed that the. plaintiff, or any person claiming under him, will have the right to keep and maintain any and all under-grade crossings which could be kept and maintained across said right-of-way on plaintiff’s land, where the same will not in any way interfere with the operation of defendant’s railroad across the right-of-way.
“8. You are instructed that the plaintiff, and all persons claiming under him, would have a right at all times to use the under-grade crossings made by the bridge on plaintiff’s land, concerning -which there has been testimony offered, for the purpose of allowing any stock to pass to and fro under such bridge, and that such persons would have the right to so improve the crossing under such bridge as to make it a good crossing and a safe crossing for cattle and stock, when such improvements would in no wise interfere with the operation of defendant’s railroad over said right-of-way.”
It is claimed by the defendant in error that this bridge is built on low ground; that great quantities of mud and sand gather under the bridge; that it cannot be confined to a ditch; and that it is impracticable to make a passage-way for cattle under the bridge without great expense. It is in evidence that a short time before the trial, a witness attempted to pass under the bridge on horseback, and it was with great difficulty that he kept from “ miring down.” In answer to questions by the attorney of the railroad company, this witness stated that it would require much labor to make a crossing under the bridge, and that it would have to be riprapped to be safe for cattle. The contention of the railroad company is, that the building of the bridge has furnished Cosper an under-grade crossing that materially facilitates the access from one part of the farm to the other, and that this reduces his damage. The reply of Cosper is, that the opening under the bridge cannot be used without the expenditure of much money and labor, and hence the damage is not affected. The question is complicated by another fact: in the course of the trial, one of the witnesses testified that he had been one of the commissioners who had condemned the right-of-way; that accompanying them was an agent of the railroad, who pointed out certain places at which there were to be bridges built on the Cosper place. In view of this testimony, the attorney of the railroad company requested the court to charge the jury—
“If, at the time the commissioners condemned the right-of-way, representatives of the railroad stated to them that a bridge would be placed about where the bridge is built, so as to have an under-grade crossing for stock there, and this matter was considered by the commissioners, then in such case the railroad company would be bound to keep and maintain such bridge so as to always allow an under-grade crossing.”
This the court refused to give, but did instruct the jury as follows:
“If at the time the commissioners condemned the right-of-way through the plaintiff’s land an authorized íepresentative of the railroad company stated to them that a bridge would be placed about where the bridge is built, so as to allow an under-grade crossing for stock, and this statement was reported by the commissioners as a promise of the railroad company, and that the award was made with reference to the same, then the defendant will be bound to make and maintain such bridge, and allow the same to be used as an under-grade crossing, provided it will be of substantial utility to the farm, and will not interfere with the operation of the defendant’s road.”
The instruction given expresses the rule better than the one refused, because it states both the rule and limitations respecting crossings. The facts calling for this instruction were proved by the railroad company. Its own witness gave them in response to questions by the attorney of the company, and it requested the instruction that was substantially given. It deemed the fact important enough to have the court instruct the jury as to the law applicable. But the plaintiff in error does not so much object to this instruction as it does to the effect of giving it disconnected from the other two offered, and claims that, disconnected, it is misleading. The company-proved the fact to lessen the damages, on the theory that it had promised and provided an under-grade crossing, and if it did not answer the purpose the company would be bound to perform the contract, and that it could be- enforced against it in a proper action for that purpose. It claims, too, that if the opening under the bridge is utilized as a crossing, the two parts of the farm would be as easy of access to each other as they were before the construction of the road, by reason of the lane. It seems to us that by this evidence and instruction the company has narrowed the issue as to the under-grade crossing to the use of the bridge. And in this attitude of the question the jury could fairly say that the railroad company had not provided a suitable under-grade crossing, as it had promised, and hence they could estimate full damages for inconvenience. It made the promise in the presence of the commissioners, at the time of the appraisement of the right-of-way, and it proves this promise on the trial of the appeal. It made this showing undoubtedly to influence the amount of damages occasioned by the inconvenience of passing from one part of the farm to the other, caused by the construction of the road. Then as to the first instruction refused, there was no evidence to which it was applicable; the only place on the farm where there could be an under-grade crossing was at the bridge. The second instruction should have been given, if the railroad company had not introduced the evidence tending to show that an under-grade crossing at the bridge had been promised, and had not asked a special instruction on that subject; so that upon the whole record, and as the . _ _ _ . question arose and was presented, we do not think the court materially erred in refusing to give instructions numbered respectively seven and eight.
The other assignments of error are not important. We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Johnson county by William B. Henry against N. J. McKittrick, to compel the specific performance of a certain contract for the sale and conveyance of certain land. The petition described the land as “the southeast quarter of the northeast quarter of section 36, in township 13 of range 23, excepting therefrom seven and one-eighth acres in the southeast corner of said forty acres, in Johnson county, state of Kansas.” The petition also alleged that McKittrick represented himself to be the owner of the land, and that he “duly authorized in the manner required by law in such case, one R. E. Stevenson, a real-estate agent of Olathe aforesaid, to find a purchaser for said land, and to sell the same to said purchaser when fouiid, on the following terms and conditions, to wit,” etc.; and that Stevenson under such authority and in the name of McKittrick sold the land to Henry by the terms of a written contract which described the land as follows: “The following-described real estate, situate in Johnson county, Kansas: The southeast quarter of the northeast quarter of section 36, township 13, range 23 E., except seven acres out of the southeast corner of the same, containing thirty-three acres.” McKittrick was to furnish a complete abstract of title to the property to Henry, and if the title was found to be defective in any way, McKittrick was if possible to remedy the defects at his own expense; but if a perfect title could not be given, the money paid by Henry at the time of the purchase, which was $100, was to be returned to Henry, and the contract was then to be null and void. Henry, in accordance with the terms of the contract, paid the aforesaid $100, and tendered the remainder of the purchase-money, to wit, $2,900, and fulfilled and performed all the terms of the contract on his part; but McKittrick refused to perform on his part. There is no allegation in the petition that McKittrick ever furnished .to Henry any abstract of title; and no allegation that McKittrick owned the property, except that he rep resented himself as the owner thereof, and duly authorized Stevenson to sell the same; and no allegation as to whether there were any defects in McKittrick’s title, or not. The plaintiff also alleged in his petition that;the land had greatly advanced in value, and was worth about $7,000 more than the contract price, and that the plaintiff was damaged to that amount. There are many other allegations in the petition, which need not be mentioned. The prayer of the petition was, that the defendant should be compelled to accept the remainder of the purchase-money, and to execute and deliver to the plaintiff a deed of conveyance for the land; but if for any sufficient reason such deed of conveyance could not be executed and delivered, then that the plaintiff should recover the sum of $7,000 as damages, and costs of suit,'and equitable relief. To this petition the defendant demurred, upon the grounds — first, that the petition did not state facts sufficient to constitute a cause of action; and second, that there were several causes of action improperly joined. The court below sustained this demurrer ; and the plaintiff, as plaintiff in error, brings the case to this court for review.
As to the sufficiency or insufficiency of the petition in stating a cause of action, we would state that we think the petition is sufficient. We have not stated all the allegations of the petition, but we have stated all the supposed defects therein, and we do not think that any of such defects, or all together, render the petition insufficient. Nor do we think that several causes of action are improperly joined. In the first place, we think that only one cause of action is stated in the petition. The relief sought in the prayer of the petition does not constitute any part of the cause of action. The prayer indicates merely the object of the action, the thing sought to be obtained, the remedy demanded, and is not any part of the statement of the cause of action. A cause of action is always founded upon the following elements: first, a right on the one side, and second, an infringement upon or a violation of such right on the other side. In the present case the cause of action is made up of the following elements: First, the right of the plaintiff to receive a deed of conveyance from the defendant for the land in question; second, a violation of that right by the defendant. What the relief shall be is a very different question. It might be the specific performance of the contract for the conveyance of the real estate, or it might be for damages for the violation of such contract; and if for damages, the damages might be measured by the enhanced value of the real estate, or they might be the amount of the purchase-money already paid for such real estate, with interest. But the fact that the plaintiff might be entitled to have one of several different kinds of relief, and might pray in his petition in the alternative for one or another of such several kinds of relief, would not establish the fact that he had stated in his petition several causes of action. The question as to what is a cause of action, is elaborately discussed in the case of Scarborough v. Smith, 18 Kas. 399, 405, et seq. See also upon this subject, Bliss, Code PL, §114; Pomeroy, Rem. and Rem. Rights, §§455, 459, 480. There can be no objection to asking in the alternative for one of two different kinds of relief where either might rightfully be obtained. And under the weight of authority there can be no objection to obtaining damages in an action for the specific performance of a contract where for any sufficient reason the specific performance of the contract cannot be adjudged. (Bliss, Code PL, § 162; Pomeroy, Contr., §§480, 481. ) The fact that the compelling of the specific performance of a contract is the exercise of equitable jurisdiction, while the awarding of damages is generally the exercise of legal jurisdiction as contradistinguished from equitable, can constitute no valid objection to allowing one or the other of different kinds of relief as the proof will authorize. In this state all distinctions between actions at law and suits in equity are abolished. (Civil Code, § 10.) And “the plaintiff may unite several causes of action in the same petition, whether they be such as have heretofore been denominated legal, or equitable, or both, where they all arise out of either one of the following classes: First, the same transaction or transactions connected with the same subject of action; second, contracts express or implied.” (Civil Code, § 83. See also upon this subject, Pomeroy on Remedies and Remedial Rights, §§76 to 86; Scarborough v. Smith, 18 Kas. 399, 404, et seq.; Davis v. Morris, 36 N. Y. 569.) And upon the general doctrine of permitting a party to recover damages in an action for the specific performance of a contract where the relief of specific performance cannot be granted, see the following eases: Sternberger v. McGovern, 56 N. Y. 12; Cuff v. Dorland, 55 Barb. 481; Cross v. Everts, 28 Tex. 523; Hamilton v. Hamilton, 18 Mo. 232; Hall v. Delaplaine, 5 Wis. 206, 216, 217. The fact that equitable actions may be tried before a court, while actions of a legal character must be tried before a jury unless a jury is waived, is no sufficient objection to this mode of procedure. (Pomeroy, Rem. and Rem. Rights, §86.) In any case all the issues of fact made by the pleadings, whether legal, or equitable, or both, may be submitted to a jury for trial, and the jury may find generally or specially upon all such issues; or the case as an equitable ease, or so much of it as is equitable, may be tried before the court without a jury, and the court may determine whether equitable relief can be adjudged, or not, and what equitable relief. After the court has disposed of the case, so far as it is equitable, it may then submit the remainder of the case, if there is any remainder, to a jury. In an action for the specific performance of a contract, if the court should find that it could not require the specific performance of the contract, then whether the court itself, without a jury, might determine whether damages might be awarded to the plaintiff or not is a question which need not now be determined. Some of the courts hold that the court itself might then determine that question too, and grant or refuse damages as the evidence might authorize, while other courts hold that the question as to whether damages could be awarded or not should be submitted to a jury unless a jury had been waived. This question we shall not now determine.
The order of the court below sustaining the demurrer to the plaintiff’s petition will be' reversed, and the cause remanded with the order that the demurrer be overruled.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This case was here before upon a demurrer to the second count of the answer, and reversed. (37 Kas. 209.) After the mandate of this court was received by the court below, the plaintiff filed a reply to the defendants’ answer, and upon the issues joined trial was had. Judgment was rendered for the defendants, upon the authority of McGarry v. The State, 37 Kas. 9.
Of this, complaint is made. It is contended upon the part of the state that, as Peter L. Sowders was not present when the action against him was called for trial, and as his recognizance was forfeited and judgment rendered in his absence, the case was then closed, and the court lost all further jurisdiction. Further, it is contended that after the judgment was rendered, Sowders’s liability became fixed by the judgment, and that he could not surrender himself into the custody of the court to suffer the consequences of the judgment.
It appears from the record that the action against Sowders was called for trial in the forenoon of the 18th day of September, 1885, and the trial had between nine o’clock a.m. and ten o’clock A. M. of that day. In the forenoon, about the time the court adjourned, the attorney of Sowders notified the district judge that Sowders had come into the city, that he had been belated, and was ready to have a trial. The district judge replied he could not hear the matter then, but directed the attorney to see the other parties and have them come into court at two o’clock p. m., and he would see what could be done. The attorney of Sowders at once notified Judge Hazen, the attorney for the relatrix, that an application had been made to have the court set aside the judgment against Sowders, and that it had been set down for hearing at two o’clock p. M. of September 18 — the same day upon which judgment had been rendered. At two o’clock the defendant with his attorney appeared in court, and Judge Hazen, attorney for the relatrix, also appeared. Sowders voluntarily surrendered himself in person to the court, and the court turned him over to the custody of the sheriff. To all of this the counsel for the relatrix objected, claiming that the court had no right so to do. After the defendant was in actual custody, the court ordered that he be committed to jail until he secured the payment of the judgment rendered against him.
It has been frequently decided by this court that after the testimony has been closed the court has the power on the same day, or at the same term, to open the case and hear further testimony. Of course neither party can insist upon this, as it is a matter within the sound discretion of the court; and its ruling thereon will not be reversed, unless it appears that its discretion has been abused. (Brown v. Holmes, 13 Kas. 493; Cook v. Ottawa University, 14 id. 548; Railroad Co. v. Dryden, 17 id. 278; The State v. Teissedre, 30 id. 476; West v. Cameron, 39 id. 736.)
Again, a party against whom a judgment is rendered by default may, within the sound discretion of the court, have that judgment set aside and be let in to answer. (Gheer v. Huber, 32 Kas. 319.) Further, a trial court, for the purpose of administering justice, has a very wide and extended discretion in setting aside or modifying proceedings had in its own court, if it does so at the same term at which the proceedings were had. (Hemme v. School District, 30 Kas. 377.)
The action of the court on the afternoon of September 18 was in the nature of opening up the case heard and decided in the forenoon, for further proceedings, and this the court had a right to do within its own sound discretion. Both parties appeared by their attorneys in the afternoon, and were heard by the court. No advantage was therefore taken, and no error is apparent in the proceedings. Comp. Laws of 1885, ch. 47, § 13, being the “act providing for the maintenance and support of illegitimate children,” provides among other things that “the judgment shall specify the terms of payment, and shall require of such defendant, if he be in custody, to secure the payment of such judgment by good and sufficient sureties; or'in default thereof he shall be committed to jail until such security be given.” At the time that the order complained of was made, the defendant was in the custody of the court, and therefore the court strictly followed-the provisions of the statute. If the court had refused the application of Sowders to open up the judgment for further proceedings, we do not think it could have been held erroneous; but the application appealed to the discretion of the trial court, and the court was justified under all the circumstances in granting the same. It clearly did not lose jurisdiction, because all parties were present by their attorneys, and the judgment was opened and further proceedings, had upon the same day upon which the judgment had been rendered, and before it had been entered upon the journal of the court.
Another reason it is claimed why the judgment of the lower court should be reversed is, “that the act of the court in declaring a forfeiture of the recognizance was a judicial act — an adjudication of the sureties’ liability — and binding upon them until set aside, either upon an order of the court in which the forfeiture was declared, or by the supreme court upon a re view of the proceedings of the lower court; that neither at the time the defendant in the bastardy case surrendered himself to the jurisdiction of the court, nor at any time since, has the forfeiture been set aside.” The action of the court in effect set aside the forfeiture.
In The State v. Hughes, 35 Kas. 626, the defendant was called for sentence, and the court inadvertently adjudged him to confinement at hard labor in the penitentiary for a term of six months.
“Within an hour after sentence was pronounced, the attention of the court was called to the mistake, and the prisoner and his counsel being still in court, the case was again called, and the court proceeded to sentence the prisoner to imprisonment for a term of one year. It does not appear that a formal order was made setting aside the first sentence, but the court pronounced the second sentence upon the same verdict, stating in the record as a reason for its action, that the statute did not authorize the judgment first pronounced. This was, in effect, a setting aside of the first judgment; and the only formal judgment recorded in the case is the one under which the prisoner is in custody sentencing him to imprisonment for one year. The general rule is that the records of a court may be corrected or revised at any time during the term at which the judgment is rendered. The sentence first pronounced against the defendant was not executed or put into operation, and ‘ so long as it remained unexecuted, it was, in contemplation of law, in the breast of the court, and subject to revision and alteration/ (Commonwealth v. Weymouth, 2 Allen, 147.) We think it is clearly within the discretion and power of the court, until the end of the term, to amend and revise or increase the sentence which had not gone into effect.”
This disposes of all the matters presented.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
.Holt, C.:
The plaintiff complains, first, that chapter 67, Laws of 1867, as amended by chapter 57, Laws of 1869, is unconstitutional, contravening §17, article 2, which provides “ that in all cases where a general law can be made applicable no special law shall be enacted.” This is no longer an open question in this state. It has been held that the legislature must determine whether the purposes of a particular law can or cannot be expediently accomplished by a general law. (The State v. Hitchcock, 1 Kas. 178; Beach v. Leahy, 11 id. 23; Comm’rs of Norton Co. v. Shoemaker, 27 id. 77.)
The second complaint is, that the petition for opening the alleged road did not state facts sufficient to authorize the board of county commissioners to order the opening thereof. So far as that objection relates to the signing of the petition, we think from the examination of a photographic copy that the names were not very plainly written, and might have been, and probably were, signed by one person; but he may have been duly authorized by the others to sign their names. Some of the signers were Indians, and only one of their names — either the given or surname — was signed; there is some testimony showing that this was no unusual way of signing among them. The county board acted upon this petition, and found it signed by the requisite number, and the district court also made a like finding. We are unwilling to disturb these findings; they are supported by some evidence, and are sufficient here.
The third objection is, that said petition was not signed by ten freeholders. It is established by the evidence that eight of the eleven whose names appear upon the petition, owned land in the vicinity of the road, and that the other three were living with their wives upon land occupied by them as a home stead, the wife having the legal title to the land in each case. The question to be decided therefore is, whether a husband is a freeholder who lives with his wife on land of which she has the title, when occupied by them jointly as a homestead. A freehold estate is defined by Blackstone to be “such an estate in lands as is conveyed by livery of seisin, and may be in fee simple or conditional fee, and may be for life only.” (2 Bl. Com., p. 126.) By the common law the estate of dower was a freehold estate; and also the estate by the curtesy; and although in the latter the title to the land was in the wife, yet upon the birth of a child the husband was called tenant by the curtesy initiate, and upon the death of the wife he was called tenant by curtesy consummate. The interest that the husband has in the homestead of the wife is a different estate from that by the curtesy initiate, but in some respects at least it is analogous. It is probably a greater and more definite estate under our homestead law than given by the common law of England under the name of the estate by curtesy. It is at least a life estate, conditioned upon his occupying the premises during his lifetime, and not executing a conveyance thereof. In several of the states of the Union the interest of the wife in the homestead owned by the husband has been denominated a freehold estate. We therefore believe that the interest of the husband in the homestead owned by his wife, while they jointly occupy it, makes the husband during their marriage and occupancy a freeholder.
Another objection is, that no sufficient record was ever made of the actions of the county board in granting the alleged highway, and steps looking to the opening thereof. The entry in the road record in the first place was very meager, yet we think it was probably sufficient. There was a plat with the road marked plainly thereon, and although there should have been an entry in the journal of the county commissioners, its absence does not make the order a nullity. Section 67, General Statutes of 1868, provided that the county board shall require the reports, surveys and plats of roads to be recorded. There was no report in this case, nor survey, as the section line was declared by law to be a highway; but the plat was duly made and placed on record in a book called the road record.
The remaining objection of the plaintiff is, that no notice was ever given to the land-owners of the application for the opening and laying out of the alleged road. We think this objection valid. The statutes declared section lines in Jackson county public highways, but such a law, without providing for any compensation to the land-owners for the land taken, would be unconstitutional. (Mining Co. v. Drake, 26 Kas. 345.) In this case, however, the statute made provision for the payment of damages in conformity to the general road law. Under the general road law of 1868, before a highway could be laid out and opened it was necessary that three viewers should be appointed, whose duty it was to determine whether the road prayed for was necessary, taking into consideration its utility, convenience and practicability, and also the expense that would result if the road should be opened. It was also the duty of the said viewers to assess and determine the amount of damages sustained by any person through whose land the road might run. This section line was declared a public highway by law, and the question of practicability and utility of the road was determined in advance by the statute, but the question of damages to the land-owners was a matter still to be determined; and construing §2, chapter 89, General Statutes of 1868, so as to give it some force and meaning, we hold that it was necessary to have appointed viewers to ascertain the damages sustained by the owners of the land through which the road should pass, and until that was done, under the testimony in this case, the plaintiff had a right to treat the order opening this road as a nullity. When property is taken by the state or a county, a municipal subdivision thereof, a proper tribunal must be constituted, before whom the party may make his claim for damages. It is not necessary in a case where the state, or a municipal corporation acting by authority of the state, takes private property, that compensation shall be first paid; it is sufficient if provision is made for its payment, and an impartial tribunal constituted before whom the owner of the land can go to claim and receive his damages without delay. (Cooley, Const. Lim. 560, 561; The State v. Messenger, 27 Minn. 119.)
The owner of the land in this case had no notice of the opening of the road and the taking of her land, except what may have been given by the road record. No tribunal was constituted before which .she could present her claim for damages. The law provided how the road might have been opened, and directed the manner in which an opportunity might have been given for claiming damages for the land taken. It was not .complied with, nor even attempted to be.
We think without these preliminary steps being taken the county board had no power to grant the road, and its order was void.
Therefore we recommend that the judgment be reversed.
By the Court: It is so ordered.
Horton, C. J., and Valentine, J., concurring.
Johnston, J.:
The highway having been located and established by the legislature, the only question remaining to be settled was the amount of compensation due to the owners of the land over which the road was laid. As stated in the prevailing opinion, prepared by Commissioner Holt, private property may be taken by the state for a highway without first paying the compensation. It is necessary that suitable provision should be made by law for obtaining compensation, and to that end there must be an impartial tribunal provided which is convenient and free of access to any owner, where he can have a hearing and obtain an allowance for the property appropriated. (Cooley, Const. Lim., §§ 560, 561; The State v. Messenger, 27 Minn. 119.) In my opinion such a tribunal has been provided in this case. The provisions of the general road law are to govern in cases like this, so far as they are applicable. By that law the board of county commissioners is given authority to determine the amount of compensation for the land appropriated for the road, and to make an allowance therefor. It is the tribunal which is invested with general jurisdiction for the allowance of all claims and accounts which have become a charge against the county. It is open and free of access to every one having a claim, and was to the owners of lands appropriated in this case. | [
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Opinion by
Simpson, C.:
One H. Malloy was engaged in the mercantile business at Severy, Greenwood county, and was largely indebted to wholesale merchants and others, to an amount in excess of his ability to pay. In January, 1885, he sold out his stock of goods to a brother-in-law named W. H. Orvis for a lump sum of $2,500, no invoice being taken. Orvis paid for the goods as follows: He claimed that Malloy owed him $200, money loaned to Malloy’s wife in Canada — this was to be considered as a cash payment on the stock; a note was executed for $1,100, payable in six months, without interest; and $1,200, payable in one year. These notes were signed by Orvis alone, no security being demanded or given. At the same time, Orvis purchased the store building in which the goods were kept, and in payment thereof gave his note secured by a second mortgage for $450, subject to a first mortgage for $650. The first note was turned over to Sowders & Dennis, in pursuance of an arrangement between Orvis and Malloy. The reason for the transfer of the note to Sowders & Dennis, was to secure them for indorsements made by them to wholesale houses, for Malloy. Dennis is a brother-in-law of Orvis & Malloy. It is claimed by Orvis that this note was paid by him to Dennis about the time it became due. Orvis took possession of the store-room and stock of goods, and commenced selling them, and realized about $600 out of the sales, when in a few days thereafter the goods were attached by the creditors of Malloy, and sold out by the sheriff of Greenwood county. In March, 1885, Orvis brought this action against C. H. DeFord, the sheriff of Greenwood county, for damages for the unlawful seizure' and sale of the goods. The case was tried at the May term, 1886, and resulted in a judgment in favor of Orvis for the sum of $2,185.66 and costs. The case was tried by a jury, and a general verdict rendered, there being no special find ings of fact. A motion for a new trial was made, overruled, and excepted to. The petition in error complains of many rulings made by the trial court, in the admission and exclusion of evidence, and in giving and refusing certain instructions. The alleged error about instructions is not insisted upon in the brief of the plaintiff in error, and we shall comment only upon the points discussed in the brief.
The first serious objection that demands notice is, that the court permitted the plaintiff below to detail to the jury the conversations he had with other persons before he made the purchase, as to its advisability. These conversations were had with the brother-in-law Dennis; with one Huff, who had worked in the store occasionally for Malloy; and with Sowders. These conversations were objected to by the defendant in error, but were allowed to go to the jury. The defendant in error then made a motion to strike this evidence out, and withdraw it from the jury, and the motion was overruled. These conversations were offered and admitted to show that Orvis had acted in good faith in the purchase of the goods; that he took the matter under advisement; that he consulted with persons whom he believed had more knowledge of the condition, and were better qualified to judge of the value of the goods than he was; to show that it was not a sudden, secret sale and purchase, but that there was delay, negotiation, and publicity attending the transaction. We are not furnished with authority on this question on either side, but each very emphatically asserts his own belief about the admissibility of this evidence. Under our practice the mouth of a party to the action is open, and he can be examined and cross-examined as to his motives, and his condition of mind with reference to the particular transaction in question. His acts are the best test of his mental condition. If in this case it had been shown that he bought out Malloy hurriedly and secretly, and without consultation with anyone better acquainted with the value of goods of this character, an inference of bad faith would arise. It would seem that any fact that would justify good faith on his part ought to be admissible. If he had made inquiries in the neighborhood, and had been told by everybody of whom he had inquired that Malloy was insolvent, he would have been bound by the knowledge so received. Should he not be allowed to show that he had inquired of everybody who had opportunities of knowing the financial condition of Malloy, and all assured him that they believed him to be solvent ? It has often been held that to prove cognizance of a man’s insolvency, the talk of the neighborhood in which he does business, showing that it was a matter of common reputation in the business community that he was insolvent, is admissible. (Wharton, Law Evi. 253, and authorities cited in foot-note.) This rule proceeds from a hypothesis that while general reputation is not admissible to establish any objective fact, it is to be received, as one among many cumulative modes, to show the condition of mind as to a particular transaction. If the fact of insolvency is notorious in the neighborhood, the very great probabilities are that this person has heard it talked about, and consequently, if he deals with the insolvent, he does so with the knowledge that he is regarded in the community as an insolvent. Of course he may justify his dealings by a statement that he had not heard the subject mentioned, but it is a circumstance to be taken into consideration in determining the question of good faith.
In this case we are inclined to hold, that as every act of the defendant in error that tends to show bad faith on his part in purchasing these goods can be proved, they may be met by showing all his' acts, even to the extent of inquiries of third persons, to show his good faith. But we see no reason why what third persons have said in response to such inquiries should, under any circumstances, be permitted to go to the jury. But the fact that inquiries were made, counsel, advice and opinions solicited, tends to show good faith, i. e., absence of concealment and haste, and what was done in this respect is admissible.
The statements made by Huff, Dennis and others to Orvis, ought not to have been admitted, as they are hearsay, and under any or all rules of evidence inadmissible. They may tend to prove good faith, but are not competent for any purpose. (Weybrich v. Harris, 31 Kas. 92.) Of course it is difficult for us to tell the exact effect produced on the jury by this admission. Many or most of the facts testified to by the defendant in error as statements of Dennis, Huff and Sowders, were subsequently during the trial testified to directly by them. We have many serious doubts about these statements having any prejudicial effect on the jury. Admission of immaterial evidence is not sufficient to reverse. (Shepard v. Allen, 16 Kas. 182; Palmer v. Meiners, 17 id. 478; Greer v. Higgins, 20 id. 420; Moon v. Helfer, 25 id. 139.)
Orvis when on the witness stand testified to a conversation between Malloy and himself after the attachments were levied, tending to show that as soon as he discovered that Malloy was insolvent he denounced him as a swindler, etc. On cross-examination he was asked many questions with reference to this conversation, which under objection were ruled out by the court. The language used by the witness was not choice, but this was no reason for the refusal to permit a most searching cross-examination. The rule established in this state is, that a great latitude should be allowed in cross-examination, and this rule applies in all its vigor in cases of this character. (Fields v. Davis, 27 Kas. 400; C. B. U. P. Rld. Co. v. Andrews, 30 id. 590.)
Sowders was called as a witness for the plaintiff below, and on cross-examination was asked in relation to the payment of the $1,100 held by him and Dennis as collateral security for their indorsements for Malloy. The court sustained an objection to many questions seeking to get information on this subject. He had testified in chief about the delivery of the note to him, and the purpose of the delivery, and we think defendant in error had the right to know wjie^er jt had been paid or not, for several very important reasons: First, to find out whether the transaction was in good faith or not, by ascertaining whether the note was paid, and if so, by whom — Orvis or Malloy. If paid by Orvis when due, or if paid by him at any time, it would be a circumstance strongly indicative of his good faith in the purchase ; but if paid by Malloy it would tend to show that the sale to Orvis was colorable. We think that under the peculiar circumstances attending the sale of the stock of goods by Malloy to Orvis, that the utmost latitude ought to have been allowed in the cross-examination of all these witnesses. Sowders ought to have been compelled to answer all questions about the collection of the book accounts turned over by Malloy to Sowders and Dennis, to indemnify them against these same indorsements. The same latitude ought to have been allowed in this matter as about the note. So of the conversation Orvis had in Canada with Malloy about the $1,200 note. He was asked on cross-examination if it was not true that this note had not been paid, and would not be, if he lost this suit. This was objected to, and the court sustained the objection.
We think there was material error in all these rulings, and because of them we recommend a reversal of the judgment, and that the cause be remanded with instructions to grant a new trial.
By the Court: It is so ordered.
Horton, C. J.:
The record shows that H. Malloy was engaged in the dry-goods business at Severy, in Greenwood county; that he was largely indebted to different wholesale houses for goods, greatly in excess of his ability to pay, aud was being pressed by his creditors, and, being upon the eve of bankruptcy, sold his entire stock of goods to W. H. Orvis for $2,500. No invoice was made, but the goods were sold in lump for that sum. In the payment for these goods, an old indebtedness of $200, advanced by Orvis to Mrs. Malloy while in Canada, was deducted, and the remainder was paid by two notes, one of $1,100, payable in six months, without interest, and one for $1,200, payable in one year, signed by Orvis alone, and without security. At the same time, Orvis purchased the store building in which the goods were on sale, and in payment gave his note, secured by a second mortgage upon the building, for $450, subject to a mortgage of $650, already on the property. This was all the property Malloy had subject to the payment of his debts, and if all of this property had been honestly applied to their payment, it would still have left a large indebtedness unpaid.
Orvis recovered judgment for $2,185.66 for the goods which he alleged he purchased of Malloy, and which the creditors of Malloy levied upon to pay their claims. It is conceded that Malloy was insolvent at the time that Orvis purchased his goods.
I have some doubt whether the refusal of the trial court to permit the cross-examination concerning the payment of the $1,100 note was material error. It appears from the record that Orvis testified that he paid that note, and upon the witness stand he produced the note which had been executed by him, for the inspection of all the parties. I think the court committed error in rejecting the evidence concerning the $1,2JO note referred to. Orvis should have been permitted to answer among other questions the following: “Q,. Have you seen the $1,200 note since you signed it, at any time?” “Q,. Have you paid any portion of that note?” “Q,. Do you know who holds that note at this time?” And also the other questions referred to in the opinion.
I base my concurrence in the reversal of the judgment of the trial court principally, however, upon the ground that Orvis was a bona fide purchaser of the stock to the amount of $1,100 only. The note for that amount was delivered to Sowders & Dennis, who were indorsers for Malloy, at the request of the latter. The other notes, one for $1,200, and the one for $450, have not been paid by Orvis, and there is nothing in the record showing conclusively that these were negotiable notes. Orvis testified that these notes were payable to Malloy — not to his order, or bearer.
At the time of the trial, the $1,200 note was overdue, and had not yet been paid. The evidence in the record leads to the belief that at the time of the trial these notes were in the hands of Malloy, who now resides in Canada. Even if the notes were negotiable, if they have never passed out of the hands of Malloy to a bona fide holder, then Orvis has a good defense to them. “The protection to which a bona fide purchaser without notice is entitled, extends only to money which has been actually paid, or to securities or property which have been actually appropriated by way of payment before notice, and notice before actual payment of all the purchase-money is binding as to the consideration not paid, in the same manner as notice had before pu'rchase.” In other words, to entitle a person to the character of a bona fide purchaser without notice, he must have acquired the legal title and have actually paid the purchase-money or parted with something of value by way of payment before receiving notice. And even if notice is only after a payment of a part of the purchase-money, the purchaser is entitled to reimbursement only for. the money paid. (Bush v. Collins, 35 Kas. 535; Dodson v. Cooper, 37 id. 346; Green v. Green, 41 id. 472.) The court nowhere in its instructions stated that Orvis could not be a bona fide purchaser as to the $1,200 and $450 notes not paid, unless those notes were negotiable, and had passed out of the hands of Malloy before due. These matters should have been commented upon and fully considered in the instructions to the jury.
Again, it appears from the testimony that within two or three days after Orvis made his alleged purchase of the stock of goods, and executed his notes, several attachments were levied upon the stock, and he had then full knowledge of the insolvency and fraud of Malloy. At this time the $1,200 and $450 notes were in the hands of Malloy to the knowledge of Orvis. If he had been prudent and diligent he could have prevented the payment of these two notes by proper legal proceedings against Malloy, who had obtained them by fraud. (Bush v. Collins, supra.) I also think the statements of Huff, Dennis and others to Orvis, as stated in the opinion, were hearsay only, and therefore inadmissible. For the above reasons I concur in the reversal of the judgment, and the order for a new trial of the cause. | [
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Opinion by
Simpson, C.:
Thomas Kane & Co. commenced their action against the defendants in error before a justice of the peace in Eice county, to recover the sum of $31.80 for two slate-stone blackboards, furnished the school district of which the defendants in error were the officers. An appeal was taken to the district court, a trial had by jury, and a verdict and judgment for the defendants in error. The only controverted questioq of fact is that of payment. The blackboards were sold to the school district by one Eoberts, whose agency for the purposes of sale is undisputed. The question is, whether he was authorized to receive payment. The defendants in error paid Eoberts, and defend the payment on the sole ground that, as he was the acknowledged agent for the sale, he was the apparent person to whom to make the payment. The goods were shipped about the 5th day of October, 1885, from Chicago, to L. S. Barstow, Little Eiver, Kansas. With the goods was sent a bill with the following heading: “Settlements must be made directly with us; in no case with an agent or salesman unless he presents our written authority. We shall hold purchasers responsible for the strict observance of this rule.” The blackboards were to be paid for in thirty days, but the payment was not made to Eoberts until about the 22d of February, 1886. On the 2d day of November, 1885, Kane & Co. sent a bill to Barstow, stating therein that it was payable in Chicago. On the first day of January, 1886, they sent a bill to Barstow, stating therein that it was payable in Chicago. The defendants in error denied knowledge of these bills, and denied ever having received any notice not to pay to Eoberts. They admitted that they received bills, but denied knowledge of the notice not to pay agents. This was the only,transaction between the parties. There had been no previous dealings with Kane & Co. through Eoberts or anyone else. On this state of facts the trial court was requested by the plaintiffs in error to instruct the jury as follows:
“1. Since the principal is bound only by such acts of his agent as have been authorized or allowed, proof that an agent has authority to make a sale of goods or to take orders for them to be filled by the principal, is not sufficient to prove •that the agent has the authority to collect the pay for the goods afterward. The defendants must prove that Roberts, the man to whom they paid, was authorized to receive the money, or else fail in their defense.
“ 2. That the rule that a principal is bound by the acts of his agent which are within the apparent scope of the agent’s authority, has no application to this case; this rule is applicable only where there have been previous transactions of a similar character in which the agent exceeded his powers, but which the principal ratified without question or without information, the opposite party being ignorant of the limitation of the agent’s authority, and the excess in the particular instance, thereby leading the opposite party to believe that the agent has all the powers that he assumed to have.”
These instructions the court refused to give, but charged the jury as follows:
“ It is claimed by the plaintiffs in this suit that Roberts had no authority from them to collect payments for these blackboards, and this is a material question in this case; and as to what is the apparent authority of an agent, is also a material question for the jury to consider. A principal is bound by the representations of his agent; and is also bound by the contracts which his agent makes within the apparent scope of the agent’s authority. If the agent had the authority in this case to collect money, or if the collection of money was within the apparent scope of his authority, and if the defendants made payment to him without any further knowledge of his authority except what was apparent, then it would be payment to the principal, and if such payment was made, the plaintiffs cannot recover in this case. It is within the apparent scope of an agent’s authority, where he has authority to sell, to collect for such sales; for instance, in this case, if Mr. Roberts had the authority to sell blackboards for the plaintiffs, it was apparently within the scope of his authority to collect payment for such sales, and not authorized to collect; in order that the defendants would be held responsible for any pay ments they might make to Mr. Roberts on such sales, it was the duty of the plaintiffs to notify the defendants of the limit of their agent’s authority. There has been introduced in evidence what is claimed by the plaintiffs to be a copy of the bill which was sent with the goods to the defendants at the time they were shipped, upon which it is claimed there was said to be a statement as to the manner in which these goods should be paid for; under that statement there appeared to be a limited authority to their agent — that is, he is limited to the authority to sell goods, but has no authority to collect pay for the goods. If this knowledge was made known to the defendants, or if it was made known or brought to the knowledge of the defendants before they made a payment to Mr. Roberts, if they made a payment to their agent, Mr. Roberts and son, then they would not be heard to say in defense they had made a payment to the agent, because in such a case they were notified by the principal that they should not pay their agent, and in that case any payment made to the agent would be made at the defendants’ own risk.”
We think the first instruction prepared by the plaintiffs in error fairly embodies the law applicable to the state of facts presented. It is laid down in the text-books, and declared in many decisions of courts of last resort, that authority to an agent to sell goods does not include authority to collect pay for goods thus sold. (Story on Agency, §§98, 99, 181, 191, and cases cited.) It is claimed by the attorney for the plaintiffs in error that the following cases are in point on this question. We have examined a few of them, and find that they declare the doctrine: Higgins v. Moore, 34 N. Y. 417; Kornemann v. Monaghan, 24 Mich. 36; Butler v. Dorman, 68 Mo. 298; McKindly v. Dunham, 55 Wis. 515; Clark v. Smith, 88 Ill. 298; Greenleaf v. Egan, 30 Minn. 316; Kohn v. Washer, 64 Tex. 131; Crosby v. Hill, 39 Ohio St. 100; Graham v. Duckwall, 8 Bush, (Ky.) 12; Seiple v. Irwin, 30 Pa. St. 513.
The instruction of the court that “It is within the apparent scope of an agent’s authority, where he has authority to sell, to collect for such sales; for instance, in this case, if Mr. Roberts had the authority to sell blackboards for the plaintiffs, it was apparently within the scope of his authority to collect payment for such sales,” is squarely in the face of all these authorities as cited above.
The second request of the plaintiffs in error embodies the law on that point, as announced by this court in the case of Banks v. Everest, 35 Kas. 687, and should have been given. In this action between the principal and third parties who seek to establish the agency of Roberts, his declarations that he was the agent of Kane & Co. never ought to have been permitted to go to the jury as evidence of his agency under any circumstances.
Eor these errors occurring at the trial, we recommend 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. | [
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The opinion of the court was delivered by
Harvey, J.:
Plaintiff, as the beneficiary named in an insurance policy on the life of his wife, sued to recover $1,000, being the principal sum of $500 named in the policy for the death of insured and a like amount upon the alleged ground that the death of insured was the result of an accident. A jury trial resulted in a verdict for plaintiff for $500. Both parties have appealed.
In the petition it was alleged, in more detail than is here set out, that the policy was issued June 1, 1940; that the insured died November 2, 1940, while the policy was in full force, and that her death was the direct and proximate result of an accident, within the terms of the policy; that plaintiff had given defendant due notice of the death of insured and made claim for loss, but that defendant had failed to pay the sum due under the policy and had denied liability thereon.
The defense was that the contract of insurance was obtained by the insured by her false representations by declaring in her written application for the policy that she was in good health and that she had never had or been treated for a stated list of diseases, “or any disease or injury not mentioned,” understanding that defendant in passing upon her application would rely and act upon her declaration being “complete, true and correct”; that in fact the insured was not then in good health and had been treated by physicians and surgeons for some months for serious diseases, which were detailed; that had the insured truthfully stated the condition of her health in her application the defendant would not have issued the policy. • Defendant specifically denied that the death of the insured was an accident, as defined by the terms of the policy. Defendant tendered back premiums which had been paid and asked to be relieved of further liability.
Plaintiff in his reply denied the insured made any false statement to defendant; alleged that defendant’s agents were fully informed by insured of the state of her health and that she had been hospitalized and treated by physicians; that if there were any statements to the contrary in the written application they were placed there by the agents of the defendant, who had full knowledge of the facts, and that by reason thereof defendant waived any right to charge lack of knowledge of the health of insured and is estopped to claim -such representations induced it to issue the policy. Plaintiff further alleged that if any representations, such as stated in defendant’s answer, were made, which plaintiff denied, the matters misrepresented did not contribute to the contingency or event on which the policy became due and payable, and by reason thereof our statute (G. S. 1935, 40-418) prohibits defendant from denying liability.
There is no journal of the court setting out the proceedings at the trial, and the record before us does not disclose that judgment has been entered on the verdict at any time. The record does disclose, however, that at the close of plaintiff’s evidence defendant filed a general demurrer thereto, which was considered by the court and overruled, and it is stipulated that the trial was concluded on February. 18, 1943. On February 20, 1943, defendant filed a-motion asking the court to render judgment in its favor notwithstanding the general verdict “for the reason that the verdict, pleadings and evidence show that the defendant is entitled to such judgment.” This motion was considered by the court and overruled on. March 13, 1943, and a journal entry made of the court’s ruling. On May 11, 1943, the defendant served and filed in the district court a notice of appeal “from the' verdict and finding of the jury and from the order, judgment and decree . . . made and entered on the 13th day of March, 1943, and all intermediate rulings.and orders of said court in the trial, verdict of the jury and orders, rulings and judgments of said court in said cause.” We feel compelled to hold that this notice of appeal presents nothing to this court for review. The verdict of a jury is not a final order from which an appeal lies. (Skaggs v. Callabresi, 145 Kan. 739, 67 P. 2d 566.) There were no special findings of the jury. There is no appeal here after final judgment because no judgment has been rendered on the verdict; hence, G. S. 1943 Supp. 60-3314a is not applicable.
Defendant, as appellant in this court, argues the court erred in overruling its demurrer to the evidence. The ruling on a demurrer to evidence is an appealable order irrespective of whether final judgment has been entered. (G. S. 1935, 60-3302.) The difficulty with considering that here, however, is that the appeal was not within two months of that order, as required by G. S. 1943 Supp. 60-3309. This demurrer was ruled upon as early as February 18, and the notice of appeal was not served and filed until May 11. The defendant filed no motion for a new trial. When interrogated on that point during the argument in this court counsel for appellant frankly-stated that he considered he had won half a victory. In short, defendant did not want a new trial. There is some argument in the brief of appellant that the court erred in not sustaining defendant’s motion for a directed verdict at the close of all the testimony, in giving certain instructions which appear not to have been objected to at the time, and in failing to sustain defendant’s motion for judgment notwithstanding the verdict. If there is any error inherent in any of these rulings it is a trial error which could be reached only by a motion for a new trial, which, as we have seen, was not filed. (Brick v. Fire Insurance Co., 117 Kan. 44, 230 Pac. 309.)
On February 20, 1943, plaintiff filed a motion for a new trial “limited as to the question of double liability under the accidental provisions of the contract.” On March 13, 1943, this motion was considered by the court and overruled, and on the same date the court considered and denied plaintiff’s application made in open court to increase the judgment to $1,000. On May 11, 1943, plaintiff served and filed a notice of appeal “from the verdict of the jury and the judgment entered thereon, and from the order and judgment of the district court . . . made and entered on the 13th day of March, 1943, overruling plaintiff’s motion for a new trial,” and denying his oral application for judgment for $1,000. In this notice plaintiff apparently overlooked the fact that the court had never rendered a judgment on the verdict of the jury. As we have seen, no appeal lies from the verdict. In this court appellant complains, first, that the court did not allow interest on the jury’s verdict. We think there is no reason why the court should not allow interest on the verdict of the jury from the date the action was filed, if and when plaintiff asks the court to render judgment on the verdict. Plaintiff, as appellant here, further argues that there was a general judgment in favor of plaintiff, hence that the general verdict should have been for $1,000 instead of for $500. This overlooks the fact that under the policy the verdict should be for $500 only, unless the jury sustained plaintiff’s contention that the death of the insured resulted from an accident within the provisions of the policy relating thereto. On this point plaintiff picks out some testimony to the effect that the death of the insured was the result of an accident. But there is much evidence in the record to the contrary, including the certificate of death and the statement of the physician in charge of the insured at the time of her death. Upon the question of whether the insured’s death was the result of an accident, the position most favorable to plaintiff, to state the evidence, is that it was conflicting; and the verdict of the jury, which allowed plaintiff nothing for the accidental death, approved by the trial court in denying a motion for a new trial upon that issue only, presents to this court no question for review.
The result is that each of the appeals should be dismissed for the reason that it presents no legal question to this court for review. It is so ordered. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal from a ruling on a motion to set aside a judgment.
The pertinent facts were these: Early in 1936 an action had been filed in the district court of Linn county to foreclose a real estate mortgage on a tract of Linn county land. Plaintiff was the Phoenix Joint Stock Land Bank and Charles B. Eells was defendant. On April 27, 1936, personal service of summons was made on defendant in Linn county, Kansas. He' made no appearance and filed no pleading. Judgment by default was entered for plaintiff on July 28, 1936.
On October 26, 1943, seven years and three months after the rendition of judgment, defendant Eells filed a motion to set aside and vacate the judgment on the ground that the district court had not acquired jurisdiction over him for the reason that in 1936 and for years prior thereto defendant was a resident of Missouri, and that his presence in Linn county on the date he was personally served with summons was occasioned solely because he was a witness and suitor in three cases set for hearing - on that date before the courts of two justices of the peace in Linn county; and that — ■
“While one of the said cases was being heard in the justice court on April 27, 1936, the undersheriff of Linn county, Kansas, entered the court room, interrupted the proceedings and attempted to serve this defendant with a summons in above captioned case No. 9442 entitled Phoenix Joint Stock Land Bank v. Eells et al., . . .”
Defendant Eells’ motion further alleged that he was immune and exempt from service of process because he was not a resident of Kansas and that his presence in Linn county on April 27, 1936, was caused by his necessity to attend court as witness and suitor in the justice courts as stated above.
Defendant’s motion further alleged that on April 5, 1938, about the time the redemption period expired, following the sale of the land in foreclosure, and before any transfers of the land were made, he filed an affidavit with the register of deeds of Linn county — “and gave warning to all persons of the defendant’s claims and notified any purchaser that he bought same at his own risk and peril,” etc.
In support of his motion defendant cites and relies on that provision of the civil code which reads:
“A witness shall not be liable to be sued’ in a county in which he does not reside, by being served with a summons in such county while going, returning or attending, in obedience to a subpoena.” (G. S. 1935, 60-2514.)
Defendant also cites decisions of this court where this provision of the code has been upheld and liberally construed. (Bolz v. Crone, 64 Kan. 570, 67 Pac. 1108; Underwood v. Fosha, 73 Kan. 408, 85 Pac. 564; Reiff v. Tressler, 86 Kan. 273, 120 Pac. 360; Gillmore v. Gillmore, 91 Kan. 293, 137 Pac. 958; Oil Co. v. Beutner, 101 Kan. 505, 185 Pac. 288.)
Defendant also invokes the familiar rule of the civil code which declares that a void judgment can be vacated at any time, on motion of a party or person affected thereby. (G. S. 1935, 60-3009.)
But what was there on the face of the record in the Linn county district court which could have disclosed to the court any defect in the sheriff’s return showing personal service of summons on defendant? Nothing whatever. If defendant had chosen to do so, he might have made a timely special appearance and moved to quash the service of summons on the ground of his immunity to service of process under the provision of the code on which he now belatedly relies. But he did nothing. It is settled law that immunity to service of civil process is a privilege which the person so privileged may claim or waive. Thus in Wells v. Patton, 50 Kan. 732, 33 Pac. 15, it was said:
“A party who denies the jurisdiction of a trial court over his person must present that question at as early a stage in the proceedings as is possible.” (Syl. If 4.)
In Eaton v. Eaton, 120 Kan. 477, 243 Pac. 1040, it was said:
“A nonresident, privileged to avoid a summons in a civil action served on him while he is in the state attending the trial of a criminal action against him, and pursuant to bond for his appearance, should assert his privilege promptly; in any event, before judgment in the civil action. Otherwise, the privilege is waived, and the judgment is not voidable.” (Syl.)
In Whiteman v. Cornwell, 100 Kan. 234, 164 Pac. 280, where it was contended that a plaintiff cannot quiet title to land to which he did not have any title, we said:
“He cannot if his adversary having some sort of title sees fit to contest with him. But if the latter foregoes a contest, shall not the plaintiff prevail? If I am sued for a sum of money which I do not owe, on a claim without even a shadow for its basis, and am duly summoned into court, and I wholly ignore the judicial proceeding, the plaintiff will take judgment against me by default, and in time that judgment will become unassailable. Certainly I will then be indebted to the person who secured judgment against me, and there will be no escape from it.” (p. 236.)
See, also, Farmers Cooperative Ass’n v. Hed, 122 Kan. 435, 251 Pac. 1090; Home Owners Loan Corp. v. Clogston, 154 Kan. 257, 118 P. 2d 568; 50 C. J. 558.
Before concluding, we take note of the fact that some two years after the rendition of judgment in foreclosure, defendant filed an affidavit with the register of deeds asserting an interest in the land which had been subjected to foreclosure proceedings. To be effective, the affiant in such case must follow up that caveat by taking some appropriate action to enforce his claim in a court of competent jurisdiction. The time given therefor is thirty days. So reads the civil code, G. S. 1935, 67-254. (And see Glimac Oil Co. v. Weiner, 150 Kan. 430, 94 P. 2d 309.) In this case defendant never followed up his caveat or assertion of claim by any effective proceedings. His affidavit and its filing with the register of deeds were therefore wholly abortive and without legal effect.
There is nothing further in this case worthy of discussion, and the judgment of the district court denying his belated motion is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was a workmen’s compensation case. Claimant prevailed and respondent and its insurance carrier appeal..
The sole issue is whether written claim for compensation was filed in time. The district court made no independent findings of fact but simply sustained and affirmed the findings and award of the commissioner. The commissioner made a general finding the written claim was filed in time. The theory, or theories, upon which he made that finding will appear presently.
Claimant was a carpenter in the employ of Swenson Construction Company. Employers Mutual Liability Insurance Company was the insurance carrier. On February 28, 1942, claimant sustained an accidental injury to his left leg and ankle. Following his injury he received medical care and attention from a number of respondent’s doctors. The testimony of the last two doctors will receive attention later. On May 18, 1942, claimant returned to work for the respondent company and did sweeping and cleaning-up work. It is not claimed that such lighter work was recommended as a cure. Claimant contends that by reason of the weakness of his ankle and limited motion therein he cannot now perform the work incident to his previous occupation as- a carpenter. The written claim for compensation was not filed until February 24, 1943. The pertinent portion of G. S. 1941 Supp. 44-520a reads:
“No proceedings for compensation shall be maintainable hereunder unless a written claim for compensation shall be served upon the employer by delivering such written claim to him or to his duly authorized agent, or by delivering such written claim to him by registered mail within one hundred twenty days after the accident, or in cases where compensation payments have been suspended within one hundred twenty days after the date of the last payment of compensation; . . .”
It is claimant’s contention the statute had been tolled by virtue of medical treatments he had received since his injury and that there was no period of 120 days between the date of the accident and filing of his claim when he did not receive medical attention and care from some one of respondent’s doctors. He claimed to have received, treatment from Dr. Francis J. Nash between the last of November and Christmas of 1942, and from Dr. W. J. Feehan on December 26, 1942. These doctors both denied positively-they had treated claimant on those dates or on any other dates within 120 days prior to February 24, 1943.
Doctor Feehan testified he had received a copy of a letter dated December 23, 1942, written by the insurance carrier to claimant asking claimant to report to him for an examination only and that he made the examination pursuant to that letter. The pertinent part of the letter reads:
“It is requested you appear at your earliest convenience at the office of W. J. Feehan, Huron' Building, Kansas City, Kansas, for an examination only of your left leg and ankle. You understand that we are not nor Dr. Feehan at this time tendering or rendering any form of treatment. This visit to Dr. Feehan for this examination is therefore independent of any treatment we may have rendered you in the past.”
Appellee asserts there is no evidence in the record that claimant received this letter. It is true we find no direct evidence he received the letter. Neither is there direct evidence he did not receive it. Claimant does state at one place, “I was sent by a representative of the company to all the doctors I have mentioned.” That statement is, of course, not a denial that he received the above letter. In any event we take cognizance of the fact claimant reported to Doctor Feehan on December 26, 1942, three days after the date of the letter.
The pertinent portion of Doctor Feehan’s testimony was:
“The last treatment was given August 28th, 1942. I saw him after that on December 26, 1942. He came in for an examination and report was all. I did not render him any form of treatment of any kind on that date. . . I conducted my examination in accordance with that letter and made a rating of permanent disability of the left ankle of Mr. Thompson at that time giving him a rating of 10% permanent, partial disability of the left ankle. The examination on that date consisted of inspection, palpation and observation of the foot, $nd the measurements of the amount on movement and the size of the foot.”
Claimant’s testimony with respect to what. Doctor Feehan did on December 26 was:
“He took m!y ankle, just as I say, twisted it around and tried to work it that way, up this way and down, and took my temperature, and measured my ankle. He told me there wasn’t anything more to do for it.”
The substance of Doctor Nash’s testimony was: /
The last treatment he gave claimant was August 11, 1942. He might have done some little thing on September 19 in the way of telling him what to do but he did very little in the way of treatment after August 11.
Doctor Nash further testified:
“His left ankle was injured and the last I saw Mr. Thompson was the 12th of October, 1942. I am positive I have not seen him since. I keep a record of all the visits he made professionally and that date is the date of his last visit. On that.date I did not render him any form of treatment. On that date he came in just for an evaluation of his disability and that is all he came in for. I did not do anything but make the examination of his ankle.”
■ Touching the examination on October 12 Doctor Nash in substance further testified:
He was requested by the insurance carrier to make a final evaluation of claimant’s disability and to send his statement for services. He made the last charge for services on his books October 12, 1942, which was for the examination and not for treatment. He was positive he never saw claimant as a patient after that date and that he did not thereafter advise claimant to wear an elastic band on his ankle.
Touching Doctor Nash’s services claimant testified:
“At Dr. Nash’s, after Thanksgiving, when I called at his office and I removed my shoe, he rubbed my ankle and tried to straighten it out, which he suggested before, that they take me to the hospital and try to put the ankle through all the motions like it should be, break it loose. He told me nothing could be done with my ankle, the same as Dr. Feehan did.”
Claimant in substance further testified:
On the previous advice of Doctor Nash he had worn an elastic band on his ankle at times when he had twisted it. Doctor Nash previously had advised him the wearing of.the band on such occasions probably would keep the ankle from swelling. On his last visit Doctor Nash asked him whether he was still wearing the band and he told him he was not but that he was carrying it in his lunch box in order to have it available in the event he needed it.
The commissioner, according to what is said in his history of the case, appears to have made his finding the claim was filed in time upon the fact that Doctor Feehan made an examination of claimant on December 26, 1942, and'perhaps also upon what he found Doctor Feehan had done on that occasion. The history report of the commissioner states:
“The facts in connection with whatever Dr. Feehan did on December 26, 1942, do not seem to be in dispute. Dr. Feehan made an examination of the foot and took the claimant’s temperature. Whether this attention kept the statute tolled is a question of law. Section 44-510 provides that it is the duty of the employer to provide the services of a physician or surgeon, and such medical, surgical and hospital treatment, etc. Did Dr. Feehan perform either service or provide treatment? Our Supreme Court has held many times .that the furnishing of medical aid constitutes payment of compensation, and therefore tolls the statute. The latest case is Taylor v. Missouri Pacific, 146 Kan. 668. In this ease the case of Richardson v. National Refining Company, 136 Kan. 724, is cited. In that case the term ‘medical aid’ is used. In the Taylor case the terms ‘Medical care’ and ‘attention’ are used. With the statutory law cited and the substantive law cited, we have the following terms: ‘Service, treatment, medical aid, medical care, and mtedieal attention.’ In the opinion of this Commissioner what Dr. Freehan did on December 26, 1942, does come within one of the terms mentioned, and the statute of limitations was therefore tolled and this claim is found to have been made within time. It has always been a matter of dispute as to whether or not an examination requested by the emlployer constituted such an .action as would toll the statute of limitations for making written claim for compensation. It seems to this Commissioner that an examination requested by the employer does toll the statute, because examinations are made to determine whether or not medical science can be of any assistance. Consequently it is the furnishing of service or treatment within the statute.”
In view of the letter asking claimant to report to Doctor Feehan only for an examination, the fact he did report and in view of what Doctor Feehan did, we do not believe the record is fairly susceptible to the interpretation that Doctor Feehan administered treatment and care for the purpose of curing or relieving claimant of the effects of his injury as contemplated by G. S. 1935, 44-510. On the contrary, we think a more reasonable interpretation of that portion of the record is that an examination was intended to be made and was made by Doctor Feehan only for the purpose of evaluating claimant’s disability.
It is true it is the duty of the employer to provide the services of a physician or surgeon and medical, surgical and hospital treatment, etc., in an amount and in the manner designated by the statute in order to cure and relieve the workman from the effects of his injury. (G. S. 1941 Supp. 44-510.) There is no contention here the employer had not fully complied with that requirement. Moreover, the. law provides that after the injury the employee shall,- “upon request of the employer, submit himself for examination at any reasonable time and place, to any one or more reputable physicians or surgeons selected by the employer, and shall so submit himself for examination thereafter at intervals during the pendency of his claim for compensation, upon request of the employer . . .” (G. S. 1935, 44-515.)
G. S. 1935, 44-516, reads:
“In case of a dispute as to the injury the committee, arbitrator or commission as hereinafter provided shall upon request of either party employ one or more neutral physicians or surgeons not exceeding three in number who shall be of good standing and ability, whose duty it shall be to make such examinations of the injured persons as the committee, arbitrator or commission may direct.”
. G. S. 1935, 44-518, further provides:
“If the employee refuses to submit himself for examination upon request of the employer as provided for in section 15 [44-515] of this act, or if the employee or his physician or surgeon unnecessarily obstructs or prevents such examination by the physician or surgeon of the employer, the employee’s right to payment for compensation shall be and remain suspended until he shall submit to examination and until such examination shall have taken place, and no compensation shall be payable under this act during the period of suspension: Provided further, That in the event the employee shall refuse to submit himself to examination while any proceedings are pending for the purpose of determining the amount of compensation due, said proceedings shall be dismissed upon showing being made of said refusal of said employee to submit himself for examination.”
Appellee cites no authorities on the proposition that an examination of a workman required by the employer under these or similar statutes of other states for the purpose of ascertaining an evaluation of the workman’s disability tolls the statute. Our independent research has revealed no such decisions. In our opinion such a con- ' struction would result in hardships and disadvantages to the workman, employer and insurance carrier. We do not believe the lawmakers intended the statutes should so operate.
The workmen’s compensation act was not enacted to encourage litigation. One of its primary purposes was to stimulate the settlement of compensation disputes. One of the most frequent controversies-arises over the amount required to compensate for an injury. The answer frequently, as here, depends upon the extént-of the employee’s disability. An employer, under these statutes, is entitled to be advised on that subject before he makes an offer of settlement or accepts such offer made by an employee. An examination may disclose the employer’s estimate of the workman’s disability was entirely too low. When the employer and insurance carrier are advised concerning the actual extent of disability by physicians of their own choice offers of settlements are frequently increased. On the other hand if the claim of the extent of disability is found by an examination to be exorbitant the employer and insurance carrier are entitled to be advised of that fact. In that event the claimant’s demands frequently become more reasonable. So construed the statutes work to the mutual advantage of all parties. Construed otherwise they work to their detriment, which we think is contrary to their purpose and intent. These mutual advantages would be greatly minimized, if not entirely destroyed, if a mere examination were construed to constitute treatment and care. An employer or insurance carrier would seldom, if ever, take advantage of the salutary and mutually beneficial provisions of statutes providing for examinations if they were to be penalized for doing so. We therefore conclude a mere examination of an injured employee required by the employer or his insurance carrier and made solely for the purpose of evaluating disability does not toll the statute requiring written claim for compensation to be filed within a fixed period.
What has been said thus far, however, pertains only to Doctor Feehan’s examination and alleged treatment on which the commissioner’s finding or ruling appears to have been based. The commissioner made no finding concerning the treatment claimant said he had received from Doctor Nash after Thanksgiving in 1942. The only appeal to this court is from findings and orders of the district court on questions of law. (G. S. 1935, 44-556.) The district court made no independent. findings of fact. It merely sustained and affirmed the findings and award of the commissioner. We therefore have no way of knowing whether the district court believed or disbelieved claimant’s testimony that he had a conference with and was treated by Doctor Nash after Thanksgiving in 1942. Doctor Nash, as previously indicated, absolutely denied any visit by claimant after October 12, 1942, and that date was not within the 120-day period prior to the filing of the written claim.
It is the duty of the commissioner to hear the evidence on all branches, that is, on all points involved, and to make a ruling thereon. Only after this is done is the case subject to appeal to the district court. (Willis v. Skelly Oil Co., 135 Kan. 543, 547, 11 P. 2d 980; Brown v. Shellabarger Mill & Elev. Co., 142 Kan. 476, 489, 50 P. 2d 919.) The commissioner in this case heard the evidence and made a finding or ruling the claim was filed in time. He therefore discharged his duty and the case was subject to appeal to the district court. We have already indicated we do not agree with the basis of the commissioner’s finding or ruling that the claim was filed in time. That fact, however, does not end our responsibility. As previously stated the concern of this court is with findings or rulings of the district court. We have treated the basis for the finding or ruling of the commissioner in this case only because the district court approved that finding or ruling and because it may have done so upon the same theory advanced by the commissioner. The commissioner’s findings or ruling was based upon the alleged treatment by Doctor Feehan.
While the district court approved the finding the claim was filed in time it made no specific finding with respect to what Doctor Nash may have done. Failure to make such a specific finding does not relieve this court from the responsibility of examining the record before us to see whether there is competent evidence to support the finding the claim was filed in time. We must therefore consider claimant’s testimony concerning his last visit with Doctor Nash although the commissioner and district court both may have disbelieved claimant’s testimony concerning it. On .appeal this court is concerned only with testimony which supports, or tends to support, a finding and not,with testimony which is contrary thereto. (Davis v. Julian, 152 Kan. 749, 754, 107 P. 2d 745.)
It is, of course, well established that the furnishing of medical aid or treatment constitutes payment of compensation within the meaning of G. S. 1935, 44-510. (Taylor v. Missouri Pac. Rld. Co., 146 Kan. 668, 670, 73 P. 2d 62.) Claimant’s, testimony, previously quoted, concerning his visit to Doctor Nash after Thanksgiving Day of 1942, while not as strong as it might be, discloses, or tends to disclose, that Doctor Nash gave claimant’s ankle the same kind of manipulation, or treatment similar to that which he previously had recommended should be given claimant at the hospital. We therefore cannot say there is no competent evidence in the record before us to support the finding or ruling the claim was filed in time. In view of this conclusion it is unnecessary to discuss various other decisions cited by either party.
In fairness to the district court it should be stated that a careful search of our compensation act discloses no statute which compels the district court to make detailed findings of fact which resolve the disputed' testimony of witnesses. That court does not see or hear the witnesses. It simply reviews the transcript of the record made by the commissioner. It appears all that court is compelled to do is to make a finding or order on each branch of the case, that is, on every question of law involved. (G. S. 1935, 44-556.) The court did that in this case by sustaining and affirming the finding of the commissioner that the claim was filed 'in time. We cannot assume the court disbelieved claimant’s testimony concerning Doctor Nash’s treatment after Thanksgiving in 1942.
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The opinion of the court was delivered by
Wedell, J.:
This action involves the interpretation of a certain written “guaranty of account” and its proper application to certain credits which the creditor allowed on the account. Plaintiff prevailed and defendant appeals.
The action was tried on the following agreed statement of facts:
“First: Plaintiff, a resident of Great Bend, Kansas, was, at all times material, a bulk station consignee of the defendant, engaged in selling defendant’s petroleum products as an independent contractor. Plaintiff remitted all proceeds to the defendant for products sold, and defendant then paid plaintiff for his commission.
“Second, that Keith Russell was a lessee of the defendant in Great Bend, doing business as Russell’s Texaco Service, dispensing petroleum products purchased from the plaintiff as consignee for the defendant, and performing the customary gasoline filling station services.
“Third, that on September 15, 1942, the plaintiff signed and delivered to the defendant the written instrument entitled ‘Guaranty of Account,’ which is attached to the petition as Exhibit A.
“Fourth, Keith Russell discontinued doing business in December, 1942, and requested the defendant to credit his account with certain credit memoranda covering returned merchandise and credit cards which he delivered to the defendant. The amount of credit' so applied amounted to the sum of $381.35. .Subsequently, Russell became entitled to an additional credit of $52.62, which was given by credit memorandum dated April 29, 1943.
“Fifth, as of the date when Russell discontinued business, he was indebted to the defendant in the amount of $1,428.74, which indebtedness he has confirmed in writing to the defendant.
“Sixth, Defendant applied upon said indebtedness of $1,428.74, the credits of $381.35 and $52.62 referred to in the fourth paragraph above, subsequent to December 31, 1942, leaving a net balance of $994.77 due' and unpaid. Defendant demanded payment from Russell, and he having failed to pay, defendant over the objections of the plaintiff, deducted the entire amount of $994.77 from the money held by it that would otherwise have been paid to plaintiff as commissions earned and due him from the defendant. That is, defendant required plaintiff to pay said entire amount of $994.77.
“Seventh, prior to the filing of this action, the plaintiff, through his attorney, made demand upon the defendant in writing for a refund of the sum of $300.00, deducted by the defendant from money held by it that otherwise would have been paid to the plaintiff by defendant as commissions earned and due. The defendant refused to refund said amount of $300.00.
“Eighth: I [Mr. Lamoreux] would like to stipulate the subsequent to December, 1942, that Russell entered into an agreement with the defendant, The Texas Company, to pay his debt at the rate of $150.00 per month, and that he failed to carry out the terms of that agreement or to pay anything.”
The “guaranty of account” which appellee gave the appellant to secure the Russell account reads:
“guaranty op account
“September 15, 1942.
“The Texas Company,
“Denver, Colorado.
“Gentlemen:
“For value received, and in consideration of the credit which you may hereafter extend, the undersigned hereby jointly, severally and unconditionally guarantee payment, when due at your office in Denver, Colorado, of any and all present or future indebtedness owed to you by Keith Russell, hereinafter called the debtor, and hereby agree punctually to pay such indebtedness if default in the payment thereof be made by the debtor. Excepting the first three Hundred Dollars of such debt.
“The undersigned expressly waives notice of acceptance of guaranty, demand, and notice of non-paj'ment, and consents to any extensions of time of payment of any and all of the indebtedness hereby guaranteed.
“This is intended as a continuing guaranty applying to all present and future indebtedness, howsoever arising, and to all sales and advances made by you to the debtor until the same is revoked by the undersigned in writing to the office of The Texas Company at Denver, Colorado, marked for the attention of the Credit Manager.
“Witness my hand and seal this 15th day of September a. d. 1942.
“Name: (signed) M. C. Lewis.”
(Italics ours.)
The italicized sentence in the “guaranty of account” was not contained in the form prepared by appellant but was later inserted with typewriter before its execution.
In this action appellee sued appellant to recover the sum of $300 which he claimed appellant improperly withheld from commissions due him. It is appellee’s contention that under his guaranty he is not liable for the first $300 of indebtedness on the Russell account. He therefore insists the trial court properly held the credits appellant allowed to Russell, the debtor, on the account in the total sum of $433.97 should have been deducted first from the sum of $1,428.74, leaving a net balance of indebtedness in the sum of $994.74 due and payable and that appellee was liable for that net amount of indebtedness minus the first $300 thereof or for the sum of $694.77 instead of $994.74. Appellee concedes that under the terms of his guaranty he is liable for the punctual payment of Russell’s indebtedness if default in the payment thereof is made by the debtor but he contends there was no default until the debtor and creditor had settled their account by striking a balance and that such balance was not ascertained until the creditor, appellant, had allowed the debtor a credit on the account in the sum of $433.97.
On the other hand appellant contends:
Russell defaulted when he failed to pay the sum of $1,428.74, the amount conceded to be due when he quit business; at that moment appellee was liable in that sum minus $300 or for $1,128.74; appellant reduced that liability of appellee when it allowed credits in the total sum of $433.97 and thus reduced the balance due to $994.77; that appellee, the guarantor of the account, cannot control the application of credits and insist that they be applied on the guaranteed portion of the account in the absence of an agreement between the creditor and the guarantor of the account which gives, the guarantor that right; that appellant, the creditor, had the right to apply the credits it allowed subsequent to the time Russell quit business to the unguaranteed portion of the account, in the absence of other directions from the debtor; that where a debtor owes debts, some secured and others unsecured, and neither debtor nor creditor has directed the application, the law will apply the payments on the unsecured debts.
In support of these contentions appellant relies upon the following: State v. Guaranty Co., 81 Kan. 660, 106 Pac. 1040; Coal & Lime Co. v. Construction Co., 97 Kan. 203, 154 Pac. 1012; Barber County Comm’rs v. Lake State Bank, 121 Kan. 223, 246 Pac. 524; Brown-Crummer Investment Co. v. Bankers Service Co., 130 Kan. 583, 287 Pac. 579; 38 C. J. S., Guaranty, § 78.
To the same general effect, also, are 24 Am. Jur., Guaranty, § 76; annotations 21 A. L. R. 704; 49 A. L. R. 952; 60 A. L. R. 203; Arant on Suretyship, §76; 1 Brandt on Suretyship and Guaranty, 3d ed., § 364.
The court is familiar with the general doctrine enunciated in the authorities relied upon by appellant. Those general principles are well established as disclosed by the above authorities and many others which might be cited. Our difficulty lies in applying those principles to the terms of the guaranty and the facts as stipulated. Under the guaranty appellee agreed to pay punctually any and all indebtedness if default in the payment thereof was made by Russell. We think the pivotal question in this action is, when did such default occur and what was the extent thereof under the stipulated facts? Was the trial court unwarranted in concluding the default did not occur until a final balance was struck by the allowance of the designated credits? We do not think so. If a contract existed between Russell and appellant covering appellant’s duty to apply merchandise on hand and credit cards on the account at such time as Russell might cease to do business, such a contract is not disclosed by the stipulation. We do, however, find that when Russell quit business in December, 1942, he requested that certain credits be allowed in the form of merchandise returned and credit cards which he delivered to appellant. Apparently appellant granted that request as it allowed such credits on the account. Appellant probably was unable to determine the total amount which would be realized on the credit cards earlier than April 29, 1943. At any rate that was the date upon which appellant made the credit memorandum on that item.
It is true Russell had confirmed the fact he was indebted in the sum of $1,428.74 when he quit business in December, 1942. It appears from the stipulation, sixth paragraph, that no demand was made on Russell to pay until those credits were all ascertained and allowed which left a net balance due on the account in the sum of $994.77. The stipulation does not disclose a demand for payment was made prior to that time on Russell or appellee. Under all of these circumstances there is some basis for concluding appellant did not consider Russell to be in default prior to the allowance of the last credit endorsed on the account. After all credits were al lowed Russell owe'd $994.77 and that appears to be the only amount for which appellant ever made demand on Russell. Since there is a substantial basis for believing the parties regarded the sum of $994.77 as constituting the extent of Russell’s default, we think the trial court was warranted in concluding appellee was entitled to have $300 deducted from that amount in order to determine the extent of his liability.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action on a note. Judgment was for defendant and plaintiff appeals.
The sole issue was whether the action was barred. The note in the sum of $712.12 represented an indebtedness of L. M. Rundle for gas and oil purchased from appellant. The note was dated June 6,1934, and became due December 6, 1934. The makers of the note were L. M. Rundle and his father, A. M. Rundle, deceased. A claim on the note was filed against the decedent’s estate. It was allowed in the probate court and the administrator appealed to the district court, where the claim was denied.
The first question presented is whether the statute of limitations was tolled by an alleged payment endorsed on the note as of June 6, 1939, that being five years from the date the note became due. The material portion.of appellant’s testimony in chief was, in substance, as follows:
On June 6, 1939, he took the note and went to the farm of A. M. Rundle, the deceased; he found L. M. Rundle and A. M. Rundle in the barnyard sharpening knives preparatory to butchering; he had a conversation with these two men in the barnyard; he stated to L. M. Rundle in the presence of A. M. Rundle that this was the last day to keep the note from being barred and that he needed to get a payment on it or institute suit on that day; he had some further conversation with the Rundles in the barnyard; after this further conversation A. M. Rundle said to Loren Rundle, “Go ahead and give him five dollars and let it go”; in response to that statement by the deceased five dollars was paid on the note by L. M. Rundle; at the same time and place he (appellant) endorsed the five dollar credit on the back of the note.
The testimony in chief of appellant concerning this conversation of the payment and credit endorsement was objected to by appellee on the ground the conversation pertained to a communication or transaction had personally by appellant with the deceased and that appellant was incompetent to testify in his own behalf concerning it. Objections of appellee were at that time overruled as to most, if not as to all, of the testimony. On cross-examination of appellant it was disclosed the entire alleged conversation among the three persons had lasted approximately twenty minutes. Counsel for appellee clearly developed the general fact that the conversation appellant claimed to have had in the barnyard was participated in by both of the Rundles. Appellant contended appellee had waived the incompetency rule by his cross-examination and that therefore appellant was entitled to relate the entire conversation between himself and the deceased relative to the payment and credit endorsement on the note. The court did not construe the cross-examination as a waiver of the incompetency rule and stated it was evident that all the cross-examination attempted to show was that all three men participated in the conversation and that the direction of the deceased to his son to pay appellant five dollars was a part of that entire conversation. The court thereupon sustained appellee’s objection to any conversation with the deceased bearing upon the note.
In view of the conclusion we are obliged to reach it is really unnecessary to discuss the testimony of L. M. Rundle. We merely pause to observe that he, in substance, testified:
His father was not in the barnyard at all but was ill and in the house; to his knowledge appellant never talked with his father that day; appellant did not ask to see his father; he did not know that was the last day on the .note and he did not remember appellant saying anything to him about bringing suit that day unless he received a payment; appellant asked him for a payment and he told him he could not make it; he did not pay appellant a dime at that time.
Judgment was rendered in favor of defendant on July 31, 1943. Appellant’s motion for a new trial was not filed within three days after the rendition of judgment on July 31, 1943, but was filed August 5,1943. On September 27,1943, appellant moved for partial conclusions of fact. Appellee moved to have both of appellant’s motions stricken from the files and also moved to strike portions of the conclusions of fact made by the court on November 12, 1943. Appellee’s motions were all overruled as was also appellant’s motion for a new trial. Appellant appealed from the judgment of July 31, 1943, and later appealed also from the partial conclusions of fact and the order of January 8, 1944, overruling his motion for a new trial.
In the partial conclusions of fact the trial court found the facts substantially- as testified to by appellant. The court found that the deceased signed the note as a surety and that all three men engaged in the conversation relative to the note. The court conceded there might be some question about the admissibility of the conversation but stated “assuming the testimony is competent” that:
“What A. M. Rundle said to his son was advisory as to what it was best for the son to do, but, in any event the Court is unable to conclude that the payment of the five dollars was made under such circumstances as to toll the statute so far as the estate of A. M. Rundle, deceased, is concerned.”
Appellant insists that the findings required a judgment in his favor as a matter of law. In the first place it will be observed this was not an unqualified but a conditional finding. The finding was made only on the condition that it be assumed appellant was a competent witness to testify in his own behalf with respect to the conversation or transaction which he had with the deceased.
Appellee, of course, first insists appellant was not a competent witness and that his testimony was properly excluded when it developed on cross-examination that all three parties had participated in the conversation. Appellee contends that without that testimony there was no competent evidence of a payment which tolled the statute and hence the action is barred. He cites numerous of our authorities in support of his contention touching the incompetency of appellant as a witness.
In view of the record before us it is immaterial whether appellant’s testimony was properly excluded or not. If his testimony was improperly excluded the ruling was a trial error and a timely motion for a new trial was necessary to render the alleged error reviewable. The motion for a new trial had to be filed within three days after the rendition of the judgment. (G. S. 1935, 60-3003.) It clearly was not filed in time. The result is that on appeal we must treat the testimony as properly excluded. Without that testimony there is no evidence of payment which would toll the statute and the action is barred. On appeal we therefore need not determine the further question whether the conclusion reached by the trial court would have been correct as a matter of law if appellant had been a competent witness.
What heretofore has been said, of course, requires an affirmance of the judgment. We, however, pause to observe that appellant argues on appeal just as though appellant’s testimony concerning the conversation, in which the trial court found the deceased participated, was not excluded by the trial court. The impression we get from the record before us is that the trial court, after the cross-examination of appellant, intended to hold appellant was not a competent witness. In any event he was not a competent witness. (In re Estate of Badger, 156 Kan. 734, 137 P. 2d 198, and cases therein cited.) The numerous cases reviewed so recently in the Badger case make it unnecessary to cover that ground again. We have examined the cases cited by appellant but they do not require a contrary conclusion.
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The opinion of the court was delivered by
Parker, J.:
This was a proceeding to establish, and specifically perform, an oral contract under which the claimant Susie Bond asserts a right to all of the property owned by the decedent at the time of his death. The trial court sustained a demurrer to the claimant’s evidence and rendered judgment disallowing such claim. The claimant appeals.
Preliminary to a statement of the facts pertinent to the main issue a chronological narrative of the events responsible for their existence will be helpful.
On October 31, 1908, the claimant and the decedent H. G. Bond were united in wedlock and thereafter lived on a farm and later in Overbrook. To that union was born a daughter Edna who in due time was married to one Yerne Johnson and later divorced from him. Subsequently she remarried and her name is now Edna Wasmuth. Marital differences arose between the father and mother and in 1928 Mrs. Bond procured a divorce in the district court of Osage county. By virtue of the terms of a stipulation and agreement judgment was rendered in the divorce action dividing the personal property then owned by the parties and vesting title to a residence property in Overbrook in Mrs. Bond. The remaining property owned by the parties at the time was an eighty-acre tract of land located near Pauline. This land was disposed of by that judgment and decree as follows:
“That as to the following described real estate in Shawnee County, Kansas, to-wit: The south half of southwest quarter of Section 33, Township 12, Range 16, being the land mentioned in said stipulation as held in the name of the defendant and located near Pauline, Shawnee County, Kansas, the said plaintiff and defendant shall each be entitled to and have free from the claims of the other, a life estate in and to an undivided one-half of said real estate, with remainder to Edna Johnson, daughter of plaintiff and defendant; and that the said Edna Johnson shall have the right to the exclusive use, occupancy and possession of said real estate during said life estates, as long as she may desire to use and occupy said land, and said defendant may assist her in such use and possession by overseeing and advising in the operation of said land.”
Subsequent to the divorce action Mrs. Bond resided at Overbrooli and later in Topeka where, except for a short period presently referred to, she lived on all dates involved herein. For a time Edna Johnson and her husband lived on the land referred to but for reasons herein inconsequential moved away and Mr. Bond, who had been living with them, continued to occupy it as his home until the date of his death. On March 16, 1931, the claimant procured a. judgment against Mr. Bond in Shawnee county for $425.45 based on his improper action in selling her share of crops grown on the farm and some of the buildings located thereon. From that date, and perhaps before, up to August, 1936, on intermittent intervals she made trips to the farm. On some of those occasions and particularly throughout the year 1934, Verne Johnson, who was either separated or divorced from Edna during all that time and yet remained on friendly terms with both Mr. and Mrs. Bond, would take the latter out to the place and while there frequently had conversations with the former and overheard conversations between the two of them. It was on one of such occasions it is claimed the contract relied upon by claimant was consummated. In April, 1936, Mrs. Bond who had been working as a laundress at the State Hospital quit her job, bought some pigs and chickens and moved out to the farm where both she and Mr. Bond resided until he died on February 5, 1943. During that time she cooked the meals, did the housework, helped with the chores, hauled feed, fed Mr. Bond’s livestock, and performed many tasks, manual in character and having to do with personal property owned by the decedent. She also cared for and ministered to the decedent during the last two years of his life while he was ill and in an almost helpless condition due to a paralytic stroke.
Turning now to matters germane to the principal question involved the record discloses the following facts and proceedings: On October 21, 1943, after institution of proceedings for the administration of the estate of H. G. Bond, deceased, the claimant filed a petition for allowance of her demand against his estate wherein she claimed his entire estate and alleged she was entitled thereto by reason of the fact that in the spring of 1934 she entered into an oral contract with decedent, thereafter fully performed by her, whereby in consideration of the cancellation of her judgment heretofore referred to and care of decedent for the balance of his life, he would leave her all of his property at his death. Subsequently Rosa Elva Trent, a sister of decedent and the appellee herein, filed an answer, the allegations of which so far as they are pertinent to the issues here, denied generally the existence of any valid contract between claimant and the decedent or that she had any right, title or interest in and to his property on the date of his death. On the issues thus joined a hearing was had in the probate court on the demand and it was allowed. In due time, Mrs. Trent appealed to the district court, where a demurrer to the evidence produced by the claimant in support of her demand was sustained, and a judgment was rendered disallowing her claim and remanding the cause back to the probate court with instructions to disallow it and render judgment in favor of Mrs. Trent for the costs incurred by her in the appeal to district court. It is from that judgment the appeal is taken.
On the trial in district court the only competent testimony produced by the appellant with respect to the terms of the oral agree ment relied upon by her was that of Verne Johnson. The claimant herself made an attempt to testify regarding that transaction, but her testimony was properly rejected on the ground that G. S. 1935, 60-2804, made her incompetent to testify in her own behalf with respect to transactions or communications had personally by her with her deceased ex-husband. Summarizing, Mr. Johnson’s evidence in substance was that one Sunday in the spring of 1934, identified by Mrs. Bo.nd in her testimony as one Sunday in April of that year, he took Mrs. Bond to the farm and there overheard a conversation between her and Mr. Bond. Specifically, with respect to the terms of the oral contract relied on by appellant the record discloses this witness was asked questions to which he made answers as follows:
Direct Examination:
“Q. Who said that? A. Mr. Bond. He said he would have to have help, and wanted her to come out and do the work and chores and cook for him and such as that. There was too much for him to do. The conversation that I heard was if she would release the claim that she had against him and come out and run the farm, or help run the farm, cook for him and take care of him he would leave everything to her at his death and then at her death it would — the daughter was to get it.
“Q. What did she say to that? A. She said at that time she couldn’t right now because she had bills to pay, but she would later, and he told her whatever she had to do to pay her bills that would be OK, she could work and come out later, and she said she would do that. So she went out later.”
Cross-examination:
“Q. You say there was something said about releasing a judgment on that day? A. Yes. That was Mr. Bond asked her to release the judgment and for her to come out and help take care of the farm and everything, cook his meals and take care of him, and—
“Q. I am just asking you—
“Mr. Crane: Let him finish his answer. Don’t shut him off.
“A. He said if she would take care of him and help run the farm and cook his meals, at his death he would leave everything to her if she would release this judgment, and then at the time of her death she could leave it to her daughter.
“Q. What, if anything, was said between them on that occasion about when she was to come out? A. There was no particular time set on that. It was to be some time later, but there was no particular time set on it.
“Q. Did he say she could come out any time? A. Not just any time, but she said she had some bills of her own she would have to pay and would have to work at this job for some time and she said she would come out later, as soon as she got that taken care of. He said that would be O. K.”
It would serve no useful purpose to relate in detail the evidence produced as to the conduct of appellant subsequent to the occurrence of the conversation referred to by Johnson. Briefly, it will suffice to say the appellant’s testimony was that she executed a release of the judgment for which she received no money and that she went out to the farm to live on April 19, 1936, where she remained until Mr. Bond’s death. She further testified, and her evidence in that respect was corroborated by other witnesses, that after going to the farm to live she performed work and services of the kind and character hereinbefore described.
The appellee’s demurrer was predicated on (1) variance between the contract as pleaded and proved; (2) the agreement was not definite and certain; (3) no clear and satisfactory proof any contract was made; and (4) no showing services of Mrs. Bond were performed pursuant to the terms of any contract. Notwithstanding, the trial court limited the scope of its ruling when in a memorandum announcing its decision it made the following statement:
“Other evidence disclosed that as far as the farm was concerned the decedent and claimant each owned an undivided half interest in a life estate in the farm. The remainder of the estate was owned by the daughter. A fair construction to be put upon the testimony of the witness Johnson leaves a doubt in my mind as to the identity of the property which was to be left to the claimant upon the death of H. G. Bond. It was the burden of the claimant to identify the property to be received by claimant by clear and convincing proof. To me the evidence of the witness Johnson is subject to two constructions — one that they were talking about the whole of the decedent’s estate, the other that they were talking about the possession of the farm and all things incident to that possession. The rule that the most favorable construction be placed upon claimant’s evidence as against a demurrer should not apply where the burden is on the claimant to prove the existence of the contract, all of its terms and the property involved, by clear and convincing proof. The evidence' does not make me sure as to what property they were talking about that the claimant was to get. These were my reasons for sustaining the demurrer to claimant’s evidence, and they are my reasons now for overruling the motion for new trial and for overruling the motion to set aside the order sustaining the demurrer.”
It is apparent from the language just quoted the -trial court in reaching its conclusion was required to and did weigh the evidence adduced by appellant. Such action on consideration of a demurrer to the evidence is in our opinion clearly erroneous. This court in a long line of well-considered decisions has established the rule that in ruling on a demurrer to the evidence courts do not weigh the evi dence or compare contradictory testimony, but must accept all evidence as true and consider only such portions thereof as are favorable to the party adducing it. (Robinson v. Short, 148 Kan. 134, 79 P. 2d 903; Rush v. Brown, 153 Kan. 59, 109 P. 2d 84; Myers v. Shell Petroleum Corp., 153 Kan. 287, 110 P. 2d 810; State v. Garlinghouse, 157 Kan. 91, 93, 138 P. 2d 421; Schroeder v. Nelson, 157 Kan. 320, 327, 139 P. 2d 868; Gilmore v. Kansas City, 157 Kan. 552, 554, 142 P. 2d 699, and Black v. Huxman, 158 Kan. 317, 147 P. 2d 710.) True, as is suggested by counsel, this court has held, and properly so, that in actions for specific performance of an alleged oral contract of the character here involved it must appear such contract is definite in its terms and purposes, established by clear evidence that causes a convincing implication that it was actually made, and is such as to satisfy the court of its terms and performance and that there is no inequity in its enforcement. (Bowen v. Galloway, 125 Kan. 568, 264 Pac. 1038, and Woltz v. First Trust Co., 135 Kan. 253, 9 P. 2d 665.) However, an examination of the cases just cited, and others to the same effect, discloses that the judgments rendered in the courts below were based upon the insufficiency of the contract relied upon after a full and complete consideration of all the evidence and not upon a demurrer to the evidence under circumstances where there was some evidence to sustain the plaintiff’s case. With specific reference to ■ pages 260 and 261 of the Woltz case a number of cases are cited where the purported contract relied upon was not established under the doctrine announced therein and in other decisions referred to in that opinion. We have examined those cases with interest and note that in those where a demurrer to the evidence was the determining factor our approval of the trial court’s action in sustaining such demurrer was in each instance based upon the premise that the plaintiff either failed to produce any evidence of an express contract or failed to produce evidence from which a contract might be legitimately inferred or implied. (See Fair v. Nelson, 96 Kan. 13, 15, 149 Pac. 432; Pantel v. Bower, 104 Kan. 18, 22, 178 Pac. 241, and Dreher v. Brumgardt, 113 Kan. 321, 323, 214 Pac. 419.) In support of her position the trial court’s action in sustaining the demurrer at a time when there was evidence which if given the effect to which it was entitled under the doctrine recognized by this court on consideration of a demurrer to the evidence as proper, appellee directs our attention to an isolated statement to be found in the opinion of Ross v. Ross, 139 Kan. 316, 321, 31 P. 2d. 718, wherein it is stated a trial court is not bound to wait until the defense had put on its evidence, but could conclude the case at the end of the evidence of plaintiff irrespective of whether recognition of the doctrine just referred to would require a ruling to the contrary. We doubt if in that case the court had in mind a situation such as exists in the instant one but, be that as it may, we hold now that insofar as any language there found may be interpreted to authorize the weighing of evidence by a trial court on a demurrer to the evidence the same is disapproved. The opinion might well end at this point were it not for one other proposition advanced by appellee. 'She insists that even if the reason given by the trial court in sustaining the demurrer be found to be insufficient the demurrer was properly sustainable on other grounds and that, nevertheless, under the rule announced in Quinton v. Kendall, 122 Kan. 814, 253 Pac. 600, the judgment should therefore be affirmed regardless of the propriety of the reason on which the ruling was based. The principle of law sought to be invoked by appellee is a good one and has our approval. The trouble with her argument here is that there is no room for its application. Reference to grounds 1, 2 and 3 of the demurrer discloses that under the evidence adduced by appellant the trial court was required to weigh the testimony, while from an examination of the petition for allowance of the demand and the evidence we have no difficulty in determining appellee’s position there was a fatal variance between the contract pleaded and the one testified to by the witness Johnson cannot be upheld.
The judgment sustaining the demurrer to the evidence is reversed and the cause is remanded for further proceedings consistent herewith.
Harvey, J., not participating. | [
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The opinion of the court was delivered by
Hoch, J.:
The question presented by this appeal is whether in the case of the sale of real estate for taxes (G. S. 1935, 79-2801 to 79-2809) the district court may refuse, upon equitable grounds, to confirm the sale even though all proceedings are found to be regular. Asserting such power, the trial court refused to confirm. An intervenor, claiming through the purchaser at the tax sale, appeals.
Tract No. 105, covering certain lots in Goodland, Kan., and owned by Ernest Roff, had been bid in by the county at delinquent tax sale. Having been unredeemed for more than three years subsequent to such sale, action was instituted to foreclose the tax lien, personal service was had upon Roff and his wife and judgment for foreclosure of the tax lien in the sum of $364.70 and costs amounting to $15.30 was duly entered on June 8, 1942. Order of sale was duly issued and on August 31, 1942, the tract was sold at public auction to G. N. Kysar for $55, the highest bid offered. Return on the order of sale was made by the sheriff on August 4 and filed on August 8, 1942. On August 10, 1942, Roff filed a motion asking that the sale be not confirmed. Prior to hearing upon the motion and without any order from the court a sheriff’s deed was issued to Kysar on August 20 and recorded on August 25.
In addition to other allegations which are not now relied upon and which need not be noted, Roff asked the court to refuse to confirm the sale “For the reason that the said George E. Roff did not know or understand the manner in which said property was being sold. That he was told and understood, that the sale of the above property meant that the same was being sold subject to all indebtedness and he would have no further liability; that later and after said sale he has learned that this is not true.” He further alleged that “this property was built by the petitioner at a cost of around $3,500 and the price for which it sold, and under the conditions which it was sold was far below its real value; and the facts are that the purchaser sold the property immediately for many times the price, which was paid for the same.” He offered to pay into court the amount for which the tract was sold, and “to make such other payments as are required by law in order for him to protect his interests in said property as the court may require.”
Hearing upon the motion was continued from time to time. While it was pending Glenn Townsend, the appellant, filed a motion to be permitted to intervene. Pie set up the facts of foreclosure and public sale hereinbefore related and averred that for good and valuable consideration he had bought the tract from Kysar, receiving a deed therefor which had thereafter been duly recorded and that he had entered into possession and had continued in actual possession. He asked that the sale be confirmed and a sheriff’s deed be issued to him. In an answer to Townsend’s motion Roff incorporated the averments of his motion against confirmation heretofore recited. Certain other proceedings not here material, were had.
On September 3,1943, the court made findings of fact and entered judgment setting aside the sheriff’s deed theretofore issued, refusing confirmation of the sale, ordering Townsend to deliver possession to Roff, and directing the clerk of the court to issue a new order of sale for the tract. Findings of the court pertinent to the issue presented were:
“The proceedings leading up to the judgment, the order of sale, and notice of sale by the sheriff were all legal and in conformity with the statutes of Kansas; . . . the price for which said real estate was sold is inadequate, . . . the purchasers of said sale and his assignee, Glenn Townsend, went into possession of said property and that it was taken without apparent authorization, . . . the intervenor, Glenn Townsend, went peacefully into possession with the consent of the defendant, George E. Roff, . . . the defendant, George E. Roff, was not fully aware of the nature of the proceedings instituted against him, nor of the effect of his surrender of possession of said real estate and that equity and good conscience should cause said sale to be held of no effect.”
We are not advised as to the nature of the property involved. No evidence was offered as to its present value, but the trial court stated that there was some testimony that it cost about $4,000 and observed that it was “good enough to store three or four thousand bushels of wheat, barley, and other grain.” However, the court also referred to it as “a white elephant” which Roff had on his hands. Said the court: “it wásn’t profitable, as far as he was concerned.” Apparently there was a mortgage against it of something over $1,000. Roff did not attend the sale. It was contended in Roll’s behalf that he thought that if the sale were held he would be relieved of the debt secured by the mortgage. When he discovered his mistake about this he sought to prevent confirmation and to have the sale set aside.
Any question as to the deed which was issued to the sheriff without confirmation of the sale may be disposed of at the outset. Obviously it was invalid, and appellant so concedes. How it came to be issued the record does not disclose. But we are still left with the question of whether the sale should have been confirmed and a sheriff’s deed ordered.
The pertinent portion of the statute relating to confirmation of sales in foreclosure of tax liens is as follows:
“The sheriff shall make return to the clerk, and the same shall as soon as practicable be examined by the Court and if found, by the court to be regular, it shall be confirmed and the sheriff ordered to forthwith execute to the purchasers at such sale a good and sufficient deed therefor. . . .” (G. S. 1943 Supp. 79-2804.)
In its terms the statute is unequivocal. If the sheriff’s return shows the proceedings to have been regular — and in this case the court so found — the sale “shall be confirmed.” If the court had any discretion in the matter, if it had any power to exercise an equity jurisdiction under such circumstances, such authority must be read into the statute by reference to other provisions of the law, or upon some broad theory of inherent judicial power.
Although the appellee does not cite them, we are faced at the outset with one or two somewhat recent decisions of this court which require attention.
The case of Atchison County Comm’rs v. Wright, 151 Kan. 325, 99 P. 2d 857, is directly in point. In that case the property was said to have a value of $500 and was sold at tax sale for $13.50. Subsequent to confirmation of the sale and prior to issuance of a sheriff’s deed the owner filed a motion to set aside the sale and the confirmation and offered to pay into court the amount of the judgment, with interest and costs. The motion was overruled and upon appeal we reversed the judgment and directed that the sale and order of confirmation be set aside. In the opinion the court set out 79-2804, supra, and followed it with this comment:
“Appellee contends that under this statute, where the proceedings are regular, the court is not vested with discretion to set aside a sale and the confirmation of the sale. We have ruled otherwise. In Isenhart v. Powers, 135 Kan. 111, 9 P. 2d 988, it was held that it was not an abuse of discretion in the trial court in a tax foreclosure action to set aside a sale and confirmation of sale of a lot left in the sale list by mistake. In that case the court had under consideration the provisions of 79-2804. The court considered the spirit as well as the letter of the statute.” (p. 326.)
This was followed with comment, to the effect that the purpose of the statutes for enforcement of liens on real estate for delinquent taxes is “to secure the payment of the taxes, and not to sell the man’s home.” Clearly if this decision be followed the instant judgment would have to be affirmed unless it be upon some theory — not here advanced — of abuse of discretion. On the authority of the Wright case we think the trial court was justified in exercising power to refuse confirmation. But in view of the importance of the question and its far-reaching effect upon the tax foreclosure statutes we have reexamined the issue.
In the first place we take note of Isenhart v. Powers, upon the authority of which the decision in the Wright case was specifically based. Upon reexamination it does not appear quite so controlling. In the Isenhart case it was held that it was “not an abuse of discretion for the trial court in a tax foreclosure case under R. S. 79-2801 to 79-2804 to sustain the motion of the county attorney representing the plaintiff board of county commissioners to set aside the sale and confirmation of sale of a certain lot left in the sale list by mistake after a promise by the county attorney to eliminate it, even if the taxes were not paid by the lot owner before the day of sale, but were paid before the ruling on the motion to set the sale and confirmation aside.” (Syl. ¶ 1.) (Italics supplied.) That was quite a different situation from the one existing either in the Wright case or in the instant one. We need not here discuss the question of the power of the county attorney to make such a promise as the one referred to nor other aspects of the case. In any event the owner had reason to believe that the property was not included in the sale and in reliance upon'official assurance to that effect did not attend the sale. Certainly it might be argued that irregularity prior to the sale was made to appear. But we need not labor the point and for present purposes shall assume that the Isenhart case was authority for the decision in the Wright case.
Before proceeding further it is important to note the significant difference between the statute under scrutiny relating to delinquent tax sales (79-2804) and the corresponding provision of the code of civil procedure with reference to confirmation, generally, of judicial sales. The pertinent portion of the code provision is as follows:
“The sheriff shall at once make a return of all sales made under this act to the Court, and the Court, if it finds the proceedings regular and in conformity with law and equity, shall confirm the same.” (G. S. 1935, 60-3463.)
The difference between the two statutes is apparent. Under the code provision confirmation is had when the court finds the proceedings “regular and in conformity with law and equity” (Italics supplied) . The tax statute contains no such provision. It follows that our cases upholding the exercise of discretion and the application of equity considerations under the code statute clearly are not in point here. In addition to that, there are other persuasive reasons why the code provision cannot properly be read into the tax foreclosure statute.
In the first place, the methods prescribed for the recovery of delinquent taxes are wholly statutory, no methods exist apart from the statute, and whatever procedures, whatever remedies are available are to be found in the tax statutes. (Ness County v. Light & Ice Co., 110 Kan. 501, 204 Pac. 536; Sarver v. Sarver Oil Co., 141 Kan. 246, 248, 40 P. 2d 394; Cunningham v. Blythe, 155 Kan. 689, 695, 127 P. 2d 489; Mitchell County Comm’rs v. Allen, 156 Kan. 701, 706, 137 P. 2d 143.)
In the second place, it is an elementary rule of statutory construction that the terms of a statute dealing with a specific subject are controlling as against divergent provisions of a statute having general application. (Greeley County v. Davis, 99 Kan. 1, 160 Pac. 984; State v. Curtis, 143 Kan. 984, 987, 57 P. 2d 22; Smith v. Henry, 155 Kan. 283, 287, 124 P. 2d 448.) In 1941 the legislature enacted a general and comprehensive revision of the statutes with reference to the sale of real estate for taxes (Laws 1941, ch. 375). Section 79-2804 is part of that revision and must be given controlling force.
■ In the third place, there are various important distinctions between judicial sales under the civil code and delinquent tax sales. For instance, sales under the civil code involve a debtor and creditor relationship of some sort — mortgage foreclosure, execution sales, etc. Taxes, on the other hand, are not classed as debts in the usual sense of the term, and actions prescribed by the civil code do not lie for their recovery. (Comm’rs of Stafford Co. v. First Natl. Bank, 48 Kan. 561, 30 Pac. 22; Davidson v. Cattle Co., 76 Kan. 462, 92 Pac. 705; Rogers v. Johnson, 138 Kan. 39, 41, 23 P. 2d 586; Sarver v. Sarver Oil Co., supra, p. 248.) Again, in a tax foreclosure sale the county cannot take a deficiency judgment. The proceeding is against the property, it is an action in rem. (Ness County v. Light & Ice Co., supra; Atchison County v. Challis, 65 Kan. 179, 181, 69 Pac. 173; Montgomery County v. Wilmot, 114 Kan. 819, 824, 221 Pac. 276.) Again, the general redemption statutes do not apply as against the holder of a tax deed. (Davidson v. Cattle Co., supra; Rogers v. Johnson, supra.)
The tax foreclosure statutes provide in detail both the methods of collecting delinquent taxes and the remedies available to owners. It has been said that an action to foreclose a tax lien is “a suit by the sovereign for the appropriation of the private property of an individual and presents all the harsh features of a forfeiture.” (Montgomery County v. Wilmot, supra, 824.) Our statute, however, has many liberal provisions for protecting the rights of delinquent owners — provisions as to notice, public sale, right of redemption, etc. Action to collect cannot be begun until at least three years after the property is bid in by the county, and an ample period is provided before the sale can be held. These and the other provisions can hardly be said to be harsh. In any event they provide the remedies which the legislature has established. Such remedies being specific and complete, there is no occasion or authority for resorting to a court of equity. (61 C. J. 1043; Corbin v. Young, 24 Kan. 198, 201; Trust Co. v. Essex, 74 Kan. 240, 242, 86 Pac. 467; Crawford County Comm’rs v. Kurent, 138 Kan. 556, 27 P. 2d 226.) Nor does the fact that the doctrine of caveat emptor applies to a purchaser at tax sale (Isenhart v. Powers, supra) in any way modify that rule. While the purchaser takes the property subject to any existing impairment of title, he does not assume a risk that rights arising out of the foreclosure statute will be denied him.
The construction which has been given to the code provision relative to judicial sales further fortifies the view that equity powers cannot be read into the tax foreclosure statute. As heretofore noted, the present code provision (60-3463, supra) calls for confirmation when the proceedings are found to be “regular and in conformity with law and equity.” But the code provision did not always contain the word “equity.” Prior to 1893 when the section was amended to include equity considerations the statute required confirmation when the sale had in all respects been had “in conformity to the provisions of this article.” (Bank v. Murray, 84 Kan. 524, 114 Pac. 827.) Although equity principles are especially applicable to a statute dealing with debtor and creditor relationships, the code provision, prior to 1893, was generally construed as requiring confirmation when the proceeding's had been regular. (Cowdin v. Cowdin, 31 Kan. 528, 3 Pac. 369; Adams v. Devalley, 40 Kan. 486, 20 Pac. 239.) Such discretion as was permitted in some cases, based on extrinsic circumstances, can hardly be said to be a departure from the rule. In Dewey v. Linscott, 20 Kan. 684, where it may be contended that the rule was not strictly followed, it was said: “mere inadequacy of price is not sufficient cause for setting aside the sale . . . unless the in adequacy is so great as to be evidence of fraud or unfairness in the sale.” (Italics supplied.)
This difference between the original and the present code provisions was commented upon in Pool v. Gates, 119 Kan. 621, 240 Pac. 580, where the court said:
“Under our old code (Gen. Stat. 1868, ch. 80, § 458) it was the duty of the Court to confirm a sale when the proceedings were found to be regular (Adams v. Devalley, 40 Kan. 486, 20 Pac. 239), but under our present code, R. S. 60-3463, the Court is required to confirm the sale if it finds the proceedings regular and in conformity with law and equity. [Italics supplied.] Hence equitable matters as distinct from legal questions as to the regularity of the sale may be considered by the Court in passing upon a motion to confirm a sale.” (p. 625.)
Reasons for strictly construing a general code provision apply with still greater force to a statute dealing only with delinquent taxes.
The instant sale was set aside for the principal reason that the owner had mistakenly believed that the sale would relieve him of a personal debt secured by mortgage on the property. If this be permitted where is the limit upon invalidation of tax sales? However much courts may regret the situation of tax delinquents who have failed to redeem under the liberal provisions of the law, they are also guardians of the legislative intent. The public interest is directly involved. However burdensome taxes may be, at times, government cannot be maintained without collecting them. To set aside a tax sale upon some subsequent showing that the owner did not understand his rights, or for any other such reason, is to introduce uncertainty into the law, to discourage bidding and to reduce, inevitably, the total amount of taxes recovered. Both the county and the purchaser are entitled to rely upon the terms of the statute. In any event, if the statute is to be broadened that should be left to the legislature.
We conclude that general equity principles may not be invoked to refuse confirmation and invalidate a tax sale shown to have been fairly held, with no element of fraud, and in every way regular under' the statute. Insofar as the Wright case, supra, or any other case supports a contrary view, such holding is hereby overruled.
The judgment is reversed with directions to confirm the sale and order deed to purchaser.
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The opinion of the court was delivered by
• Thiele, J.:
This was an action for a divorce. Under circumstances hereafter set forth, the plaintiff requested the trial court to hear and pass upon certain questions of law in advance of the trial of the facts. After a hearing the questions so decided and the rulings thereon were filed, and from such rulings the plaintiff appeals to this court.
Plaintiff commenced her action by filing* a petition alleging her marriage to defendant Corwin Grant Watts in 1924, the birth of a child in 1926 and a ground for divorce, and praying for a divorce, for the custody of the child, for permanent alimony and attorney’s fees and costs. Defendant Watts entered his appearance, but the abstract does not disclose he filed any answer or participated in the matters herein discussed. Shortly thereafter plaintiff obtained leave to make J. B. McKay, trustee of the estate of Corwin Grant Watts, a defendant, and she then filed a supplemental petition in which she alleged that on December 11, 1918, the last will of Mary D. Watts was duly admitted to probate in Butler county probate court, a copy of the will being attached as an exhibit; that on November 10, 1919, the district court of Butler county assumed jurisdiction of the administration of the trust created by the will and now retains the same; that J. B. McKay is the’sole surviving trustee; that the trust was created for the support and benefit of Cor-win Grant Watts, who has no property other than his beneficial interest in the trust estate; that Corwin Grant Watts is legally and morally bound to support plaintiff and his minor child, and pursuant to an order of the district court the trustee had been paying plaintiff for support of herself and the child the sum of fifty dollars per month since about the year 1932; that plaintiff and defendant had not cohabited since that time. Plaintiff expanded the prayer of her petition to include that McKay as trustee be ordered to pay to plaintiff and her attorneys such amounts as the court in its discretion might allow her for temporary and permanent alimony, support money for the child and for attorney’s fees and costs.
The will of Mary D. Watts disposed of certain personal property and a half interest in certain described real estate and oil and gas royalties therefrom, and we are not concerned therewith. Under the third paragraph the testatrix devised and bequeathed the other undivided one-half interest in the real estate and oil and gas royalties to A. L. L. Hamilton and J. B. McKay in trust for Corwin Grant Watts, giving the trustees or the survivor full power to hold, manage, control, sell, transfer and convey the same, to reinvest the principal and income from time to time and to do everything necessary and proper to effectuate the trust, and she directed the trustees to pay Corwin Grant Watts “at such times as to them may seem necessary, such sums of money as shall in their judgment be necessary for the proper maintenance, support and education of said Corwin Grant Wg>tts;” and after he arrived at the age of twenty-one years, the trustees were authorized and directed to turn over to Corwin Grant Watts all the trust property then on hand, “when, in their judgment and discretion, said Corwin Grant Watts has attained sufficient business judgment, and otherwise shows himself to be capable of handling such property, but said trustees are directed to hold and invest such property as herein provided until they have determined said Corwin Grant Watts to be a suitable person to handle the same.”
By a later paragraph she devised and bequeathed one-half of the residue of her estate to the same trustees in trust for Corwin Grant Watts “to be held, controlled, managed and disposed of by-them exactly as provided in paragraph third hereof.”
The answer of McKay, as trustee, contained certain admissions and allegations as to the will and its probate and that he is now the sole trustee under the will; that he had no concern with the marital difficulties of plaintiff and her husband and neither admitted nor denied her allegations in that respect. He further admitted that in 1919 the trustees had invoked the jurisdiction of the district court of Butler county with respect to the trust and had since made annual reports to that court. We need not now detail the allegations with respect to the property in possession of the trustee, consisting principally of real estate on which oil is being produced and some investments, or its present value, or fluctuation of income from .oil royalties, which now average about $125 a month; that the district court has exercised jurisdiction over the trust and, with full acquiescence and approval of the trustee, has received, examined and approved reports made, fixed and approved the trustee’s bond, fixed his compensation and fixed the amount to be paid out of the trust estate for the support of defendant Watts and his family; that it appears from the will that the trust created is a discretionary trust for the benefit of Corwin Grant Watts and the trustee is charged with the duty of paying to him such sums of money as are, in the judgment of the trustee necessary for his proper support, maintenance and education and that the trustee’s discretion is not subject to the control of any court except to prevent an abuse thereof; that in pursuance of the orders of the court and in the exercise of his own discretion the'trustee has at all times since plaintiff and her husband separated in 1932 paid plaintiff for herself and child the sum of fifty dollars per month, and in addition unusual expenses such as doctor’s bills for herself and child, and has allowed her to occupy rent-free a house in Wichita belonging tó the trust estate, but on which he has paid taxes, insurance, repairs and upkeep; that plaintiff conducts a “beauty parlor” in said house and her earnings with the sum of fifty 'dollars per month afford her a comfortable living; that the child is no longer in school and is or soon will be partially self-supporting; and that the trustee is willing to continue such payments and support of the plaintiff and the child, to the extent that the funds in his hands will permit, so long as the relation of husband and wife exists between plaintiff and the defendant Watts. Trustee further alleges that he has determined and is of opinion that Corwin Grant Watts will never attain sufficient business judgment and otherwise show himself capable of handling the property now in trust; that he is and always will be a spendthrift and.it will be necessary to support him the remainder of his life, and in order to carry out the purposes of the will it is necessary to conserve and preserve the corpus of the trust so that the same will be adequate to support Watts for the remainder of his life; that Watts is now about forty years of age and has a life expectancy greater than the oil wells can be reasonably expected to produce, and in the judgment and opinion of the trustee it will become necessary in the not far distant future to support Watts entirely out of the cash and securities on hand and the income therefrom is not adequate for the purpose. The trustee further alleges that it is not for the best interests of defendant Watts that plaintiff be allowed temporary or permanent alimony, support money for the child, etc., to be paid out of the trust estate and he denies the jurisdiction of the court to order him to apply the trust funds to such purposes. He prayed that plaintiff be denied the relief prayed for against him and that the action be dismissed as to him.
The plaintiff then asked the court to rule upon certain specified questions of law. In compliance the court stated its rulings in writing and filed the same. After referring to the will of Mary D. Watts, the court found that it created “what in law is known as a spendthrift trust, which trust was created for the purpose of providing in the discretion of the trustees for the.support of the defendant.” After reference to the third paragraph of the will the court stated further:
“To the specific law questions propounded to the Court the Court makes the following answers and finds the law to be as stated therein:
“Q. 1. Does the Court, while the marriage relation exists between the plaintiff and defendant, Corwin Grant Watts, have authority—
“(a) To order said trustee to pay part of the income of said trust estate to plaintiff for support of said plaintiff and the minor child of plaintiff and defendant? A. No. This Court has not found that the Trustee has violated any orders of this Court made in the matter of said trusteeship; it has not found that the trustee has abused the discretion granted by the terms of said trust or by the law; it has made no order in this case for the payment of temporary support or care of plaintiff or their minor child, and has no power or authority at this time to order the trustee to. do anything with the income from said trust estate.
“(b) In the event that the income from said trust estate is inadequate for the purpose, does the Court have authority to direct said trustee to dispose of a part of the corpus of the estate for the purpose of providing funds’ for the support of said plaintiff and said minor -child? A. No, for the reasons stated in answer to Question (a).
“(c) To direct said trustee to pay the costs of this action including a reasonable attorney’s fee for the plaintiff’s attorney for bringing and conducting this suit, and in the event the income from said estate is inadequate for that purpose, direct to provide funds with which to pay the same? A. No, for the reasons stated in answer to Question (a).
“While the marriage relation exists, if the defendant should fail to properly support the plaintiff, and the trustee, after proper application has been made to. him, should so act as would under all the circumstances constitute an abuse of discretion, then this Court in a proper proceeding would have the right to correct such abuse by temporary orders by directing the trustee to make payments to the plaintiff of a reasonable amount for her support and maintenance from the income or from the corpus- or from both sources, but such orders must be limited to the reasonable and current support and maintenance of the plaintiff, would be subject to change or to be set aside at any time, and, in the first instance, could be made for the sole .purpose of correcting a previous abuse of discretion on the part of the trustee.
“While the child of the plaintiff and defendant is under twenty-one years of age, and a single woman, the law would be the same as to said child.
“Q. 2. In the event a divorce is granted in this action and the marriage relation between said plaintiff and said Corwin Grant Watts terminated, does the Court have authority and power—
“(a) To award and set apart to said plaintiff as permanent alimony, a part of the corpus of said Trusf Estate, or create a lien against the same for the purpose of securing the payment of whatever permanent alimony is finally awarded plaintiff? A. No. If a divorce be granted the Court will have no right to direct the Trustee to pay anything to the plaintiff ás permanent alimony, or division of property, or for support of the plaintiff, nor can the Court create a lien upon said Trust Fund or the income or profits therefrom, for any of the purposes set forth above.
“(b) To award and set apart to plaintiff for the support and maintenance of the minor child of plaintiff and said Corwin Grant Watts, during her minority, a portion of the corpus of the Trust Estate, or to create a lien thereon for the purpose of securing the payment of 'whatever sum said Court shall finally allow as support money for said minor child? A. No. But-if, upon application to the Trustee for support of said child, and such application should be denied to thé extent that it would be said to constitute „an abuse of discretion on the part of said Trustee, and said child was then a minor and unmarried, the Court would have the power to correct such abuse by requiring the Trustee to pay from the corpus or from the income of said Trust Estate, a sufficient amount to provide for the temporary support of said child, which payments might be ordered to be made during the minority of said child, or until its marriage. However, any such order by the Court would be subject to change at any time and could only be made to correct an abuse on the part of the trustees.
“(c) To award to plaintiff as permanent alimony a share of the income of said Trust Estate? A. No.
“(d) To award to plaintiff for the support of said minor child, during her minority, a share of the income of said Trust Estate? A. No.
“(e) To award to plaintiff’s attorneys a reasonable attorney fee, to be paid out of the corpus of said Estate for their services in bringing and conducting this suit? A. No.
“(f) To award to plaintiff’s attorneys a reasonable attorney fee, to be paid out of the income of said Trust Fund, for their services in bringing and conducting this suit? A. No. '
“(g) To direct said Trustee to pay the costs of this action? A. No.
“As the Trust Estate is being handled by the Trustee under the supervision of this Court, it may seem technical to hold that all proceedings by the plaintiff or in behalf of said child seeking to obtain any part of said trust fund, must be filed in the Trust Estate, yet this Court feels that all applications for relief of this kind should first be presented to the Trustee, and if he should be guilty of an abuse of discretion that an application should then be filed in the Trust Estate to correct such abuse. Therefore, as the Trustee has never been called upon to exercise his discretion with reference to any of the matters presented in this divorce suit, the Court holds as a matter of law that the Trustee is not a proper party to this action, and that any efforts of either the plaintiff or the child of the parties to obtain any part of said Trust Fund, or the income therefrom, must be filed in the Trust Estate, and the Trustee be given an opportunity to act thereon before it is presented to the Court. Any payments made by the Trustee to either the plaintiff or said child must conform to the rules of law stated in the answers to the legal questions submitted.”
As heretofore indicated, plaintiff appeals from the above rulings. The defendant Watts, although served with notice of appeal, has filed no brief, and the controversy here is between the plaintiff and the defendant trustee, and they will be referred to as the appellant and appellee.
The present appeal presents some technical difficulties not specifically mentioned or relied on in the briefs. This is an action for a divorce. Under the code of civil procedure there is no provision for making any person other than a spouse a party defendant in such an action. (Cf. Howell v. Herriff, 87 Kan. 389, 124 Pac. 168, Ann. Cas. 1913E 429.) In the present case the relief sought against the defendants is not the same and, assuming any cause of action is stated against the trustee, the causes of action do not affect all parties, for the trustee has no legal interest in the marital status of either of the spouses. (See G. S'. 1935, 60-601.) In a general way, appellant directs our attention to Watts v. Watts, 151 Kan. 125, 98 P. 2d 125, as authorizing the present proceedings. What was said in that opinion was based on what was there shown and involved, but it was there stated that assuming the trial court had jurisdiction otherwise it could make no valid order nor render any judgment disposing of the trust fund unless the trustee was properly before it as a party to the action.
• Another matter presenting some difficulty is this: In a sense the purpose of the questions of law submitted in the instant case is to obtain rulings so that the plaintiff may be advised in advance whether it is to her financial interest to seek a divorce and permanent alimony or to leave the marital relation undisturbed’ and to seek only to have a portion of the trust fund or its income allotted to her for her support. It may be doubted that the purpose to be served in passing upon questions of law in advance of a trial of the facts is to advise a party to the action which course for relief should be followed by him. Although we consider this appeal, our course in so doing is not to be interpreted as full approval or binding in a case where the questions above discussed are fully presented.
We think it pertinent to point out that this is not an action to construe the will of Mrs. Watts. Only in such an action could we decide some questions incidentally raised in the briefs, and the decision of which would affect possible interests of those not parties to the action. (Cf. Ayers v. Graff, 153 Kan. 209, 109 P. 2d 202.)
In a summary way it may be said that appellant contends the trust created is a spendthrift trust and not a discretionary trust; that the trustee has surrendered his discretion under the trust to the district court of Butler county; that the corpus of the trust is the property of defendant Watts, and upon decree of divorce granted, the court should award alimony and charge it against the trust estate. Shortly stated, appellee says the question is whether the trust estate is the property of defendant Watts and subject to expropriation in the present proceedings. In arguing their contentions, the parties raise and discuss many related matters, and in support of all our attention is directed to many authorities, only a few of which will be mentioned.
We need not discuss at length the duty of a husband to support and maintain his wife and child, for there can be no argument that a husband has a moral and legal duty to do so. Under our statutes if the wife be granted a divorce from her husband for his fault, she is to be restored to her property, and to be allowed such alimony as the court shall think reasonable, having due regard to the property which came to him by marriage and the value of his real and personal estate at the time of the divorce. (G. S. 1941 Supp. 60-1511.) In determining what amount of permanent alimony should be granted, the court in a proper case may consider the future earnings of the husband. (Francis v. Francis, 108 Kan. 220, 194 Pac. 641, and cases cited therein.)
Directing attention to the -provisions of the will, appellant contends that under it a discretionary trust is not created for the reason there is only a single beneficiary and no discretion as to selection of beneficiary (Griswold on Spendthrift Trusts, p. 373, § 428); that a spendthrift trust is created (Sherman v. Havens, 94 Kan. 654, 146 Pac. 1030, Pond v. Harrison, 96 Kan. 542, 152 Pac. 655); and that under the spendthrift trust the beneficial interests of Corwin Grant Watts are vested. (McLaughlin v. Penney, 65 Kan. 523, 70 Pac. 341; In re Estate of Aye, 155 Kan. 272, 124 P. 2d 482.) She further contends that because in the past the district court of Butler county either made an order for the support of herself and minor child, or approved an application of the trustee to that effect, such discretion as the trustee had was abdicated by him and taken by the court and that she is now entitled to have a part of the trust fund set off to her as alimony and for support of the minor daughter whose custody she seeks. Supplementing that contention is the further one that even though a creditor may not have any part of income or principal of a spendthrift trust estate applied to his debt, public policy demands that the beneficiary of such a trust.be compelled to support his wife and child; that they stand in a position different from ordinary creditors, and the court in enforcing marital and filial rights may invade the income from a spendthrift trust. In support of the latter contentions our attention is directed to decisions from courts other than our own and to notes in various law reviews.
The appellee makes some contention that the trust created is a discretionary trust; that although as trustee he has an obligation to support and maintain his ward, he has complete discretion whether he shall ever turn over to his ward the corpus of the trust estate, and that if he does not do so in the lifetime of his ward, the corpus passes to the, heirs of the settlor, Mrs. Mary D. Watts, and also that in a proper proceeding before a court having equitable jurisdiction his actions in administering the trust may be reviewed only to determine whether he has abused the discretion placed in him.
An effective answer to the questions whether the will of Mary D. Watts creates a discretionary trust or a spendthrift trust, and if it creates a spendthrift trust, whether the interest of Corwin Grant Watts is vested or contingent, may only be made in an action to construe the will or in some other proper action in which all persons whose rights might be affected' are made parties. But if we pass that difficulty for the moment, we still would find it unnecessary to closely analyze and classify the trust created. We may observe that if the trust created is a purely discretionary one and not a spendthrift trust, the wife or child may not look to the husband’s or father’s interest. (Restatement, Trusts, § 155.) It may be conceded that if the trust created is a spendthrift trust many cases may be found holding that the income may be subjected to claims for maintenance of the wife or child, and some that it may be subjected to the satisfaction of alimony. (See the cases and notes to other cases referred to in 104 A. L. R. 779.)
This case has not been tried and we are not in a position to deal with established facts.’ We are advised that Corwin Grant Watts was not related in any manner to Mary D. Watts and would have received no part of her estate except as a result of being a beneficiary under her will. Mary D. Watts was privileged to make a will and bequeath and devise her property in any manner she chose, so long as the disposition was lawful. She not only had full power and right to select the objects of her bounty, but within lawful limits to prescribe the circumstances under which those benefits should be enjoyed. It would appear from the record as abstracted that Cor-win Grant Watts was about seventeen years of age when she made her will and also when it was admitted to probate. We may assume that she expected Corwin Grant Watts might marry and have children, and that such a wife or child would receive a share of the benefits she conferred upon him, restricted as they were, but we cannot assume that she expected there would be a divorce and that the trust estate, which she created for his support and maintenance, would be used for the support and maintenance of a divorced wife. Although as above indicated cases may be found where income from a trust estate has, in a proper action, been subjected to the payment of alimony, many others to the contrary are also noted in 104 A. L. R. 779 and the annotations therein mentioned. The present proceeding does not call for an analysis of these various cases, but we do note that some of them depend on specific statutes, and others on the manner in which alimony may be allowed. The present appeal does not warrant a fuller discussion and we may only say that at this time and in the present action the trial court would not be warranted in charging the trust estate with any award of permanent alimony, if a divorce be granted the wife.
Insofar as pertains to an allowance to appellant for support of herself and child while the marriage relation continues we make the following observations: The trust was fully effective and being administered when appellant married Corwin Grant Watts and she was then aware of the provision made for him, the limitations placed on him and his trustee, and the extent of his interest in the trust estate. It appears from the record as abstracted that since about 1932 the appellee, trustee, under order or approval of the district court, has been making monthly payments for the support and maintenance of the wife and child and has conferred other benefits on them out of the trust estate, and except perhaps as to amount, plaintiff is already receiving from the trustee what she asks the court to give her in the divorce action. We need not discuss the seeming conflict whether the benefits which the wife and child have been receiving from the trustee are the result of an order of the district court, without more, as contended by appellant, or are the result of the exercise of discretion by the trustee and approved and confirmed by the district court, as contended by the appellee. Such a conflict cannot be decided on contradictory allegations in the pleadings, which do not pretend to state which party invoked the jurisdiction of the district court to obtain the particular order for payments but which state only that the payments have been made. Certainly from the record now presented, we cannot say that, even though he could legally do so, the trustee had surrendered to the district court his discretion in the administration of the trust.
Although the trial court ruled on the questions of law submitted, it expressed the view that all proceedings by the plaintiff for financial relief of herself and the child from the trust estate should have been filed in the proceedings connected with the administration of that trust, and that such application should have been presented to the trustee, whose actions are subject to review by the district court to determine whether the trustee had abused his discretion. With that view we are in accord. We are also of the opinion that the specific rulings made by the trial court, as applied to the proceeding in which'they were rendered, were correct.
The ruling and decision of the trial court are affirmed. | [
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The opinion of the court was delivered by
Hoch, J.:
This was an action against a public transportation company to recover damages for personal injuries suffered by a passenger. The plaintiff prevailed and the defendant appeals.
The principal questions presented are whether certain special findings of the jury — including a finding on the question of negligence— were supported,by'substantial evidence; whether a mistrial should have been declared because of misconduct of the plaintiff during the trial; and whether the verdict was excessive in amount.
Shortly stated, the plaintiff, Ollie Mahan, alleged that on June 23, 1942, she was a passenger on a public bus operated in Kansas City, Kan., by the defendant, the Kansas City Public Service Company; that she was seated, facing forward, immediately back of the rear exit; that the bus was proceeding north on Seventh street; that as the bus approached and entered the intersection of Seventh street and Washington boulevard the operator of the bus “so negligently operated and controlled the bus as to cause the right front corner thereof to come into violent collision with the right rear corner of a Plymouth coupé driven by M. K. Shear, which was eastbound on Washington boulevard; ... as a result of which said bus'was caused to be suddenly and violently slowed and stopped and the plaintiff was thrown suddenly and violently from her seat . . . and on the floor thereof and into and upon the steps of the rear exit,” (Italics supplied) and suffered thereby painful and lasting injuries. The allegations as to the extent and nature of the alleged injuries need not now be noted. She sought damages in the amount of $3,000. The answer was a general denial.
Trial was had before a jury in February, 1943. A demurrer by defendant at close of plaintiff’s evidence was overruled. Following evidence by the plaintiff members of a medical commission appointed by the court to examine the plaintiff testified as to her injuries. During the testimony of one of the doctors occurred the incident which appellant contends constituted misconduct on the part of the plaintiff and to which reference will be made later. Defendant’s evidence followed.
The jury returned a verdict for the plaintiff for $2,500, and answered special questions as follows:
“1. When the front wheels of the coupé crossed the north-and-south center line of 7th Street Trafficway in turning east, at what speed in miles per hour was it traveling? A. 8 to 12 miles per hour.
“2. At what speed in miles per hour did the coupé move from the time its front wheels crossed the center line of the 7th Street Trafficway until the instant of collision? A. 8 to 12 miles per hour.
“3. At the instant of the collision, where was the rear right corner of the coupé in distance from,
(1) (a) The north and south center line of 7th Street? (b) From the east and west center line of Washington Boulevard?
(2) At said time where was the right front corner of the bus in distance from; (a) The north curb line o.f Washington Boulevard as extended across 7th Street? (b) What distance from the east curb line of 7th Street as extended across Washington Boulevard?
(1) (a) About 11 feet, (b) From center line to five feet.
1 (2) (a) From 20 to 25 feet, (b) About 15 feet.
“4. State specifically where, with reference to the center of the intersection of Washington Boulevard and the 7th Street Trafficway did the coupé turn left to go east on Washington Boulevard? A. Right front wheel passed over exact center of intersection.
“5. At what rate of speed in miles per hour was the bus traveling, ‘
(a)When it reached the east and west alley between Nebraska Avenue and Washington Boulevard? (b) When the coupé started south across Washington Boulevard after the traffic light had turned green? A. (a) 20 miles per hour, (b) 20 miles per hour.'
“6. Where was the bus when the coupé stopped for the traffic light on the north sidewalk line of Washington Boulevard as projected across 7th Street Trafficway? A. Between Nebraska Ave. and the alley.
“7. Where was the bus when the coupé turned east at or near the intersection of Washington Boulevard and 7th Street? A. Between alley and Washington.
“8. If you find for the plaintiff, state specifically each act of negligence of defendant that caused or. contributed to her injury. A. The bus did not have right of way because the coupé entered intersection first.
“9. If you find for the plaintiff, state how much you allow for:
(a) Past pain and suffering ;
(b) Future pain and suffering;
(c) Past loss of wages;
(d) Future loss of wages;
(e) Plaintiff’s inability to discharge her household and domestic duties, past and future? A. (a) $1,500.
(b) None.
(c) $500.
(d) None.
(e) $500.”
The defendant moved to set aside the answers to all questions except No. 4, and also moved for judgment upon the special findings notwithstanding the general verdict. Both motions were overruled, as was also a motion for a new trial. This appeal followed.
Appellant abandons the contention that the court erred in overruling the motion for judgment on the special findings, and now only urges that a new trial should have been granted.
A brief statement of the circumstances surrounding the accident will help to clarify the issues. Seventh street, on which the bus was proceeding northward, is a thoroughfare fifty-two feet wide from curb to curb. Washington boulevard, running east and west, is forty feet wide. There were traffic-control lights on the four- corners of the intersection. A coupe, in which Mr. and Mrs. R. K. Shear were riding — Mr. Shear being the driver — -approached the intersection from the north. There is no dispute that both the bus moving north and the auto moving south entered the intersection on the green light. The auto made a turn to the left with the intent of proceeding eastward on Washington. In an effort to avoid a collision the bus driver swung the bus to the left, but the right front corner of the bus collided with the right rear corner of the coupe. Neither vehicle was so damaged that it could not proceed following the accident, and as far as this record shows neither Mr. nor Mrs. Shear was seriously injured. The plaintiff was thrown into what is described as the “stair well” leading to the bus exit, either by the sudden slowing of the bus or by the impact, or both.
The negligence, if any, of the driver of the coupé is not here involved. We are concerned only with the alleged negligence of the bus driver. In considering that question, we start with the well-settled rule that while a public carrier is not an insurer of the safety of its passengers it is held to a high degree of care. (13 C. J. S. 1255 et seq.) The trial court so instructed and appellant agrees that that is the rule. Appellant contends that the 'evidence disclosed that the bus driver exercised the highest degree of care possible and practicable under the circumstances. We cannot, of course, weigh conflicting evidence upon that question. We examine the jury’s answers to see whether they are supported by evidence and are consistent with the general verdict.
The jury’s specification of negligence is found in the answer to question 8, as follows:
“If you find for the plaintiff, state specifically each act of negligence of defendent that caused or‘contributed to her injury. A. The bus did not have right of way because the coupé entered intersection first.”
We note, at the outset, that while appellant argues that the answer to question eight does not constitute an act of negligence, it does not argue that it is not within the allegations of the petition, nor did it ask that it be set aside on that ground. Reasonably-construed we think it clearly falls within the allegations of the petition.
Did the answer state an act of negligent operation? In considering that question we must follow the sound and well-established rule that a jury’s answers to special questions are to be liberally construed with a view to ascertaining the intention of the jury and to upholding rather than upsetting the general verdict, where such construction can reasonably be made. (64 C. J. 1185-1187; Taggart v. Yellow Cab Co., 156 Kan. 88, 93, 31 P. 2d 924.) While the answer is somewhat incomplete its intendment seems plain enough. The 'jury evidently meant to say that the bus driver entered the intersection in an attempt to proceed through it when the coupé was making a left turn under circumstances which gave it a prior right to the east traffic lane. So construed, was there substantial evidence to support the finding?
First, let us note just what appellant contends. It argues that the traffic light being green both the bus and the coupé had a right to enter the intersection, but that the bus had a prior right to proceed straight through the intersection as against the right of the coupé to make a left turn across such through trafile. In support of that view appellant stresses section 8-551,1941 Supp., which is as follows:
“The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, but said driver, having so yielded and having given a signal when and as required by this act, may make such left turn and the drivers of all other vehicles approaching the intersection from said opposite direction shall yield the right of way to the vehicle making the left turn.” (Italics supplied.)
The law is clear enough. But again, the facts control. Was the bus, in fact, “within the intersection or so close thereto as to constitute ah immediate hazard” when the coupé was within the intersection intending to turn to the left? On that question the jury found that the bus was “between the alley and Washington.” Under that answer it could have been at any point between the alley and the intersection. Appellant did not ask that'the answer be made more definite. Nor do we find convincing appellant’s argument that we must now conclude — following an uncertain mathematical computation based on speeds and distances — that the bus was right at the intersection when the coupé made the turn. If the bus was a considerable distance from the intersection — as it could have been according to some of the evidence and under the jury’s answer— then obviously we could not say that it was. so close that the coupé made a left turn in violation of section 8-551. Furthermore, in this connection there was further testimony which cannot be ignored. One of the bus passengers, a witness for the defendant, testified on direct examination as follows:
“A. Well, as I was riding there, when we come to the comer we, as I said before, we were going between the speed of fifteen and twenty miles an hour entering the intersection.
“Q. As you entered the intersection? A. Yes, to me it seems as if the bus picked up speed, how much speed he picked up I would not say, because — ” (Italics supplied.)
There was much evidence that as the coupé approached the intersection the light was red and it stopped to await the green light. Mr. Shear testified that when the light turned green and as he started to make a left turn he put his arm out “and down” to indicate the turn and in this he was corroborated by Mrs. Shear and by at least one other witness. The bus driver testified that the coupé cut directly in front of him without any warning and one of the bus passengers gave like testimony. Appellant stresses the fact that the arm signal which Shear says he gave was too much downward to indicate a left turn and in fact was a signal that he was going to stop or decrease speed. We cannot attach much weight to this point. The jury could tell, but we cannot tell from the record at what downward angle the witness indicated he put his arm. And the bus driver says there was no signal or warning of any sort. All this was for the jury. In addition to that, no instruction was asked on the point and no error is assigned for failure to instruct with reference to a misleading signal.
While there was marked conflict in the evidence we must conclude that there was ample evidence to support the jury’s finding of negligence.
We come to plaintiff’s contention that the jury should have been discharged during the trial on account of misconduct on the part of the plaintiff. During the testimony of one of the doctors, the plaintiff became more or less hysterical, sobbed, and interrupted the examination of the witness. The following occurred:
“Mrs. Ollie Mahan: I won’t get well.
The Court: Just a minute — ■
Mr. McAnany: Well—
The Court: Control yourself, Madam.
Mrs. Ollie Mahan: I won’t get well.
Mr. McAnany: If the Court please—
The Court: Members of the jury: Of course, anything like that, you will not consider as a part of the evidence in this case. Now, have her control herself.
Mrs. Ollie Mahan: I won’t get well.
The Court: Now, just a minute—
Mrs. Ollie Mahan: I won’t get well.”
Still sobbing, plaintiff was taken to the judge’s chambers until she recovered her composure.
Appellant calls our attention to the case of Stutz v. Milligan, et al., (Mo. App.) 223 S. W. 128, in which the appellate court affirmed the action of the trial court in granting a new trial on account of the conduct of a wife in “becoming hysterical and crying aloud” when her husband was called as a witness in an action for alienation of affections. Appellee cites cases from Missouri, North Carolina, and Washington which involved alleged prejudicial conduct consisting of weeping and other emotional outbursts in the presence of the jury and where motions to declare a mistrial were denied. There would be little point in reviewing these and many other cases on the subject which might readily be collected. So much depends upon the divergent circumstances and issues involved in particular cases and upon the varying judgments of trial courts as to effect upon juries.
The ■ responsibility of determining whether irregular -conduct of this sort is prejudicial rests primarily in the sound discretion of the trial court, and its action will not be set aside unless prejudice clearly appears. (64 C. J. 103; 5 C. J. S. 499, 500; Couch v. Kansas Elec. Power Co., 138 Kan. 822, 824, 28 P. 2d 724; Harmon v. Theater Co., 111 Kan. 252, 253, 206 Pac. 875; Pasho v. Blitz, 99 Kan. 421, 422, 162 Pac. 1161.)
Furthermore, in the instant case the nervous character of the plaintiff and her lack of emotional balance or control were characteristics which at least two of the doctors emphasized in describing her condition as related to her injuries. No useful purpose would be served by reviewing this testimony. It is pertinent to note, however, that counsel for appellant, in his argument to the jury, treated plaintiff’s outburst as something she coutd not control. He said:
“Now she is a woman that is hysterical; subject to hysteria, and in her condition she couldn’t be anything else. When she went on the stand; when she sat there and cried out loud the other day, I first thought that it might be due to something else. I don’t think so, I think it is due to her hysteria. It is due to a condition that she cannot control.”
We are unable to say that the incident prejudiced the jury and that the trial court abused its discretion in refusing to declare a mistrial.
Lastly, appellant contends the verdict was excessive in amount, showing bias and prejudice. No complaint is made concerning the allowance of $500 for “inability to discharge her household and domestic duties, past and future.” Nor does appellant make any argument as to the allowance of $500 for “past loss of wages.” The allowance is supported by substantial evidence. The only objection urged relates to the allowance of $1,500 for “past pain and suffering.” We have carefully examined the record, upon that point. It is rather extensive and we think it unnecessary to review it in detail. In addition to the testimony of the plaintiff upon the question we have that of three doctors, witnesses for the plaintiff, and of four doctors comprising the medical commission. While there is some divergence in the testimony there is ample evidence to support the allowance.
We find no error and the judgment is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action by a widow to recover damages for the wrongful death of her husband who was killed when struck by defendant’s truck, which was operated by one of his employees. The general verdict was for the plaintiff and the defendant; Jabin Cox, appeals from the order overruling (1) his demurrer to plaintiff’s evidence; (2) his motion for judgment on the special findings which he claimed showed the deceased had been guilty of contributory negligence as a matter of law; and (3) from the order sustaining plaintiff’s motion for a new trial.
Appellee insists the only order properly before us for review is the ruling on defendant’s demurrer. The record before us fails to disclose any particular reason, or reasons, the court gave, if any, for granting a new trial. The fact, however, that a new trial was granted compels us to conclude the trial court must have been dissatisfied with the general verdict, or some parts of the special verdict, or perhaps with both verdicts. Examination of the verdicts furnishes some basis for such dissatisfaction. If in the judgment of the trial court the verdict should not stand it was, of course, its duty to set it aside and grant a new trial. The order granting a new trial vacated both verdicts. It follows the ruling on defendant’s demurrer is the only ruling this court can reach for review.
Appellant’s demurrer was upon the grounds the plaintiff’s evidence was insufficient to prove a cause of action in favor of plaintiff and against the defendant and that plaintiff’s evidence affirmatively disclosed the deceased was guilty of contributory negligence which barred recovery.
There is no contention by anyone that appellant’s evidence supplied any defects or insufficiency in appellee’s evidence. We therefore are required to notice only testimony introduced on behalf of appellee. The truck driver, Wilbur Hill, was the only eyewitness to the accident and the appellee used him as her witness. The pertinent portions of his testimony, in substance, were:
The accident occurred on the night of December 24, 1941; he was driving a Ford truck in an easterly direction on highway No. 96 north of Wichita; the truck was a single unit, all on one frame; the length of the truck from bumper to bumper was approximately twenty feet; the body of the truck extended seventeen inches over the cab on each side; the total width of the widest part of the truck was seven and one-half feet; he could not state exactly how far the body of the truck extended over the fender line; the deceased was walking on the blacktop with the traffic, that is, he was walking east, the same direction the truck was traveling; there was a sanded shoulder on the south side of the highway which was about four feet wide and furnished a sufficient place to walk; the deceased was walking on the blacktop and at a point approximately three or four feet from the south edge thereof; he was wearing dark clothes; some cars, probably three-to five, were approaching from the east; the nearest car so approaching was probably 150 feet removed; the lights on the oncoming cars were fairly bright and made a bank of lights but he did not think they obstructed his vision; he kept a constant lookout ahead of him; the bright downward beam lights of his truck focused on the deceased approximately one-half of the distance between his feet and shoulders when he noticed the deceased; with those lights functioning he could ordinarily see for a distance of approximately eighty to eighty-five feet; by reason of the dark clothes the man wore and the blacktop pavement he did not see the deceased until he was approximately ten feet away; when he saw the deceased he just looked like a dark cloud; he set the brakes as soon as he could and at the same time swerved the truck to the northeast; the front wheels of his truck crossed the center of the highway; he immediately swung back to the south side of the highway to miss the oncoming traffic; prior to the accident he had been traveling approximately in the center of the south lane; the blacktop at the place of accident was eighteen feet wide according to the men who stepped it off; when he first noticed the deceased-he was at a point just a little to the left of his right headlight; he missed the deceased entirely with the front part of the truck but hit him with the side of the truck at a point near to the right rear corner thereof.
The truck driver further, in substance, testified:
The pavement was dry and the brakes on his truck were in good mechanical condition; he was traveling under thirty-five miles an hour; at that speed he could ordinarily stop within fifty feet; by reason of being obliged to swerve the truck to the northeast and back to the southeast he was unable to stop in less than sixty feet on this occasion; that is the distance within which he did stop; the deceased was not walking on the, south shoulder; he was on the highway with his back turned to him; he paid no attention to the approach of the truck; the deceased made no attempt to step aside; he did everything he possibly could to miss the deceased; there was no time to stop; he did not slide the wheels of the truck as he swerved around the deceased; there was a little driveway or culvert to the south of the highway; he did not see the driveway as he hit the deceased but he saw a metal mailbox on the south side of the highway; (a photograph discloses the mailbox was very near the edge of the shoulder) the driveway leading to the south was west of the mailbox; he struck the deceased approximately twelve feet west of the mailbox; the deceased at that time was just about on the west edge of the driveway; the mailbox was of light color but it was not in his line of vision as he came east; he did not notice the mailbox until he swerved to miss the man; he watched the deceased as he came along there and when he swerved to miss the man he looked around and the mailbox and the man were there together; he did not remember that the deceased wore a hat; when he stopped the truck he went back to the deceased; when he found him his head was approximately three or four feet south of the edge of the pavement; his head was to the north and his body was in a southeasterly direction with his feet approximately one foot from the east edge of the culvert, or driveway.
Don Hyner, an ambulance driver, in substance, testified: ■
He arrived at the scene of the accident on West Twenty-ninth street between 6:30 and 7:00 p. m. and saw a man lying in a driveway on the south side of the road; he was approximately two or three feet from the blacktop with his head to the northeast and his feet to the southwest; he saw no hat there anywhere but he did not look.
Appellee, the widow of the deceased, testified, in substance:
Her husband was sixty years of age and had worked in the oil fields; on the night of the accident she was waiting for her husband at the home of a neighbor of the people for whom she had been Working; she saw his coat at the hospital that night; it was a gray coat; she did not see his hat; it was not found anywhere at the time of the accident and has never been found; she did not see him before the accident but knew he wore a light gray hat; she knew that for the reason he always wore it when he dressed up to come to town; her husband’s car was found two blocks west of where he should have turned to go to the house where she was working; when the3r found the car it was broken down and would not run.
Vern Scott, deputy sheriff of Sedgwick county, in substance, testified:
On December 24 at around 7:00 p. m. it was dark in Wichita; he went to the scene of the accident that night after the deceased had been taken to the hospital and the truck had been removed; the pavement was dry; he did not look for any skid marks on the pavement and did not know whether the brakes on the truck had been applied or not; he saw the deceased at the hospital and he was wearing dark clothes.
Paul Drescher, member of the state highway patrol, in substance, testified:
He arrived at the scene of the accident around 8:30 p. m.; he attempted to determine whether the truck driver had applied his brakes but he could find no skid marks; the road was straight and level; the scene of the accident was in a residential district; there were no defects in the highway; there were lights at different places along there; he could not tell what the width of the blacktop was at the point where the driveway from the south came into the blacktop; the shoulders were not very wide but he could not tell how wide they were or whether they Were chat, gravel or just dirt and grass; there is normally a heavy traffic on Twenty-ninth street and there was such traffic on the night of this accident; cars were coming along there continually.
It was stipulated there were no sidewalks along the highway.
Appellee contends the demurrer to her evidence was properly overruled. She asserts the truck driver was required to keep a lookout for objects on the highway and to articulate his speed with his ability to see and to stop, or turn aside, before colliding with objects on the highway. She insists that failure of the truck driver to do so established his negligence as a matter of law and in support of that general rule cites Curtiss v. Fahle, 157 Kan. 226, 139 P. 2d 827, and numerous other cases. In this connection counsel for appellee emphasizes appellee’s testimony that' her husband wore a light gray hat on the night of the accident and also stresses the testimony of the truck driver that ordinarily he could see clearly for a distance of eighty to eighty-five feet and that he could stop within a distance of fifty feet.
Appellant concedes the general rule above stated but contends it does not apply to a dangerous obstruction that suddenly appears before a driver which, in the exercise of reasonable care, he could not have seen and avoided. In support of this recognized exception to the general rule he cites Hayden v. Jack Cooper Transport Co., 134 Kan. 172, 5 P. 2d 837; Fleming v. Hartrick, 100 W. Va. 714, 131 S. E. 558; and Goodman v. Wisby, 152 Kan. 341, 103 P. 2d 804. In the Goodman case numerous cases are collected in which exceptions to the general rule are discussed. The Goodman case did not constitute an exception to the general rule but the court there said: “Exceptions to the general rule are grounded on the doctrine that the exercise of ordinary care would not necessarily have prevented the accident.” (p. 345.)
In the Fleming case, supra, the West Virginia court held:
“The general rule requiring the driver of an automobile to maintain a speed sufficiently slow to have such control of it that he can stop it within the distance in which he can plainly see an obstruction of danger, does not apply to a case where a dangerous situation which he has no reason to expect suddenly appears in front of his car.” (Syl. ¶ 3.)
In the Hayden ease we held:
“The rule that one driving an automobile in the nighttime must so operate his car that he may stop it within the range of vision of his headlights, is applicable in cases where vehicles or other objects on the highway may be seen by the aid of proper lights, but where an obstruction was of such a character and so placed that a motorist driving his car properly equipped with lights and brakes, at a moderate speed, is unable to see an obstruction in time to prevent colliding with it, and is otherwise free from negligence, he cannot be held guilty of contributory negligence as a matter of law.” (Syl. IT 1.1
To the same effect are Deardorf v. Shell Petroleum Corp., 136 Kan. 95, 12 P. 2d 1103; Sponable v. Thomas, 139 Kan. 710, 720, 33 P. 2d 721, and others which might be cited.
Appellant recognizes the fact that the general rule is a rule of law and that if the facts are such as to bring a case within an exception to the general rule then the exception merely operates to make the question of the driver’s negligence one upon which the jury must pass. (Sponable v. Thomas, supra, 721.) In other words appellant concedes if the testimony adduced in appellee’s behalf disclosed the truck driver was negligent in any respect then a jury question was presented. Appellant, however, insists that in the instant case the truck driver was appellee’s witness and that his testimony discloses that, in the exercise of due care, it was impossible to see the deceased sooner than he did see him and to avoid the accident. Appellant directs attention to the following uncontradicted testimony of the truck driver:
He kept a constant lookout on the road ahead of him; he was meeting traffic from the east, three or five cars; while the lights on the oncoming cars were fairly bright he did not-think they blinded hirn or obstructed his vision; his bright downward lights were functioning; by reason of the dark clothes of the deceased and the blacktop highway he could not see the deceased sooner; when he observed the deceased the lights of. the truck focused on him about halfway between his feet and shoulders; after discovering the deceased on the highway he did not have time to stop; thereafter he did everything he possibly could to avoid striking the deceased by applying his brakes, swerving to the left and returning to his lane of travel before meeting the oncoming traffic.
Appellant contends appellee is bound by this uncontradicted testimony of her own witness. He asserts this is not the kind of a case in which a court or jury may disregard or disbelieve the testimony of this witness for the reason that if they do so there is nothing except pure conjecture upon which to base a verdict. He therefore contends the evidence adduced on behalf of appellee not only failed to show the truck driver was guilty of negligence but affirmatively disclosed he was not guilty of negligence and that his demurrer should have been sustained.
Appellant further earnestly contends his demurrer also should have been sustained for the reason that appellee’s evidence clearly discloses the deceased was guilty of contributory negligence as a matter of law. If a plaintiff’s own evidence discloses contributory negligence a defendant may, of course, take advantage thereof on demurrer upon the ground that plaintiff has failed to make out a prima facie right of recovery. (U. P. Rly. Co. v. Adams, 33 Kan. 427, 6 Pac. 529; Houdashelt v. State Highway Comm., 137 Kan. 485, 492, 21 P. 2d 343.) Appellant concedes pedestrians have a right to use a public highway but he contends they must exercise that right with due regard to the rights of others who are using it. (Eames v. Clark, 104 Kan. 65, 71, 177 Pac. 540; Stotts v. Taylor, 130 Kan. 158, 285 Pac. 571; Hendren v. Snyder, 143 Kan. 34, 39-40, 53 P. 2d 472.) He asserts appellee’s undisputed evidence shows the deceased did not exercise such rights with a due regard to the rights of others who were then using the highway at the place in question. The evidence relied upon by appellant in that respect is, in substance, as follows:
The shoulder on the south side of the blacktop was sanded and about four feet wide; it constituted a sufficient path for pedestrians to walk; highway No. 96 was a busy trafficway and the traffic was heavy the night of the accident; cars were passing continuously; three to five lighted vehicles were approaching the deceased and appellant’s truck "from the east immediately preceding the accident; the deceased wore a dark suit and walked on a blacktop pavement; he was walking with the castbound traffic and on the blacktop, three or four feet from the south edge thereof; although the cars were approaching from the east, the nearest being only approximately 150 feet away, the deceased made no effort whatever to step out of appellant’s lane of traffic.
Appellant insists this evidence clearly discloses the deceased was negligent in remaining on the blacktop anywhere under the circumstances described, even if he did wear a light gray hat with a dark suit, or a gray suit, which blended into the highway. Furthermore he contends, under the existing circumstances, the deceased was especially negligent in walking on the wrong side of the road, that is, on the south side with the eastbound traffic behind him, instead of on the north side where he could go against the traffic and observe it. (Hendren v. Snyder, 143 Kan. 34, 40, 53 P. 2d 472.)
On the other hand, appellee contends there was evidence from which the jury might conclude the deceased was not walking on the blacktop, but was walking on the south shoulder. She argues that if the deceased had been on the blacktop he would have been thrown toward the center of the highway or to the northeast which was the direction in which the truck was headed as it swerved around the deceased. Appellee also argues the location of the deceased on the south side of the road, after he was hit, tends to indicate the deceased was not walking on the .blacktop. She calls attention to the fact that the mailbox was located immediately south of the south shoulder. She stresses the fact that the truck driver testified with respect to what he saw as he swerved around the deceased and that he said, “I looked around and the mailbox and the man were there together.”
With respect to the last quoted statement we have examined the transcript of the evidence instead of relying entirely upon the abstracts. From our examination we are entirely satisfied that statement is not fairly open to the interpretation that the truck driver intended to imply the deceased was then by the mailbox, which was south of the south shoulder of the highway. We think the witness clearly meant he saw the man and mailbox at the same time. This interpretation harmonizes with all of the other testimony of the witness. The interpretation appellee attempts to place upon the statement is in direct conflict with all other testimony of the witness and with the actual physical facts. It is entirely clear the deceased could not have been standing or walking by the mailbox immediately before he was hit. The mailbox was east of the south driveway which came into the blacktop. Under the uncontradicted evidence the deceased was struck when on the blacktop and approximately twelve feet west of the mailbox or at a point about even with the west edge of the south driveway. After he was struck he was thrown to the southeast in the direction of the mailbox and onto the south driveway. Clearly he could not have been by the mailbox immediately before he was hit. He was, however, directly in the truck driver’s line of vision as the truck driver observed the mailbox and that must have been what the truck driver meant when he said he looked around as he swerved and “the mailbox and man were there together.” Moreover there is not the slightest evidence or indication of any trace or mark of any kind or character which would tend to support the theory the truck traveled on any portion of the south shoulder which would have been necessary in order for any portion of the body of the truck to reach the deceased at the mailbox. It should also be observed the petition did not charge the truck traveled on the south shoulder.
While testing the ruling on a demurrer to evidence we, of course, cannot compare or weigh evidence and we are not doing so in the instant case. We are only interpreting the evidence to which appellee is giving an unwarranted meaning. Although the jury returned a general verdict for appellee we pause to note that the jury did not construe the truck driver’s statement as appellee attempts to construe it. It expressly found the negligence of the deceased consisted in the fact he — “did not observe the traffic coming from the west going east.” Clearly if the deceased had been at the mailbox when hit there would have been no need or occasion for him to observe the traffic from the west. Furthermore appellee’s argument that the mere location of the deceased, after he was hit, indicates he was struck while on the shoulder is too remote and speculative to form the basis of a verdict. In Hendren v. Snyder, 143 Kan. 34, 53 P. 2d 472, a case involving personal injuries to a pedestrian while walking near the edge of a highway and whom the driver of the car testified he did not see, we held:
“In an action for damages for personal injuries sustained in an automobile casualty, a judgment for plaintiff predicated upon mere conjecture as to defendant’s negligence cannot be permitted to stand.” (Syl.)
Various cases of injury to pedestrians and their rights on public highways are carefully discussed and ably treated in the Hendren case. We do not deem it necessary to repeat the facts related and conclusions reached in those cases as that already has been done in the opinion in the Hendren case.
In the opinion of the majority the Hendren case is not controlling as to the speculative character of the truck driver’s negligence. While, as indicated, we do not agree with appellee’s interpretation of some of the truck driver’s testimony or with the conclusion appellee draws from the mere location of the deceased after he was struck, we think the evidence, assuming the deceased was walking on the blacktop, made the question of the truck driver’s negligence one for the determination of the jury. The jury was not bound by the testimony of the truck driver. It had the right to consider the circumstances and determine for itself whether the truck driver was negligent. We also think the question of contributory negligence of the deceased was a proper question for the determination of the jury.
It follows the judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Parker, J.:
Albert J. Hibbs was convicted in police 'court of violating ordinances of the city of Wichita prohibiting the driving of a motor vehicle on the public streets of that city while under the influence of intoxicating liquor and the destruction of city property. He appealed to the district court of Sedgwick county, where he was again tried and found guilty. The appeal is from the judgment of conviction and sentence imposed by the district court.
The record discloses the'following facts: Shortly after midnight on August 2, 1942, two policemen of the city of Wichita found a Terreplane automobile which had been driven over the street curb at the southeast corner of the intersection of Kellogg and Estelle streets in that city and had torn down a street sign at such corner. When the officers reached the motor vehicle no one was in it but lying on the ground a short distance therefrom was a boy about 10 years of age who was bleeding profusely and who apparently had been an occupant at the time of the wreck. The officers immediately began a search for the driver of the automobile and some four blocks* from the scene of the accident one of them found the appellant who was concealing himself behind a building and some shrubbery. When apprehended he appeared to be intoxicated. Later he was taken to the police station and remained in custody until about 10:30 a. m. He was then handed an accident report form and asked to fill it out but requested the officer presenting it to him to make it but from information supplied by him, saying he would sign it when completed. This procedure was followed and the report, which disclosed appellant was the driver of the automobile at the time of the accident, was then signed by him. In the meantime the arresting officer made an oral complaint against Hibbs and he was charged on the police court docket with driving a motor vehicle on the streets while under the influence of liquor and with destroying and damaging city property. His trial was set for September 3, 1942, and he thereupon posted bond for appearance and was released. Subsequent to his conviction in police court he executed and filed his appeal bond in the sum of $200.
In the district court, prior to the opening statement of appellant, immediately subsequent thereto, and at divers other times during the trial, appellant objected to trial and formally moved for his discharge on the ground there had been no complaint in writing or verified complaint of any character made against him and no warrant issued for his arrest. The first error of which appellant complains is the overruling of all such objections and motions. This complaint entirely overlooks the fact that, without objecting to the sufficiency of the oral complaint made against him or demanding the filing of a written one and without challenging the right of appellee to cause his arrest without the issuance of a warrant, appellant entered into a recognizance for his appearance at the trial in police court and still later executed and filed his bond appealing from the judgment there rendered against him. The contention there was no verified charge of any character made against appellant is not substantiated by the record which discloses the making of an oral complaint on oath as authorized by G. S. 1935, 13-605. When arraigned in police court, in fact at no time during either trial did appellant demand that a written complaint under oath be filed against him, a right to which he was entitled under G. S. 1935, 13-623. The failure to make such demand waived any right he might have had to require the filing of such written complaint. Moreover, any defect in the verification of the oral complaint as made was waived by appellant when he, without objection, gave bond for his appearance in court. (See State v. Dye, 148 Kan. 421, 429, 83 P. 2d 113; State v. Toelkes, 139 Kan. 682, 685, 33 P. 2d 317; State, ex rel., v. Strevey, 138 Kan. 646, 648, 27 P. 2d 253; State v. Carter, 122 Kan. 524, 253 Pac. 551; State v. Edwards, 93 Kan. 598, 144 Pac. 1009, and State v. Miller, 87 Kan. 454, 124 Pac. 361.) Waived also by that action, as well’ as the subsequent execution of the appeal bond, was any right to object to the process, warrant and arrest which brought him before the court for trial. (State v. Munson, 111 Kan. 318, 206 Pac. 749; State v. Cole, 93 Kan. 819, 821, 150 Pac. 233; State v. White, 76 Kan. 654, 657, 92 Pac. 829; State v. Lewis, 63 Kan. 265, 266, 65 Pac. 258; State v. Moseli, 49 Kan. 142, 145, 30 Pac. 189, and State v. Bjorkland, 34 Kan. 377, 8 Pac. 391.)
It is urged the trial court erred in admitting the accident report which was signed by appellant the morning after the accident, the objection being that since the law requires the making of a report by one involved in an accident of the kind here involved, such report cannot be used in a subsequent criminal proceeding for the reason that it in effect compels the accused to testify against himself in violation of both the state and federal constitutions. We doubt the soundness of appellant’s position but there is no occasion to determine the question urged by him. The record does not disclose the admission of the report tended to prove or disprove the charge defendant was driving while intoxicated or had destroyed property. In fact the only statement to be found therein which was in anyway material to such issues was one disclosing who was the driver of the car on the night the accident occurred. Appellant himself made no'denial of the fact he was the driver and so testified as a witness in his own behalf. Even if the statement had been inadmissible for the reasons urged by appellant’s counsel its introduction under such conditions merely resulted in the production of cumulative evidence, and certainly did not prejudice the accused. Under our statute (G. S. 1935, 62-1718) the admission of evidence, even when incompetent, is harmless error unless substantial rights are affected. Moreover, the testimony disclosed the report was based on a statement made by the appellant to the police officers and was freely and voluntarily signed by him. A statement of such character tending to prove a person is guilty of an offense with which he has been charged is properly admissible as an admission against interest. Appellee could have proved it by the officers to whom it was made. In the absence of any objection the report, which merely reflected the admission as made to such officers, was not the best evidence, appellant cannot now be heard to complain it was reversible error to receive it in evidence in proof of the fact he was the driver of the automobile on the night of the accident.
The appellant testified as a witness in his own behalf and during the course of his direct examination denied he had used intoxicating liquors on the date of the accident or that he ever touched alcohol or whiskey in any form. On cross-examination he was interrogated by appellee as to his use of intoxicants and whether he had previously been arrested for being drunk or driving while intoxicated. During his examination he admitted he had been arrested on one occasion for drunken driving. Appellant’s counsel objected to questions pertaining to former arrests and insisted that appellee’s interrogations be restricted to whether the defendant had ever been convicted of criminal offenses. After some colloquy between court and counsel the trial court sustained the motion of the appellant that all evidence relative to former arrests be stricken and instructed the jury to disregard all evidence theretofore admitted pertaining to such former arrests. Notwithstanding the evidence was stricken, appellant insists the conduct of counsel for appellee in interrogating the accused on such matters and the action of the court in permitting counsel to do so was so prejudicial to the rights of the appellant as to constitute reversible error. The objection is too trivial to require much comment. This court has long been committed to the rule that where done in good faith and for the purpose of impairing his credibility, a defendant may be cross-examined concerning previous offenses and subjects involving him in degradation and disgrace even though they do not pertain to the charge for which he is then on trial. Also, that the extent of cross-examination touching the credibility of a defendant in a criminal action rests within the sound discretion of the trial court. (See State v. Story, 144 Kan. 262, 58 P. 2d 1090; State v. Pfeifer, 143 Kan. 536, 56 P. 2d 442; State v. Bigler, 138 Kan. 13, 19, 23 P. 2d 598, and State v. Reuter, 126 Kan. 565, 268 Pac. 845.) Even if the testimony about which appellant complains had been improper and even though the trial court had abused its discretion in determining the extent of the cross-examination, which it did not do, appellant still could not be heard to complain because the prompt striking of improper evidence accompanied with an instruction by the court to disregard it cures the error of its admission where it does not affirmatively appear the temporary reception of such evidence resulted in prejudice to the substantial rights of the defendant. (See State v. Bisagno, 121 Kan. 186, 246 Pac. 1001, and State v. Williams, 126 Kan. 375, 267 Pac. 1095.)
Appellant complains of the conduct of the city attorney in making his closing argument and of the fact certain photographs and other papers, not used by the appellee, were permitted to remain on the counsel table during the trial and argument, all of which he urges was prejudicial and influenced the jury in returning a verdict against him. It does not appear any objection was made to the remarks or action of the city attorney while addressing the jury. Nor is it claimed any objection was made during any stage of the trial to the photographs and other papers in his file or on the counsel table. If counsel thought the matters now complained of were prejudicial to the rights of the accused it was incumbent on him to call them to the trial court’s attention during the trial so that it might rule upon his objection. He had no right to sit idly by, ignore matters claimed by him to be trial error, take his chances of an acquittal, and then when convicted, for the first time on motion for a new trial present his objections and insist they were sufficient to require the granting of a new trial. When counsel see fit to follow that course and present their objections for the first time on the hearing of a post-trial motion, this court on appeal will not disturb the ruling of the trial court in refusing to grant a new trial.
Complaint is made of the failure of the trial court to permit the jury to view the automobile driven by appellant at the time of the accident. A motion for such permission was filed during the trial and the court, on appellant’s assurance transportation would be furnished for the jury to go to the appellant’s home where the vehicle was then stored or that it would be brought to the courthouse, agreed to an inspection thereof. At the close of appellant’s evidence he had failed to furnish transportation or produce the automobile as agreed and he rested his case without the jury having had an opportunity to make the inspection requested. Thereupon the trial court inquired if the vehicle, was available for inspection, and being advised by counsel it was not proceeded to instruct the jury and submitted the case for its determination. The situation is not one where the trial court refused to permit an inspection, but where the appellant failed to comply with his agreement to produce the automobile or take the jury to where it was located. To that extent appellant’s position is much weaker than if the court had refused any inspection whatsoever. Irrespective of that situation it was not error for the trial court to submit the case without the inspection requested. The question of whether it was advisable to allow the jury to view the automobile was a matter for the determination of the trial court in its discretion. (See G. S. 1935, 60-2910, and State v. Henson, 105 Kan. 581, 185 Pac. 1059.)
Another complaint is that the jury was guilty of misconduct. Appellant sought to offer evidence tending to impeach the verdict. This court has held many times that a juror will not be permitted to impeach his own verdict. (See State v. Buseman, 124 Kan. 496, 260 Pac. 641; State v. Cole, 136 Kan. 381, 384, 15 P. 2d 452, and State v. Lammon, 153 Kan. 822, 113 P. 2d 1052. The question of misconduct on the part of the jury in the first instance is for the trial court. In the instant case the trial judge specifically stated that in his opinion the jury had reached a just conclusion and he could see no reason to disturb the verdict. In the face of such a finding we fail to find anything in the record which would justify this court in setting aside the order refusing to grant a new trial.
Other alleged errors are complained of but we find nothing in them of sufficient importance to require discussion. In our examination of them and the matters herein specifically referred to, alleged by the appellant to be erroneous, we find no error affecting his substantial rights. The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hoch, J.:
This was an action to recover damages for wrongful death. The defendants were a track driver, his employers, and a streetcar company. The streetcar company demurred to the petition on the ground that it did not state a cause of action against it. The demurrer was sustained and from that order the plaintiffs appealed.
Appellants, Ira Jones and Alma Jones, his wife, residents of Kansas City, Kan., alleged that their son, Billy Wayne Jones, a boy nine years old, was killed as the result of joint and concurring acts of negligence of a truck driver and the motorman on a streetcar of the appellee, the Kansas City Public Service Company. Briefly, they alleged that Billy and his mother became passengers on one of the company’s streetcars in Kansas City on the afternoon of June 19, 1943; that as the car neared their destination the mother pushed the button for a stop and that the car stopped at the regular stopping place near Southwest boulevard and 8th street; that the mother alighted from the rear end of the car but before Billy could alight the doors suddenly closed, preventing his alighting; that the streetcar proceeded on its way; that notwithstanding another passenger informed the operator of the car that Billy had been prevented from alighting, the car continued about one block farther west to the next intersection; that thereupon the rear doors were opened and Billy alighted, walked around the rear end of the car and while crossing the street was struck by a truck which was coming from the west, and fatally injured.
It is not necessary to narrate the alleged acts of negligence on the part of the truck driver. The alleged acts of negligence by the streetcar operator were:
“(A) In closing the doors of said street-car before Billy Wayne Jones had alighted from said streetcar.
“(B) In closing the doors of said streetcar' and starting said car after plaintiff, Alma Jones, had alighted therefrom and before Billy Wayne Jones had alighted therefrom, thereby separating Billy Wayne Jones from his mother, depriving her of the opportunity to protect him from danger.
“(C) In permitting Billy Wayne Jones to alight from said streetcar after the same had been stopped in front of 1600 Southwest boulevard without affording him aid in reaching a place of safety after alighting from said streetcar.
“(D) In permitting said Billy Wayne Jones to alight from said streetcar and go around the rear end of said streetcar into the path of said truck, when said operator knew or by the exercise of reasonable care and diligence should have known of the approach of said truck and that it would pass said streetcar while Billy Wayne Jones was crossing from the north to the south side of Southwest boulevard.
“(E) In remaining in the front end of said street car while said Billy Wayne Jones was alighting from said street car and into said Southwest boulevard without ascertaining that it was safe for Billy Wayne Jones to cross said street.
“(F) In failing to conduct said Billy Wayne Jones to a place of safety after said operator knew he had caused said Billy Wayne Jones to be separated from his mother and transported farther than the said Billy Wayne Jones and his mother desired him to be transported.”
As far as we are advised, there was no demurrer by the truck driver and the case as to him and his employer is still pending. The only question here is whether, under the above allegations, the streetcar company could be held liable.
Liability in tort may flow from joint and concurring acts of negligence on the part of two or more persons. But in order to establish liability on the part of all the tort-feasors it must appear that their various acts of negligence combined to produce a result and were together the proximate cause of the injury. (Neiswender v. Shawnee County Comm’rs, 151 Kan. 574, 577, 101 P. 2d 226, and authorities there cited; Taggart v. Yellow Cab Co. of Wichita, 156 Kan. 88, 96, 131 P. 2d 924.)
Simply stated, the question is whether the accident followed in a causal chain of circumstances and as such a natural and probable result of the motorman’s alleged acts of negligence that an ordinarily intelligent and prudent person should be charged with foreseeing it. Ordinarily, questions of negligence, including proximate cause, are for the jury. But where the facts are undisputed it is the province of the court to say, as a matter of law, whether upon the facts viewed most favorably to the plaintiff, actionable negligence can be inferred. (Hickey v. Fox-Ozark Theatres Corp., 156 Kan. 137, 142, 131 P. 2d 671; Grieving v. La Plante, 156 Kan. 196, 199, 131 P. 2d 898.) The case being here on demurrer we accept as true all facts well pleaded in the petition.
It must be noted at the outset that the boy was nine years old. We need not here determine whether the same conclusion would be reached had he been considerably younger. But it is common knowledge that countless children no older than nine ride the streetcars unaccompanied by older persons. Many such children ride regularly, going to and from school, or for other purposes. We must also note other matters in connection with the petition. There was no allegation that the motorman knew that the boy was a son of the plaintiff or was being accompanied by her; or that from the front end of the car the motorman saw or could have seen that the boy was getting ready to alight with her; or that the place where the boy alighted was not a regular or safe stopping place. Nor was there any allegation that the boy was unaccustomed to riding the streetcar unaccompanied by an older person. Clearly the closing of the doors at the first stop before the boy alighted could not be said to be a proximate cause of the accident. Nor the carrying of the boy for another block, nor permitting him to alight on the north side of the street at a place not alleged to be unsafe or in any way a bad place to alight. Assuming that when the car was stopped where the boy did alight the motorman knew that his mother had been with him, what was then the motorman’s duty? Should he have directed the boy to remain on the streetcar, or should he have gotten off the streetcar with the boy, found out where he was going and accompanied him, or sought to find some one to accompany him across the street or perhaps on to his home? Only upon some such theory would we be able to say that the tragic death of the boy when he was crossing the street was a natural result reasonably flowing from the alleged acts of negligence on the part of the motorman.
Our attention is called to various cases dealing with the subject of remote or proximate cause. No useful purpose would be served by recital of the facts and conclusions reached in these and other cases which might be selected from the countless number dealing with this familiar subject. Each case must be decided largely upon the special facts attending it and no magic formula has been devised for marking the line between proximate and remote consequences. (38 Am. Jur. 700, 701.) Suffice it to say that we would find little support in holding that a cause of action was stated by the allegations in this case. The overwhelming weight of authority is to the contrary. The very most that could be said in support of a causal relationship is that appellee’s negligence was a remote cause of the accident. And that is not enough to establish liability. (38 Am. Jur. 703-706, 712; 45 C. J. 901 et seq.; Grieving v. La Plante, supra, and authorities cited, p. 200; also, see cases cited 7 Kan. Digest, 627, 628.)
However deep their sympathy because of loss and sorrow such as that which befell the parents in this case, courts must adhere as best they can to guiding rules and principles which the long experience of mankind has shown to be conducive to the larger measure of orderly justice.
We find no error and the judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
Plaintiff brought this action for damages against four defendants — Vergil Cox, sheriff of Ness county at the time in question; John O’Brien, undersheriff of Ness County; Charles Maupin, investigator for the Kansas Bureau of Investigation, and P. L. Smith.
As against the defendant Cox, plaintiff alleged a cause of action for false arrest and imprisonment. Cox’s demurrer to plaintiff’s petition was overruled, and no question is presented to us respecting the correctness of that ruling.
As to the other defendants, the petition alleges:
“The defendants, John O’Brien, Charles Maupin and P. L. Smith, and each of them, recklessly, oppressively, insultingly, wilfully, unlawfully and maliciously and with design to oppress and injure plaintiff instigated, caused and and procured the arrest and confinement of said plaintiff as aforesaid.”
O’Brien’s separate demurrer, upon the ground that the petition does not state facts sufficient to constitute a cause of action against him, was sustained, and the joint demurrer of Maupin and Smith was sustained upon the same ground. Plaintiff has appealed from the ruling of the court sustaining the demurrers of O’Brien, Maupin and Smith. In ruling upon the demurrer the trial court stated its reasons as follows:
“In sustaining the demurrers in behalf of the defendants O’Brien,' Maupin and Smith it is my conclusion that the language of the petition alleging that the defendants ‘instigated, caused and procured the arrest' and confinement of said plaintiff as aforesaid,” is not sufficient. It does not charge them with doing any act, saying any words, or engaging in any described activity from which it could be inferred that they instigated, caused or procured the arrest of the plaintiff. In my opinion these words express conclusions only, and I think it is rather immaterial whether they be called conclusions of fact or conclusions of law. They are in any case conclusions, as I view them, and not facts. It is the rule that a demurrer admits only facts well pleaded; so a demurrer does not in my view admit an allegation in the petition if the allegation amounts only to a conclusion of the pleader, unaccompanied by any statement of facts from which the pleader’s conclusion is derived.”
Appellant points out that defendants had filed no motion to have the petition made more definite and certain and argues that the language used should be liberally construed and all reasonable inferences indulged in to sustain the petition, citing Owens v. Deutch, 156 Kan. 779, 783, 784, 137 P. 2d 181. This principle has been many times recognized and applied, and yet it is difficult to see how defendants could prepare to defend a charge made in such general terms as stated in this petition. Our statute (G. S. 1935, 60-704, Second) requires the petition to contain:
“A statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition.”
It is difficult to see that the petition presents issuable facts. Inferences from facts pleaded generally are not substitutes for essential allegations of fact. See Brane v. First National Bank, 137 Kan. 403, 20 P. 2d 506, and authorities cited.
It must also be noted that as to these • defendants the petition attempts to charge malicious prosecution as distinct from false imprisonment. Different elements enter into those actions. (35 C. J. S. 503.) When different causes of action are united in the same petition “. . . the cause of action so united must affect all the parties to the action, . . .” (G. S. 1935, 60-601. See, also, 49 C. J. 141.) The demurrer here involved did not include the ground that several causes of action were improperly joined. Nevertheless, we are required to construe this petition as it affects the defendants before us. (Rakestraw v. State Highway Comm., 143 Kan. 87, 53 P. 2d 482; Burks v. Aldridge, 154 Kan. 731, 121 P. 2d 276.) In the reply brief appellant contends that the petition clearly states an action for false arrest and imprisonment, and that the allegations with reference to O’Brien, Maupin and Smith are sufficient to make them tort-feasors with Cox. If that is the view to be taken we think it can be made much clearer by a redrafting of the petition, which is certainly open to the view that plaintiff seeks to recover from Cox upon one ground and from the other defendants upon a different one. The petition should be drawn upon a single and definite theory. (Grentner v. Fehrenschield, 64 Kan. 764, 68 Pac. 619; Sluss v. Brown-Crummer Inv. Co., 137 Kan. 847, 22 P. 2d 965.)
We find no error in the ruling. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Hoch, J.:
This was an action by a landlord to recover rent. The plaintiff prevailed and the defendant appeals.
William L. Way rented some farm land to S. A. Swain under a written lease running from April 1, 1940 to March 1, 1941, at thirty dollars a month, payable monthly. After expiration of the term Swain continued to occupy the land, with the consent of Way, but with no written extension of the lease. He paid the rent regularly until November 1, 1941, when he ceased to occupy the premises and declined to make further payments. In November, 1942, Way brought action in the city court of Kansas City, to recover rent from November 1, 1941 to March 1, 1942, and $13.44 for a city water bill for which he alleged the defendant was liable, but which he was compelled to pay. The' defendant did not contest in the city court and the plaintiff was given judgment for the amount sought. Appeal was taken and trial had by a jury in district court. Full recital of the evidence is not necessary. There is no contention that the tenant gave any written notice that he was going to vacate the premises. The appellant did testify that in August, 1941, he told appellee’s employee that he was going to vacate on November 1, 1941, and that he orally notified the appellee to the same effect in October, 1941. Also that in June, 1941, appellee asked him if he would vacate the place in the event the place could be sold and he replied that he would. Appellant testified that his belongings had been moved from the place by November 1, 1941. Appellee testified that appellant removed part of his belongings in November, 1941, but that “some of his stuff'remained there until January, 1942.” Appellant testified that the stuff which he left on the farm had been sold but that he didn’t know when it was removed, and he admitted that he never told the appellee that he had sold the farm machinery.
The court instructed the jury, in substance, that under the undisputed evidence the written lease was for a term of eleven months expiring on March 1, 1941; that after the expiration of the term the tenant continued to occupy the premises, with the consent of the landlord, and that he paid rent until November 1, 1941; that under such circumstances the law implies a continuation of the tenacy upon the same terms and conditions specified in the written lease; that inasmuch as the written lease was for a term of eleven months the continued tenancy was for a like period, which would fix the expiration date as of February 1, 1942. The jury was instructed to bring in a verdict for the plaintiff for $100.38, covering rent at $30 a month from November 1, 1941 to February 1, 1942, and the undisputed water bill of $10.38.
Appellant’s principal contention is that under the facts stated the continued tenancy, after expiration of the written lease, was not a tenancy for an eleven months’ period but was a statutory tenancy from month to month.
Before considering the issue on its merits we note appellee’s motion to dismiss the appeal. He contends the appeal was not taken in time, not being perfected within two months of the date of the judgment. (G. S. 1941 Supp. 60-3309.)
The judgment was rendered on June 14, 1943. On June 15, 1943, the defendant moved for judgment in his favor notwithstanding the directed verdict and also moved for a new trial. Both motions were taken under advisement and were overruled on September 11, 1943. Six days later, on September 17, 1943, defendant filed notice of appeal from the judgment of June 14, 1943, and from the order of September 11 overruling the motions. While the abstract does not contain the journal entry of judgment and does not disclose whether judgments was formally entered following the return of the verdict, appellant’s notice of appeal refers to “the judgment rendered and made ... on the 14th day of June, 1943,” and we shall treat it as having been entered on that date. It thus appears that the appeal was not taken until more than three months after the judgment. However, a motion for a new trial had been filed in time and was not ruled upon until September 11. From that ruling the appeal was promptly taken. One of the grounds assigned in the motion for a new trial was that the court erred in its instructions directing the jury to bring in a verdict for the plaintiff. If this instruction was error it was a trial error, reviewable under the appeal from the order denying a new trial. The motion to dismiss must be denied.
Appellant contends that the continued tenancy became a tenancy from month to month under the provisions of section 67-503, G. S. 1935, which is as follows:
“When rent is reserved payable at intervals of three months or less, the tenant shall be deemed to hold from one period to another equal to the interval between the days of payment, unless there is an express contract to the contrary.”
Since the instant rent was payable monthly appellant’s argument would be persuasive were it not for other statutory provisions, particularly section 67-506, G. S. 1935, which we shall briefly examine.
Section 67-501, G. S. 1935, provides that “Any person in the possession of real property with the assent of the owner is presumed to be a tenant at will, unless the contrary is shown except as herein otherwise provided,” etc. We think this section is not here applicable because the facts bring the. case within other specific statutory provisions.
Section 67-502 provides that “when premises are .let for one or more years, and the tenant with the assent of the landlord con tinues to occupy the premises after the expiration of the term, such tenant shall be deemed to be a tenant from year to year.” This statute is inapplicable because the written lease was not “for one of more years” but was only for eleven months.
Section 67-503, relied upon by appellant, has already been quoted. Even if it were otherwise controlling appellant would be met by the provisions of section 67-504, that—
“Thirty days’ notice in writing is necessary to be given by either party before he can terminate a tenancy at will, or from one period to another of three months or less;” etc. (Italics supplied.)
It is conceded that appellant gave no written notice. Section 67-505 provides:
“All tenancies from year to year may be terminated by at least thirty days’ notice in writing, given to the tenant prior to the expiration of the year.”
Even though the continued tenancy in this case be regarded as a “tenancy from year to year” it is not helpful to appellant because there was no written notice.
We come to section 67-506, G. S. 1935, which provides:
"In eases of tenants occupying and cultivating farms, the notice must fix the termination of the tenancy to take place on the first day of March: Provided, That if such tenant becomes a tenant from year to year by occupying the premises after the expiration of the term fixed in a written lease, the notice of termination of tenancy must fix the termination of tenancy to take place on the same day of the same month following the service of the notice as the day and month of termination fixed in the original lease under which said tenant first occupied the premises.”
Not only is this the only statute to which our attention is called whic-h clearly applies to the instant case, but being a statute of special application it would be controlling as against statutes of general application — under a general and well-settled rule of statutory construction. (59 C. J. 1056; Harkrader v. Whitman, 142 Kan. 186, 192, 46 P. 2d 1; Wulf v. Fitzpatrick, 124 Kan. 642, 261 Pac. 838; Johnson v. Eddy, 138 Kan. 705, 711, 27 P. 2d 283.)
The trial court rested its decision upon a general rule that where a tenant holds over beyond the term of the original lease, with the consent of the landlord, the law implies a continuation of the tenancy under the same terms and conditions as provided in the original lease. Assuming that to be the general rule, we still have section 67-506, which applies, without reservation, to tenancies of farm lands. Moreover, it is common knowledge that .it is the usual practice in this state to terminate farm tenancies in accordance with that statute.
Under the statute and the facts disclosed by the record appellee would have been entitled to rent to March 1, 1942. The trial court awarded rent to February 1,1942, and no cross-appeal was taken.
Lastly, appellant contends that the appellee offered no evidence that he had taken any measures to mitigate his damages, after knowing that the premises had been vacated. But appellant admitted that some of his stuff was left on the farm, .testifying that he sold it but didn’t know when'it was moved and never told the appellee he had sold the farm machinery. Furthermore, appellant does not claim that appellee had any written notice as required by statute.
We find no grounds for disturbing the judgment and it is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was a proceeding to set aside a judgment of a probate court approving a final settlement of an administratrix. The probate court sustained a motion to strike the petition to set aside the judgment from the files. The petitioner appealed from that order to the district court. That court reversed the judgment and remanded the cause to the probate court for further proceedings. This appeal is from that order.
For the purpose of this appeal there is no dispute about the facts. On October 9, 1933, Sadie Grove, the widow and sole heir of Albert T. Grove, was appointed administratrix of his estate. On the same day the claim of H. H. Grove, a brother of Albert, was allowed in the amount of $1,995. Nothing more was done in this estate, that is, no inventory was filed and no annual reports made until in May, 1940, when the administratrix filed an inventory showing no personal property in the estate and that it consisted of four parcels of real property. On March 12,1941, the administratrix filed her petition for final settlement. In that petition she alleged that she had been appointed administratrix on October 9, 1933; that a complete account of her administration showing nothing received and nothing disbursed was attached; that the estate had been fully administered; that her account should be approved and the estate closed and upon final settlement should be assigned to the persons entitled to it; that she was the sole heir of Albert and entitled to all of the property. The four pieces of real estate of which the estate consisted were described in this petition. Notice was given that the petition would be heard April 7, 1941. The notice stated that a petition had been filed by the administratrix praying that her final account be settled and allowed; that the estate be finally closed and upon final settlement be assigned to the persons entitled to it and that she be discharged as administratrix and her bondsmen discharged from liability. A copy of this notice was mailed to Sadie Grove, the administratrix, and to H. H. Grove. The title read “The State of Kansas to Sadie Grove, H. H. Grove and all other persons concerned.” The petition was heard April 7, 1941. On this date an order was made reciting the words of the petition stating that due notice of the hearing had been given pursuant to section 185 of the probate code and that a true copy of it had been mailed to Sadie Grove and H. H. Grove in St. Louis, Mo., they being all the heirs, devisees and other persons concerned. The court found that the decedent had died intestate; that the estate had been fully administered; that the administratrix had accounted for every part of the estate according to law and that the summary statement of it was as follows: “Nothing received; nothing disbursed;” that the account should be fully settled and allowed. The order containing this further finding is as follows:
“The Court further finds that the claim of H. H. Grove, allowed in said estate on October 9, 1933, has become dormant, that said claimant had been guilty of laches in the enforcement of the same, and that the same should be wholly barred.”
The order further found that Sadie Grove was the only heir of the decedent and that the estate consisted of four pieces of real estate; decreed that the claim of H. H. Grove be barred and discharged and that all of the real estate be vested in Sadie Grove absolutely; that the estate be closed and Sadie Grove be discharged as administratrix and her bondsmen discharged.
On November 29, 1941, H. H. Grove filed an action in the district court of Shawnee county, Kansas, against Sadie wherein he alleged that he was a resident of St. Louis and that the defendant was a resident of Topeka, Kan. He recited the facts about the death of Albert T. Grove and the appointment of Sadie as administratrix and the fact that she was discharged and the estate closed; that his claim for $1,995 was allowed on October 9, 1933; that it had not been paid although there were ample assets in the estate with which to pay it; that the assets of the estate consisted of the real property to which reference has been made; that Sadie as administratrix knew that the claim had been allowed and that the assets of the estate were chargeable with its payment; that it was her duty to use the assets of the estate to satisfy the claim; that her acts in knowingly causing the estate to be fully and finally closed without the payment of plaintiff’s claim were in disregard of her duty; that she was the sole heir of Albert T. Grove; that all of the property descended to her; that she was then the owner in possession of it. He prayed that he might recover from her the sum of $1,995, with interest, and that the real estate in question be charged with an equitable lien for the amount of the judgment.
On motion of the defendant, this petition was made more definite and certain by setting out copies of the order of the probate court closing the estate. It was further amended by an allegation that the claim of April 7, 1941, was void insofar as it presumed to find that the claim of Albert had become dormant and that he was guilty of laches for the reason that the probate court had no jurisdiction to make such a finding. Sadie demurred to this petition on the ground that it did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant.
On January 24, 1942, this demurrer was sustained on the ground that the petition was an attempt to attack collaterally a judgment of the probate court. The plaintiff was given twenty days to amend. On May 12, 1942, the cause was dismissed at the cost of the plaintiff.
On May 11, 1942, H. H. Grove, by his next friend, Mrs. Albert Pressgrove, filed a petition in the probate court to set aside the order and judgment of that court of April 7, 1941, on the ground that Grove at the time the order was made and for a number of months prior thereto and at the time of the filing of the petition had been of unsound mind, which condition did not appear in the record, and that he had never been formally adjudged incompetent; on the ground of unavoidable casualty or misfortune preventing him from prosecuting or defending his rights; for fraud practiced by the administratrix in obtaining the judgment of April 7, 1941; and on the further ground that the portion of the court’s order of April 7, 1941, discharging the claim of H. H. Grove and findings that it was dormant and that he had been guilty of laches was wholly void.
The petition further alleged that the claim had been allowed on October 9, 1933, and no appeal taken from the order of allowance; that it had not been paid by the administratrix prior to the final order of settlement although there were ample assets in the estate to satisfy the claim; that, the administratrix knew that the claim had been allowed and that the assets were chargeable with the payment; that it was her duty to cause the claim to be paid and that she with full knowledge that it had not been paid caused the estate to be closed and was guilty of an unfaithful discharge of her duty as administratrix; and she was guilty of fraud in obtaining the order.
Sadie filed a motion in probate court to dismiss this petition because it showed on its face that plaintiff had no capacity to petition the court for any relief and for the further reason that H. H. Grove never had been incompetent and had filed an action in the district court in his own behalf, which was pending at the time the petition was filed.
The court sustained this motion on the 12th of September, 1942, for the reason that Mrs. Pressgrove was without capacity to petition the court for any relief.
The petitioner, Mrs. Pressgrove, appealed to the district court from, that order. In the district court Sadie Grove filed a motion to dismiss the petition on the ground that it showed on its face that petitioner had no capacity to sue; that H. H. Grove never had been incompetent. She then set out in this motion the facts about the case that had been filed in district court, to which reference has been made; alleged that all of the matters raised by the petition in the probate court were res judicata on account of the judgment in the district court; that by his pleading in his cause in district court H. H. Grove had relied on the judgment of April 7, closing the estate, and had asserted that Sadie Grove was the owner of all the real estate in question and by reason of that he was estopped from questioning the validity of that judgment; that the petition showed on its face that no valid ground existed upon which to set it aside; and that it failed to show any defense against the dormancy of the claim of H. H. Grove or his laches and that an inquiry into the competency of H. H. Grove was a condition precedent to> the jurisdiction of the court and the probate court of Shawnee county was without jurisdiction over the person of Grove either to inquire into or adjudicate his competency 'because he was a nonresident of the state of Kansas and not within the state of Kansas, as disclosed by the affidavit of Mrs. Albert Pressgrove.
Sadie’s motion was on the 13th day of February, 1943, overruled and the cause remanded to the probate court for further proceedings.
From that order this appeal is taken. .
Appellant first argues that Mrs. Pressgrove has no capacity to petition for relief as next friend of H. H. Grove. They base this on the theory that Mr. Grove is a nonresident of this state. She argues that only a court having jurisdiction over the person of Grove could entertain a petition in his behalf by next friend. The statute authorizing petitions by next friend is G. S. 1943 Supp. 59-2205. That section provides as follows:
“The petition of a person under legal disability shall be by his guardian or next friend. When it is by his next friend the court may substitute the guardian, or any person, as the next friend. The court may appoint a guardian ad litem in any probate proceeding to represent and defend a party thereto under legal disability.”
The section provides for petition being filed for a person under legal disability either by his guardian (that would be in a case where the person in whose behalf the action is being filed has been adjudged incompetent) or by next friend (that would be only in a case where the petition was being filed in behalf of a person who was incompetent but who had not been adjudged to be incompetent). This court has held that actions could be filed by next friend under such circumstances. (See Talbot v. Wulf, 122 Kan. 1, 251 Pac. 438.) There this court said:
“There is no statute which in terms forbids commencement of an action by an incompetent by his next friend, when incompetency has not been adjudged and no guardian has been appointed. Under these circumstances, the court is of the opinion the common law permitting such a person to sue by his next friend has not been abrogated. The authorities are quite uniform that such an action may be maintained when the person in whose behalf the action is commenced is not insane, but is merely incapable of managing his affairs, has not been adjudged to be incompetent, and has no duly appointed guardian.” (p. 2.)
See, also, Atkinson v. Wichita Gas Co., 136 Kan. 854, 18 P. 2d 127.
We are not impressed by the argument that no court but one having jurisdiction of the person for whose benefit the action is being filed can entertain an action in his behalf by his next friend. If that were the rule an incompetent person would be deprived of his rights unless the cause of action for which he sought to bring suit could be brought in the county where he resided. The statement of such a rule is sufficient answer to it. As a matter of fact in the instant case from the time H. H. Grove’s claim was filed in 1933 until the present time he has never been a resident of Shawnee county. Yet matters have transpired in the probate and district courts here which affected his rights. It certainly would not do to say that should he be incompetent he could not appear by next friend and protect those rights. The question of his incompetency is one of fact which the opposing party can put in issue if she wishes to, and if the court should find that he was not incompetent we would be faced with a different problem than the one with which we are now faced. As far as the record goes, he is incompetent and it was proper for the action to be brought by his next friend.
The fact that H. H. Grove has never been adjudged to be incompetent does not prevent such action being brought. (See Lantis v. Davidson, 60 Kan. 389, 56 Pac. 745.)
The fourth ground alleged in the petition is that so much of the judgment of April 7, 1941, as found that the claim of 1933 was dormant and that the claimant had been guilty of laches was void. This question will require a further examination of the pertinent statutes. In the first place it should be remarked that the administratrix has furnished us with no argument at all as to why this claim was dormant or the claimant guilty of laches. We have examined the statutes and the authorities and find no ground whatever upon which the claim could have been held to be either dormant or the claimant guilty of laches by the mere passage of time. The fact is the claim was allowed in 1933 and the administratrix did nothing whatever in the estate until March 12, 1941, when she filed her petition for final settlement. It is so well settled as to hardly require the citation of authorities that a claim once allowed in the probate court from which no appeal is taken becomes final between the creditor and the estate. It is just as final as any other judgment. See Webb, Adm’r, v. Stillman, 26 Kan. 371; Van Dusen v. Woolenmill Co., 74 Kan. 437, 87 Pac. 74; Farmers State Bank v. Mitchell, 143 Kan. 286, 55 P. 2d 423; and Parsons v. McCabe, 127 Kan. 847, 275 Pac. 173.
' Such being the case with reference to this claim it could only be vacated by the court in a proceedings such as those brought under the provisions of G. S. 1935, 60-3007. The administratrix did not proceed under any such statute. She filed her petition for final settlement. In that she alleged her residence, about which there was no dispute; that she had been granted letters of administration, about which there was no dispute; said she had attached a true and complete account of her administration, which stated merely “nothing received, nothing disbursed.” She then said the estate had been fully administered; that her account should be settled and allowed and the estate closed and that upon such final settlement the estate should be settled upon the persons entitled, to it. She alleged that she was the sole heir of Albert T. Grove; set out the property owned; that she as widow and sole heir was entitled to all of the above property, and that she prayed her account be settled and allowed, and upon it being settled the bondsmen be discharged and the property be given to the person entitled thereto.
We have referred to this petition in detail because we are unable to find a single reference to the fact that there was a claim that had been allowed and unpaid against the estate; no allegation by which a court could reach the conclusion that the claim had been wrongfully allowed or should not have been allowed or should be set aside, and no allegation from which an inference might be drawn from one to whom the petition should be sent that action to set aside the claim was contemplated.
A notice of the hearing was sent to H. H. Grove and Sadie Grove and all persons concerned. In that notice she referred to her petition and said that in it she prayed that her final account be settled and allowed and that the estate be fully closed and that upon final settlement it be assigned to the persons entitled to it. A person holding a claizn against the estate upon receiving that notice would be justified in concluding that the estate was going to be closed and that his claim would be paid. There is nothing in that notice which would indicate to him that an effort was going to be made to set aside this judgment which had become final. The statute to which we have referred provides the ground upon which judgments may be set aside, and no facts are alleged in either this petition or notice which even remotely bring this petition within the provisions of that statute. In re Estate of Hoover, 155 Kan. 647, 131 P. 2d 917, is a case where the petition was one to admit a will to probate. In the order admitting the will to probate the probate court found that the widow had relinquished her rights on account of a contract. Neither the petition to probate the will nor the notice said anything about the contract. We held that the court had acquired by this petition no jurisdiction to adjudicate the effect of the contract, and so much of the judgment of the probate court as presumed so to do was void.
. We have reexamined the question in In re Estate of Hoover, 156 Kan. 31, 131 P. 2d 917. There we again held that courts cannot go beyond the issues of fact tendered in the case and make a finding on the matters that are beyond the issues. (See Charles v. White, 214 Mo. 187, 112 S. W. 545; 15 R. C. L. 854; 1 Freeman on Judgments, 738, and McFadden et al. v. Ross et al., 108 Ind. 512.) In that case the probate court simply passed on the effect of a contract. In this one the probate court sought to vacate a judgment that had become final.
The provisions of our probate code are informative on this question. The provisions as to notice are contained in G. S. 1943 Supp. 59-2209 and 59-2210. Sections 59-2208 and 59-2209 are as follows:
“When notice of any probate proceedings is required by law or deemed necessary by the court and the manner of giving the same shall not be directed by law, the court shall order notice to be given to all persons interested, in such manner and for such length of time as it shall deem reasonable. Any required notice may be waived in writing by any competent person or by any fiduciary.
“When notice of hearing is required by any provision of this act, by specific reference to this section, such notice shall be published once a week for three consecutive weeks in some newspaper of the county authorized by law to publish legal notices. The first publication shall be had within ten days after the order fixing the time and place of the hearing; and within seven days after first published notice the petitioner shall mail or cause to be mailed a copy of the notice to each heir, devisee, and legatee or guardian and ward, as the case may be, other than the petitioner, whose name and address are known to him. The date set for the hearing shall not be earlier than seven days nor later than fourteen days after the date of the last publication of notice.”
All parties are agreed that this is a proceeding where notice is required and that it was not waived.
G. S. 1943 Supp. 59-2210, gives the form of notice. It is as follows:
“Notice of any hearing, if such is required, shall be in substantially the following form:
“State of Kansas, - County, ss. In the probate court of said county and state. In the matter of the estate of (name of decedent or person under disability, with a specific designation which it is). Notice of Hearing. The state of Kansas to all persons concerned:
“You are hereby notified that a petition has been filed in said court by (name of petitioner and capacity in which he appears), praying for (state nature of petition and the nature of judgment, order or other relief sought), and you are hereby required to file your written defenses thereto on or before the - day of -, 19 -, at - o’clock —m, of said day, in said court, in the city of-, at which time and place said cause will be heard. Should you fail therein, judgment and decree will be entered in due course upon said petition.-, petitioner.”
It should be noted that this statute provides that the notice shall state the nature of the petition and nature of the judgment, order or other relief sought. The notice in this petition did not contain anything from which an inference could be drawn that the probate court was going to be asked to hold that the final judgment of 1933 was dormant. It gave the court no jurisdiction to make such an order. It follows that as much of the order of April 7,1941, as held that the claim of H. H. .Grove was barred was void. Hence the petition we are examining in this proceeding stated a good ground why that order should be set aside and vacated.
The trial court was correct in sending the proceedings back to the probate court for proper action, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This action was to recover the price paid for certain blue-sky securities which were never delivered. It differs in one respect only from the cases of Deruy v. Hurt, No. 36,046, and Robinson v. Hurt, No. 36,052, (ante, p. 229) this day decided.
Here the bar of the statute of limitation was raised by Hurt’s bondsman, the Royal Indemnity Company. The bond which it furnished to qualify Hurt as a licensed broker of speculative securities contained all the requisites of the statute, including the following:
“Any person having a right of action against a broker or salesman for making a sale in violation of this act shall have a right of action under the bond provided herein: . . .
“Actions may be brought upon this bond at any time, in any court of competent jurisdiction, by or for the benefit of any person, firm or corporation, that shall sustain loss or damage by reason of the breach of the condition hereinbefore contained.”
Interpolated between these quoted excerpts of the bond was the following proviso:
“That any suits upon said bond must be filed within one year from cancellation of the license of any broker.”
Plaintiff purchased the stocks which were never delivered on March 18, 1940. Hurt’s license was canceled on July 10, 1940; and this action against his estate and the indemnity company was begun on March 6, 1942, some twenty months later.
The trial court overruled the indemnity company’s demurrer to plaintiff’s petition. Hence this appeal.
The statute which sanctions an action against a licensed broker for any violation of his faithful performance duty as a dealer in speculative securities declares that it may be brought within three years (G. S. 1941 Supp. 17-1240), and the faithful performance bond must conform to the statutory obligation of the principal obligor (G. S. 1941 Supp. 17-1230). The indemnity company was aware of the statutory requirement that a licensed broker in speculative securities must furnish a bond for faithful performance of all his dealings in such securities, and that he was liable for any breach of his brokerage obligations at any time within three years from the date they were undertaken or transacted. The indemnity company undertook to supply the statutory bond, and it cannot escape the full extent of its statutory undertaking on the excuse that it had inserted in the bond a provision that an action on the bond must be filed in any less time than the statute allowed.
This court has held that when a statute requires a bond to be given and a bondsman undertakes to furnish it, the obligation of the bond which is imposed by the statute is read into the terms of the bond, and any of its text at variance with the statutory requisites is ignored. Such is the doctrine of the notable case of Barber County Comm’rs v. Lake State Bank, 122 Kan. 222, 226-227, 252 Pac. 475. Likewise, in Duke v. National Surety Co., 130 Wash. 276, 227 Pac. 2, it was held that conditions in a statutory bond which are repugnant to the statute are to be treated as surplusage.
See, also, A. T. & Santa Fe Rld. Co. v. Cuthbert, 14 Kan. 212; Kaill v. Bell, 79 Kan. 358, 99 Pac. 593; Farmer v. Rutherford, 136 Kan. 298, 15 P. 2d 474; Fairmont Cement Stone Mfg. Co. v. Davison, 122 Minn. 504, 142 N. W. 899, Ann. Cas. 1914 D, 945-949; Salo v. Pacific Coast Casualty Co., 95 Wash. 109, 163 Pac. 384, L. R. A. 1917 D, 613; Bunker v. United States Fidelity & Guaranty Co., 72 F. 2d 899; The People v. Cross Co., 361 Ill. 405, syl. ¶ 10, 198 N. E. 356, affirmed in 298 U. S. 155; 5 Fourth Dec. Dig., “Bonds,” § 50, 489-491.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith,
J.: In this action the defendant was convicted on three counts of obtaining money by false pretenses. He has appealed.
The prosecution was begun against the defendant and two others jointly. The various counts of the information charged that Adding-ton, Souligny and Roach conspired to defraud one Hill by false representations with reference to the value of stock of the Marland Oil Company of Oklahoma. The Marland Oil Company had been organized by Marland before he became governor of Oklahoma. It was allowed to lie dormant while he was governor but after he left the governor’s office the company became active again. Its headquarters was Ponca City, Okla. During the early months of 1940 several citizens of Arkansas City, Kan., called on Marland at Ponca City and invited him to move his company to that city. Following this invitation the company did open a branch office in Arkansas City. Addington was secretary-treasurer, Souligny vice-president and Roach was a stock salesman. They all three came to Arkansas City late in 1940. One of the inducements which led to the moving of the office to Arkansas City was the sale of stock to people in and around Arkansas City. Several people bought stock, among them being Hill, a dentist. These sales and the borrowing of $2,500 on one occasion are the basis of this prosecution.
Chronologically the acts upon which the third count is based took place first; those as to the first count second; and the second count third. They will be so treated in this opinion.
The third count alleged that the sale of 1,000 shares of stock in the Marland Oil Company was made to Hill on December 28, 1940; that the consideration paid by Hill was a note for $5,000 on which he paid $200 down at the time the sale was made and on which he made two monthly payments of $175 each. The misrepresentations charged were that the company had oil and gas leases in certain named counties in Oklahoma and Kansas; that it had money on hand with which to develop these leases; that it was solvent and had no debts except small current expenses, and that it had 185,000 worth of stock paid in cash. It was charged that all these representations were false and that they were made by defendants knowing them to be false and were relied on by Hill when he made the purchases.
The first count was based on the sale of 1,000 shares of stock that took place about February 17, 1941. The false representations charged were about the same as those for the third count with the addition of a representation that the company had. discovered an oil well in Butler county, Kansas, on a lease owned by it that was sufficiently large to permit the company to declare a fifty percent dividend within six months, and to cause the value of the shares of stock to double. It charged that Hill gave the company a note for $5,000 in payment for this stock and that he paid $1,000 on this note on February 17, 1941, and an additional $1,500 in March of the same year.
The second count alleged about May 1, 1941, defendants represented to Hill that the company had a lease in Rice county; that A1 Derby had made a contract to drill a well on it; that he had moved a well-drilling outfit onto the property; had drilled to a depth of 750 feet and the well was going down fast with a rotary rig; that Derby had demanded the sum of $5,000 for completing the well and had told them he would move off the lease if it was not paid at once; that defendants had raised $2,500; that they needed $2,500 more. The count further charged that these representations were false and Hill relied on them and gave the company his note for $2,500. There was no sale of stock involved in this transaction.
Souligny and Roach each asked and were granted a severance. The state elected to try Addington first. The first witness for the state was Hill. During the course of his testimony he testified as to the purchase of stock on February 17, 1941. At this point the state broke into his testimony and called Souligny to the stand. His counsel objected to his giving any testimony because he was charged jointly with Addington and to compel him to testify would be in violation of his constitutional rights. Counsel for the prosecution stated that the state desired to have him produce the note and contract that was signed by Hill for the purchase of February 17, 1941. Upon this statement the court overruled the objection. Thereupon the witness proceeded to testify that there was no note or contract signed at the time of the sale of stock, about which inquiry was made. This witness was then excused and the examination of Hill resumed. Subsequently during the presentation of the state’s case the defendant asked that the matter of Roach testifying be taken up in the judge’s chambers out of the presence of the jury. The court denied this request. Roach was called to the stand and before he was asked a question his attorney objected to his being required to testify. The court sustained this objection. Defendant then asked the trial court to instruct the jury not to consider this. This request was refused. During final argument of' the case counsel for the state referred to Roach’s refusing to testify by saying:
“Lloyd Roach is jointly charged here with this defendant. We subpoenaed him and put him on the witness stand. You remember that. We started to interrogate him. He wouldn’t testify. Why? Because his counsel stated his answers might tend to incriminate him. Incriminate him of what? Of this offense, I assume. . I suppose that counsel will say to you, for the defense, that it was Lloyd Roach who did all these things. He was just a stock salesman.”
Defendant objected to counsel’s making any comment on the failure of Roach to testify. This objection was overruled. Defendant then asked the court to instruct the jury not to consider the above argument of counsel for the state. This request was denied. These rulings were all attacked by proper motions and the court’s ruling on them is the first question argued by defendant here.
With customary thoroughness counsel for the defendant has marshaled authorities to the effect that it was error for the trial court to permit counsel for the state to comment on the fact that a codefendant of the person on trial refused to testify.
As to Souligny, the matters about which he testified had to do with some papers that were believed to have come into his hands as an officer of the corporation. A codefendant of the person on trial in a criminal prosecution may be compelled to testify as to corporate records that come into his hands as an officer of the corporation. See U. S. v. Austin Bagley Corp., 31 F. 2d 229, and cases cited. There is another reason why it was not error to require Souligny to testify in this action. The answers he made to the questions asked were favorable to the defendant’s theory. The state had the idea that it was necessary for it to produce the contract and note Hill said he signed when he made the purchase of February 17. Souligny was put on the stand for this purpose. He denied that there was any contract or note. Counsel for defendant uses this answer to argue here that there was a fatal variance between the charge in the first count and the proof. Under such circumstances it cannot be said that Addington was prejudiced by Souligny’s being compelled to testify.
As to the argument that the trial court erred in its various rulings with reference to the calling of Roach to the stand, the situation is not quite the same. We have dealt with the question, however. In State v. Jones, 137 Kan. 273, 20 P. 2d 514, a father and two sons were charged jointly with murder. On the trial of the father counsel for the state in his argument made reference to the fact that a co-defendant did not testify. On appeal we said:
“In the thirteenth specification, complaint is made that the state’s attorney made reference to the fact that Neil Jones, a codefendant did not testify. This is not error. Under the provisions of R. S. 62-1420, he was not incompetent, he was. not on trial in the present action, and is not included in the provision—
“ ‘That the neglect or refusal of the person on trial to testify . . . shall not raise any presumption of guilt, nor shall that circumstance be referred to by any attorney prosecuting in the case . . .’ (See 16 C. J. 906.)” (p. 279.)
The immunity is based on the provisions of G. S. 1935, 62-1420, and section 10 of the bill of rights. G. S. 1935, 62-1420, provides as follows:
“No person shall bo rendered incompetent to testify in criminal causes by reason of his being the person injured or defrauded, or intended to be injured or defrauded, or that would be entitled to satisfaction for the injury, or is liable to pay the costs of the prosecution; or by reason of his being the person on trial or examination; or by reason of being the husband or wife of the accused; but any such facts may be shown for the purpose of affecting his or her credibility: Provided, That no person on trial or examination, nor wife or husband of such person, shall be required to testify except as a witness on behalf of the person on trial or examination: And farther provided, That the neglect or refusal of the person on trial to testify, or of a wife to testify in behalf of her husband, shall not raise any presumption of guilt, nor shall that circumstance be referred to by any attorney prosecuting in the case, nor shall the same be considered by the court or jury before whom the trial takes place.”
Section 10 of the bill of rights provides, in part, as follows: “No person shall be a witness against himself.”
At the outset it should be noted that this immunity is for the benefit of the party claiming it, not some third person. The reason Roach was not compelled to testify was the effect it would have on him, not what it would have on Addington. He was a competent witness. Indeed for all this record discloses he could have been compelled to answer whatever questions counsel for the state saw fit to ask him. We have no way of telling whether what the state sought to bring out by questioning him would have incriminated him. The objection was sustained before any questions were asked. The rule is stated in 3 Wharton’s Criminal Evidence, 11th ed., 1973, as follows:
“Generally, the question whether testimony is privileged is for the determination of the court. At least, it is not enough for the witness to say that the answer will incriminate him, as he is not the sole judge of his liability. The danger of self-incrimination must appear reasonable and real to the court, from all the circumstances and from the whole case, as well as from his general conception of the relations of the witness.”
See, also, People v. Plyer, 121 Cal. 160, 53 Pac. 553.
There is no provision in the constitution forbidding comment by the state on the failure of the defendant to testify. The only provision on that subject at all is in G. S. 1935, 62-1420. That section has been already set out in this opinion, but attention is called to the fact that the -statute provides that neither the failure of the defendant or of his wife to testify shall be referred to by any attorney presenting the action. It does not deal with the subject of the refusal of a person other than the defendant or his wife to testify. This subject received the attention of the territorial legislature when chapter 129 of the Territorial Statutes of 1855 was enacted. Section 22 of article 6 of that chapter provided that the person injured or liable to pay the costs of the prosecution should be competent to testify in a criminal prosecution. Chapter 9, article 9, section 4, of the Territorial Statutes for 1858 added to these persons “accomplices when they consent to testify.” Chapter 27, section 194, of the Territorial Statutes for 1859 dropped the foregoing provision. This section was reenacted by section 215 of chapter 82 of the Laws of 1868. It will be noted that all of the above enactments simply provided that persons with an interest should be competent witnesses. Chapter 118, section 1, of the Laws of 1871 reenacted the provisions of section 215 of the Laws of 1868 and amended that section by adding a provision against the wife or husband of a defendant being required to testify, except as a witness for the defense, and the provision that the refusal of the wife or husband to testify should not raise any presumption of guilt or be commented on by the prosecuting attorney. This section is G. S. 1935, 62-1420. It has been unchanged through the years. The immunity of a codefendant from being compelled to testify is based on the constitutional provision that has been noted. In the case of In re Nickell, Petitioner, 47 Kan. 734, we quoted and followed Counselman v. Hitchcock, 142 U. S. 547, 35 L. Ed. 1110, where it was said:
“ ‘It is impossible that the meaning of the constitutional provision could onD be, that a person should not be compelled to be a witness in a criminal prosecution against himself. The object was to insure that a person should not be compelled, when acting as a witness in an investigation, to give testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard.’ ”
The rule that a codefendant cannot be compelled to testify if his answers would incriminate him follows from the above. All this is interesting because there is no legislative or constitutional provision that counsel for the prosecution may not refer to the fact that a co-defendant did not testify. There are some authorities holding that such comment may not be made. We prefer, however,' to adhere to the rule announced in State v. Jones, supra, that to permit the making of such comment is not error. See, also, State v. Madden, 170 Ia. 230, 148 N. W. 995; Arensman v. State, 79 Tex. Crim. Rep. 546, 187 S. W. 471; State v. Hogan, 115 Ia. 455, 88 N. W. 1075; Davis v. Commonwealth, 191 Ky. 242, 229 S. W. 1030 and State v. Greer, 321 Mo. 589, 12 S. W. 87.
There is another reason why the judgment should not be reversed on account of the action of the trial court in permitting this reference to be made. We have examined the entire record, including the-remarks of counsel. It does not appear that what was said by counsel was prejudicial to the defendant or any substantial right was affected. Under such circumstances the judgment will not be disturbed on appeal. See G. S. 1935, 62-1718; State v. Peterson, 102 Kan. 900, and State v. Brooks, 72 Kan. 175, 85 Pac. 1013.
The defendant next argues that there was a failure of proof of .the representations of defendant which the state claimed were false. The approach of the defendant to this question is twofold. He argues first, that the information charged a representation that the company owned certain leases, while the evidence was simply that it did not own these leases of record. In the second place, he argues that the complaining witness merely testified that he made a search of the records in various counties and failed to find any leases on record in the name of this company. Defendant argues that this evidence was not sufficient to prove that the company did not actually have these leases. There is much to be said on both sides of this question. There is no necessity for dealing with it here, however. Even if there had been a complete failure of proof as to these leases, there was still ample evidence of representations that the company was solvent; that it had $85,000 worth of stock paid in cash; that it had sufficient money to drill on these leases; and that these representations were false. It was not necessary to sustain a conviction to prove all the representations charged were made or that they were all false. (State v. Hetrick, 84 Kan. 157, 113 Pac. 383, and State v. Beezley, 119 Kan. 300, 239 Pac. 998.)
Defendant next argues that the trial court committed error when it permitted evidence of statements of Roach and Souligny to be introduced. He argues that these two parties were charged jointly with defendant, and before the statements of this witness, a codefendant with Addington, could be introduced it must have appeared that there actually was a conspiracy between Addington and the witness. He argues that there was no such proof here. The matter of whether there was a conspiracy between Addington, Souligny and Roach could be proved like any other disputed fact by circumstantial evidence. On that account no particular order may be required. See State v. Miller, 35 Kan. 328; Hutson v. Imperial Royalties Company, 135 Kan. 718; Drysdale v. Wetz, 102 Kan. 680, 171 Pac. 653; Rickel v. Coöperative Exchange, 113 Kan. 592, 215 Pac. 1015; Baugh v. U. S., 27 F. 2d 257; Commonwealth v. Dyer, 243 Mass. 472, 138 N. E. 296. In this case Addington, Souligny and Roach came to Arkansas City together, each held offices in the oil company, the instrumentality of the fraud. As far as the outside appearances were concerned they were all engaged in promoting the sale of what they must have known was worthless stock. Hill first met Roach, the stock salesman. He invited Hill to meet Addington and Souligny, the officers of the company. Their offices were adjoining. There were maps on the walls with pins stuck in them to show the location of leases. Hill had conversations with all three of these men, together and singly, many times about the purchase of stock and the condition of the company and the. value of the stock. Roach at Addington’s request showed Hill what he claimed was a Marland well and said, “It is our well.” Again at Addington’s request Roach showed him a well at Tonkawa. Following that were false representations that led to the signing of the contract of February 17. These and other circumstances, too numerous to mention here, constitute substantial evidence that all of these parties were acting in concert and were conspiring to cheat Hill by misrepresenting the value of this stock. Defendant points out that evidence was admitted of some statements of the codefendants made after the last sale of stock. He argues that this was error under the rule that statements made by coconspirators after the conspiracy has ended are not admissible. That rule does not apply here because the statements to which the defendant has reference were quite evidently made as part of a plan to lull Hill into a sense of false security after he had been cheated.
Defendant next argues that there was a fatal variance between the charge in the second count and the evidence to support the charge. It will be remembered that in this count it was charged that the defendants conspired to cheat Hill by pretending that the company had a good lease on a tract of land in Rice county and that the company had made a contract with A1 Derby for the drilling of a well on this lease and that pursuant to that contract Derby had moved a well-drilling outfit onto the lease and had drilled to a depth of about 750 feet; that Derby had demanded $5,000 to pay for completing the well; that the three defendants had raised $2,500 and they needed $2,500 more to pay -A1 Derby to complete the contract. This count did not charge that Hill bought stock. It charged that he gave a note for $2,500 to the company, secured by a real-estate mortgage. Defendant points out that in support of this charge, amongst other things, Hill testified that the defendants told him that this well would be so good that he could be paid back out of the money the company would receive from the oil run. He argues that this was a promise of something to be done in the future, and not a representation of a present existing fact such as is necessary to sustain the charge of obtaining money under false pretenses. Not all the representations made by defendant to cause Hill to make this note were promises of something to be done in the future. The statement that a contract had been made with Derby that a well was being drilled with a slim hole portable rotary rig and that the well was down 1,000 feet were statements of present facts. They were false and were relied on by Hill. The proof of the foregoing was sufficient to sustain the charge even though there were some statements of things to be done in the future made at the same time. See In re Snyder, 17 Kan. 542; also State v. Briggs, 74 Kan. 377, 86 Pac. 447. Furthermore, it was a question for the jury whether the statements of things to be done in the future as to this count were made with the knowledge and intention of the defendant that they would not and could not be done. Naturally the $2,500 could not be paid out of the proceeds of the well if the well was never drilled. At the time the note was obtained from Hill no contract had been made with Derby, no drilling with an oil-drilling rig had been started, and no well was ever drilled.
Defendant next argues that there was a fatal variance between the charge in the first count of the information and the evidence. He points out that this count charged that Addington, Souligny and Roach obtained by false pretense a note for $5,000 from Hill given in payment of 1,000 shares of stock. He argues that the state undertook to prove this charge by the testimony of Souligny and that he denied that any such note was given. The above statement of the charge is not quite complete. It did charge that the three defendants obtained a note for $5,000 from Hill, but it also charged that they obtained from him two payments on this note, one for $1,000 and one for $1,500. Hill testified that he signed a contract for the stock, with a note for $5,000 attached. There is no denial that the payments of $1,000 and $1,500 were made. If the jury believed Hill’s testimony that a note was given and a contract signed by Hill, this was sufficient to sustain the conviction on this count. (See State v. Holmes, 98 Kan. 174, 157 Pac. 412.)
The defendant next argues that the trial court erred in admitting evidence of a privileged communication. This has to do with the testimony of Earle N. Wright, an attorney. The transcript of this testimony given at the preliminary examination was offered. At the time of the trial this witness was in the armed forces and not available. At the preliminary this witness testified—
“I acted as the company’s attorney in a good many matters. Examining abstracts, drawing contracts, drilling contracts and assignments, and whatever they called upon me to draw, that is different papers. My work for the company commenced about October, 1940, and continued up until about May, 1941. During the time I worked for the company I had a good many conversations with these parties about the company’s affairs.”
When the transcript was offered at the trial defendant objected to it because it was a privileged communication. The trial court then stated the objection to so much of the testimony as was based upon information covered by Wright as a stockholder and. as one sought out by the company to invest money would be overruled and as to certain other portions would be sustained. The trial court went through the transcript and indicated the portions of it which should not be admitted. The transcript was then read to the jury minus the portions to which the court had indicated an objection would be sustained. Not every communication to a lawyer by a client is incompetent. It must be of a confidential nature and made to the party in his capacity as a lawyer. See Moran v. Thurman, 127 Kan. 688, 275 Pac. 160; also In re Elliott, 73 Kan. 151, 84 Pac. 750. Wright had testified that his employment was not general, but specific. Much about which he testified was as to information he gained and statements made to him by defendant to induce him to invest some money in the company. None of the matters about which he testified were facts about which he had learned as attorney for any of the parties or of the company.
Defendant next argues that the court erred in admitting certain documents in evidence. These exhibits were certain reports that had been made by the company to the state corporation commission in order to obtain a permit to sell stock in Kansas. The point made by defendant is that these reports were prepared by an accountant who was employed by the company, not by defendant. All of these reports were sworn to by defendant except one exhibit which was prepared from information furnished by him. They were competent as admissions by him as to the true condition of the company and his knowledge of it. Furthermore, he testified with reference to them that they reflected the true condition of the company.
Defendant next argues that the trial court committed error in striking out certain evidence of Souligny. When Souligny was on the stand the following occurred:
“Q. When was the next time you saw or talked to Dr. Hill? A. I believe it was the next day. I never seen him. I might have seen him, but I don’t believe I talked with him until the day he made a loan from Mr. Heard to pay the balance of his subscription in the office—
“Mr. Templar: We object to the last part of the answer and move to have it stricken from the record and the jury be instructed to disregard it.
“By the Court: The objection will be sustained as to the last part of the answer about paying the balance of the subscription and the jury is admonished not to consider it.”
Defendant argues that he should have been permitted to show that the note Hill gave for $2,500 on May 2, 1941, was to pay the balance of his purchase of February 17, 1941, rather than for the purpose for which Hill had testified it was given. Be that as it may, a little later in his testimony Souligny testified as follows:
“Q. Probably about the second of May. Did you have a conversation with him at that time? A. Yes, I think I met him and shook hands with him and told him this, that I was glad he had been able to raise that money and get it in on his subscription, as we were needing it at that time.”
So it is clear that Souligny finally got this bit of evidence into the record.
No error appears in this record and the judgment of the trial court is affirmed.
Parker, J., not participating. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action to enforce a trust relating to land. Plaintiffs prevailed and defendants appeal.
The action was instituted by Katherine Staab, Julia Staab, Elizabeth Staab Berens, Marie Staab Dwyer, and Alois W. Staab, sisters and a brother of the defendants, Alex V. Staab and John C. Staab. The defendant, Christina Staab, is the wife of John C. Staab.
The petition was originally framed as one count but was later separated into two counts over appellees’ objection and as a result of motions fileá by appellants to require appellees to elect or separately state and number their respective causes of action. The appeal is from orders overruling defendants’ separate demurrers to each count of the third amended petition. The demurrers were all based on four identical grounds. Only two of such grounds are urged by appellants now and it is to them that we shall direct our attention. They are that the facts alleged in each count are insufficient to constitute a cause of action and that each cause of action, if one existed, is barred by the two-year statute of limitations. (G. S. 1935, 60-306, third.)
The parties to this action are the same as those in Staab v. Staab, case No. 36,027, ante, p. 69, also decided this day. The two actions were not consolidated in the trial court or in this court. The land involved in the actions is not the same. The facts alleged in the respective petitions are substantially identical as to certain matters. The particulars with respect to which the instant petition differs from the other petition will' be noted presently. The material facts pleaded which are common to the petitions in both actions such as the confidential relation between the father and the appellant sons, the conveyance induced by that relation, the facts reflecting recognition of the trust by appellants after the father’s death, the dates of such recognitions, the alleged'breach of confidence reposed and the date thereof, the alleged fraud and the date of its discovery are all summarized in the opinion in case No. 36,027, ante, p. 69. Those allegations, being the same as those in the instant case, will be considered as a part of the petition in this case without repetition here.
In case No. 36,027, the father conveyed to appellants, John C. Staab and Alex V. Staab, his sons, certain other lands which he then owned. In the instant case the father did not convey land he already owned. In this case the amended petition, in substance, alleged:
On or about April 18, 1929, there was a half section of land in Ellis county which the father, Carl Staab, desired to purchase; the land was acquired by appellants for the father with the father’s money on deposit in a bank and at the father’s direction; the land was purchased under the agreement and with the understanding it should be taken in the name of the sons and that they would hold it in trust for the father during his lifetime, account to him for the proceeds therefrom and that at his death they would make equal division of the land among all of the children, plaintiffs and defendants.
The petition, however, further alleged:
“At the time the half section described in paragraph VI was purchased, John C. Staab had some debts outstanding against him, and for the purpose of defeating any rights which his creditors might assert against the land, if the title was carried in his name, he had the deed made out to Christina Staab, his wife, and Alex V. Staab, his brother. Christina Staab claimed no title to the land, has no interest therein, and has exercised no control over it, but held it for John C. Staab under the agreement which John C. Staab and Alex V. Staab had made with their father Carl Staab.’’ (Emphasis supplied.)
Before passing on the demurrer of Christina Staab we shall consider the demurrers of the principal appellants, John C. and Alex V. Staab. They insist the allegations of the first count of the petition do not bring the instant case within our statutory provisions recognizing a trust which arises by implication of law and that therefore (a) the alleged trust is unenforceable and (6) if once enforceable it is now barred by the two-year statute of limitations. •(G. S. 1935, 60-306, third.) The pertinent statutes provide:
“No trust concerning lands except such as may arise by implication of law shall be created, unless in writing signed by the party creating the same, or by his attorney thereto lawfully authorized in writing.” (G. S. 1935, 67-401.) (Our emphasis supplied.)
“When a conveyance for a valuable consideration is. made to one person and the consideration therefor paid by another, no use or trust shall result in favor of the latter; but the title shall vest in the former, subject to the provisions of the next two sections." (G. S. 1935, 67-406.) (Our emphasis supplied.)
“Every such conveyance shall be presumed fraudulent as against the creditors of the person paying the consideration therefor; and where a fraudulent intent is not disproved, a trust shall in all cases result in favor of prior creditors to the extent of their just demands, and also in favor of subsequent creditors if there be sufficient evidence of fraudulent intent.” (G. S. 1935, 67-407.)
“The provisions of the section next before the last shall not extend to cases where the alienee shall have taken an absolute conveyance in his own name without the consent of the person with whose money the consideration was paid; or where such alienee in violation of some trust shall have purchased the land with moneys not his own; or where it shall be made to appear that by agreement and without any fraudulent intent the party to whom the conveyance was made, or in whom the title shall vest, was to hold the land or some interest therein in trust for the party paying the purchase money or some part thereof." (G. S. 1935, 67-408.) (Our emphasis supplied.)
It will be noted section 1 does not prohibit the creation of a trust concerning land by oral agreement if it is a trust which arises by implication of law. It also will be observed section 6 is expressly made subject to the provisions of sections 7 and 8. Creditors of the father are not involved in this case and clearly section 7 does not apply. Section 8 specifies various cases to which the provisions of section 6 shall not extend. The situation specified in the above italicized portion of section 8 covers the facts pleaded in the first count of the instant case. Therefore, the provisions contained in section 6 that “no use or trust shall result in favor of the latter,” namely, in favor of the person paying the consideration, does not apply to the instant case. It follows that the question which remains is whether the facts pleaded create a trust which arises by implication of law, that is, a trust concerning land which under the provisions of section 1 may be created otherwise than in writing. We have no hesitancy in concluding the facts alleged in count one do create a trust by implication of law and we have so held. (Staab v. Staab, case No. 36,027, ante, p. 69.)
Appellants, however, argue such a conclusion is unsound as applied to this particular case for the reason that the italicized portion of section 8 pertains only to an agreement such as therein described which is made “without any fraudulent intent.” Count one of the petition is not based upon the theory of fraudulent intent on the part of any party at the time the trust agreement was made. It is- based upon: (1) The existence of a confidential relation between the aged and uneducated father and the appellant sons; (2) a transaction induced by that relation; and (3) a breach by appellants of the confidence reposed. (Staab v. Staab, No. 36,027, ante.) It is true that in the instant case element (2) above stated varied somewhat in its exact character from, element (2) in the other case. In the instant case the father furnished the money for the land to be purchased and to be held in trust and thereby created a transaction which at times is referred to as a resulting trust but it was nevertheless a trust which arises by implication of law and as such is expressly recognized by our statutes as above indicated.
Appellants next point out that count two alleges actual fraud from the beginning of the transaction by which title to the land was acquired from the father and hence they argue no trust could have been created under the provisions of section 8 which applies .only to) an agreement made “withoult any fraudulent intent.” Clearly the phrase, “without any fraudulent intent,” was intended to refer to the grantor, or to the party paying the purchase price, or some part therof, for whom the land or some interest therein was to be held in trust. In other words, the father in the instant case was pérmitted to create the trust in question but not for the purpose of effectuating a fraud. If the phrase, “without any fraudu lent intent” should be interpreted to refer to the party holding a title in trust then any person actually so holding the title for another could effectively defeat the purpose and intent of the trust-statutes and acquire title to land by asserting his own fraud. Manifestly, the lawmaker did not intend such an unjust and unconscionable result.
It is true the second count alleges actual fraud on the part of appellants from the time they obtained title to the land in 1929, but the averment is not inconsistent with the father’s good faith.
The instant action was filed September 11, 1941. The trial court interpreted the petition in this case as it did the petition in Staab y. Staab, No. 36,027, ante, namely, that it disclosed appellants’ first breach of the confidence reposed under the trust agreement, set out in count one, occurred on July 11, 1941, and that on the same date appellees first discovered appellants’ actual fraud alleged in count two. As previously stated, the allegations of the petitions in the two cases are identical in that respect and we agree with the trial court’s interpretation of the instant petition as we did with its interpretation of the petition in the other case. It follows the instant action was filed in time upon the theory alleged in count one and count two. (Staab v. Staab, No. 36,027, ante, and cases therein cited.)
We now come to the order overruling the separate demurrer of the appellant, Christina Staab, wife of appellant, John C. Staab.
We previously quoted herein that portion of the petition which revealed that by reason of the fact John.C. Staab desired to defeat any rights which his creditors might assert against the land in question, he took the title to the land in the name of Christina Staab, his wife, and Alex V. Staab, his brother. The petition also contained this pertinent averment:
“Christina Staab claimed no title to the land, has no interest therein, and has exercised no control over it, but held it for John C. Staab under the agreement which John C. Staab and Alex V. Staab had made with their jather Carl Staab.” (Emphasis supplied.)
The principal argument of Christina Staab in support of her demurrer is that the petition contains no allegation she had agreed to any of the alleged transactions or that she had knowledge thereof. We think the trial court properly overruled her demurrer. We need not labor the point. The averments that Christina Staab claimed no title to or interest in the land but held the title for John C. Staab (her husband) and held it under the agreement which John and Alex made with their father are, of course; conceded for the purpose of the demurrer. In the absence of any motion to make any of those averments more definite and certain we think they were sufficient to import knowledge of the trust agreement to Christina. Having knowledge thereof she acquired no better title than her husband would have acquired if the title had been taken in his name. She therefore could be compelled to account to appellees even if she actually claimed an interest in the land which, for the purpose of the demurrer, she does not. In Flitch v. Boyle, 147 Kan. 600, 78 P. 2d 9, where the same principle was involved in a similar trust case we held:
“One who acquires title to property with knowledge of a third party’s interest therein takes it subject to such third party’s interest, and he can be compelled to account to him therefor.” (Syl. II4.)
It is finally urged the petition does not allege Christina made any representations in recognition of the trust agreement which tolled the statute of limitations such as the petition charged were made by Alex Staab and John Staab and that therefore the statute of limitations has not been tolled as to' Christina. The petition, in substance, as previously indicated, discloses Christina claimed no title to or interest in the land but was merely a nominal titleholder for the protection of her husband’s interest against the claims of his creditors and that the actual trustees, John and Alex,'repeatedly acknowledged the trust until they repudiated it on July 11, 1941. Under these circumstances the contention is not good. The statute of limitations, as any other defense, can be asserted only by one who claims an interest in the subject matter of litigation and not by one who disclaims it. It is also well to remember this is not an action to set aside the deed to Christina. It is an action to impress the land involved with a trust and the real party in interest for whom Christina held the title recognized the trust and thereby tolled the statute of limitations.
As stated in Staab v. Staab, No. 36,027, ante, and for the reasons there indicated, the two counts in the instant petition should be tried as one cause of action. If the case is tried by a jury the instructions will, of course, cover such theories of recovery as the evidence warrants.
The judgment overruling the demurrers is affirmed. | [
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