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The opinion of the court was delivered by
Thiele, J.:
Plaintiffs appeal from a ruling and decision sustaining demurrers to their petition.
It was alleged in the petition which was filed May 13, 1943, that plaintiffs were the duly appointed and acting executors of the will of David Herbel, deceased, which was admitted to probate on August 14, 1940, a copy of the will being attached to and made a part of the petition. For present purposes it may be said the testator devised to each of his three sons and three daughters, including his daughter Lydia Herbel Nuss, one of the defendants, certain specific tracts of real estate. He also devised other specific real estate to his three sons subject to a life estate to his wife. The residue of his estate he gave to his wife during her lifetime, with the remainder to all of his children. It wias further alleged in the petition that plaintiffs were the trustees under the terms of a trust agreement made August 16, 1940, a copy being attached to and made a part of the petition. For our purposes, we note that the agreement was made by all of the legatees and devisees under the will of David Herbel, who conveyed to the plaintiff trustees all of the lands owned by David Herbel at his death. The expressed purpose was to permit collection of rents and income to meet any claims against the estate and to preserve the estate intact. Among other powers, the trustees were authorized to lease the lands, collect the rents and amounts due David Herbel, pay the debts, provide the widow with a home and sustenance, and upon the payment of all the debts the lands were to revert back to the heirs as specified under the will. With an exception not here important, the trustees had no power to sell any of the property. It was further alleged in the petition that the trustees were in possession and occupancy of the real estate; that all debts and obligations of David Herbel which had been presented to the probate court for allowance and allowed had been paid and the only matters which prevented closing of the estate were the matters set forth in the petition. It w!as also alleged that David Herbel had endorsed certain notes of the defendants Lydia Nuss and her husband Reuben T. Nuss, and claims thereon totaling $5,340.15 had been proved and allov7ed in the probate court against his estate on account thereof and declared a lien on the share of Lydia Nuss. The interest of Lydia Nuss in the real estate devised by her father’s will was then set forth, and it was alleged that by reason of the facts set forth, plaintiffs, whether the executors or the trustees or both is not stated, were entitled to judgment against defendants Nuss for the above amount and that the same should be decreed to be a first lien upon the interest of Lydia Nuss in the estate, and that the same should be sold to satisfy the judgment. It was also alleged that the defendants, Wilson State Bank and Frank D. Olds, claimed some right and interest in the share and ownership of Lydia Nuss in the property, the exact nature being unknown, but that such right and interest, if any, be decreed inferior to plaintiffs’ judgment. The prayer was for a money judgment against defendants Nuss and for sale of the interest of Lydia Nuss or her husband in satisfaction of the judgment.
A motion of defendants Nuss to have the petition made more definite and certain by stating, among other things, whether plaintiffs brought the action as executors under the will or as trustees under the trust agreement, was overruled as was a somewhat similar motion by the other defendants.
Thereafter the defendants Nuss demurred to the petition on four grounds. (1) The court had no jurisdiction of the persons of the defendants or of the subject of the action. (2) Plaintiffs had no legal capacity to sue. (3) Several causes of action were improperly joined. (4) The petition did not state facts sufficient to constitute a cause of action. The other defendants filed a similar demurrer. Upon hearing and consideration the trial court sustained the demurrers on the ground that it was without jurisdiction. The plaintiffs then perfected their appeal to this court.
It is clear from the petition that the jurisdiction of the probate court was invoked when the will of David Herbel was offered for and admitted to probate. Executors were appointed to execute his will. That court had original, exclusive jurisdiction to grant the letters testamentary, to direct and control the official acts of the executors, to settle their accounts, to order distribution and to exercise such equitable powers as might be necessary to determine any matter properly before such court. (G. S. 1941 Supp. 59-301.) In making a final settlement the probate court shall name the heirs, devisees and legatees, describe the property and state the proportion or part thereof to which each is entitled. (G. S. 1941 Supp. 59-2249. J It is likewise clear that no final settlement has been made of the estate. Assuming it could otherwise be done, there is no allegation the executors were ever authorized in any manner to deliver- the property of the estate to the legatees, devisees or distributees, of the will and estate of David Herbel, or to the trustees under the pleaded trust agreement. Although the trial court did not rule thereon it is apparent the petition did not state facts sufficient to constitute a cause of action in favor of the trustees. Insofar as the executors are concerned, it is apparent that the probate court, the court of original jurisdiction, is exercising that jurisdiction and has not completed the exercise of its powers and duties. That it has power to settle the entire matter and to fully determine the rights of the legatees and devisees is clear from the. probate code and from our decisions. (See, e. g., the statutes above mentioned and Wilson v. Channell, 102 Kan. 793, 796, 175 Pac. 95, 1 A. L. R. 987; Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438.) Even though it be assumed the district court had concurrent jurisdiction, the general rule is that the court which first acquires jurisdiction may draw to itself all matters inhering and retain such jurisdiction and control to the exclusion of any other court of concurrent jurisdiction. (Egnatic v. Wollard, 156 Kan. 843, 857, 137 P. 2d 188, and cases cited.) The only inference to be drawn from the petition is not that the probate court has surrendered jurisdiction, even if that could lawffully be done, but that it took jurisdiction and .is fully exercising the same.
The facts pleaded in the petition disclose that the estate of David Herbel is in process of administration in the probate court, and that the administration has not been completed. In the course of that administration the probate court has full power to make such orders and decisions as may be requisite to settle and determine all of the matters which plaintiffs in the present action seek to have the district court settle and determine. In such a case the district court has no original or concurrent jurisdiction, and the decision of the district court that it was without jurisdiction was correct.
The ruling and decision of the district court is affirmed. | [
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Opinion by
Holt, C.:
The plaintiff brought its action under chapter 113, Comp. Laws of 1885, asking for treble damages for a trespass upon its property. Before the action was commenced the defendant tendered the plaintiff, through its proper officers, $40, and in his answer says he brings said sum into court. Upon the trial a judgment was rendered in favor of plaintiff for $40 damages, and for the defendant and against plaintiff for the costs. Of this judgment for costs the plaintiff complains. He contends that no tender is allowed for torts. It is well settled at common law that a tender could not be pleaded for a tort where the action was brought for the recovery of unliquidated damages. Tender was allowed on contracts where there was no stipulation of the amount one party might owe the other, but where one has suffered from a wrong he should not be put to expense because his adversary can make a better guess of the amount the jury may award. This is the reason given why there could be no tender in an action arising in tort. (7 Wait’s Actions and Defenses, p. 577; Green v. Shurtliff, 19 Vt. 592; Sedgwick on Damages, 7th ed., p. 618.) But in this case the defendant avers in his answer that he brings that amount into court, and under this pleading a judgment might have been rendered in favor of the plaintiff' for $40, and the costs would have followed such judgment.
Our statute provides (§ 523, chapter 80, Comp. Laws of 1885): ■
“The defendant in an action for the recovery of money only may at any time before the trial serve upon the plaintiff or his attorney an offer, in writing, to allow judgment to be taken against him for the sum specified therein.”
The answer of the defendant in this case is certainly an offer in writing to allow judgment to be taken against him for $40. It was not necessary that it be served upon the defendant when it is a part of the pleadings in an action of which the plaintiff was bound to take notice. In Clippenger v. Ingraham, 17 Kas. 586, it was held that § 523 had application to an action in tort as well as one on contract. Clippenger brought a civil action against Ingraham for assault and battery. Ingraham answered by a general denial, and afterward served a notice that he would allow judgment to be taken against him for $10. Upon a hearing the jury found in favor of the plaintiff, and assessed his damages at $2. In discussing the question of whether a judgment for costs in favor of Clippenger and against Ingraham in that case was correct, Judge Valentine says:
“Is not this an action for the recovery of money only? If it is not, then what else does the plaintiff ask to recover ? It is certainly not an action for the recovery of any specific real or personal property, or to enforce a lien, or to compel specific performance, to set aside any instrument or proceeding, nor for an injunction, mandamus, or quo warranto, nor for divorce, nor for any other specific relief aside from the recovery of money.”
From the time, at least, that this answer was filed in court, the plaintiff should be adjudged to pay all costs of the action, for the reason he did not recover a greater amount than that offered in the pleadings. We think, however, that the costs accrued before the filing of defendant’s answer should be paid by him. Section 523 has application only after the action has been begun, and the rule of the common law that no tender should be allowed for torts is modified by the statute to this extent; after an action has been begun there could be an offer to confess judgment made in such action. It is apparent from the wording of the statute that this is all that was intended. It is: “The defendant in an action may at any time before the trial serve upon the plaintiff or his attorney an offer to allow judgment.” These are the terms that are used after the beginning of suit, the attorneys have been employed, and a judgment prayed for. Further in the same section it is provided that the plaintiff shall give notice to the defendant or his attorney, and if he accepts, that it may be filed and the offer and acceptance may be noticed in the journal, and judgment should be rendered accordingly. These terms have reference only to an action pending in court. It does not provide that-where there is a cause of action tender may be made, but only that the defendant may offer to allow judgment to be taken in an action against him.
This is the only question in the case, and we therefore recommend that the judgment be modified and the defendant be adjudged to pay all costs before the filing of his answer; in all other respects the judgment to be affirmed; the costs of this court to be divided.
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 only questions presented in this case are with reference to the character of the title, interest and estate conveyed by Abner Shinn on April 17,1882, to his son, Eugene F. Shinn, and to his son’s wife, Ella Shinn, and whether such title, interest and estate have since been forfeited and lost, or not. It is not claimed in this case nor even pretended that Abner Shinn did not have the power to convey tó his son and to his son’s wife any kind of estate, interest or title in or to the land which he might have chosen to convey, for he held the whole- of the estate and a perfect title, and could convey just what he chose. The questions presented, however, are these: What did he convey, and has the same been forfeited or lost ? It seems to be admitted that Abner Shinn conveyed or transferred to his son and to his son’s wife an interest of some kind in the property in question for the period of ten years, subject to a condition subsequent, and conveyed to them the full and complete title and estate forever afterward, subject to a condition precedent; but it is claimed by Abner Shinn that these conditions were afterward brought into existence, and that they so operated as to produce a forfeiture of the grantee’s interest in the property, and a transference of the same back to the grantor. It is probable, however, that the intention of the grantor was to convey to the grantees the entire estate and a fee-simple title, modified only by a limitation upon the power of the grantees for ten years to “sell, mortgage, or incumber” the property. The conditions upon which the property was conveyed as expressed in the deed, are that the grantees should not “sell, mortgage or incumber the same in any way for the period of ten years” from April 17, 1882. It is not claimed that the grantees have sold or attempted to sell the property, or that they have mortgaged or attempted to mortgage the same, but it is claimed that by their acts and sufferance they caused the same to be incumbered in the following manner, to wit: After this deed was executed, and on August 6, 1884, Eugene F. Shinn commenced an action for a divorce against his wife, Ella Shinn. Such action was afterward dismissed; but while it was pending the court rendered a judgment in favor of Ella Shinn and against Eugene F. Shinn for $30 as alimony; and it is claimed that this judgment is a lien and an incumbrance upon the lpjud, and such an incumbrance as was contemplated when the property was conveyed by Abner Shinn to Eugene F. Shinn and his wife, and therefore it is claimed, that such judgment has so operated as to divest Eugene F. Shinn and his wife of all their right, title and interest in and to the property, and to restore the same to Abner Shinn. Is this claim correct ? Did the aforesaid judgment work a forfeiture of the estate of Eugene F. Shinn and his wife, and reinvest all interest in the property in Abner Shinn? Now whatever interest or title may have been conveyed or transferred by Abner Shinn to his son and to his son’s wife as between the grantor himself and the grantees, whether the same were great or small, and whatever may have been the effect of the conditions contained in the deed, there was nothing contained in the deed or elsewhere prescribing what kind of an estate the grantees should take as. between themselves; hence under-the authority of the case of Baker v. Stewart, 40 Kas. 442, et seq., 19 Pac. Rep. 904, et seq., and the numerous cases cited in that case, they took their interests in the property, whatever such interests were, by entireties, and not as tenants in common or as joint tenants. In other words, each took the entire estate conveyed to him and did not take a separate portion of any estate. In such a case one alone, without the consent of the other, could not sell, mortgage or incumber the property. It would take the affirmative action of both to dispose of or to incumber the same or any interest therein. In procuring the aforesaid judgment both did not act. It was the act of the wife alone without the consent of her husband. And hence it would seem that this action on the part of one alone, and the non-action or resistance on the part of the other, and the resulting judgment, could not amount to or constitute a lien or an incumbrance upon the property. It will certainly not be claimed that merely suffering a lien to be procured upon the property would work a forfeiture of all interest under the deed; for if so, then the property must necessarily have been forfeited on the very first moment of the first day of the next November after the deed was executed, for on that day taxes became due upon the property, and became a lien and an incumbrance thereon, and these taxes could not possibly have been paid or avoided prior to their becoming a lien and an incumbrance. But as before stated, Eugene F. Shinn and Ella Shinn owned their interests in the property by entireties, and not as joint tenants or tenants in common. Neither owned a separate interest in the property, but each owned the entire property, and surely Ella Shinn in procuring a judgment in her own favor could not create a lien or an incumbrance upon and against her own property. And she certainly would not cause an execution to be issued to sell her own property. At common law the husband had the right to the use and control of all his wife’s property, including that which she held as a tenant by the entirety with her husband as well as that which she held in her own right and by a separate title, and that which she held as a tenant in common or joint tenant with her husband or others. But our statutes have materially changed this rule of the common-law. Under our statutes the wife now has the same right to the use and control of all her own property as her husband has to the use and control of his. She now has the same right to the use and control of the interest in property which she holds with her husband or others as tenants in common, or as joint tenants, or as tenants by the entirety, as her husband or any one of the other tenants has to the use and control of a like interest in the property. The statutes do not attempt to abolish or affect tenancies by the entirety any more than they attempt to abolish or affect tenancies in common. Both kinds of tenancies still exist, and both are alike affected as between a husband and wife by the foregoing statutes. But as the wife now has the same right to the use and control of property held by herself and husband together as tenants by the entirety as he has, and as she has the right as well as he to the entire use and control of such property, the selling on execution or the otherwise disposing of the husband’s interest in such property without her consent could not divest the wife of her right to the possession of the entire property, nor of her right to the use and control of the same. In this connection see Davis v. Clark, 26 Ind. 424, and the several cases hereafter cited.
As long as the wife lives the property cannot be legally seized or sold on execution for the husband’s debts; nor could the purchaser, if the property should be sold, take the possession of it, for the wife has the exclusive right to the possession thereof, and to the use and control of the same, except as against her husband alone, who has a like right to the possession, and to the use and control of the same. But it may be claimed that as the husband has an equal interest with his wife in the property, and that as he might possibly outlive his wife and become the sole owner, the judgment should be considered as attaching to that possible contingent interest, and constituting a lien or incumbrance thereon. But this cannot be true, as will be seen from an inspection of the following authorities: Davis v. Clark, 26 Ind. 424; Chandler v. Cheney, 37 id. 391, 414; Patton v. Rankin, 68 id. 245; Thomas v. DeBaum, 14 N. J. Ch. (1 McCarter), 37, 40; Jackson v. McConnell, 19 Wend. 175, 178; McCurdy v. Canning, 64 Pa. St. 39; Vinton v. Beamer, 55 Mich. 559; same case, 22 N.W. Rep. 40. If in the present case the wife should live for more than ten years from April 17, 1882, the time for all forfeiture under the deed would then have passed, and no incumbrance could then produce any possible forfeiture under the deed, and certainly while she lives no lien can attach to the property, for the property is already hers, and by the entirety; or if she should outlive her husband, he could never have any interest in the property with respect to which the judgment could be enforced. And according to all the life-expectancy tables, a woman at any age up to 67 is likely to live more than ten years, and if she is not more than 35 years of age she is likely to live more than three times ten years longer. And according to all the life-expectancy tables, the tables of mortality and annuity tables which indicate the expectancy of life for males and females separately, the expectancy of life for a woman of any age is greater than the expectancy of life for a man of the same age and health. See American Almanac, any volume from 1879 up to the present time; Johnson’s Cyclopaedia, vol. 4, pai’t 2, appendix, p. 1726; Chambers’s Encyclopaedia, vol. 6, p576, Table of Mortality; Encyclopaedia Britannica, vol. 2, p. 89, table 5; Encyclopaedia Dictionary, title, Annuity. See also Report of Tenth U. S. Census, 1880, concerning mortality and vital statistics, vol. 12, part 2, p. 773, et seq.; otherwise vol. 13, part 12, of the House Miscellaneous Documents, same pages. A woman’s expectancy of life at the following'ages is as follows: At 18 years of age, 41.67 years more, or 59.67, years in all; at 20 years of age, 40.29 years more, or 60.29 years in all; at 25 years of age, 37.04 years more, or 62.04 years in all; at 30 years of age, 33.81 years more, or 63.81 years in all; at 35 years of age, 30.59 years more, or 65.59 years in all; at 40 years of age, 27.34 years more, or 67.34 years in all. A man’s expectancy of life at any of the foregoing ages, and indeed at any age, is not quite so great as that of a woman at a corresponding age. It will be seen that the chances that' any young woman may die within ten years from any given time are very small, and the chances always are that a wife will outlive her husband unless she is older or in poorer health than he is. It will therefore be seen that there are difficulties in the way of enforcing a supposed lien like the present; and a lien that can never be enforced is no lien at all.
But we have not yet mentioned all the difficulties. A judgment lien operates only to prevent the judgment debtor from disposing of or incumbering his property so that the judgment cannot be enforced as against the property, and to prevent subsequent lien-holders from taking the property in enforcing their liens. Now as the property is held in entirety by the wife as well as by the husband, he could not and cannot alone dispose of it or incumber the same, even if the supposed lien should have no existence. Hence there is no room in this respect within which the lien could operate; also, as the property is held in entirety by both the husband and wife there is no separate estate or interest in either which could be levied upon, and unless the property is levied upon within one year after the judgment is rendered, the lien ceases to operate or to have force as against all other judgment creditors. (Civil Code, § 468.) Hence in this respect also there has never been a time and never will be a time when the present supposed lien could operate. If the husband should die first, the wife would take all the property without regard to the judgment or the supposed lien, hence in that case also there would be no room within which the lien could operate.
We have already considered the possible contingency of the wife dying first, and found that there was no sufficient room during her lifetime within which the lien could operate. And as she is still alive and the lien has not yet operated, there has not yet'been any incumbrance, nor any forfeiture. And the husband’s possible contingency of at some time having a sole and separate estate would be too uncertain and remote to constitute the basis for a present or existing judgment lien or for a present levy of "an execution. Upon this question see Davis v. Clark, 26 Ind. 424, 430, and upon the general question of subjecting property held by a husband and wife as tenants by the entirety to the payment of the husband’s debts; see the authorities heretofore cited. In the American and English Encyclopaedia of Law, volume 7, page 127, it is said that “as a general rule, only such property as the owner or debtor himself might sell can be taken on execution against him;” and on the same page in a note it is said that “a contingent interest not yet acquired is not subject to execution.”
We do not think that the aforesaid judgment is any incumbrance upon the property in question, and therefore the judgment of the court below in this case will be affirmed.
Johnston, J., concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The railroad company contends that the testimony of three witnesses — Enderton, Peterson, and Rice —introduced on the part of the land-owner, was improperly admitted; that this testimony was greatly prejudicial, and therefore that the judgment should be reversed, and a new trial granted. Enderton testified that he was acquainted with the farm in controversy; that he had known it for about thirteen years; that he had been over it; that he had seen it since the railroad was built across it; that he had been engaged in farming, off and on, for sixteen years in Osage county, in the neighborhood of the farm; that he had had the control of the farm over which the right-of-way passed for three years; that he had at one time owned a half-interest in it; that the market value of the farm was from $6,000 to $8,000 before the appropriation of the right-of-way. He then stated that in his judgment the farm would be worth $1,000 or $2,000 less after the right-of-way was taken for the railroad. The railroad company objected to all of this testimony. The witness further testified as follows:
“ Q,. You are asked first whether you know what the market value is of certain land like this farm and other farms like this in this vicinity ? A. I do.
“Q,. Now, having given that answer, what in your judgment was the market value of this farm just before this right-of-way was located across it, which was on the 7th of January, 1886 ? A. Well, the market value of such land as this was about six thousand dollars.
“Q. Now, what in your judgment was the market value of that farm just after that right-of-way was located across it and that strip taken for railroad purposes ? A. I don’t know that I can answer that question, because I don’t know of any farms being offered or sold, or any trades being asked for this farm at that time.
. “Q. What is your best judgment as to its value after that location ? A. It wouldn’t be worth as much to me.
“Q,. What is your judgment as to what it would be worth, fairly worth, in the market ? A. I don’t think it would sell for as much within a thousand or twelve hundred.
“Q,. What caused this diminution in the value to that extent? A. Well, it would be the loss of a portion of the best land on the farm, and the inconvenience of having the railroad across it.”
As Enderton was able to tell the market value of the farm at the time of the appropriation of the right-of-way, and as he was a farmer, we do not think that there was sufficient error in his testimony or answers to reverse the judgment. (L. & W. Rly. Co. v. Hawk, 39 Kas. 638; K. C. & S. W. Rld. Co. v. Ehret, 41 id. 22.)
Peterson and Rice both testified that they were farmers, but neither knew the value of the farm before or after the appropriation of the right-of-way. They could not testify as to its usable or productive value. Peterson, however, testified that in his judgment the railroad diminished the value of the farm $5 or- $6 an acre. Rice testified that the construction of the railroad over the farm diminished its value $600. This testimony was erroneous, and should not have been received.
In L. T. & S. W. Rly. Co. v. Paul, 28 Kas. 816, two witnesses testified that they did not know the market value of the farm, but knew the farm, its situation and condition, both before and after the appropriation. They were then asked if they knew what per cent, of difference there was in the value before and after the appropriation. In that case, doubts are expressed concerning the competency of such testimony, but the judgment was not reversed, because of the large preponderance of testimony supporting the verdict.
In L. & W. Rly. Co. v. Ross, 40 Kas. 598, it was stated that—
“Several of the witnesses who were farmers were permitted to testify the amount per acre, in their judgment, that the land would be depreciated by reason of the location of the road across it. This class of evidence is not to be commended, and falls very nearly within the objections stated in Railroad Company v. Kuhn, 38 Kas. 675, 677.”
In C. K. & W. Rld. Co. v. Dill, 41 Kas. 736, 21 Pac. Rep. 778, it was stated that—
“The next alleged error is that the court below permitted a witness, Reuben Haffner, who could not testify what the property was worth either before the right-of-way was appropriated or afterward, to testify that the plaintiff’s land was worth, after the appropriation of the right-of-way, about one-third less than it was before. This manner of proving damages to land over which a railroad is constructed and through which a right-of-way has been appropriated is certainly not. to be commended or encouraged, and in many cases it would constitute material and substantial error.” (Railway Co. v. Paul, 28 Kas. 816.)
In K. C. & S. W. Rld. Co. v. Ehret, 41 Kas. 22, it was decided that—
“Farmers who reside within the vicinity of a particular farm, who are familiarly acquainted with the farm, who know its capabilities, and who can testify that they know its value, may give their opinions in evidence with respect to its value, and such opinions are competent evidence, although such farmers may not know of any sale of any farm in that vicinity.”
The testimony of Peterson and Rice was not admissible under any of the foregoing authorities. On the part of the land-owner, seven witnesses testified that the market value of the land immediately after the appropriation of the right-of-way was from $4 to $7 less per acre than before the appropriation of the right-of-way. Eight witnesses testified upon the part of the railroad company that as the railroad ran along the south line of the farm the only injury to the farm was the value of the land actually taken for the right-of-way and the half-acre cut off by the railroad; that therefore the market value of the farm after the right-of-way was taken was only $150 to $200 less than before.
Under these circumstances, the testimony of the two witnesses referred to was the more prejudicial. The judgment 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
Horton, C. J.:
It appears from the record that the land in controversy consists of two tracts of eighty acres each, situated in different quarter-sections, but separated by a lane only. Its value at the time of the sheriff’s sale was from $3,500 to $4,200. The land was sold in gross by the sheriff to C. G. Means & Sons for $1,000 — Means & Sons being the mortgagees in a junior mortgage. Both the mortgagors T. J. Peter and wife, and the mortgagees in the prior mortgage, Eosevear & Eoach, came into court and asked to have the sale set aside, and the mortgagees tendered a bid of $3,500 for the land, being a reasonable value therefor. Eosevear & Eoach made reasonable efforts to be represented at the sale, in which as mortgagees they were specially interested, and intended and had given instructions to their agent to bid at least the amount of their judgment, $2,326, with interest and costs. Their agent, Nicholas Marks, testified upon the hearing of the motions to confirm the sheriff’s sale and to set it aside, (which were heard by the court at the same time,) as follows:
“ That affiant was employed by the plaintiffs in the above-entitled action to attend the sale of real estate made in said action, on the 11th day of September, 1886, and to represent them at such sale and bid in.for them the property sold; and, pursuant to said employment, affiant came to Westmoreland, in the county of Pottawatomie, on Friday, the 10th day of September, 1886, with the intention of representing the plaintiffs at said sale and bidding said property in for them, or at least bidding the full amount of plaintiffs’ judgment and costs for said property. Affiant further avers, that on Saturday, September 11, 1886, about 8 o’clock a. m., he called upon H. C. Hutton, Esq., the attorney for C. G. Means, W. W. Means and C. H. Means, defendants, at his office in Westmoreland aforesaid, and informed him, the said H. G. Hutton, at that time, that affiant had come to Westmoreland, aforesaid, for the purpose of representing said plaintiffs at said sale and bidding, in their interest, for the property to be sold.
“Affiant further avers that in the forenoon of said 11th day of September, 1886, he also met A. A. Hayden, a young man who is a student in the office of Hayden & Hayden, of Holton, Kansas, attorneys for said plaintiffs, and after conversing with A. A. Hayden, it was deemed advisable by said Hayden and this affiant for him, the said A. A. Hayden, to send a message by telephone to Fostoria, and then by telegraph to Hayden & Hayden, at Holton, Kansas, for instructions and advice relative to the said sale; that said message was accordingly sent to Hayden & Hayden aforesaid at about 9 o’clock A. M. on said 11th day of September, 1886, and was so sent in presence of H. C. Hutton and with his full knowledge; that when said message was sent to Hayden & Hayden as aforesaid, a request was left by said A. A. Hayden and this affiant with the person in charge of the telephone office at Westmoreland aforesaid, for the answer thereto to be sent as soon as it should be received to the office of said H. C. Hutton, in Westmoreland aforesaid, where the said A. A. Hayden and this affiant would await its delivery. Affiant further avers that at about half-past 12 o’clock p. M. affiant, in company with A. A. Hayden, went to the law office of said H. C. Hutton, in Westmoreland aforesaid, and there remained waiting for said expected message from Hayden & Hayden aforesaid, until about ten or fifteen minutes past one o’clock p. M., in presence of H. C. Hutton; that while in the office of said H. C. Hutton as aforesaid, waiting for said message from Hayden & Hayden, affiant asked said H. C. Hutton what time said sale would take place, and said H. C. Hutton then informed affiant that said sale would not, in his opinion, take place until about two o’clock P. M.; that affiant did not on said 11th day of September, have a watch, but fully intended and expected to be present at the time and place at which said sale was advertised to take place, but relying upon the representation of said H. C. Hutton, to the effect that the sale would not, in his opinion, take place until about two o’clock p. m., and being unaware that the hour of one o’clock p. M. had arrived, while waiting for his message from Hayden & Hayden, as aforesaid, in said office of H. C. Hutton, this affiant by accident and misfortune failed to .attend said sale at the time when the same was made, and did not arrive at the place of said sale until about five minutes after said sale had closed, as affiant is informed and verily believes; that while waiting for the said message from Hayden & Hayden, in the office of H. C. Hutton, at about one o’clock p. m. on said 11th day of September, 1886, either said H. C. Hutton or A. A. Hayden looked at his watch and remarked that it had stopped, and affiant thereupon immediately left said office and went directly to the court house to attend said sale, still believing he would be in time to be present at said sale, and protect the interests of said plaintiffs, and intending so to do. Affiant further avers that had he not been prevented by accident and misfortune, as aforesaid, from attending said sale, he would have bid at least the amount of plaintiffs’ judgment, interest, and costs, for said land so sold.”
The sale was advertised to take place September 11, 1886, at one o’clock p. M., and the sale was made about twenty minutes after one. T. J. Peter and Mary Jane Peter, his wife, are insolvent, and Rosevear & Roach cannot recover any part of their judgment except from the mortgaged land. The mortgagors, T. J. Peter and wife, and the mortgagees of the prior mortgage, Rosevear & Roach, on September 28, 1886, filed their motion to set aside the sale; therefore, they were prompt in making their application to the court.
It was said in Dewey v. Linscott, 20 Kas. 689:
“That where a party makes reasonable efforts to be represented at a sale, in which as mortgagee he is especially inter ested, and intends and has given instructions to bid something like its value for the property, and the agent employed is by ■judicial process called away at the time of the sale, and the property is sold at a grossly inadequate price, and immediately thereafter, and before confirmation, both mortgagee and mortgagor come into court and ask to have the sale set aside, and the former tenders a bid of apparently the real value, it seems to us that the court should, having due regard to the interests of all concerned, parties and purchaser, set aside the sale, and order a new sale with the mortgagee’s offer as the first bid thereon. This last should be made a condition of setting aside the sale, in order that the right of the mortgagor may be protected. For while, where appraisement is waived, property may be sold for whatever it will bring, yet a court of equity will always, where it has any discretion, so exercise it as to secure what is just and fair; and it is just and fair that the mortgagee seeking a new sale should agree to bid for the property, and bid its reasonable value. Then if he obtains the property he has only given what it is worth; and any way, the mortgagor, who loses his property, has his indebtedness pro tanto canceled and paid. The purchaser gets his money back, and all that he has lost is the chance of a big speculation, A reference to the authorities sustains these conclusions.”
Inadequacy of price, taken alone, is seldom if ever sufficient to authorize the setting aside of a sheriff’s sale; yet great inadequacy of price is a circumstance which courts will always regard with suspicion, and in such case, slight additional circumstances only are required to authorize the setting aside of the sale. (Dewey v. Dinscott, supra; Bank v. Huntoon, 35 Kas. 577.)
In this case the agent employed by Eosevear & Eoach to bid in the mortgaged premises was not called away at the time of the sale by judicial process, as was the agent in Dewey v. Linscott, but he was, according to his testimony, misled by the answér of H. C. Hutton, the attorney for Means & Sons, who were the purchasers at the sale. It may be said that he ought not to have relied upon the statement of Hutton, as he knew the sale was advertised to take place at one o’clock p. m., but all the facts connected with the sale show that Marks was guilty, if at all, of only slight negligence; and in such a case as is presented, slight additional circumstances, in connection with the inadequacy of price, will authorize the setting aside of the sale.
The district court heard all the evidence, and as some was oral, its conclusions upon the facts must be sustained, if possible. Upon the testimony, the court evidently held that a case of surprise to the agent employed to bid by Eosevear & Eoach, was clearly shown. The court also evidently held that the agent was misled by the statement of the attorney of the purchaser at the sheriff’s sale. These, coupled with the inadequacy of price, justified the setting aside of the sale.
We perceive no good reason for reversing the order and judgment of the district court.
Of course, Eosevear & Eoach must comply with their stipulation to continue their offer of $3,500 at the new sale.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The defendant resists the payment of this claim upon the sole ground that the application for membership was not signed by the applicant, but by her husband, the plaintiff, and rests its defense upon the language of its by-laws, and a clause in said application for membership. At the bottom of the application, and just above the blank for signature of the applicant, appears in the original certificate, in small type, the following:
“Signature of the applicant. The applicant must personally sign or the certificate if issued shall be invalid.”
Section 2 of the by-laws is as follows:
“Before a certificate of membership shall be issued, an application therefor made upon a blank furnished by the Union, must be filed in the home office, signed by the applicant by himself or herself, and subject to the approval of the medical director and the president or secretary of the Union. No certificate shall be granted to a person of unsound mind.”
■ It is shown by the evidence in this case, in addition to the facts already stated, that the agent who took this application had full knowledge of all the facts in relation to the signing of the application, and that it was signed by the plaintiff upon his (the agent’s) solicitation and request, with the assurance that it was all right, and that he (the agent) would guarantee it to be all right. It is also shown that Martha Somers desired to take an insurance, and had so informed the agent of the company. This information was obtained some time before this application was made, at her residence, in the presence of her husband and the agent, at a time when her husband made an application for membership in the company. It is also shown that before this application was made by the husband, she requested her husband to make this application, or directed him to do so, although not personally present when it was made; and afterward, and after the application had been so signed by the husband, he informed her of his action, and she said it was all right. There was also evidence offered to show that the agent who took this application was a general agent of the company. The plaintiff testified that he held himself out to be the general agent of. the company; that he took applications; received membership fees; and collected assessments. It is also shown that he employed sub-agents to take applications, which were returned to him when made, and that he was recognized by the sub-agents as a general agent. The secretary, however, testified that he was only authorized to accept applications and membership fees, and had no authority to collect assessments. However, it is shown that he did collect assessments and transmitted money to the company, and that the company duly receipted to the persons for such payments. Under this state of facts it is perhaps not necessary to determine whether or not the agent was a general agent of the company or not. He had authority to take applications and receive membership fees, and under the scope of this authority what knowledge he had in relation to the applications was notice to his principal, the Kansas Protective Union, and it must take knowledge of every fact that came to him within the scope of his authority.
Again, while the by-laws expressly provided that the application should be signed by himself or herself, yet these bylaws were not intended and calculated to bind persons not members of the company. They were made to govern the officers of the company more than to govern persons about to become members and who had no knowledge of such by-laws. (Titsworth v. Titsworth, 40 Kas. 571.) Again, the application required the applicant to sign in person, and if not so signed the certificate would be void if issued. The plaintiff testified that this was in small type, and the application was taken after night, and while he read the application yet he did not notice or read those words. It will not be contended, we think, that if Martha Somers had been present and had there directed her husband to sign her name, that this would not be such a signing as was contemplated by the application; and if she could do this, might she not direct, although not present, that her husband should sign the application? — and might she not, even if she had no knowledge before the signing, upon being informed of the fact accept and ratify it ? We think she might do both. She directed the making of the application, and she ratified it after it was so made. There is no pretense here that any fraud was perpetrated upon the company, or that any of the questions contained in the application were not correctly answered, and as correctly and truthfully as though made by her in person.
We therefore think that the court committed error in directing a verdict for the defendant, and it is 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
Simpson, C.;
This case was presented to this court by the following statement as a case-made. It is brief and concise, and very fairly presents the questions for determination :
“This was an action in the district court of Leavenworth county in the nature of ejectment, commenced January 6, 1885, to recover 136q^- acres of land, the rents and profits thereof and damages thereto, from the 1st day of March, 1881. The case was tried on the 29th day of April, 1886, by a jury, and a verdict rendered in favor of the plaintiff for the possession of the land and for $384.50 damages. Upon the trial, after showing his title, the plaintiff introduced testimony to show the value of the rent of the land from March 1, 1881, and the damages to the land by the taking therefrom by the defendants timber growing thereon. The defendants then produced testimony tending to prove the value of the improvements made upon the land by them. The questions of the ownership of the land, the value of the rents while defendants were in possession, and the amount of damages done to the land by them, together with the value of the improvements made thereon by the defendants, amounting to a considerable sum, were all submitted to the jury and passed upon by them. Neither party requested that the jury be sent to view the premises. After the verdict, the defendants duly moved the court for a new trial, which motion was in writing and filed within three days, was overruled; to which ruling the defendants duly excepted. Whereupon the court on June- 26, 1887, rendered a judgment in favor of the plaintiff and against the defendants for the possession of the land, for the damages as found by the jury, and for the costs.
, “ The defendants requested the court that in rendering this judgment it cause an entry to be made that the defendants claim the benefit of the provisions of the statute in favor of occupying claimants, which request the court denied upon the ground that all the benefits provided for in the sections of this statute concerning occupying claimants had been tried and adjudicated in the trial of the case; to which refusal the defendants duly excepted. Thereupon the defendant Douglass, after the verdict and before the judgment was rendered, claimed to have a lien for taxes upon said land for the year 1858, for which taxes, amounting to $10, said land was sold on September 24,1859, and a deed upon such sale, void upon its face, was recorded January 30, 1863. The court refused to adjudicate that such taxes were a lien upon the property recovered, upon the ground that the right to have the taxes so adjudged was barred by the statute of limitations. The plaintiff having been in possession of the land from February, 1867, down to sometime in 1872, and the defendant Douglass was in possession by himself or tenant from May, 1878, until this trial. The defendant Douglass excepted to the refusal of the court to adjudicate upon his said taxes.
“The errors complained of by the defendants occurring in the proceedings in this case upon which they desire the opinion of the supreme court, are:
“1. The court erred in refusing to cause a journal entry to be made to the effect that the defendants were entitled to the benefit of the occupying-claimant law.
“2. That the court erred in refusing to allow the defendant Douglass a lien for the taxes paid by him.
“The foregoing is all the proceedings in the case necessary to the determination of said two questions,”
I. As to the first question, it is only necessary to refer to that part of the case-made in which it is stated: “ The questions of the ownership of the land, the value of the rents while defendants were in possession, and the amount of damages by them done to the land, together with the value of the improvements made thereon by the defendants, amounting to a considerable sum, were all submitted to the jury and passed upon by them.” It was for this reason that the court denied the request of the plaintiffs in error to cause an entry to be made that'they claimed the benefit of the statute in favor of occupying claimants. It is a necessary implication from the statements of the case-made, that the value of the improvements went to the juiy as a set-off to the rents and damages.
But counsel for plaintiffs in error insists that the value of the improvements could not be determined in this manner; that the court has not the power to determine the value, or submit that question to the jury, except in the exact manner prescribed by the statute; that there can be no compensation until the title is adjudged bad; and that there is no jurisdiction to assess, or no foundation for taking a single step in that direction, until after judgment in the ejectment action. All this may be conceded in a statutory assessment of damages, without the slightest effect on the question presented. After judgment in the action of ejectment, the plaintiffs in error demand that the first step be taken by the court to assess the value of their improvements, and the court says:
“You are estopped; you submitted the evidence tending to prove the value of your improvements to the jury to reduce the amount of the successful claimants’ demand for rents and damages, and you cannot have the value of your improvements twice in the same action. Instead of withholding your claim for improvements and have them assessed in the statutory-mode, you proved them in the ejectment action to reduce damages.”
There is no error in refusing to make the journal entry, under the circumstances presented by this record. For a discussion of equities of the statute, see Barton v. Land Co., 27 Kas. 634.
II. The other error assigned is based upon the refusal of the trial court to adjudge that the plaintiff in error Douglass had a lien' for taxes. The land was sold on September 24, 1859, for the taxes of 1858. The tax deed was recorded on the 30th day of January, 1863. The successful claimant was in possession of the land from February, 1867, until sometime in 1872. The plaintiff in error Douglass was in possession by himself or tenant from 1878 until the trial of this cause. The court below refused to adjudge a lien for taxes, because the right to have the taxes so adjudged was barred by the statute of limitation. It seems to be conceded that the tax deed was “void upon its face.” According to the showing in this record it was fifteen years from the record of the tax deed before the plaintiff in error attempted in any manner to assert his right to the possession of the land by virtue of his tax deed. Long before the expiration of that period his right of possession was barred under any theory of the statutes of limitation of this state that ever has been suggested or urged. When his right of action to the possession was barred, every other right, including the lien, was destroyed. There is no error in the record.
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
Horton, C. J.:
This was an action by D. C. Lindley against the Atchison, Topeka & Santa Pé Railroad Company for injuries received while traveling on a stock train, and resulted in a verdict against the company for $9,650. McCambridge was the conductor of the train, Allen was the engineer, and Guy the head brakeman. Lindley was a live-stock dealer, fifty years of age, residing in Albion, Harper county, in this state. He had shipped live stock for thirty-four years. The alleged cause of action occurred on the 16th day of July, 1885. Lindley had shipped on the defendant’s train one carload of hogs and one car-load of cattle from Perth station, in Sumner county, to be transported to Kansas City, Missouri, and was on top of one of the stock cars just before his injuries. He arrived at Eudora, a station between Topeka and Argentine, between five and six o’clock in the morning. The train consisted of forty-five cars loaded with stock. Soon after arriving at Eudora, eight or ten of the cars, with the caboose, broke or separated from the main train.
The petition alleged among other things that—
“The conductor then in charge of the train, totally disregarding the safety of human life and being grossly careless of the safety of the passengers on the train, and well understanding the culpably negligent manner in which the engineer was handling the train, carelessly and negligently asked, directed and induced the plaintiff' to climb up on the top of the cars and signal for the front portion of the train to be backed up so as to have the rear and front portions of the train coupled together, and then signal the cars containing hogs needing water in the hind part of the train, so that the conductor could water them; that the front part of the train was then backed up to the hind portion of the train, and while the brakeman was between the cars, making the coupling, and while plaintiff was on top of the cars, looking in an opposite direction from the engineer, the latter, then and there operating the engine of the train, did then and there, with gross and wanton negligence and with utter disregard for human life, without any warning, suddenly throw open the throttle of the engine and turn on all the steam power possible, so that the engine started up with the cars with so much force and power that the life of any human being upon the top of the train was unsafe; that the train started up so suddenly and with such a tremendous jerk that it threw the plaintiff clear off his feet and pitched him head foremost down upon the railroad track, where he would have been run over and mashed if he had not been snatched from his perilous condition.”
The evidence upon the part of Lindley tended to show that when the train stopped at Eudora, he got out of the caboose with McCambridge, the conductor, and T. "V. Borland, another shipper having stock upon the train; that they walked up to the water tank; that the engine and three car-loads of hogs had passed the tank; that the plaintiff then asked the conductor if he would not back up the train and water the three cars that had passed the tank; that the conductor said, “No, the hogs are not yours;” that finally the train was backed up to water or shower the hogs; that the conductor, who was standing at the water tank, looking down at Lindley and Borland, said, “You fellows stand down there, and when a car of cattle or horses comes along that you don’t want watered, throw down your hands and I will turn the water off, and when you come to a car-load of hogs throw up your hands and I will shower them;” that Lindley and Borland did as the conductor suggested; that about a dozen or four teen car-loads of hogs were then watered; that when the last car-load of those cars was watered, the conductor looked down again and said to Lindley and Borland, “You fellows get up on top and help signal until the last car-load of hogs comes up, and we will water them;” that Lindley and Borland got upon the top of the train as requested; that Lindley got upon the hind end, but stepped from there to a carnear the engine; that Borland remained on the end car; that the train then backed down to where the detached portion of it was; that when the train got down to the detached cars it stopped quite a longtime; that Lindley had curiosity enough to walk down to where Borland was; that at this time the train was standing still; that when the plaintiff came near to where Borland was, the brakeman was in the act of coupling the cars; that the plaintiff saw Borland looking down at him; that plaintiff walked up toward Borland and got near the end of the car; that just at that moment Borland threw up his hands and said, “Look out;” that the crash then came; that the coupling-pin broke and the cars separated; that Lindley fell off and was severely bruised and injured. The court charged the jury among other things as follows:
“If you find from the evidence that the plaintiff went upon the top of the train at the request of the conductor of the train to assist the train-men in giving signals to the engineer to back up the train for the purpose of coupling on to the part which had been detached, you would be justified in finding that he went upon the train voluntarily, as the conductor in so doing'would be acting beyond the scope of his employment.”
The jury also made the following findings of fact:
* Who made the coupling at the time of the accident, and was he the head brakeman ? Guy, the head brakeman.
“Was the plaintiff, D. C. Lindley, watching the brakeman between the cars making the coupling at the time of the accident ? Yes.
“ Was it a part of the duties of the plaintiff, D. C. Lindley, in taking care of the two car-loads of stock on the train, to assist the train-men in managing, running or coupling the cars on the train and in making signals to the engineer ? No.”
The plaintiff contends that he was thrown or pitched off the top of the car by a sudden forward motion of the train, and in this he is supported by the findings of the jury. The defendant insists that Lindley fell off the car while the slack of the train was running out. The important question in the case is, whether, under the allegations of the petition, the testimony of the plaintiff, the instructions of the court, and the special findings of the jury, the plaintiff is entitled to recover. We think not. Lindley knew, according to his own testimony, the places of danger and safety upon the train. x ° J x He was under no obligation to climb upon the top of the train and signal the conductor or any employé. “Out of curiosity” he walked down to the end of the car where the- brakeman was coupling the train. At the time of the accident he was watching the brakeman coupling the cars. He assumed a position on the top of the cars which he knew was peculiarly dangerous and perilous. It was not necessary for him to be there to care for his stock, or as a passenger. The order or direction of the conductor to him “to go on top of the cars and help signal,” was entirely without the routine of the conductor’s duties; and as it was voluntarily obeyed by Lindley, it could not fasten any liability on the railroad company. If he acted as an employé or brakeman, it was of his own volition. He occupied merely the position of a passenger who voluntarily assumed a very dangerous position to make signals at the request of the conductor as a matter of accommodation.
In McCorkle v. C. R. I. & P. Rly. Co., 16 N. W. Rep. 714, it is said:
“ Plaintiff got off a cattle train at night to examine his cattle when the train stopped for that purpose, and not hearing the signal to start, attempted to get on a freight car after the train had started, because he supposed, from the ‘lively rate’ the train was moving, he would not be able to get on the caboose at the rear of the train, which had been provided for passengers. At the time he attempted to get on the freight car, he had a ‘prod-pole’ and a lantern in his hand. His foot caught in a hole caused by a defective plank in the bridge over which the train was passing, and he fell from the car and was injured. Held, That he was guilty of contributory negligence, and not entitled to recover.”
In Pa. Rld. Co. v. Langdon, 92 Pa. St. 21, it is said:
“On the other hand, should a passenger insist upon riding upon the cow-catcher, in the face of the rule prohibiting it, and as a consequence should be injured, I apprehend it would be a good defense to an action against the company, even though the negligence of the latter’s servants was the cause of the collision or other accident by which the injury was occasioned. And if the passenger thus recklessly exposing his life to possible accidents were a sane man, more especially if he were a railroad man, it is difficult to see how the knowledge or even the assent of the conductor to his occupying such a position could affect the case. There can be no license to commit suicide. It is true the conductor has the control of the train, and may assign passengers their seats. But he may not assign a passenger to a seat on the cow-catcher, a position on the platform, or in the baggage car. This is known to every intelligent man, and appears upon the face of the rule itself. He is expressly required to enforce it, and to prohibit any of the acts referred to, unless it be riding upon the cow-catcher, which is so manifestly dangerous and improper that it has not been deemed necessary to prohibit it. We are unable to see how a conductor, in violation of a known rule of the company, can license a man to occupy a place of danger so as to make the company responsible.”
In L. V. Rld. Co. v. Greiner, 113 Pa. St. 600, is is said:
“ Where one negligently and without excuse places himself in a position of known danger and thereby suffers an injury at' the hands of another, either wholly or partially by means of his own act, he cannot recover damages for the injury sustained. The contributory negligence which prevents recovery for an injury, however, must be such as cooperates in causing the injury, and without which the injury would not have happened.”
In L. R & F. S. Rly. Co. v. Miles, 13 Am. & Eng. Rld. Cases, 10, it is said:
“But there are certain portions of every railroad train which are so obviously dangerous for a passenger to occupy, and so plainly not designed for his reception, that his presence there will constitute negligence as a matter of law, and preclude him from claiming damages for injuries received while in such position. A passenger who voluntarily and unnecessarily rides upon the engine or the tender, or upon the pilot or bumper of the locomotive, or upon the top of a car, or upon the platform, cannot be said to be in the exercise of that caution and discretion which the law requires of all persons who are of full age, of sound mind and ordinary intelligence.”
In Flower v. Penn. Rld. Co., 69 Pa. St. 210, an engine with one freight car had been detached from a train, and was stopped at a water station. The fireman requested a small boy standing near to put in the hose and turn on the water. While he was climbing on the tender to do this, the other freight cars belonging to the train came down without a brakeman and struck the car behind the tender. The boy fell, and was crushed to death. The court held that the company owed no special duty to the boy, saying:
“The case turns wholly on the effect of the request of the fireman, who was temporary engineer. Did that request involve the company in the consequences? . . . The fireman, through his indolence or haste, was the cause of the boy’s loss of life. Unless his act can be legally attributed to the company, it is equally clear the company was not the cause of the injury. The maxim, Qui faeit per alium faoit per se, can only apply where there is an authority, either general or special. It is not pretended there was a special authority. Was there a general authority which would comprehend the fireman’s request to the boy to fill the engine tank with water ? This seems to be equally plain without resorting to the evidence given, that engineérs are not permitted to receive anyone on the engine but the conductor and fireman, or superintendent; that it is the duty of the fireman to supply the engine with water; that he has no power to invite others to do it, and can leave his post only on a necessity.”
In Railroad Co. v. Jones, 5 Otto, 439, Jones was one of a party of men employed by a railroad company in constructing and repairing its roadway. They were usually conveyed by the company to and from the place where their services were required, and a box car was assigned to their use. Mr. Justice Swayne, delivering the opinion of the court, said:
“The plaintiff had been warned against riding on the pilot, and forbidden to do so. It was next to the cowcatcher, and obviously a place of peril, especially in ease of collision. There was room for him in the box car. He should have taken his place there. He could have got into the box car in as little, if not less, time than it took to climb on the pilot. The knowledge, assent, or direction of the company’s agent, as to what he did, is immaterial. If told to get on anywhere, that the train was late, and that he must hurry, there was no justification for taking such a risk. As well might he have obeyed a suggestion to ride on the cowcatcher, or put himself on the track before the advancing wheels of the locomotive. The company, though bound to a high degree of care, did not insure his safety. He was not an infant, nor non com/pos. The liability of the company was conditioned upon the exercise of reasonable and proper care and caution on his part. Without the latter, the former could not arise. He and another who rode beside him were the only persons hurt upon the train. All those in the box car, where he should have been, were uninjured. He would have escaped also if he had been there. His injury was due to his own folly and recklessness. He was himself the author of his misfortune. This is shown with as near as an approach to a demonstration as anything short of mathematics will permit.”
In G. P. Rly. Co. v. Propst, 83 Ala. 518, it was decided that—
“A railroad company is liable, as principal, for injuries received by a person who was employed by the conductor of a freight train as brakeman during the trip, while acting under the orders of the conductor in coupling cars; but not if the person so acting and injured was only a passenger, who was not employed by the conductor, nor under any obligation to obey his orders.”
In the opinion rendered by Chief Justice Stone it was said that—
“So far as this count informs us, the plaintiff was a mere passenger on the train; and, so far as the right to control or direct the movements of the plaintiff is shown in this count, the conductor would have had as much authority over any other passenger, or even a bystander, as he had over him. Such order or direction, as averred, is entirely without the routine of the conductor’s duties.”
In G. P. Rly. Co. v. Propst, 85 Ala. 203, the conductor addressed the plaintiff as follows: “Will., come here, and make'this coupling for me;” and the plaintiff was injured in conforming to this order or request. The court said: “ Such an order or direction could not fasten a liability on the railroad corporation.” (See also Gilliam v. S. & N. Rld. Co., 70 Ala. 268; Howard v. K. C. Ft. S. & G. Rld. Co., 41 Kas. 403.)
We are referred to I. & S. L. Rld. Co. v. Horst, 93 U. S. 291, as decisive in favor of the recovery of the plaintiff. That case decides that a shipper accompanying his stock on the train is entitled to the rights of a’passenger, but in many particulars widely differs from this. In that case the shipper was commanded by the conductor to get out of the caboose and go on top of the train, because the caboose was about to be detached. The shipper had no choice but to obey or leave his stock to go forward without anyone to accompany or take care of them. In this case there was a caboose accompanying the train, where the plaintiff might have ridden in safety. He did not go upon the top of the train to accompany his stock, or to take care of them; he went, as before stated, merely to comply with the order or request of the conductor to assist in signaling the train. The other cases referred to by the plaintiff are not contrary, we think, to the law as before declared.
In answer to one of the questions, the jury stated that the plaintiff was not “guilty of negligence in going on top of the train at Eudora just prior to the accident.” This finding of the jury, however, is not conclusive. If the plaintiff’s evidence, with all the legitimate inferences which a jury might reasonably draw from it, is insufficient to sustain a verdict in his favor, so that a verdict for the plaintiff, if one should be returned, would be set aside, the court may properly direct a verdict for the defendant without submitting the evidence to the jury. In A. T. & S. F. Rld. Co. v. Plunkett, 25 Kas. 188, the jury found that Plunkett, at the time of his injuries, was in the exercise of reasonable and ordinary care. This finding was not considered sufficient to authorize the verdict, in view of the testimony and the other findings. Mr. Justice VALENTINE in that case said:
"If the findings in detail contradict the general findings, we may order the judgment to be rendered in accordance with the findings in detail, and wholly ignore the general findings. For instance: Where a question of negligence arises in the case, the jury cannot be allowed to say conclusively, after finding certain special facts, that these facts constitute negligence, when in fact and manifestly they do not constitute negligence."
Finally, it is claimed that although Lindley might have been guilty of contributory negligence, he is entitled to recover, because the conductor and engineer of the railroad cornpany were guilty of gross negligence. Neither the findings of the jury nor the testimony introduced in the case establishes that the company or any ernployé was guilty of such gross negligence as amounted to wantonness. (S. K. Rly. Co. v. Rice, 38 Kas. 398; K. P. Rly. Co. v. Whipple, 39 id. 531.) Allen, the engineer, testifled that the fireman signaled him to stop. Bradshaw, the fireman, testified that Guy, the head brakeman, signaled him. The jury found that the engineer did not see the plaintiff on top of the train just prior to the accident; therefore, he was not actuated either by gross negligence or malice toward him, or anyone else. The conductor did not give the engineer the signal to move forward. The jury, in returning their answers about the negligence of the employés of the train, found as follows:
"Q. Were any of the men who were running or operating the train guilty of any negligence at the time of the accident? if yes, in what did it consist? A. Yes; the hurried manner in which the emp1oy~s of the train managed the same.
"Q• Did the engineer who was operati~g the engine at the time of the accident to the plaintiff and just prior thereto, use ordinary care in handling the engine? A. No.”
These answers do not tend to show malice or gross negligence.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. • | [
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The opinion of the court was delivered by
Horton, C. J.:
Aderholt sued Krapp in the district court for a settlement of partnership aifairs. He alleged a partnership in the butchering business, commencing the 26th of May, 1886; that on the 19th of August, 1886, Krapp forcibly excluded and ejected him from their place of business, and soon after notified all persons not to pay to him any accounts due the firm. The answer, which was a general denial, was verified. The cause was referred with consent of the parties to a referee, who was directed to hear and report upon the issues of fact in the case. The referee reported Aderholt indebted to Krapp in the sum of $2.49. This result was obtained by allowing Krapp $100 as damages for the failure of Aderholt to furnish $385, his part of the money to carry on the business of the firm. The referee also allowed Krapp interest on $385 at seven per cent., amounting to $17.97. The trial court subsequently modified the report by striking out the $100 damages allowed to Krapp, and entered judgment in favor of Aderholt and against Krapp for $97.51.
None of the testimony before the referee is preserved in the record. We have already held that the finding and report of the referee is not conclusive — it is subject to an examination and review by the court. The referee is but an officer of the court, and the court has supervision and control of all its officers and their proceedings; it can set aside, or confirm, or modify the report of a referee. (Hottenstein v. Conrad, 9 Kas. 435; Owen v. Owen, 9 id. 91.) Here it modified the report by striking out damages, which ordinarily cannot be allowed, unless there is such a special agreement as to stipulate damages. Interest upon the money that Aderholt failed to furnish is probably the only damage that Krapp is entitled to. This was allowed him. No special agreement between the parties, as to extra or unusual damages for failing to furnish any part of the partnership money, is in the record. The finding of $100 of damages in favor of Krapp was more a conclusion of law than a finding of fact. The referee was directed to report the facts, not his conclusions of law. Even if the court gave a wrong reason for rejecting the claim for damages, if its judgment is right upon the findings of fact this court will not interfere.
Upon the record as presented, there was no error in refusing to permit Krapp to amend his answer by claiming damages.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hokton, C. J.:
James R. Greer purchased the land, in controversy from Johnson and son, who held an equitable interest therein. On the 18th day of October, 1873, he entered into a written agreement with Heman Janes and Ed. Y. Holmden to sell or exchange this land to them for $190 in money, and the conveyance from them of twenty-four acres of land on Mill creek, in Wabaunsee county. James R. Greer was paid the $190, and given possession of the twenty-four acres of land. In 1876, there being default in the payment to the railroad company from Johnson and son for the land in dispute, the railroad company foreclosed the contract, and purchased the premises at a judicial sale. On October 23d of the same year, the railroad company sold and conveyed the premises to Joseph D. Greer, the son of James R. Greer, who had entered into the written agreement with Janes and Holmden. After Joseph D. Greer had obtained title to the land, he promised to carry out the written agreement of his father with Janes and Holmden.
Upon the argument for a rehearing it was earnestly insisted by the counsel for M. W. Janes, the plaintiff below, that the promise or agreement of Joseph D. Greer to carry out the contract of James R. Greer, deceased, with Janes and Holmden of October 18,1873, was without consideration, and therefore void, and not binding upon anyone. Counsel say that—
' “Joseph D. Greer was under neither legal nor moral obligation to carry out that agreement made by his father. His title was not derived through his father. His father’s rights and equities had long before been swept away and ended, and he came in, as any stranger might have come in, and purchased directly from the railroad company, as any stranger might have done, and was no more bound by his dead father’s contract than any stranger would have been.”
If the premises of counsel were true, we are inclined to think that the promise or statement of Joseph D. Greer would not amount to anything. It appears, however, from the record that his father, James R. Greer, received of Janes and Holmden $190, and also the possession of twenty-four acres of land, under the written contract for a conveyance of this land to them. James R. Greer paid taxes on the twenty-four acres of land, and it descended to his heirs and was by them divided. When an exchange of lands was made by E. V. Holmden and Heman Janes, Janes made a conveyance of the land in controversy to Holmden, and Holmden took the same at its full value, making no deduction on account of any defect that might exist in the title. Joseph D. Greer is the son of James R. Greer, deceased, and as such son and heir inherited a portion of the estate, and also a part of the land which his father received from Janes and Holmden as part payment upon the land in this action. If Janes and Holmden, having paid for the land in controversy to James R. Greer, never got anything, then they had a right of action against the estate of James R. Greer for breach of contract; but the promise of Joseph D. Greer to them to carry out the agreement of his father, which was accepted and acted upon by them, prevented them from bringing any action against the estate, and also preserved to Joseph D. Greer and the other heirs of James R. Greer the real estate which was divided by them.
With this view, there was ample consideration for the agreement of Joseph D. Greer, and the second part of the syllabus in the opinion heretofore filed was based upon the theory that the agreement of Joseph D. Greer was a valid one, with a sufficient consideration. We have ordered a new trial only. If it shall appear upon the re-trial that James R. Greer left no estate, and that Joseph D. Greer received no share of the twenty-four acres referred to, then, we think, his promise and statement were without consideration, and not binding on him. The motion for a rehearing will be overruled.
All the Justices concurring. | [
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Opinion by
Holt, C.:
The title to this tract of land has been litigated before. Martha E. Young brought her action to quiet her title to a part thereof, in the Chase district court; at the first day of the May term, 1880, a judgment was rendered in her favor on default. This judgment was afterward reversed in this court, (Emslie v. Young, 24 Kas. 732), for the reason that the petition did not state a cause of action. The allegations of the petition were substantially the same as the facts agreed upon in this action, so far as they relate to the title of Martha E. Young to the land in dispute. Usually the rule laid down in that case would be the one we should be guided by in our investigation and determination of the issues in this action. Chief Justice Horton, delivering the opinion in that case, said:
“ It is urged, however, that the claim of Randall, although abandoned before the location of the road, yet, because it was then uncanceled, had sufficient force and validity to take the land from the railroad company. In brief,- that a forfeited and abandoned homestead claim, simply uncanceled upon the books of the land office, has the like effect to exclude land from the railroad grant as a subsisting valid homestead claim, capable of being perfected and of ripening into an absolute title. Such an interpretation of the act of 1863 is not sustained by the letter or the spirit of the statute. The act does not speak of entries or filings excepting lands from the operation of the grant, but of rights — the rights of preemption and homestead. The spirit of the act was to protect preemption and homestead settlers, having valid and subsisting rights at the time the grant became certain. It was not the intention of congress, by the exceptions in the act, to exclude lands from the grant upon fraudulent or forfeited entries or filings. In our opinion, the land having been abandoned as a homestead claim when the route of the road was fixed, no right of homestead settlement attached to the land, within the meaning of the act, at the date of the location of the road; and that at such location the grant attached to the land, notwithstanding the non-cancellation of the homestead filing of Randall. This conclusion leads us to decide that the land in controversy belonged to the railroad company on May 20, 1874, when the deed was executed to N. S. Goss, and that the defendant, John Emslie, is the owner of the land, subject to the mortgage lien of his grantor.”
The defendants contend, however, that the supreme court of the United States, in the case of K. P. Rly. Co. v. Dunmeyer, 113 U. S. 629, have laid down a rule of law different from that enunciated by this court in Emslie v. Young. The language used in K. P. Rly. Co. v. Dunmeyer might be construed to sustain the contention of defendants, but the facts in that case are unlike the facts in this. It appears from the record in that case, that one Miller made a homestead entry on a quarter-section of land in Saline county, on the 25th day of July, 1866; on the 11th of the same month the Union Pacific Railway • Company, Kansas Division, which is the branch now called the Kansas Pacific Railway Company, filed its map showing the general line of its road, and the land was withdrawn from preemption, private entry and sale, on the 26th of July, the next day after the plaintiff had made his homestead entry. The company claimed title to the land under two acts of congress, granting the land to the Union Pacific Railway Company and branches, namely, the act of 1862, and amendatory act of July 2, 1864, and the act of July 3, 1866. The land was situate within the limits of the land so granted. In 1871 Miller’s homestead entry was canceled. The court held that the land in dispute was not a part of the grant to the railroad company, for the reason that Miller’s homestead right had attached thereto before it was withdrawn from preemption, private entry, and sale.
There is this distinction between the facts in that case and this: Miller’s homestead entry at the time of the withdrawal of the lands was a valid and existing right which might have ripened into a title; in this case, the homestead entry of Randall had been abandoned nearly a year before the line of the road had been located, and a year before the land was withdrawn from sale. Now we believe that if the entry of Randall had been canceled before the 30th of June, when the railroad company acquired its interest in the land, that this quarter-section would have reverted to the government, and thereby been within the purview of the grant to the company. The rule would not have been different, we think, when the land had been actually abandoned, though the entry of Randall had not been declared canceled at the local land office. Erom the agreed statement of facts in this case, Randall had no existing rights under his own entry on the 30th day of June, 1869, and therefore this land was embraced in the grant of the government to the railroad company.
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
Horton, C. J.:
A reexamination of the pleadings in this case shows that a part of the answer of the railroad company was unintentionally overlooked. The second defense alleges that —
“ There is a defect of parties defendant in said suit, and that A. H. McKee, Walter B. Davis, Andrew Morris and Philip S. Doerr are necessary parties to a final and complete determination of the same, for the reasons set forth in the first count of this answer, which by reference is hereby made a part of this count of the answer.”
It appears from the pleadings that on the 8th day of July, 1881, the Atchison, Topeka & Santa Fé Railroad Company entered into a written contract with M. S. Sproules, by the terms of which it was agreed that the railroad company, on payment of the sum of $1,000, by the 15th day of May, 1882, should execute and deliver to Sproules a good and sufficient deed to the real estate therein described; that on the 18th day of June, 1880, Sproules, for a valuable consideration, assigned in writing the contract and all his interest therein to A. H. McKee, and delivered said contract to McKee; that on the 24th day of December, 1881, McKee, for a valuable consideration, assigned in writing said contract and all his interest therein to Walter B. Davis, and delivered said contract to Davis; that on the 28th day of March, 1884, Walter B. Davis, for a valuable consideration, assigned said contract in writing and all his interest therein to Andrew Morris, and delivered said contract to Morris; that on the 17 th day of August, 1885, Morris, for a valuable consideration, assigned said contract and all his interest therein to Philip S. Doerr, and delivered said contract to Doerr; that on the 17th day of August, 1885, the railroad company executed and delivered to Doerr its deed of conveyance to all its right, title and interest in the premises.
Mrs. N. A. Benton, sometime in 1880, entered into an agreement with McKee and Stewart that upon the payment to them of $25, and the delivery to them of a good and sufficient deed to certain land in Missouri, they would transfer and assign to her all their right and interest in said written contract; that plaintiff executed to McKee and Stewart a good and sufficient deed to the land in Missouri, and also paid them $25, and thereupon McKee and Stewart executed to her the following receipt:
“Wichita, Kansas, July 8, 1881. — Received of Mrs. N. A. Benton, twenty-five dollars, to apply on contract No. 4528, Atchison, Topeka & Santa Fé Railroad land, situate in Sedgwick county, Kansas. McKee & Stewart.”
But McKee and Stewart did not assign in writing, or deliver the written contract obtained from Sproules to Mrs. Benton. The railroad company did not file its answer until the 17th day of March, 1886, and the action was not commenced against the railroad company until the filing of its answer, because the service attempted before that time was insufficient and void. Therefore, at the time this action was commenced against the company, the company had executed and delivered to Doerr its deed, on the 17th of August, 1885, of the premises described in the petition. At the time that the first judgment rendered against the railroad company was set aside for want of service, the plaintiff agreed with the railroad company that it might file an answer to relate back to the commencement of the action. (Miller v. Kershaw, 1 Bailey’s Eq. 479; Weeks v. Tomes, 16 Hun, 349; Kellogg v. Fancher, 23 Wis. 1.) This, however, did not change the commencement of the action, or the lis pendens. The answer was filed about the time of this stipulation. Therefore the stipulation and the answer were the first appearance of the railroad company.
Under this state of facts, the plaintiff was not entitled to a decree against the railroad company, because all the necessary persons had not been made parties to the action. It is a general rule in equity pleading that all persons whose interest is to be affected by a suit are necessary parties to it. Even if the subsequent assignees of the written contract were not necessary parties, yet Doerr should have been made a party defendant, as he was the holder of the legal title of the premises in dispute, and if he was not an innocent purchaser, he might have been declared the trustee of the legal title for the benefit of the plaintiff. Where a land contract has been assigned, the last assignee who claims the contract and the title to the land therein described, should be joined with the vendor in an action for specific perform-1 1 anee brought by a prior assignee of the contract. (Estill v. Clay, 2 A. K. Marsh. 497; Allison v. Shilling, 27 Tex. 460; Railroad Co. v. Wilhelm, 33 Kas. 206.)
In the case of Hare v. L. & N. W. Rly. Co., 1 Johns. & Hem. 252, Vice-Chancellor Wood-says:
“ If I allow the suit to proceed in the absence of any of the other companies, any of the decrees which I might make would not bind them, and the defendants might become liable in damages for obeying the order of the court.”
Further, prior to the execution of the deed by the railroad company to Doerr, the company had no notice of the assignment of the written contract to Mrs. Benton. When Doerr presented the contract properly assigned in writing to him and tendered the money due thereon, in the absence of notice to the contrary it was the duty of the railroad company to execute its deed to Doerr. It appears that on July 10,1882, Sluss & Hutton, the attorneys of Mrs. Benton, wrote to George R. Peck, Esq., general attorney of the railroad company, of Mrs. Benton’s claim. At that time, as no valid service had been made upon the railroad company, no action was pending against the company; therefore the notice to the general attorney of the company was not notice to the company for_anv — purpose whatever. An attorney cannot, under his general authority, accept service for his client of the original process by which the action is begun. The principles upon which the authorities supporting this rule rest are:
“That it is no part of the duty of an attorney, nor within the scope of his authority, to admit of service for his client, of the original process by which the jurisdiction of the court over the person of the client is first established, for until that be done the relation of client and attorney cannot begin; nor can it be created by the act of the attorney alone.” (Starr v. Hall, 87 N. C. 381.)
Notice to the attorney, whether actual or implied, is considered notice to the client, and the latter is bound; but this notice cannot be given until the action is commenced in the court, or the attorney has been given charge of the subject-matter of the litigation. The client.,is not bound, if the notice is received by his general attorney in a transaction over which the attorney has no control, and which at the time of the notice is not in litigation. Until" the voluntary appearance of the railroad company in the court below, this action was not pending against it, as the defective service was not notice to it. Nor did such service bring it within the jurisdiction of the court. The general attorneyiof the company, prior to the stipulation and answer heretofore referred to, had nothing whatever to do with the action or the claim of Mrs. Benton. It is well known that a great railroad company, like that of the Atchison, Topeka & Santa Fé, has many separate departments or bureaus — such as the land department, the passenger department, the freight department, the construction department, etc. At the head of each of these departments there is a managing officer, who has charge of the business of that department. Before any legal proceedings are commenced, the business of each department is under the control of the chief of that department, subject to the direction and supervision of the president or general manager. Any matters requiring legal attention or advice are referred to the general attorney by the department having special charge thereof, or by the president or general manager; but prior to the commencement of an action in a court against the company, notice to the general attorney of the matters solely under the control of another department is not notice to that de1 partment or to the company, unless prior to such no£jce attorney has been directed to take charge of the subject-matter of the notice. After an action has been properly commenced against the company, then notice upon its general attorney would be notice to the company, and therefore valid and binding.
The judgment heretofore rendered in this court will be set aside, the judgment of the district court will be reversed, and the cause remanded for further proceedings, in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action commenced by J. W. Bretches and G. S. Miller before a justice of the peace of Pratt county against J. P. Chinn, for the sum of $300. After judgment in the justice’s court, the defendant appealed to the district court, where, on the night of December 17, 1886, the case was regularly called for trial, and the plaintiffs not appearing, it was dismissed for want of prosecution. On the next day the plaintiffs appeared and moved the court to set aside the order of dismissal, and to reinstate the case on the docket, and filed the following affidavit, to wit:
“G, S. Miller, first being duly sworn, upon his oath states that he is one of the plaintiffs in the above-entitled action, and that the plaintiffs have a just and valid claim against the defendant, which they will be able to prove if the order in the above-entitled action may be set aside dismissing the same for want of prosecution, and a trial granted. Affiant further states that he was ready for trial on the 17th day of December, 1886, and had reached Pratt in the morning of said 17th day of December, 1886, on their way to luka for trial of said action, and being informed by their attorney that the court was engaged in the trial of the county-seat case, and it would be impossible to try said action on said day, and relying on said information, said plaintiffs’ affairs needing their attention at home, returned home to return the next day. That they had no knowledge or information that said action would be tried on the night of the 17th, or they would have been at Iuka at said time for trial of said action; that they reside 18 miles from Iuka, and that they received information through one Sessler, claiming to have been sent by W. W. Noffsinger, about half-past seven or eight o’clock, that said case would be tried that night. After getting said information plaintiffs got ready as soon as possible and started for Iuka, arriving there about 4 o’clock in the morning of the 18th, 1886; that at the last term of this court the plaintiffs were in attendance four days, waiting for a trial of said action; also, plaintiffs had been in attendance two days of this court, waiting for this action to be set for trial.”
The court heard the motion and sustained the same, making the following order, to wit:
“It is therefore ordered and adjudged that the former order and judgment in this case dismissing this action for want of prosecution be and the same is hereby vacated and set aside, and the cause retain its place upon the trial docket as before said order and judgment, and that plaintiffs pay all of the costs in this action to this time, taxed at $-; and for the same let execution issue.”
After making this order the court continued the case to the next term. At the next term the case was tried before the court without a jury, and judgment was rendered in favor of the plaintiffs and against the defendant for the sum of $177, and costs; and the defendant, as plaintiff in error, brings the case to this court.
I. The plaintiff in error, defendant below, as a first point, claims that the court below erred in setting aside the order of dismissal and in reinstating the case on the trial docket. Now this case is not governed by the rules relating to the granting of new trials where a party has had a trial, and a trial upon the merits of the case. For the order of dismissal was not a trial, or the result of a trial of any kind. Nor is this case governed by the rules which obtain where a party has waited many days, or weeks, or months, or until the next term of the court, before he asks for any relief or seeks any redress; for the plaintiffs in this case, defendants in error, appeared on the very next morning after the dismissal at night and at the same term of court, and asked to have the order of dismissal set aside. The power of the court to set aside orders of dismissal when relief is sought at the same term and at the earliest moment is almost unlimited, and especially so where proper terms are imposed, or such terms as were imposed in the present case. The court in this case required the plaintiffs to pay all the costs which had accrued up to the time of the setting aside of the dismissal. Under such circumstances the defendant could lose but little by the order reinstating the case, for when the plaintiffs’ case was dismissed, they failed in their action otherwise than upon the merits, and therefore they had at least one year within which to commence another action; (Civil Code, § 23;) and if they had been forced by a refusal to set aside the order of dismissal to commence a new action, such a proceeding would have subjected the defendant to the payment of more costs than he will be required to pay as the case has been actually conducted. In connection with this question, see the cases of The State v. Sowders, just decided, and The State v. Hughes, 35 Kas. 626, 633.
II. As a second and final point the plaintiff in error, defendant below, claims that the evidence does not sustain the judgment, and this for the reason that the plaintiffs below did not make a tender of certain things which the plaintiff in error claims ought to have been tendered. The action is for damages for an alleged breach of a contract. The contract was for the exchange of threshing-machines, with their accompaniments. The plaintiffs were to receive from the defendant his threshing-machine and engine, and in consideration therefor they were to deliver to him their threshing-machine and horsepower and a promissory note of $1,300, secured by a second mortgage on certain real estate belonging to them. The plaintiffs, however, were to have the privilege of trying the defendant’s threshing-machine before the final consummation of the trade, and they did so try it on the farm of Louis Lockart, which took three or four days, and “they were satisfied with it, and started to take it to their home, but on the way the defendant stopped them, and would not let them go any further with it. Plaintiffs told the defendant that they had tried the machinery, and were ready to go to Pratt and execute the note and mortgage and turn over the other machinery, but they did not do so, and plaintiffs did not tender to defendant their note and mortgage except as before stated, by offering to go to Pratt and execute the note and mortgage.” It does not appear that the defendant gave any testimony or introduced any evidence of any kind. It does not appear what he said when the plaintiffs offered to go to Pratt and fulfill their part of the contract; but from the evidence that was given we think the court below was justified in finding that it was the defendant who refused to fulfill and perform the contract and not the plaintiffs; and that except for the acts of the defendant the contract would have been completely performed. If the defendant did not want to go to Pratt to have the contract fulfilled there, he should have said so, and permitted the plaintiffs to perform their part of the contract somewhere else. Prom the evidence it may fairly be inferred that the defendant was not willing to perform his part of the contract anywhere or at any time; and that his refusal to permit the plaintiffs to have further charge of the machinery, was a refusal to fulfill the contract on his part, and such refusal was a sufficient waiver of all acts of tender on the part of the plaintiffs. The plaintiffs were not bound to perform the useless and foolish thing of tendering to the defendant a note and mortgage and their threshing-machine after he had refused to perform the contract on his part, and when they knew he would not accept them if tendered.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was a controversy in the court below over the correctness of a survey made by S. H. Brunt, the county surveyor of Lincoln county, of the township line between townships twelve and thirteen, in range nine west, in that county. Hedwig Reinert owns the south half of the southwest quarter of section thirty-six, and George Huhl owns the northwest quarter of section one. The other defendants in error own, also, lands north of this line, and have interest in common with Hedwig Reinert, the appellant in the court below. She claims that her southwest corner as located by the government survey is about thirteen rods south of where the survey made by S. H. Brunt, the county surveyor, established it; that the new survey makes a difference of twelve or thirteen acres in the quantity of land in her farm; that no attention was paid by him to any monuments other than the two township corners; that no attempt was made to find the lost corners, and that the field-notes were disregarded.
It appears that several years ago, W. Bishop, who has been a county surveyor of Lincoln county for ten years, surveyed the disputed line between sections thirty-six and one. Upon the trial, the principal contention seemed to be whether the lines and corners established by Bishop were in accordance with the government lines and monuments. On the one side it is claimed that the Bishop survey was a correct line; on the other, that the Bishop survey was erroneous, and therefore that the survey of Brunt was the true one. • The great preponderance of the evidence tended to show that the true section corner of the northwest corner of section one was originally established at or near a prairie-dog hole, and that the quarter-corner was west of the creek. There was some evidence, however, tending to show that Bishop did not sufficiently examine or identify the stone at the dog-hole as a government monument; that the stone on the west side of the creek was a sandstone, and not the limestone described in the field-notes. Then, again, Robert Fames testified that he knew of a stone as a corner, which had been broken off, on the east side of the creek. This evidence tended to contradict, in a slight way, the evidence given in support of the correctness of the survey of Bishop. It is probable that Fames was mistaken, or did not fully understand the import of the question. Therefore if the sole matter for our determination was whether the survey of Bishop was in all respects in accordance with the government monuments and corners, we would be compelled to follow the general finding of the trial court.
We think, however, that there is not sufficient evidence in the record to sustain the finding of the trial court in its ap proval of the report or survey of Brunt. Whatever may be said as to the cornel’s testified to by Bishop, there is not sufficient evidence in the record to show that the survey of Brunt was correct. The report of the survey on its face shows that Brunt only followed township corners and disregarded the field-notes. The report says that in running his line west, he found no section corners, but does not show he sufficiently attempted to search for the original or lost corners between the township corners. He found the township corners between ranges eight and nine, and between nine and ten, then ran a straight line from one to the other, and on this line placed the quarter and section corners between thirty-six and one. He did not take any evidence in the community or neighborhood as to the lost lines or corners, and paid no attention to hunting for monuments or corners, other than the two township corners. He says in his report that “ I based my survey by these corners, and not by the government field-notes.” In his testimony Brunt attempted to explain his disregard of the field-notes by saying he merely disregarded the variations given in the notes.
While distances and bearings must be disregarded if the monuments on the ground for the corners as originally established can be found, or if lost, their original location can be ascertained, a surveyor should not disregard the field-notes merely to make a straight line between township corners. The township line is not necessarily straight in all cases. (McClintock v. Rogers, 11 Ill. 279; McAlpine v. Reicheneker, 27 Kas. 257.) As affects the disputed corners, the field-notes of the government survey are as follows:
“From the corner of townships 13 and 13 S., R. 8 and 9 W., I run S. 89° 54' W. on a true line between sections 1 and 36. Ya. 11° 40' E.
“33 chains — A creek 30 links wide runs N.E., narrow belt of timber on banks; enter creek bottom on left side.
“40 chains — Set limestone 18x15x4 for sec. cor.
“75 chains — Leave bottom and enter upland; bears N.E. and S.W.
“80 chains — Set limestone 20x10x5 for cor. to secs. 1, 2, 35 and 36.”
The field-notes mention the creek and describe the quarter-corner as west of it. The notes say that the course of the creek where the line crosses is northeast. Brunt says where he crossed the creek the course is northwest. Again, Brunt in his survey did not follow the directions stated in Everett v. Lusk, 19 Kas. 195. His survey was not as extensive as it should have been under the circumstances, in order to insure accuracy to a reasonable certainty. He should have reestablished all missing corners from all the nearest known original corners, in all directions, following section lines. (See also McAlpine v. Reicheneker, supra; Comp. Laws of 1885, ch. 25, §§161-165.)
Further, Brunt in his survey seems to have wholly disregarded the rule in Tarpenning v. Cannon, 28 Kas. 665, “that a boundary-line long recognized and acquiesced in is generally better evidence of where the real line should be than any survey made after the original monuments have disappeared.” Also, 34 Kas. 595.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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By the Court,
Kingman, C. J.
In August, 1865, the plaintiff in error made a verbal contract with defendants in error to manufacture and deliver to them 2,000 sacks of flour of a certain superior quality. The flour was to be delivered at the cars at Peoria, Illinois. The flour was manufactured and delivered in lots between the 1st and 20th of September, and arrived in Leavenworth from the 20th to the 30th of September. In October the defendants in error discovered that a portion of the flour was damaged, but gave no notice of the defect to Field till the 20th of December. Field was sued for the damages resulting from the inferior quality of the flour, and a verdict and judgment rendered against him for $1,762.50.
It is claimed that there was error in the trial below in giving and refusing instructions, which alleged errors may be reduced to two, and stated as follows:
1. That the contract was executory when made, and, therefore, no recovery could be had thereon without an' offer to return the property.
2. That there was error in directing the jury to assess the damages based on the difference in the market price of the flour sold, and the flour delivered at Leavenworth, instead of the place of delivery.
On the first point, we think it is the settled law that in an executory contract in a sale- by sample it is the privilege of the vendee to return the goods if they do not correspond with the implied warranty, and thereby rescind the contract; but we do not understand that he is under any obligations to do so. He may retain the goods and recover damages. None of the cases referred to by counsel hold any other doctrine. In the case of Muller v. Eno (14 New York, 602), the court use this language: “But whether the right to rescind and return the goods may or may not exist in the special case of a sale hy sample, it is well settled that the purchaser is not bound to exercise it. He may, in all cases, unless he has specially agreed otherwise, affirm the sale and bring his action for damages on the warranty.” So in an action against him for the price of the goods, he has the same right hy way of recoupment, and in Boorman v. Jenkins (12 Wendell, 677), the court hold the same doctrine, saying : “It is certainly a sufficient answer that the plaintiffs do not seek to recover the consideration or purchase money, hut damages for the breach of the implied warranty. A purchaser is never hound to return an article unless the stipulations of the contract require it, or unless he wishes to disaffirm the contract and recover hack the money he has paid.” This last cited case was on a sale hy sample, and an implied warranty that the goods sold corresponded with the sample. In an ex-ecutory contract for goods not yet manufactured, there is an implied warranty that the goods shall fill the terms of the contract; and, in case they do not, the purchaser has his option — to return the goods and rescind the contract, or keep them and sue for damages. Formerly, the action in the first case was on the common counts; in the second case, on the implied warranty.
Were the defendants in error suing to get hack the purchase money,'the counsel’s point would he well taken; hut in an action for damages on account of damaged goods, it is not. The ruling of the court below on this point, was more favorable to the plaintiff in error than the law will justify.
On the second point we think the court erred, Mr. Sedgwick says: ‘ ‘ Where a given place is fixed on hy the parties as that for delivery, it seems to be well settled that the inquiry as to prices is limited peremptorily to that particular place. ’ ’ (Sedg. on Dam., 292.) This rule is established by a long course of decisions in New York and in Arkansas (2 Ark., 397), in Illinois (18 Ill., 155), in Massachusetts (Shaw v. Nudd, 8 Pick., 9), and in various other states. See Stoby on sales, § 412, where the rule is asserted in unqualified terms, and many authorities referred to. In this case the flour was to be delivered at the cars in Peoria. Both parties knew that the flour was intended for the Leavenworth market, but this was the intention of the defendants in error alone. They had complete control over the flour — could have shipped it as they chose, to New York or Denver. The vendor had no power over their action ; could not regulate their intention, nor prevent them from changing it. His power was ended when the flour' was delivered at the cars at Peoria. It was then and there that the contract was broken, and the damages received, if at all, and it was by the price there that the damage must be ascertained. We are aware that an apparently different ruling has been made in some cases, but it has been under a different state of pleading from that presented in this case, or has grown out of a misapprehension of the true guide for the ascertainment of the damages.
It is urged in this case that the plaintiff in error first fixed upon Leavenworth as the place where the price must be ascertained; but this is a mistake. He objected to testimony of'the value of flour in Leavenworth, unless the witness would first state that he knew the value of flour in Leavenworth. This was by no means an admission that that was the place where the measure of damages was to he applied. ~We think the court erred in this instruction, and for this reason the case is reversed and a new trial awarded.
All the justices concurring. | [
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By the Court,
Bailey, J.
In this case, money, deposited in the hands of a third person — the defendant in error — by two persons making a Tbet on the result, of an election then pending for governor of this state, was, Before the election was decided, demanded By one of the depositors — the plaintiff in error — and refused to Be paid over.
As we have'held in the cognate case of Reynolds v. McKinney, the money in the hands of a stakeholder, Betting on elections Being prohibited By statute, must Be deemed a mere naked deposit, liaBle to Be reclaimed and recovered By each depositor, on demand. The illegal contract of wager Being a nullity, the plaintiff in error had a right to recover Back his money, on demand, at any time Before it had Been actually paid into the hands of the winning party. After it had Been paid over, the parties Being equally in fault, the law will not assist either. • uIn pari delicto pffti^fs est conditio passideniis.”
The judgment of the court Below is reversed.
All’ the justices concurring. | [
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By the Court,
Kingman, C. J.
The relator shows that in December, 1867, he was awarded the printing of the general and special laws of this state for the- year next ensuing ; that he gave bond for the performance of his contract, and is ready to perform it; that he has applied to the Hon. it. A. Barker, secretary of state, for, and demanded a copy of -the laws passed last winter, which demand has been refused. The secretary of state appears and resists the motion for a mandamus, and presents, as his objection, the law of last winter, March 3d, 1868, providing for the letting, by commissioners, of the contract for printing and furnishing 5,000 copies of the general statutes. By consent, all the facts are presented on this motion, and the secretary shows that under this law the printing of the general statutes has been awarded to another person than the relator, who now has the contract. Under the law, as it was before this enactment of last winter, the relator was clearly entitled to the printing of the laws, and it was as clearly the duty of the secretary to furnish him the copy. Did the law of the last session divest him of this right ? The relator claims that this law is in violation of that part of section ten, of article one, of the constitution of the United States, that declares that no state shall pass any laws impairing the obligations of contracts.
This is the only question involved in this motion, and it is one presenting no great difficulty. This clause of the constitution has been the subject of much discussion, and has elicited elaborate and exhaustive arguments and opinions from the federal and state courts, as different questions have demanded settlement. Probably no part of the federal constitution has called out so much learning, and been the subject of such critical examination, as this. Happily for the profession, it has received from the highest judicial tribunal in the land, an authoritative exposition in so many cases, presented in so many varying phases, that its application is not generally attended with any great difficulty.
Most of the questions that have, arisen under this clause, have been, as to the effect of laws changing the remedy, and as to how far such changes have impaired the obligations of the contract, .or as to what constituted a contract within the meaning of that clause. On both of these points there has been much difference of opinion, and much learned discussion ; but theories, however plausible or logical, have been made to yield to decisions, and reasoning that has convinced many thoughtful men, has been' made to give way to the force of absolute authority.
It is not within the scope of our ambition to press any special views of our own, but simply to follow the authoritative decisions of the Supreme Court. Satisfied that we find the law plain, we do not care to inquire whether it be logical, or harmonizes with theories.
The Dartmouth College case (4 Wheaton, 519) shows how far the court will go in holding legislative action a contract, which subsequent legislatures cannot disturb ; and on the other hand, the Charles River Bridge case (11 Peters, 420) shows what the court will not hold as a legislative contract.
While the Bank Tax cases from Ohio (16 Howard,, 369) perhaps go as far as any in limiting the power of the legislature to amend previous legislation where the sovereign power of taxation is concerned, whatever may be thought of the force of the reasoning of the Supreme Court .of Ohio as against that of the Supreme Court of the United States, in this case, still the latter court had the right to settle it, and did so ; and so ended the controversy.
The court holding in that case that a clause in a general banking law passed in 1845, declaring that a certain per centum of profits paid by the bank, should be in lieu of all taxes to which the bank would be subject, was a contract fixing the amount of taxation, and not a law prescribing a rule of taxation until changed by the legislature, and that a law passed in 1857, taxing banks and bank stock, the same as other property in the state, so far impaired the obligation of the contract as to render it unconstitutional. In the light of these decisions, and many others that we have examined, we have no hesitation in holding that the relator had a contract for printing the laws of the last session.
It. had all the elements of a contract — the agreement of two competent parties about a legal and competent subject matter, upon a mutual legal consideration, with a mutuality of obligation. (1 Ohio St., 657.)
The relator was under bond for the performance of his part of the contract, and the state was pledged for the performance of its part by the law, and the authorized acts of its officers.
The relator was not the state printer. There is no such ' officer in the state; he was doing certain specified work for a stipulated consideration.
The law under which the contract was made was one not only authorized but enjoined by the constitution, which directs that the public printing shall be let on contract to the lowest bidder, by such executive officers, and in such manner, as shall be prescribed by law.
It will be observed, that not only by its elements was the letting of the printing to the relator a contract in. its legal signification between tbe relator and tbe state, but by tbe very language of tbe constitution it was called, by its fit and appropriate name, a contract. The state bad no power to let tbe printing save by contract, for such is tbe method prescribed by tbe constitution. It being, then, a contract, by its constituent elements and by constitutional provision, for printing tbe laws for one year, bad tbe legislature tbe power to abrogate tbe contract? Clearly not. They bad exhausted their power over tbe matter, and were as much bound by the result as a private individual; as much bound to beep faith as tbe humblest person in tbe state, and bad, under tbe constitution of tbe United States, as little power to impair tbe obligation of tbe contract as though it bad been made by tbe most inconsiderable citizen. Tbe legislature was bound by a higher obligation, for it could not, with good grace, ask tbe citizen to keep faith and obey its enactments, at tbe same time that it was breaking faith and disregarding tbe requirements of tbe constitution.
We are aware that, as a general principle, our legislature is competent to repeal or modify any act which a former legislature was competent to pass, and that one legislature cannot abridge tbe power of a succeeding legislature. But this general principle has exceptions. When one legislature has fixed tbe salaries of tbe judiciary, it is not competent for a subsequent one to raise those salaries during tbe term of tbe incumbent. Tbe legislative power as to that matter is exhausted. So in this case ; having let tbe contract for a year, tbe power is exhausted. The object of tbe constitutional provision was to prevent tbe prostitution of tbe public patronage to the purposes of political favoritism. The framers of that instrument bad undoubtedly observed the uses to other states of the public printing, and attempted by this provision to prevent such’use here, and put it out of the power of the legislature to control the matter, save as the public good might demand, by general laws. How could this end he reached, if any legislature might interfere with one letting by providing for another that should supersede the first ? If they have that power, they could exhaust the patience of honest bidders, till none bnt their favorites would longer have the faith to compete for the work. We have confidence that such was not the purpose of the last legislature; hut we are not dealing with it as a question of intention, hut. as one of power, and we think, under the state constitution, the legislature had exhausted its power over its printing of the laws of the current year.
Again, when absolute rights of property have been acquired and vested by authority of law, no subsequent legislative action can divest this right. (Fletcher v. Peck, 6 Cranch, 87.) So where a contract is made under the authority of law, the right of property acquired arises not from the law itself, but from the contract to which it pertains as an incident, and the law-making power cannot divest the rights thus acquired, originating, not in the law itself, hut in acts clone under the law, and which attach as incidents, not to the law, hut to contracts made under it. To the argument of counsel, that a legislative body cannot divest a subsequent legislature of control over the matters, we oppose the decisions of the Supreme Court, as announced in the Bank Tax cases from Ohio, and the subsequent decisions in Ohio on the same questions. (5 O. S., 45.) There is no higher attribute of government than the right of taxation; yet we have seen that the legislature of Ohio, in 1845, bound subsequent legislatures on this subject by making a provision that certain profits should be in lieu-of all taxes. The case before us is much stronger. This is a contract that was doubtful in that case; this is not the foreclosure of the power of subsequent legislatures, but the execution of a power in the exact method enjoined by our constitution. We are therefore of the opinion that the act of the last legislature, so far as it provided for the printing of the' laws by any one besides the relator, was beyond the power of that body, and therefore void.
We are not insensible of the importance of having the revised laws printed .under the superintendence of the commissioners, with the advantage of the head notes and references provided for; nor do we perceive that the views we have of the case will prevent such a result. Only so much of the law, of last session is invalid as violates the contract of the relator.
The rest may well have force and effect. But let that be as it may, any advantage that might be gained by a violation of public faith would be too dearly bought.
The mandamus must be awarded.
All the justices concurring. | [
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By the Court,
Bailey, J.
The record in this case presents two questions for the consideration of this court, viz :
1. Does the information sufficiently charge an offense punishable by the laws of this state ?
2. Did the court err in its ruling, as to the admission of evidence, or in its instructions to the jury? . And, first, as to the information. We have no doubt as to the power of the legislature to provide for the punishment of the offense defined by sec. 274, of the crimes and punishment act, which consists, not in stealing property in another state or territory, but in bringing property thus feloniously taken within the limits and jurisdiction of this-state, to the manifest detriment of the public morals-. The original taking may have been a crime against the laws of the state where it was committed, but of that the laws of this state take no cognizance; but surely, every civilized community must have the right to prevent its soil and territory from being converted to the vile uses of thieves and robbers, a receptacle of stolen goods, and to protect its citizens against the demoralizing effects of such depraved examples.
The legislature of Kansas has not transcended its legitimate authority in the enactment above cited. That act makes the retaining possession of the stolen property within this state, equivalent to an original act of theft, and declares it may be punished in the same manner as an original larceny. It regards every asportation of the property animo furandi as a new taking, and in this, it but echoes the settled principles of the common law. The act expressly declares that in such a case “the larceny may be charged to hare been committed, and may be indicted and punished, in any county into or through which such property shall hare been brought.'1'1
That is precisely what has been done in the case before us, and we are entirely satisfied as to its sufficiency.
Second, as to the ruling of the court in admitting the evidence of the witness, Baldwin, we think it entirely unexceptionable, from the fact that it was necessary, first to prove the wrongful means by which McFarland came into possession of the property, before he could be punished for its continued wrongful possession.
Hence the several instructions asked for by his counsel, and refused by the court, were properly refused, since all of them are based upon the theory that our courts have no authority to inquire by what criminal or wrongful means property was acquired outside the limits of our state.
Judgment affirmed.
All the justices concurring. | [
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By the Court,
Bailey, J.
In this cause, Porter Sherman, the plaintiff in error, had entered into a recognizance as surety for one Thomas Williams, who had been prosecuted for grand larceny. The recognizance was conditioned that Williams should personally appear “before the circuit court of the county of Wyandotte, on the first day of the next regular term thereof, ’ ’ to answer to said charge.
Williams having failed to appear at the next term of the district court for said county, the recognizance was declared forfeited; whereupon, scire facias having been duly issued, and said Williams having failed to appear or answer, final judgment was rendered against ■Sherman, for the a,mount of his recognizance.
A bill of exceptions having been allowed, setting forth the recognizance verbatim, and stating the fact that Porter Sherman, who signed the same as surety, was, at the time of executing the same, a practicing attorney of that court, duly admitted and sworn as such, the case is brought to this court on petition in error..
Two questions are presented for our consideration upon this record, viz: 1. Whether said recognizance was void as to Sherman, because said Sherman was, at the time he executed the same, a regular practicing attorney of the court in which it was taken ? 2. Was said recognizance void, because it required said Williams to appear at the circuit court of said Wyandotte county, instead of the district court %
1. As to the first point, it is urged that, though the act of Sherman in signing the bond was in direct contravention of the first section of the act of 1867, “providing the qualifications of sureties on official bonds ” (L. ’ 67, ¶. 47), yet the bond was not void, because the act, so far as it relates to practicing attorneys, establishes a personal privilege, which such attorneys may waive, if they choose, and which Sherman did waive, in the case at bar, by the act of signing. Though it may seem that this view gives to the act but slight significance, since it gives to the attorney only the privilege which he had before the passage thereof, and which every other citizen possessed as well, namely, the privilege of refusing to go upon such bonds, yet, we prefer to look to the adjudications of other states, from which the act in question is substantially copied, for a construction; and in doing so we find that the same law has been in force for many years in the States of Ohio, Illinois and Missouri;
In Ohio, where an attorney- had joined in an appeal bond in violation of a rule of court, to the same effect as our act of 1867, the court held the bond valid for the benefit of the appellee, remarking that otherwise the attorney might escape a legal responsibility, voluntarily assumed, and thus obtain an advantage by his own wrongful act. Wallace v. Scales, 6 Ohio, 429.
In. Illinois, the case was precisely like the present— a scire facias upon a recognizance conditioned for the appearance of one Lane to answer to a criminal charge, and Jack, one of the cognizors, pleaded that, “at the time of.entering into the recognizance he was an attorney and counselor at law.” The court held that the words of the statute were directory, pointing out what security the law deems sufficient, and intended to guide the officers in the discharge of their official duties; and Skiotstee, J., remarks:. “The record presents the case of a licensed attorney — an officer of court —whose profession is the- law, interposing his office in avoidance of his obligation. Were he to succeed in his defense, it would be a successful fraud on the law, which does not appear before to have been attempted in this state, and which, for the honor of the profession, we trust may not be repeated and the recognizance was held valid. Jack v. The People, 19 Ill., 58.
In Missouri, where one Hicks was sued as surety on an administration bond, Judge Napton remarks: “We are of opinion that the section of our administration law which prohibits an attorney at law from being taken as security upon an administration bond, is merely directory, and was not designed to avoid the obligation where the law has been disregarded.” (Hicks v. Chouteau, 12 Mo. R., 342.) These decisions indicate, very clearly, we think, what construction must be put upon our act of 1867; and we would have no hesitation in affirming the judgment in the case at bar, were it not for the other objection stated, viz :
2. The recognizance is conditional for the appearance of the principal before the circuit court of Wyandotte county, and there being no such court in Wyandotte county, the recognizance was declared forfeited in the district court for that county for his non-appearance at that court. Was this error ? We think it was. A recognizance, being of a penal nature, -is construed strictly i -and we find no. single case in which a party has been held to anything more than the exact and literal fulfillment of his written undertaking, as specified in the condition of the recognizance. Like Shylock, the state can claim nothing which is not “nominated ” in the “bond.” As, for example, where parties have been recognized to appear at court on a day certain, and afterwards the legislature has changed the time of holding the term of court so that court is not in session on the day named, the recognizance is void.
In Maryland, a case was decided almost identical with that at bar. After the adoption of a new consti tution, establishing “circuit courts” for the different counties of the state in place of the county courts, which were abolished, a recognizance was taken, conditioned for the appearance of the party before the “county court on the-day of April;” and this recognizance was held absolutely void, since it purposed to bind the party to appear before a court which had no existence, and upon no fixed day. Held, also, that the objection could be taken upon scire facias after forfeiture. See Coleman v. State, 10 Md., 168.
Where seeking to enforce a forfeiture, the state can claim of a party nothing more than a literal compliance with the terms of his obligation; and in the case at bar, the plaintiff in error was not, in terms, bound to appear at the district court; nor is he responsible for the mistake, clerical or otherwise, by which the words, “circuit court of Wyandotte county,” appear in this instrument, in place of “ district court,” as it should have been.
The judgment of the court below is reversed, and the cause remanded.
All the justices concurring. | [
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By the Court,
Kingman, C. J.
Four errors are assigned in this case, which we shall notice in their order.
1. That the verdict was returned in the absence of the plaintiff and his attorney, and in the recess of the court for dinner. There is no evidence of this in the record. The only place where it is mentioned is in the motion for a new trial. That is not evidence of 'the fact; it is only evidence that the motion was made, and the grounds which the party alleges existed why a new trial should be granted. It is no more evidence of the fact that the verdict was so received, than it is that the verdict was against the evidence.
2. The jury were allowed to separate, during the trial, without being first charged by the court. On this matter the record is silent, and the presumption is that the court discharged its duty in the premises.
3. The plaintiff in error was sued on a note. His defense, so far as the case here is concerned, was the fraud ulent representations of the defendant in error in the sale of a lot of corn, as to the market value, quantity, quality, and the manner in which it was cribbed. The record shows that, pending the negotiations for a sale of the corn, the seller referred the buyer to a third party as one who would give full information about the corn, and that the court below permitted evidence to be given to the jury of what was said to the buyer by such third party, after such reference, but refused to permit the buyer to prove the representations made prior to such reference.
This refusal to admit the representations made by this third party, before any reference is made to him, is complained of as error. The representations made by a third party, to whom reference is made for information on a particular subject, are generally evidence against the party making such reference. (4 Wend., 336.) This is not to be understood as making the third party the agent; but such reference being made for information, the representations made are to be deemed the representations of the party himself, and ought to bind the person making them only, when made after the reference, unless there be in the reference itself, some declaration covering previous representation.
A person may be very willing to abide by the representations made by a man who is thoroughly informed to-day, but would be wholly averse to bind himself by what the third party might have said yesterday, when ignorant or only partially informed of the facts. It is only from the time the reference is made that the party making the reference trusts the person referred to. Any trust reposed in those representations, made before the reference, is a trust reposed by the person seeking information. And if the information is incorrect, the person acts upon it at his peril.
The rule may, in this case, work hardly. It is the misfortune of all human things > to be imperfect; and we have often had occasion to observe that the application of old rules of law, to particular cases, often results in very great hardships. Still, all we have to do is to declare the law. Were we to settle the rule the other way in this case, it would open the door to the greatest injustice and oppression. It would, in many cases, bind a man by the statement of an ill-informed person, when his reference was only to one well informed. Break down the rule as we have stated it, and statements made years before, and forgotten, might be raised up to confront a man who had recently referred to the third party for information, knowing him to be well informed on the subject. We are aware that there is no such danger in this case ; but we deal, with rules, not with each case as it arises.
4. The fourth error assigned, is error in the judgment. The judgment is for $347.25, and costs of suit, taxed at $-. The error claimed is that, by the judgment, all the costs of the suit are awarded to the plaintiff, while he is entitled to receive only his own costs. It is admitted that the plaintiff recovers only his own costs, and that is all he gets under the law. The judgment for costs is in blank. When they are taxed, each officer and witness receives his own, and the plaintiff, who is responsible for such costs till they are made out of the defendant, is entitled to judgment therefor. When the costs are taxed, if any that are properly the costs of the defendant are awarded to the plaintiff, then the matter should, and undoubtedly would be, corrected by the court on motion.
The decision of the court below is affirmed.
All the justices.concurring. | [
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By the Court,
Safford, J.
A large number of points have been raised and industriously argued by the counsel on either side, in this case, and we may be permitted to say that in fortifying the positions which they have respectively taken, they have exhibited unusual zeal and ability, as well as learning in the law. But, inasmuch as our views upon a single question will dispose of the whole case, as far as we are concerned, we shall not- need to avail ourselves of the extended research of counsel, as directed to the solution of any other question than the one referred to.
This question — and to it we shall confine our discussion — -is, as to the correctness of the conclusions of law found by the district court bn the trial of this cause. Without noting the statement of the case otherwise than by a reference to the conclusions of fact, as found by the court, and as they appear in the record, we proceed to state the conclusions of law, as follows, to wit:
1. That the said first election, held on the said 21st day of May, 1867, and all orders and acts whatsoever of the board of county commissioners of Doniphan county in relation thereto, up to the 27th day of May, 1867, were avoided and made of no effect by the repeal of the first section of the act of February 11th, 1865, under and by virtue of which first section of said act the said election was held, which repeal took effect on the said 27th day of May, 1867.
2. That the said second election, held on the said 4th day of June, 1867, not being founded on a previous subsisting election, and not being held under the provisions of the act of February 26th,-1867, which became a law by publication, on the 27th day of May, 1867, was void and of no effect.
The first election referred to in the first conclusion of law found by the court, was held on the 21st day of May, 1867, and the condition of the statutes of this state, on the subject of elections for county seats, at that time was as follows:
An act providing for the removal of county seats, and the permanent location of the same, was passed by the legislature of 1863, and approved March 2d, of that year.
The first section of said act pointed out the way in which elections for the purpose named should be held, and also the preliminary requisites to the ordering of the same. The remaining sections provided for the canvass of the votes and the proclamation of the result, the removal of the records and other property of the county to the county'seat so determined, the rules to be observed in the conduct of elections under the act, who should be deemed qualified to vote at such elections, and what counties should not be included in the act. Thus stood the law until' the act of February 11th, 1865, was passed and went into operation. This act amended, in some respects, the first section of the law of 1863, and repealed section five of said law, which provided that the provisions of said act of 1863 should not apply to counties where their county seats had been located by a vote of the people therein. ■ No further legislation was had on this subject until the act of February 26th, 1867, which took effect and became a law May 27th, 1867. The election, then, which was held on the 21st day of May, was under and b^ virtue of the act of 1865, and the unrepealed portions of the act of 1863. By that election the question as to what place should be the county seat of Doniphan county was not determined, and it was resubmitted under and by virtue of the provisions of the same acts under which the first election had been held; and said second election was ordered to be held on the 4th day of June, 1867, eight days after said act of 1867 became and was a law of this state! The act of February 26th, 1867, amended the first section of the act of February 11th, 1865, in some respects, and by express provision repealed that section, and contained no saving clause. In regard to the effect of a repealing statute, it seems that the law is well settled, and that where the repeal is clear and absolute, the effects are of a very sweeping character. (Sedgwick on Statutory and Constitutional Law, 129.) So, also, to like effect are the words of Tindal, C. J., quoted in Sedgwick, 129 : ‘ ‘ The effect of a repealing statute I take to be to obliterate the statute repealed as completely from the records of parliament as if it had never passed, and that it must be considered as a law that never existed, except for the purpose of those actions or suits which were commenced, prosecuted and concluded while it was an existing law.” Upon this principle, the repeal of a' statute puts an end to all prosecutions under the statute repealed, and to ail proceedings growing out of it, pending at the time of the repeal. (Sedg. on Stat. and Const. Law, 130; 35 Maine, 345.) Such being the case, the repeal of the first section of the act of February 11th, 1865, by the act of February 26th, 1867, operated to put an end to the validity of said first section, and to put an end to and obliterate all acts done under and by virtue of said repealed section, which were pending and not concluded at the time the repealing statute went into effect, to wit, on the 27th day of May, 1867; and we think that it was the intention of tiie legislature that this repeal of the first section of the act of 1865 should so, operate; otherwise, they would have incorporated a saving clause into the act of 1867 — and their failure to do this furnishes very satisfactory evidence of their intentions.
But it is claimed that the first subdivision of § 1, ch. 188, Comp. L., 1862, has changed the rule of construction to which we have referred. It is there provided “that the repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any .right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed.”
The term £ £ proceeding,” as used in this portion of the statute, is the only one therein contained, which can, by any possibility, be held to apply to the elections involved in this case. .Does it so apply — or, in other words, were the acts and doings begun and carried. forward to the time of the ordering of the second election as shown by the record, proceedings within the meaning of the statute ? We think not. The term “proceeding” is a technical one, and has acquired a peculiar and appropriate meaning in law. In its general sense, in law parlance, it means all the steps or measures adopted in the prosecution or defense of an action. 2 Seld., 819.
The definition given by Burrell is to a similar effect— that it includes the steps or measures taken in the course of an action, including all that are taken.
Bouvier defines the word proceeding, thus: “ In its general acceptation, it means the form in which actions are to be brought and defended, the manner of intervening in suits, of conducting them, the mode of de ciding them, of opposing judgments and executing them.”
He then goes on to speak of proceedings as ordinary, summary, and special; but it will be observed that he confines the term wholly to matters connected with, and growing out of judicial matters.
There are other authorities going to the same point; blit these are perhaps sufficient.
This word being, then, a technical term, as before stated, must be held and construed according to the peculiar and appropriate meaning which it has acquired in law. And this follows, not only from the decisions of the courts, and the authority of standard writers, but it is in accordance with the rule of construction adopted by the legislature of this state. See subdivision 2, §1, chap. 188, Comp. L. 1862, last clause, which reads as follows: “But technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, shall be construed according to such peculiar and appropriate meaning.”
We are therefore of the opinion that the first conclusion of law found by the coart was correct, and that the correctness of the second conclusion of law necessarily follows.
The judgment of the district court is affirmed.
All the justices concurring. | [
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By the Court,
Safford, J.
In this case there has, as yet, been no final trial and judgment, but it stands for hearing upon an order of reference, made by the court below upon motion of defendant, Challiss, and, as it is claimed, in pursuance of article 4, chapter 2, title 9, of the civil code. The plaintiff, here and below, objected to such reference, and now seeks to have this court vacate the order making it. We are of the opinion that this order, even if it were erroneous, is not a matter for review, at least until a final judgment has been reached in this case. It does not come within the definition of a final order, as laid down in section 524 of the code. It may be an order affecting a substantial right of the plaintiff, but it most certainly does not determine his action, or prevent a judgment. Nor is it an order made in a special proceeding, or upon a summary application after judgment.
Neither is it an order involving the merits of the action, or any part thereof, as we understand the meaning of the phrase,, or as it is used in the laws of 1865, page 130. All that is intended to be accomplished by such an order, is the finding of the issues of fact alone, or those of fact and of law, of the case in which it is made, and a submission thereof to the court, in the form of a report, subject, however, to exception and review. Such report, then, stands as the verdict of a jury, if the reference is to report the facts; or as the decision of the court,, if tire reference is as to all the issues. And upon it judgment may be entered, if no good ground of objection appear. § 294, Code Civ. Proc.
Thus the order of reference in this case did not affect the merits, as between the parties, but only provided "for an examination and report upon the issues, by a referee, instead of a court and jury. The conduct of the trial is not changed. See § 294, before referred to.
This order, then, being neither a final order nor one involving the merits of the action, nor any part thereof, we know of no provision of the code which authorizes us to review it, as in this proceeding it is sought to be done. This view also renders it unnecessary to notice several points made by counsel, as growing out of, or suggested by, the order of reference.
It is also claimed that the court below erred in overruling a motion made by plaintiff to strike out a large portion of the defendants’ answer, upon the ground that such portion was irrelevant and redundant, and constituted no defense to plaintiff’s cause of action.
Taking it for granted that the order refusing to strike out comes within the meaning of the provisions of the laws of 1865, p. 130, referred to, and that such an order may therefore be brought here for review, as the plaintiff has now done, we proceed to inquire whether it was, in fact, erroneous.
It seems that the issues in this case were made up by the filing of the pleadings, as follows :
Petition filed Aug. 29, 1866; answer of Charles K. Hamilton, one of the defendants, filed on the same day ; answer of Luther C. Challiss, the other defendant, filed on the 23d of December, 1866 ; reply of plaintiff filed on the 22d day of January, 1867.
The case thus made was then continued from time to time, until the 11th day of November, 1867, whin the plaintiff made his motion to strike out, as follows, to wit: Plaintiff moves to strike from answer of defend anfc Challiss’s defenses, numbered fifth to fifteenth inclusive, on the following grounds :
1. That the matter contained in said defenses is redundant and irrelevant.
2. That the matter contained in said defenses does not constitute a legal or equitable defense to plaintiff’s cause of action.
The code, § 128, gives the court power to strike out of any pleading, redundant and irrelevant matters, but not of its own motion. If done at all, it must be at the instance of the party who might be prejudiced thereby; and such party should make his motion at the proper time, or he will be deemed to have waived his right so to do. For instance, if the matter objected to as irrelevant or redundant, be in the answer, as in this case, the plaintiff must be held to make his motion to strike out at the first opportunity. He cannot be permitted to file his reply, thus settling the issues in the case, so far as he is concerned, and afterwards, without withdrawing his reply, and for the first time, make his objection.
If he were allowed so to do, much confusion, as well as great and unnecessary inconvenience to the defendant, might be the result, by putting it out of his power to know what portion of his plea would stand until the trial was actually entered upon; all of which might be avoided by the plaintiff’s prompt objection. It may be said that it is through the fault of the party in whose pleading the objectionable matter is to be found, if uncertainty as to the issues, or other inconveniences arise thereby, after parties have their case prepared, and just as they are going to trial. This is, perhaps, true, but furnishes no great reason or excuse for laches in the other party.
The second paragraph of the plaintiff’s motion is, as we think, unauthorized by the code, and even if true, affords no ground or reason for the result sought. However else an objection of this kind could betaken advantage of, it certainly cannot be by a motion to strike out.
Entertaining these views, we do not feel authorized to disturb the ruling complained of.
Bailey, J., concurring.
Kingman, C. J., not sitting in this case. | [
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By the Court,
Safford, J.
The facts of the case are as follows : On the 4th day of June, 1856, Amos Rees sold to Elijah S. Wilhite the interest which he claimed to have become possessed of, in and to lots one and two, in block six, in South Leavenworth, Kansas, for the sum of five hundred dollars, payable in five and ten months thereafter. Rees gave to Wilhite his bond, and therein covenanted to make to Wilhite a warranty deed for the lots as soon as the title should be procured by the South Leavenworth Town Association, or by himself. The lots cov ered by Rees’ s bond were a part of what was known as the Delaware trust lands.
Wilhite afterwards, to wit, oh the 3d day of November, 1858, sold the same property to Isaac Young, for the sum of three thousand five hundred dollars, to be paid as follows: one hundred and fifty dollars in hand, eight hundred and fifty dollars in six months, fifteen hundred dollars, in lumber, within eight months, and one thousand dollars in twelve months from the date of sale. Wilhite at the same time gave his bond to Young, and bound himself to cause to be made and delivered to Young, a warranty deed to the lots, free and clear of all incumbrances, when the payments should be made, as above stated.
For the one thousand dollars to be paid in twelve months, Young gave his note to Wilhite, or order, which was dated November 3d, 1858. On the 16th day of February, 1859, Wilhite, by his indorsement on said note, sold and transferred the same to William N. Stone,, the plaintiff herein. He also at the same time made and delivered to Stone his quitclaim deed to the premises above mentioned. On the 25th of November, 1859, plaintiff commenced his action against, the defendants, setting up substantially the foregoing facts, and demanding judgment against Young, that he pay the amount of the one thousand dollar note, with interest, or that he be barred and foreclosed of, all right or claim in the premises described in the bonds of Rees to Wilhite, and Wilhite to Young, arid against Rees ; that in default of Young to pay the one thousand dollars, and interest, and upon the payment by plaintiff to Rees of the sum of five hundred dollars, with interest, alleged to be due on the contract of Rees to and with Wilhite, he, the said Rees, should make, execute and deliver to the plaintiff a good deed of warranty, in fee simple, of said premises.
The defendants filed a demurrer to the plaintiff’s petition, on the ground that it did not state grounds sufficient to constitute a cause of action against the defendants, which demurrer was .sustained by the court. To reverse this judgment upon the demurrer, the plaintiff brings the case here.
It will be seen, upon examination, that by the terms of the bond given by Rees to Wilhite,' Rees was tó make a warranty deed for the lots, so soon as the title should be procured by the South Leavenworth Town Association, or by himself. The petition does not aver that either ever acquired any. title to the lots; hence it does, not show that Wilhite, or his successor in interest, had a right to demand of Rees the deed mentioned in his bond to Wilhite; and the making of this deed being all the relief asked as against Rees, the petition is most certainly bad as to him. In this connection it may be remarked that the plaintiff1 does not have, or pretend to have, any claim against Rees, otherwise than that a deed was to come from him, through Wilhite, to the said plaintiff, and by virtue of the bond of Sees given to Wilhite.
So far, then, as Rees was concerned, the court did not err in sustaining the demurrer, for the reasons named. But how is it in regard to Young ? The plaintiff having set up all the facts in his petition, must be held to rely upon and be bound by the case made by them. Now, the petition shows that Young was to have a good title to the land, on payment as stipulated in the bond, free and clear from all incumbrances. It also shows that at the time suit was brought, the consideration of the bond from Rees to Wilhite had not been paid, and that plaintiff considered it a lien upon the lots. It ■ further shows that neither Wilhite nor his successor in interest in the note sued upon, was in a condition or had the power to make, or cause to be made to Young, such a deed as was contemplated by Wilhite’s bond. Such being the case, as by the plaintiff’ s own showing appears, ought he to be allowed to prosecute his suit, without at least putting himself in a condition to execute or cause to be executed, the obligation of Wilhite’s bond ?
But other considerations will dispose of the whole case. When the bond was given by Bees to Wilhite, the title to the land therein described was held by the government of the United States in trust, for the Delaware tribe of Indians. Of this fact there seems to be no dispute, as indeed there could not be, since it is notorious that the city of Leavenworth and additions were laid out on the Delaware Indian trust lands ; noils it doubted that the court below was cognizant thereof, and took such fact into account in deciding upon the demurrer.
It has been adjudged, and upon high authority, that any contract made in regard to the sale of such lands, while thus held in trust, is void, and that neither party can enforce it at law or in equity. It follows, therefore, that Wilhite acquired no right in the ju-emises by virtue of Bees’s bond, and, having acquired nothing, he had no interest to sell to Young. The note, then, given by Young in part payment for the land, (and this is alleged in the petition,) was without consideration.
This would, of course, be a good defense to the note as against the payee ; nor could the maker be deprived of it by the assignment of the note to a third party, as the law stood at the time the note here mentioned was executed. Laws of 1855, ¶. 156, §§ 3, 4.
Entertaining these views, we are not disposed to interfere with the judgment of the court below upon the demurrer.
All the justices concurring. | [
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By the Court,
Safford, J.
The foregoing testimony comprises all that was before the court touching the matter of the statement sought to be introduced. The defendant objected to the said statement being received in evidence, and the court rejected it, to which ruling the defendant excepted. We think that the court was right, admitting for the sake of argument, that the book in which the statement was to be found was of the class of public writings which are denominated, in law, official registers. It follows that, if produced, it would have been good evidence, and any official statement therein contained might have been read; but in the absence of the book itself, the contents might have been proved by an immediate copy, duly verified. See 1 Gfreenleaf Ev., §484, where this language is held: “In short, the rule may be considered settled, that every document which there would be an inconvenience in removing, and which a party has a right to inspect, may be proved by a duly authenticated copybut such copy must be an examined copy, duly made, and sworn to by a competent witness.
• The document offered in evidence, hy the plaintiff in this case, was not such as would come within the meaning of the descriptions here used, nor would the testimony of the witness help the matter materially, since he seems to be so uncertain about the copy being a true one. His statement is that he made it, and that it was a copy from the books of the Wyandotte Indian Council, or was intended as such, as near as I can remember. We think that such testimony is much too uncertain to amount to an authentication of the copy within the meaning of the law. But it may be observed that the statement bearing upon its face the proof that it is an incorrect one — and if incorrect in one particular, may it not be in others ? — but whether the fault is in the book from which it purports to be taken, or elsewhere, does not appear, but it is claimed that the document should have been admitted in evidence without other authentication than that made by the certificate of the clerk. This cannot be true. If the book in which the statement was entered was a public document, the evidence shows that the clerk was not the custodian of it. Nor does the testimony show that he was a public officer. He himself states that the books were generally in the hands of the council, and there is nothing shown to the contrary. The council, then, were the keepers of the books, .and if the copy could be authenticated in the way claimed, such authentication' must come from them. It is further claimed that even if the document or copy in question were rejected, there was still sufficient evidence to justify a recovery, and judgment in favor of the plaintiff.
We cannot consider this question, inasmuch as all of the evidence before the court below is not here; at least, the record does not purport to present it.
Other points are presented in the "briefs, hut we do not deem it necessary to discuss them, and especially since they could not operate in any such manner as to change the result.
The judgment of the district court affirmed.
All the justices concurring. | [
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By the Court,
Safford, J.
The only question which is urged for our consideration in this case, arises upon the refusal of the district court to submit any of the various issues, of whatever kind or nature, as made up by the pleadings, to the. judgment and decision of a jury, according to the request and demand of the plaintiff in error, who was one of the defendants below.
Such, refusal of the district court is claimed to have "been erroneous, and prejudicial to the rights of the parties defendant, and especially so to the rights of the plaintiff here. We think that this point is well taken; and when considered in the light of the provisions of the code "bearing upon it, is seemingly so clear as to hardly admit of question, or require argument to establish it. Sec. 274 of the code provides as follows: “That issues of law must be tried by the court, unless referred, as provided in § 292. Issues of fact arising in an action for the x’ecovery of moxxey, or of specific, real or personal property, shall be tried by a jury, unless a jury is waived or a reference be ordered, as hereinafter provided.” Secs. 269, 270, 271, and 272, treat of the issues arising in actions upon the pleadings, and, among other things, afford a definition of the two kinds of issues which may thus arise, to wit: issues of law and of fact.
Now, applying the definition here given of an issue of fact to the pleadings in this case, whatever may appear in the nature of an issue of law, there can cei'tainly be no question as to the existence of more than one issue of fact; and such issues of fact ought, as we have seen (§274, Code; 10 O. Si., 437), to have been tried by jury, if the action was for the recovery of money or of specific, real or personal property, and a jury was not waived or a reference ordered.
Whatever else might have been the object of this suit, in this instance its primary object was the recovery of a judgment for money; and secondarily, in case of such recovery, the determination of the prioi-ity of liens upon and the subjection of certain property to sale for the payment of such judgment.
The record shows that no waiver of a jury was made, but, on the contrary, that such jury was demanded, and that no reference was asked for .or ordered. All these several matters, as well as those to which we have before referred, appearing in the record, we think, as before stated, that the district court erred in refusing the demand for a jury trial, and that the judgment in this case should, for that reason, be reversed.
It is accordingly so ordered, and the cause remanded for further proceedings.
Bailey, J., concurring. | [
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By the Court,
Safford, J.
The same questions which have just been decided by this court in the case of G-uittard Township r>. the Board of County Commissioners of Marshall County, are presented in the record now before us. We have carefully considered the argument of counsel as opposed to the conclusions reached in that case, and see no good reason to change them. Referring, therefore, to the reasoning as there given, we hold in this case, that the deeds taken by Marshall county for the lands sold for taxes, as set out in the record, were unauthorized by law, and are, therefore, void and of no effect.
Such deeds cannot, therefore, interfere or operate to prevent the respondent from assigning the certificates in question to the relator herein, according to his demand upon him, as shown by the record. The question then presents itself: Is he excused from so assigning said certificates by reason of his having delivered them to the county clerk, in behalf of the county, and causing the deeds to be issued thereon by said clerk % We think not. He was and is the custodian of the certificates, under the law, and if he has parted with them for the purpose named, or in any other way than by assignment to some person entitled to receive them, he has done that which he had no authority to do, and should be required to possess himself of them again. We hold this the more readily, because the respondent may easily recover possession of the tax certificates, as they are, without doubt, in the care and custody of the county clerk. But it is said that the respondent delivered said certificates to the county clerk, under the orders of the county board, and that such fact should excuse him. This cannot be held to be the law.
Their direction to him to do an act unauthorized by law would not help him at all. The law itself must be his guide in reference to matters of this kind, and not. the county board.
It appearing, therefore, that the relator, in making his demand for the assignment of the tax certificates described in the record, upon the respondent, has brought himself withiu the provisions of law regulating such assignment to individuals when such tax certificates' have been issued to the county; and no sufficient reason having been given why the respondent, as treasurer of Marshall county, should not be required to make such assignment to the said relator, it is, therefore, ordered that a writ of mandamus be issued from this court requiring the said respondent to assign and deliver to the relator the tax certificates mentioned and described in his petition herein, and in accordance with the prayer in said petition contained.
All the justices concurring. | [
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Per Curiam,
Bailey, J.
On the 4th day of July, 1866, one Lipman Meyer, a non-resident of Kansas, engaged in freighting, was insolvent, and indebted to both plaintiffs and defendant, and to various -other parties, in large sums of money.
His only visible or available property seems to have consisted of a train of oxen and wagons, which, on that day, were near the line dividing the counties of Douglas and Shawnee.
Carney & Stevens and Dreyfoos & Dreyfoos commenced this action against Meyer, and sued out orders of attachment for the property, in the county of Douglas, causing the order of attachment to be directed to the sheriff of Shawnee county as well.
Taylor commenced his action in Shawnee county, and procured an order of attachment also. The sheriff of Shawnee county attached the property of Meyer on the 6th of July, at the suit of Carney & Stevens and Dreyfoos & Dreyfoos, on the order issued to him from the district court of Douglas county ; and on the 7th of July, the next day, be attached the same property at the suit of Taylor.
The property was appraised and sold as perishable, and the controversy is as to which party has the right to the proceeds in the hands of the sheriff.
Taylor filed, his petition in the district court of Shawnee county, setting up the facts on which he relies; and Carney & Stevens and Dreyfoos & Dreyfoos filed a demurrer to the petition, which demurrer was overruled by the court, thus sustaining Taylor’s claim. To revise this order, Carney & Stevens and Dreyfoos & Dreyfoos bring the case.to this court.
The demurrer admits the truth of all the facts in Taylor’s petition, which are well pleaded; and it is therefore admitted as a fact that at the time suit was commenced in Douglas county against Meyer, said Meyer had neither property in the county nor debts due him, nor was he to be found there himself. But the statute governing the case (§ 59 of the code, Oom/p. L., 133) provides that an action against a non-resident may be brought in any county in which there may be property of or debts owing to said defendant, or where said defendant may be found.
In strict compliance with this provision, Taylor commenced his action in Shawnee county, where the property was found, and attached July 7th; while Carney and others commenced their action in Douglas, where neither the property nor the defendant was found, or to be found, until, as alleged in the petition demurred to, he was procured to come into the county for the express purpose of being served with process, on the 12th day of July, eight days after the commencement of the suit against him in that county, and five days after the property had been attached in Taylor’s suit, by order of the district court of Sbawuee county, which unquestionably had jurisdiction.
It seems clear upon principle that where the existance of certain facts is necessary to give the court jurisdiction, such facts must exist at or before the time such jurisdiction was assumed or exercised.
In this case the district court of Douglas county assumed jurisdiction, and exercised it by attaching property in Shawnee county, six days before any of the jurisdictional facts are pretended to have existed. But it is claimed that the jurisdiction was inchoate at the time the order was issued, and became perfect and complete when the defendant, Meyer, was “found” in the county, and duly served.
We cannot see how the coming of Meyer into Douglas county could divest Taylor of the rights he had already acquired under a valid attachment in Shawnee county, whatever might have been the healing powers of Meyer’s advent — being found in Douglas. Had no rights of third parties intervened, we are clear that it ■could not operate to the prejudice of Taylor in the case found.
And these conclusions, which to us seem sufficiently clear upon principle, are fully supported by authority. See cases of Fuller et. al. v. Langford, 31 Ill. Repts., 248; Hindman v. Rushmore, 27 Ill. Repts., 509.
It is charged by counsel for defendant in error, that the procuring of Meyer to come to Douglas county for the purpose of being served with process, was an act of fraud on the part of plaintiffs in error. We do hot think so. On the contrary, it was a legitimate act of diligence, which might have resulted in securing their claim, had not the rights of other parties intervened.
The judgment of the court below is affirmed.
All the justices concurring. | [
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By the Qourb,
Safford, J.
This was an action brought by the defendants in error against the plaintiffs in error, on a note and mortgage. Thepetition alleged the execution of the note by William F. Gaylord, and that in order to secure the payment thereof, the said William F. Gaylord, together with all of the other defendants, duly executed and delivered to said Stebbins and Porter their certain deed of mortgage of certain real estate described therein, which said deed of mortgage had a condition thereunder written, to wit: “That if the said William F. Gay-lord should pay the said promissory note according to the terms thereof, then said deed to be void; otherwise to be and remain in full force and effect.” To this petition, defendant, William F. Gaylord, filed his separate answer, denying that the defendants ever conveyed or mortgaged the real estate in the plaintiffs’ petition described; and he also plead usury.
The defendants, William B. Fenn, Jane R. Gaylord .and Susan B. Gaylord, also filed an answer denying for themselves that they ever conveyed or mortgaged the said real estate, as described in plaintiffs’ petition, or any part thereof, or that they authorized it to be done, but alleging that they were jointly interested in said real estate as owners and tenants in common. They also set up a plea of usury. The answers were not sworn to.
To these answers of the defendants, the plaintiffs interposed a general' denial.
Upon the issues thus made up the parties submitted to a trial by the court, and without the intervention of a jury. The court held that inasmuch as the answers were not verified, the execution of both the note and mortgage was not put in issue by the pleadings, and that no evidence was necessary to be introduced by the plaintiffs to sustain the allegations of the petition in that respect. We think the court was right. It is true the defendants attempted, by their answers, to put in issue at least the execution of the mortgage, and if their answers had been verified, they would have done so. But failing in this, the execution of both note and mortgage was so far admitted as to render it unnecessary for the plaintiffs to offer evidence to prove such execution. Such is clearly the effect which § 1, ch. 30, p. 235, Comp. Laws of 1862, has and was intended to have upon pleas putting in issue the execution of written instruments.
In this case, therefore, the'plaintiffs were not bound to produce the mortgage on trial for the purpose of showing that it had been executed as alleged. Nor was the rule here referred to at all changed or affected by the fact that the mortgage purported to have been executed by one of the parties for himself, and by the same party, for the rest of the defendants, under a power of attorney. The plaintiffs were not bound, under the pleadings and under the law applicable to such cases, to produce, .on the trial, such power of attorney. Under these rulings of the court, the plaintiffs offered no testimony as to the points above referred to, but proceeded to offer the mortgage in question as evidence, to prove that the land, mentioned and de scribed in the petition, was the same as that described in the mortgage,, and then rested their-case.
The record shows that the defendants then asked leave to introduce certain powers of attorney, and to prove that the same were the powers of attorney under which the defendant, William F. Gaylord, executed said mortgage as attorney in fact for the other named defendants, and that he held no other authority to do so,' except as in said powers of attorney was given, for the purpose of showing that, in truth and in fact, the said mortgage was executed by said William F. Gaylord as attorney in fact of the other defendants, without authority so to do. But the court refused to allow such powers of attorney to be introduced as evidence, and refused to consider the same. Thereupon the defendants asked leave of the court to amend their answers in the case, by verifying the same by annexing the proper affidavits. This was refused by the court. And to both of the last-named rulings of the court the defendants duly excepted. We think that, under the circumstances of the case, as shown by the record, the court ought to have permitted the amendment. The powers of attorney under which the mortgage was executed, for and in behalf of the rest of the defendants, by William F. Gaylord, were exhibited to the court when the defendants offered to read them in evidence, for the purpose above stated, and as set out in the record. They show upon their face that the defendant, William F. Gaylord, had no.right or authority under them to execute the mortgage, as he assumed to do, and as a consequence such mortgage was not binding upon the défendants, other than’ himself.
It is clear, therefore, to our minds, that the allowance^ of the amendments asked to be made by the defendants, was calculated to promote justice between the parties, and that the powers of attorney should have been received in evidence and considered by the court.
‘ From what has been said, it will;¿be seen that we hold that a power of attorney which in terms authorizes a sale and conveyance'only, does not authorize the attorney to mortgage the property. And this proposition is, it seems, too plain to require argument.
By reference to one of the powers of attorney in this case, it will be seen that it purports to be[executed by a guardian of minor children. It is, perhaps, not material to this case, but as the question as to the power of the guardian so to do is raised in the argument, we may be allowed to dismiss it with the single remark that we think no such power exists under the law.
The judgment in this case is reversed, and the cause remanded, with instructions to grant the motion for a new trial.
All the justices concurring. | [
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By the Court,
Safford, J.
The relators made application to the city council of Wyandotte, that under and by virtue of the provisions of sec. 42, chap. 68, laws of* 1867, the said city council should proceed to order and direct a reassessment of certain taxes from which they, the relators, might be enabled to realize a large sum of money, which they claimed to be due to them from the city, for work done upon certain streets in said city. In their said application the relators set forth that a special tax had previously been levied to provide means for the payment of the money so due to them for said work, but owing to the illegal mode of procedure adopted for the levying, assessing and collecting of said tax, the same had failed of being collected, and that it never could be collected.
The provisions of the section relied on are as follows : In case any city council has attempted to levy or assess any taxes for improvements, or for the payment of any bonds or other evidences of debt that are or may have been informal, illegal or void, for the want of sufficient authority, or other cause, the councils of such cities, at the time fixed for levying general taxes, shall relevy and reassess any such taxes in the manner provided by this act, or shall bond such taxes and assessments, as herein provided for other city indebtedness.
The city council of Wyandotte refused the application of the relators to reassess the said tax, or to bond the amount due.
Taking it for granted that the showing of the relators, ih their application to the city council, was correct in all the statements therein contained, there was doubtless a proper case for the consideration of said council, under the provisions of the section above quoted, if such application was presented for their action thereon at the proper time. But it is shown that the petition or application of the relators was made and acted upon on the 7th day of January, A. D. 1868, while the provision of the section referred to is to the effect that such reassessment and relevy of an informal, illegal or void tax, as was asked for by the relators, must be ordered at the time fixed for levying general taxes.
It perhaps was well and proper enough for the relators to make their showing to the council at any time they chose to do so, but they could not reasonably expect it to be acted upon until the time for levying general taxes should arrive, and especially so if the council should direct a relevy of the tax. We cannot, therefore, say that because the city council of Wyandotte refused the request of the relators when presented and considered at an improper time, they would refuse a like application if made at a time when the law authorized them to act in the premises, and to relevy the tax or bond the amount, as they might think best for the city. We think the record does not present a case for our interference.
The same question here discussed was presented to and considered by this court in' the case of The State ex rel. Nathaniel Price v. The Board of State Canvassers. 3 Kans., 88.
Mandamus refused.
All the justices concurring. | [
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By the Court,
Kingman, C. J.
R. A. Edwards was indicted for murder in Shawnee county, and was granted a change of venue to Wabaunsee county. A special term of the district court was ordered in the latter county, for the trial of Edwards only; and all the expenses allowed in this case were incurred, necessarily, in and about the trial of said Edwards, and were paid lay the county of Wabaunsee, which seeks to recover them from the county of Shawnee. The bill, itemized, was presented to the county board of Shawnee county, which refused payment. On appeal to the district court, the amount was allowed by that court, and that judgment is brought to this court for review. All the steps necessary and proper to make the bill a charge, were taken, and the only question is, which county should bear the burthen % Section 311, criminal code, provides that the costs shall be paid by the county in which the offense is committed, in which the defendant shall be convicted, and shall be unable to pay them.
Section 317 of the criminal code provides “that in all cases not herein otherwise provided, the costs shall be paid by the county in which the offense is committed.”
The costs in this case are for the per diem, mileage and board of jurors, and the fees of bailiff necessarily in attendance upon them. These are not technically the costs in the case, as between plaintiff and defendant. Still, they constitute a charge that must be met and borne by some county, in the ordinary dispensation of justice; and it would seem .right and proper that each county should bear its own burthens; and when, in the administration of justice, such necessary charges are incurred, it does not change the burthen.
When the change of venue takes place, the county that is so fortunate as to get clear of the trouble of the investigation, does not thereby escape from the penalty of paying the costs. Had this trial taken place in Shawnee, the county, under the law, would have been liable for all the expenses of this kind, necessarily and legally incurred. There is no provision of law that throws this “burthen upon another county. Thus, while there is no absolute provision of the statute applicable to this case, that very silence "leaves the obligation to pay in the county where the offense was committed.
In ordinary cases, a jury- and bailiff are part and parcel of the necessary machinery for holding a court, and the trial of a causé in such a court, sent there by a change of venue, could not be so distinguished from the other expenses of the court as to enable the county to throw back the charge upon the county whence it originated.
But in this case there is no such difficulty. The court was called and held exclusively for the trial of Edwards. The expenses of his trial properly and legally belonged to Shawnee cou-nty. And the county of Wabaunsee having paid these expenses, it is right that Shawnee should reimburse her. This the judgment of the district court ordered to be done, and the judgment is affirmed.
All the justices concurring. | [
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By the Court,
Bailey, J.
This was an action for trespass, commenced before Alonzo Cottrell, J. P., by plaintiff in error, against defendant in error, to recover the value of three loads of wood, hauled from the land of the plaintiff in error,' by the defendant in error, claiming triple damages under the provisions of ch. 208 of the Comp. L. The action was commenced on the 28th day of December, 1866, and after several continuances, was tried by a jury, who found a verdict for the plaintiff. The defendant appealed, and the cause was again tried at the April term of the district court of Marshall county, 1867, and judgment rendered for the defendant.
The plaintiff in error, who was also the plaintiff below, now brings the case to this court to procure a reversal of the last mentioned judgment.
It appears from the bill of exceptions that the defendant, Downey, and one Abraham Gfossuck, were the former owners of the land on which the alleged trespass was committed, and that Gf-ossuck and wife conveyed all their interest in the land to (Jaloni Walworth, .by deed dated February 10th, 1865, and that subsequently, on the 28th of August, 1865, defendant, Downey, conveyed all his interest in said land to Walworth, without any reservation whatever, and that said Walworth conveyed the land to plaintiff by deed of warranty, without reservation.
On the trial, the defendant filed no answer to plaintiff’s petition on appeal, but offered himself as a witness to prove, with others, that there was a parol reservation of the dead and down timber, in the deed from Downey to Walworth, and also in the deed from Walworth to plaintiff, Cockrill. Objectión was made to this evidence, but the objection was overruled by the court, and the evidence admitted. We think the court erred in admitting the evidence. The policy of our laws, as evinced by the whole tenor of legislation as to registration of deeds and the like, is to make titles to real estate depend upon the written deeds of the parties, leaving the smallest possible margin for parol contracts, understandings and reservations.
A deed of land must be, we think, deemed to involve all timber standing or growing on it, unless specially excepted. As to trees standing and growing in the soil, we apprehend that no question would be made ; but a tree may be standing and not growing, or growing in a horizontal position, not standing.
Must the law apply a different rule in each case % Suppose the case of trees prostrated by a tornado, but with roots still adhering to the soil; shall they pass by the deed, or be reserved by parol ? Obviously, such trees must be considered as part of the realty, and we think that there can be no safer general rule, than that founded on the old maxim, “Cicjus est solum ejus est usgue ad cceVmif which may perhaps be liberally translated, “The owner of the soil owns from the center of the earth up to the sky.” Various qualifications and limitations have been established as to fixtures, emblements, and the like; but we find no judicial warrant or authority for the claims of the defendant in this case.
The judgment must be reversed, and the case remanded for a new trial.
All the justices concurring. | [
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By the Oov/rt,
Safford, J.
The plaintiff, here and below, brought Ms action in the district court, declaring upon the following writing, to wit: >
‘£Proceedings had in Fourth Judicial District Court, Bourbon county, Kansas, in vacation: P. A. Miflin against R. N. Foot — debt on note. Now, at this day, and in vacation of the district court, comes the said P. A. Miflin, by iiis attorney, O. P. Bullock, as well .as the said defendant, R. N. Foot, in his own proper person ; whereupon the said defendant, voluntarily, and of his own free will, confesses judgment to the said plaintiff, in the sum of one hundred and thirty-one dollars and seventy-one cents for debt, and twenty-four dollars and thirty cents damages, by way of interest, which confession is based on the attached note ; therefore, it is considered by me, David R. Cobb, clerk of the district court in and-for Bourbon county, in the State of Kansas, that the said plaintiff recover against the said defendant the sum of one hundred and fifty-six dollars and one cent, so confessed as aforesaid, together with costs ; and that said plaintiff have hereof Ms writ of execution. And it is agreed, by the parties hereto, that no execution shall issue until after sixty days after the next term of the said district court.
“ [l. s.] ' David R. Cobb,
“ Clerk District Court of Bourbon County.
“April 11, 1861.”
COPY OE NOTE.
“ $131,71. One day after date, I promise to pay P. A. Miflin one hundred and thirty-one dollars and seventy-one cents, for value received of him, as witness my hand and seal, this 2d day of May, 1859.
“R. N. Foot.”
The petition was filed Jan. 11th, 1867, and contained two counts — the first claiming to recover upon the writing above set forth, as upon a judgment, and the second claiming to recover upon it as upon a contract or renewal of the original note.
The defendant, James Stalker, administrator of R. N. Foot, deceased, (Foot died December 1st, 1862, and Stalker was appointed his administrator Nov. 30th, 1864,) filed his demurrer to plaintiff’s petition, setting forth:
1. That said petition does not state facts sufficient to constitute a cause of action against the defendant.
2. That it appears on the face of said petition, in each cause of action therein stated, that the cause of action did not arise within three years before the commencement of this action.
The demurrer was sustained by the court, and plaintiff brings the case here for review. Two questions are presented, the determination of which disposes of the case.
And first: Is the writing set out above, a judgment, and such as would be binding upon Foot, if he was living, or upon Ms representatives, now.that he is deceased ? The writing shows, upon its.face, that it was rendered as a judgment by the clerk of the court in vacation. Had he any power so to do, under the statute? The sections bearing upon this question, are as follows:
“Sec. 387. Any person indebted, or against whom a cause of action exists, may personally appear, in a court of competent jurisdiction, and with the assent of the creditor or person having such cause of action, confess judgment therefor, whereupon judgment shall be entered accordingly.
■ “Sec. 388. Judgments may be entered upon confession, by an attorney authorized for that purpose, by a warrant of attorney, acknowledged or proved as conveyances of land, without any previous process or proceeding ; and judgments so entered shall be a lien from the date of entry.
“ Sec. 389. Such judgments may be entered by the clerk at any time, and execution shall issue thereon in the same manner as judgments rendered in open court.
“Sec.-390. The debt, or cause of action, shall be briefly stated in the judgment, or in writing, to be filed as pleadings in other actions.
“ Sec. 391. Such judgment shall authorize the same proceedings for its enforcement as judgments rendered in actions regularly brought and prosecuted, and the confession shall operate as a release of errors.”
If any such power is here conferred upon the clerk as would authorize him to “render judgment” in a case of this kind, we are unable to discover it.
Section 387 prescribes • a rule for one class of cases, when the debtor may personally appear in court and confess judgment. In such cases the only reasonable conclusion to be arrived at is, that the judgment is to be rendered by the court, and all that the clerk has, or can have to do with it, is to enter it. § 389.
It would be a proposition too absurd to be entitled to any consideration, to hold that the legislature in one section provides that debtors may appear in court and confess judgment, and in almost the same breath provides that the clerk might, at any time, that is, either in court or in vacation, render a like judgment. The clerk, then, who rendered what the plaintiff terms a judgment in this case, transcended his authority, and what purports to be a judgment is a nullity, and of no force whatever as such.
The other question presented in this case is : Has the writing, which we have said is invalid as a judgment, any force as an agreement or contract, such as would operate to renew the note originally given by Foot to Miflin ? In other words, did it constitute a new promise to pay, upon which suit could be maintained ? We think not. The law says: “In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing 'liability, debt or claim, or any promise to pay the same, shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.”
Now, this writing was not made or signed by R. N. Foot, nor does it purport to be, nor was it so signed by any one for him. How, then, can it be said to be binding on him, or his representatives, under the law just quoted ? The truth is, all that can be claimed for the plaintiff in this whole .proceeding is, that Foot made a verbal acknowledgment before David R. Cobb that he was indebted to plaintiff, on the original note, to the amount of $156.03; but such acknowledgment, mot being in writing, or signed by the party to be charged, was insufficient to take the debt out of the statute of limitations.
It would be useless to -follow the argument of counsel iu this case further, as our conclusions upon the two main questions are decisive, as before remarked. We think the district court was right upon this demurrer.
All the justices concurring. | [
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By the Court,
Bailey, J.
In this case the parties litigant were their own best witnesses. Each party swore distinctly and circumstantially to a state of facts denied by the other. The case of the plaintiff below, now defendant in error, rested almost entirely upon his own individual testimony, expressly contradicted, in almost every important particular, by that of the plaintiff in error, and in one or two points by other disinterested witnesses ; as, for instance, by the witness, Cutts, as to the payment of $100 by Klopp to Mm on Jill’s account.
I am exceedingly reluctant to dissent from the learned Chief Justice on a question of evidence, but think that on the trial of this cause in the court below, the court erred in excluding the testimony of John Raiser against the objections of the defendant’s counsel. I think the evidence offered and excluded was relevant and ma terial. The defendant (plaintiff in error) offered to prove by the witness that about the time the plaintiff, Jill, took the job to plaster the second story of defendant’s (Klopp’s) house, witness offered to do the work for defendant at the same rates per yard that Jill'had contracted the saloon at, and that defendant had agreed to let him do the job at that rate if Jill, the plaintiff, would not do it at the same rate per yard that he was doing the saloon for.
Jill sued Klopp as on quantum meruit, for so much money as he reasonably deserved to have for the work, or so much as his labor was worth. I think Kaiser’s testimony would have tended very strongly to show what such work was worth at the time, by showing what the defendant could have had it done for. It would also have tended to establish the contract alleged by Klopp to have been made, by corroborating Klopp’s testimony. It was legitimate, because there was evidence that the attention of plaintiff below was called to such an offer, at the time of making the alleged contract.
I think, also, that the newly discovered evidence was such as to entitle defendant below to the new trial asked for and refused. That testimony (see Adolph Stockman’s affidavit) seenis to me to answer all the conditions laid down as to such evidence. 3 Graham & Waterman on New Trials, 1021, et seq.
1. It came to the knowledge of defendant (plaintiff in error) after the trial.
2. It was not owing to lack of diligence on the part of plaintiff in error that' the evidence was not discovered before the trial.
3. The' evidence was so material, that it would prob ably produce a different verdict if the new trial were . granted.
4. It is not cumulative within the rules, laid down defining cumulative evidence.
I deem it unnecessary to cite authorities except as to the last point; i. e., that the newly discovered evidence is not cumulative.
For a clear definition of cumulative evidence, Waller v. Graves (20 Conn. R., 303); Guizott v. Butts (4 Wend., 579).
The affidavit of Stockman, offered in support of the motion for a new trial, states that Jill admitted tp him (Stockman) in conversation that he was to plaster for the same price per yard that he did the saloon. Jill swore very differently on the trial.
The case seems to be exactly similar to that of Kane v. Barrus (2 Smede & Marshall, 313), cited in Graham & Waterman on new trials, where, in an action on a promissory note against the maker in favor of plaintiff’ s intestate, after verdict for plaintiff defendant produced the affidavit of witness that they had heard the intestate acknowledge the payment of nine hundred dollars on the note, and,- also, his own affidavit showing that the evidence had come to his knowledge since the trial, and that he had used due diligence to discover it. Held that the maker was- entitled to a new trial.
So also in Hardner v. Mitchel (6 Pick., 114), which was an action for a breach of warranty in the sale of oil; the evidence alleged to have been newly discovered was confessions of the plaintiff, and the question was whether it was new or only cumulative? The confession was that the oil was as good as he expected.
The court held this to be a new fact, not before in the case, and awarded a new trial. I am unable to perceive any essential point of difference between these cases and that of the newly discovered evidence of Adolph Stockman, as stated in his affidavit. I think the cause of justice will be likely to be subserved by a new trial,
Safeobd, J., concurring.
Kingman, C. J., dissenting. | [
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By the Court,
Kingman, C. J.
This proceeding in error is brought to reverse an order of the district court of Leavenworth county, refusing, on application for a temporary injunction, to restrain the defendant from carrying on or working at the business of a book binder in the city of Leavenworth, and especially upon Third street, in said city.
The defendant in error makes certain objections to the regularity of the proceedings taken to get the case into this court, which are not well taken. The order refusing the injunction was made in vacation, on the 2d day of August, 1866. The bill of exceptions was not filed till the 3d day of September thereafter, more than ten days after the order, refusing the injunction, was made. This would be fatal under section one of the laws of 1865 (p. 130), were it not waived by the defendant. This, we think, was done by the attorneys’ indorsement thereon, which is in these words:
“We consent to within bill of exceptions. Sept. 1, 1866. Clough & Wheat, attorneys for defendant.”
This indorsement, being made at the time the bill of exceptions was presented to the court, must be taken as their consent to the signing and filing the same, and to a waiver of any laches by not filing it in proper time. It may not have been so intended, but it would certainly be a fair inference that such was its purpose, and, as such, the plaintiff had a right to consider it.
It is further urged that a portion of the original papers are sent up, and not a transcript of papers. The clerk, however, certifies it to be a transcript, and as such, in the absence of any showing, we are bound to treat it. It is true that in the bill of exceptions the clerk is instructed to insert in one place the original papers. This was evidently done by the court below, inadvertently, and in the confidence reposed by it in a bill of exceptions to which both parties had given their consent.
The clerk’s office of the district court is the proper and legal depository of the records of that court, and there they should be kept. The law requires a transcript to be sent to this court, and it is not lawful or proper to send the original papers. But as appears by the record, whatever may be the real facts, this record is a transcript, and we must so treat it.
These conclusions upon the preliminary points, raised by the defendant in error, made it necessary to inquire into the case on its own merits.
The plaintiff, in the case which he made out in his application for a temporary injunction, shows that a contract was made between himself and defendant, on the 14th day of August, 1865, of which the following is a copy:
“Leavenworth, August 14, 1865.
“Messrs. Drake Bros, bought of S. Dodsworth 1 ruling machine, 1 standing press, 1 printing press, type, &c., 1 paging machine, 2 ploughs and cutters, 1 cutting machine, 1 finishing tool, &c., together with all the stock, fixtures and tools and machinery, of every description, now in or belonging to the Kansas Book Bindery, in Leavenworth City, Kansas, including, also, my right, title and good will to the above, which I declare to be entirely unincumbered; the whole for the sum of twenty-four hundred dollars, the receipt whereof is hereby acknowledged. S. Dodsworth.”
Plaintiff also alleges that defendant, prior to and at the time of making said writing, made a further agreement to refrain thereafter from carrying on or working at tlie business of a book binder in tlie city of Leavenworth. Plaintiff farther shows that defendant is now engaged in. such business of a boo^ binder in the samé place where he conducted the Kansas Book Bindery, to the detriment of the plaintiff; that defendant is insolvent, and therefore the injunction is sought to restrain defendant from carrying on said business in Leavenwortli, and especially on Third street, in said city. It appears from the papers that the agreement not to engage in the business of book binding in the city of Leavenworth, was a verbal one, and that that part of the contract is denied by the defendant.
It is not denied that if all parts of the contract are to be taken into consideration, and are to be taken as true, a temporary injunction should have been granted; but defendant in error, besides his denial of the truth of the verbal stipulations, insists that they cannot be received in evidence, as the parties had reduced their contract to writing, and had, thereby, merged all prior, contemporaneous stipulations and negotiations in reference to the same subject matter, in the written contract.
The conclusion we have come to on this, the controlling question of the case, renders it unnecessary to determine the proper weight to be given to the conflicting statements of the affidavits, for we should, for the purposes of this case, assume those presented by the plaintiff to be true; nor do we deem it necessary to indicate an opinion how far an agreement may be made, partly in parol and partly in writing ; for a careful examination of the authorities referred to in the briefs, and such others as are within our reach, satisfy us that this is not a case when such a decision is necessary.
Those cases that have gone the farthest in receiving parol testimony as to the terms of a contract, when it has been reduced to writing, or a part of it, expressly limit its admission to those cases when the parties themselves have not appointed a writing as evidence of that part of their contract, or when the parol agreement is in execution of some distinct and separate provision of the written one, not provided for in the latter.
In the case of Miller v. Fichthorn (31 Penn., 252), referred to by the plaintiff, the court say that the only questions tobe asked are: “Is the parol testimony excluded bylaw ? or is it excluded because the parties have appointed a writing as evidence of their contract % If the parties have instituted written evidence of only part of the transaction, not including the parts to be proved orally, then the evidence is entitled to be heard.” This is the doctrine of that case, and it certainly carries the principle as far as it can be done with safety, and perhaps farther. A writing should be looked upon as a final consummation of the .negotiations of the parties, and an exact expression of their purpose. All previous and contemporaneous talk is merged in the writing which is adopted for that purpose ; and if held subject to enlargement, or other alteration, according to testimony and the infirmities of men’s memories, influenced by their interests, it would be useless to reduce a contract to writing. It would, further, be pernicious ; for one party, relying on the writing as defining his rights and limiting his responsibilities, would look only to its terms, while the other, trusting to extend the terms of the written contract by testimony, would carefully treasure up the previous talk about it, while it was still a subject of negotiation, and, by keeping in mind those persons who heard the conversation, be able to prove much that was said, which, instead.of enabling the courts to enforce the contract really made, wonld be apt to induce them to make a contract for the parties which they never made for themselves.
In the case before us, the parties have not only reduced their contract to writing, but have included in its terms that very branch of it which- the plaintiff seeks to enlarge by parol testimony. The defendant not only sold the stock, fixtures, tools and machinery, but also the good will of the same. Now, this good will gave the plaintiff some rights, and to the exact extent of those rights the sale thereof was a restraint of the defendant’s right to use them.
The exact extent of those rights need not be inquired into here. It is sufficient for our purpose that it to some extent divested the defendant of his otherwise perfect liberty to carry on or work at the book bindery business in the city of Leavenworth, in any way'he pleased.
By the sale of the u good will,” he could not use the old name, and relinquished any benefit or advantage which might result from its previously established character; nor could he do any other act that wonld prevent his vendee from enjoying that good will, as well against himself as others, to the same extent and in the same way that the defendant had himself a previous right to the unmolested enjoyment of them. This written agreement, then, did, to a certain extent, limit and restrain the defendant in his rights to carry on his business of a book binder. And on the very liberal principles of the case of Miller v. Fichthorn, cited above, the parol testimony in this case was not admissible, because the parties have instituted a written agreement, embracing not only the contract of sale, but also a stipulation that to a certain extent restrains the defendant in the exercise of his otherwise undoubted rights. To enlarge that restraint by parol testimony, would be extending the right of varying a written contract by oral testimony, that would be really dangerous in itself, and going farther than any well considered case will authorize. Excluding, then, all evidence of a contract but the written one, we are satisfied that the case presented to the judge below did not authorize an order of temporary injunction in the case, and the decision of the case in this matter is affirmed.
All the justices concurring.' | [
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Per Curiam,
Safford, J.
This was an application for an order of injunction addressed to the district court of Wyandotte county. The relief sought to be obtained was, ¡among other things, the restraining of the defendant below from proceeding to enforce a certain judgment rendered by said district court, on the 10th day of April, A. D. 1883, in'a case wherein Thomas E. Tutt et al. were plaintiffs, and the said Wilkins T. Wheatley and one Thomas P, Thatcher were defendants, and which judgment was against the said defendants, and ordered the sale of certain attached property. The district court refused the injunction as prayed for by the plaintiff in error, and he therefore brings the order containing such refusal to this court for review. The principal grounds upon which the plaintiff based his application for an injunction, as above stated, and upon which other objections .rested, was the alleged fact that the said judgment had been rendered against the said Wheatley and Thatcher without actual notice to him, the said Wheatley, and without his ever having in any way been present at or cognizant of the trial therein, by himself or by attorney. But there is no allegation, either that the other defendant was not present at the trial, or that he had not employed attorneys to represent both defendants therein.
Having reference to the record of the said judgment, and the proceedings in the district-court preliminary to its rendition, we find that the * case was one in attachment begun and prosecuted in the ordinary way, and as pointed out by the statute. Property was attached, and the defendants were attempted to be Served by publication.
These proceedings, it is claimed, were insufficient, as being informal, and not in accordance with law in matters of substance. But we think that all questions of this sort are out of the case, 'inasmuch as we find, on looking further into the record, that there was an ,appearance of .attorneys for and in behalf of the defendants, from the time when such appearance was or could be required, until the final judgment was rendered in the cause, and even. thereafter, as appears by a bill of exceptions by them filed in the case.
Now, as'faefore stated, this plaintiff alleges that he was not present at the said trial; that he did not have notice of it, and that he did not employ or authorize any attorney to represent himself or his co-defendant therein; but he does not go farther than this, and, for all that he shows, the other defendant might have faoth faeen present at the trial and employed and authorized attorneys to appear for himself and this plaintiff, or he might have given authority to some.other person to so employ attorneys.
.It is not claimed but what it would have faeen competent for Thatcher to have so employed attorneys to defend the case for himself and Wheatley, and that if he did so, faoth of them would fae bound thereby. They had faeen partners in business together, were so at the time the. obligations on which suit was brought were executed, and such obligations were executed as partnership obligations. It is not to fae supposed that one of the partners could not bind the other in relation to the partnership business, and we repeat, that for all that appears, Thomas F. Thatcher ¿might have so bound his co-defendant in this case. We think, therefore, that the petition of the plaintiff in error, as presented to the district court, was fatally defective in the particulars referred to, and consequently that the refusal of the court below to grant the injunction on account of any matter or objection as connected with this judgment was well founded.
In his petition, the plaintiff complains of another judgment rendered against him fay the said district court upon a certain deed of trust, and alleges that there was no proper service upon him in the case in which such judgment was entered. But as he does not ask for any injunction to issue in regard to or in any wise, connected with such judgment, that whole matter may be passed over.
■ The jjlaintiff also alleges that the defendants, or some of them, have commenced other suits, having reference to the property involved in the two judgments before referred to, and asks that such defendants may be restrained from further prosecuting their said actions.
We think that he utterly fails to show that he is entitled to any such order, and beside, it is very doubtful if, in any such case, an injunction can issue at all. There are respectable authorities to that effect, but we will not attempt to examine them here, as upon the whole case presented by the plaintiff to the district court, it is clear, to our minds, that he was not entitled to any restraining order. He wholly fails to bring himself within the provisions of law as settled by our statutes, and the decisions upon the subject of injunctions.
The judgment of the district court is affirmed.
All the justices concurring. | [
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By the Court,
Safford, J.
Robert Graham, plaintiff in the court below, brought Ms action to recover the value of a certain five-hundred-dollar United States bond, of the description commonly known as “seven-thirties.” He alleged in his petition that the bond was of the value of five hundred and forty dollars ; that 'he was the owner thereof on the 11th day of June, 1866; and that Rice S. McCubbin,- the defendant, on the 20th day of June, 1866, wrongfully converted the same to his own use and benefit.
McCubbin interposed two defenses : first, a general denial; and second, a former recovery of the value of the said United States bond by the plaintiff, in the case of Robert Graham v. Augustus A. Fleming, tried in the district court of Atchison county at the June term, A. D. 1866. Said second defense was in these words: “And for defense number two, defendant says that the said United States bond referred to in said petition was paid to defendant by said plaintiff, and by said defendant received in the capacity of agent only, for one A. A. Fleming; that' said plaintiff paid and delivered the said bond to defendant as part payment for the purchase of certain real estate in- Atchison county, then owned by said Fleming, and for the sale of which said defendant was acting merely as agent for said Fleming — all of which was well known by said plaintiff. Defendant further says that he delivered the said bond to said Fleming, in pursuance of said agreement, and that said plaintiff afterwards brought an action in this court against the said Fleming for the recovery of damages for the refusal, on the part of said Fleming, to complete said sale, and execute a deed to plaintiff of said real estate, and among other damages he included and sued for the value of said bond, and recovered a judgment therefor against said Fleming.”
Graham replied, denying all of the allegations of the answer. Upon the issues thus joined, trial was had, and a verdict and judgment rendered in favor of plaintiff for the sum of five hundred and forty dollars and costs.
Defendant moved for a new trial, which was overruled, and he now brings the case here for review. Several' errors are alleged and set out by the bills of exceptions, among which are the following: It is claimed that the court erred, both in refusing certain instructions asked for by McCubbin, and in giving others to which he excepted, all of which are set out. The bills of exceptions do not state in so many words that they contain all the instructions asked for or given by the court to the jury upon the trial, of this cause, but, judging from the course of argument pursued by counsel in their briefs, as well as from the arrangement of the instructions in the record, we think that such must be the case. The following are the instructions asked for by McCubbin, and refused by the court:
“Instruction No. 1. — If the jury find, from the evidence, that the five-hundred-dollar United States bond, for which this suit is brought, is the same five hundred dollars by plaintiff alleged to have been paid to A. A. Fleming, as part payment for real estate known as Roberts’s addition to the city of Atchison, and which was set forth in his petition against said Fleming, then the said five-hundred-dollar bond is merged in the judgment, and they must find for the defendant.”
The issue to which this instruction was evidently intended to go, was fairly tendered in the pleadings.
The record also shows that the proceedings in the case of Graham v. Fleming were sufficiently before the jury in the case, to enable them to understand the basis of the defendant’s claim ; that the five-hundred-dollar bond sued for was the same five hundred dollars mentioned as having been paid to Fleming in that. case, and 'recovered for. It also shows that evidence was given tending to prove that the allegations of the defendant in this behalf were true. Besides, the law flying the measure of damages in cases of breach of contract for the sale of land on the part of the vendor, would seem/to- require that the amount of money actually paid on the contract, as well as the amount yet due, and tendered to be paid, should go into the computation, in order to ascertain the amount in which the vendor had been damaged by the breach. Adhering to this rule, the conclusion in this instruction would seem to follow the premises. (SedgwicJc 189, and cases there cited.) Such being the case, we think that the instruction was substantially correct, and applicable to the case presented by the pleadings and evidence.
“ Instruction No. 2. — If the jury find, from the evidence, thatR. S. McCubbin received said United States bond merely as the agent of said Fleming, for the use and benefit of said Fleming, disclosing his principal at the time, then McCubbin is not personally liable to plaintiff, and they mast find for the defendant.”
It is claimed jn the answer of McCubbin, and he offered evidence tending to prove that the United States bond was paid by plaintiff to defendant merely as agent for A. A. Fleming, and for his use and benefit, and for the purchase of certain real estate, to be conveyed by said Fleming to said plaintiff; and that said plaintiff had recovered judgment for three thousand dollars against said Fleming, for failing to convey the real estate which McCubbin, as his agent, had agreed should "be so conveyed. All this appears from the record before us, and we confess to inability to perceive any good reason why the court refused the instruction, under the circumstances. It was most certainly pertinent to the issue, and embodied a sound principle of law applicable to the evidence.
If McCubbin was acting merely as the agent of Fleming, and authorized to bind him in the transaction concerning the real estate, as he assumed to do, and-as the record shows he was held by the court and “jury, in the case of Graham v. Fleming, to have done, then the plaintiff had no-more'claim for anything done in that capacity of Fleming’s agent, and within the scope of his agency, as against McCubbin, than he would have against a stranger. As to McCubbin’s acts for and in behalf of Fleming, his agency being established, they were Fleming’s acts, for which he alone would be liable to plaintiff.
This was the rule of law asked to be given to the jury in behalf of defendant. It was error to deny it.
But it'is claimed that in the instructions given, the court went as far as the law would allow. We think not. The court said to the jury:
“Instruction No. 3. — If the jury find, from the evidence, that B. S. McCubbin received said U. S. bond with plaintiff’s knowledge and consent, merely as the agent of Fleming, and for his use and benefit, and paid said bond, or its equivalent, to Fleming, then he (McCubbin) is not liable to plaintiff.”
If all the other facts set out in this instruction were true, we think that the addition of the words “and paid said bond, or its equivalent, to Fleming,” were more than superfluous. They limited the proposition intended to be embodied in the instruction, to the injury of the defendant. . If McCubbin was .the agent of Fleming, he was liable to him alone, if he did not pay over the money belonging to Fleming, and most assuredly not to .the plaintiff.
But this instruction, and the one following it, were undoubtedly sound propositions; but, as applicable to this case, they would have been equally sound had the limitation spoken of, as to payment of the bond to .Fleming, been entirely omitted. So, also, with regard to instruction No. 7; the clause respecting the payment of the bond in good faith, by McCubbin to” Fleming, should have, been left out.
The bill of exceptions further shows that, evidence having been offered on the part of both plaintiff and defendant, to support their respective claims, and on the part of defendant tending to show that the plaintiff refused to accept the $,700 bond for which this suit was brought, and that he did not offer to receive it from, or demand it of, McCubbin, until after the close of the trial in the case of Graham v. Fleming, and after the jury had retired, thereupon the court instructed the jury as follows:
“Instruction No. 5. — If the jury find, from the evidence, that defendant received the bond mentioned in plaintiff’s petition, from plaintiff, as agent for one Fleming, and that after Fleming had refused to receive the same, defendant deposited the same in the bank, subject to the order of plaintiff,'and afterwards refused to deliver the same to plaintiff, on demand, whilst it was in his possession, the jury must find for the plaintiff.
“Instruction No. 6. — If the jury believe, from the evidence, that the bond sued for was paid to McCubbin, as agent for Fleming, and Fleming refused to accept the bond or money, and McCubbin notified Graham that Fleming had refused to receive it, and that he should hold it for Graham, or deposit it in the bank for Graham, and afterwards paid the same to Fleming without the consent of Graham, they ought to find for the plaintiff the value of the bond.”
To both of these instructions the defendant excepted, at the time.
We think that, under the circumstances, both of these instructions should have been refused. The case shows that at one time the bond was tendered back to Graham, but he refused to receive it, and brought his suit for damages on account of the failure of Fleming to carry out the sale made by McCubbin, as his agent. Having taken this course, and submitted his case to a jury, we think he was asking a great, deal of Fleming —or what was the same thing, of McCubbin, Fleming’s agent, as he (Graham) claimed — when he demanded the bond he had once refused to accept, and before Fleming could know the result of the suit against him. Besides, we do not think the conclusions of the court follow the premises, as laid down in these instructions.
As before remarked, Graham had refused the bond when tendered back to him, but afterwards, as it would seem, changed his mind, and demanded it. Fleming also at one time refused it; but after being subjected to the annoyance of a suit for damages, which had proceeded to trial, we do not see why he had not the right to change his mind and keep it, if he thought proper. But after all, if the plaintiff’s petition in the suit against Fleming was correct, and it was so adjudged, McCubbin was really his agent through this whole transaction, .and the agent’s refusal to deliver the bond was the refusal of his principal. Such refusal would give plaintiff no cause of action, as against Mm. It is, perhaps, proper to remark here, that a portion of instruction 5 bears the mark of inconsistency on its face, and that in the portion respecting the deposit, by McCubbin, of the bond in the bank, subject to the order of (Graham. If -that was ever done, how could he ever have withdrawn it, unless by consent of (Graham 1 Several other points are raised by the counsel, in the discussion of this case. But, as our views respecting the instructions are such as will necessitate our sending it back for a new trial, and as the points referred to might not have been material, even if well taken, had proper instructions been given to the jury, we shall not advert to it here.
The judgment of the district court in this case will be reversed, and the cause- sent back, with instructions to grant a new trial therein.
Bailey, J., concurring.
Kingman, C. J., not sitting in this case. | [
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By the Cowrt,
Safford, J.
This proceeding is brought to reverse an order of the district court of Wyandotte county, made Oct. 5th, 1803, confirming the sale of an undivided one-half of lot 5, in block 0, in the city of Wyandotte. Several objections are urged upon our notice by the plaintiff in error, in support of his right to such reversal, but we shall confine ourselves to the consideration of a single one, and that is as to the regularity of the proceedings had in the cause in which the said sale was made and confirmed, and previous to, and including such confirmation. Having reference to the record, which contains all of such proceedings, we find that the case below was one brought under the provisions of our attachment law. At the time of the commencement of the suit, the defendants were non-residents of the state, but as the record shows, they were present by counsel at the trial thereof.
Under and by virtue of the order of attachment issued in said cause, property of the defendants was seized, to wit: The property mentioned above — lot 5, in block 6, in the city of Wyandotte, as appears by the return of the sheriff of Wyandotte county, indorsed on said order of attachment.
Upon trial had between the parties, the court rendered judgment against the defendants for the sum of $1,483.00, debt and costs. And also ordered the sale of the attached property, which order is in these words : “And it is further ordered by the court, that an order of sale be issued, directed to the sheriff of the county of Wyandotte, commanding him to sell the property herein attached.” .
In pursuance of and in accordance with the terms of said judgment, and order of the district court, an order, of sale was duly issued to the sheriff of Wyandotte county, under and by virtue of which he proceeded to cause the said lot 5, in block 6, in the city of Wyandotte, to be appraised, as by law he was required to do, which appraisement was fixed at the sum of $5,000.00, and a copy thereof delivered to the clerk of said district court.
The said sheriff thereupon proceeded to advertise such lands and tenements for sale, at public auction, in the Wyandotte Commercial Gazette, a weekly paper published in said county of Wyandotte.
And after the same had been previously so advertised for more than thirty days, he offered for sale the undivided half of said property, and sold the said undivided one-half thereof, to the plaintiff in said action, and defendant here, for the sum of $1,667. Of all of his said proceedings, the said ■ sheriff made due return to the district court of Wyandotte county, and the said court confirmed the same, and ordered a deed to be made to the purchasers of the property so sold as aforesaid.
It will not be denied for a moment, that in cases of this kind, not only must the law be substantially complied with, but that all of the proceedings, and in each successive step, must he in harmony with each other, in respect to all matters of substance.
Nor will it be denied that in the issue of process like that issued in this case, the same must he in accordance with the direction and orders- of the court commanding it, and that the officer executing such process must proceed in accordance with its terms.
These propositions are too plain to require argument, and that the spirit of the law has not been complied with in this case, is equally plain, as it seems to .us. The proceedings áre not in harmony with each-other. The order of the court was to the effect that lot 5, in block 6, in the city of Wyandotte, should he sold in order to‘satisfy the claim of the plaintiffs in the case. That such is the fact, there can he no doubt, inasmuch as lot 5, in block 6, was the property “herein attached.” But such was not the description of the property actually appraised, advertised and sold.
But if it should he claimed that it was not necessary to sell all of said lot 5, in block 6, in order to satisfy the claim against it, we then ask, what authority had the sheriff to divide — or rather, not divide, and sell as he did or attempted to do % We are frank to say that we know of none, either in the statute or elsewhere. We think that the sheriff acted without the scope of his authority when he attempted, under the circumstances, to sell an undivided one-half of the property in question, and that it was error in the court to confirm such sale. The said order of confirmation is therefore reversed, and the cause remanded for further proceedings.
All the justices concurring. | [
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By the Court,
Bailey, J.
In this case, after the plaintiff in error had recovered judgment in the district court for Marshall county, on a note and mortgage, and the mortgaged premises had been sold by the sheriff, in satisfaction of the mortgage, the defendant'in error resisted the confirmation of the sale, and introduced affidavits impeaching the sheriff’s return, on the ground that S. H. Warren, one of the appraisers, who was stated in the return to be a disinterested householder, was not a householder, not being a married man or the head of a family.
The affidavits showed that Mr. Warren was not a married man, and had never been married, but that he was the owner of a two-story stone building in the town of Irving, in said county, one portion of which building he occupied as a store for the sale of goods, and resided in the other part with the family of a Mr. Free-land.
Upon this showing, the court held that Warren was not a householder, set aside the sale, ordered a new appraisal and sale of the land, and entered a judgment against the plaintiff for costs. The plaintiff excepted, and brings Ms petition in error for the reversal of-the order and judgment.
Upon these facts, two questions are presented for the consideration of this court, viz:
1. Did the court err in permitting defendant below to introduce evidence contradicting the sheriff’s return % and—
2. Did the court err in holding that Warren was not a householder ?
The sheriff’s return has been held in England, and in many, perhaps most, of the states of the Union, to be conclusive, except when it is impeached on the ground of fraud or collusion; but in Connecticut .it is held to be prima facie evidence only, of the facts stated therein.
In this state the provisions of the code (§ 449) in regard to sheriff’s return of writ of execution, in a case of this kind, makes it the duty of the court to examine carefully all the proceedings of the officer in making the sale, and when satisfied that the sale has in all respects been made in conformity to the provisions of the statute, to order conveyance to be made.
As the law makes it the duty of the court to make careful examination of papers, until satisfied of the entire regularity and legality of the proceedings, it would seem proper, in a case where irregularity was complained of, to examine affidavits in regard to it, especially when the alleged irregularity did not contradict the sheriff’s return, but rather to show a latent defect not inconsistent with the substantial truth of the return. But, however this may be, we are of opinion that the facts shown by affidavit in this case were not sufficient to invalidate the proceedings; because, we think that the mere fact shown by the affidavit — that S. H. Warren was not a married man — did not disqualify him from acting as an appraiser under the statute.
The evident purpose to be subserved by the statute provision requiring appraisers to- be householders, was to insure the requisite responsibility and sound judgment on the part of the appraisers, and to guard against the injustice which, might result if irresponsible persons, rather than substantial, resident citizens, were allowed to act in such a capacity. The affidavits in this case show affirmatively that Warren, although not a married man, nor the head of a family, was the owner of a good house, in which he lived; and we think he must be considered a householder within the meaning of the act in question.
Judgment reversed^
All the justices concurring. | [
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By the Court,
Bailey, J.
Betting on elections is utterly prohibited by the laws of this state. See 242 Crimes Act, Comp. Laws, p. 335.
It follows that all money placed in the hands of stakeholders is to be regarded as placed or deposited in his hands without consideration, to be repaid on demand to the person who deposited the same, or attached by any person having a valid claim, and showing cause of attachment against the depositor. It is a mere naked deposit, and by implication of law, it is deemed to have been deposited to the use of the depositors, respectively, and the share of each is subject to attachment for his debts at any time before it is actually paid over. Brahe on Attachment, sec. 520, Ball v. Gilbert & Trustee, 12 Metcalf, 397.
Whether the party making the bet, in this case, had money of his own, which he deposited, or borrowed it of a friend, is immaterial. If the money was loaned for the purpose of being staked or bet contrary to law and public policy, it was incumbent on the party loaning money for such illegal purpose, to take satisfactory security. If he neglected to do so, the courts cannot interfere for his protection.
Judgment affirmed.
All the justices concurring. | [
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By the Court,
Safford, J.
The record shows that the plaintiff, one of the townships in the county of Marshall, brought an action against the defendants, to recover from said Marshall county a certain sum of money, claimed to be due to said township from the county, on account of certain township and road taxes for the years 1860 to 1865, inclusive. It is also shown that the lands on which these taxes were claimed to be due were bid off for the county, at the tax sales of 1862 and 1863, and certificates of sale issued to the county therefor.
It is further shown that the lands so bid off were finally deeded to the county in 1864 and 1865, anci^hat the county has since sold a portion thereof, and received the proceeds into the treasury. This state of facts constituted the basis of the plaintiff’s action, it being alleged in that behalf that by reason of the deeding of the lands as stated, the county became and was liable for the various taxes referred to. To the petition of plaintiff, a demurrer was filed, setting forth that the petition did not state facts sufficient to constitute a cause of action, which was sustained by the court.
Plaintiff excepted, and now brings the order sustaining said demurrer to this court, for review.
The principal • question, then, which now presents itself, is, as to the right of Marshall county to receive the deeds to the lands sold for taxes, as she assumed to do. If such action was not authorized under the law, then the plaintiff’s whole case must fall to the ground.
Those sections of the law bearing upon the subject of the purchase of lands at tax sales, by counties, may be briefly stated, as follows: Section 42 (ch. 197, Comp. L., p. 867) provides that if any piece of land cannot be sold for the amount of the taxes, penalty, and charges thereon, it shall be bid,off by the county treasurer for the county, for such amount. Section 44, same chapter (which was in force at the time the lands .referred to in this case were bid off by Marshall county), requires the county treasurer to make a certificate of sale to the county, similar to that made to other purchasers at tax sales. And it further .provides that such certificates shall be assignable, and subject to purchase, by any person offering to pay therefor a sum equal to the cost of redemption, at any time.
Section 48 (Comp. L., 868), following, provides that theTands hid off for the county shall continue liable to be taxed as if they were in the hands of individuals, and this is to be done by charging up the taxes of each year thereon, and entering the same with penalty and charges, as in other cases, in the book of tax sales of the year in which such lands were bid off for the county, and opposite to such lands. Such taxes, penalty, and charges, then become an additional lien. This section also provides that no land so bid off for the county shall be sold for such subsequent taxes, until it shall have been redeemed, or shall be sold by the county, or the tax certificate assigned. It will be observed that all of the sections, above referred to, apply only to cases where the land sold for taxes has been bid off for the county. If sold to other purchasers, other and different sections make provisions as to their rights and duties up to the time when a tax deed may be issued. Section 10, chap. 198 (Comp. L., p. 877), provides for the making of the tax deed when it is due ; and this was the only section upon the subject, in force at the time the deeds in question were made. This section applies fully to cases where lands have been sold for taxes, and the certificates are in the hands of individuals.
Does it apply equally to cases where the lands were sold to, and the certificates still held by the county, when the time for redemption had expired? Being-general in its terms, and containing no exceptions, it might seem, at first glance, to be susceptible of such a construction. So might a portion of section 48, taken alone, be deemed to favor the idea that the county could take a tax deed, and then dispose of the land covered by it, the same as any other purchaser at tax sales. But, when looking to the reason and policy of the law, we scan, closely all of .the sections to which we have referred, and consider them together, we are forced to a different conclusion.
In this connection, it is proper to call attention to the marked distinction which is kept up all through the tax laws, as to the rights and duties of individuals purchasing lands at tax sales, and those of the counties, under the same circumstances.
We see that it is only when land cannot be otherwise sold for the amount of taxes, penalty and charges, that the county is allowed to bid at all. But when such fact is made apparent, the treasurer is required to bid it off for the county, and there is no other alternative. Again, under the provisions of section 44, referred to above, and which was in force until March 5th, 1864, certificates of sale, held by the county, were made subject to purchase by any person, thus making it binding on the county to part with, and sell her certificates at the option of any individual, and at a fixed price. Other distinctions, equally marked, may be named, but these will serve our purpose.
Now, these restrictions and limitations do not operate against individuals ; and what good reason exists why they should be enacted against the counties, if it was intended to confer upon them the right to obtain full title to lands by tax deeds % In such case, it would seem, at least, to be no more than right to permit the county, when holding the certificate, to sell it, or not, and to fix her own price for it, as her interest might dictate. But there is another serious obj ection to allowing the counties to take tax deeds the same as other purchasers. It is that, thereby, they would eventually, and especially in new and thinly populated districts, become large landholders, and as a consequence, large tax-payers; for it must be remembered that lands sold for taxes, whether held by counties or otherwise, must still be taxed. Thus, land which phould yield a revenue, becomes a burden. But it is not for any such purpose that these sections are' framed. They were undoubtedly intended to provide a way in which the taxes due upon lands sold to a county, should be realized with the least possible expense, delay and trouble.
Thus, when no one offers to take the land and pay the taxes, it is bid in for the county, and held by virtue of the certificate of sale, ready, and for the purpose of being assigned to the first person who wishes to take it. It is said that if a county is to hold land in this way, she might be obliged to do so for a long time, and thereby, for. so long, be deprived of the revenue it should yield. But would the chances for realizing such revenue be improved, by the county proceeding to take a deed ? And would not the county be as well able to dispose of her rights in the land while holding it upon the certificate, as if’ she held it by deed %
It may further be suggested that if it had been the intention of the legislature, when it enacted chapters 197, 198, Comp. L., to provide for the taking of deeds, to counties, of lands bid in for them, for taxes, other and specific provisions would most certainly have been inserted, applicable to such case, and directing just how the whole transaction should be conducted, until the lands might be again sold to individuals.
But the laws passed by the legislature in 1864 and 1866, touching upon this question, furnish a strong argument against the plaintiff’s position in this case. It is there provided that no certificate shall issue to a county for lands bid in for her at a tax sale, until some one shall pay into the treasury an amount equal to the cost of redemption at that time. The treasurer is then required to issue such certificate, and the county clerk must assign it to the person so paying the taxes.
(§9, ch. 37, L. 1864; §74, ch. 118, A. 1866.) These provisions standing in the place of former rules, on the same subject, preclude (as counsel observe) the idea that deeds can be taken by counties, for lands sold and bid in for them for taxes, and amount to a legislative construction of the former law.
We are therefore of the opinion that neither under the laws of 1862, nor under those since in force on this subject, is a county authorized to take deeds, as it is shown the county of Marshall has done in this case. Such deeds are, therefore, void. It follows, then, that inasmuch as no one has received the certificates of sale, as provided in ch. 198, L. 1862, or in, the laws passed subsequently thereto, bearing upon this point, and paid the taxes due on. the land'covered by the said certificates, neither the county, nor the county treasurer, is liable to the plaintiff in this case, for the taxes claimed, nor will they be so liable, until such taxes shall come into the county treasury in a legal way.
The judgment of the district court, in sustaining the demurrer to plaintiff’s petition, is sustained.
All the justices concurring. | [
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By the Court,
Safford, J.
The question involved in this case has been decided at the present term of this court, in the case of Robitaille «. Furguson. It will not, therefore, be discussed farther here. A word may, however, be added as to another matter. It is claimed that there was a waiver on the part of the appellee in this case, in the district court, and such as would operate to prevent Mm from taking advantage of any non-compliance with the requirements of rule 15 referred to, by the appellant. We do not think that the record justifies any such conclusion, but that the motion to dismiss was properly entertained by the court.
The judgment of the district cozzrt will be affirmed.
All the justices concurring. | [
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By the Court,
Crozier, C. J.
The action in the court below was instituted for the purpose of perpetually enjoining the collection of a tax of four and one-half per centum upon all the taxable .property, real and personal, in the city of Atchison, levied for the purpose of paying for certain improvements which had been made, and were then in progress therein. Application was made to the judge of the district court in vacation for a temporary injunction, upon the hearing of which the only testimony adduced was the petition. The defendants objected to the reading of that paper as evidence, on the ground of the insufficiency of the verification.
It was in these words :■
“The State oe Kansas, ) Atpiiison County, j ss‘
“Theodore Bartholow,W. L. Challiss, M. Frank, M. Glreenabaum, who being first duly sworn according to law, deposethand say, that the said several matters and things set forth in the foregoing petition, are, according to the best of their knowledge, information and belief, true, in substance and in fact, except as to such mat ters as stated on information and belief, and as to such statements affiants believe them to be trhe.
Theo. Bartholow,
W. L. Challiss,
M. Prank,
M. GrREENABATJM.
“ Sworn to and subscribed before me, this 5th day of May, A. D., 1866.
B. L. Pease,
[l. s.] Notary Public.”
The objection was overruled, and the paper was read. A temporary injunction was ordered, to reverse which order the case was brought here.
Section 248 of the code, provides that “atemporary injunction may be ordered upon it appearing satisfactorily to the court or judge, by the affidavit of the plaintiff or Ms agent, that the plaintiff is entitled thereto.”
The affidavit of the plaintiff to the necessary facts, will, uhder this provision, be sufficient, 'and the petition, if properly verified, may be used as an affidavit; i. e., it may be read as testimony. To determine whether the petition here was admissible as testimony, it will be necessary to ascertain the legal requirements of an affidavit.
Section 343 of the code defines an affidavit to be a declaration under oath, made without notice to the adverse party. By the next section, a deposition is said to be a declaration under oath, made upon notice to the adverse party. Each is a declaration under oath, the only difference being, one is made without notice, the other upon notice. Now, it would not be pretended that it would be admissible testimony, if, in a deposition, a witness should say that a certain statement was, “according to the best of his knowledge, information and belief, true, in substance and in fact.” And for very obvious reasons, too. He might have no knowledge of, or information upon the subject, except mere hearsay, and yet could conscientiously make such a declaration. He might be thoroughly convinced, by irresponsible publications, of the existence of a certain state of facts; yet no modern rule of evidence would permit him to state such belief as testimony. So, in the case at bar, the affiants might conscientiously make the declaration they did make without being personally cognizant of a single fact stated in the petition.
But it is claimed that the jurat is according to the chancery forms. Such may be the fact, and yet nothing to the purpose, for various reasons. The chancery forms, as such, were abolished by the code. They were prescribed by the chancellor, and by him strict compliance therewith might be required, or relaxation thereof indulged, as ■ circumstances should dictate. Here, the situation is very different. The court is bound by a rule prescribed by the legislature, and cannot properly relax or disregard it. It is a rule of evidence upon which there is no room for construction. It is so plain, there can be no mistaking its meaning. The application must be supported by a “declaration under oath.” The judge is not authorized to listen to or consider any other kind of testimony.
The petition, as verified, was not “a declaration under'oath,” and it was error to permit it to be read, against the objection of the defendant, for which reason the order of injunction must be vacated.
The court might stop here, inasmuch as the view it. has taken of the preliminary question, would dispose of the case, so far as this court is concerned for the present; but as it will inevitably return here for an adjudication of the main question, the court is disposed to comply with the request of counsel upon both sides, and consider it now.
The question referred to, presented in its nudity is, whether the legislature of this state can confer powers upon towns, cities and villages by special enactments. This is a very delicate and important question, involv-' ing as it does the validity of a solemn act of the highest law-making power in the state, and affecting, as its decision must, vast pecuniary rights. It is very embarrassing for one of the branches of the government to sit in judgment upon a co-ordinate branch, equally independent; but such is the construction of the government that it must sometimes be done. The supreme power of interpreting the fundamental law could not well be retained by the people, but must, for convenience, be deposited somewhere. This tribunal having been selected for that purpose, ignoring all considerations of delicacy, it must, when called upon, assert its power. But in exerting the power specially invoked in this case, the rule has been wisely established that the áction of the legislature shall be upheld, unless palpably in contravention of the organic law. The legislative, executive and judiciary departments of the government — -the legislators when they enact the law, the governor when he approves it, and the judges when they interpret it — are in their consciences bound to a like allegiance to the constitution; and it is not on any slight difference of opinion between the two former and the latter, that the judiciary will be authorized to set aside the action of the law-making power. Reason and the rule concur in demanding a clear case, to jus tify such action; and in the present case this court hopes to be guided thereby. •
The creating of corporations and making provisions for the organization of cities, towns and villages, have so long been regarded as the legitimate exercise of legislative power, that it would not only be useless, but inexpedient, to question the propriety thereof now. All agree that they are rightful subjects of legislation, and are within the general grant of legislative power contained in § 1, art. 2, of the constitution; and it is very manifest that if there were no restraints upon its action in this behalf, the legislature might select its own mode of exercising the power. It might, by special enactment, create corporations and organize cities, towns and villages ; or it might, by general law, provide for their creation and organization. Either mode would be a legitimate exercise of the power. This court has already held that the organization of cities by special enactment was a proper exercise of legislative"power under the territorial government, the fundamental law of which conferred upon the legislative branch thereof a general power similar to that conferred by the clause of the constitution referred to, upon the legislature of the state, to which opinion the court still adheres. State v. Young, 3 Kans. R., 445.
If the framers of the constitution had intended that the powers referred to should still continue as they existed at the time they were in session, they had need to say no more upon the subject than is contained in the first section of the second article. The language therein employed had a well understood legal significance, as many of the members of that august convention, being eminent lawyers, must have known. But the fact that further action upon the subject was taken. demonstrates that the intention was not to suffer the power to remain in the unbridled condition it then was. The subject was considered of sufficient importance to justify the framing of a distinct article of the constitution thereon. It is as follows:
“ARTICLE XII. — CORPORATIONS.
“ Section 1. The legislature shall pass no special act conferring corporate powers. Corporations may be created under general laws, but all such laws may be amended or repealed.
“ Sec. 2. Dues from corporations shall be secured by individual liability of the stockholders to an additional amount, equal to the stock owned by each stockholder; and such other means as shall be provided by law; but such individual liabilities shall not apply to railroad corporations, nor corporations for religious or charitable purposes.
“Sec. 3. The title to all property of religious corporations shall vest in trustees, whose election shall be by the members of such corporations.
“ Sec. 4. No right of way shall be appropriated to the use of any corporation, until full compensation therefor be first made in money, or secured by deposit, of money, to the owner, irrespective of any benefit from any improvement proposed by such corporation.
“Sec. 5. Provision shall be made by general law, for the organization of cities, towns and villages, and their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, shall be so restricted as to prevent the abuse of such power.
“ Sec. 6. The term corporation, as used in this article, shall include all associations and joint stock companies, having powers and privileges not possessed by individuals, and partnerships ; and. all corporations may sue and be sued in their corporate name.”
The whole of this article is merely restrictive of the general power conferred by section 1 of article 2. It adds nothing to the power of the legislature, nor could it have been so intended. All legislative power upon the subject had already been conferred. It may be true that the legislature, in exercising the power, might have done precisely what this clause requires of it, had it been omitted: but it seems to have been thought expedient to compulsorily restrain its action, and such alone was manifestly the intention of this article. This brings us directly to an examination of its provisions.
Before the adoption of the constitution, the practice was to create corporations and organize cities and towns by special laws. When a party of individuals desired to form an association for any purpose, they drew up a bill conferring upon themselves whatever powers they desired to exercise, and procured it to be submitted to the legislature, a large majority of the members of which had no apj>arent interest therein. Its office would be located at a particular place, remote from the residences of most of them, aud they could not discover that they or their constituents could be much affected by its operations. This was repeated from year to year, and would have been continued had the same condition of things remained, until, in every part of the commonwealth, bodies corporate would, have existed, with powers which the members of the legislature, in the aggregate, had no idea had been conferred. The organization of cities and towns, by special enactment, is demonstrably equally impolitic. The members from a certain city or town, for purposes of individual aggrandizement or immunity, might de sire a .change in their organic law. A "bill is framed and submitted, and when action is to be taken thereon, the body is informed, that it expresses the views of the representation of the locality. immediately affected; whereupon no objection is made, and the work is done; whereas, if the same thing were sought to be made applicable to the localities represented by a majority of the members, the measure would be spurned from the halls of legislation. This same city of Atchison furnishes an example of what could be accomplished under this system. An influential member, being a large real estate owner therein, sought to exempt it from municipal taxation, and at the.same time keep subject thereto the property of others similarly and not so eligibly situated. And the thing was accomplished in' the manner above indicated, much to the chagrin of his unfortunate constituents. To prevent just such abuses, and others equally meretricious, the twelfth article was inserted in the constitution.
The first' clause, although but one of those composing the section, is entirely independent of the others, and is clear and explicit. Although municipal organizations may not have been regarded, technically considered, as corporations, yet, for many purposes, they have always been treated as such. They may be authorized to loan their credit, and to borrow money; to build public edifices, make improvements, and levy contributions to pay the same; and to do many other things so similar to those which other corporations may be empowered to do, that it would be absurdly hypercritical to insist that in one it was the exercise of corporate powers, and not so in the other. A turnpike company might be authorized to levy an assessment upon its stockholders, in proportion to their, interest, for the purpose of improving its road, the franchise belonging to the members in common, and might enforce payment against their private property, and no intelligent individual would deny that such action would be the exercise of corporate powers ; and yet it is claimed that for the improvement of a street in a municipality, which is the common property of the citizens thereof, a levy to pay for the same, and the enforcement of payment thereof against the individual property of the residents, is not the exercise of corporate power. The court cannot see the distinction.
If these views are correct, power to do any of the acts abov'e named cannot be legally conferred by special enactment.
But it is claimed that the act of January 25th, 1866, under which the tax complained of purports to be levied, is not in violation of the clause of the constitution as above construed, for the reason that it does not confer any corporate powers, but merely regulates powers already conferred. The laws chartering the city of Atchison, and amendatory' thereof, in force at the adoption of the constitution, it is claimed, authorized the city authorities to make improvements, and to levy taxes to pay for the same, and that the act of 1866 was intended only to regulate the exercise of that power. Now, if the law in force during the territorial existence authorized the taxation of only particular pieces or classes of property, for certain local improvements, and the act of 1866 would subject other pieces and classes to taxation for the same improvements, the latter, very manifestly, would confer other powers than those heretofore existing. The intelligence of a court might be very properly suspected, which should hold that a law which authorized the taxing of property, exempt under prior laws, or which substituted a general tax upon all the real and personal property in a city for special assessments upon adjacent real estate,. to pay for local improvements, did not confer additional or other powers. This proposition, it seems to the court, need not be further discussed.
But there is another view of the subject, well worthy of consideration. '
It has already been said that the power to organize cities is conferred upon the legislature by sec. 1, art. 2, of the constitution; the discretion of the legislature in this behalf would be very wide, and as before” indicated, would authorize great abuses. But the legislature was not left unlimited in the exercise of this power. Sec. 5 of art. 12, above quoted, imposes very salutary restrictions. It was not necessary to give the power to organize cities, but was intended to regulate the exercise of that power. The legislature shall make provision, by general law, for their organization. Without this provision, admitting, for the argument’s sake, that the first clause of sec. 1 does not apply, the legislature might resort to special acts for this purpose. What other reason, then, can be assigned for the provision, than that it was intended to compel the legislature, when it took action upon the subject, to do so by general law ? If it might, nevertheless, organize cities by special act, the provision would be an idle one, having no efficacy whatever, and might, without changing the effect of that instrument, be expunged from the constitution. It is but charitable to suppose that its framers intended it for some purpose. Having given the legislature the power, in the general grant of power, to take, action in the premises, and deeming it wise to impose upon it the obligation to restrict the “powers of taxation, assessment, borrowing money, contracting debts, and loaning their credit so as to prevent the abuse thereof, ’ ’ it was thought best to require it to give the citizens the benefits of these organizations, but that it would operate as an additional safeguard, to require it to be done by general law, thus making it to the interest of the whole people of the state to see that - a proper láw should be enacted.
Such, in the opinion of the court, was the object of the clause; and as to its propriety, there can scarcely be two opinions.
But it is claimed that this view of the subject can have no application to the case at bar, inasmuch as Atchison was an organized city prior to the adoption of the constitution.
The court agrees with the counsel as to the fact, but not as to the conclusion drawn therefrom. It does not necessarily follow, that, because a city was originally organized under a special act of the legislature, special acts may now be passed. If it could be changed in one particular, it might be in every one, thus nullifying the provisions of the constitution, the very objects of which were to prevent special legislation. It is a wholly immaterial question, what would have been the situation had the legislature enacted a general law under which the city of Atchison could have properly been reorganized \ The legislature may have been very distinct in failing to pass a law which should give scope for the exercise of the progressive spirit and enterprise of the citizens of that flourishing-young metropolis; but such omission can not affect the question of constitutional power. Should a general law be passed, the provisions of which would be applicable thereto, whether that city would necessarily he brought within its provisions and requirements, is not now a question here; but the court is decidedly of the opinion, that, in the absence'of such a law, it must remain in the legislative situation it occupied at the adoption of the constitution.
The court is aware of many of the disastrous consequences which must necessarily follow this decision; and if in conscience it could have done so, would gladly have ■ avoided them. It had but a single duty to perform. It has endeavored thoroughly to understand the subject, and has acted in accordance with its convictions. If the conclusion at which it has arrived be erroneous, the regrets of the sufferers will not be keener than those of the members of this tribunal. But if the decision is correct, it is better that it be now declared, than that the blow should fall with greater effect hereafter.
Decision of the court below reversed.
All the justices concurring. | [
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By the Court,
Kingman, C. J.
In November, 1865, the defendant in error filed her petition for divorce and alimony, and praying for a temporary injunction.' The injunction was granted.
The plaintiff in error moved to discharge the injunction, because of the insufficiency of the petition and affidavit. This motion was heard at chambers on the 14th day of December, at which time, the agreed case shows that the judge “quashed the affidavit,” and continuing the injunction, gave the defendant in error until the 18th to amend her affidavit, at which time further time was given, till the 20th, when the amended affidavit was filed, and the injunction so modified as to discharge it as to part of the property, and continue it as to the residue. If this statement of the case shows a somewhat anomalous set of proceedings, it is not because 'this court has misunderstood the record.
Neither the petition nor either of the affidavits are shown in the record, and if this court has jurisdiction of the case, there is nothing for it to do in the matter.
The presumption is, that there was sufficient showing at the last hearing, to authorize the order of injunction. As there is no complaint' as to that order, as presented in the record, it must be taken as the granting of a new injunction upon proper grounds, and we can make no order whatever in the case. Nor are we disposed to comment on the alleged irregularity of the proceedings. Whatever may be our opinion of the propriety of an order “quashing an affidavit,” upon a motion to discharge an injunction or continuing an injunction without an affidavit, we cannot in this case enforce our views by any appropriate order. We cannot direct the discharge of the injunction, because we must, in the absence of the papers, presume it to have been properly granted at the last hearing. Wherefore the petition in error will be dismissed.
If has been suggested that this court has no jurisdiction of this matter. (See §16 of Oh. 81, Comp. L.) This section must be deemed conclusive,, as to the whpt of jurisdiction of this court, and would of itself, Require the dismissal of the cause, in this court.
All the justices concurring. | [
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Per curiam,
King-man, C. J.
Tbis was an appeal from tbe probate court to tbe district court, in October,‘1865. A motion to dismiss was made and overruled. Tbe motion should bave been sustained, for reasons fully stated in tbe case of Renter «. Bauer, 3 Kas.,’504. Tbe order of tbe court overruling the motion to dismiss is reversed, and tbe cause sent back, with instructions to dismiss tbe appeal.
All -tbe justices concurring. | [
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By the Court,
Kingman, C. J.
The plaintiff commenced a suit in the Leavenworth district court, against the Platte City & Fort Desmoines E. E. Co., had an order of attachment issued against its property, and procured service, by publication, against the railroad company, and caused Mackay to be garnisheed.
The garnishee answered, showing that at the commencement of this action, the defendant was a foreign corporation, existing by virtue of the laws of Missouri, operating exclusively within that state, and holding all its offices there. That the defendants held bonds of the county of Leavenworth, to the amount of $300,000; that they were in the State of Missouri, and in the possession, there, of the garnishee, as treasurer of said defendants, and subject to the order of the board of directors of said defendants ; that he had no effects of the defendants, in this state, nor was he indebted to them, and that the same state of facts had continued up to the time of the disclosure'.
Upon this state of facts, the court below held that Mackay could not be held liable as garnishee for such bonds. To this ruling the plaintiff excepted, and brings the case to this court for review.
We think the court below decided correctly.
There can be no doubt that the law intended to give a remedy to the citizens of this state, within the state, whenever the person or effects of the debtor could be found in the state, so that the courts could exercise control over them. In this case, the debtor was a foreign corporation, holding its offices, and operating exclusively without the state. Their property was without the state; an officer of the corporation was-in the state, and the plaintiff sought to attach, in his hands, property that he held, as such officer, in the State of Missouri.
Neither the person, nor property, nor any debt of the defendant, was found in this state. What was there to give the court jurisdiction? That question is not before us in this case; we have only to deal with the decision as to the liability of the garnishee. As an officer of a foreign corporation, lie held, in another state, certain assets of such corporation, subject to the order and control of the directors thereof.
' Had the court ordered the garnishee to deliver the property, before he could have complied with the order, he would have been dismissed and rendered unable to comply with the order. He would then have been made the innocent and involuntary debtor of the plaintiff, having to pay him 85,000.00' for no wrong or default of his own. This would be an admitted hardship, and, fortunately, one not imposed by the law. For while the sections of the code, authorizing the process of garnishment, speak of the garnishee having possession of any property of the defendant, in general terms, not restricted to the state, still, these sections must be construed with reference to other parts of the code, so as to make the whole harmonious. Now by an examination of title 4 of the code, and the amendments thereto, it will be perceived that while some classes of actions are made local, and the place where others can be brought is specifically pointed out, the class to which this Gase belongs must be brought in the county in which the defendant or some one of the defendants reside, or may be summoned. There was no personal service in the case. It was brought under section 78 of the code, which provides for service by publication, where the defendant is a foreign corporation, having in this state property or debts owing to them, sought to be taken by any of the provisional remedies, or to be appropriated in any way. Having property or debts owing to them in this state, is one of the essential facts necessary to give jurisdiction, and it is such property or debts, sought to be taken by any of the provisional remedies. • So that when we come to examine the provisional remedies, we must test the language used by the limitations in that part of the code giving jurisdiction of the case, and when section 209 speaks of the garnishee having property of the defendants, it must be understood with reference to the jurisdiction given in section 78, and it would then be having property within the state. This is a necessary reading of the whole code on the subject, and is not only logical and reasonable, but avoids the manifest hardships that might and must follow such a construction as that contended for by the plaintiff in error.
The conclusion thus reached is sustained by the authorities generally, but the case of Childs & Co. ®. Digby (24 Pa., 23), apparently sustains the contrary doctrine ; but in that case the jurisdiction as to person was undoubted, inasmuch as both defendants and garnishee were both personally served; and in the reasoning, the court make one of the conditions necessary to enforce the process, that the garnishee “have the actual possession of the property, and the power to dispose of it.” Even if this case be sound law, still it would not uphold the views of the plaintiff in error, for in this case the garnishee had no power to. dispose of the property which is held, and essentially requisite in the case cited. The court seemed to entertain the view in that case, that a garnishee could be held liable for property that he held in another state, belonging to other parties. Butin the subsequent case, of Pennsylvania Railroad ®. Pennook (57 Penn. R., 244), the Supreme Court of that state review the doctrine of the case of Childs & Co. ®. Digby, and on full consideration, overrule it, and give satisfactory reasons therefor.
The decision of the court below, that Mackay was not liable, as garnishee, is affirmed.
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By the Court,
Kingman, C. J.
This cause must be dismissed. The law allows no appeal in a criminal case, until its final determination. The court below refused to discharge the appellant, on motion. He still continues liable - to further proceedings in the case, and, till a final determination, we have no jurisdiction. It would be a bad precedent for us to establish, to exercise illegal authority over a case, even at the request of both parties, as in this case,
v We are clearly of opinion that the appellant was not entitled to his discharge, as a matter of right. He must abide by the discretion of the court and prosecuting attorney in the case. These are the views of the law we now entertain, after carefully examining the very full briefs of the counsel, and such authorities as are in our reach. We do not so decide, but at the request of counsel for both sides, express only our present views. • •
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By the Court,
Bailey, J.
This cause, which comes before us on petition in error from the district court of the county of Atchison, was brought in that court by the plaintiff in error, to recover the amount of the several judgments rendered against defendant in error, who was also defendant in the court below, in Davis county, in the State of Iowa.
The several matters set up by the defendant, by way of answer, were all waived, on the trial, except the two-years statute of limitations of Feb. 10, 1859.
The case was tried without the intervention of a jury, and the court found the following facts, viz: That defendant, Horn, and family, resided in the State of Iowa, until A. D. 1863; that at that time he sold his homestead there, boxed up his furniture and started his family to Kansas, with the intention of taking up Ms residence in -said State of Kansas ; that the family took trunks and wearing apparel with them, but that Ms household furniture, boxed up, was left in Iowa; that the defendant was, at that time, in the United States military service ; that his family came direct to Kansas, where defendant had relatives, and-boarded with defendant’s father-in-law, until September, 1863 ; that defendant did not come with his family, and first came to Kansas in September, 1863, but did not come with the intention of taking Ms family away — when he x-emained here some two or three weeks, and then took his family back to Iowa, with their clothes axxd personal effects ; that they remained there till March, A. D. 1864; 'that Horn remained in the military service and in the State of Iowa, until March, A. D. 1864, when his resignation was accepted, and he returned to Kansas with his family, and has remained - here ever since ; that soon after Horn went back to Iowa, in September, 1863, he shipped his furniture to Kansas, and that it remained here, unopened and in store, until after he and family came back in March, 1864; that when Horn came here (Atchison, Kansas) in 1863, he negotiated for a. house, but did not conclude a. bargain, and after-wards the same was not consummated; that this suit was instituted in the court below on the 22d day of January, A. D. 1866.
On these facts, which are agreed upon by both parties to be substantially correct, the court below found the following conclusions of law, viz:
1. That said Horn, the defendant, had a legal residence in Kansas from the-day of June, A. D. 1863, when his family first arrived here, and that the statutes of limitation of this state ran in his favor from that date, and continued to run thereafter.
2. That the statutes of limitation of the State of Kansas commenced to run in this cause from the date of the original judgments, and the day when they were rendered in the State of Iowa, and that said causes of action were therefore barred by said statutes, prior to the institution of this suit.
To which conclusions of law upon the facts, as found by the court, and as appearing in the evidence, the plaintiff, by his counsel, excepted.
It is agreed that the only defense to the plaintiff’s cause of action is the two-years limitation, provided in the amendatory act, approved February 10, 1859, and this was, by the court below, held sufficient.
In arriving at that conclusion, the court held, first, that the Kansas statute commenced running against the Iowa judgments the day they were rendered in Iowa; and, second, that the defendant, Horn, must be deemed to have had his legal residence in Kansas from the time his family first came here in June, 1863.
With regard to the first of these propositions, as to the time when our statutes of limitation begin to run against a cause of action in a case of this kind, this court expressed its opinion, fully and clearly, in the case of Bonifant v. Doniphan (3 Kas., 26); and as we remain entirely satisfied with the reasoning in that case, it must be considered conclusive and final; We held, for the reason there given, that the statute of February 10, 1859, did not begin to run against.the plaintiff’s demand, until the defendant established his legal residence or domicile in Kansas.
The question as to what constitutes a domicile or legal residence, we are well aware is not free from difficulties, as is evident from the fact that writers on jurisprudence have never yet been able to agree upon any precise definition of the word “domicile” which meets with, general acceptance.
The definition given by Yattel is confessedly imperfect, while' Bynkershoek declined even to attempt a definition. It is certainly not our intention to hazard a definition when such great masters have failed, and in using the word we shall use it merely as synonymous with the terms “legal residence,” or “home.”
It is apparent to the casual reader of the reported cases in which the question of domicile has received judicial consideration, that the animus or intent of-the party whose domicile was in question, was deemed to have great weight in the determinations arrived at; and we apprehend that such was the fact in regard to the case now under consideration.
The court below found, as a conclusion of law from the admitted facts, that the defendant, Horn, had a legal residence in Kansas, from the — day of June, A. D.-1863, when his family first arrived here. Having sold his homestead in Iowa, boxed up his household furniture, and sent Ms family to Kansas, with the intent of making Kansas his future home, the will is taken for the deed, and the arrival of the wife and children in Kansas with trunks containing personal clothing only, while the husband and household goods remained at or near the old home in Iowa, is held by the court below to effect the change of domicile.
But we find it laid down in all the authorities that an original domicile, whether of birth or otherwise, if once fixed, “clings closely,” and we conceive that it can never be changed by the mere intent of the party. The act must accompany and verify the intent. As the homely proverb asserts that “actions speak louder than words,” actions must corroborate, and confirm the words. “The fact and' the intent must concur.”
Had the defendant accompanied his wife and children to Kansas, and remained there, though for ever so short a time, if long enough to establish them in a new home, even though such new home had been a boarding place in the house of relatives, then indeed the intent might have been effectual in giving character and significance to the act.
But we cannot think that the intent of the husband to follow his family to Kansas at some future time had the effect of giving him a legal residence in this state, months before he had set foot upon her soil. Intents and purposes are subject to change, and are seldom to be taken as the equivalent of substantial deeds.
We must conclude, therefore, that the defendant did not acquire a legal residence in Kansas in June, 1863.
Did his coming to Kansas in September of that year give Mm such residence? He remained but a short time — left the household goods still boxed up in Iowa, and after stopping a few days, and making somé nego tiations for the purchase of a house, left for the former home, taking his family and their effects away with him.
If at that time the plaintiff, using diligence to collect his debt, had arrived at Atchison, and consulted counsel as to the legality of a service made upon the defendant, by leaving a summons at the house where the wife and children had boarded, would any attorney have had the hardihood to advise him that such service would be valid %
From a careful consideration of the premises, we are of opinion that no facts are - shown to have existed in this case which could, be deemed sufficient to charge the plaintiff with notice that his creditor had established a domicile in Kansas at any time prior to March A. I). 1864, and as two years from that time had not elapsed when the action was commenced, and service was duly made upon the defendant, the judgment of the court below must be reversed.
All the justices concurring. | [
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By the Court,
Bailey, J.
This was an action originally brought in the district. court of Leavenworth county,1by LucretiaB. Stinson, as 'administratrix of her late husband, Samuel A. Stinson, and Theodore A. Hurd, surviving partner of said Stin son, to recover the snm of $1,610 from the defendant, for certain professional services as lawyers.
The answer of defendant set np: 1. A denial of every allegation in plaintiffs’ petition, except as to death of Stinson, appointment of his widow as administratrix, and the existence of partnership between Stinson and Hurd. 2. That said firm of Stinson & Hurd was indebted to said Anthony, on account for publishing* notices in the “Bulletin” newspaper, a copy of which account is set forth in the answer, amounting to $114; that there were no credits on said accounts, and asking that the said sum of $114, with interest, &c., might be set off against so much of the claim as might be established against him.
To this answer plaintiffs filed a reply, denying “each and every allegation of the said answer,” setting up a counter-claim, and each and every allegation of said answer setting* up and alleging new matter, and each and every part thereof.
A motion to strike out the reply was made by defendant’ s counsel, overruled by the court, and exception taken by counsel for defendant, after which the parties proceeded to trial, and under the instructions the jury found a verdict for plaintiffs, for the sum of $788.76.
The plaintiff in error complains that the court below erred — 1. In refusing to strike out plaintiffs’ reply. 2. In permitting Hurd to testify. 3. In refusing to allow Anthony to testify. 4. In refusing to allow Anthony to introduce his books as evidence in proof of his set-off. 5. In charging the jury that they must be “governed by the testimony of the lawyers as to the value of the legal services rendered.”
Of these, each in their order:
I. As to striking out the reply. It was urged in support of the motion to strike out that it was not responsive to the defendant’s answer, inasmuch as it denied each and every allegation of the defendant, setting up a counter-claim, while the demand which the defendant below was seeking to set up, was not a counter-claim, as defined by sec. 103 of the code, but was a set-off. We think this objection somewhat too technical to prevail, where the demand is set out, and the party is duly notified that his adversary will rely on it, even though he should err to the extent of calling it a counter-claim, when it would more strictly be termed a set-off. Such a mistake would be clearly covered by the provisions of art. 2, and secs. 124 and 148 of the code; and besides, we think the reply contains an ample and full denial of the allegations in the answer, as it denies each and every allegation of new matter in such answer.
II. As to the admissibility of the testimony of Hurd. This calls for a construction of sec. 323 of the code, and on this point it is contended by counsel for plaintiff in error, that inasmuch as the plaintiffs below consisted of the surviving partner of the deceased, joined with the administratrix of his deceased partner, representing the partnership of Stinson & Hurd, and not the estate of Samuel A. Stinson, the provisions of the section did not apply to the defendant below, the now plaintiff in error.
But here again we must differ with the learned counsel, and with the construction he would favor as too technical. We think the fair and obvious construction of this section to be, that no party shall, by virtue of the provisions of secs. 120 and 320, making parties witnesses, be permitted to prove by his own oath as wit ness what the deceased might perhaps have disproved had he been living. .
The reason of the rule is as applicable to this case as though Mrs. Stinson, as administratrix, had been the only party plaintiff. But neither party are-to be precluded from proving their case, by the testimony of living- witnesses, as before parties were allowed to testify.
Hurd was a good witness, because his adverse party was living, and in court to contradict him, if he should misstate the facts. And we fully approve of the rule laid down by the court, that Anthony could testify as to all matters in controversy which had transpired since the death of Stinson, and as to all matters respecting which said Hurd had testified.
III. The book of accounts of the Bulletin printing office was offered in evidence after proof made that the business of that office was Anthony’s business, and that the book was the book of original entries. The book, thus authenticated, was excepted to and excluded from the jury, on the ground, it must be presumed, that as the book was only evidence in support of Anthony’s pretended set-off, and that set-off had not been properly pleaded so as to be in issue, the book of accounts was irrelevant. But, as we hold that the set-off was sufficiently pleaded, we must hold that the book of accounts was improperly excluded.-
Most clearly, Anthony was a competent witness to prove that the book offered in evidence was his book of original entries ; and the book thus authenticated was competent evidence for the jury, who, having it before them for examination, might judge of the weight it was entitled to from all the circumstances relating to it, such as the manner in which it appeared to have been kept, &c.
XY. Certain lawyers having testified as to the value of the legal services rendered by the plaintiffs, the court instructed the jury that “ Such witnesses are supposed to be better qualified to put a value upon such services than the jury, none' of whom may have any personal knowledge of the nature of the business in which they have been performed. 8uch testimony is the guide of the jury in finding the amount justly due, and in this case you must take the testimony of these witnesses, and bé governed by it, in finding the value of the services rendered by Stinson & Hurd.”
We do not so understand the law of jury trials. It is not for the court to instruct the jury as to what part of the testimony before them shall control their verdict, but the jury must weigh all the testimony before them, decide as to its credibility, and as to the weight which should be given to it in making up the verdict. The testimony of experts or professional witnesses is often ■very important, and justly entitled to great weight in a cause; but it must have its legitimate influence by enlightening, convincing and governing the judgment of the jury, and must be of such a character as to outweigh, by its intrinsic force and probability, all conflicting testimony. The jury cannot be required by the court to accept, as matter of law, the conclusions of the witnesses instead of their own; and we think the court below erred in this part of its charge. Nor was this error cured when, upon the request of the defendant’s counsel, that the court should instruct the jury “that they should not be governed alone by the evidence of the witnesses offered, to prove the value of the services, but that they should also take into consider ation all the circumstances of the case, and all the surroundings, such as the character of the cases in which they were performed, the time employed,” &c., the court responded that all the circumstances were before the jury, and were to be considered by them ; and that, in the instructions given the jury, it was only intended to charge them that, in finding the value of the services rendered, they must not consider their judgment tetter than the judgment of the witnesses who had testified as to their value.
This language seems to be a repetition in substance of the former charge which we have commented on as objectionable. Its obvious import is that the jury are to pay particular and special deference to the statements of the legal gentlemen who gave testimony as to the value of the legal services, or, in effect, to accept the conclusions of those gentlemen as their own. It substitutes the judgment of the witnesses for the judgment of the individual jurors ; while the true theory of jury trials regards the opinion of such witnesses as facts, to be considered and weighed like other facts and circumstances of the case. Thus, if attorney A. testified that the services rendered were, in his judgment, worth $1,000, and attorney B. swore he considered them worth only $50, while it appeared, from other testimony, that the services required but a moderate expenditure of time and effort, we think that an unprofessional juryman should take the fact that lawyers A. and B. swore as they did, and compare that fact with the time spent and the other circumstances proved, tending to fix the value, and make up his own judgment.
But under the instructions given in this case, jurors would not have felt themselves at liberty, we apprehend, to do this, and consequently, in rendering their verdict, they may be regarded as registering the opinion of the professional witnesses rather than their own.
Judgment reversed.
All the justices concurring. | [
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By the Court,
Bailey, J.
The relator in this case shows to the court that from January, 1866, to January, 1867, he was the duly elected and' acting county attorney of the county of Shawnee, and that as such county attorney, he conducted the prosecution in the case of the State v. Wm, Marlatt and in the case of the State v. Ferdinand Fin-sky ; and that the presiding judge of the district court of said county, before whom the cause was tried, made an order of said court, entered upon the records thereof, allowing relator, as such county attorney, the sum of fifteen dollars for his services in the former case, and five dollars and fifty cents in the last mentioned case.
The relator then -shows that he presented his said orders of allowance to the county clerk of said county of Shawnee, and demanded that the said county clerk should make out and deliver to him an order on the county treasurer for said amounts ; but that the county clerk refused to make out and deliver such order, claiming that he had no power or authority to do so, until said claim had been examined and audited by the board of county commissioners for said county. The relator, therefore, prays for a peremptory w-rit of mandamus to compel said county clerk to make out and deliver the order on the county treasurer for the several sums allowed Mm for services by tbe presiding judge-.
An examination of tbe act of 1864, approved Feb. 31, entitled “An act to provide for tbe election of county attorneys, and prescribing tbeir duties,” would seem fully to warrant tbe relator’s claim. Sec. 4 of that act provides that tbe county attorney, for eacb county of tbis state, shall receive such compensation for bis services as shall be' allowed by tbe judge of tbe district court of the county wherein such'services may be rendered. Tbe amount of such services, in both civil and criminal business, pertaining to bis office, to be determined by tbe judge of tbe district court at eacb and every term of said court in said county. All of tbe allowances made by tbe court to county attorneys, contemplated by this act, to be paid out of tbe county treasury, on tbe order of tbe county clerk.
This section would have been conclusive, and would have necessitated tbe issue of tbe mandamus as prayed for, bad not tbe legislature, at tbe next subsequent session, by tbe act relating to tbe duties of county commissioners, approved Feb. 3,1-865, provided otherwise. Section 1, of tbe last mentioned act, xorovides that tbe county commissioners of tbe several counties. shall have exclusive control of all expenditures, in all' cases whatsoever: and by tbe act to regulate county affairs, approved Feb. 11, 1865, tbe county commissioners are required to publish a statement of all sums of money allowed, and for what purpose, and to whom issued, &c.
Tbe obvious x>olicy of tbe two last mentioned acts was to insure a more systematic administration of county affairs, and for that purpose to require all items of expenditure, and all claims for services, to tbe county, of whatever nature, or by whoever rendered, to be audited and approved by the board of county commissioners.
The requirement that a statement of all sums allowed at each meeting of the board should be published, would evidently fail of its purpose, unless all claims were required to be presented to the board for’ audit and allowance. We are of opinion, therefore, that the order of the judge in this case must first be presented to the county board, and the mandamus must be refused.
All the justices concurring. | [
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By the Court,
Safford, J.
This is a proceeding in error, brought to reverse an order of the district court of Wyandotte county; dismissing an appeal taken by the plaintiff in error, from a judgment of a justice of the peace, because notice of such appeal had not been given, as required by the fifteenth rule, made and adopted by this court, under and by virtue of § 612 of the code. That portion of said rule 15 having reference to the point raised in this case, reads as follows: “In cases of appeal from a judgment of a justice of the peace, or mayor or recorder of a city or village, the -appellant shall, within five days after the filing of the transcript of appeal in the district court, serve upon the appellee or appellees, his or their agent or attorney, notice in writing of the filing thereof.” This language is certainly very explicit, and easy to be understood; and moreover, the taste of giving timely notice of their appeal, here imposed upon appellants is, as it seems to us, entirely reasonable .and proper, and calculated to promote justice.
We are of the opinion, also, that this -requirement has not been in any way affected or changed by any action of the legislature, since its adoption, .and that it is therefore in full force and effect, as a rule by which the courts of the state are bound. We think, therefore, that inasmuch as the appellant in this case in the district court, had failed to comply with this plain requirement of rule 15, in regard to . giving notice of his appeal, or to give such notice within any reasonable time, the action of said court in the premises was justifiable and proper, and should be affirmed.
All the justices concurring. | [
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By the Court,
King-man, C. J.
There is no question of law raised in this case, save the refusal of the court below to grant a new trial.
It was an action on an account. The testimony, as shown in the record, was conflicting and irreconcilable. The plaintiff proved his claim in full, and that it was not paid.
The defendant proved that it was paid in full. The jury were the proper- tribunal to weigh the evidence, and upon principles of law so well established, and so familiar, as to need no elucidation from. us. Tire court below very properly refused to disturb tbe result of tbeir inquiry.
Judgment affirmed.
All tbe justices concurring. | [
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By the Court,
Kingman, C. J.
This is a proceeding in error to reverse a judgment of the district court of Jefferson county, dismissing an appeal taken by plaintiff in error to that court, from an order of the probate court, making distribution of the estate of George Barrett, deceased.
The order of the probate court appealed from was made on the 5th day of February, 1867. At that time no appeals were allowable from the probate court. Renter v. Bauer, 3 Kans., 503.
Subsequently a law was passed, and became in force, by publication, on the 7th day of March, 1867, allowing appeals from the probate court in this class of cases. This law granting appeals is not retroactive in its terms, nor can it be construed to be so, in fact, without doing violence as well to its language as to the rule that laws will not be given a retroactive effect unless the terms thereof are unmistakably intended to have that effect.
Sec. 2 of that act shows the contrary by making it necessary that the appeal should be taken at the term, or within ten days of the time of making such decision.
A compliance with this requirement would be impossible in most cases that had been previously tried, as it would be in this case, more than a month having elapsed after the decision before there was any law authorizing appeals.
The steps taken to obtain an appeal were unauthor ized by law, and void. The appeal was, therefore, properly dismissed.
All the justices concurring. | [
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By the Court,
Kingman, C. J.
This was an application for an injunction to restrain the defendants, who were the defendants below, from raising their mill dam, thereby doing injury to the. plaintiff.
The facts set forth in the petition are these: The plaintiff is the owner, in fee, of certain described lands lying on both sides of Cottonwood creek, in Lyon county. The defendants are owners of another tract of land lying upon the same creek, below that of plaintiff, and have erected a milldam thereon, by means of which they have flowed, back the water of said creek upon the plaintiff’s land to the height of three feet, and made a ford of plaintiff’s, difficult and dangerous to cross; that said ford is necessary to the plaintiff in getting from one-half of his farm to another, and that defendants are about to raise their dam three feet higher, and thus make the crossing of the ford impossible, and doing great and. irreparable injury to plaintiff.
To the petition the defendant interposed a demurrer, which was sustained, and the case brought here to review the judgment on the demurrer.
It is not denied, on the part of the defendants, that the facts set up in the petition are sufficient of themselves to authorize the granting of an injunction, but they say that the law has provided the plaintiff with •another remedy, which takes the place of the injunction. This remedy is found in the “act to authorize the erection and maintenance of milldams and mills,” in the laws of 1867, p. 159.
.We are satisfied that the facts stated in the petition, and which are substantially stated above, are sufficient to entitle the plaintiff to the relief demanded. The injury -complained of is not a mere trespass; it goes to the permanent and very material injury of the plaintiff’s right to access to all parts of his property, and prevents his enjoyment of it as his interests may require, by obstructing his passage from one part to another of his premises.
The injury is likely to be perpetual, and may grow into a right by the lapse of time. It seems that this is a fit case for the interference by injunction. Story’s Eq., § 927; 3 Sumner, 189; 39 Barb., 312.
We are reasoning in the case as it comes to us, the demurrer admitting the statements in the petition as true, and so we consider them.
Hoes the law of 1867 take away the remedy? We think not. The object of the' law is to give mill owners, and those having mill sites, the power to obtain, by certain definite steps, the right to erect mill-dams and flow land ; and until they have taken such steps, they obtain no rights under the law. The legislature has not attempted to do what it could not do, that is, allow one man to have the right to obstruct another man’s use of his own premises, in the freest possible manner, without having first rendered him full compensation thetefor. This would be the law were it not so expressly provided, but the legislative mind clearly perceived this truth, for' they provided that the amount of damages found due by the commissioners should be first paid, and such payment “shall stop the parties receiving it from all further proceedings or claim in the premises.” (§ 9). It is such payment alone that stops proceedings, not the possibility that the mill owner may at some future time take steps, and pay such damages as may be assessed. Even after payment, the mill owner lias no right to proceed, if the owner of the land shall take an appeal, until such mill owner has given bond, with approved security, to pay such judgment as the court may render in the premises.
The law of 1867 gives no right to any person, save those intending to erect a milldam, or those having one already erected, nor does it profess to give any other person any remedy for injuries to his property. It provides the steps by which a milldam may be erected, and the lands of other parties flowed, but none of these steps can be initiated by the party injured.
His remedy , is left untarnished, and is to be found in other statutes. Those remedies are either by suit for damages, or by an order restraining the proposed injuries, as each case may demand, and, in some cases, both remedies may be resorted to with propriety. But neither of these remedies are provided for in this act. They existed before, and the fourteenth section of this act only prescribes a limitation as to the time within which an action for damages must be brought. It does not purport to give that right, but recognizes its previous existence.
The sixteenth section gives one year to those already having dams erected, in which to avail themselves of its provisions; but it does not give, nor was it in the power of the legislature to give any one the right to use another party’s land for one year, or one moment, without previously paying therefor.
If the dam was already erected, and flowed the water back so as to materially and permanently injure the land of another, the owner thereof was liable for damages for every day it so remained, and that liability would continue as long as the injury remained. Section 16 only points out the means whereby the owner may rightfully do what he was previously doing wrongfully, and it gives him one year to take those steps; until he has done so, the act is no protection to him.
If the defendants desired to raise this dam, the law pointed out how they might rightfully do so, and having taken those means, they would be a good and valid answer to such petition as is filed in this case. It is no answer to say they may 'do so in one year. They are under no obligation to do so, and at the expiration of the year, may abandon the dam, and leave the plaintiff to the dread uncertainties of a law suit to get his rights. The law is a liberal one, and probably wise in its provisions.
If we could find, in the language of the law, a justification for the interpretation claimed by the defendants, it would destroy the law, for it is beyond the power of the law to appropriate the property of one man to the use of another; but the law bears no such construction. It gives, in the sixteenth section, these defendants the power to do rightly what they are now doing wrongfully, and it gives them that power for one year only ; but until they exercise that power they get no rights under the law. The plaintiff says, “I want my pay now.” To this defendants reply, “We may pay you in a year, in a certain way, if it suits us ; we have that right under the,law.” The law is not open to any such charge. It is liberal, but it is not absurd.
The judgment' sustaining the demurrer is reversed,- and the cause sent back for further proceedings.
All the justices concurring. | [
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Per Owriam,
Bailey, J.
This case comes before us on an appeal from the district court of Miami county.
The appellant, George Hunt, was tried for murder in the first degree, and by the jury found guilty of manslaughter in the fourth degree, for killing a Wea Indian named Mah-cah-tah-chin-quah.
On the trial, the defendant offered evidence tending to prove that both Hunt and the man he was charged with killing were Indians of the Wea tribe, which Wea tribe inhabit the said county of Miami, and together with the Kaskaskias, Piankeshaws and Peorías, constitute what is known as the United or Confederate tribes; and that these confederate tribes had a tribal government of chiefs and council, and maintained treaty relations with the government of the United States ; and these facts were admitted on the part of the prosecution. Whereupon the counsel for the defendant asked the court to charge the jury as follows: “If the jury find and believe from the evidence that the defendant, George Hunt, and the said deceased, Mah-cah-tah-chin-quah, at the time of the alleged homicide, were Indians, and members of the Wea tribe of Indians, inhabiting said county of Miami, and one of the united tribes of Kaskaskia, Peoria, Piankeshaws and Wea Indians; and that said tribes maintain a tribal condition, having a council, chiefs, and a tribal government; and having tribal relations by treaty with the government of the United States, and a United States agent for the' management of their affairs, then the jury must acquit the defendant and return a verdict of not guilty, although they may believe that the defendant in fact killed the deceased, as alleged in the information.”
The court refusing to give the instructions as prayed for, the counsel for defendant excepted, and afterwards moved to set aside the verdict, and for a new trial, because of such refusal.
The motion for a new trial being overruled, the case is appealed to this court, and the refusal of the court below to give the above charge as prayed for, is the only point relied on.
It does not appear that the killing charged in the information, and of which the defendant was found guilty, took place within the limits of any Indian reserve ; nor is that point adverted to in the instructions prayed for by defendant’s counsel, as it undoubtedly would have been if such had been the fact. The county of Miami is one of the first settled, most populous and flourishing counties in the state, and the Indian tribes mentioned, in the charge asked to be given to the jury, occupy but a small portion of the territorial extent of the county. And we are asked to decide that Indians may kill Indians, 'outside of Indian reservations, if in the same county in which their reservations áre situated, in the midst of white settlements, under the shadow of the school and court houses, and church, without incurring any responsibility to the laws of the State of Kansas, because they belong to a tribe or nation of Indians having treaty relations with the United States, and an agent resident among them as the representative of the United States.
If such were indeed the law. it would be a matter of grave concernment to the population of many of our counties bordering on or including Indian reservations within their defined boundaries; but we are of opinion that giving to the Indian tribal government the very highest position it can claim as a power having treaty relations with the government of the United States, and an Indian agent as charge d'affaires representing the United States, such Indian tribe cannot claim for its members any greater privileges or immunities than an European nation — say France, for example, having treaties with the United States and represented by its minister plenipotentiary, at Washington, the United States being in like manner represented by a minister plenipotentiary at Paris.
Suppose, now, the case of two, Frenchmen direct from Paris, it may be, of resident in Miami county for years, it matters not which, and one is killed by the other in the streets of Paola, or elsewhere in the body of the county of Miami, in the same manner that the decedent Wea Indian was killed by his Indian brother-, the appellant, could there be any question as to the jurisdiction of the offense % Would it be thought, for a moment, that the case must be referred to the French minister, at Washington, or to the home government, at Paris ? In Bishop’s Criminal Law we find the rule of international law laid down' briefly, as follows: “In the United States there are no general exemptions of foreigners from the duty of obeying our laws, while here. We have never permitted any foreign laws to supersede our own, further than they are entitled to do under the general law of nations.” Bishop on Crim. Law, §584.
By the law of nations, ambassadors, other public ministers and consuls are exempt from responsibility to the local law; and, having considered these exceptional cases separately, the learned author goes on to remark: “ Subject to the exceptions enumerated above, which severally rest on peculiar reasons, the doctrine is general that our laws bind alike all persons, natives or foreigners, found within our territory. On the other hand, also, they equally protect all; and thus if, even in time of war, an alien enemy comes here, it is murder to kill him, except in the actual heat and exercise of war. If he submits and lays down his arms, his life must be. spared.” Bishop’s Grim. Law, §593.
Evidently this is the law. Every civilized nation claims and exercises the right to maintain order and punish -crime within its territorial limits. We tbink the Weas, Piankeshaws, Kaskaskias and Peorias will have to abide by the same rules in this respect that have so long governed in the case of the English, French, Spanish and Portuguese nations, beyond the sea. Or if, in any respect, the rule is different, it is not in favor of tribes like the Weas and their confederates, confessedly dependent upon the United States, numbering their population by scores, or, at most, by hundreds, as against nations like those mentioned, numbering by millions and tens of millions. A Wea can claim no greater immunities against punishment for crime than a Frenchman.
The judgment of the court below affirmed.
All the justices concurring. | [
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By the Court,
Kingman, C. J.
The plaintiff in error brought suit on a due bill, dated and due on the 16th day of January, 1856. The suit was brought on the 17th day of April, 1860, and process was served on the 25th day of April, 1860.
The court below decided that the suit was barred by the statute of limitations, and the plaintiff seeks to reverse that decision by this proceeding in error.
The decision must be affirmed. The application of the statute of limitations to such a case as this has been affirmed by .this court in a series of decisions, beginning with the case of Elliott v. Locknane (1 Kas., 126), and Root v. Bradley (id., 437), and in various other cases. We are satisfied with the decisions made, and are not inclined to further argue it.
The decision is affirmed.
All' the justices concurring. | [
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By the Court,
Kingman, C. J.
This was an action of replevin brought in justice’s court. The property was replevied, and appraised at one hundred dollars. The plaintiff had judgment before the justice. The defendant appealed. In the district court a, petition and answer were filed. At the next term of the court the case was dismissed for want of jurisdiction, on motion of the appellant. To reverse this order of dismissal, the case is brought to this court.
The court below erred in this, that it took the appraisement of the property as ascertained for the purpose of the undertaking, as the value of the property, whereas, the actual value, in cases of this kind, which alone would determine the jurisdiction of the justice, must be ascertained on the trial of the action. Garret v. Wood, 3 Kans., 236; Comp. L., 640, § 136.
There is no evidence in the papers that the property had any real value, except the appraisement. The judgment of the justice did not show it, and there was no way in which the court could ascertain that fact on a motion to dismiss. ■ It is only when the valuation exceeds one hundred dollars that the proceedings are to be certified up to the district court. § 137, Justices Act.
The jurisdiction of the justice is placed at less than one hundred dollars, but where the valuation is not over one hundred dollars, the case is not to be sent up. The fixing of these different tests was probably an oversight of the draftsman of the law; but there is no practical trouble in this part of the statute. The district courts have jurisdiction in civil cases where the sum or matter in controversy exceeds the jurisdiction of a justice of the peace. In most cases, this was up to and including one hundred dollars, except in replevin, where it was less than one hundred dollars. The great practical difficulty is where the valuation, made for the purpose of the bond only, shall be one hundred dollars or' less, and the jury shall find it of greater value, thus defeating an action without the fault of the plaintiff. There is nothing of this difficulty in this case.
The order to dismiss is reversed, and the case remanded for further proceedings.
All the justices concurring. | [
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Ay the Court,
Kingman, C. J.
This was an action brought to foreclose a mortgage given to secure a promissory note, of which the following is a copy:
“Fort Scott, Kansas, April 9th, 1867.
“Four months after date, I promise to pay'to the order of John Caldwell, the sum of three hundred and eighty-three and thirty-four one-hundredths dollars, (but if paid at the expiration of three months, the amount to be $350.00,) negotiably and payable without defalcation or discount, with interest on $300.00, at the rate of ten per cent, per annum, from date, (the remainder to bear no interest,) hereby waiving the right of redemption. R. D. Lender.”
The defendants, Lender and Lender, who were husband and wife, made default, and judgment was taken against them for $383.00, as principal, and $15.96 interest thereon, together with $40.00 attorney fee, making.in the aggregate, the sum of $439.30 ; and for a sale of the mortgaged premises, “freed and dis charged from any right of redemption under the statute in that behalf provided.” This judgment the plaintiffs in error now seek to reverse.
The defendant in error insists that this judgment cannot be reversed or acted upon in this court, until the questions are presented to the court below, and exceptions taken thereto. This exact question has been before this court, and settled, in the case of Koehler v. Ball (2 Kas., 169), and was there held reviewable, without exceptions to the judgment taken in the court below. The decision in that case meets our entire approbation now; nor is it deemed essential to add to the reasoning on which it is based, except to call attention to § 540 of the code, which specifies certain causes which shall not be ground of error, until the same have been presented and acted upon in the court in which the error was made.
This, by a plain inference, leads to the conclusion that other causes may be ground of error without being first presented to the court where the same were made.
Holding that the case, as presented by the record, is reviewable in this court, we shall proceed to examine the alleged errors.
There was manifest error in allowing an attorney fee of $40. This is expressly prohibited by statute. “No court shall tax over two dollars as attorney’s- fees in any case for foreclosure of any mortgage, or trust deed, or for collection of the saíne.” (Comp. L., 722.) No language of ours can make this, prohibition plainer than the statute itself. A contract between the parties, in derogation of this statute, cannot be enforced. ..
A much graver question that presents itself, is this : Had the court the right to give judgment, cutting off the right of redemption ? The petition shows 'that the plaintiffs in error are husband and wife ; that the mortgage was given by both, to secure a note made by E. D. Lender, only. It does not appear that the mortgage contained any clause of waiver, nor is there any claim of the same, save as appears in the note annexed to the petition.
The plaintiff’s counsel urged, with much ingenuity, that chap. 110, Laws of 1867, is a nullity. We think the intention of the legislature is plainly to be found in the law, and that it was not their purpose to repeal a law in the very act of enacting it. Holding, therefore, the law to be valid, the inquiry presents itself, has the defendant in error placed himself in a position to claim the benefit of the exception to the redemption as therein provided ?
The right of redemption extends to all cases where real estate is sold under execution, order of sale or other final process. But any person may, in the execution of any evidence of indebtedness, or security for any indebtedness, waive the benefits of the provisions of this act.
Now, Mary Lender did not pretend to waive her right to redeem. Whatever interest she had in the mortgaged premises was pledged to the payment of the debt, and that was the extent of her obligation. No other or further right was in any way by her conveyed by the mortgage. What was her estate, does not appear. Whether she held the fee, or it was a homestead, or only her right as wife, in her husband’s estate, is uncertain'; nor is it important. Does the act of 1867 necessarily waive the right of any person other than the one making such waiver ? The language will certainly bear that construction, for it declares that “ such waiver shall be deemed and held to be a full and complete waiver by all persons interested, of all the rights and remedies given by this act or against any such indebtedness.” It is apparent that such a construction would, in many cases, work great hardship, by. making parties incur much greater and graver responsibilities, by the operation of law, than they had intended by their contract.' This case may be one of these. The wife may have signed the mortgage, relying on the right of redemption, and wholly unaware that the same was waived by another instrument to which she was no party, and which, in the mortgage which she signed, was only represented to be a note for the payment of money. If such was the intention of the legislature, it is a trap for the unwary. If such was not the intention, the language used was -very unfelicitous. When the question is presented so as to impose on us the duty, we shall not hesitate to give it a construction. But we do not conceive it necessary in this case, for we do not think the defendant in error has brought himself within the exceptions of the act. “Thereby waiving the right of redemption,” is all the stipulation in the note, while the law provides that the maker of any evidence of indebtedness must waive the provisions of this act in the writing.
It is asked: What other redemption could be meant, save that provided for in the law? We cannot say. The law extends a certain privilege to all the people of the state, but provides that that privilege may be waived in a certain way. The party seeking to deprive another of the privilege conferred by the act, on all persons, must be particular in bringing himself within its provisions. He must show unmistakably, that that object is understood by the parties, and .stipulated for in the bond.
We do not think that the defendant in error has taken the necessary steps to place his claim within the. exceptions, and that the judgment in this respect, is erroneous. The case is therefore sent back to the district court, with directions to modify the judgment, by excluding the attorney’s fee allowed, and not barring the right of redemption.
All the justices concurring. | [
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By the Court,
Safford, J.
The record in this case presents but one question for our consideration, to wit: Is a county liable, under the laws of this state, for the costs, or any part thereof, made by a defendant in his. own behalf, in a case where such defendant, having been' charged with a criminal offense, has been tried, convicted and sentenced therefor, in the court having jurisdiction, such defendant being found to be insolvent?
Sections 311 and 318 of the code of criminal procedure contain the following provisions: “The costs shall be paid by the county in which the offense is committed, (in cases) in which the defendant shall be convicted, and shall be unable to pay them. ” “ Whenever any person shall be convicted of any crime or misdemeanor, no costs incurred on his part, except fees for board, shall be paid by the territory or county.”
These sections — and this is conceded by counsel— embody all the law bearing upon the question under consideration, which is to be found in the criminal code.
So far, then, as the code is concerned, our inquiries in this behalf may well be quite limited.
By taking these provisions together, and the application of just and established rales of construction, we are able to understand that the law-making power in this enactment meant to provide—
1. That when any person has been convicted of a crime against the laws, such person is liable for all the costs which are properly chargeable under the law; that is to say, he is liable for all costs made by prosecution, and for -all costs made in his own behalf.
2. In a case where such convicted person has been found to be insolvent, the county where the offense was committed is liable for, and must pay, all the costs made on behalf of the prosecution, together. with fees for board of such convicted person, but is liable for none other.
The. section last quoted is a limitation upon the first, and as the words used are express and certain, they must be held to exclude all costs from payment by the county in the case mentioned, except as stated.
It follows, then, that the fees of witnesses, sheriff’s .fees, clerk’s lees, and the like, made by and in behalf of the defendant, in cases of conviction and insolvency, are in no way provided for unless it has been done by legislation subsequent to the criminal code.
In chapter 99 of the compiled laws, sec. 22, we find the following provision: “The fees of the district clerk and sheriff, in any criminal action wherein the state fails to convict, or to collect the costs, during the next vacation after sentence, shall be paid out. of the county treasury; but no fees shall be paid by the county during the pendency of the suit.”
This does not affect the law in regard to the liability of a person convicted of a crime, as we have seen it exists under the code; but it seems to be made the duty of the state to collect the costs from such convicted person during the vacation following sentence, and if she fails to do so, then the county must pay all the costs of the district clerk and sheriff out of her treasury.
But it is contended by plaintiff in error that the fees here mentioned are those only which the county would have been liable for, and must have paid to the sheriff and clerk under the law first referred to. We think otherwise. The words used are, “the fees of the district clerk and sheriff, in any criminal action (in cases stated), shall be paid out of the county treasury.’.’ Surely this language is broad enough to cover all the fees' of those officers in any criminal case, and must be so held.
But it is said that if this construction be given to sec. §2, above quoted, then it is repugnant to the'provisions of sec. 318 of the criminal code, and repeals it by implication. This, as it seems to us, is saying too much. The legislature, by the passage of sec. §§, chapter 99, compiled laws, did not intend to repeal sec. 318 of the criminal code, but only to provide a new rule for the payment of the costs of sheriffs and clerks-under certain contingencies.
That sec. 818 was left standing in full force, as to all other fees and costs to which, by its terms, it would be made applicable.
Some other points are incidentally raised by counsel in this argument, but we do not think it 'necessary to discuss them here.
The judgment Of the district court will be affirmed.
All the justices concurring.
The court, in their interpretation of this section, seem to have supplied'a manifest omission of the words “in cases.” | [
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By the Court,
Bailey, J.
There is hut a single point in this case calling for judicial animadversion, namely, as to the admissi-. bility of the written contract between the railway company and Samuel Hallett & Co., against the objection of the plaintiff below, who is now plaintiff in error.
The contract tended to show that the work and labor done, and the material and money furnished by plaintiff, as alleged, were done and furnished for Hallett & Co., the contractors, and not for the defendant corporation.
Though not conclusive on the point, it certainly was competent evidence for that purpose, to go before the jury, and we think the court did not err in admitting it.
It tended directly to rebut the allegations in the plaintiff’s petition, and was, therefore, clearly admissible under the general denial.
The judgment of the court below is, therefore, affirmed.
All the justices concurring. | [
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By the Court,
Bailen, J.
This action was brought by the plaintiff in error, administrator of the estate of Silas Armstrong, deceased, to restrain defendants in error, by a perpetual injunction, from an invasion of the rights and franchises of the plaintiff, in the construction of a bridge over the Kansas river, within the limits of the plaintiffs’ ferry. In the absence of Chief Justice Crozier, July term, 1866, the cause was heard by Justices Bailey and Saeeord, and taken under advisement, and said justices being equally divided in opinion, the judgment of the court below stands affirmed.
Bailey and Saeeord, JJ. | [
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By the Court,
Safford, J.
This case was tried by the district court of Wyandotte county, without the intervention of a jury, and by consent of parties.
There was a general finding by the court, and an assessment of' damages in favor of the defendant in error.
The plaintiffs in error and defendants below moved for a new trial, which was refused, and judgment rendered in accordance with the general finding and assessment of damages. To the overruling of the motion for a new trial and the findings and judgment of the court, the defendants "below duly excepted, and firing the case here for review. The record shows all of the proceedings in the case, and all of the evidence upon which the findings and judgment were based, which was offered fiy both parties on the trial. And we are frank to say that under the former rulings and practices of this court, it is only upon one ground that we should attempt, or feel authorized to look into, the case as here presented at all, and that would be to see that some evidence was offered upon all points essentially necessary to sustain the finding and judgment.
With such a view we have carefully examined the record and testimony in this case; and, having done so, are forced to the conclusion that there is a total lack of evidence as to some facts absolutely necessary to be established in order to a recovery, by the defendant in."error, at all. For instance: It was necessary for evidence to be offered to prove that Convers was in the employ of the railway company; then to prove what amount would be coming to him for Ms services. Now, taking it for granted that it is proved that Convers was in the employ of the railway company, and that it is also proved that for the months of March, April and May, there was owing to" him, as alleged, the sum of $352.91, and then let it be remembered that he was, on the 15th day of April, paid the sum of $360.76, ■ — and this he substantially admits, as we hold — and what evidence is thereto support a judgment of $355.91 % Even if the $170 item were taken into account — which it would seem could not have been done — it would not better the case at all for Convers.
But let us see just how this particular question stands, in the light of all the testimony bearing upon it, by whatever parties offered.
Devereux testifies that he was the secretary of the company; that their office was in St. Louis, Mo.; that he brought from St. Louis $20,000, furnished by John D. Perry, for the purpose of paying the employees of Hallett, contractor for the building of the company’s railway; that on the 15th day of April, and while Convers was employed in the railroad office at Wyandotte, he paid to him (Convers), on account of Mr. Hallett, his check,- signed by himself as secretary, in amount $360.76, and that Convers' accepted such check for his pay and as his pay. This is not contradicted at all; but Convers himself testifies that he indorsed the check over to Mr. Hallett, and that he did not get the money from Mm, Hallett. We cannot see how such a statement on the part of Convers can. have any force in explaining away the fact that he had received the check as his pay. After so receiving- it, he had, of course, an undoubted right to do with it as he pleased. The check could not he drawn without his indorsement, and such indorsement he placed upon it and gave it to Mr. Hallett.
The money was then drawn upon it. If, after doing this, he was not able to get his money back from Mr. Hallett, that certainly was his misfortune, and not the fault of the railway company; and he cannot again demand his pay for his services, by denying, under the circumstances developed in the record, that he was paid.
And it seems to us to make but little difference in regard to this question of payment, whether or no the court below found that Convers was in the service of Hallett or the railway company, or what was the real fact on this point. If he was working for the company, he most certainly received the amount of the check on his pay; and if he was working for Hallett, the same is equally true ; for, on the hypothesis that he was in the employ of Hallett, it is undoubtedly shown that Devereux paid the check to him on account of Hallett, and that he received it as such. If, then, after that, he parted with the money to Hallett, he could have no p.l aim on bim (Hallett) for services, but his claim would be for money loaned. So, also, if he had really been in the service of the company, he could loan the money to Hallett or to any other person; but doing so — and it seems too plain for argument — he would most certainly be held to rely on his right of action for money loaned, and as-against the party to whom the loan was made. We therefore think that there is no evidence in the record going to show that the defendant in error was entitled to recover the amount of the check in question, as against the railway company. The court below held that he was so entitled, as appears from any computation we are able to make under the evidence, and in so doing, committed an error, for which the judgment ought to be reversed.
But we go still further in this case, and say that we think- there was a failure of proof in regard to the assumption of the defendant in error, that he was in the employ of the railway company. He says in his testimony that Hallett employed him to keep books in the railroad office at Wyandotte, but he supposed it was for the company. This, as it seems to us, is the substance of the testimony — and it is doubtful if it is entitled to that name — bearing in favor of the claim of Convers, that he was in the employ of the company; while on the other hand, there is much and strong testimony going to prove that he was in the service of Hallett, as contractor, and was answerable to him alone.
But it is not necessary to pursue this question further, inasmuch as the first one, to which we have called attention, is decisive.
The judgment rendered by the district court is reversed, and the cause remanded, with instructions to sustain the motion for a new trial.
Bailey, Associate Justice, concurring. | [
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By the Court,
Bailey, J.
This cause comes up to this court on petition in- error from the district court of Atchison county, where it was tried at November term, 1867, by the court, without a jury, and judgment rendered in favor of the defendant in error, who was also defendant in that court.
The facts are fully stated in the findings of the court below! And the plaintiffs complain that the court below erred in its conclusions of law from the facts found. The findings of fact of the district court were as follows:
1. That the said defendant was, at the time alleged in this answer, the duly elected, commissioned and acting treasurer of Atchison county.
2. That the sum of $441, to recover which this suit was instituted, was levied as a tax upon the personal property of the plaintiff, in manner and form as alleged in the answer of defendant.
3. That said tax was illegal, unconstitutional and void.
4. The only question at issue in this case is, whether said tax was paid by said plaintiffs to said defendant voluntarily, or whether it was paid by coercion and under protest.
The facts, as shown by the evidence in the case, are as follows: Sometime in the spring of the year 1866, an action was commenced by numerous plaintiffs, of whom the plaintiff in this case, Moses Greenabaum, was one, against this defendant and others, for the purpose of restraining the collection of said tax.
In that action, an order for a temporary injunction was granted by the judge of the district court of this district, at chambers, to restrain the defendants from further proceedings for the collection of said tax. From that order, the defendant appealed to the Supreme Court on error.
The Supreme Court held the affidavit of the plaintiff, for an injunction, to be insufficient, and reversed the order. By consent of parties, however, the Supreme Court held the case for further consideration, and after-wards declared the tax to be unconstitutional. But before that decision was made, the Supreme Court sent its mandate to the clerk of this district court, reversing the aforesaid order for a temporary injunction. The clerk of this district court gave a copy of the mandate to the defendant, who thereupon went to the store of the plaintiffs, and the plaintiffs not being in, informed the clerks of the fact that he had received a mandate, and told them that the tax must now be paid. The clerks inquired what would be the consequences if the tax was not paid ; to wThich the defendant replied that if it was not paid, he would issue his warrant to the sheriff of the county, and that the sheriff' would levy upon and sell the stock of goods in the store, as upon execution. It was the intention of 'the defendant, as appeared from his testimony, to issue his warrant if the tax had not been paid. The tax was paid by said clerks in consequence of said action of the defendant, and would not have been paid otherwise. The next day after this, one of the clerks and agents of the plaintiffs (Moses Grreenabaum not being at home), went to the office of said defendant, and paid the tax.
Before defendant called at plaintiff* ’s store, the following notice was published by him in the newspapers at the city of Atchison :
£ ‘ N otioe to Tax-Paters. — Treasurer’ s Office, Atchison, Kansas, Sept. 4, 1866. — Notice is hereby given to all persons who have not paid the four and a half per cent, tax, in . the city of Atchison, on their personal property, that for all sums unpaid on the 14th day of September, 1866, I shall issue warrants to the sheriff of Atchison county, for collecting the same on that day. Samuel C. King-, County Treasurer.”
5. That the plaintiffs demanded from the defendant the said sum of $441, before the- commencement of this action.
6. Before demand was made by the plaintiffs, as aforesaid, the said defendant had paid said sum into-the treasury of -the city of Atchison, as alleged in -his answer.
And upon these facts the court does find its conclusions of law, as follows :
That the said sum of $441 was paid by the plaintiffs to the defendant voluntarily, and with a knowledge of the facts, and cannot, therefore, be recovered.
The defendant could not compel the sheriff to levy an illegal warrant, and tlie plaintiffs liad no right to suppose that the sheriff would do so, and they cannot, therefore, say that they were coerced to payment.
These findings of fact and conclusions of law in the court below, reduce the question to be passed upon by this court to a very narrow compass.
Clearly, an illegal tax paid under duress to prevent' seizure of goods, may be recovered back if the county treasurer receiving it had notice of the facts, and of the involuntary payment while the money was yet in his hands. Was the payment, then, under the circumstances stated by the court below in this case, a voluntary payment, or not ?
The plaintiff, Moses Creenabaum, was absent from home, leaving clerks to manage affairs in his absence. The defendant goes to the store and makes statements and representations well calculated to alarm the clerks; and as it would seem, simply to prevent the seizure and sale of their employers’ goods, at what would probably have been a ruinous sacrifice, by the sheriff as on execution, these clerks pay the taxes which their employers had refused to pay, and had commenced and wei*e then prosecuting legal proceedings to set aside. We think such payment, under all the circumstances, was not a voluntary payment of money by the plaintiffs.
If tax gatherers can be protected in the use of false or colorable pretexts, or of strategy, to frighten the employees of an unwilling tax-payer, in his absence, into the payment of an illegal and void tax, on the ground that such payment, extorted from the fears of the agents, was a voluntary payment on the part of the principal, who was absent and ignorant of the whole transaction, we do not understand the proper use of language.
But the defendant alleges that he had paid the money' over to the city of Atchison before the plaintiffs made -demand upon him for repayment. Under some circumstances this might, perhaps, constitute a sufficient ground of defense, but we think not upon the state of facts disclosed in this case.
An application pending in the Supreme Court for a perpetual injunction to restrain the collection of this very tax, should have been ample notice to the defendant not to pay over money obtained as this was, until the final determination of the questions involved. A formal demand was not necessary.
The judgment of the court below is reversed, and the cause remanded.
All the justices concurring. | [
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By the Court,
Bailey, J.
Before the adoption of the amendment to § 3 of art. 5 of our state constitution, no question of this kind could have arisen. As the last clause of that section positively excluded every soldier, seaman and mariner from the exercise of the elective franchise.'
The amendment to this article and section, adopted for the express purpose of enabling.our citizen soldiers to vote while serving in the army as volunteers, is in these words:
“ Seo. 3. For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States ; nor while engaged in the navigation of the waters of this state, or of the United States, or ' of the high seas; nor while a student of any seminary of learning ; nor while kept at any alms-house, or other asylum, at public expense ; nor while confined in any public prison. And .the legislature may make provisions for taking the votes of electors who may be absent from their townships in the military service of the United States or of this state ; but nothing herein contained shall be deemed to allow any soldier, seaman or mariner in the' regular army or navy of the United States,-the right to vote.”
That clause, so long as it remained a part of the constitution of the state, effectually barred all access to the polls, so far as the three classes mentioned in it were concerned. That clause is removed by the amendment heretofore quoted, and of course we must look to the other provisions of the article on suffrage, to determine the status of the plaintiff in error in this regard.
Section one of art. -5, lays down the general rule that “every white male person of twenty-one years and upwards, who shall have resided in Kansas six months, next preceding any election, and in the township or ward in which he offers to vote, at least thirty days next preceding such election, being a citizen of the United States, or if of foreign birth, having declared his intention to become a citizen, shall be deemed a qualified elector.”
The case at bar shows that all these qualifications were possessed by the plaintiff in error, and that he had the right to vote unless the mere fact that he was an officer in the regular army of the United States should debar him, by virtue of the constitutional provisions on that subject.
We are clear that the only provisions ever contained in the constitution of Kansas, which could fairly be deemed to have that effect, was the anomalous clause we have quoted, which was abrogated by the amend ment of 1864. Aud perhaps it is not too much to suppose that the apparent inconsistency of disfranchising educated and patriotic native-born citizens for no other reason than that of being in the military service of the country; while at the same time “every white male person of twenty-one years and upwards,” whether citizen or inchoate citizen, was admitted to exercise the right of suffrage, was one of the grounds on which the legislature proposed, and the electors ratified the amendment.
That amendment, as it seems to us, contains all the restrictive provisions necessary to prevent officers or soldiers of the army, stationed within the limits of our state, from acquiring a right to vote here while having homes elsewhere, or having no homes anywhere except the quarters or barracks provided by the government.
We conclude that a white male person of twenty-one years or upwards, being a citizen of the United States, or having declared his intention to become such, as required by law, who has resided in Kansas six months next preceding any election, and in the township or ward in which he offers to vote, at least thirty days preceding such election, is a legal voter in Kansas; notwithstanding he may be an officer or soldier in the army of the United States, provided, always, that he shall not be deemed to have gained a residence for the purpose of voting, by reason of his presence while employed in the service of the United States. .
As the plaintiff in error is admitted to have had all of the required qualifications at the time his vote was refused, the judgment of the court below must be reversed.
All the justices concurring. | [
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By the Court,
Safford, J.
George H. Crist brought an action against David Hays, to recover damages for injuries to his growing crops, alleged to have been done by defendant’s hogs, in June, 1865. Trial was'had before S. V. Lee, J. P., of Pottawatomie county, and Crist recovered a judgment for fifty dollars damages, and costs of suit. Defendant then appealed to the district court, where the issues between the parties were made up by the filing of the plaintiff’s petition, the answer of defendant, and the reply of the plaintiff. The cause was submitted to a jury, who returned a verdict for plaintiff, and upon which he had judgment.
Hays now brings the case to this court by petition in error, alleging several grounds for reversal, a portion of which only do we think it necessary to notice. The case made shows that, before the trial, the defendant-moved the court to compel the plaintiff to amend his petition by inserting the precise date of the trespass, which motion was overruled. Defendant then moved to strike out the petition, for the reason that it did not conform to bill of particulars before the justice. This petition did show that the trespass was committed in the month of June, 1865; and it also varied from the bill before the justice in some other particulars. But we think the objection of defendant came too late. He had filed his answer without making the point in apy way, and the court was right in holding that he had. waived his right to complain.
On the trial, as the case made shows, the plaintiff was permitted, against the objection of the defendant, to offer evidence to prove what the crops of the said plaintiff would have been worth in the fall of the year, if the hogs of the defendant had not committed the alleged trespass, in order to prove the damages the plaintiff had sustained. This was clearly erroneous. The only just rule by which the damages, if any had been done to the crops, could be estimated, was to confine the testimony to what it was at the time the trespass was committed. Besides, it is not easy to see how testimony as to what the crops might have been worth in the fall, could be put before a jury so as to assist them in determining the real issue in the case, viz : How much was the plaintiff’s crop damaged by defendant’s hogs, in the month of June, 1865? This was certainly all the damages for which he, the defendant, could be held liable under the pleadings.
Another point is made by the counsel, relative to which we will make a singLe remark. We think that it would have been proper for the court to ' order the lessee of plaintiff to be made a- party, when it was declared that such lessee had. an interest in the crops alleged to have been damaged by defendant’s hogs.
The judgment of the district, court is reversed, and cause sent back for a new trial.
All the justices concurring. | [
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By the Court,
Safford, J.
There are several assignments of error in this case, which have been presented and insisted upon by counsel with much earnestness, as furnishing, and each in itself, ample grounds for the reversal of the judgment herein, as entered by the district court. But it will not be necessary to consider all of the errors complained of, inasmuch as the views we entertain, respecting a small portion of them, practically determine the disposition of the case, as far as we are concerned. But even if we were disposed to discuss all the points which have been raised by the argument, we should, perhaps, be unable to do so with satisfaction to ourselves, owing to the condition of that part of the record — ■ confused and meager — in which those portions of the proceedings below upon which some of such points rest, are stated in the exceptions, or rather in the “ case made.”
The first alleged ground of error, which we propose to examine, is that in relation to the admission of secondary evidence to the jury for ihe purpose of showing the contents of the written contract or instrument, upon which the action was founded. The record shows that the plaintiff was a witness in Ms own behalf, and that in regard to the written contract he testified as follows : That such written contract was executed by himself and the defendant, on behalf of the Quindaro company; that at the time this suit was commenced, he went to the office of Mr. Chadwick, who had the custody of the contract, and took a copy of the same ; that he left the contract with Mr. Chadwick, in Quindafo, where he then resided ; that at some time during the progress of the suit, he delivered the original contract to his attorney. And on cross-examination the plaintiff further stated that he would not be positive whether the paper he gave his attorney was a copy of the contract, or the original. Stockton, who was the attorney referred to in the plaintiff’s testimony, was then called, and testified that he received from plaintiff what purported to be a contract like the one described in the petition, and which he filed in the action; but whether it was the original or not, he was unable to state. C. S. Q-lick then testified that when he filed the reply to defendant’s answer, he saw a paper in the files that purported to be the contract, but whether it was the original or not, he could not state. The above seems to comprise all the evidence which was submitted as preliminary to the introduction of secondary evidence of the contents of the contract.
The defendant below insisted that a sufficient foundation had not been laid to authorize such secondary evidence to go to the jury. But the court overruled Ms objection, and allowed the evidence. We think that this ruling of the court was clearly erroneous. In our view, there was nothing in the evidence even tending to show that the original contract was lost, or that it was beyond the reach of the plaintiff. And, indeed, from all tliat appears tó the contrary on Ms part, it might have been, at the very time of the trial, in Ms own possession, or in that of some of his friends. The plaintiff’s own testimony shows that a third party had been made the custodian of the contract, thus rendering it certain that he knew where to look for it, and especially so, when we consider thé fact that he declares that he took a copy thereof at the time of the commencement of the suit, and that he left the original with the party having the custody of it. Besides this, he does not show, or attempt to, that it had, in any manner, been removed from the care of the depositary (who had been mutually agreed upon between the parties), unless his own statement, to the effect that sometime during the progress of the trial he delivered to his attorney the- original contract, would tend to such result. But even this statement is rendered of but little value by Ms after-assertion that he was not sure that the paper delivered to Ms attorney was the original. Taking all of the statements of the plaintiff and his attorney together, which bear upon this point, it would seem to be quite certain that the paper which he delivered to Ms attorney as the contract, was really and in fact not so, but the very copy of the contract which he himself had made. And this conviction is rendered irresistible when we consider the testimony of the depositary, Mr. Chadwick, to the effect that he had no knowledge or recollection of having been called upon by either party for the contract.
It is a well settled principle of law, governing the introduction of testimony, that secondary evidence of the contents of written instruments, is not admissible when the originals are within the control or custody of the party, or when they are witMn Ms reach, and may be obtained with reasonable effort on his part. If under such circumstances he does not produce them, or cause them to be produced, or at least make some reasonable effort to secure such production, their absence is the result of his own laches, and he will not be permitted to substitute secondary evidence. 1 Greenleaf, § 84, p. 99 ; 9 Wheaton, 558; 2 Phillips Ev., 215 to 217, and notes to text.
In this case we think it is clear that the plaintiff did not make such effort as he ought to have made to procure the original contract, to entitle him to offer secondary evidence of its contents to the jury.
But while we think that secondary evidence of the contents of the written contract should not have been allowed to go to the jury at all, under the testimony of the plaintiff and his attorneys, our conviction is doubly strong that after the evidence of Mr. Chadwick had been introduced, all such secondary evidence should have been ruled out, and the jury instructed not to take it into account in making up their verdict. The court refused so to do, and thereby committed another error, calculated to prejudice the rights of the defendant.-
As a further ground of error, it is alleged that the court erred in instructing the jury that they must allow and compute the interest on the plaintiff’s claim, at the rate of ten per cent, per annum, from the 2d day of October, 1857. This was clearly wrong, inasmuch as the laws regulating interest, in force at the time, when it is alleged the money became due to the plaintiff, to wit, on the 2d day of October, 1857, and at the time when the judgment was rendered, to wit, on the 6th day of October, 1865, did not permit of such a rate of interest upon such claims.
It is claimed that the court erred in failing to charge the jury in relation to the subject of the plaintiff’s claim for pay for extra services on the Sabbath. This question is not very clearly presented in the record, and we are unable to discover just the position it assumed before the court and jury, by reason of the failure of the parties to set out all of the evidence.
But we really cannot see how such a claim could be brought in under the contract. The plaintiff agreed to work on the ferry for the sum of one hundred dollars per month, and the whole record, taken together, shows that he did so work for the term of six months, and perhaps two or three days.
The contract is silent as to any extra pay for services on the Sabbath, or otherwise : and if he chose to perform such service, he will be held to have performed it under the contract. We think, from all the circum-' stances developed in the record, that any claim for extra service was simply without foundation.
It is further claimed that the court erred in failing to charge the jury in regard to the question of settlement between the parties, as to which there was testimony introduced by both plaintiff and defendant. It is no doubt the duty of courts to charge juries upon all the issues of law involved in cases which may be submitted to them, but it frequently happens that a failure so .to do does not work any serious injury to either party, and if substantial justice has been done, a revising court will not reverse a judgment for such failure alone. In this case it no doubt would have been proper for the court to have charged the jury further than it did, and upon some points which he did not touch upon, as it appears by the record. But inasmuch as such instructions as were asked do not seem to have been put in writing and presented to the court for allowance or refusal, and as the same state of facts may not arise on a new trial, we do not feel called upon to pursue this part of the case further. As to the instructions which were given by the court, so far as they went, we see no objection to them. As to the question of the statute of limitations, attempted to be raised, we are frank to say that we do not consider that it is in the case at all.
The judgment of the district court is reversed, and cause remanded, with instructions to sustain the motion for a new trial.
All the justices concurring. | [
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By the Court,
Kingman, C. J.
The appellant in this case was tried and convicted in Miami county, on a charge of attempting to pass a certain forged and counterfeited United States compound interest treasury note, of the denomination of fifty dollars.
No objection is made to the indictment for any want of form therein, but it is claimed that the paper described in the indictment as forged and counterfeited, does not come within the range of any of the class of cases designated in the laws of the state, and consequently, that the indictment is insufficient.
The appellant claims that the indictment was intended to charge the offense as a violation of sections 111, 112 and 113 of the act regulating crimes and punishments, and contends that the paper described in the indictment does not come within the range of any of the class of cases designated in those sections. In this, the counsel for the appellant are undoubtedly correct. A careful examination of those sections will clearly show that by no construction can they be made to include the securities of the United States.
But section 119 of the act above referred to, is broad enough in its terms to comprehend the instrument set out in the indictment. Among other provisions, this section declares that any person who shall, with intent to injure or defraud, forge or counterfeit any instrument of writing, purporting to be the act of another, by which any pecuniary obligation shall be created, shall be adjudged guilty of forgery in the third degree. This is so much of the section as applies to this case, and we think there can be no doubt but what.it includes the paper set out in the indictment. That is a paper which creates a pecuniary obligation on the part of others than the person forging or counterfeiting it, and the making of it cannot be for any other purpose than to injure and defraud. It bears this purpose on the face of the transaction. It is true that this section only denounces its penalties against those who make, alter, forge or counterfeit; not those who pass or attempt to pass such counterfeit paper upon others. Section 124, however, provides that whoever shall, with intent to defraud, offer or attempt to pass any forged or counterfeited instruments or writing, knowing the same to be forged or counterfeited, and the forging or counterfeiting of which is in the previous sections of the act declared to be an offense, shall be deemed guilty of forgery in the same degree as that prescribed for the forging or counterfeiting of the instrument ; and this section, when taken in connection with 119, seems to us to clearly cover the offense with which the appellant was charged.
At the time our criminal laws were enacted, no such paper as that described in the indictment had an existence, but the legislature evidently intended to include all cases of forgery or counterfeiting, and so protect the interests of society. To do so, they used broad and comprehensive terms, that should meet every exi gency, ancl in the case before us, we have no doubt that they accomplished the purpose.
Judgment affirmed.
All the justices concurring. | [
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By the Court,
Bailey, J.
The record, in this .case, presents precisely the same state of facts as that in the case between the same parties, decided in this court at the January term, 1867, with a single important exception. That exception or point of difference consists, in fact, that in the new trial the court finds as a fact that all the property attached, though in Shawnee county at the time it was . attached, was in Douglas county at the time the actions of the defendants in error, Carney & Stevens and Drey- ■ foos & Dreyfoos, were instituted in Douglas county,' and this finding of fact is fully supported by the most unimpeachable testimony — that of the plaintiff in error himself, who swears distinctly that he had charge of .the property at the time, and that during the whole of the fourth day of July, the property remained near Big Springs, in Douglas county, and that on the fifth it was moved within the limits of Shawnee county. In the former case, we held, upon the state of facts admitted by the demurrer, that the jurisdiction of the Douglas county district court did not attach, because, at the time the action was commenced, there was nei - .ther property of, nor debts owing to, said defendant, Meyer; nor was said defendant to be found within the county; and that the district court of Shawnee county had acquired jurisdiction of the property before Meyer came into Douglas county and was personally served. We are entirely satisfied of the correctness of that decision upon the state of facts appearing in that case ; and we are, therefore, compelled to conclude, from the same course of reasoning, that where it is' conclusively shown that at the time the actions of the defendants in error were instituted in Douglas county, the whole of the property in question was within the limits of that county; that the district court of Douglas county had jurisdiction, and that the attachment of the same property, two days afterwards, in Shawnee county, was regular, and gave to the defendants in error a priority of lien in the property attached.
The property of the defendant, Meyer, was within the state on the fourth of July, 1866, and as he was per sonally non-resident, the property was liable to attachment for his debts. In what county was it so liable on that day ? Most clearly, in the county in which it was on that day; that is, in the county of Douglas.
Accordingly, suit was'commenced in the county of Douglas, summons and order of attachment issued, and jurisdiction having once vested in the court, it could not be divested by the subsequent removal of the property across the county line oí Douglas into Shawnee, where it was attached on the process properly and legally issued in Douglas county, before the’rights of any person had intervened, or any process had issued from the court in Shawnee county.
The judgment of the court below affirmed.
Kingman, C.-J., concurring.
Thomas Carney et al. v. Robert Taylor, ante p. 178. | [
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By the Court,
King-man, C. J.
An agreed case was submitted to the district court of Shawnee county, in which the facts were briefly these: The plaintiff in error had been appointed to defend a man charged with larceny, and had performed Ms duty as such attorney. The case was such an one . as authorized the' district court ‘to make the appoint-. ment, and the plaintiff was duly qualified to act. After the performance of the duty to which he was appointed, the district court made an allowance of $15 for his services. The county board refused to allow the claim. The plaintiff appealed to the district court, and that court confirmed the decision of the county board, and gave judgment against the plaintiff for costs. The plaintiff seeks in this court to have that decision reversed. The argument was earnest and eloquent, and would probably have brought conviction in the minds of the court, had they been engaged in maMng laws instead of declaring what the law is. The law makes provisions for such appointments, but not for any compensation. Whether this is the result- of oversight, or design, is alike immaterial; the fact is fatal to the plaintiff’s claim.
We admit that the courts of Indiana and Wisconsin have, in cases like the one at bar, and in the absence of legislation, ruled .otherwise. (9 Wis., 274; 13 id., 586; 20 id., 418; 6 Ind., 13.) It is hot our- purpose to review those cases. We can only again assert that the reasonings of each and all of them are directed to the law-making power, not to the judicial tribunals. In the Indiana case, the court, after having settled the case, acknowledged their- impotency in the matter by declaring the.inability of the court assigning counsel “to settle the amount of compensation or-make an allowance.”
The great and inherent error in the Wisconsin cases, as well as in the Indiana case, is in a misapprehension of the relations which an attorney, appearing for a pauper by assignment of a court, bears to the com* munity. There is no contract between them. The court assigns counsel,' not employs one. The county cannot control the prosecution; it is not for its benefit, nor in its name, and therefore there can be no implied assumpsit in the case — no legal obligation to pay.
It is true that it would be a disgrace to the jurisprudence of the age if a man should be tried without counsel, merely because he is poor. It would be a worse disgrace if a man were allowed to starve, in a country like this. Yet if the legislature makes no provision for the poor, those who give in private charity would look in vain to the county for reimbursement. The considerations urged in this case are strong, the reasoning satisfactory, but the court is powerless.
The law has given us no power. If the boards of county commissioners close their bars to the appeals, and the legislature will not act, then, as heretofore, the matter must rest in the tender conscience and manly honor of the members of the bar.
The decision of the court below is affirmed.
All the justices concurring. | [
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By the Court,
Baxley, J.
This cause, which comes up on error from Bourbon county, was an action by defendant in .error, against plaintiff in error, to recover damages for an assault and battery, by shooting, to which the defendant below, now plaintiff in error, answered that the plain tiff below, now defendant in error, made the first as • sault, and shot first; and that the shooting of which plaintiff complained, was done in self-defense. The plaintiff replied, denying that he made the first assault, and the cause was tried by a jury, with much contradictory evidence, and some attempts at impeaching witnesses; and a verdict was given for the plaintiff below, for the sum of thirty-five dollars and costs.
The plaintiff in error complains that the court below erred in refusing to allow the amendment proposed to his answer. The original answer admitted the assault, but excused or justified by alleging that plaintiff made the first assault. •
On the trial, the defendant proposed to amend by adding to the answer, at the end thereof, the following: “And saving and excepting as aforesaid, the defendant denies each and every allegation, matter and thing in the plaintiff’s petition averred,” but made no showing why he should have leave to amend.
The granting or refusing leave to amend, is a matter within the sound discretion of the court which tries the cause, and, except in a case where such discretion was manifestly abused, this court can never interpose. Such abuse of discretion is not manifest in this case.
Another alleged error was in the court below refusing to permit the defendant to prove the. common reputation, general character and general reputation of the witness, Clendening (the plaintiff), and restricting the witness as to character — to tlie character for truth and veracity.
We think the ruling of the court below was correct on this point, and supported by an immense preponderance of authority.
But, in the instructions; to the jury, there was, we think, manifest error. The second instruction was that, “the averment in the petition, that the plaintiff was compelled to pay one hundred dollars for medical attendance, not being denied in the answer, is admitted as true, and if the jury should find for the plaintiff .at all, they must assess his damages at not less than one hundred dollars,” was certainly wrong, since the same section of the code (§ 137) which lays down the rule that “allegations in the petition, not controverted by the answer, shall be taken as true,” also declares that “allegations of value, or of amount of damages-, shall not be considered as true, by failure to controvert them.”
And besides this, the plaintiff himself had proved that his disbursement and liabilities for medical attendance did not amount to one-half of a hundred dollars. Still, as the jury must have disregarded this instruction of the.court, since they assessed the plaintiff’s damages at barely thirty-five dollars in all, we cannot see that the plaintiff in error is aggrieved or injured by this error of the court.
But the third instruction must also.be deemed erroneous, and we cannot say that it was harmless. It was given in these words, at the request of the plaintiff below: “If the jury should find, from the evidence, that the plaintiff committed' the first' assault, yet, if they should believe that the defendant (plaintiff in error) had used more force than was necessary to defend himself, and in so doing had shot the plaintiff when it was not necessary for him so to do, and when it would not, to a reasonable man, have* appeared necessary for him to do so to save himself from being harmed by plaintiff, then they must find for the plaintiff.” This instruction might have been very nearly correct, had the State, instead of the original assailant, been the prosecuting party. But in this case it was not the State seeking to punish the disturber of her peace, and thus vindicate her offended laws ; but the plaintiff sues for damages as compensation for injuries suffered in an affray in which firearms were used by one party, and perhaps by both.
The two principals in the conflict with firearms are placed upon the witness stand, and swear against each other, as earnestly as they fought. And each is supported and corroborated in his statements by the testimony of one or more of his children.
The testimony is conflicting; and it is difficult for us to avoid the conclusion that one or the other of the principals swore falsely, and knew that he did so. On one side it is claimed that the plaintiff was attacked without cause or provocation, and shot in the left breast, with a revolver. On the other side it is asserted that the plaintiff himself made the first assault, and fired the first shot.
Now, it seems to us that if the plaintiff was, in truth, an aggressor, and made the attack upon the defendant as alleged, with deadly weapons, and in pursuance of previous threats to kill the defendant; and if, under those circumstances, the defendant had, in self-defense, discharged his revolver at his assailant once or twice more than was necessary, it would not be for the plaintiff, who had made the assault, and had met with a repulse, to transfer his cause from the field to the forum, and recover damages of his intended victim for making a too vigorous and successful defense. Yet this seems to us to be the effect of the instruction in question. It assumes that the plaintiff was the assailant, and then instructs, in a certain contingency, to mulct the defendant in damages for his benefit;
We do not think the law could furnish a healing-plaster for Ms wounds in the case supposed. In that case he was the original transgressor. The law had been outraged, - but he had not. The unnecessary force and violence was an injury to the public- peace, for which -the defendant might be called to answer to the public,. but not to him. He cannot undertake to wreak a lawful vengeance upon his antagonist — -pistol in hand— and, defeated, sue him for damages to the person, upon the basis .of the instructions. He must run his own risk. Nor would it be an easy matter for the party, attacked in the manner narrated in the testimony of the defendant, to act with all the deliberation the instruction would seem to require. In the heat of blood, he could hardly be expected to weigh his words or to measure or count his blows or shots very carefully. “All that a man has will he give for- his life,” and a man thus attacked must be allowed some latitude in defense of his life.
Judgment reversed. Cause remandedfor a newtrial.
All the justices concuning. | [
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By the Court,
Kingman, C. J.
The relator shows, by affidavit, that he is the owner of a warrant, drawn by the auditor of state on the treasurer, for $93, it being for a portion of his pay as member of the legislature for the current year; that he presented said warrant to the state treasurer, and was refused payment for want of funds. That the governor of the state had tendered to the board of commissioners for the management and investment of the sóhool fund the bonds of the state, as provided by the act entitled “An act providing for the issuance and sale of the bonds of the state, for the purpose of paying the officers and members, of the state legislature, and current expenses of the state,” approved March 2d, 1868, and that the board had refused to invest the funds under their control in said bonds. Upon this showing, the relator moves the court for a writ of mandamus, compelling the board to make such investment. ' The board of commissioners appear and resist the motion, upon the ground exclusively that the act above referred is not authorized by the constitution.
Thm motion might well be denied on the showing made, for other reasons than that presented-by.the defendants. Among others, it does not appear that the relator lias any direct interest in tlie action of tlie board, for it is not shown that the board has any money under their control to buy bonds with. Nor is it manifest that if they had money, and invested it in the bonds, the relator would get any of it.
Again, under the act- holding it valid, the board has a discretion as to time and terms, which it does not appear has been exercised, and with which a court will not interfere. But, as the relator and the board agree in asking a decision of the motion on the sole ground of the constitutionality of the act above referred to, we do not feel at liberty to avoid the duty, especially as a refusal of the writ upon the grounds first indicated, would probably bring the main question again before the court for consideration.
The act referred to directs the issue and sale of $30,000 of the bonds of the state (with interest coupons attached), payable in twenty years from date, and directs, in section four, “that the commissioners for the management and investment of the school funds are authorized and directed to invest an amount of the permanent school funds in said bonds, sufficient to satisfy the requirements of this act.” The act further provides that the bonds shall not be sold for less than ninety cents on the dollar ; provides, also, for the levy of a tax to pay the interest and create a sinking fund, and contains other provisions necessary to carry out the objects thereof.
The object of the enactment is stated in the title, to be for the purpose of paying the officers and members of the state legislature, and current expenses of the state. It is contended by the respondents that this act is in conflict with the provisions of article 11 of the constitution of the state.
■ Those parts of that article bearing upon this question are as follows:
£‘Section 3. The legislature shall provide, each year, for raising a revenue sufficient to defray the current expenses of the state.”
£ ‘ Section 5. For the purpose of defraying extraordinary expenses, and making "public improvements, the state may contract public debts.”
£ £ Section 6. No debt shall be contracted by the state except as herein provided, unless the proposed law for creating such debt shall first be submitted to a direct vote of the electors of the state, at some general election; and if such q>roposed law shall be ratified by a majority of all the votes cast at such general’election, then it shall bé the duty of the legislature next after such election, to enact such law, and create such debt, subject to all the provisions and restrictions of the preceding section of this article.”
Section 7 authorizes the state to borrow money to repel invasion, suppress insurrection, to defend the state in time of war.
The question we have to decide is, whether the act of March 2d, 1868, above referred to, is.in contravention of the constitutional provisions as to contracting debts. If it is, however unpleasant may be the duty of differing with a co-ordinate branch of the government as to its powers, it is still a duty we are not at liberty to decline. If an act of the legislature prescribes a role of action not authorized by the limitations imposed by the fundamental law of the state, it cannot become a law, and the courts cannot so regard it. Courts are bound by the lav/. But one of two incidentally conflicting rules can be observed,’ and if one of such rules be found in the constitution and the other in the act of the legislature, we are to follow the fundamental law, and must necessarily hold the act-of the legislature void. So in this case, if the constitution inhibits the contracting of such debts as the act provides for, we cannot say the respondents shall comply with the terms of the legislative enactment, and disregard the constitutional limitations.
If this is a conflict, the constitution must prevail. We think there is such a conflict, and that it is irreconcilable. Article 11 prescribes the general financial policy of the state. Section 8 of that article declares it the duty of the legislature to provide the revenue for the current expenses of the state each year. This section would be popularly taken to mean that taxes should be levied each year to meet the current expenses. And this is precisely the technical construction.
The-word “revenue,” in this connection, means the income of the government arising from taxation, excise and the like. See Bouv. Law Dic., title Revenue; Story on Const., §880.
This section is directory to the legislature only. It prescribes a duty to that body, and a rule to guide them in the discharge of that duty. From the exercise of their discretion under that section, there is no appeal save to the people, the great conservative power in a popular government.
If the taxes levied are inadequate to meet the current expenses, those having claims against the state will find in depreciated scrip just cause and adequate motive to make their grievances known, and the people can correct the evil by instructing their agents to make the taxes higher or the expenses less, as they may deem right. The section is quoted and commented on, as necessary to show the settled policy of the state. Its object was to prevent extravagance by calling immediate and general attention to it in the shape of high taxes, or in depreciated credit, thus indirectly, but very efficiently, prescribing limitation upon that subject. The 5th, 6th and 7th sections of article eleven, are the only ones authorizing a public debt. An examination of these sections will show, conclusively, that in none of them, nor in all of them, will there be found any authority for the act of the legislature under consideration.
The 5th section authorizes a public debt for extraordinary expenses, and for making public improvements. It is claimed by the relator that the-legislature is the sole judge of what is an extraordinary expense, and that its decision on that matter is not reviewable.
If this be true, which is neither admitted nor denied, it still does not apply to this case, for there is no pretense in the law that the expenses were extraordinary in their character. The object is plainly stated in the title to be for the purpose of paying the officers and members of the legislature, and current expenses of. the state. .
These are the common and ordinary charges of a government, accruing necessarily each year. None more so can be imagined. They are precisely what the constitution declares shall be met by annual taxation. The legislature has not even pretended to declare the expenses extraordinary in their character, or in the circumstances attending them.
The court is not placed in the disagreeable position of disagreeing with the legislature on this point. . The law would not have been plainer or more explicit had it said for “ ordinary expenses,” than it now is. The object is declared, and it is too plain to admit of a moment’s cavil. If such expenses are not of an ordinary character, there can be none.
The relator seems to have felt the full weight of this conclusion, which he seeks to avoid by claiming “that an emergency may arise when the necessities of the case are higher than the organic law itself. That the self-existence of the government may require the legislature to resort to extraordinary measures to secure funds to carry on the state government, and that the case at bar is one of such cases ; and of this the legislative and executive departments of the state are the sole judges.”
The first proposition in this quotation from the brief of the relator, we shall not comment on. It may be true; it Certainly is dangerous. The record meets our approbation.
We can imagine circumstances that would amply justify the legislature in resorting to extraordinary measures to secure funds. The constitution has wisely made provision for such cases, with such prudent limitations and restrictions as seemed necessary to protect the people of the state. But this is not one of those cases, and the legislative and executive departments (whether the sole judges or not), have so said in the act itself, as has, we trust, been before made apparent.
Again, it is claimed under the fifth section, that the issue of the bonds and the investment of the school funds in such bonds as contemplated by the act, is not the creation of a debt, but only changing the form of such debt. This is fallacious. The constitution speaks of. contracting a debt, and this law contemplates the contracting of one debt to pay another — the contracting of a permanent debt to the school fund, to pay off certain current expenses. If a construction such as 'that contended for should prevail, it would allow the legislature to break down constitutional restrictions by their own neglect.
They need not make the appropriations for current expenses exceed the taxes they are willing to impose; then, calling the deficiency a debt, fund it, make it permanent, and the safeguards of thé constitution disappear. .
We are not disposed to deny that an unpaid warrant of the state is a debt, in'one sense of that term; but it could never be expected that any financial scheme extending over a state could be so arranged as that the revenue, each year, should exactly balance the audited claims. Such a construction would demand an impossibility ; but the general financial policy of the state is to make them balance as near as may be, and this does not contract a debt in the meaning of the constitution.
The Supreme Court of Ohio says, with propriety: “Under the system of prompt payment of expenses and claims as they accrue, there is undoubtedly, after the accruing of the claim, and before its actual presentation and payment, a period of time intervening in which the claim exists unpaid; but to hold that for this reason a debt is created, would be the misapplication of the term “debt,” and substituting for the fiscal period a point of time between the accruing of a claim and its payment, for the purpose of 'funding a debt; but appropriations having been previously made, and revenue provided for payment as prescribed by the constitution, such debts, if they may be so called, are, in fact, in respect to the fiscal year, provided for with a view to immediate adjustment and payment. Such financial transactions are not, therefore, to be deemed debts.” 7 Ohio S., 529.
Whatever may be the exact nature of the claim, it is one- to be met by raising a tax, and not by creating a permanent debt, which cannot be done under the section for any such purpose as that declared in the law.
Section six does provide for the contracting of a debt of the kind and character mentioned in the act before us, but makes the submission and ratification of such proposed law to a vote of the people a necessary prerequisite to its validity.
Section seven provides for a debt, for two purposes only. It- is not claimed that either of these sections sanctions the law in question. They are referred to by us to exhibit the general financial system of this state, and show that ample power is confided to the legislature to meet every exigency, if wisely and prudently used.
It is manifest that, in our view, the legislature had no power to contract the debt in that way, and, therefore, the law imposed no obligation upon the respondents, and they have proved faithful guardians of the funds committed to their care by the constitution, in preserving them inviolable.
The writ of mandamus must be refused. The affidavit of the relator, as well as his brief, refers to a joint resolution on this same subject, and of the same general tenor as the law we have examined. At least, so far as this case is concerned, it is clearly a law of a general nature, and has never been published; therefore, we have not noticed it in this opinion, as it is not yet in force. Art. 2, § 19, Const.
Nor must our silence upon section nine of article six be taken as indication of any opinion that that section might not have a controlling influence in this case. We ■are content to rest our decision on the grounds before stated, and leave 'the interpretation of this section till it shall become necessary.
All the justices concurring. | [
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By the Court,
Kingman, C. J.
The relator in this case was awarded the contract for the printing and binding of the general statutes, finder the law of the last session, approved March 8th, 1868, and asks the court to award Mm a writ of mandamus, compelling, the secretary, and the commissioners appointed to codify the laws, to furnish him the copy thereof. Such principles as were deemed material to discuss, and which must control this case, were presented in the case of The State ex rel. John Speer v. R. A. Barker, ante, decided at this term of the court. It is, however, contended for the relator in this case, that the two contracts may well be in force; that there is sufficient evidence in the law of last winter to justify such a conclusion, and that in such a case the court is bound to give such a construction as will give effect to that law, so far as the relator’s claim is concerned. We concede, as a sound rule of construction, that the courts will hold that the presumption is that every statute, the object and provisions of which are among the acknowledged powers of legislation, is valid and constitutional, and such presumption cannot be overcome unless the contrary clearly appears ; and, therefore, unless it clearly appears that the legislature transcended its powers by directing a new contract to be made, this court will be constrained to hold the relator’s contract valid and binding, and his right to the writ prayed for undoubted.
We do not propose again to examine the question decided in the case of Speer, relator, v. Barker.
It was there held that the legislature could not avoid its contract, by a new law ; that it had exhausted its power over the printing of .the laws when it had let them by contract, and the contract still held good. But here it is insisted that the printing claimed by the relator is of a different character. Other matters, such as the constitution, are to be printed. The laws are to be printed with head notes and references to decisions, upon a different quality of paper, of a larger size, and with different type, and are to be differently bound, and a larger number are to be printed. In short, the differences are so many, and s,o minute, that it would seem that the law was studiously drafted for the argument, rather than the argument made for the law. There is hardly a conceivable agreement in the specifications of the two laws, and yet they have one and the same object, viz: The printing of the general and special laws. If, as we believe, the legislature, mistaking its power over the matter, desired to provide for the printing of the new revision in a better and more desirable manner than was stipulated for in the previous laws on that subject, their purpose would be readily understood and approved.' But, if they, with studious skill and laborious minuteness of detail, sought to accomplish this purpose by multiplying variances, so that the state should be burthened with the cost of paying for the printing of two sets of laws, then the measure of approval will be very much diminished. And yet this unworthy motive is the one, in effect, that the counsel places as the influential one, with those who made the law. It is not the language of his argument, but it is its logic. We attribute no such motive, but think they acted in good faith — not to make- a contract, or to avoid one, but, under a misapprehension of the facts, or their power in the premises, thought only to give a more perfect and desirable copy of the revision they adopted to the people of the state. Still, it was their main controlling idea to have the laws printed- and circulated. This had already been provided for. The state was bound by its contract. If it could avoid its contract by a multiplicity of changes in the details, then a contract with the state is of no value, for it is subject' entirely to the caprice of the legislature. If it would provide for the printing of two sets of laws, it might for a dozen; and the constitutional limitations, and the objects sought by them, would be valueless. We think, so far as the law of last session provided for the printing of the laws is concerned, the legislature exceeded their power; and it follows as a necessary and inevitable consequence that the relator could get no contract under it.
The motion for a mandamus must, therefore, be re-fa sed.
All the justices concurring. | [
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Per Curiam:
This was an action for a reconveyance of real property transferred by a deed which was alleged to be a mortgage, and also for an accounting. The question submitted to, and determined by, the court was whether an instrument executed and delivered by plaintiff to defendant was intended as an absolute conveyancé, or only as a mortgage to secure indebtedness. Much evidence bearing on the issue was introduced in which there were inconsistencies and some conflict, but, all together, it fairly tended to sustain the contention of the defendant, that there was a purchase and a conveyance of the land, based on a sufficient and agreed consideration. Only a general finding of the court was made, and the proof produced and in the record was sufficient to uphold the finding and the judgment.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, 0. J.:
In an information containing six counts J. G. Stephenson was charged with obtaining goods from the H. D. Lee Mercantile Company by means of false pretenses. On the trial he was found guilty of five of the charges, but a motion in arrest of judgment was sustained as to the finding on four of the,counts. Upon the remaining count judgment was rendered, sentencing him to imprisonment at hard labor in the state penitentiary, without fixing the limit or duration of the same. Complaint is made here of the character of the proof offered by the state.
In was charged that, to obtain the goods and the credit, appellant made false representations of the amount of his indebtedness. To sustain this averment, and to show that he owed a much larger sum than he represented, the account-books of several of the wholesale houses from which he had obtained credits were received in evidence, first having been authenticated by the oaths of the bookkeepers who made the entries. The verified accounts received were entered on what are called “ledgers,” and the contention is that these were not books of original entries.
The evidence discloses that modern wholesale houses have adopted modern methods of bookkeeping, in which the day-book and journal once in common use have no place in the system. The order from a customer comes in, and when approved by a credit man is passed to shipping- and bill-clerks, who select and assemble the goods ordered from different departments of the house and check them out. and then the order, initialed or marked by those through whose hands it has passed, is handed to the bookkeeper, who formally enters the items in a book designated a “ledger.” This book is the first complete and permanent record of the charges and credits in the dealings had between the house and the customer. It appears that in some instances, for safety and convenience, an impression of the order is taken in a book, but it is only a copy of the order itself and cannot be regarded as a book of original entries. All that precedes the entries in the so-called “ledger” are mere temporary memoranda which are turned in to the bookkeeper, who makes the first and only formal entries of the transactions between the parties. They are made about the times of the transactions and in the regular course of business. This book is the only permanent record of the dealings of the parties from which the status of a customer’s account can be ascertained.
The purpose of the inquiry, at the trial was to learn the extent of appellant’s indebtedness, and that could not be learned from the orders, but' would be shown by the book of accounts wherein was entered, contemporaneously with each transaction, both charges and credits. It is not necessary to admissibility in evidence that a book of accounts be kept in any particular form, nor is it material by what name it may be called; it is enough, if it be a book regularly and correctly kept, containing original entries of the daily transactions of the business, made at or about the times the transactions were had. The fact that the book is called a “ledger” does not change the character of the entries, nor is it necessary that the bookkeeper should have made the sales or billed out the goods sold to make the book of accounts admissible in evidence. If the sales made be regularly reported to the bookkeeper, and from such reports, or from orders or other temporary memoranda of the salesmen, the entries be promptly and faithfully made by the bookkeeper, the book is entitled to be read in evidence, when duly verified by the one who kept it. (Gen. Stat. 1901, §4835; Rice & Floyd v. Hodge Bros., 26 Kan. 164; The State v. McCormick, 57 id. 440, 46 Pac. 777, 57 Am. St. Rep. 341).
In some cases the leaves of the ledger containing the accounts were produced by the bookkeeper, who swore that they were properly and correctly kept. In other cases the witnesses from personal knowledge gave the state of the accounts, and in.addition there were admissions of the appellant which supported the testimony of the books and bookkeepers, and also proof of statements by him that he misrepresented his indebtedness, making it from $500 to $700 less than it actually was. The evidence was competent and abundant to sustain the charge.
The appellant next attacks the judgment of the court. Under chapter 375 of the Laws of 1903 an indeterminate sentence was imposed. The contention is that the provisions for the parole and release of prisoners encroaches upon the judicial and executive powers vested by the constitution in the courts and in the governor. Substantially the same objections were made to the statute authorizing an indeterminate sentence where youthful offenders are convicted and sent to the state reformatory, and it was held that the power conferred on the board of managers to parole and release the prisoners did not infringe on the' judicial power of the courts or the pardoning power of the governor. (The State v. Page, 60 Kan. 664, 57 Pac. 514.) That decision is a sufficient answer to the objections made to the statute under consideration.
It is next contended that the action of the court in arresting the judgment as to four of the counts operated as an acquittal of the defendant on all of the charges, including the one upon which the judgment was founded. This contention is based on the theory that all of the goods were obtained on the same false pretense, and therefore constitute but a single offense. The motion in arrest of judgment only raised the questions of the jurisdiction of the court, or the sufficiency of the facts to constitute a public offense, and the allowance of the motion did not operate as an acquittal, but only placed the defendant in the same-situation in which he was before the prosecution was begun. (Crim. Code, §§277, 279; Gen. Stat. 1901, §§5715, 5717.) The count upon which the judgment was based sets up a complete transaction' and charges a distinct offense, and whether the court ruled correctly or incorrectly on the motion in arrest of judgment, the verdict of the jury finding the defendant guilty under the first count is not affected by such ruling.
The counsel for appellant reargues the question determined in the proceeding in habeas corpus brought by the appellant soon after the conviction was had. We see no reason to reopen the consideration of that question, or to change the conclusion reached in the earlier proceeding. (In re Stephenson, 67 Kan. 556, 73 Pac. 62.)
There is nothing substantial in the objections made to the refusal of the court to strike certain averments from the information. Even if they were to be regarded as surplusage, their retention did not operate to the prejudice of the appellant.
We find no error in the record, and therefore the judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J. :
This action was commenced by F. D. McCarthy to recover on a fire-insurance policy issued' by the Hartford Eire Insurance Company. That the-interest of Henrietta Holmes, under a payment clause-attached to the policy, might be determined in the action, she was made a party defendant. A trial before-the court resulted in judgment for plaintiff, P. D. McCarthy, for $150, with an attorney’s fee of $100,. judgment for defendant Plenrietta Holmes for $450,. and the reforming of the payment clause attached to-the policy. The defendant insurance company brings error.
On November 15, 1900, J. N. Bailey, agent of the insurance company at the city of Hutchinson, issued the policy sued on to E. C. Hoffman, who was the owner of the premises upon which the dwelling insured was located, subject to a mortgage encumbrance of $200. The company insured the property for $600 against loss by fire for a period of five years. The agent’s attention was at the time called to the fact that there was a $200 mortgage on the premises, but he indorsed no mortgage clause on the policy. In March, 1901, Hoffman sold the premises to defendant Henrietta Holmes, subject to the mortgage encumbrance. Hoffman assigned the policy to Mrs. Holmes, and J. N. Bailey, as agent of defendant, consented to-the assignment. Subsequently, in March, 1902, Henrietta Holmes sold the premises to plaintiff for $750, he assuming the payment of the balance of $150 on the mortgage encumbrance as a part of the purchase-price. The sale to plaintiff provided for the payment of fifty dollars cash, fifty dollars on the 8th day of May, and ten dollars on the 8th of each succeed ing month, in accordance with the terms of a written contract. The contract and insurance policy, together with a deed for the premises to McCarthy,' were placed with the First National Bank of Hutchinson in escrow, to be delivered to plaintiff when he should have fully complied with the terms of the contract. In May the following assignment was indorsed upon the policy :
“Hutchinson, Kan., May 16, 1902.
“For value received, I hereby assign, transfer and set over to F. D. McCarthy all my right and interest to the within policy. Henrietta Holmes.
“The within company hereby consents to the above assignment. J. N. Bailey, Agent.”
On the same day J. N. Bailey, as agent of defendant, indorsed upon the policy the following payment ■clause :
“Loss, if any, under this policy,, to be adjusted with the assured herein named, and payable to Henrietta Holmes as her interest may appear, subject to all the terms and conditions of this policy.
J. N. Bailey, Agent.”
Plaintiff took possession of the premises under the ■contract and with his family occupied the same as a home. On September 8 the dwelling was totally destroyed by fire. Plaintiff had paid on the contract to Henrietta Holmes the sum of $220 ; the sum of $50 on the mortgage encumbrance; and had made no default in the requirements of the contract. Defendant denied liability and refused to pay the loss, ■ assigning as its reason therefor that the policy was void because at the time of the fire plaintiff was not the absolute owner of the premises. The policy sued upon contained a condition providing, in substance, that it should be void if the building insured stood on .ground not owned by the assured in fee simple, unless otherwise provided by agreement indorsed in writing on the policy.
In his petition plaintiff averred knowledge of the mortgage encumbrance by J. N. Bailey, the agent of defendant, and alleged waiver thereof. He also-averred that the clause indorsed on the policy by J. N. Bailey, agent, subsequently to the sale of the premises to plaintiff, was made with the full knowledge of defendant of the condition of the title at the time that the agent of defendant intended to make the indorsement show that the company consented to the condition of the title, but failed to do so on account of mutual mistake and clerical error, and asked that-said clause indorsed on the policy be reformed to conform to the purpose desired and to the intention of the parties.
The insurance company offered no testimony. It stood upon its demurrer to the evidence of plaintiff and of defendant Henrietta Holmes, which the court overruled. The trial court made findings of fact and conclusions of law. Among numerous other findings, the court found that J. N. Bailey was the general agent of defendant, authorized to issue policies of insurance and waive conditions therein ; that he knew of the existence of the mortgage encumbrance at the-time of the issuing of the policy; that he knew of the-terms of the sale of the premises by Henrietta Holmes to plaintiff, and knew at the time he indorsed the-clause upon the policy the condition of the title ; and that there was a balance of $150 due upon the mortgage encumbrance ; that at the time he made the indorsement of said clause upon the policy he intended that it should protect the interests of plaintiff and of defendant Henrietta Holmes in said property, but,, through mistake, it failed to do so. The court ad judged that the policy be reformed so that the indorsement thereon should waive all . claims relative to the imperfect condition of title. There was evidence to support the findings made by the court, and these findings were sufficient to sustain the judgment. (Insurance Co. v. Bank of Pleasanton, 50 Kan. 449, 31 Pac. 1069; Insurance Co. v. York, 48 id. 488, 29 Pac. 586; Insurance Co. v. Wood, 47 id. 521, 28 Pac. 167; Insurance Co. v. Gray, 43 id. 497, 23 Pac. 637; Insurance Co. v. Barnes, 41 id. 161, 21 Pac. 165.) Plaintiff could ask a reformation of this clause to correct the mistake and make the clause conform to the intention of the party making it, and upon the trial support his claim of mistake by parol evidence. (11 Encyc. Pl. & Pr. 378; Schaefer v. Mills, ante, p. 25, 76 Pac. 436.)
Counsel for the insurance company submitted in writing certain propositions of law, and asked that the court declare the law in the case in accordance therewith. In refusing this request the court committed no error. While it is in conformity with the practice adopted in the courts of some of the states, the civil code makes no provision for such practice, nor has it been adoijted by the courts of this state.
The defendant also submitted certain interrogatories to the court and requested findings of fact in answer to the same. While the court did not answer the specific interrogatories submitted, the record discloses that the findings of fact made fully covered the findings requested.
No material error appearing in the record, the judgment of the trial court will be affirmed.
All the Justices concurring. | [
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Per Curiam:
These cases involve the questions which were determined in Dunbar v. Green, 66 Kan, 557, 72 Pac. 243, and, following the decision in that case, the judgments in these will be affirmed. | [
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The opinion of the court was delivered by
Cunningham, J.:
These two cases have been submitted together. They arose from the same set of facts; the same act of negligence on the part of the railroad company caused the death of Mark Withers and that of Walter Dewese, which was the basis for these actions. Judgments for $7000 and $6500, respectively, were entered against the defendant company, which it seeks to have reversed by these proceedings in error.
These men were killed on Fourth street of the city of Topeka, which runs approximately east and west, and is crossed at right angles by thirteen tracks of the defendant’s railroad, those numbered from 1 to 10, commencing on the east side, being used for switching and yarding purposes, and over and along them, especially during the evening and night, many cars are switched back and forth. These tracks are standard guage, their rails being 4 feet 8£ inches apart. The distance between the tracks themselves is about 8 feet and 7 inches. A sidewalk on the north side of the street crosses all of them from east to west, over which many persons pass, especially during the evening hours of Saturday. The street, over its entire width across these tracks, is laid with planks and filled with cinders, so that its surface is even with the tops of the'rails. The sidewalk is made entirely of planks. No gates are maintained, or watchmen kept, to guard this crossing during the evening or night.
The accident which resulted in the death of these men occurred about nine o’clock Saturday evening, February 1, 1902. The night was dark, the wind was blowing with considerable velocity from the north, the weather was cold, and there was some snow on the ground. Max’k Withers was then in the employ of the railroad company and had been for several years ; his business was .that of a switchman in the company’s yards at Topeka. He was thoroughly acquainted with those . yards and with the frequency and manner of handling trains and cars therein. Walter Dewese was also an employee of the company as a laborer in its shops at Topeka, and had been such for about two months. It seems that he was acquainted with the crossing in question, but was not familiar with the sux-roundings as they then existed. They both knew, however, that they were crossing these tracks.
Withers, in company with one Furman, started along the sidewalk ofx Fourth stx’eet shortly before the occurrence of the accident to cross the tracks, going eastward to his home. As they came near track 4 they observed a train switching along track 3, which obstructed their progress and caused them to halt on or near track 4. Soon thereafter they were joined by Dewese, coming from the same direction. Two other persons, Burt Sutton and Grover Stitt, and possibly others, were halted for the same reason ; they, however, wex-e standing in the space between tracks 3 and 4. All these men came fx^om the west within two or three minutes of one another, and remained waiting from three to five minutes for the passage of the train on track 3. To protect themselves from the cold, they had their collars turned up and their caps pulled down over their ears, but it does not appear that their sight or hearing was materially interfered with thereby ; on the contrary, the jury found that their sight and hearing were good.
North of Fourth street two blocks is a track known as a “lead-track,” on which another switching crew with an engine were operating. This crew, in order to locate a heavy refrigerator-car upon track 4, kicked the same south, expecting it would stop at some point before it reached Fourth street. This car was unattended by any one and unaccompanied by signal or warning. For some -reason, perhaps because of an extra hard shove, or because of the wind’s blowing from the north, or both, this car, instead of stopping north of Fourth street, came on, running upon and killing Withers and Dewese, and stopping near the south line of Fourth street. Sutton and Stitt were uninjured, though slightly hit by the car.
Much evidence was introduced to show that the deceased men were standing upon track 4; it seems highly probable that they were, though the jury found that they were not; but whether they were exactly upon the track or not seems of small moment, for the fact is that if they were not between the rails they were in a place of equal danger. It was not ■necessary for them to stand in a place of danger, as they could have stopped west of track 4, or could have safely stood between tracks 3 and 4. At the time there was a car standing on track 5, north of Fourth street, but just how far it does not appear; probably not very far. There was an arc electric light to the southwest, about 120 feet away. There was a switch-man’s shanty on the north side of Fourth street close to the sidewalk, about 100 feet west of the place of. the accident. Under favorable conditions this oncoming car could have been seen for forty feet north of the sidewalk.
The jury specially found that the men were careful and that they were not guilty of Contributory negligence. It was further found that, somewhere between the switchman’s shanty and track 4, they looked north, but saw nothing ; that while they were standing waiting for the train to pass on track 3 they were looking east; that they listened for the purpose of determining whether a train or car was approaching while so standing, but heal'd nothing because of the noise of the other train; that had they then looked north they could not have seen the unlighted car approaching, being prevented by the car standing on track 5, north of the sidewalk, the running train on track 3, the smoke and steam from the engine drawing said train, the darkness of the night, and the absence of light or other signal on the oncoming car.
At the close of the plaintiff’s evidence, which showed the facts substantially as above set out, defendant presented a demurrer thereto, which was overruled. The defendant’s evidence added little, and at its close the court was requested to instruct the jury to return a verdict for the defendant, which instruction was denied. These rulings are here relied on for error.
The railroad company does not deny that it was negligent. Its contention is that it was relieved from the consequences of this negligence by the contributory negligence of the deceased. We are of the opinion that the facts shown clearly prove the culpable negligence of the deceased, and that the company was thereby relieved from liability for their death. They knew the conditions which surrounded them. They Avere in the full possession of their faculties. They knew they were within the limits of the yards, with its many tracks. They saw one train occupying the track in front of them. They knew that the other tracks were in frequent use for a like purpose, and that at any moment any one of the other tracks might be occupied by moving cars. They knew that to stand upon a track, or near enough to one to be hit by a moving car, was a dangerous position. Knowing all these things, and being plainly warned that they were in and upon this network of tracks, it was their plainest duty to see to it that they did not halt in a place of danger. There was ample room for them to stop in a place of safety; others did so. Their exposing themselves to this obvious danger can only be accounted for upon the hypothesis of their reckless indifference to the danger which was so apparent and to their own safety.
We find nothing in the facts of this case to distinguish it from Zirkle v. Railway Co., 67 Kan. 77, 72 Pac. 539. The court there said :
“This court has often said that a railroad-track itself is a warning of danger, and that a person about to cross it must keep his faculties of sight and hearing in active exercise. In the present case, the deceased turned his back in the direction from which the danger came, and was absorbed in conversation. His conduct negatived all suggestion of vigilance and showed a negligent disregard of the perils surrounding him. The fact that the freight-train which struck him was standing still on what was called the storage track forty-five feet distant when he started over the crossing was not an assurance that it would remain stationary. The wheels of a railway-car, adapted solely for the purposes of locomotion, are signals that the car may be moved at any time, as the wings of a bird indicate that it is prepared to fly. The indifference shown by the deceased in turning his back toward the train which ran upon him, and taking a position on the track, where death or great bodily injury was inevitable if the cars moved to the place where he stood without diverting his attention from the conversation which engaged him, constituted contributory negligence which cannot be excused. If negligence on the part of the company should be conceded, the admission would not avail the plaintiff in error.” (See, also, Libbey v. Railway Co., post, 77 Pac. 541.)
It cannot be that one may place himself upon the track of a railroad, or in such a position as to be hit by a moving car, when no necessity therefor exists, resign himself to listlessness, and then be relieved from the results against which a fairly prudent man ought to guard.
We are of the opinion, upon the entire records, that the jury should have been instructed to return a verdict for the defendant in each case. Therefore, each judgment of the lower court is reversed, with instructions to enter judgment in favor of defendant.
Johnston, C. J., Smith, Greene, Burch, Mason, Atkinson, JJ., concurring. | [
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Per Ouriam:
W. G. Hamilton recovered a judgment against the city of Garnett from an injury suffered from a defective sidewalk over which he was passing. While a sidewalk in the city was under repairs loose planks were insecurely laid over an excavation. The city knew, or should have known, of the dangerous condition of the walk. It could readily be seen that the walk was a temporary one, but it had been placed there for travel, and .the plaintiff had no reason to think it was insecure, and it cannot be held that he was guilty of contributory negligence.
The objections to the rulings on the admission of testimony are not material, and it cannot be said that there was not enough testimony to sustain the material findings of the jury.
The fact that a verified written claim or demand for damages was not presented to the city council is not a bar' to the maintenance of an action for damages. The penalty for failure to present an unliquidated claim is that no costs can be recovered against the city. The trial court did not award judgment for costs against the city, and, hence, it has no reason to complaim
We find nothing substantial in any of the objections, and, therefore, the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J. :
A resident taxpayer of the city of Leavenworth secured an injunction restraining the municipality from issuing water-works bonds in the sum of $400,000, under sections 8, 10, 11 and 12 of chapter 82, Laws of 1897, and section 9 of that chapter as amended by section 1 of chapter 107 of the Laws of 1901 (Gen. Stat. 1901, §§660-664). At the time the injunction proceedings were commenced an election had been held, at which a proposition to vote the bonds had carried, but the securities had not been issued. The election proclamation stated the purpose of the election as follows :
“For the purpose of submitting to the electors of the city of Leavenworth a proposition to issue bonds of the city of Leavenworth to the amount and sum of $400,000, to either purchase and procure the Leavenworth City and Fort Leavenworth Water Company’s plant, with all its rights, extensions and property thereunto belonging, or provide and contract for the construction of a new water plant.”
The ballot presented to the voters and voted at the election made the following submission :
“Shall the eollowing- be adopted? To issue bonds of the city of Leavenworth in the sum of $400,000 to purchase, procure, provide or contract for the construction of water-works.”
The district court concluded that the ballot contained two propositions — one for the purchase of an existing plant and one for the building of a new plant, and that because it was dual the ballot was illegal and the election void. If this be true the injunction must be upheld.
Section 8 of the law referred to grants in the most ample form to cities of the first class the power to provide themselves with their own gas, electric-light, electric-power, heating and water plants. Every defect of authority to purchase, procure, provide and construct any of the enumerated plants is completely removed. Section 9 authorizes the issuing of bonds to meet any and all indebtedness created under section 8. In providing for the use of such bonds, however, in the payment of any such indebtedness, an antithesis is apparently made by the language of the act between purchase and construction, as if they were separate and distinct objects of municipal indebtedness. By section 10, under certain conditions, an election is to be called by the acting mayor for the purpose of submitting to the electors “ a proposition” to issue bonds “for any and all purposes” mentioned. The last expression, however, is to be related to the obligation of the acting mayor to call the election, rather than to any matter of form in submitting the proposition or propositions to the voters.
Section 2709, General Statutes of 1901, provides as-follows :
“Whenever a constitutional amendment or other proposition or question is to be submitted to the voters of. the state, or any district or municipality thereof, a separate ballot shall be provided by the same officers who are charged by law with the. duty'of providing the official ballots for- candidates for public office. Such ballot shall comply with the requirements for official ballot for candidates for public office in so far as such requirements are applicable thereto. Upon said ballot there shall be printed by designated title, in brevier lower-case type, the constitutional amendment or other proposition or question upon which the voters within the township, ward or precinct for which such ballot is prepared may lawfully vote, preceded by the words, ‘Shall the following be adopted?’ If there be- more than one constitutional amendment, proposition or question to be voted upon, the different amendments, propositions or questions shall be separately numbered and printed, and be separated by a broad, solid line one-eighth of an inch wide.”
By section 11 of the statute first referred to it is provided that if the bonds carry the city shall issue them “for the purpose and in the manner and. to the amount”, specified in the act. These are the only statutes bearing immediately upon the subject.
The city contends that since the mayor and council, as the organ of corporate authority, have the right to determine whether the city shall buy or shall build, and to make all necessary contracts for purchase or for construction as they see fit, it is unnecessary to submit to the voters any question but that of issuing bonds for providing the city with water-works of its own, and that such submission was fairly made to the voters of the city of Leavenworth.
It is true that the mayor and council have a wide discretion in determining how the city shall be supplied with water (The State v. Topeka, 68 Kan. 177, 74 Pac. 647, decided December 12, 1903), and it is true that the people can exercise no part of the authority vested in the governing body of the municipality. But the statute reserves a large and clearly defined discretion in the matter to the people themselves. No plan involving the issuing of bonds c£>n be carried out without their sanction'. Even though the mayor and council may contract they cannot pay by means of bonds unless the people approve. Every arrangement for indebtedness which the mayor and council may make involving city bonds must include an appeal to the ballot-box, and must fail if the ballot-box be found to contain a majority of adverse votes. This discretion of the taxpayer the mayor and council cannot exercise and cannot control. Since, therefore, no bonds may be issued for any pur pose or for any set of purposes unless the people be consulted and give their consent, every voter must have a fair opportunity to register an intelligent expression of his will. This the official ballot failed to provide.
The subject of purchasing a particular water-works plant already in existence is utterly diverse from that of building a new one. It needs neither argument nor illustration to make this plain truth apparent to any mind of ordinary capacity. The judgment, of the mayor and council upon one of these subjects might well be approved by the people through a majority vote in favor of bonds, although the judgment of the same officials upon the other- subject would be overwhelmingly repudiated at a bond election. The ballot required to be used at the election in question obliged the voter to approve bonds for both purposes or to reject bonds for both purposes. If he favored one plan and disapproved the other he was allowed no opportunity to indicate his view. Because of the dual ballot persons adverse to purchase may have voted with persons adverse to building for bonds which, thus supported, carried, although both propositions would have failed ignominiously had they been separately submitted; therefore, the election was not a fair one to the people of the city of Leavenworth.
Other courts have announced similar conclusions. In the case of Gas and Water Co. v. City of Elyria, 57 Ohio St. 374, 49 N. E. 335, a portion of the syllabus reads:
“The purchase of water-works, and the erection of new ones, are distinct measures, requiring different proceedings ; and a resolution of council which combines both as one, and provides for the submission, in that form, of the question of the issue and sale of the bonds of the municipality for both purposes com bined, is unauthorized, and ineffectual for either purpose ; nor can it be made effectual for either by the elimination of the other in the proceedings subsequent to the resolution. It is the policy of the statute that each measure for which it is proposed to issue and sell the bonds of the corporation shall stand on its own merits, unaided by combination with others, and that it be voted upon as an independent measure, by the council and electors, uninfluenced by such combination.”
In the opinion of the court it was said :
“The power conferred by the statute on the council is to issue and sell the bonds of the municipality ‘for the erection or purchase of water-works.’ The two purposes are entirely distinct. The purchase of water-works necessarily implies that they have already been erected, and are a present existing property, the subject of sale and purchase, while the erection of water-works can only have reference to their future construction. That a municipal corporation may own two plants, one acquired by purchase, and another erected by it, or, after having acquired one in the former mode, may proceed to erect a new plant, is not questioned. But their acquisition by these two different methods require different proceedings. And it is the policy of the statute that the proposition for each separate improvement shall stand on its own merits, unaided by combination with any other measure, and be so acted upon by the council in the first instance, and then, if adopted, be so submitted for approval by the electors that each may be voted upon as a separate measure uninfluenced by combination with others. The reason is, that the requisite majority of the council, and of the electors, may be in. favor of one measure, and against the other, or against each; while by uniting them as one, and submitting them to be acted upon in that form, the members of council, and the electors, are required to vote for or against both propositions combined, or abstain from voting at all, and thus denied the right to express their will with respect to each.”
In the opinion of the court in the case of Truelsen v. City of Duluth, 61 Minn. 48, 55, 63 N. W. 714, it was said:
“If the city council desired to place a proposition to erect a water and light plant or plants fairly and ■ reasonably before the voters, as against a proposition to purchase the existing plant, the propositions should have been submitted so as to allow a free and full expression on the real merits of each.”
In the case of North v. Platte Co., 29 Neb. 447, 452, 45 N. W. 692, 26 Am. St. Rep. 395, a portion of the opinion reads:
“The evil of a proposition in the alternative form is, that voters who may be hostile to one of the roads named, and who would vote against aid to such road, may be induced by reason of the supposed probability of the railroad in which he is in favor being the successful line, to vote in its favor, and thus the proposition in that form may be adopted by the requisite majority, when, had propositions been submitted separately, both would have failed. In other words, electors may be induced to vote for the proposition by exciting false' hopes as to the road that will be constructed, and thus carry the proposition by the necessary majority.”
The general principle involved was applied in the case of McBryde v. Montesano, 7 Wash. 69, 72, 34 Pac. 559. The following is from the opinion:
“By ordinance 178, the city council ordered the submission of a proposition to borrow $25,000 upon time bonds, under the act of March 7, 1891 (Acts, p. 261, c. 128). The purposes for which this money was to be borrowed were set forth in the ordinance as — (1) To pay outstanding indebtedness, $20,000; (2) for the purchase of fire apparatus, $1500; (3) for the purchase of a lot of land, and the erection of a city hall and jail thereon, $3500. But one ballot was used, ‘Bonds, yes,' and ‘Bonds, no;' and appel lant contends that this was irregular, inasmuch as there were two propositions involved, viz., a proposition to fund $20,000 of old debts, and a proposition to borrow $5000 for future purposes. We agree with him in this, notwithstanding the argument of the respondent that the statute is broad in its permission to borrow money for municipal purposes, and that the acquisition of money to pay debts is a strictly municipal purpose.” (See, also, 20 A. & E. Encycl. of L., 2d ed., 1111, and 21 id. 47.)
These views are in harmony with the doctrine announced in the care of Lewis v. Comm’rs of Bourbon County, 12 Kan. 186, 213, as follows :
“It may be conceded that two or more questions may be submitted at a single election, provided each question may be voted on separately, so that each may stand or fall upon its own merits. But that is a very different matter from tacking two questions together, to stand or fall upon a single vote. It needs no argument to show the rank injustice of such a mode of submission. By it several interests may be combined and the real will of the people overslaughed. By this combination an unpopular measure may be tacked on to one that is popular, and carried through on the- strength of the latter. A necessary matter may be made to carry with it some private speculation for the benefit of a few. • Things odious and wrong in themselves may receive the popular approval because linked with propositions whose immediate consummation is deemed essential. It is against the very spirit of popular elections.”
Under the provisions of section 2709 of the General Statutes of 1901, quoted above, it was entirely permissible that both propositions should be submitted upon a single ballot, but they should have been separately numbered and printed and separated by the broad solid line there described.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
On January 7, 1901, N. A. Warder sued Knud Sorensen before T. H. Wellman, a justice of the peace, for $166.85, and caused a garnishment •summons to be served on C. 6. Bennett. The garnishee answered January 14, showing that he owed Sorensen $156.06, which, upon order of the justice, he paid into court. On the same day judgment was rendered for plaintiff for $139.85 and costs. Sorensen made no appearance in the case until he gave an appeal bond, within ten days after the judgment. The justice of the peace, after the judgment and before the giving of the appeal bond, paid the plaintiff the •amount of his judgment out of the money paid in by the garnishee. Upon the calling of the case in the district court, the plaintiff, Warder, dismissed his action without prejudice. Sdrensen then sued the justice of the peace upon his bond for the amount he had paid to Warder, claiming that he should have held the money until the expiration of the time for an appeal. The trial court denied Sorensen any relief, and the only question raised by this proceeding is whether, upon these facts, he was entitled to recover.
Plaintiff in error argues that as the statute gave him a right to appeal at any time within ten days, and as-the appeal bond, when given, vacated the judgment, the judgment never became final, and could only have become final by the expiration of ten days without an appeal’s having been taken; that the justice had no-right to pay out the money until the judgment had become final; and that the precipitate payment to the, plaintiff robbed the defendant of all substantial benefits of the appeal. Defendant in error responds that-as the statute makes no provision for a stay of proceedings pending the exercise by the defendant of the right-of appeal, but permits an execution at any time after-judgment (Gen. Stat. 1901, §§ 5365, 5369), the judgment was in full force from its rendition, and not only justified, but even required, the payment to the plaintiff of the fruits of the garnishment; that.if defendant desired to prevent the payment he should have (given an appeal bond at once, or before payment was-made. It is not necessary to a determination of this case that we decide which of these conflicting theories-is correct. Their mere statement shows that the justice was confronted by the necessity of deciding, as a-matter'of law, a question not free from doubt; that is, whether he was required to pay the money over upon the demand of the plaintiff, or could hold it ten days, so as to afford defendant that much time to pre vent the payment by giving an appeal bond. The justice had jurisdiction of the parties and of the fund ; in passing upon the question of its. disposition he acted judicially; and, however egregiously he may have erred, he cannot be held liable for the consequent loss suffered by the defendant. (Clark v. Spicer, 6 Kan. 440; Connelly v. Woods, 31 id. 359, 2 Pac. 773.)
A very similar question was presented in Abrams v. Carlisle, 18 S. C. 242. In a replevin action brought before a justice of the peace for the recovery of a mule the plaintiff gave a bond and procured an order of delivery. The defendant gave a redelivery bond and the property was returned to him. Upon trial judgment was rendered for the plaintiff. Under the statute the defendant had five days in which to move for a new trial or appeal. However, without waiting for the expiration of this time, the justice issued an execution, upon which the constable at once seized the property and delivered it to the plaintiff. Within the five days the defendant moved for a new trial and obtained it, and, upon a second judgment’s being rendered against him, appealed. He then demanded that the justice deliver him the mule, and upon a refusal of the demand brought action against the justice for damages resulting from the wrongful enforcement of the judgment before the expiration of the five days, but was defeated. Upon review in the supreme court it was said :
“The matter is reduced to the question, whether the trial justice was authorized by law to issue his execution on the very day his judgment was promulgated and have it executed by taking the property from one and giving it to the other litigant, before ■the five days had expired which are allowed for appeal or motion for a new trial. We have no doubt that the trial justice, during that time, had the right to enter his judgment and lodge his execution, as it is sometimes said, ‘to bind property,’ but this case does not make it necessary to decide whether he had the right, in an action for personal property, to have his judgment executed by seizing and delivering the property before the time allowed for appeal or motion for a new trial has expired. Under ordinary circumstances, we think it the better course for him. to regard the case as still pending until the time allowed for a new trial or appeal has expired. But Milton A. Carlisle was a judicial officer, and the subject-matter was clearly within his jurisdiction. He had just decided the case, and when he entered his judgment and execution to enforce it he was acting judicially, as much so as when he rendered the judgment itself, and even if he did make a mistake in having the mule delivered at once,' without reference to the right of the defendant to move for a new trial or appeal within five days, he was not liable in damages for the consequences, unless he acted wilfully and corruptly.”
The prevailing doctrine is that even a corrupt motive on the part of the justice will’ not render him liable under such circumstances (18 A. & E. Encycl. of L., 2d ed., 46), but that question does not arise here.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
Section 1 of article 5 of the constitution reads :
“Every male person of twenty-one years and upwards belonging to either of the following classes— who shall have resided in Kansas six months next preceding any election, and in the township or ward in which he offers to vote at least thirty days next preceding such election—shall be deemed a qualified elector:
“ 1st. Citizens of the United States.
“2d. Persons of foreign birth who shall have declared their intention to become citizens conformably to the laws of the United States on the subject of naturalization.”
It is plain from the facts that plaintiff was an elector of the city of Osawatomie after residing there thirty days. He left Paola in July, 1899, and has claimed a residence in Osawatomie ever since. The controversy turns on the application of chapter 232 of the Laws of 1903, entitled :
“An act prescribing a rule for the determination of the residence of voters who are officers or employees of this state or any municipal subdivision thereof.”
Section 1 reads :
“That for the purpose of voting, no person who is in the employment of this state or any municipal subdivision thereof in any civil capacity shall be deemed to have gained or lost a residence by reason of such employment, but all such officers or employees shall be considered as residents of the place from whence they were elected or appointed.”
The right of plaintiff to registration as a voter in Osawatomie would be certain but for the last clause of said section, “but all such officers or employees shall be considered as residents of the place from whence they were elected or appointed.” (Cory v. Spencer, 67 Kan. 648, 73 Pac. 920.) It is clear that after plaintiff had established a legal residence in Osawatomie in 1899, and voted there in that year and in 1900, 1901, and 1902, he cannot, by legislative fiat, be constructively deported to Paola and made an elector of the latter city against his will. (Wade, Retro. Laws, § 175.)
Section 2572 of the General Statutes of 1901 provides :
“First. That place shall be considered and held to be the residence of a person in which his habitation is fixed, and to which, whenever he is absent, he has the intention of returning.”
The law of 1903 can mean nothing more than that the state officers or employees in the sérvice of the state, when they move to the capital or place where their official duties are performed, become residents and electors of the latter places if they so intend. Mere employment by the state does not affect the question of residence one way or the other. Taken literally, the words “all such officers or employees ■shall be considered as residents of the place from whence they were elected or apppointed, are inconsistent with what precedes them. In one clause of the section, a person holding an office or employment under state authority is not to be considered as having either lost or gained a residence by that fact, and in the succeeding clause the residence of such officer or employee is fixed at the place whence he was elected or appointed. In view of the foregoing constitutional provision respecting the qualifications of.voters, we must hold that the state officers and employees retain their residences at the places where they lived when elected or appointed, if that is their intention.
We have no doubt that the governor and the several justices of this court could establish a residence at Topeka, in Shawnee county, by moving here during their terms of office with the intention of making this city their place of permanent abode. A removal here, however, without such intention, with a purpose to remain during a term’of office only, does not deprive a state officer of his right to vote in the city or county where he lived when elected or appointed, if he did not intend to abandon the latter as a place of residence.
The construction of the law contended for by counsel for respondent would prevent an officer or employee of the state, city, county or school district from changing his residence' during his official term, from the fact alone that he was such officer or employee. We ■cannot give to the statute such an absurd interpretation. The clause under consideration, if standing alone and disconnected from the language preceding it, would be manifestly unconstitutional.
Under the facts, the city clerk had no discretion to-refuse to enter plaintiff’s name on the poll-books as a. qualified voter. A peremptory writ of mandamus will be awarded.
All the Justices concurring. | [
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The opinion of the court was delivered by ■
Cunningham, J.:
The plaintiffs in error sought by this action, brought originally before a justice of the peace, to recover their damages occasioned by the railroad company’s delay in transporting two cars of cattle from Ellsworth to Kansas City. The items of their damage were that they were compelled to sell on a lower market, and that the cattle had unduly decreased in weight by delay in transportation. It did not appear from their bill of particulars that any special shipping contract had been made. The plaintiffs had judgment without opposition in the justice’s court, from which an appeal was taken. In the district court the railroad company asked that the plaintiffs be required to make their bill of particulars more definite and certain by setting out whether their contract of shipment was oral or in writing, and, if in. writing, by attaching a copy thereof to their bill of particulars. This was refused by the court. Upon the trial, and as a part of tlie cross-examination of plaintiff, it was shown that the shipping contract was in writing, and the plaintiff produced the same and introduced it in evidence. This contract contained the following stipulation:
“Unless claims for loss, damage or detention are presented within ten days from the date of the unloading of said stock at destination, and before said stock has been mingled with other stock,'such claims shall be deemed to be waived, and the carriers and each thereof shall be discharged from liability.”
The jury found a general verdict in favor of the plaintiffs, and answered, “We do not know,” to the following special question : ‘ ‘ Did he (plaintiffs ) give it notice of his claim before his cattle had been mingled with other stock?” The company’s-motion for judgment upon the special finding, notwithstanding the general verdict, was allowed by the court, and judgment rendered against the plaintiffs for costs. This is the judgment they- now seek to have reversed.
The answer of a special question made as this was is, as against the party on whom rests the burden of proof, in the negative, or that such party has failed in his proof. (Railroad Co. v. Swarts, 58 Kan. 235, 48 Pac. 953.) Hence, if the burden rested upon the plaintiffs to show that they had made the claim in time and manner required, then they failed to make their case. The question- then is, Upon which party x*ested the burden of proof—upon the plaintiffs, to show that they had made claim for their damage, or upon the defendant, to show that they had not ?
The clause quoted from the shipping contract is such as might have been made between the parties. ( W. & W. Rly. Co. v. Koch, 47 Kan. 753, 28 Pac. 1013; Sprague v. Mo. Pac. Rly. Co., 34 id. 347, 8 Pac. 465; Goggin v. K. P. Rly. Co., 12 id. 416.) If it were a condition exempting the carrier from its common-law liability as a carrier, the burden would be upon the earner to show itself within the exemption. (6 Cyc. 518; Hutch. Carr., 2d ed., §259a.) But the clause in question is not one exempting the carrier from its common-law liability or limiting that liability, but one imposing a coxxdition upon the shipper which he must observe before he may recovex for a breach of the carrier’s duty ; in other wox’ds, it is a condition of recovery, and not an exemption from liability. ' Hence, when the shipper seeks a recovery he must show compliance with the condition upon which recovery may be had.
That in this case the shippers did not, in their bill of particulars, count upon this contract, or that the carrier did not plead it in defense, can make no difference. As soon as the plaintiffs admitted that they were endeavoring to recover under this contract they were required to show compliance with the conditions upon which such recovery could be had. This the jury, by the quoted special finding, said they had failed to do.
It is contended that, even if the making of the claim as provided was required to be proved by plaintiffs, still its omission ought not to defeat recovery for the reason that the provision of the shipping contract did not contemplate or cover a case like this ; that plaintiffs’ loss could not be ascertained, and therefore no claim made for it, until after sale of the cattle; and that the carrier was not injured in any way by a failure to make timely claim. It is a sufficient answer to this to say that the contract in terms conditions plaintiffs’ right to recover upon the timely making of this claim, and such contract is within the power of the parties to make.
We can discover no error on the part of the court below, and hence must affirm the judgment.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J.:
Clarence Lynn Ooy, a minor twelve years of age, by his father and next friend filed his petition in the district court of Allen county against the Missouri Pacific Railway Company to recover damages for personal injuries. The court sustained a demurrer to his evidence, and he brings error. The facts, as disclosed by the evidence, are substantially as follows : One of the tracks of defendant on Benton street in the city of Iola was known as the “team track,” upon which cars were set out to be loaded and unloaded. On February 22, 1902, there was left standing thereon, between two north and south streets, a freight-car to be unloaded. Plaintiff, in crossing over Benton street at a point nearly midway between the north and south streets, for some distance walked westward upon the te^m track toward the standing car. There were with him two companions. They stopped and engaged in conversation close to the east end of the car. While plaintiff was standing there upon the track, a string of cars was pushed down from the west against the standing car, and the impact caused it to move eastward and against plaintiff, throwing him to the ground, from which he sustained the injuries complained of. Persons frequently crossed diagonally over Benton street and across the tracks of defendant between the north and south streets. The testimony of plaintiff disclosed that he had seen and knew there was a train of cars in the switch-yards; that by looking to the west he could have seen the approaching cars ; that while standing at the east end of the car he could not look westward, and for that reason he did not see the cars approaching. A warn ing cry was given just before the cars came together,, and plaintiff’s companions escaped-from danger.
When plaintiff rested his case defendant interposed' a demurrer tq the evidence, which the court sustained and rendered judgment for defendant for costs. Plaintiff at the time excepted to the ruling of the court in-sustaining the demurrer, and was given sixty days to-make and serve a case for this court, but no motion for a new trial was filed. A case-;made was servedr settled, signed and filed in this court, and it is now asked to review the ruling of the trial court in sustaining the demurrer. This it cannot do where no-motion for a new trial has been filed. (Gruble v. Ryus, 23 Kan. 195; Pratt v. Kelley, 24 id. 111; and Norris v. Evans, 39 id. 668, 18 Pac. 818.) A demurrer to the .evidence raises the question of the legal sufficiency of the evidence to prove the issue of fact in support of which it is offered, and an order sustaining, it is a decision by the court occurring at the trial, within the meaning of section 306 of the civil code-(Gen. Stat. 1901, § 4754). A ruling of the trial court sustaining a demurrer to the evidence cannot be reviewed by this court in the absence of a motion for a new trial.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J. :
The principal .question presented here is whether the facts in the case justified the decision of the trial court denying a recovery to the bank of the proceeds of mortgaged property' which the Taylors applied to the satisfaction of their verbal mortgage. There was no substantial dispute as to the existence and validity of the several mortgages involved nor in regard to their relative positions as to seniority, except as to the unwritten mortgage from Reed to the Taylors. Reed gave a first mortgage to the Taylors on sixty-four head of cattle to secure an indebtedness of $1866.92. He gave to McGee, Zooks, Whitford & Go. a first mortgage- on thirty-two head of other cattle to secure a debt of $1349.25.’ Later he gave a mortgage to the bank to secure a debt of $2370, which covered the property previously mortgaged to the Taylors and to McGee, Zooks, Whitford & Co., on which it was a second mortgage, and it also covered a lot of horses, cows, hogs, farming implements and harvested and growing corn, upon which it was a first mortgage. Subsequently Reed gave another, mortgage to the bank on substantially the same property that was covered by the one last mentioned, to secure' an indebtedness of $600. That the debts secured by both of the mortgages executed by Reed to the bank were bona fide was not questioned, nor could there be any doubt that the mortgages were valid and created liens which were superior to that claimed by the Taylors under the verbal mortgage. It was also conceded that when the stock was shipped to the Taylors they paid themselves the debt secured by both their written and verbal mortgages, and only forwarded to the bank $2372.91, which left unpaid on the bank's indebtedness the sum of $633.19.
There is a contention as to the status of the claim of the Taylors for $642.57, and whether "it was in any sense a lien on the sixty-four head of cattle. It was not in writing and had never ¿been reduced to judgment. There was an agreement, however, that the cattle should stand as security for that debt. It was part of the consideration for the larger and later loan obtained to purchase the cattle, and the" money was advanced by the Taylors to Reed upon the condition that the cattle, after being fed and fattened by him, should be returned to the Taylors, who would then sell them and take out of the proceeds of the sale the amount of the claim. Under this agreement they obtained an equitable lien on the cattle which was certainly binding as between themselves and Reed, and under our decisions the contract constituted a verbal chattel mortgage as to the parties and those having actual notice of , the contract about the legality of which there can be no doubt; at least, after the possession of the cattle was delivered to the Taylors in'pursuance of the contract. (Bates v. Wiggin, 37 Kan. 44, 14 Pac. 422, 1 Am. St. Rep. 234; Weil v. Ryus, 39 id. 564, 18 Pac. 524.) The court was, therefore, warranted in treating the oral agreement as a lien, binding upon the contracting parties, and one which could not be ignored by those having knowledge of its existence.
In determining the rights of the parties the court was not only authorized, but also required, to apply equitable principles.
“The general rule enforced in equity is that, where one creditor is secured by mortgage on several pieces of property while another creditor is secured by a junior mortgage on only a part of the property, the prior creditor, when chargeable with actual notice of the rights of the junior creditor, is bound to exhaust his security on the property not covered by the junior lien, and that he must account to the junior lien-holder if. he releases his security on, or pays over to the mortgagor, the proceeds of the property not covered by the lien of the junior mortgagee, after actual notice of the junior lien.” (Burnham v. Citizens’ Bank, 55 Kan. 545, 551, 40 Pac. 912. See, also, M’Lean, Assignee, v. Lafayette Bank, 4 McLean [C. C.] 430, Fed. Cas. No. 2889; Dunlap v. Dunseth, 81 Mo. App. 17; Aldrich v. Cooper, 8 Ves. 382; Turner v. Flennikin, 164 Pa. St. 469, 30 Atl. 486, 44 Am. St. Rep. 624; 2 Jones, Mortg. § 1628.)
After the sale of the stock by the Taylors and the payment by them to the bank of $2372.91, it had full knowledge of the junior lien of the Taylors under their verbal mortgage. It was also well acquainted with the fact that there was abundant property covered by its mortgage alone to satisfy the balance of its debt. There remained at that' time mortgaged property to the value of $1900 to secure a debt of only $633.19, which the junior mortgage did not cover. The attention of the bank was specially called by the 'Taylors to this unexhausted security, with the request it avail itself of that property to satisfy its debt. The bank then promised to look to that property or fund to discharge the balance due under its mortgage. If it had done as it agreed to do it would have found available property which in value was treble the amount of the mortgage debt.
Again; some of the property mortgaged to the bank and not to the Taylors was shipped to market with the knowledge of the bank, and the proceeds of the sale were returned and deposited in the bank. It had notice of the character of the deposit and the source from which it was derived, and, although promptly advised by the Taylors to protect itself from this deposit, the funds so placed in its hands were surrendered and paid out by it. The deposit was $700, which was more than sufficient to discharge its mortgage debt. Reed's purpose was to use this deposit fo,r the payment of his debts, and, while he placed it to the credit of his daughter, there was nothing to show that she had any claim against him or any lien upon the property sold. The bank, therefore, had abundant opportunity to protect itself. It promised to do so, and the loss of the sum which was available to it alone was due to its wilful neglect.
When the bank agreed with the holders of the junior lien to pursue the property covered by its mortgage alone, which was accessible and sufficient, and to apply the same on the balance of its debt, it in effect elected to rely only on that fund, and it would be inequitable now to allow it to change its position. This agreement, together with the surrender of the fund which was in its hands and which was not available to the junior creditor, constituted a waiver of any right to the security taken by the Taylors, and, under the general principles of equity, defeats a recovery from them.
We think there was sufficient testimony to sustain the findings of fact made by the court, and the judgment which was entered on those findings should be affirmed.
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The opinion of the court was delivered by
Bukch, J. :
In the year 1897 the legislature passed an act relating to text-books for use in the public schools of this state, providing for state uniformity and maximum charges for such books, and creating a commission to select them. This act was amended and supplemented at the sessions of 1898 and 1901. The commission thus created consists of eight.members, and to enable it to select and adopt uniform series of school text-books for use in the public schools it is authorized and empowered to advertise for receive, open, pass upon, and accept bids, and upon such acceptance to enter into definite and binding contracts with bidders for the furnishing of such textbooks .
In the year 1898 the legislature passed an act, which it amended in certain particulars in 1901, providing. methods whereby corporations organized un der the laws of other jurisdictions seeking to do business in this state may be permitted to do so. The procedure for the purpose of obtaining such permission is practically the same as that for obtaining a domestic charter. The foreign corporation desiring it must file an application therefor, setting forth the following information :
“1st. A certified copy of its charter or articles of incorporation. 2d'. The place where its principal office or place of business is to be located. 3d. The full nature and character of the business in which it proposes to engage. 4th. The names and addresses of the officers, trustees or directors and stockholders of the corporation. 5th. A detailed statement of the assets and liabilities of said corporation, and such other information as the board may require in order to determine the solvency of the corporation.” (Laws 1898, ch. 10, § 2 ; Gen. Stat. 1901, § 1260.)
The application must be accompanied by a fee, and, as a condition precedent to the granting of the application, the corporation must file its irrevocable written consent submitting itself to the jurisdiction of the courts of this state. A'charter board passe.s upon the application, and if it be granted the corporation is required to pay certain additional fees and to file with the secretary of state a certified copy of its charter. In passing upon the application the charter board is required to make special inquiry with reference to the solvency of the corporation. All corporations doing business in the state are required to file annual statements disclosing varied information regarding their composition, organization, and business. The failure to file such statement within a given period works a forfeiture of the right to do business, which the charter board may ascertain, declare, and publish.
The statute (Laws 1898, ch. 10, §12; Gen. Stat. 1901, §1288) furtherprovid.es:
“No action-shall be maintained or recovery had in any of the courts of this state by any corporation doing business in this state without ffrst obtaining the certificate of the secretary of state that the statements provided for in this section have been properly made.”
Foreign corporations admitted to do business in this state are made subject generally to the same judicial control, restrictions and penalties as those organized under the laws of this state.
Prior to the 31st day of May, 1902, the American Book Company, a corporation of the state of New Jersey, complied with the corporation law described in all particulars except those relating to the payment of fees. The state authorities at that time interpreted the law in a manner exempting foreign corporations already doing business in the state from the payment of the prescribed fees, and the book company fell within that category. It filed its annual report and received a certificate of the secretary of state to that effect.
On May 31, 1902, the book company entered into three contracts with the state school-text-book commission to supply the schools of the state with certain text-books, and gave bond for the performance of the obligation it assumed, as the text-book law required. These contracts were made in consummation of accepted bids submitted to the commission on May 5, ■1902, pursuant bo advertisement therefor. On June 7, 1902, an action of quo warranto was commenced in this court against the book company, which on July 21, 1902, resulted in a judgment ousting it from doing business in the state on account of failure to comply fully with the statutes governing its admission to the state. (The State v. Book Co., 65 Kan. 847, 69 Pac. 568.) On August 5, 1902, the book company complied with the law in all respects, and was duly admitted to do business in the state.
On August 18, 1902, this action was brought' in the district court of Shawnee county in the name of the state for the cancelation of the contracts the book company had made. At that time the book company had partially performed those contracts, and was proceeding to a full discharge of its obligations under them. On September 2,1902, a temporary injunction against further performance of the contracts was refused, and the state, by this proceeding in error, seeks a reversal of that order.
To secure an injunction the state relied upon the failure of the book company to comply with the law before entering into the contracts assailed and the judgment of ouster. The decision in the case of The State v. Book Co., supra, did nothing more than determine that for a non-compliance with the law relating to its admission into the state the book company should be ousted from its claimed right to do business in the state until it should have complied with the requirements of that law. The naked question, therefore, remains—Are the contracts referred- to now subject to cancelation because made before the book company had been admitted to do business in this state ?
The question of capacity to contract is not involved on either side of the case. The book company and the text-book commission each possessed every qualification necessary to bind by contract. By the laws of their creation and organization they were each endowed with this faculty. The case is not like one in which the ability to invest an agreement with any engaging quality is altogether withheld, nor is it like one in which the limits pf some agency have been transgressed. There is here no lack of capability, no defect of power, and no deficiency of authority. The only question is whether power may be effectually displayed as against the provisions of the corporation law.
The statute describes itself as an act “providing for the regulation of foreign corporations and the method by which they may be permitted to do business in this state,” and it purports to cover that entire field. It prevents the exercise of corporate franchises in this state with respect to matters for which citizens of this state cannot incorporate, prevents concerns which are morally and financially irresponsible and untrustworthy from freely invading the state and imposing upon its citizens, and subjects foreign companies to the jurisdiction of local authorities. Official supervision of these affairs is committed to a state board. Such affairs, however, relate to nothing but the character and condition of the corporation itself. They are all enumerated in the statements of the application for admission and in the annual reports. There is no intimation of any purpose whatever to interfere in the relations between the corporation and the citizen. Business between them is as unregulated as it is between natural persons. Nor does the statute in terms prohibit foreign corporations from doing business in this state, or avow any purpose to deny the people the benefit of commercial intercourse with them. Indeed, under its title, the statute could not extend beyond regulation. It prescribes no penalty whatever for failure to obtain permission to do business here. It makes no reference whatever to any effect which, such failure may have upon the title to property acquired, contracts made, or other incidents to the doing of business. It does not anywhere use the terms “unlawful,” “illegal,” or “void,” or any equivalent for them, as applied to the transaction of business without authority. It does not declare any determination whatever to reach beyond the offending company and nullify wholesome business bargains in matters of lawful trade. Foreign corporations may be supervised but business is not proscribed.
This treatment of the subject did not follow, however, from any oversight on the part of the legislature with reference to the use of penalties. In the case of failure to file annual statements, the charter board is' authorized to ascertain and summarily declare and publish a forfeiture of the right to do any further business, which forfeiture becomes immediately effective; and the right of any corporation doing business in the state to sue or recover in the courts is made to depend upon the ability to obtain a certificate of the secretary of state that section 12 of the law has been observed. The noteworthy feature of the last-mentioned provision is that it creates a field for the intervention of the citizen in the matter of corporate regulation. While contracts are not invalidated, the binding force of obligations impaired, or the doing of business forbidden, the citizen is allowed to interpose a bar to any relief until the proper certificate can be produced.
Prom this survey of the statute it appears that the legislature intended it to be complete ; that the regulation of foreign corporations, and not the penalizing of business transactions, is its purpose; that such regulation is made the concern of the state in its special capacity as visitor, and not of any individual as a mere party to a contract; that a party to a contract is allowed to interfere in but a single instance, and then only to the extent of abating a suit against him ; and that specific penalties are chosen to meet certain contingencies. The copclusion obviously and naturally follows that the legislature intended the state to rely upon the common-law remedies for the enforcement of the statute where none other was expressed ; that the courts have no authority to interpolate in the law provisions concerning which the legislature, with all the resources of the English language at its command, remained silent, or to annex penalties for a violation of the law which the legislature, with a great arsenal to choose from, failed to mention. Hence contracts made with a foreign corporation before it has obtained permission to do business in the state are not, for that reason, invalid or subject to cancelation.
This statute was interpreted by the United States circuit court of appeals of this circuit in the case of Blodgett v. Lanyon Zinc Co., 120 Fed. 893, 58 C. C. A. 79, decided in February, 1903. A suit in equity was brought by the privies of a party to a contract to cancel it because made with a foreign corporation which had not obtained permission to do business in the state. In affirming a decree denying the relief sought the court said :
“It is also worthy of notice that there is no provision of the statutes of Kansas prohibiting a foreign corporation from doing business in that state, or declaring that any act or contract of a foreign corpora-' tion that fails to comply with the requirements to enable it to obtain permission to do business from the charter board shall avoid any of its acts or contracts. Conceding that the Lanyon Zinc Company had not complied with the corporation laws of Kansas so as to entitle it to permission from the charter board to do business in that state, no reason occurs to us why this fact should be held by the courts to avoid its contracts or the effect of its acts in performance of its agreements, in the absence of the denunciation of any such penalty for the failure to comply with its statutes by the legislature of the state which made them. On the other hand, there are two established and familiar rules of law which prohibit the complainants from availing themselves of the failure of their lessee to comply with the statutes authorizing it to do business in the state for the purpose of escaping from the performance of their obligation under their contract. One is that the laws relative to.the admission of foreign corporations to do business in the state of Kansas were not enacted for the purpose of destroying contracts or prohibiting their perform-' anee. It was not the intent or purpose of the legislature by these laws to regulate the agreements of foreign corporations with the citizens of the state of Kansas, or to supervise or prohibit the performance of their contracts. The object of these statutes was to subject foreign corporations doing business in the state to the jurisdiction of its courts, and to the inspection and supervision of its officers, not to the end that the citizens of the state might avoid their contracts and perpetrate injustice, but to the end that justice might be administered to both the corporations and the citizens. Hence it is that the private citizen is not the party empowered to enforce these corporation laws, nor is the nullification of his contracts or of acts done in performance thereof the true remedy for their violation. The state alone is' authorized to enforce them, and the ouster and dissolution of the corporation, or an injunction against its proceedings at the suit of the state, is the only remedy available. . . . The second rule is that where a contract or an act in performance of it is not malum in se, and its invalidity is not declared as a penalty for a violation of a statute, the courts may not declare it, and thus affix a penalty not prescribed by the lawmaking power. . . . There was no provision in these statutes which inflicted the penalty of the invalidity of contracts made, or business done, without a compliance with them, nor was there any express prohibition of the conduct of such business before the laws were complied with. As there was nothing morally wrong in the acts of the appellee, as it was not the primary purpose of the statutes under consideration to invalidate such acts or contracts, and as the statutes contain neither express provision nor clear intimation that this was the intent of the legislators, it is not the province of the courts to do so. While the authorities on this question are variant and conflicting, in the state courts, the federal courts have steadily adhered to the rule, which is sustained by the better reason and the more persuasive opinions in the courts of the states, that, in the absence of an express provision of statute to the contrary, the innocent contracts and acts of a foreign corporation which has failed to comply with the statutes permitting it to do business jn the state where the contracts are made and the acts are done are, nevertheless, valid and enforceable, because it is not the intent of the authors of such laws to strike down such agreements and acts when they are not evil in themselves.”
Authorities sustaining these views are abundant: Fritts v. Palmer, 132 U. S. 282, 10 Sup. Ct. 93, 33 L. Ed. 317; Harris v. Runnels, 12 How. 79, 13 L. Ed. 901; National Bank v. Matthews, 98 U. S. 621, 25 L. Ed. 188; National Bank v. Whitney, 103 id. 99, 26 L. Ed. 443; Smith v. Sheeley, 12 Wall. 358, 361, 20 L. Ed. 430; State &c. Ins. Ass. v. Brinkley Stave &c. Co., 61 Ark. 1, 31 S. W. 157, 29 L. R. A. 712, 54 Am. St. Rep. 191; Sherwood v. Alvis, 83 Ala. 115, 3 South. 307, 3 Am. St. Rep. 695; Kindel v. Lithographing Co., 19 Colo. 310, 35 Pac. 538, 24 L. R. A. 311; Ray v. Home & Foreign Co., 98 Ga. 122, 26 S. E. 56; The Phenix Insurance Co. v. The Pennsylvania Railroad Co., 134 Ind. 215, 33 N. E. 970, 20 L. R. A. 405; Ehrman v. Teu tonia Ins. Co., 1 McCrary (D. C.) 128, 1 Fed. 471; Tolerton & Stetson Co. v. Barck, 84 Minn. 497, 88 N. W. 10; Clark v. Middleton & Riley, 19 Mo. 53; Chicago Mill & Lumber Co. v. Sims, 101 Mo. App. 569, 74 S. W. 128; King v. National M. & E. Co., 4 Mont. 1, 1 Pac. 727; M. B. L. Ins. Co. v. Winne, 20 id. 20, 49 Pac. 446; Steam Navigation Co. v. Weed, 17 Barb. 378; Washburn Mill Company v. Bartlett, 3 N. Dak. 138, 54 N. W. 544; Union Mutual Life Insurance Co. v. McMillen, 24 Ohio St. 67; Wright v. Lee et al., 2 S. Dak. 596, 51 N. W. 706; Niemeyer and als. v. Wright, 75 Va. 239, 40 Am. Rep. 720; Toledo T. & L. Co. v. Thomas, 33 W. Va. 566, 11 S. E. 37, 25 Am. St. Rep. 925; Dearborn Foundry Co. v. Augustine, 5 Wash. 67, 31 Pac. 327; Edison etc. Co. v. Navigation Co., 8 id. 370, 36 Pac. 260, 24 L. R. A. 315, 40 Am. St. Rep. 910.
In the case of Fritts v. Palmer, supra, the supreme court of the United States dealt with the question involved as follows:
“The constitution and.laws of Colorado, it should be observed, do not prohibit foreign corporations altogether from purchasing or holding real estate within its limits. They do not declare absolutely or. wholly void, as to all persons, and for every purpose, a conveyance of real estate to a foreign corporation which has not previously done what is required before it can rightfully carry on business in the state. Nor do they declare that the title to such property shall remain in the grantor, despite its conveyance. So far as we are aware, the only penalty imposed by the statutes of Colorado upon a foreign corporation carrying on business in the state before acquiring the right to do so, is found in section 262 of the same chapter, which provides : ‘A failure to comply with the provisions of sections 23 and 24 (sections 260 and 261) of this act shall render each and every officer, agent and stockholder of any such corporation, so failing therein, jointly and severally personally liable on any and all contracts of such company made within this state during the time that such corporation is so in default.’ The fair implication is that, in the judgment of the legislature of Colorado, this penalty was ample to effect the object of the statute prescribing the terms upon which foreign corporations might do business in that state. It is not for the judiciary, at the instance or for the benefit of private parties,' claiming under deeds executed by the person who had previously conveyed to the corporation, according to the forms prescribed for passing title to real estate, to inflict the additional and harsh penalty of forfeiting, for the benefit of such parties, the estate thus conveyed to the corporation and by it conveyed to others. . . . If the legislature had intended to declare that no title should pass under a conveyance to a foreign corpora,tion purchasing real estate before it acquires the right to engage in business in the state, and that such a conveyance should be an absolute nullity as between the grantor and grantee, leaving the grantor to deal with the property as if he had never sold it, that intention would have been clearly manifested. The views we have expressed are supported by several adjudications in this court in cases somewhat analogous to the present one, among which are those arising under sections 5136 and 5137 of the Revised Statutes of the United States. [U. S. Comp. St. 1901, pp. 3455-3460.] The first of those sections authorizes national banking associations to loan money on personal security. The other section provides: ‘A national banking association may purchase, hold and convey real estate for the following purposes, and for no others : First, such as shall be necessary for its immediate accommodation in the transaction of its business. Second, such as shall be mortgaged to it in good faith by way of security for debts previously contracted. Third, such as shall be conveyed to it in satisfaction of debts previously contracted in the course of its dealings. Fourth, such as it shall purchase at sales under judgments, decrees or mortgages held by the association, or shall purchase to secure debts, to it. But no such association shall hold the poáses sion of any real estate under mortgage, or the title and possession of any real estate purchased to secure any debts due to it, for a longer period than five years.’
“In National Bank v. Matthews, 98 U. S. 621, 627 [25 L. Ed. 188], the question was directly presented whether a national bank was entitled to the benefit of a deed of trust upon real estate, which, with the note described in it, was taken—not as security for, or in satisfaction of, debts previously contracted in 'the course of its dealings, but—for a loan made by the bank at the time the deed of trust was assigned to it. The supreme court of Missouri held the deed of trust to be void in- the hands of the bank, because its loan was made upon real-estate security in violation of the statute. But this court, after observing that the result insisted upon did not necessarily follow, said: ‘The statute does not declare such a security void. It is silent upon the subject. If congress so meant, it would have been easy to say so ; and it is hardly to be believed that this would not have been done, instead of leaving the question to be settled by the uncertain result of litigation and judicial decision. Where usurious interest is contracted for, a forfeiture is prescribed and explicitly defined.’ Again: ‘Where a corporation is incompetent by its charter to take a title to real estate, a conveyance to it is not void, but only voidable, and the sovereign alone can object. It is valid until assailed in a direct proceeding, instituted for that purpose.’
“In National Bank v. Whitney, 103 U. S. 99, 103 [26 L. Ed. 443] , which involved the validity of a mortgage to a national bank, to secure future advances made to the mortgagor, the right of the bank to enforce the mortgage was sustained upon the principles announced in National Bank v. Matthews. The court said : ‘Whatever objection there may be to it as security for such advances from the prohibitory pi’ovisions of the statute, the objection can only be urged by the government.’ To the same effect are Swope v. Leffingwell, 105 U. S. 3 [26 L. Ed. 939] , and Reynolds v. Crawfordsville Bank, 112 U. S. 405, 412 [5 Sup. Ct. 213, 28 L. Ed. 733].
“In Smith v. Shelley, 12 Wall. 358, 361 [20 L. Ed. 430], which was an action of ejectment, the question was collaterally raised as to the validity of the title acquired by a banking institution, under a deed of the premises, in consideration of a certain sum paid by it to the grantor. The bank was created by an act of the territorial legislature of Nebraska, with power ‘to issue bills', deal in exchange, and to buy and possess property of every kind.’ But when that act passed, there was in force an act of congress, which provided that ‘ no act of the territorial legislature of any of the territories of the United States, incorporating any bank or any institution with banking powers or privileges, hereafter to be passed, shall have any force or effect whatever, until approved and confirmed by congress.’ The act of the territorial legislature incorporating the bank above referred to never was approved or confirmed by congress. It was urged as an objection to the deed made to the bank—upon which deed one of the parties relied—that it was not a competent grantee to receive title. This court said : ‘It is not denied that the bank was duly organized in pursuance of the iMovisions of an act of the legislature of the territory of Nebraska ; but it is said it had no right to transact business until the charter creating it was approved by congress.’ This is so, and it could not legally exercise its powers until this approval was obtained ; but this defect in its constitution cannot be taken advantage of collaterally. No. proposition is more thoroughly settled, than this, and it is unnecessary to refer to authorities to support it.”
A leading case among those decided by the state courts is that of Washburn Mill Company v. Bartlett, supra. In the opinion it was said :
“The cases which we have cited from the various classes demonstrate, perhaps-, the lack of uniformity with more certainty than they point to the correct rule of construction. Yet when studied, the cases are all found seeking one common object, the legislative purpose. ‘The intent of the lawmaker is the law;’ the embarrassment is in declaring that intent. This intention may be declared in the act, or it may be in ferred from its provisions in connection with the subject-matter and circumstances. Howell v. Stewart, 54 Mo. 400; Machine Co. v. Caldwell, 54 Ind. 279 [23 Am. Rep. 641]. In the statute under discussion the legislature specified reasonable terms on which a corporation could launch its business over the entire state, unquestioned by private interests or sovereign power. Whatever may have been the primary purpose of the legislature, it certainly was not to exclude foreign corporations from the state. Nor is it reasonable to presume that it was the legislative intent to declare all contracts made with foreign corporations without compliance with the statute absolutely void. It were a reflection upon legislative wisdom to presume that consequences so unusually harsh and oppressive were expected to flow from the use of language so mild and uncertain. Our statute is a simple inhibition. It declares no penalty. It does not declare the transaction of business unlawful or contracts void.”
The second rule announced by the learned court of appeals in the case of Blodgett v. Lanyon Zinc Co., supra, needs a slight modification to bring it into harmony with the views of this court. That which is within the reason of the law is a part of the law, and the matter of penalty is only one consideration in determining the scope of a legislative act. Whenever the law has made the doing of an act a crime this court has held contracts made in contravention of it to be illegal and unenforceable. (Pinney v. Bank, 68 Kan. 223, 75 Pac. 119; Yount v. Denning, 52 id. 629, 35 Pac. 207; Alexander v. O’Donnell, 12 id. 608.) But the imposition of a heavy penalty has been construed to entail no such consequence. In construing a statute of this stato relating to the filing of town-site plats, this court said, in Bemis v. Becker and others, 1 Kan. 226, 250:
“In other words, that contracts in contravention of a statute are not to be held void, unless the court, from an examination of the statute, shall judge such to have been the intent of the legislature, though such intent will be presumed unless the contrary can be fairly inferred. We find, on examination of the statute in question in this case, that the manifest object of it was to protect the public and the unsuspecting purchaser against shams and devices of unscrupulous town projectors and proprietors and other persons, by the imposition of a penalty sufficient, in the judgment of the legislature, to secure conformity to its provisions.
“It is enacted, in the sixth section (Stat. 1855, ch. 156) that such map or plat, so acknowledged, certified, and deposited in the recorder’s office, shall be a sufficient conveyance to vest the fee of such lands therein named as intended for public uses, as streets, parks, etc., in the county, for the use of the public; and to enforce such acknowledgment and deposit of the plat, the act provides a penalty or forfeiture of $300 for every lot sold previous to the deposit of such plat. Non-compliance with the requirements of the act is not made a misdemeanor punishable by a fine, nor is it indictable in the courts. But the penalty is, by the eighth section, to be recovered by action of debt for the use of the county".
“There is certainly no rule of ethics or principle of common law against the selling of lots in a town without depositing a map thereof in the recorder’s office of the county; the offense, therefore, is precisely of the nature, form, proportions and extent which the legislature has declared.
“By that authority, and that alone, the act is made penal; and although the words of the fifth section are, that ‘any person’ who shall sell or offer for sale such lots shall forfeit $300, yet, as it can hardly be presumed that the legislature intended to impose the penalty upon any except those upon whom it imposes the duty of acknowledging and depositing the plat, we are inclined to the opinion that the words ‘ any person,’ in the fifth section, are to be construed in connection with and limited by the provisions of the first section which creates the duty. The same power, then, which creates the offense; provides the penalty and designates the offenders. The contrary interpretation, contended for by the defendants in error, would confound the innocent with the guilty, subjecting them alike to the penalties of the act, and make it, instead of a protection to the credulous and unsuspecting, a trap and a snare for the feet of the unwary.”
To say that the legislature intended the statute to render void contracts made without complying with it is to say that the legislature intended that if a foreign company should write life insurance in this state it might take the premiums, and then, upon the death of the persons assured, refuse to pay the policies ; and it is to say that a farmer of this state may purchase a machine or a herd of cattle from a nonresident corporation on credit, secure the price by a chattel mortgage, refuse to pay, and then defeat an action of replevin for the property. Such an interpretation might attract the enthusiastic admiration of the highwayman, but it has nothing to commend itself to a court of justice.
At an early day this court said :
“A foreign insurance company doing business in this state, when sought to be made liable for its contracts made here, is estopped from saying that they are doing business contrary to law.” (Germania Ins. Co. v. Curran, 8 Kan. 9, 16.)
And there can be no doubt that the estoppel bears equally upon both parties to the contract. In commenting upon certain cases indicating a contrary view, Mr. Thompson says :
“Such decisions put the contracts under consideration, although perfectly innocent and meritorious in themselves, on the footing of contracts which are es sentially criminal, corrupt, or fraught with moral turpitude, or otherwise opposed to. the public policy of the state. In leveling such contracts to this ground, and in allowing their own citizens to repudiate them on such a plea, while keeping the consideration, the courts degrade the commercial morals of .the people, encourage general dishonesty, expel capital from the state, and bring its judiciary into deserved disrepute.” (6Thomp. Corp. 6332.) '
If it be said that the statute is weak unless the court can aid it by laying its hand upon contracts, the reply is obvious—that stringency is a question of policy with which this tribunal has no concern. As Mr. Justice Brewer remarked in the Prohibitory-amendment Cases, 24 Kan. 700, 706:
“Questions of policy are not questions for the courts. They are wrought out and fought out in the legislature and before the people. . . . We make no laws. . . . We inaugurate no policy.”
It is utterly illogical to compromise in a matter of interpretation, to palter with the status of such contracts and attempt to distinguish between those which are executed and those which are unexecuted, or to say they may be voidable if they are not void, or withhold remedies for a time. Such contracts are valid or invalid, and if valid are not subject to cancelation, and are enforceable as other contracts are enforceable, except as the law has restricted the corporation in its right to maintain an action or recover a judgment.
Thus far the case has been considered as if the contracts assailed were made between a foreign corporation and a private individual. That they were made with a state agency and that this action is brought by the state has become immaterial, if it ever did afford a basis for distinction. The prohibition of the statute is against the doing of business in this state. The conditions are such that a corporation may at any time, upon its own volition, qualify itself to do business. When the American Book Company complied with, the law and received permission to do business in the state such permission was subject to no restriction and the doing of business no longer remained improper, even though based upon a previous contract. The opinion of Judge Hammond upon this point in the case of Cæsar v. Capell, 83 Fed. (C. C.) 403, 424, is clear and convincing :
“Whatever invalidity and infirmity there was arose solely and entirely out of the fact that the legislature had prohibited the making of the contract, and out of the sentiment that that which the legislature chooses to prohibit is just as much unlawful as if, it were within itself vicious and immoral. Concede this; yet, if we find that the prohibition itself is only provisional, and not absolute ; that the infirmity only arises under prescribed conditions, which may be removed, and that by the very terms of the act itself the conditions are such that they are within the control of the foreign corporation itself; that it may, by doing or not doing a particular thing, create the conditions or remove them—it necessarily follows, it would seem, that the act of the party itself is all-sufficient to give that validity or invalidity to the contract which depends alone upon compliance or non-compliance with the conditions, according to its choice. Where the conduct is not within itself vicious and immoral, or condemned by a public policy existing entirely outside of any mere legislative expression of it, there would seem to be no very sound reason for holding to the sentimental idea that, once a contract is prohibited, it remains always prohibited, until the legislature may choose, by subsequent enactment, to remove the prohibition. The legislature might undoubtedly in the beginning have imposed such absolute prohibition, but it did not. It imposed only conditional prohibitions and those conditions were left within the control of the parties to the contract, or one of them. Therefore it seems to us to be correct in principle to hold that subsequent compliance with the conditions of the statute would remove any objection that might ever have been made to the making of the contract, in such a case as that. It is no objection to this reasoning to say that this is giving retroactive effect to the act of compliance, because there is no reason why it should not be retroactive ; and, in the very nature of the subject-matter of the legislation, such retroactive effect is possible, and will be presumed, in favor of the paramount public policy of freedom of contract, to have been within the contemplation of the legislature, and within its grant of a power to remove by compliance the obstructive conditions.”
The same reasoning applies to the right to maintain an action and recover a judgment in litigation begun before annual statements are filed. Whether or not an injunction might be granted at the suit of the state in aid of a judgment of ouster to prevent the performance of contracts made, or the maintenance of suits begun, after such a judgment, is not now a question calling for decision.
Besides all this, the state must fail in this action upon another ground. The business of the American Book Company to be done in this state was that of supplying the schools of the state with text-books, and before any books could be sold the company was required to establish agencies throughout the state and arrange with dealers for the purpose of carrying on such business in a particular way. The preliminary negotiations with the state text-book commission, whereby the book company became obligated to enter upon, and conduct, the contemplated business, was not the doing of business itself within the meaning of the statute. Viewed from the standpoint of the state, .the advertisement, the bid, the acceptance, th,e con tract and the bond amounted to nothing more than the employment of an agent who should, within thirty days after the governor’s proclamation, take charge of, and conduct, the school-text-book business of the state. If it be an essential feature of the business of a corporation to promote contracts, as a broker may do, then the making of contracts by such company may. constitute the doing of business, but no such question is presented here. The case is identical in principle with that of Hogan v. City of St. Louis, 176 Mo. 149, 75 Pac. 604, decided by the supreme court of Missouri in June, 1903. The syllabus reads :
“Our statutes do not mean that a foreign corporation must establish a public office within this state, where books are kept and processes may be served, and must have a license from the secretary of state to do business within this state, before it can enter into a contract to do business within the state ; and a city which enters into a contract with such foreign corporation for the lighting of its streets cannot be enjoined from carrying out such contract on the ground that it is illegal.”
In the opinion it was said :
“Now, when our statutes say that a foreign corporation shall not ‘ transact business ’ here until it establishes a public office in this state where books are kept and process may be served and until it pays its gncm-incorporation tax and takes out its license, do they mean that the corporation must do all those acts before it can lawfully enter into a contract to do any business here? Does our law mean that when advertisements inviting bids on public or private works in this state are read by foreign corporations they are to understand that they have not the right to bid and have, their bids accepted unless they shall have already complied with the terms of our statute to enable them to transact business here? No, that is not the meaning of our statutes. No such policy of exclusion has ever been shown in any of our legislative acts ; foreign corporations have always been invited and encouraged to come. The obtaining of a desirable contract is sometimes an inducement for a foreign corporation to come into the state ; it is not bound to establish itself here before it can obtain such a contract.
“Entering into a contract like the one in question undoubtedly is ‘transacting business/ within the unlimited meaning of the term, but that is not the sense in which the term is used in the statute just quoted. As there used it means carrying on the work for which the corporation was organized, and in its application to the facts of this case it means performing the work called for by the contract.”
Although the writer fully concurs in the foregoing statement of the law, he is'constrained to say that in his opinion a more fundamental reason exists for upholding the judgment of the district court. The Bush law has no application to the facts of this controversy. In order better to discharge the exalted duty enjoined upon it by section 2 of article 6 of the constitution, the legislature undertook to secure uniformity of textbooks in the common schools. In doing so it exercised a sovereign power. The matter of procuring a corporation to supply needed books is purely a state affair ; no private right attaches to it. Nor is the act one of ordinary trade or commerce, in which the state may divest itself of the attributes of sovereignty and conduct itself as an individual may do. The most distinctively sovereign prerogatives of the legislature, under the constitution, are enlisted and concerned. Unable to attend to certain details of the work proposed, a special agent was created, and clothed with such authority as seemed necessary to accomplish the legislative design. The state text-book commission is a public agency created to aid in the assertion of a public, right and the execution of a public power in the interest of the public welfare. Corporate power is withheld from it; it possesses no prerogatives personal to itself or its members, and the state alone can enforce the contracts it may negotiate. It is merely the arm of the legislature, and the character of the acts done by it cannot be distinguished from the character of governmental acts performed by the legislature itself.
Under the text-book law bids are protected by unconditional certified checks, forfeitable upon failure to contract, and contracts are protected by bonds, forfeitable upon failure to perform. These measures afford ample security to the state in the business it undertakes to do. One of the paramount purposes of the text-book law is to engender the widest possible competition, in order to secure to the children of the state the highest quality of text-books at the lowest possible price. Publishing houses everywhere are invited and expected to place their resources at the command of the state for the good of the common schools. Any limitation or burden other than those the textbook law itself contains would tend to thwart this purpose. In the field selected by the legislature for this exhibition of its power it is supreme. It may adopt its own method of obtaining bids, and may contract with any one it will, whenever it pleases to do so, through whatever medium it chooses to employ. The transaction is its own and is subject to no limitation that is not self-imposed.
The statute does not in express language refer to the state. Only general terms are used. It is a rule of interpretation that “the general language of statutes will be limited to such persons and subjects as it is reasonable to presume the legislature intended it should apply.” (The State v. Smiley, 65 Kan. 240, 69 Pac. 199.) It is not reasonable to presume that the legislature intended the general language of the Bush law to be binding upon itself in respect to contracts of the character in question. To do so would be to presume that the legislature undertook to cripple and curtail its own power to discharge governmental functions, and undertook to diminish the fund of its own resources for that purpose, and would put the legislature in the attitude of deliberately compassing the defeat of its own designs.
“The king is not bound by any act of parliament, unless he be named therein by special and particular words. The most general words that can be devised (‘any person or persons, bodies politic or corporate, etc.’) affect not him in the least if they may tend to restrain or diminish any of his rights or interests. For it would be of most mischievous consequence to the public if the strength of the executive power were liable to be curtailed without its own express consent, by constructions and implications of the subject.” (1 Black. 261.)
This rule has been adapted to the requirements of the political system prevailing in this country, and is now universally recognized. Chancellor Kent states it as follows :
“It is likewise a general rule, in the interpretation of statutes limiting rights and interests, not to construe them to embrace the sovereign power or government, unless the same be expressly named therein, or intended by'necessary implication.” (1 Kent, 460.)
Many pertinent authorities illustrating applications of this 'principle are collated in volume 26 of the second edition of the American and English Encyclopaedia of Law, at page 644, and in cross-references there indicated-.
However, for the reasons first given, the judgment of-the district court is affirmed-.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
The relative position of the parties here is as it was in the court below. The plaintiff had a verdict in his favor, the jury at the same time' returning answers to many special findings. Defendants’ motion for a new trial was sustained, and it is insisted that the court erred in so doing because it was not filed in time.
It appears that the jury returned its verdict at the close of the day and too late for further action in the case. With the exception of the completion of this case the court had entirely finished its business for the term, and as the judge, as well as some of the attorneys, desired to leave upon a comparatively early train the next morning court was adjourned to 7 :30 A. m. Attorneys for defendant had prepared two motions—one for judgment in their favor upon the special findings and one for a new trial. Upon the convening of the court at the early hour indicated, the motion for judgment upon the special findings was filed and argued, its discussion continuing up to the time of the departure of the train upon which the judge and attorneys desired to go. The court overruled this motion and, after consultation with the attorneys, it was ordered that the hearing of the motion for a new trial be continued until the next term, and thereupon an adjournment was ordered and announced by the sheriff.
It is claimed by the plaintiff that the motion for a new trial was not filed until after the court had adjourned. When it came on for hearing at the next term the court heard evidence upon the question of the time when it was actually filed. The clerk testified that it was from five to ten minutes after the announcement of the adjournment. Witnesses on behalf of the defendants testified that immediately upon the agreement that the hearing of the motion be continued until the next term it was carried to, and laid upon, the desk of the clerk for filing. The attorney who did this said that he was not willing to say. whether the adjournment had been proclaimed at the time, but said that he took the motion to the clerk with all expedition after this arrangement was made and the adjournment ordered. Another witness stated that he did not think it was a minute after the agreement, as to the continuance before the paper was taken to the clerk, and at that time the judge had not left the bench. The judge’s trial-docket contained a minute of the filing of the motion and of the continuance of the hearing until the next term, the judge, however, making a statement that he did'not see the motion filed or know that it was in fact filed, but that the notation in the trial-docket was made with the thought that it had been filed.
We .think, upon this showing, that the court was right in considering the motion, even though, as a matter of fact, it had not been filed by the clerk, or had not come to his manual possession, before the actual proclamation of adjournment was made, the time between the two acts being so infinitesmal and insignificant that it might well have been treated as of no moment; more than this, it appears that the judge and counsel, in their discussion about the continuance of the hearing of the motion, treated it as-though it were actually filed.
The plaintiff urges that, even though the court had jurisdiction to consider the motion, it should not have' been sustained, and argues that the grounds upon which the court sustained it were insufficient. The' motion set out all grounds therefor, and there is nothing in the record indicating upon which of these it was granted. We cannot, therefore, say that the court-was in error in so doing. (Barney v. Dudley, 40 Kan. 247, 19 Pac. 550; Ireton v. Ireton, 62 id. 358, 63 Pac. 429.)
The order of the court granting a new trial will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J. :
This action was commenced by E. M. Foy in the district court of Comanche county against the board of county commissioners to recover the sum of $118.56, paid under protest for taxes levied and assessed against him in the year 1895 on two stocks of merchandise. Trial was had before the court upon agreed facts, and testimony as to the ownership of the property. There was judgment for defendants, and a new trial denied. Plaintiff brings error.
The facts are substantially as follows : On, and for some time prior to, the 22d day of February, 1895, the plaintiff was the owner of two stocks of general merchandise, one located in the town of Coldwater and the other in the town of Protection, in Comanche county. On the 22d day of February, 1895, plaintiff executed and delivered to the Symns Grocer Company, of Atchison, and R. L. McDonald & Co., of St. Joseph, a joint chattel mortgage on said stocks of merchandise to secure an indebtedness of $2378.45. The mortgage was filed for record in the office of the register of deeds on the 23d day of February, and on that day the mortgagees took possession of the merchandise and placed plaintiff in possession thereof as their agent. He continued in that capacity until the merchandise was closed out by chattel-mortgage sale some time in October following. The taxes assessed against the stock in Coldwater were $90, and against the stock in Protection $25.91. Upon the assessment-roll each stock appeared assessed to plaintiff. The taxes being unpaid, on the 30th day of January, 1896, the county treasurer issued warrants for the collection of said taxes, penalties, and costs, and delivered them to the sheriff. These warrants were returned unsatisfied. On the 20th day of April, 1896, abstracts thereof were filed in the office of the clerk of the district court, and said taxes became a lien on real estate owned by plaintiff in said county. On January 6, 1897, plaintiff, to avoid the sale of his premises upon execution, paid, under protest, the sum of $118.56 to the county treasurer, in full satisfaction of said taxes, penalties, and costs. Prior to the commencement of the action plaintiff demanded of defendant a return of the money by him so paid, and its return was refused.
The question we are called upon to determine is whether the plaintiff, as mortgagor, on the 1st day of March, 1895, had such an interest in the mortgaged property, under the facts as stated, as rendered him liable for the payment of- the taxes levied and assessed on said stocks of merchandise for the year 1895. The contention of plaintiff is that, the mortgagees having taken possession of the merchandise under the chattel mortgage prior to the 1st day of March, 1895, under section 4250, General Statutes of 1901, they alone were liable for the payment of the taxes on the mortgaged property for the year 1895. Section 4250 reads : “In the absence of stipulations to the contrary, the mortgagee of personal property shall have the legal title thereto, and the right of possession.” The chattel mortgage contained a stipulation that the mortgagor should retain possession until default made, but contained no stipulation as to the legal title of the mortgaged property.
While the statute, as between the mortgagee and the mortgagor, where there is no stipulation to the contrary, vests the legal title in the mortgagee, it is not an absolute title. The title of the mortgagee is .subject to the equitable rights of the mortgagor. Whatever surplus remains of the mortgaged chattels, or of the proceeds of the sale, after satisfaction of the debt, belongs to the mortgagor. This interest in the mortgaged property he may sell or again encumber, subject to the lien of the prior mortgage. Section 4252, General Statutes of 1901, provides that “after condition broken, the mortgagee or his assignee may proceed to sell the mortgaged property, or so much thereof as may be necessary to satisfy the mortgage and costs of sale.” Section 4254 provides that after satisfying the mortgage and costs of sale the surplus shall be paid to any subsequent mortgagee entitled thereo, or to the mortgagor or his assigns. These are statutory recognitions of the interest of the mortgagor, his assigns and subsequent mortgagees in the mortgaged property.
The rights of creditors of the mortgagor to make claim to his interest in the mortgaged property and the means of reaching that interest have received recognition by this court. In Anderson v. Bank, 64 Kan. 587, 67 Pac. 1110, where the right of a creditor of a mortgagor to levy an execution on'the property covered by a chattel mortgage while in the possession of the mortgagee was denied, with reference to the interest of the mortgagor in the property it was said: “The judgment creditor is not without a remedy. If, in his judgment, there will remain a surplus after the mortgage claim has been satisfied, he may garnishee the mortgagee and thus by way of equitable attachment satisfy his judgment.” In Fields v. Russell, Sheriff, 38 Kan. 720, 17 Pac. 476, it was held that the mortgagor in possession of personal property assessed in his name was not entitled to credit on his assessment for the amount owing by him on the mortgage debt. Nor would the mortgagee in possession of mortgaged property, if assessed in his name,be entitled to credit on his assessment for the taxes assessed against the note and mortgage held by him against the mortgagor.
Construing sections 4252 and 4254 with sections 4250, it is apparent that it was the intention of the legislature to pass to the mortgagee such title only as would enable him to sell the mortgaged property and .apply the proceeds to the discharge of the mortgage debt. A mortgagee in possession of mortgaged property is in possession only for the purpose of satisfying the mortgage debt. The debt secured by the mortgage measures his interest therein. Whether the interest of the mortgagee in the property or that of the mortgagor is the greater, the taxing authorities ought not to be required to determine. Nor ought they to be required to determine whether or not personal property is encumbered by chattel mortgage. It would lead to endless trouble and expensive litigation if it were left to the taxing authorities to determine, apportion and tax the respective interests of the mortgagee and the mortgagor.
We see no reason why the mortgagor should be relieved from liability for payment of the taxes assessed against the mortgaged property, and especially so where assessed in his name. It is much easier for the mortgagee and the mortgagor to have an understanding as to the payment of taxes on mortgaged property, or to adjust the matter of taxation between themselves, if it require adjustment, than it is for the taxing authorities to determine whether or not property is encumbered, and, if encumbered, who is the mortgagee and who the mortgagor, and whether it would be more proper to tax it to the mortgagee than to the mortgagor.
We find no material error in the record, and the judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
This was a proceeding originating in the probate court of Jewell county. Its purpose was to obtain the admission to probate of the will of William Swartz, which was denied, and an appeal taken by the proponent to the district court. That court having denied probate, proceedings in error were prosecuted to this court, where the case was reversed. (Hospital Co. v. Hale, 64 Kan. 367, 67 Pac. 848.) The matter coming on again.to be heard in the district court, probate of the will was again denied, and the case is now here for further review.
Prior to the first trial in the district court the deposition of a witness was taken at a point in Missouri. A motion was made to suppress this deposition on a number of grounds going to its regularity and impeaching its validity. This motion was at that time denied, but upon the condition that the proponent should have opportunity to cross-examine the witness whose deposition had been taken. Subsequently, when the parties went to conduct this cross-examination, they found that the witness had died. When the matter came on for a second hearing in the district court the motion to suppress this deposition was refiled, accompanied by a notice that upon its hearing affidavits, depositions and oral evidence would be offered in its support. When it was called for hearing counsel for proponent requested permission to introduce evidence in addition to that considered when the motion was before the court at the prior trial. The court, however, declined to consider the motion, and the evidence offered in support thereof, both new and old, for the reason that he had once before considered this motion and passed on it.
This action is assigned as the first ground of error, and it is contended by the defendant in error'that no error or abuse of discretion was committed by the court by this action, because, the motion having been denied on condition once before, the court was not required again to take it up for consideration, and cites the language of this court in Hospital Co. v. Hale, supra, in support of the claim that, the question once having been passed upon, its determination has become the settled law of the case. We. are of the opinion that the court was in error in refusing to consider the motion the second time. The matters assigned in the motion for the suppression of the deposition were grave ; if true, the deposition should have been sup pressed. Evidence not before presented was tendered in its support. What this evidence was we do not know, or what the action of the court should have been upon its hearing we do not indicate ; but, at least, the proponent should have had the opportunity to make its showing and have the same considered, so that it might have got into the record the showing and the ruling thereon. A new trial of the issues was about to commence, and the proponent had aright to present its entire case in a connected and logical manner, so as to have it in proper form for review, should it so desire.
Many errors are urged arising out of the conduct of the trial of the question at issue before the district court. They are all quite closely related and can best be solved by a general discussion of the nature, procedure and effect of the trial of the issues arising upon the offer of a will for admission to probate. The issue upon such offer is whether the will was duly attested and executed, and whether the testator at the time of executing the same was of full age and sound mind and memory, and not under any restraint. (Wills act, § 15 ; Gen. Stat. 1901, § 7952.) The burden of proving these things rests upon the proponent. The forum in the first instance is the probate court, where no jury is available. The witnesses are those who have attested the will, and any others whom any person interested in having the will admitted to probate may desire to produce. This hearing is conducted in a somewhat informal manner and without notice or pleadings. The order which may be entered is either for the admission to probate of the will or the denial thereof. If the former, such order may be attacked at any time within two years in the district court in an action for that purpose by any person in terested in the will or estate of the deceased. If the latter, an appeal may be had to the district court, where the order of trial, the character and burden of the proof, the same informality of procedure, will be had as before the probate court, the district court having only such powers and pursuing such procedure on appeal as the probate court. All these matters will be found discussed in the case of Lawrie v. Lawrie, 39 Kan. 480, 18 Pac. 499.
In botfi courts the procedure is of the most informal and perfunctory character, and when a prima facie case is made upon the several points as to validity of execution, testamentary capacity, and freedom from illegal restraint, the order of admission should be made, leaving for the more formal and l'egular proceedings provided by section 20 of the wills act (Gen. Stat. 1901, §7957) the contest of the nicer and more difficult questions, a contest in which issues are duly formed, evidence properly produced, the machinery found for obtaining a jury should one be ordered. Upon the application to admit to probate, a party interested in having the application denied may not, as a matter of right, demand the examination of his witnesses in opposition. Just to what extent this preliminary examination ought to go it is difficult in any one case to say; it can be said, however, that it is not a contest; that is left for another proceeding in another forum. In the rough, it is probably sufficient to say that it should go only to the extent that a prima facie case is made in favor of the -validity of the will. In this case it seems that the court and all parties treated the proceeding on appeal as though it were one to contest the will. This was improper'procedure, and had it been done over the objection of plaintiff in error it would have been material error. We have made the foregoing comments in view of the fact that, as the case will' be reversed because of the error first noted, a more orderly procedure may be adopted on a subsequent trial.
Complaint is made of the giving of various instructions to the jury. These objections are based largely upon the improper scope of the inquiry in hand, which will no doubt vanish in a trial properly conducted.
The judgment of the court below will be reversed, with instructions to proceed further in .accordance with this opinion.
All the Justices concurring. | [
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Per Guriam:
It has heretofore been determined that the alternative writ of mandamus issued in this proceeding stated no ground for relief, except in virtue of its allegations of fraudulent conduct on the part of the members of the contest board. A hearing was, therefore, ordered upon that issue alone, upon which the case is now submitted.
No evidence whatever has been produced tending to impugn the motives of such officers, or to impeach the good faith of their action. The real contention of plaintiff, as developed at the argument, is not that there was actual fraud on the part of the secretary of state and attorney-general, but that they acted under a wrong conception of the law as to the scope of their investigation and as to the character of evidence by which they should be influenced. It is argued that their refusal to pursue certain lines of investigation and to consider certain classes of testimony deprived plaintiff of any real opportunity to be heard upon the substantial matters in controversy, and constituted, or was evidence of, arbitrary and capricious conduct, amounting to legal or constructive fraud. But the specifications by which these broad charges are sought to be supported show that the real complaint is merely that the majority of the board took a radically different view of the law from that contended for by counsel for plaintiff—a. view which, whether or not it was technically correct, was reasonably conceived and consistently followed. A case might be presented in which the departure from an orderly procedure was so great, and the disregard of the rights of a party so flagrant, that a court would be justified in ignoring the conclusion reached, but that situation does not arise here. The rulings complained of are of a debatable character, to pass upon the correctness of which would be to assume the functions of a reviewing court. This we cannot do.
The writ is, therefore, denied. | [
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The opinion of the court was delivered by
Atkinson, J. :
Andrew Sedlack was an employee of the Cudahy Packing Company, at Kansas City, Kan. He was employed in the cooking-room of the canning department, where meats were cooked for canning by the use of steam. There were in use six retorts, into which the meats to be cooked were placed. They were then, securely closed and steam under pressure turned into them until the meats were thoroughly done. It was his duty to assist in bringing these meats from the canning-room to the cooking-room, to assist in placing them in the retorts, and to assist in removing them when done. While removing the cap from one of the retorts, he sustained serious injuries.
The retorts were of metal and consisted of two distinct parts, a base and a cap, the base fixed and resting upon, or close to, the floor of the room, the cap fastened down securely upon the base when in use. The caps, being very heavy, were raised from the base by the use of ropes and pulleys suspended above. Retort No. 2, at which Sedlack, with his coemployee Bascha, was working when he was injured, was cylindrical in form, about two and one-half feet in diameter, and the cap, when on the base, stood about six feet high and weighed 700 or 800 pounds. The base was somewhat concave and about three inches deep. There was a small waste-pipe leading from the base of the retort to the sewer, called a “bleeder-pipe," its object and purpose being to provide a means to carry off the hot water which had formed in the base of the retort from the condensing of steam in the process of cooking. A valve was provided in this pipe, which was to be opened before raising the cap from the base to remove the cooked meats from the retort.
On the day of the injury Sedlack and Bascha had placed in retort No. 2 twenty-five two-pound cans of tripe to be cooked. Steam had been applied for nearly three hours, when Sedlack and Bascha were told by one Greenwood, an employee of defendant company, that the meat was cooked, and directed them to take it out. Greenwood turned off the steam. It was his duty to open the valve in the bleeder-pipe, that the hot water which had accumulated from the condensation of steam in the base of the retort might escape to thé sewer. Sedlack and Bascha removed the fastenings that secured the cap to the base of the retort. Plaintiff, standing close to one side of the retort, and Bascha, standing close to the opposite side, then pulled down upon the ropes suspended from above to raise the cap from its base. As the cap raised from the base hot water passed out from the retort and scalded plaintiff’s left foot.
; An action for damages was commenced by Sedlack, charging negligence to defendant, in substance, that .the bleeder-pipe was insufficient in. capacity to carry off the hot water; and that the pipe was obstructed and had- not been properly inspected. The defendant answered that the injury was the result of an accident; that the negligence imputed to it was- the negligence of Greenwood, a coemployee of plaintiff; and, also, that plaintiff was guilty of contributory negligence. A trial resulted in a judgment for plaintiff, and defendant prosecutes error to this court.
Whether or not the bleeder-pipe was insufficient in capacity, or was obstructed and defendant failed properly to inspect it, was a question for the jury. There was some evidence to support the verdict. It was approved by the trial court, and we cannot disturb it. It is the duty of the master to furnish the servant with reasonably safe instruments and a reasonably safe place for work. (Emporia v. Kowalski, 66 Kan. 64, 71 Pac. 1125; Kelley v. Ryus, 48 id. 120, 29 Pac 144; A. T. & S. F. Rld. Co. v. Moore, 29 id. 632.) The verdict of the jury is in effect a finding that defendant failed in these particulars, or one off them. It becomes unnecessary,' under the view we take of the case, to determine whether Greenwood was a co-employee of plaintiff or a vice-principal.
The judgment of the court below is affirmed.
All the¿Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
This was an action for damages against the city. The mayor and council in due form of law contracted for the paving and curbing of a part of Fifth street, which runs north and south. Plaintiff below owns real estate on the west side of it, and abutting thereon. After the work had been completed this action was begun, based on the claim that the street was improved in an unlawful manner for the reason that the width of it from lot line to lot line is 55 feet 'as laid out. The space improved was 36 feet in width, the east line of the improvement being 17 feet west of the east line of the street, and the west line-of the improvement (marked by the curbing) being three feet or less east of the west line of the street, leaving about three feet for sidewalk space in front of plaintiff’s property. There was no sidewalk at the place mentioned. The court below sustained a demurrer to the petition.
There was no charge of negligence in the construction of the paving or guttering, the gravamen of plaintiff’s claim being that the plan of the improvement was defective in that the paving was not laid nearer to the center of the .street. This question was referred to in the case of McGrew v. Kansas City, 64 Kan. 61, 62, 67 Pac. 438. In passing on the manner in which the improvement was made, the court said :
“One of the objections-is that the portion of the street paved is not in the center of the same. There is nothing substantial in this objection. It appears to have been due to irregularity in the width of the street, and whether the curb-line shall be closer to the lots on one side of the street than on the other is a matter.within the discretion of the city officers.”
There being a legal right vested in the ‘mayor and council to pave and curb the street in the manner it caused the work to be done, a cause of action for damages could not be based on the exercise of such lawful right for injury to the property situated outside the street though abutting thereon. (Gould v. City of Topeka, 32 Kan. 485, 4 Pac. 822, 49 Am. Rep. 496.) The governing authority of the city exercised its discretion in paving the street nearer to the lot line on one side than on the other. Such discretion is not subject to judicial control, and in no manner affects the question of power.. (Challiss v. Parker, Treasurer, 11 Kan. 384; City of Emporia v. Gilchrist, 37 id. 532, 15 Pac. 532.)
Counsel for plaintiff in error cite section 877 of the General Statutes of 1901, which confers power on the mayor and council of cities of the first class to require the building of sidewalks in front of any lot or block in the city, provided, that the outer edge of the sidewalk shall not be less than five' feet from the fence or bounds of the lot or lots. The contention is that plain tiff below cannot now construct a lawful sidewalk for the reason that the space left for that purpose between the curb and his lot line is less than five feet. The answer to this is that the city is not attempting to require the construction of a walk. If at any time the city should determine that a sidewalk is necessary along the property of plaintiff, conforming in width to the requirements of the statute above referred to, the power of eminent domain can be invoked and private property appropriated for that purpose.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J. :
On January 1, 1902, Josie M. Bach and her husband executed and delivered to the Mortgage Trust Company of Pennsylvania a promissory note for $3000, due five years after date, with interest at the rate of six and one-half per cent, per annum, payable semiannually, and at the same time they executed a mortgage on real estate to secure the payment of the note. There was a provision in the note that upon default in the payment of any interest coupon, or failure to comply with any of the condition's contained in the mortgage, the debt should immediately become due and payable, at the.option of the legal holder thereof, and that the note and attached coupons should draw interest at the rate of ten per cent, pef annum after maturity. The mortgage provided that upon failure to pay any part of the interest or principal the entire debt should immediately become due and payable, at the option of 'the holder, without notice. The interest coupon maturing July 1, 1902, was not paid, and on July 1, 1903, the plaintiff commenced this action, asking judgment for the amount of the note, with interest from July 1, 1902, at the rate of ten per cent, per per annum. In the petition the plaintiff alleged that under the terms of the note and mortgage it elected to declare, and did declare, the entire amount due July 1, 1902. The court allowed interest at the rate of six and one-half per cent, until the action was commenced, and ten per cent, thereafter.
The only matter in controversy between the parties is whether interest should have been allowed at the rate of ten per cent, from July 1, 1902, or from the date when the action was begun, to wit, July 1, 1903. The increased rate did not apply until the maturity of the note. By its terms the note was to mature January 1, 1907, but maturity might be accelerated by default in the’ payment of any interest coupon, at "the option of the holder. There was a default on July 1, 1902, and if the trust company had then exercised its option and elected to declare the entire debt due it would have been entitled to the increased rate. The option, however, was not in fact exercised until this action was begun. The allegation in the petition “that the interest due July 1, 1902, has not been paid, and the said plaintiff under the terms of said note and mortgage elects to declare, and does declare, the entire amount due July 1,1902,” did not operate to set back the election to the time stated. The plaintiff could not, by mere averment, give its declaration of election a retrospective effect, and thus make the whole debt due a year before the option was exercised. The default alone did not mature the debt. That circumstance afforded the holder ground for accelerating maturity, but until it in fact should have exercised its option, and declared the debt due by reason of the default, the note was not mature, and it was not entitled to the higher rate of interest. (Hutchinson v. Benedict, 49 Kan. 545, 31 Pac. 147; Keys v. Lardner, 55 id. 331, 40 Pac. 644; Kennedy v. Gibson, 68 id. 612, 75 Pac. 3044; York-Ritchie Co. v. Mitchell, 6 Kan. App. 317, 51 Pac. 57.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Tlie opinion of the court was delivered by
Mason, J.:
This is an original proceeding in mandamus, brought to compel the levy of a tax to pay a judgment against the city of Newton, a city of the second class, for damages occasioned by a defective sidewalk. The judgment was rendered March 26, 1908. Without any unreasonable delay the city prosecuted error to this court, where a decision of affirmance has just been made. (Newton v. Pherson, post, 77 Pac. 1134.) The questions presented upon review, however, were substantial and not such as to suggest that the plaintiff in error was merely seeking delay. No undertaking was given by the city to stay the execution of the judgment, and the plaintiff demanded that provision for its payment be made at the time of the tax levy of 1903. The demand being refused, this proceeding was begun.
It is true that the filing of a petition in error by the city, no stay bond being given, did not suspend the enforcement of the judgment. Such is the ordinary rule, and the statute makes no exception in favor of cities of the second class. Therefore, plaintiff may be said to have had a legal right to immediate provision for the payment of her judgment. But the allowance of a peremptory writ of mandamus is lax-gely a matter of discretion, even where, as in this case, it is sought as a substitute for an execution to enforce a judgment. (Phelps v. Lodge, 60 Kan. 122, 55 Pac. 840.)
There is not the same reason for requixing a supersedeas bond from a municipality as there is from other litigants. Ordinarily the plaintiff is reasonably sure of being able, in time, to collect a judgment against a public corporation, if it be sustained. At all events, the security is not likely to be impaired by the debtor’s property’s being conveyed away or dissipated. And there are obvious practical difficulties in the way of the municipality’s procuring sureties on such a bond. These cqnsiderations, of course, do not affect the plaintiff’s right to require that security be given if the enforcement of the judgment is to be suspended, but they may. be taken into account by the court in determining, in the exercise of a sound discretion, whether a peremptory writ should be allowed at this time in aid of plaintiff’s undeniable legal right. In Tillson, jr., v. The Commissioners of Putnam County, 19 Ohio, 415, a peremptory writ of mandaxnus to compel the levy of a tax to pay a judgment against a coixnty was refused for the reason that the judgment had not beexx in existence a sufficiexxt length óf time to satisfy the court that the county commissioners had “any desire to withhold payment unreasonably and improperly.” The syllabus reads :
“A peremptory mandamus will not be awarded to compel the commissioners of a county to levy a tax for the satisfaction of a judgment when there has been no unreasonable or vexatious delay.”
Other matters are set out in the answer in excuse of the failure of the city to make. the levy, which have been examined and found insufficient. But on account of the pendency until now of the original cause in this court, no peremptory writ will be allowed upon the present application.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, 0. J.:
J. T. Brock recovered a judgment against the St. Louis & San Francisco Railroad Company for $7000, for personal injuries sustained because of the alleged negligence of the company. In his petition he averred that, in traveling over a highway with which he was unfamiliar, it became necessary for Mm to cross the railroad track; that east of the crossing the railroad runs through a deep cut, and that, in the same direction and- near the crossing, there is a curve in the railroad; that the embankments around the curve and along the cut are high,, and on the embankments grass, weeds and brush were negligently permitted to grow and stand so as greatly to obstruct the view of one approaching the track ; that, as he approached the crossing, cautiously checking his team to a walk, he looked and listened for a coming train, but heard and saw none, or any signals indicating that one was approaching, and when his horses were upon the track a locomotive and train came around the curve and out of the cut, running at a high rate of speed, without having given a signal or warning of any kind. To save himself he whipped up his horses and they sprang forward, clearing the track, and avoiding a collision with the locomotive, but when the wheels struck the rails of the track he was first thrown forward on the dashboard of the buggy and then backward against the seat, wrenching and injuring himself severely, shattering his nervous system, impairing the action of his heart, and causing great pain and injury to his head, neck, and spinal column. The negligence charged was the failure of the company to sound the whistle eighty rods east of the crossing, or to give any signals in coming up to the crossing through the cut and around the curve, and, further, that there was negligence in allowing the grass, weeds and brush to grow along the track so as to conceal a coming train or a traveler approaching the crossing.
The first trial resulted in a verdict and judgment against the company for $400, but the judgment was reversed for error in the instructions. (Railroad Co. v. Brock, 64 Kan. 90, 67 Pac. 538.) At the second trial the jury awarded Brock damages in the sum of $7000, and a great number of the rulings then made are challenged.
- It is now contended that the averments of the petition, as well as the plaintiff’s evidence, show that Brock recklessly ran a race with the locomotive and was injured, when he might have avoided danger if he had backed or turned his team off the track, or had jumped from the buggy when he-first saw the approaching train. There is a general rule that when two ways are open to a person, one of which is obviously safe and the other plainly dangerous, and he voluntarily chooses the latter, he will ordinarily do so at his peril. This rule has its exceptions, as, for instance, if a person be placed in peril through the negligence of another, and through consequent fear and bewilderment err in judgment and make an injudicious choice of a means of escape, contributory negligence cannot be ascribed to him as a matter of law. In such case the party who put him in peril may be said to have caused the error in judgment as well, and the question of whether he acted with reasonable care under the circumstances is generally one for the jury. Who can say that it would have been a wiser course for Brock to attempt to back or pull his team off the track after seeing the locomotive, which he said was only about 200 feet away -when he first discovered it ? His team was then upon the track moving forward, and who can say there would not have been greater risk in checking the team and backing or pulling them off than in proceeding in the direction in which they were already moving ? By striking the horses and urging them forward he did, clear the track and avoid a collision. A greater dis. aster might have resulted if he had chosen the other course.
A person of ordinary prudence is not expected to-act with the same presence of mind and care under the stress of sudden and impending danger as he-would under other conditions, and whether Brock, exercised reasonable care under the circumstances was-peculiarly a question for the jury. Whether he should have stopped, as well as looked and listened for a train, when he approached the crossing, was, as determined on the first review, properly submitted to the jury. (Railroad Co. v. Brock, supra.) In that proceeding: the sufficiency of the petition was determined in his-favor, and the testimony offered in support of his-claim was held to have made a prima facie case for-his recovery.
There is complaint of the rulings made in charging the jury. The case appears to have been fairly submitted, except in one particular. Requests were-made for instructions as to the difference in the force- and weight of positive and negative testimony, but all of them were refused. There was conflicting testimony, as is usual in cases of this kind, in regard to-the blowing of the whistle for the crossing. Those-in charge of the train testified positively that the-whistle was sounded, while the defendant’s witnesses testified that they did not hear it. The failure to-blow the whistle, or to give any signal of the approach, was the principal ground of negligence-charged against the railroad company, and, hence, the weight to be given to the different kinds of conflicting testimony with respect to the matter was very important. In cases of this character the courts have-deemed it necessary pointedly to call the attention of the jury to the difference between positive and nega Uve evidence. In Mo. Pac. Rly. Co. v. Pierce, 39 Kan. 391, 18 Pac. 305, a case like this one, the refusal to .give an instruction pointing out the distinction was •made the ground for a reversal of the judgment. t The ■circumstances of the two cases were similar, and the instruction requested and refused in this case is almost .a literal copy of the one which, it was held in the preceding case, was erroneously refused. In Mo. Pac. Rly. Co. v. Moffatt, 56 Kan. 667, 44 Pac. 607, it was held that, where there is positive testimony that signals were given and negative testimony that they were not given, it is the duty of the court, upon request, to call the attention of the jury to the relative value of the two classes of testimony. (See, also, K. C. Ft. S. & G. Rld. Co. v. Lane, 33 Kan. 702, 7 Pac. 587; G. K. & W. Rld. Co. v. Comm’rs of Stafford Co., 36 id. 121, 12 Pac. 593; S. K. Rly. Co. v. Hinsdale, 38 id. 507, 16 Pac. 937.) Of course, if the witnesses had ■equal opportunities to hear, were giving like attention to the sound of the whistle, and were equally positive in their statements as to whether it was sounded, there would be little room for the application of the rule. This court so said in the case of K. C. Ft. S. & G. Rld. Co. v. Lane, supra:
“The testimony of one who was in a position to hear, "and who was giving special attention to the sounding of the whistle, that it was not sounded, ■while negative in form, is a positive statement of fact, and where the witnesses had equal opportunity to hear the whistle, and are equally credible, it is generally of as much value as the testimony of one' who states that it was sounded.”
Perhaps the testimony of Brock, who declares that he was giving heed for signals, may belong to this class, but some of the testimony in his behalf clearly comes within the rule of Mo. Pac. Rly. Co. v. Pierce, supra, and, hence, the instruction should have been given. For this error the judgment must be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Per Curiam:
We have examined all the points of error raised in the brief of counsel for plaintiff in error and find nothing which justifies a reversal of the judgment.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Greene, J. :
The plaintiff is a corporation owning and operating a line of railroad from the city of Atchison to the city of Cummings, in Atchison county, over which it transports passengers and freight. It brought this suit perpetually to enjoin the*defendant from riding over its track from Atchison to Cummings on a bicycle so constructed as to enable him to run it on the rails. A temporary injunction was granted. To the petition the defendant filed a demurrer which was overruled. In his answer he pleaded a general denial and that the petition did not state facts sufficient to entitle the plaintiff to the relief sought. The trial resulted in a judgment for defendant, and the plaintiff prosecutes this proceeding in error.
The defendant in error moves to dismiss the action for want of jurisdiction of this court. It is true that neither the petition in the court below nor the evidence upon the trial stated or proved what amount was in controversy, but after the case was tried the plaintiff in error procured and filed with the case-made affidavits which showed that the amount exceeded $100. It has been the common practice of this court since the decision of the case of Jones v. Kellogg, 51 Kan. 263, 33 Pac. 997, 37 Am. St. Rep. 278, to show any jurisdictional fact by evidence outside the record. The motion is overruled.
It appears that upon the final hearing the court concluded that the plaintiff’s petition was not sufficient to entitle it to any relief. The material part of the petition reads as follows :
“That it is now and'for a number of years last past has been the owner of a line of railroad running through the county of Atchison and into and through the city of Atchison, in said county, over which line of road it operates continuously freight- and passenger-trains, both day and night, and that it is necessary for the protection of its trains, passengers, and employees, that it have the exclusive use of its tracks, road-bed, and right of way; that the said defendant has for a considerable length of time, without any authority of law and without the assent or permission of this plaintiff, used its track and road-bed between the station of Cummings and the city of Atchison, in said Atchison county, Kansas, for the purpose of transporting himself thereover on a vehicle called a bicycle, so constructed as to run along and upon the tracks of said plaintiff, and propelled by himself ; that this plaintiff has repeatedly warned and notified said defendant that he must not use its said railroad-track and road-bed in the manner and for the purposes stated, but that he refuses to desist from the use of its said track in the manner aforesaid, and informs the plaintiff that he will not obey the notice and warning given him as aforesaid ; the plaintiff avers that the use of its said railroad-track and road-bed by the defendant in the manner aforesaid does, and will, greatly endanger the operation of its trains thereover, and is liable to cause collision between the defendant and his bicycle and the plaintiff’s trains, and by reason of collisions which are likely and probable to occur its property and the lives of the plaintiff’s passengers and employees are constantly menaced and endangered, and that if said defendant be permitted.to continue the use of the said track and railroad- of the plaintiff in the manner hereinbefore stated, said plaintiff will suffer irreparable damage and injury by reason of collision between the defendant and his bicycle and plaintiff’s trains, and that it is without a plain and adequate remedy at law.”
The objections urged to this petition, as stated by defendant in his brief, are the following :
“The length of the track so used by defendant is not stated, nor its condition ; there is no statement of the number of trains passing over that portion of the track each day, nor the respective times of their passage, nor that defendant’s use of the track with his bicycle was at such times that trains were due or likely to pass over it; nor how, nor in what way, a collision with a man on a bicycle could or would derail a train, or interrupt its passage over the track. Nor are any facts stated to show how, or in what manner, a collision might occur, or how such collision could or would occasion any interference with the operation of trains, or endanger plaintiff’s property and the lives of its" passengers and employees.”
These objections cannot be sustained. If the plaintiff can maintain the action at all its petition states sufficient facts to entitle it to a perpetual injunction. It is pertinent to say that the right of a railroad company to the exclusive use of its tracks does not depend wholly upon the actual damage done, or likely to be done, to its tracks or right of way, or the financial ability of the person committing such damage to respond in damages. A railroad company is a quasi-public corporation. (St. Jos. & D. C. Rld. Co. v. J. Ryan, 11 Kan. 602, 15 Am. Rep. 357; The State, ex rel. v. D. C. M. & T. Rly. Co., 53 id. 377, 36 Pac. 747, 42 Am. St. Rep. 295.) Plaintiff’s duties with reference to carrying freight and passengers are subjects of legislative regulation and control. It is properly held to' the highest degree of care for the safety of the lives and property thus entrusted to it commensurate with the business in which it is engaged. The damage to plaintiff’s track by reason of defendant’s constant use thereof, or the danger to his life by his foolhardy persistence in riding thereon, are not the most important questions, nor are they determinative of plaintiff’s right to an injunction. If these were all the questions, the plaintiff might be required to seek other relief. The rights of the public are involved. The safety of public travel demands a clear track, and it is the'duty of railroad companies to provide it. If it be unable to keep therefrom trespassers, who, by their constant presence, are liable to- endanger the lives of the public who constantly use these thoroughfares, it may apply to the equitable power of the court for assistance.
It has been ruled again and again by this court that a railroad company is entitled to the Uninterrupted and exclusive possession and occupancy of its tracks and all of its right of way necessary for conducting its business, except where built on the public highway or over public crossings. (Mo. Pac. Rly. Co. v. Manson, 31 Kan. 337, 2 Pac. 800; K. C. Rly. Co. v. Allen, 22 id. 285, 31 Am. Rep. 190; Tennis v. Rapid Transit Rly. Co., 45 id. 503, 25 Pac. 876; K. C. Rld. Co. v. Comm’rs of Jackson Co., 45 id. 716, 26 Pac. 394; Dillon v. Railroad Co., 67 id. 687, 74 Pac. 251.) The petition in this case shows that the defendant was a constant trespasser upon the company’s tracks, -and his conduct a menace to the safe and speedy operation of its trains and dangerous to public travel.
The judgment of the court below is reversed and the cause remanded.
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The opinion of the court was delivered by
Burch, J.:
On August 1, 1888, Maria T. Horner executed and delivered to J. N. Strickler, as cashier, a promissory note for $1200, maturing August 1, 1893, and secured it by a mortgage on real estate in the city of Topeka. Before maturity these instruments became the property of Lucy M. Higgins, a resident of the state of Massachusetts. Lucy M. Higgins died intestate on December 28, 1896. Her executors reduced the note to judgment against Maria T. Horner in the district court of Shawnee county on April 6, 1898, and obtained an order for the sale of the mortgaged premises. The property was sold on November 14, 1898, and after the proceeds had been applied to the satisfaction of the judgment a balance remained unpaid of about $1850.
In February, 1896, Maria T. Horner became the owner of certain real estate in the city of New York by warranty deed duly recorded in the office of the register of deeds of the county of New York, in the state' of New York, on the 17th day of February, 1896. On March 6, 1896, Maria T. Horner conveyed this property to her daughter, Sara T. Horner, by deed duly recorded March 9, 1896, and for the purpose of this decision the conveyance may be regarded as having been made voluntarily and without any consideration. Some time in the year 1901, Sara T. Horner disposed of the New York property, and on May 22, 1901, invested a portion of the proceeds derived from its sale in lot No. 383 on Kansas avenue, nue, in the city of Topeka.
In June, 1901, the plaintiff purchased the Higgins judgment against Maria T. Horner, and on July 30, following, filed a creditor’s bill in the district court of Shawnee county against Maria T. Horner and Sara T. Horner to subject the Kansas avenue property to the payment of his claim. Judgment was rendered in favor of the defendants, and the plaintiff prosecutes error in this court.
The court found that Maria T. Horner and Sara T. Horner had resided in the state of Kansas from the year 1888 to the time of the trial, and that they had not been out of the state for any considerable length of time during the period of their residence here. The evidence and the findings of fact do not disclose notice or knowledge on the part of Lucy M. Higgins of the conveyance of the New York property by Maria T. Horner to her daughter, except such as the recording of the conveyance might impart. Nor. do they show affirmatively that she was ignorant of the fraud which the plaintiff claims was committed; but her executors and the plaintiff were not informed of the conveyance in question until within two years before the commencement of the plaintiff’s suit. Upon these facts the question arises whether the plaintiff’s cause of action was barred by the statute of limitations at the time his suit was begun.
The plaintiff’s action is one for relief on the ground of fraud. His claim is derived from Lucy M. Higgins, and any defect in her right to take advantage of her debtor’s conduct necessarily handicaps him. Notice to her of a fraudulent attempt to prevent the collection of her debt is notice to the plaintiff, and her knowledge is his knowledge. The original wrong-doing on the part of the defendants, if any were committed, consisted in making the conveyance of March 6, 1896. The sale of the New York property by the fraudulent vendee and the investment by her of the proceeds in other real estate to which she took the title wrought no fresh or additional injury, and fixed no new point of departure from which the plaintiff might compute the time for bringing suit. So far as the record shows, Lucy M. Higgins may have been fully cognizant of the first transfer and its effect upon her rights for a number of months before her death; and it is familiar law that ignorance of any fraud complained of until a time within the period limited for the commencement of an action must be established to remove the statutory bar. (Young v. Whittenhall, 15 Kan. 579; Myers v. Center, 47 id. 324, 27 Pac. 978.)
Assuming the fraud to have been discovered, a cause of action for relief on account of it was complete, at least, as soon as November 14,1898. Whether or not such an action might have been commenced at an earlier date it is not necessary to inquire. The plaintiff’s action was not begun until July, 1901; therefore, it was barred.
The plaintiff argues that he had no cause of action against the Horners until the proceeds of the sale of the New York property were brought within the jurisdiction of the courts of this state. Such, however, is not the law. Some early, decisions sustain the plaintiff’s view, but the authorities are now substantially agreed that an action by a creditor to set aside a fraudulent conveyance of his debtor’s property may be maintainéd in any jurisdiction where the guilty parties may be found. In such a case the court does not act upon the land itself, but upon the parties to the fraud, and it not only has authority to declare the conveyance void as an obstruction to the enforcement of the creditors rights, but it has the further power to compel the defendants to do all things necessary, according to the lex loci rei sitse, which they could voluntarily do, to give effect to the decree. (Johnson v. Gibson et al., 116 Ill. 294, 6 N. E. 205; Woodbury v. Nevada etc. Ry. Co., 120 Cal. 463, 52 Pac. 730; Beach v. Hodgdon, 66 id. 187, 5 Pac. 77; Coleman & Quillian v. Franklin, Guardian, 26 Gra. 368; Lehmberg v. Biberstein, 51 Tex. 457; Phelps v. McDonald, 99 U. S. 298, 25 L. Ed. 473; Miller v. Sherry, 2 Wall. 237, 249, 17 L. Ed. 827; Kirdahi v. Basha, 74 N. Y. Supp. 383; Bailey v. Ryder, 10 N. Y. 363; Gardner v. Ogden, 22 id. 327, 78 Am. Dec. 192; Wait, Fraud. Convey. & Cred. Bills, 3d ed., §405; Smith, Eq. Rem. of Cred., §§ 38, 51, 17e; 5 Encyc. Pl. & Pr. 438.)
■The case of Gray v. Folwell, 57 N. J. Eq. 446, 41 Atl. 869, apparently opposed to this conclusion, follows without discussion the case of Servis v. Nelson, 14 N. J. Eq. 94, in which the sum total of the court’s consideration of the question is expressed in the statement that the land was not within the jurisdiction of the court or under its control.
Since, in any event, the plaintiff’s action in this state was barred before it was commenced, it is not necessary to consider what remedies may have been available to his assignors in the state of New York, or what relief they might have obtained under tho drastic and comprehensive provisions of the garnishment law of this state.
The plaintiff assigns error with respect to a number of other matters embraced in the decision of the district court. None of them, however, affects the questions already discussed, and, since they, are determinative of the case, the judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J..:
Plaintiffs in error were directors in the Wathena State Bank and defendant in error brought this action against them to recover deposits made by him in that bank, it having become insolvent. The claimed liability was based upon the provisions of sections 471 and 472, General Statutes of 1901, the same being sections 65 and 66 of the banking layL.(Laws 1879, ch. 47, §§ 1, 2), which, so far as they are necessary to be considered in this case, are as follows :
“It shall be unlawful for any president, director, manager, cashier, or other officer of any banking institution, to assent to the reception of deposits or the creation of debts by such banking institution, after he shall have had knowledge of the-factJhat ,it_iaJnsolvent or in failing circumstances ; and it is hereby made the dijtymf every such officer, agent or manager of such banking institution to examine into the affairs of the-same. and, i'f possible, know its condition. And upon failure of any such person to discharge such duty, he shall, tor the purpose of this act, be held to have had knowledge of the insolvency of such bank, or that it was in failing circumstances. Every person violating the provisions of this section shall be individually responsible for such deposits so received, and all such debts so contracted.
“In all suits brought for the recovery of the amount of any deposits received or debt so created, all officers, agents or managers of any such banking institutions, charged with having so assented to the reception of any such deposit, or the creation of such debt, may be joined as defendants or proceeded against severally ; and the fact that such banking institution was so insolvent or in failing circumstances at the time of the reception of the deposit charge°d to have been so received, or the creation of the debt charged to have been so created, shall be prima facie evidence of such knowledge’and assent to such deposit or creation of such debt on the part of such officer, agent or manager so charged therewith.”
Plaintiff’s petition contained allegations sufficient to entitle him to a recovery under the provisions of these sections. Defendants’answers contained several defenses—No. 5 being substantially that the cashier was a thorough business man of long experience, good standing and reputatio-n-jor honesty and integrity, with a good reputation in the community and with the patrons of the bank, and that the plaintiff, in making his deposits, relied exclusively upon these qualities of the cashier, and not upon the connection of the defendants with the bank as directors ; that the directors had no knowledge of the cashier’s methods in keeping the books of the bank, or of any erroneous, false, untrue or incorrect entries made by him in such books; that it would,hav&wkey;hemi-Jmp£isslhle for them to detect any such errors if they had made an examination of the books without the aid of an expert accountant ; that they had implicit confidence in the integrity, honesty, probity and accuracy of the cashier, and of the books kept by him, and had no reason to suppose that he was in any manner conducting the business or keeping the books of the bank in any but a honest manner ; that they could not, by an examination of the books and affairs of the bank, have determined that the bank was not in a safe, solvent and flourishing condition ; and that they did not, in fact or in law, have notice or knowledge that the bank was in solvent or in failing circumstances at any time during the period when plaintiff was making deposits therein. This defense closed with the following language, which in effect contains the gist of it all:
“And this defendant alleges and charges the fact to be that if said bank was in failing circumstances and insolvent it was caused by and through the false, fraudulent and corrupt practices of the said cashier thereof in making false and fraudulent entries in the books of said bank and in the accounts of its customers therein, and in making false, fraudulent and forged paper payable to said'bank, with the names of responsible men fraudulently forged and signed thereto, for the purpose of deceiving defendant and others interested in.the business and management of said bank and in the transaction of its business, and for the purpose of deceiving all persons interested therein, and was so done in such manner and under such circumstances and in such ways that this defendant could not possibly have discovered such false and fraudulent entries, or that such paper was false and forged, and that such bank was by reason thereof insolvent or in failing circumstances, and that upon an examination of the books, papers and affairs of said bahk and of the accounts therein, and notes and bills receivable held by it, he could not have discovered that said bank was insolvent or in failing circumstances.”
The answer nowhere pleaded that an-y-examination of the affairs of the bank had been made by the directors, but rather admitted that none had béen made. To this defense the plaintijL¿emu£EQd, the_ demurrer was sustained, and the defendants are now here raising the question whether it contained matter barring plaintiff’s recovery. We are thus called upon for an interpretation of the quoted sections of the banking law, with a view of ascertaining the liability of directors imposed thereby for deposits made in an insolvent bank.
In the absence of a statute the debt created by the deposit of money in a bank is due from the corporation only and not from the directors. The mere non-j feasance or misfeasance of directors in- respect to their I duties, would not render them .liable to a depositor. However, beyond question this jiabilftv mav be .enlarged by statute, and considerations of sound public policy require that it be done. Properly to meet and effectuate these considerations • the quoted sections .were passed by the legislature, and their interpretation should be undertaken in a fair spirit of liberality to accomplish the purpose for which they were intended. The liability thereby created should be enforced as indicated by the ordinary interpretation of the' language used. It was evidently the thought and purpose of the legislature to guard depositors from loss through the incompetency or criminality of officers chosen by directors by imposing upon such directors the burden of giving watchful care to the affairs of the bank, and by adding to their duties something more than care in the selection of president and cashier, to wit, the duty of keeping watch of their conduct by making an examination into the affairs of the bank with reasonable frequency and thoroughness. With these suggestions as to interpretation let us look at the statute.
The first clause of section 65 makes it unlawful for a director to assent to the reception of deposits by the bank after he has knowledge that the bank is insolvent or in failing circumstances. The second clause makes it the duty of such officer “ to examine into the affairs of the same, and, if possible, know its condition.” The third clause provides that if such officer fail to discharge such duty he shall, for the purposes of fixing his liability, be held to have had knowledge of the insolvency or the failing condition of the bank. The fourth clause holds such officer to individual responsibility if he fail in these respects. The pregnant portion of section 66 is that the fact that the bank was insolvent or in failing circumstances at the time of the reception of the deposit shall be prima facie evidence of the knowledge on the part of all these officers that it was in such a condition.
The contention of the plaintiffs in error, put into as narrow a compass as possible, is that the proper interpretation of these sections is that it is1 the duty of a director to examine into the affairs of the bank, and if he fail to do so he shall be held to have knowledge of the bank’s insolvency, and consequently be liable to a depositor if by such examination it would have been possible for him to ascertain the condition of the bank. We are unable to agree with them in this construction. It seems to us strained and unnatural, and insufficient to accomplish the evident purpose of the legislature.
By the second clause .of section 65, as above stated, it is made the positive duty of the officer to examine into the affairs of the bank. This duty stands out clearly by itself. An examination by the officer is required, regardless of what it may show. It is to be such an examination in frequency, thoroughness and accuracy as will, with reasonable certainty, acquaint him with the condition of the bank. A director may not excuse himself f ro m 1 i ab i lityt oa ..d e p os i t o r by saying that he~was relying upon the honesty of the cashier w'hom he had employed, and hence made no examination of the a¡ffairs of the bank ; or that it would have-been useless for him to makejsuch ex aminatio_n,.be ca u-se the peculations of the cashier were of such character,, and carried on and concealed with so skilful a hand, that he, not being an expert,, could-mot have.-discovered them. The legislature undoubtedly-thought to lay upon those in active controLoi„banks_the restrainingjnfluence of reasonably frequent and thorough examinations of their affairs. The qualifying phrase, '“if possible,” has application to the'discovery of wrong conditions by reasonable .examination, and does not serve to excuse the want of all examination by an incompetent director. In short, the requirement of the statute is that the examination be made, and be of such character .as would result in a knowledge of the condition of the bank if such knowledge could possibly, within the range of reasonable frequency and thoroughness, be obtained.
We do not think that the plea of a director sought to be charged with liability under the quoted statutes, that he made no examination, but that if he had, it would not have been possible for him to ascertain the failing condition of the bank, is sufficient to excuse him from the liability imposed by law.
The éighth paragraph of the answer charged that-the action was being prosecuted under a champertous contract between the plaintiff and his attorney. A demurrer to this defense was also sustained, and, we think, correctly. It was no concern of the defendants- that the plaintiff and his attorneys had entered into a champertous arrangement; it nowise affected the obligation of the defendants to the plaintiff. Its infirmity concerned the parties to such contract, and not the parties, to the action to which it relates. (A. T. & S. F. Rld. Co. v. Johnson, 29 Kan. 218; 6 Cyc. 880.)
The trial court did not err in sustaining the demurrer to either defense, and hence the judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
This is a proceeding to review the ruling of the district court in sustaining a demurrer to a petition which alleged substantially the following facts : In 1884 Lewis A. Reed and William S. Hodge, the owners of certain real estate, executed a mortgage upon it, securing a note to William Boardman. Reed afterward conveyed his interest in the property to Hodge, who agreed to relieve Reed of liability on the note. Hodge then conveyed to one C. J. Mc-Divitt, who in turn conveyed to E. D. Humphrey, each deed including an assumption of the mortgage by the grantee. In a suit to foreclose the mortgage a personal judgment was rendered against Hodge, Reed and Humphrey for $5325, on September 16,1890. The real estate was sold under the judgment on June 8, 1891, for $3000. Reed having died on May 13, 1893, the judgment was revived against his administratrix on April '25, 1894, and upon appeal to the district court from the probate court was, on June 26, 1894, allowed as a claim of the fourth class against the estate. The administratrix paid the balance due on the judgment on April 8, 1896, and later, upon her discharge, her claim against Humphrey, based upon her payment of the judgment, was assigned to Reed’s heirs, who brought this action against him upon such claim. The petition was filed March 30, 1901, and contained an allegation that the defendant was and had been continually for more than eight years a nonresident of Kansas and a resident of Oklahoma.
It is contended by defendant in error that the demurrer was rightfully sustained because the action, having accrued more than three years prior to the filing of the petition, was barred by the statute of limitations. ■ It is argued that the allegation that defendant had been at all times a non-resident of the state is not sufficient to forestall the attack by demurrer, and Coale v. Campbell, 58 Kan. 480, 49 Pac. 604, and Investment Co. v. Bergthold, 60 id. 813, 58 Pac. 469, are cited in support of the argument. The former decision did not involve a question of pleading, and merely held that the fact of non-residence did not prevent the running of the statute. The latter con sidered the effect of a demurrer to a reply which sought to bring plaintiff within an exception to the statute, and held that an allegation of non-residence was not sufficient for that purpose, as it was not equivalent to an allegation of personal absence from the state. An important distinction, however, is to be noted between that case and this. It is not incumbent upon the plaintiff in the first instance to show by his petition that his claim is not barred. It is sufficient that he does not show that it is barred. “A demurrer can be sustained on the ground that the cause of action is barred only when it clearly appears upon the face of the petition that it is barred ; and if the bar is not so shown, it must be raised by answer.” (Walker v. Fleming, 37 Kan. 171, 176, 14 Pac. 470, 472.) But when the statute is interposed in the answer as a matter of defense, it devolves upon plaintiff in his reply to set out facts showing that the statute has not run against his claim ; and in order to bring himself within any exception, he must plead facts showing not merely that the statute may have been suspended, but that it must have been. There are many cases holding that exceptional conditions relied upon as tolling the statute must be strictly pleaded, but they are ordinarily cases in which the question arose upon demurrer to the reply, or in which the distinction pointed out was not noted. On the other hand, there are well-considered cases holding that averments in the petition suggesting matters that might prevent the running of the statute are subject to the same rule as those regarding the time when the cause of action arose, and that although it is distinctly shown that the statutory period has expired, and is not shown that facts exist to take the case out of the statute, yet the pleading is good against demurrer if it point out some circumstance which may have prevented its running.
In Kennedy v. Williams, 11 Minn. 814 (Gil. 219), the complaint was upon a note that had been due for more than six years (the limitation period). A partial payment was alleged, but its date was not given. The court said :
“But the complaint shows that a partial payment was- made at some time. For aught that appears, it might have been made at a date late enough to’ save the statute. It cannot, then, be said that the complaint, taken as a whole, shows upon its face that the cause of action was barred, nor that, for this reason, it fails to state facts constituting a cause of action.”
In Vose v. Woodford, 29 Ohio St. 245, suit was brought against one of three makers of a note that was barred unless saved by payment alleged to have been made in proper time. He demurred to the petition on the ground that it was not alleged that the payments were made by him. It was conceded that a payment by another maker would not prevent the running of the statute in his favor. The court said :
“There is no legal presumption or inference, from anything stated in the petition, that they (the payments) were not made by him. If made by him, the cause of action was not barred as against him. It is only where it appears affirmatively upon the face of the petition that the cause of action therein stated is barred by the statute that such bar can be pleaded by demurrer.”
These cases were cited and followed in Meyer et al. v. Binkleman, 5 Colo. 262. In Coney v. Horne, 93 Ga. 723, 20 S. E. 213, the question whether the statute had run depended upon when plaintiff's intestate became of age. The court said :
“It not appearing when Miss Taylor became of age, or -that immediately upon her reaching her majority the alleged trust vested, we are unable to determine the exact time from which the eleven years should be computed; and, consequently, the declaration does not affirmatively show upon its .face that the cause of action is barred. This being so, the defense of the statute of limitations, if good at all, should have been made by plea, and not by general demurrer.”
In the case at bar the allegation of defendant’s non-residence is not equivalent to one of personal absence, for it cannot be said that a non-resident is presumed to be at all times absent from the state. But an allegation of continuous non-residence in this state, and continuous residence in Oklahoma, from a time prior to the accrual of the cause of action, may well be said to create a presumption of presence in Oklahoma, and consequent absence from Kansas, for a part of that period. This being true, the situation is the same as though the pleader had alleged that the defendant had been absent from the state a part of the time, without saying how much of it, since the cause of action arose. Within the reasoning of the authorities cited, we hold that this was sufficient as against a demurrer to show that the statute of limitations might not have run against the claim. If it could be known from the record or otherwise that plaintiffs, meaning to rely wholly upon the mere fact of non-residence, intentionally omitted from the petition direct allegations as to the defendant’s absence from the state, with the very purpose that the question whether his non-residence would suspend the operation of the statute might be determined, this court might doubtless be justified in holding the demurrer good. But the fact appears to be that such omission was inadvertent, and therefore a liberal rule of construction should be adopted. “Inadvertent omissions of facts from a pleading, especially where . . . they may be covered by broad and general allegations, are generally looked upon leniently by the courts.” (Lapere v. Luckey, 23 Kan. 534, 537, 33 Am. Rep. 196.)
It is further argued that the judgment is no longer in force against defendant, both because it had been ■dormant for more than a year when this action was begun, and because it had been paid without notice being filed with the clerk of a claim for repayment, under section 480 of the code. But that notice need only be given where it is desired to preserve a remedy under the judgment itself (Fort Scott v. Railroad Co., 66 Kan. 610, 72 Pac. 238), and the present action is not founded upon the judgment, but upon the fact of its compulsory payment by the administratrix. Nor is it material whether the judgment was enforceable against defendant at the time it was paid. “If at the time the payment is made the-surety making such payment is himself legally bound to pay the debt, he may recover from the principal debtor or cosurety, although at the time the payment was made by him the principal or ‘ cosurety was discharged from the debt by limitation.” (Faires v. Cockerell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528. See, also, Camp et al. v. Bostwick, 20 Ohio St. 337, 5 Am. Rep. 669; Martin v. Frantz, 127 Pa. St. 389, 18 Atl. 20, 14 Am. St. Rep. 859.)
It is also objected that the provision of the deed to defendant by which he agreed to assume the mortgage as a part of the purchase-money did not impose a personal liability upon him. The ground of this objection is not apparent. “The word ‘assumes’ in the deed is usually construed to mean the same as ‘ assumes to pay,’ and is therefore equivalent to a personal covenant by the grantee.” (20 A. & E. Encycl. of L., 2d ed., 989.) Here each successive grantor appears to have been personally liable for the mortgage debt, so that according to the prevailing doctrine the assumption by the last grantee inured to the benefit of the owner of the mortgage and made the defendant a surety for the original debtor. (20 A. &. E. Encycl. .of L., 2d ed., 1000.) Moreover, the judgment was conclusive upon the defendant that he was liable for the payment of the mortgage debt. (Dewitt v. Boring, 123 Ind. 4, 23 N. E. 1085.)
A final contention is that no right of recovery is shown in these plaintiffs, because there is no allegation that the estate was solvent, the argument being that if there were other claims against it that would have exhausted all its assets the heirs suffered nothing by the payment of this one by the administratrix. Such insolvency is not to be presumed, however. The presumption is, rather, from the order of the probate court for an assignment of the claim, that the debts were all paid; and the plaintiffs sue not merely as heirs, but as assignees of the administratrix.
The judgment is reversed, with directions to overrule the demurrer.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
This is an original proceeding in mandamus by which it is sought to require'the secretary of state to certify to the various county clerks of the counties comprising the second congressional district the name of Henry J. Allen as the republican nominee for congressman from that district. The affidavit for the writ discloses that two certificates of nomination have been filed with the secretary of state, each purporting to be authenticated by the officers of the regular republican congressional convention, one naming plaintiff as the nominee, the other naming J. D. Bowersock ; that the question of which of them should be recognized has been considered by the •officers to whom the statute (Gen. Stat. 1901, § 2703) commits the determination of such matters ; and that a majority of them have decided in favor of the latter. To obviate the effect of that decision three contentions are made : (1) That the statute creating such tribunal and making its decision final is unconstitutional in that it devolves judicial functions upon executive officers and in that it impairs the original constitutional jurisdiction of the supreme court in mandamus ; (2) that the certificate filed with the secretary of state on behalf of Bowersock was insufficient to be the basis of any inquiry, and that on account of certain matters of procedure the decision was without jurisdiction; (3) that the decision was wrong in fact and in law, and was made in pursuance of a fraudulent plan to prevent the placing of plaintiff’s name upon the ballot, to which fraud the officers making the decision were •parties.
An alternative writ has been issued and an answer has been filed denying its material allegations. The ■defendant, however, by a motion to dismiss the pro•ceeding, which is equivalent to a motion to quash the alternative writ, challenges the jurisdiction of this court to grant the plaintiff any relief, even assuming the facts to be as stated by him. The determination of this preliminary question is the purpose of the .present inquiry.
The statute, the benefit of which is invoked by de fendant and the validity of which is denied by plaintiff, reads as follows :
“The certificate of nomination and nomination papers being so filed, and being in apparent conformity with this act, shall be deemed to be valid, unless objection thereto is duly made in writing within three days from the date said papers are filed with the proper officers. Such objections or other questions arising in relation thereto, in the case of nominations of state officers or officers to be elected by the voters of a division less than a state and greater than a county, shall be considered by the secretary of state, auditor of state, and attorney-general, and a decision of a majority of these officers shall be final.”
The constitutionality of this statute was upheld by this court in Miller v. Clark, 62 Kan. 278, 62 Pac. 664, against the very attack now made upon it, supported by substantially the same arguments now urged upon our attention. In the brief of the plaintiff in that case it was said :
‘ ‘ The power attempted to be conferred on the secretary of state, auditor and attorney-general by section 144 of chapter 36, General Statutes of 1899 (Gen. Stat. 1901, §2703), is clearly a judicial one.- These officers belong to the executive branch of the government and judicial power cannot be conferred upon them.”
This contention was held not to be well founded, and we are satisfied with the conclusion there reached. In the opinion the power conferred upon the officers named was described as gwm’-judicial. In Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247, this term was applied to the functions of the state board of medical registration and examination, which was said not to be a judicial body, although by its determination a physician might be deprived of his means of livelihood. Executive officers are often charged with duties so far judicial in their nature that they require the investigation and decision of questions involving valuable rights. The principle requiring the separation and independence of the three departments of government, the executive, legislative, and judicial, does not demand the absolute isolation of each from the others. One person may exercise different duties not clearly assignable to the same department, where there is no inconsistency between them. But the same officer or body may not act in different capacities with respect to the same subject-matter. (The State v. Johnson, 61 Kan. 803, 60 Pac. 1068, 49 L. R. A. 662.)
Speaking of the law imposing upon probate judges the duty of issuing permits for the sale of liquor, Justice Brewer said,in Intoxicating-liquor Cases, 25 Kan. 751, 760, 37 Am. Rep. 284:
“It may be conceded that it would be more logical and less objectionable to say that the legislature may create an office with specified duties, and then make the person holding the position of probate judge the incumbent of 'such office, than to hold that certain duties may be cast directly upon the person holding the office of probate judge. But substance is above form. That which may properly be done in one way ought to be upheld, if possible, though done in another way ; and an act of the legislature should be sustained whenever by • any reasonable construction the act can be brought within the scope of the legislative power. If in this case the legislature had created the office of commissioner of licenses, and provided that the probate judge should ex officio be such commissioner, there could be little doubt of the constitutionality of such an act. Substantially the same thing is accomplished by casting upon him the duties named in this act. And having in view the duty of upholding an act of the legislature wherever possible, the past decisions of this court, the general recognition by all departments of the government—executive, legislative, and judicial—of the correctness of such exposition of constitutional limitations, and the ■substance rather than the form of this proceeding, we think the casting of this duty respecting permits upon the person holding the office of probate judge must be adjudged within the power of the legislature."
Applying this reasoning to the present case, it may be said that the legislature, having in mind the necessity of providing for the settling of disputes as to the nominations of political parties in a summary way, has created a special tribunal for that purpose, having a membership of three ; that, instead of providing for the appointment or election of the members of such board, it has'enacted that it shall be made up of the individuals who at the time hold the offices of secretary of state, auditor of state, and attorney-general. These officers, in exercising the duties devolved upon them by this statute, do not, in any sense important to this discussion, act in their respective capacities of secretary of state, auditor, and attorney-general, and would not in such capacities be chargeable with any dereliction of which they might be guilty as members of such tribunal. (The State, ex rel., v. Brown, Probate Judge, 35 Kan. 167, 10 Pac. 594.) Other officers, instead of those selected, might have been designated for the purpose with equal propriety. They were not chosen for any supposed connection between their respective departments and the matters to come' before the new board. It is true that the secretary of state happens to be the officer who has custody of the certificates of nomination and who is required to transmit, to the county clerk the names of the persons found to have been duly nominated, but this duty is purely ministerial and can be controlled by mandamus. It is in no way involved with the matter of passing upon the ques-. tion of who are the regular nominees., The attorney-general is the constitutional adviser of the other two officers who are associated with him upon this contest board, but only in their respective capacities as.secretary and auditor of state, not as members of the board. Upon questions of law arising before that body he has no more authority than either of the others. There is no possible interference or incompatibility between the duties laid upon these individuals as officers of the executive branch of the state government and those imposed upon them as members of this special tribunal; and whatever term may be' used in defining their functions while acting in the latter capacity, the statute is not within the reason of the rule forbidding the intermingling of the several governmental powers.
With respect to the contention that the statute is unconstitutional by reason of impairing the jurisdiction of this court nothing need be added to what was said in Miller v. Clark, supra.
Since the general adoption of the Australian-ballot law the courts have frequently been called upon to settle disputes about the regularity of nominations made by political conventions. The adjudications show little divergence of judicial opinion.' The varying practice in the several states results mainly from statutory differences. Where two conventions are held, each claiming to be the authorized exponent of the same political party, the courts, from an unwillingness to undertake the settlement of purely political controversies, have generally required the nominees of each to be printed on the official ballot, where that was permitted by statute. (Sims v. Daniels, 57 Kan. 552, 46 Pac. 952, 35 L. R. A. 146; Phelps v. Piper, 48 Neb. 724, 67 N. W. 755, 33 L. R. A. 53; Shields v. Jacob, 88 Mich. 164, 50 N. W. 105, 13 L. R. A. 760; People, etc., v. District Court, etc., 18 Colo. 26, 31 Pac. 339; State v. Allen, 43 Neb. 651, 62 N. W. 35; State v. Piper, 50 id. 25, 69 N. W. 378.) Where the statute forbids the printing of more than one set of nominees of the same party, and makes no specific provision for deciding which should be accepted as regular when more than one are presented, the courts assume jurisdiction to determine' the matter from necessity, there being no other way of settling the question. (State v. Falley, 9 N. Dak. 450, 83 N. W. 860; Williams v. Lewis, 6 Idaho, 184, 54 Pac. 619; McCoach v. Whipple, 24 Colo. 379, 51 Pac. 164; In re Fairchild, 151 N. Y. 359, 45 N. E. 943.) But where the statute provides' for the settlement of all such disputes by reference to-some special tribunal, its decisions are held to be final. (Chapman v. Miller, 52 Ohio St. 166, 39 N. E. 24; Cain v. Page et al., [Ky.] 42 S. W. 336; Moody v. Trimble, 109 id. 139, 58 S. W. 504, 50 L. R. A. 810; The People v. Baird, 164 Ill. 533, 45 N. E. 1081; State v. Foster, 111 La. Rept. 939, 36 So. 32; People v. District Court of Second Judicial District, 74 Pac. [Colo.] 896.) The case last cited arose under a statute which required all such controversies to be submitted to the state central committee of the party to which the disputants belonged, and made the decision of such committee final. The statute was attacked as unconstitutional on the ground that it was an infringement on the judicial department of the government, but was held to be valid.
An objection is made by plaintiff to the form of certificate filed with the secretary of state by the opposing claimant. The statute (Gen. Stat. 1901, §2697) requires that the certificate be signed by the chairman and secretary of the convention making the nomina tion, and that the person signing it make and subscribe an oath to its truth. Here the document, filed-consists of a statement signed by the officers of the convention, followed by the jurat of the officer administering the oath. This seems a sufficient compliance-with the statute, but the question is one on which-the board was competent to pass.
Plaintiff also contends that if the contest board ever-acquired jurisdiction in the matter it lost it by postponing the hearing to a time more than five days after the filing of objections to the certificate. The statute requires the inquiry to be begun within five days, but does not forbid necessary continuances. Complaint is made of lack of notice of the hearing, but the objection is not substantial.
It remains only to consider the effect of the allegations of the alternative writ, that the majority of the contest board who made the decision against plaintiff' did so in compliance with a corrupt and fraudulent-agreement, to which they were parties, that plaintiff" should be prevented from having his name printed-upon the official ballot as the republican candidate-for congressman, regardless of the merits of his claim. So far as the allegations of conspiracy relate only to-fraud practiced against the plaintiff by his political or factional opponents in regard to choosing delegates, manipulating committees, organizing conventions, filing certificates, and all other matters affecting, his right to be recognized by the contest board as the regular nominee of his party, they are not material in this inquiry, for the reason that they concern questions which, under the statute, must be decided by that board, and not by the courts. But the writ, following the affidavit on which it is based, in addition to various allegations more or less directly implicating. the officers referred to in its charges of fraud, includes this express averment:
“Said J. D. Bowersock, as a part of his said fraudulent scheme and design, early in said campaign for the nomination for congress from the second congressional district, fraudulently and corruptly conspired and entered into an arrangement with the defendant, J. R. Burrow, secretary of state, and with C. C. Coleman, attorney-general, such persons constituting a majority of said contest board, whereby it was provided, understood and agreed that if the said J. D.' Bowersock would procure from a bolting and fraudulent assemblage of persons claiming to be the congressional convention of the said congressional district a false, spurious and fraudulent certificate of nomination, and would file the same in the office of the secretary of state, defendant herein, then they, said Burrow and said Coleman, being a majority of the contest board provided by statute for the hearing of contested nominations, would recognize such false, spurious and fraudulent certificate of nomination, notwithstanding any objections thereto and notwithstanding clear and convincing proof of the fraudulent character of the assemblage which had pretended to authorize the execution of the same, and notwithstanding the fact that clear, positive and conclusive proof should be presented before said board of the regular nomination of H. J. Allen for the said office.”
In Miller v. Clark, supra, it was said :
“We do not hold, however, that if the action of the officers specially designated to pass on the merits of such a controversy was induced by bad faith, or was the result of arbitrary acts showing wrongful conduct amounting to fraud, or their findings resulted in personal benefit to themselves, equity would not interpose to prevent a candidate from being thus wronged, or that the remedy by mandamus, sought to be employed in this case, might not be invoked.”
It has often been said of special tribunals established by statute to pass on matters expressly com mitted to them that their jurisdiction is exclusive and their determinations final, -and that courts will not review their conclusions nor inquire by what method they were reached, but always with an express or implied reservation that the statement holds good only where the action of such tribunal is characterized by good faith, and is free from fraud, corruption, and oppression. (Meffert v. Medical Board, supra, School District v. Davies, ante, p. 162, 76 Pac. 409; 23 A. & E. Encycl. of L., 2d ed., 372.) No rule is better settled than that courts will not interfere with public officers in the discharge of any duty involving the exercise of judgment or discretion, but this rule presupposes the existence of good faith, and relates to acts done under the guidance of opinions honestly formed, however mistaken in fact; it has no application to acts done under the influence of a corrupt motive. Even arbitrary and capricious conduct, amounting to an abuse of discretion, will justify mandamus to compel a proper performance of duty, upon the theory that there has been, in fact, no real exercise of judgment. (19 A. & E. Encycl. of L., 2d ed. 737-739.) And courts have jurisdiction to prevent by injunction the consummation of a wilful fraud attempted to be perpetrated under, the guise of an exercise of the discretionary powers confided by law to public officers. (Davis v. The Mayor &c. of New York, 1 Duer, 451.)
The bias, prejudice, partizanship and unfairness imputed to the members of the board cannot alone be made the basis of the relief sought. It is reasonable to suppose that such conditions were foreseen and taken into account in the framing of the statute under consideration. They might have been provided against in various ways.; for instance, by an arrangement al lowing challenges upon sufficient reason against any ■of the officers constituting the board and the substitution of others for them. Prom the absence of any such provision it may be inferred that the legislature, rather than to risk making the procedure unduly cumbersome and dilatory, in an effort to secure impartiality, preferred to permit the officers named to act •even in cases in which they are interested, upon the theory that other considerations must be made to yield to the compelling necessity for reaching some •quick and final result; but it cannot be thought that it was ever intended, that no remedy should be afforded against their actual fraud.
The question presented by the allegations of their •corruption is not difficult and requires no extended •discussion. If the decision of the contest board was in fact made in virtue of a corrupt agreement between Bowersock and his associates on the one hand and the two members of the. board against whom the accusation is lodged on the other, that the matter should be determined against Allen regardless of what the circumstances might be or what questions might arise, then it was not made in the exercise of any real judgment—not even a judgment warped and perverted by interest or passion. The announcement of a conclusion so reached would not be an adjudication at all; it would have none of the attributes of a judgment; it would be a mere sham and pretense, entitled to no respect, requiring no attention from a court of justice, not even to be set aside. It would be preposterous to suppose that any one could be concluded by such an announcement and that the courts would be powerless to grant relief.
Assuming the facts to be as stated in the alternative writ, the situation presented is that it would obviously be futile to attempt to compel further action by the ■contest board; the same considerations that vitiate its former decision would prevent any effective determination of the controversy at its hands; its disqualification is complete and absolute. It is as though there were no such boárd; in effect, there is none; yet here are two persons, each claiming the right to ■have his name printed upon the official ballot as the republican candidate for congressman from the second ■district; the law permits but one name to be so printed ; in some way a decision must be made between the rival claimants ; there is no board in existence competent to pass upon the matter; as in ■cases arising where the statute makes no special provision for determining such questions, from very necessity the courts must take jurisdiction.
If it be established that the charges of fraud against the members of the contest board are well founded, this court will not hesitate to examine into the facts, with a view of determining the merits of the original controversy between Allen and Bower-sock, and to make an order in this proceeding for the secretary of state to certify to the county clerks the name of the candidate who may be found to be the rightful nominee; but as the jurisdiction of the court to make such inquiry depends wholly upon the ■disqualification of the statutory tribunal, it will not be entered upon unless such disqualification be established. Issues are already joined upon this question as ■upon the others involved. By an order to be hereafter ■made, after receiving suggestions from~counsel as to a suitable time for such hearing, opportunity¡will be afforded for the production of evidence bearing solely upon the question whether the decision of the contest board was made in pursuance of a fraudulent scheme to which the members who joined in the decision were parties. If, upon such hearing, the plaintiff fail to establish such fraud, on their part, an order will be made denying the peremptory writ; if the evidence sustain the charges, further provision will be made for a hearing upon the questions thereby opened up for investigation, and in that event the occasion for making Bowersock a party will be considered.
Before any further step is taken in the case it is ordered that the plaintiff cause the attorney-general to be made a party hereto, adding his name as a defendant and serving notice upon him of the pendency of the action. This course is pursued not in response-to the suggestion that in his absence there is a technical defect of parties, but entirely irrespective of any question of that character. Since the immediate subject of inquiry is the good faith of the board, the-charges made affecting him equally with the secretary of state, the taking of evidence will not be entered upon without enabling him to participate in the proceedings, with whatever advantage may be derived from-being a party to the litigation, and as such entitled to-be heard in his own defense, as a matter of right.
For the reasons stated the motion to dismiss is denied, and the cause is retained for the purposes indicated.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
The petition in this action alleged, in substance, that the plaintiff and• one W. E. McCrea. were copartners doing business under the firm name- and style of McCrea Brothers & Thompson, engaged exclusively in the business of raising cattle ; that in January, 1893, they were the owners of 500 head of cattle, plaintiff having a one-third interest and W. E. McCrea a two-thirds interest therein; that in January, 1893, without the knowledge or consent of plaintiff, and for the purpose of securing his individual debt, W. E. McCrea gave a mortgage on all the cattle to the First National Bank of Kinsley, Kansas, for $3200, and on the 10th day of May, 1893, without the knowledge or consent of plaintiff, gave a second mortgage upon 373 head of said cattle to defendant, O. W. Beeler, for $2500, to secure his individual debt; that in October, 1893, defendant Beeler purchased the” mortgage given to the bank with full knowledge that it had been given to secure the individual indebtedness of W. E. McCrea, and afterward Beeler took possession of the cattle and pretended to sell them to himself under said mortgages, shipping them to Kansas City, Mo., where he sold them on his own account and received the money therefor, without the knowledge, consent or authority of the plaintiff or the firm, and by reason of such acts Beeler became liable to account to the plaintiff for the proceeds of the cattle in the same manner and to the same extent as W. E. McCrea would have been, had he sold the cattle. The plaintiff, J. W. Thompson, prayed for an accounting of the affairs of McCrea Brothers & Thompson and for a judgment against the defendant, C. W. Beeler, for whatever amount might be found due plaintiff by reason of his interest in the firm.
For the purpose of tolling the statute of limitations it was alleged that on the 6th day of April, 1896, the plaintiff, under the name of McCrea Brothers & Thompson, commenced an action against the defendant in the district court of Edwards county to recover on the same cause of action described in this petition, which failed otherwise than on its merits October 7, 1897. This action was begun December 18, 1897. The Honorable J. D. Milliken, as referee, found that there was due the plaintiff from the defendant the sum of $5246.77 by reason of his interest in the partnership property, but held, as a conclusion of law, that this action was barred by the statute of limitations. This report was approved by the court and judgment rendered thereon for the defendant for costs.
The one question is whether the present action was barred by the statute of limitations. If the first action tolled the statute, the present one was not barred. The petition in the former action was entitled “ W. E. McOrea, Robert McOrea, and J. W. Thompson, partners as McOrea Brothers & Thompson, plaintiffs, v. 0. W. Beeler, defendant.” After alleging the partnership of the plaintiffs and the interest of each in the firm, it proceeded as follows :
“That in the month of October, 1898, the said plaintiffs were the owners and in possession of the following personal property situated and kept in the counties of Edwards and Pawnee, in the state of Kansas, to wit: five hundred of steer cattle of various ages and brands, which said cattle were of the aggregate value of ten thousand dollars ; that in the month of October the said defendant, without any right or authority, wilfully and unlawfully took possession of said cattle and converted the same to his own use and benefit, and to this day keeps and retains the same, whereby the defendant became and is liable to these plaintiffs for the value thereof; that by reason of the foregoing facts the said defendant is indebted to plaintiffs in the sum of ten thousand dollars ($10,000).
“Wherefore, the said plaintiffs pray judgment against said defendant for the said sum of ten thousand dollars and costs of this suit.”
It is not claimed that the first action would toll the statute unless the petition could have been so amended as to plead the cause herein sued’on. No such amendment was made or offered. In order that the plaintiff might have obtained in that action the relief sought in the present one, it would have been necessary to amend the petition by striking out the plaintiff and substituting in lieu thereof J. "W. Thompson; by striking out the allegations of the continuance of the partnership of McCrea Brothers & Thompson and the conversion of the property by Beeler and inserting the affirmative allegations that the firm had been dissolved and that Thompson was the owner of an undivided one-third interest of the firm property, and that Beeler owned the other two-thirds interest; by alleging that Beeler was in possession of all the partnership property and denied plaintiff the right to participate therein ; and by such other formal allegations as are necessary in such pleading to have the debts of the partnership ascertained and paid out of the partnership property and the remainder distributed equally between those entitled to participate therein, according to their respective interests.
The first action was by the firm to cover into the partnership treasury the value of certain property belonging to the partnership which, it was alleged, had been converted by Beeler. If that action had succeeded the proceeds would have gone into the funds of the firm and used in payment of its liabilities, or, if none existed, divided between the partners. If the petition had been amended as suggested and the action on the amended petition succeeded, the recovery would have gone into the pockets of Thompson. The necessary amendments would have substituted Thompson for the plaintiffs, and a cause of action for an accounting between partners for a cause of action for the conversion of partnership property, and would have changed the subject of action from a herd of cattle to the winding up of a partnership. The original action was not Thompson’s—it was the action of the firm of McCrea Brothers & Thompson, composed of the three people. By what right could Thompson have had himself substituted as plaintiff in an action to which, he was not a party except by representation', and only as a member of a firm ?
If the theory advanced by plaintiff; that a certain member of a firm may, upon his own application, be substituted for the partnership as plaintiff in an action, and so amend the petition as to plead an entirely different cause of action in his own behalf, then each of the other members of the firm may do the same thing. A defendant sued by a partnership may be subjected to as many different lawsuits as there are members of the firm if by chance each had, or thought he had, some claim against him, and each cause of action be different from that stated in the original petition, involve a different subject, and require different relief. Notwithstanding the liberal provisions of the code in regard to amendments, it is not possible that it contemplated such a departure from the original action by way of amendment as is contended' for by the plaintiff.
The judgment of the-court is affirmed.
All the Justices concurring. | [
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