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The opinion of the court was delivered by
Cunningham, J.:
The petition in this action was one solely for partition;' it sought no other relief. At various stages in the progress of the case, and in various ways, the defendants attempted to bring into ■ the case the question of plaintiff’s title to the real estate being partitioned. The entire controversy, as developed by the evidence, related to plaintiff’s title ; so that upon the trial the questions litigated and determined were those which characterize an action in ejectment only. The plaintiff was not in possession. The court having rendered judgment for the plaintiff, the defendants demanded a second trial, in accordance with the statutory provision - in cases of ejectment, which was denied. In this the court was in error. While the petition on its face was for' partition only, still the case, as presented and tried, was in ejectment, and, so far as the litigated questions were concerned, in ejectment only.
An action is what its nature makes it and not what it is named.. (Nelson v. Stull, 65 Kan. 585, 68 Pac. 617, 70 Pac. 590.) An action in ejectment cannot be made one in partition simply by calling it such. True, an-action in ejectment and one for partition may be joined, but a plaintiff out of possession may not maintain an action in partition against a defendant in possession who denies his title, without first litigating, under pleadings properly formed,, the question of title. (Denton v. Fyfe, 65 Kan. 1, 68 Pac. 1074, 93 Am. St. Rep. 272; Chandler v. Richardson, 65 id. 152, 69 Pac. 168.)
Ma.ny questions are raised in this case relative to the plaintiff’s right of recovery. All of them turn about its right of title and consequent right of pos session. We choose to pass on none of them. The plaintiffs in error being entitled to a second trial upon their demand therefor, the questions now here as to title may not be again presented—at least, in their present form.
The case will be reversed, and remanded for a second trial, with the suggestion that the pleadings be so recast that all the issues involved may be properly presented and regularly tried.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
On May 23, 1902, plaintiff in error, T. W. Eckert, who was the editor of the Arkansas City Daily Traveler, printed and published in his newspaper the following :
“It is reported that Charlie Mclntire may soon take charge of Greer’s supplement in this city. Charlie is all right. In fact, anybody would be an improvement on the eunuch who is snorting, around in the basement, but unable to do anything else.”
Soon after this publication defendant in error, W. W. VanPelt, began an action for damages sustained by reason of the alleged libel. The petition alleged that the Traveler was a newspaper of general circulation in Arkansas City and Cowley county; that the plaintiff, W. W. VanPelt, was the owner and publisher of a weekly newspaper of general circulation in said city and county and in southern Kansas; that he was of good name, credit, reputation, and social standing, and enjoyed the fellowship, esteem, confidence and good opinion of many persons of both sexes ; that at the time of said publication he was known and recognized as a man possessed of a due amount of potency, virility, and masculinity, and of all the various members and powers which characterize the male portion of the human race, and was a young, unmarried man, “in the lusty prime of vigorous youth."
After alleging that the libelous matter was published by defendant with intent to injure plaintiff, to provoke him to wrath, to expose him to public ridicule, hatred, contempt, and disgrace, and deprive him of public confidence and social intercourse, and-like matter, the petition sets out the libelous language, with innuendos explanatory thereof, as follows :
“ It is reported that Charlie Mclntire may soon take charge of Greer’s supplement'(meaning thereby the Arkansas City Enquirer, of which this plaintiff is the owner and proprietor, and that the. said Arkansas City Enquirer was not and is not owned and controlled by this plaintiff, but was and is owned and controlled by E. P. Greer.) Charlie is all right. In •fact, anybody would be an improvement on the eunuch (meaning thereby this plaintiff, and that this plaintiff was and is a eunuch) who is snorting around in the basement (meaning thereby that this plaintiff was and is a teaser), but is unable to do anything else (meaning thereby that this plaintiff was and is devoid of all sexual powers, and was and is an emasculated man.) ’’
Defendant below demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled. It is argued that this ruling of the court was erroneous, for the reason that the newspaper article alleged to be libelous did not contain the name of plaintiff below, and because there was no allegation that the public understood the language used to refer to VanPelt. The averments of the petition expressly charge that defendant published the words “of and concerning him, the said plaintiff.” The omission of the name of a libeled person in a publication concerning him does not deprive the matter of its libelous character if it be alleged and shown to whom the words used were intended to apply. Whatever may have been the com-, mon-law rule, it is not now necessary to allege, in order to state a cause of action, that the public understood the words printed to refer to the plaintiff. Section 4559, General Statutes of 1901, reads :
“In an action for libel or slander, it shall be sufficient to state, generally, that the defamatory matter was published or spoken of the plaintiff; and if the allegation be denied, the plaintiff must prove on the trial the facts showing that the defamatory matter was published or spoken of him.”
Counsel for plaintiff in error cite the case of De Witt v. Wright, 57 Cal. 576, which supports their claim for the necessity of an averment that the person or persons who read the article knew that the plaintiff was meant. This case, however, was expressly overruled in Harris v. Zanone, 93 Cal. 59, 28 Pac. 845, in which it was said that the rule of the former case is not supported by authority or justified on principle. (See 13 Encyc. PI. & Pr. 40.) Where the language used-is the vernacular of the place where published, it requires no proof that those who heard or read it understood it. (Town. SI.&L., 2ded., §97.) The allegation that the language was used “of and concerning him, the said plaintiff,” imports that those who read it so understood. (Harris v. Zanone, supra.) There was testimony in the case tending to show that persons who read, the Daily Traveler understood the article to apply to plaintiff below. One witness, Mr. Hess, testified without objection that it was so understood generally.
Counsel for plaintiff in error further claim that the publication was not libelous per se; that it may be interpreted to mean that the editorial efforts of plaintiff below in his attacks on Mr. Eckert were weak—barren of thought; and that “snorting” may be defined as “loud in roaring sound.” Reference is made to the Century Dictionary, where the secondary definition of the word “eunuch” is given as “unproductive, barren,” with this quotation from Godwin : “ He had a mind wholly eunuch and ungenerative in matters of literature and taste.” The primary and general definition of the word given in all the dictionaries is “a castrated male of the human species.” It must be given its usual and ordinary sense as understood in the place where used. We are quite sure that in Arkansas City and vicinity, where the parties resided, the primary signification of the term was conveyed to all persons who read the libelous article in the Daily Traveler.
Section 2271, General Statutes of 1901, reads :
“A libel is the malicious defamation of a person, made public by any printing, writing, sign, picture, representation, or effigy, tending to provoke him to wrath or expose him to public hatred, contempt, or ridicule, or to deprive him of the benefits of public confidence and social intercourse, or any malicious defamation made public as aforesaid, designed to blacken and vilify the memory of one who is dead, and tending to scandalize or provoke his surviving relatives and friends.”
Written words are actionable per se if they tend to render him of whom they are written contemptible or ridiculous. (18 A. & E. Encycl. of L., 2d ed., 909.) So, if they are calculated to produce social ostracism. (Finch v. Vifquain, 11 Neb. 280, 9 N. W. 43; Culmer v. Canby, 101 Fed. 195, 41 C. C. A. 302; Allen v. The News Publishing Co., 81 Wis. 120, 50 N. W. 1093.) To say of a woman that she is a hermaphrodite is actionable without alleging special damages. (Malone v. Stewart and Wife, 15 Ohio, 319, 45 Am. Dec. 577.)
In Hetherington v. Sterry, 28 Kan. 426, 429, 42 Am. Rep. 169, Mr. Justice Brewer, speaking for the court, quoted approvingly from Townshend on Libel and Slander, section 176, as follows :
“That language in writing is actionable per se which denies ‘ to a man the possession of some such worthy quality as every man is a priori to be taken to possess/ or which tends ‘to bring a party into public hatred or disgrace/ ob ‘to degrade him in society/ or or expose him to ‘hatred, contempt, or ridicule/ or ‘which reflects upon his character/ or ‘imputes something disgraceful to him/ or ‘throws contumely’ on him, or ‘contumely and odium/ or ‘tends to vilify him’ or ‘injure his character, or diminish his reputation/ or which is ‘injurious to his character/ or to his ‘ social character/ or shows him to be ‘immoral or ridiculous/ or ‘induces an ill opinion of him/ or ‘detracts from his character as a man of good morals/ or alters his ‘situation in society for the worse,’ or ‘imputes to him a bad reputation/ or ‘degradation of character/ or ‘ ingratitude/ and ‘ all defamatory words injurious in their nature.’ ”
There can be no question or doubt that the publication made was libelous per se. In such cases malice is implied.
Testimony was excluded by which defendant below offered to show that he was acting in self-defense when he published the libelous words; that VanRelt had been publishing libelous articles about him. We can not consider this assignment of error. The publications concerning Eckert are not in the record, and therefore we cannot know what -was said in them.
An inquiry was made of plaintiff below upon cross-examination whether he had not, in June .preceding, called Eckert a blackmailer, or words to that effect. An objection was sustained to this question, and rightly. Any libelous charges against the defendant after May, 1902, when the article which is the basis of this action was published, were immaterial, if they were admissible under any circumstances of the case. (1 Suth. Dam., 3d ed., §152.)
The verdict of $700 was sustained by the evidence, and 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
Mason, J.:
The only question here presented is whether a certain tax deed was sufficient in form to resist an attack upon it made after it had been of record for more than five years for defects shown upon its face. The trial court upheld the deed by sustaining' a demurrer to an answer which set out its contents in full and called attention to the matters claimed to invalidate it.
The deed included two disconnected tracts. Its granting clause described the property conveyed as “the real property last hereinbefore described and each and every separate tract and parcel thereof.” Plaintiff in error contends that by reason of this language there was no conveyance of the tract first described in the'deed, which is the land here involved, and the case of Spicer v. Howe, 38 Kan. 465, 16 Pac. 825, is relied on as supporting the contention. There the deed, after describing several tracts and reciting the various transactions relating to each, wound up by granting “the real property last hereinbefore described,” and ;was therefore held to convey only one tract—that last designated. But the deed here involved resembles the one held good as a conveyance of several parcels in Cartwright v. Korman, 45 Kan. 515, 26. Pac. 48, in that its recitals throughout refer to the tracts collectively as “said propert}?.” Moreover, whatever doubt there might be as to the land indicated by the expression “the real property last hereinbefore described,” which is adopted literally from the form prescribed by statute (Gen. Stat. 1901, §7676), is removed by the addition of the words “and each and every separate tract and parcel thereof,” which were manifestly employed for that very purpose.
The other objection made to the deed is that, while it states the amount for which each separate tract was sold, yet the subsequent taxes for three years, which were paid by the holder of the certificates and which formed a part of the consideration for the deed, are merely given in gross, so that it cannot be told from the face of the deed how much was paid for such taxes upon either tract separately. The statute provides (Gen. Stat. 1901, §7677) :
“In any case where any purchaser at any tax sale shall purchase more than one parcel or tract of land or lots, he may require the county clerk to include all such lands or lots in one deed, stating the amount of tax, interest and penalty for which each separate tract is sold and conveyed, the sum of which separate amounts shall be the gross or aggregate consideration of the deed.”
That this statute requires a separate statement of. the subsequent taxes paid upon each tract, as well as of the amount for which each tract was originally sold, appears from the requirement that the deed shall show the amount for which each is conveyed, as well as the amount for which it is sold. While the land is in the first instance sold for one year’s tax, it is conveyed for this amount plus any subsequent payments indorsed on the certificate. That this is the meaning intended appears also from the concluding provision that' the sum of the amounts stated separately shall be the aggregate consideration of the deed. The deed having omitted a recital which the statute explicitly requires, it is invalid upon its face. (27 A. & E. Encycl. of L., 2d ed., 968.) It was said in Hopkins v. Scott, 86 Mo. 140, 147:
“It may be said that, to hold the deed in question to be void on its face because of its failure to state, substantially, a fact required to be thus stated, would be technical. The answer to this is, that the legislature has required a certain fact to be substantially stated, which, in this case, has not been done, and we are not authorized to eliminate from the statute a recital which the legislature has declared the deed must substantially contain, nor are we authorized to say-that this or that recital, required to be stated substantially in a tax deed, is unnecessary and immaterial,but must, on the contrary, presume that.the legisla-, ture deemed all the recitals which it required to be, set out material.”
The history of the statute under consideration tends tó show that the requirement in question was deemed important by the legislature. Up to 1876 the tax law permitted pieces of land sold separately to be included in one tax deed, without imposing any condition as to the separate statement of the amounts paid for each. (Gen. Stat. 3868, ch. 107, §115.) This provision' was repealed at the time of the revision of the laws relating to assessment and taxation in 1876. (Laws 1876, ch. 34, § 158.) In 1889 it was reenacted as an independent act (Laws 1889, ch. 248), but with the addition of the requirement for the separate statement of the consideration for which each piece was sold and conveyed. It thus appears that it was the deliberate legislative judgment that the inclusion of separate tracts in one tax deed ought not to be allowed at all except with the requirement that the consideration for each be separately stated.
But it is further argued that this defect is cured by the operation of the five-year statute of limitations (Gen. Stat. 1901, § 7680). The case, however, is within the reason and the letter of the doctrine thus stated in Jesse A. Shoat v. Thaddeus H. Walker, 6 Kan. 65, 74:
“A tax deed, to be sufficient when recorded to set-the statute of limitations in operation, must of itself be prima facie evidence of title. It is not necessary that the deed be absolutely good under all circumstances. It is not necessary that it be sufficient to withstand all evidence that may be brought against it to show that it is bad. But it must appear to be good upon its face ; it must be a deed that would be good if not attacked by evidence aliunde. When the deed discloses upon its face that it is illegal, when it discloses upon its face that it is executed in violation of law, the law will not assist it. No statute of limitations can then be brought in to aid its validity. The party accepting it, and claiming under it, has full notice of its illegality, and must abide the consequences of such illegality. He has no reason to complain.”
This language was quoted with approval in Hall’s Heirs v. Dodge, 18 Kan. 277, and in Redfield v. Parks, 132 U. S. 239, 251, 10 Sup. Ct. 83, 33 L. Ed. 327. See, also, Black on Tax Titles, section 290, and cases cited.
. The judgment is reversed,'and remanded with directions to overrule the demurrer to the answer.
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The opinion of the court was delivered by
Greene, J. :
The plaintiff sought by mandamus in the district court of Shawnee county to compel the board of education to permit his son Philip to reenter one of the schools of the city from which he had been expelled for persistently disobeying its rules. Trial was had and judgment rendered in fayor of the board, to reverse which plaintiff prosecutes this proceeding in error.
The plaintiff was a resident taxpayer in that part of the city of Topeka attached to the Quincy school for school purposes. His son Philip was a regularly ■enrolled pupil therein for the school year 1903-1904, and a regular attendant from the opening of the school until January 9, 1904, when he was expelled. The general opening exercises of the school consisted of repeating the Lord’s Prayer and the Twenty-third Psalm, of reading selections from natural history— generally from Ernest Thompson Seton’s stories—and of singing occasionally a selection found in “The Normal Music Course, Second Reader, Part 1.” The pupils were not required to take part in these exercises, but they were required to refrain from their regular studies and preserve order during that period. The time spent in repeating the Lord’s Prayer and the Twenty-third Psalm occupied from two to three minutes, the entire general exercises occupying about fifteen minutes.
’ The plaintiff made complaint that his son Philip was required to desist from studying and to remain orderly during these morning exercises, stating that he was conscientiously opposed thereto because such exercises were a form of religious worship. Thereafter Philip was excused from attending these exercises, and was permitted to enter the schoolroom fifteen minutes after the regular hour. For a time he so absented himself, but later entered the room with the other pupils and persisted in disobeying this rule. After repeated admonitions from his teacher and re proofs for his disobedience, and upon a positive refusal to obey, he was expelled until such time as he should feel that he could return and give obedience.
The plaintiff made a written request to the board of education that his son be permitted to enter the schoolroom at the regular hour, and that he be allowed to pursue his regular studies during the morning exercises. Upon receipt of such request, the board passed the following resolutions:
“Resolved, That we hereby approve and sustain the action of W. H. Wright, principal of Quincy school, in suspending Philip Billard from school on'January 9 for a persistent violation of our rule requiring pupils to refrain from studying during general exercises ; and
“Resolved, That the pupil can be reinstated, as in other cases of suspension, by expressing his willingness to comply with the rules of the school.”
A copy of these resolutions, together with the following communication, was sent to the plaintiff:
“In reference to the communication handed by one of your attorneys to the president of the board of education, permit me to say as follows : The communication was read to the board and ordered placed on file. In answer to the communication, the board of educa-' tion passed a resolution, a copy of which is handed you with this letter. Yours very truly,
J. E. Stewart, Clerk.”
The plaintiff thereupon instituted this action.
The basis of plaintiff’s grievance is that the daily repetition of the Lord’s Prayer and the Twenty-third Psalm is a form of religious worship, to which he and his son are conscientiously opposed; that to conduct such, exercise in the public schools, which are maintained at public expense and to the support of which plaintiff, as a taxpayer, is compelled to contribute, is a violation of section 7 of the bill of rights, which reads as follows:
“The right to worship God according to the dictates of conscience shall never be infringed ; nor shall any person be compelled to attend or support any form of worship ; nor shall any control of or interference with the rights of conscience be permitted. . .”
He also claimed that it was a .violation of section 8 of article 6 of the constitution, which reads :
“No religious sect or sects shall ever control any part of the common-school or university funds of the state.”
He further insisted that it is prohibited by section 6284, General Statutes of 1901, which is as follows :
“No sectarian or religious doctrine shall be taught or inculcated in any of the public schools of the city; but nothing in this section shall be construed to prohibit the reading of the Holy Scriptures.”
There can be no question of the correctness of the legal premises of plaintiff. Both our constitution and statutes prohibit all form of religious worship or the teaching of sectarian or religious doctrine in the public schools. Section 7 of the bill of rights contains the following provision: “Nor shall any person be compelled to attend or support any form of worship.” That is, no person shall be compelled to pay tithes or taxes to secure or maintain a place where any form of religious worship shall be conducted, or where any sectarian or religious doctrine is taught; nor shall any form of religious worship be conducted, or any sectarian or religious doctrine be taught, in any place supported by the imposition of taxes. Lest there might be some misunderstanding, the legislature, in providing for a system of public schools in cities of the first class, enacted section 6284, supra, which in positive terms prohibits the teaching of sectarian or religious . doctrine.
However, there is nothing in the constitution or statute which can be construed as an intention to exclude the Bible from the public schools. Section 2 of article 6 of the constitution imposes upon the legislature the duty to “encourage the promotion of intellectual, moral, scientific and agricultural improvement, by establishing a uniform system of common schools.” Every pupil who enters a public school has a right to expect, and the public has a right to demand, of the teacher that such pupil shall come out with a more acute sense of right and wrong, higher ideals of life, a more independent and manly character, a higher conception of his duty as a citizen,'and a more laudable ambition in life, than when he entered. The system ought to be so maintained as to make this certain.- The noblest ideals of moral character are found in the Bible. To emulate these is the supreme conception of citizenship. It could not, therefore, have been the intention of the framers of our constitution to impose the duty upon the legislature of establishing a system of common schools where morals were to be inculcated and exclude therefrom the lives of those persons who possessed the highest moral attainments.
As to the purpose of these exercises the teacher of the Quincy school testified as follows :
Ques. “What was the purpose of repeating the Lord’s Prayer? Ans. It is necessary to have some general exercise after the children come in from the play-ground to prepare them for their work. You-need some general exercise to quiet them down.
Q. “What was the purpose in repeating the Twenty-third psalm? ' A. The same.
Q. “Your purpose was a religious one, wasn’t it?' A. My purpose was to prepare the children for their work, to quiet them from the outside —
Q. “Do you say your purpose was not religious? A. Well, I don’t know as I can change my opinion ; it was religious to the children that are religious, and to the others it was not.”
An examination of the evidence convinces us, as it convinced the learned judge who tried the cause, that the exercises of which plaintiff complained were not a form of religious worship or the teaching of sectarian or religious doctrine. There was not the slightest effort on the part of the teacher to inculcate any religious dogma. She repeated the Lord’s Prayer and the Twenty-third Psalm without response, comment, or remark. The pupils who desired gave their attention and took part; those who did not were at liberty to follow the wandering of their own imagination. The only demand made of them was that during these exercises they should demean themselves in the same orderly manner required during their general studies.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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Per Ouriam:
The appellant appeals from the judgment of the district court finding him guilty of, and sentencing him for, the crime of rape. Several claims of error are made, but we find it necessary to consider but one.
Appellant did not take the stand in his own behalf upon the trial. Upon his motion for a new trial he sought to show by several of the jurors that this fact was discussed and considered to his detriment by the jury while deliberating in their jury-room. The court refused to permit this showing or consider this fact in passing upon the motion for the reason that it was incompetent, irrelevant, and immaterial, and went to show the motive of the jurors in arriving at their verdict.
We have just decided that the consideration by the jury of the fact that the defendant did not testify is prejudicial error, and the fact of its consideration may be shown upon the motion for a new trial. (The State v. Rambo, ante, page 777, 77 Pac. 563.) The court, therefore, should have entered upon the investigation tendered, and, if it should have found the verdict tainted with the vice indicated, should have set it aside and awarded a new trial.
The judgment is reversed, and the case remanded for further proceedings. | [
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Per Ouriam:
This was an action brought by D. R. Anthony against D. B. Mason in the district court of Leavenworth county for the conversion of one Jersey cow, five steers, and eight yearling calves. The answer was a general denial. The jury returned a verdict for plaintiff in the sum of $330, and defendant brings error.
Defendant purchased the stock in controversy from D. B. Hall, a tenant of plaintiff. The issues between plaintiff and defendant upon the trial were whether plaintiff or Hall was the owner of the stock when purchased; and if plaintiff, and not Hall was the owner, whether Hall, under his arrangements with ' plaintiff, had the right to' sell the property to defendant. These issues were tried before the jury on conflicting evidence. They were questions of fact to be determined by the jury. There is some complaint made of the instructions refused and the instruction given by the court, but we find no error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J. :
This proceeding involves the sufficiency of certain preliminary steps taken in the attempted organization of a city of the third class. On January 18, 1904, and upon the petition of 368 electors of the town of Oakland, constituting a large majority of the electors residing therein, the board of county commissioners of Shawnee county ordered and declared Oakland to be incorporated as a city of the third class, and designated its boundaries. In pursuance of the order of the board an election was held within the city on February 3, 1904, at which a mayor, a police judge, and five council-men were ■elected, and they qualified and are now assuming to act as officers of the city. To test the validity of the organization and the right of the officers so chosen to exercise the functions of city officers of Oakland is the purpose of this proceeding.
The petitioners and the remonstrants appeared be fore the board by themselves and attorneys and presented testimony and arguments for and against the proposed organization, and upon this proof the board found that the petition was signed by a majority of the electors as well as of the taxable inhabitants ; that a majority of the taxable inhabitants and electors were in favor of the incorpqration of the city; that the prayer of the petitioners was reasonable and should be granted; that, as no newspaper was printed within the limits of Oakland, ten printed notices, each containing a copy of the petition and stating the time and place of the presentation and hearing of the same, had been posted for more than three consecutive weeks preceding the hearing of the petition, in all respects as required by law.
The first contention' is that an insufficient notice of the presentation of the petition and the hearing before the board was given. The statute provides, among-other things, that when the petition for organization is presented those interested shall at the same time accompany it “with satisfactory proof that such petition has been published in full in some newspaper printed in said town or village at least once in each week for three consecutive weeks,” etc. There is a provision that “if no newspaper be published in said town or village, then ten printed notices shall be posted conspicuously in said town or village in each instance where publication in a newspaper is required by the provisions of this section.” (Gen. Stat. 1901, §1076.) The alleged defect in the notice is that the petition embodied therein did not contain the names of the petitioning electors. It did include all the recitals in the petition, including the essential statements of the metes and bounds of the proposed city and the number of inhabitants therein, together with the prayer that it be incorporated as a city. In the notice, and preceding the petition, was the following statement:
“To Whom it may Concekn : All persons interested are hereby notified that the following is a copy of the petition signed by 368 electors and 225 taxable inhabitants of the territory described therein, said petition being on file in the office of the county clerk of Shawnee county, Kansas, and which will be presented to the board of county commissioners of Shawnee county, Kansas, at their first regular session after the 9th day of January, 1904.”
What must the notices contain ? Because the provision for the newspaper notice requires the petition to be printed in full, it is argued that even the names of the petitioners must be printed in the newspaper, and that the notices to be posted, if no newspaper be-published in the town or village, must contain all that is required in the newspaper publication. Passing the question whether the names of the petitioners are-required in a newspaper publication, we remark that the statute does not provide that the posted notices shall be the same as that published in the newspaper.. The essential feature and purpose of the posted notices-is to advise the electors of the town or village that a petition for the organization of a city will be presented to the board of county commissioners at a specified, time. It should contain a statement of the metes and bounds of the proposed organization and the number of inhabitants within those limits, so that those who would be affected by the action of the board might have warning and an opportunity to oppose or favor' the incorporation. The application to be made to the board of county commissioners, or rather the action-to be invoked, was the important thing, and that was fully stated in the notices posted. As the statute does not prescribe a particular form, and as those posted fully subserved the legislative purpose, they are deemed to be sufficient. It might be remarked that the notices appear to have been effectual,' as nearly all the electors and taxable inhabitants participated in the matter by either favoring or opposing the proposed organization.
It is also contended that the notices were defective because they were in typewriting, but there is no merit in the point. The statute, it is true, provides that printed notices shall be posted ; but those which were posted in this case were, in a sense, printed notices. Of what consequence was it whether the letters in the notices were formed by a typewriting machine or a typesetting machine ? In either case the letters are- -substantially in the same form, are made from types, :and -are impressed on paper in lines and columns of varying length. In the Century Dictionary the word ‘ typewrite” is defined : “To print or reproduce by means of ¡¡a typewriter;” and the word “typewriting” is defined: “The process of printing letter by letter by the use of a typewriter.” Printing is now accomplished by a great variety of machines, but none is in more common use than the typewriter. There are cases where there is room for a distinction between typewriting and printing, and in these the language used in the rule or statute ordinarily indicates a purpose to differentiate one from the other; but no such purpose is apparent in the statute in •question. The notices will accomplish ¡ the purpose equally well, whether printed, with a typewriter or with some other kind of-a printing-machine.
Under the agreed statement of facts, the incorporation of the city of Oakland is valid, and, therefore, judgment must go in favor of the defendants.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action brought by John 0. Douglass against James L. Byers to recover a tract of ground in the city of Leavenworth which had been occupied by Byers and upon which he had paid taxes for a great many years. The first trial- resulted in favor of Byers, but upon a review the judgment was reversed and the cause remanded for a new trial. (Douglass v. Byers, 59 Kan. 481, 53 Pac. 523.) At a later trial Byers admitted the invalidity of bis tax deed, conceded that Douglass held the legal title to the property, and asked for an allowance for the lasting and valuable improvements, and that he be paid the taxes which he had advanced on the property, with the interest which had accrued thereon. The court adjudged that the legal title was in Douglass, and that he would be entitled to possession of the property when he should have paid for- the improvements thereon and the taxes charged against it. It was found and decided that the improvements made in excess of rents and profits were of the value of $112, and while the tax lien was under consideration and before final judgment Douglass made an ineffectual attempt to obtain a review of the decision as to the award for improvements. (Douglass v. Byers, post, 76 Pac. 1129.) As to the taxes paid by Byers and the tax lien, the court first found that Byers was entitled to recover $2364, but upon a new trial which was awarded the matter "was sent to a referee, who found that the amount'due for taxes, interest and costs was $2137.70, and the finding was confirmed by the court. This decision and the incidental rulings have been brought here for review.
It was shown and found that while the title to the property was in Douglass he failed to pay any of the taxes on it since 1871. Between the years 1871 and 1879 the property was sold to the county for taxes charged against it, and at the end of that time an assignment of the tax-sale certificate and of the rights of the county was made to Byers, who paid therefor the sum of $110. The subsequent taxes charged against the property since that time have been paid by Byers, who has been in the possession of the .property since 1884.
The plaintiff insists that the taxes were illegal and did not constitute a lien on the property. He seems to contend that, because there were defects in the tax proceedings which defeated the tax title held by Byers, necessarily there could be no tax lien nor any recovery for the taxes paid. Of course, if there were no valid taxes charged against the property there could be no recovery in favor of Byers. The fact that the tax deed was found to be invalid, however, does not mean that the property was not taxable, or that the holder of the invalid tax deed could not recover the taxes which he had paid on the property.
Payment is resisted mainly because of the insufficiency of the description of the property in the tax proceedings, and the plaintiff invokes the same rule of strictness as to procedure and proof in this proceeding to recover taxes as against one asserting a title under a tax deed. This is not contemplated by the statute, which provides that thé holder of a tax deed held, to be.invalid shall retain possession of the property until the full amount of all taxes paid on such lands, with all interest, costs and charges allowed by law, shall have been paid by the owner. (Gen. Stat. 1901, §7681.) In a proceeding under this statute to recover the taxes paid much more liberal rules should be applied than in an action to forfeit or condemn the land of another for a small amount of taxes or to recover it on a tax proceeding. Treating of this statute and the rule of interpretation appli cable where a recovery of taxes is sought by a defeated tax-title owner, it was said :
“This statute was enacted in the interest of equity and justice, and its provisions should be so construed as to promote justice. It is wholly unlike that class of statutes which attempt to give the land of one person to another for an inconsiderable sum. The former is liberally construed; the latter is strictly construed. It was enacted for void tax deeds and not for valid tax deeds. A person holding a valid tax deed has no need of such a statute. The laws under whose provisions tax titles are created are usually construed strictly, and therefore, we hold that the tax deed in this case is void. But laws enacted for the purpose of enforcing in a fair and reasonable manner the delinquent members of society to discharge that moral obligation resting' upon them as well as upon others to bear their proportionate share of the public burdens are always construed liberally, so as to promote their object, and therefore we hold that before the plaintiff can recover his property he must pay to the defendant the taxes which he ought to have paid a long time ago to the public officers, and which the defendant has himself paid.” (Smith v. Smith, 15 Kan. 290, 295.)
It is not claimed that the property was not taxable, or that there was a lack of power in the officers to tax it, or that the plaintiff has paid the taxes charged against it. It appears that for more than twenty-five years the plaintiff,'whose duty it was to bear his proportionate share of the public burdens, failed to pay any of the taxes assessed against the property, and now, -when proceedings are had under this statute to enforce the discharge of a moral obligation of a citizen to pay for the protection afforded him and his property, the statute and the steps which it provides should be liberally construed, so as to promote its purpose.
It is contended that the description under which the property was taxed is such as to vitiate the tax lien. In the tax deed, as well as on the assessment- and tax-rolls and tax receipts, the property was assessed and taxed as “8^-f-g acres in Rees tract, Gist survey, section 27, township 8, range 22, assessed to Margaret W. Black, to Leavenworth city.” This description was substantially followed in all the steps and proceedings taken for the taxation of it by all officers for a period of more than twenty-five years, and was only varied by a slight reduction of the quantity in the land after a railroad company had appropriated, a portion of it, and also a change in the description of owners, where there had been a change in ownership. In the conveyances of the property there was, in addition to the description given, a further description in metes and bounds, which was so lengthy that it could not practicably be carried onto the tax-rolls. Whatever the rule may be in determining the validity of a tax deed, this description, we think, is sufficient to establish a tax lien and to base a recovery for the taxes paid.
A description consisting of abbreviations which are sufficiently definite to designate the land by the aid of surrounding circumstances is certainly sufficient in an action brought to enforce the payment of taxes. For'instance, a description was held to be sufficient which described a tract of land as “ The north part of the northeast quarter of section number ten, township number fifteen, range number twenty-three, east, containing one hundred acres, situated in the county of Johnson, state of Kansas.” (Martz v. Newton, 29 Kan. 331.) In Comm’rs of Jefferson Co. v. Johnson, 23 Kan. 717, a description was sustained which is quite similar to the one under consideration. It was : “S.W. ±, survey 18, 170 acres, K. H. B. I. L., Jefferson county, Kansas.” In sustaining it attention was called to section 153 of the Compiled Laws of 1879, relating to taxation, which provides that in proceedings relating to the assessment and collection of taxes “ any description of lands which shall indicate the land intended with ordinary and reasonable certainty, and which would be sufficient between grantor and grantee in an ordinary conveyance, shall be sufficient.” It was also remarked that “under all the authorities descriptions may be made in any form or in any manner which the parties may choose, provided such descriptions are not so uncertain or indefinite as to render it impossible to ascertain.where the land lies.” ■
While descriptions cannot be supplied by parol evidence, it is competent to explain abbreviations and clear up ambiguities by evidence aliunde the instruments or proceedings. (Krutz v. Chandler, 32 Kan. 659, 5 Pac. 170; Knote v. Caldwell, 43 id. 464, 23 Pac. 625; Comm’rs of Jefferson Co. v. Johnson, supra; Harding v. Greene, 59 id. 202, 52 Pac. 436; Seaton v. Hixon, 35 id. 663, 12 Pac. 22; Cordes v. The State, 37 id. 48, 14 Pac. 493.) With the description which was given there was no serious difficulty in locating the ground, nor any danger that the parties whose duty it was to pay the taxes should be misled by the description. Douglass knew that the land had been taxed by this description ; he knew that the land was taxable ; and in the proceedings which he brought in court with reference to this land he had used the description employed by the taxing officers and by which it was designated on the assessment- and tax-rolls of the’ county. Under the liberal rules of interpretation employed in actions of this character the description must be held sufficient.
_ The same view must be taken of the further objection made that the tract was separated by a street laid through it. The property was listed and taxed by the single description without regard to the laying and dedication of the street, and has always been recognized by that description. Whether the street was open or not, we think the use of the former designation was not fatal to the tax lien, or to a recovery in this action. (Ortman v. Giles, 9 Kan. 324, and cases previously cited.)
There is a contention, too, that the proof of the levy of the taxes was insufficient, and complaint is made of the character of the proof that wa§ offered. It is true that there was no proof of the various levies made by the officers of the school district, city, township and county to provide the several funds which made up the total taxes against the property. It was shown, however, that the taxes were paid, and the tax receipts evidencing the payments were produced. The assessment- and the tax-rolls were also introduced, which showed the taxes levied against the land and the purposes for which they were levied. The tax-rolls are the original extensions of the levies made by the proper authorities, and include all kinds of taxes. Having been officially made on the public records, it is presumed that they have been correctly made, and these, with the other proofs offered, are sufficient evidence of a levy in an action of this character.
We do not regard any of the objections made as fatal to the tax lien, and we are not warranted in looking into the record of a different and distinct proceeding brought to review another branch of the case with reference to the improvements, or in considering any questions except those embraced in the record in this case.
The judgment of the district court must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Bxjrch, J.;
The action was one to recover oh a personal judgment, rendered by a court of competent jurisdiction of the state of West Virginia, against Winfield S. Whan and Frank A. Whan. Frank A. Whan defended, on the ground the judgment against him was void for want of jurisdiction. The verdict and judgment were in his favor, and the plaintiff appeals.
The decision depends on the conclusiveness of the sheriff’s return of service on Frank A. Whan, who will be spoken of as the defendant. The return showed valid service under the laws of West Virginia, by delivering a copy of the summons at the defendant’s usual place of abode, to his wife, who was a member of his family. The defendant entered on the trial with the presumption against him that the sheriff’s return was true. The presumption, however, was rebuttable, because the defendant’s usual place of abode and the constitution of his family were not facts which were within the personal knowledge of the sheriff. The proof was, that the defendant made no appearance in the action, that he had separated from his wife and was living apart from her, that she was not a member of his family, and that the place where the summons was delivered was not his usual place of abode.
In the case of Bond v. Wilson, 8 Kan. 228, the syllabus reads:
“The general rule is, that as between parties to an action the return of the sheriff is conclusive, but this rule is not to be carried so far in cases of original process as to preclude an inquiry into the facts on which jurisdiction depends; and where the return of the sheriff is that a copy of the summons was left at the residence of the defendant, the court may hear and determine whether the place where the copy was left was, at the time, the residence of the defendant.”
In the opinion it was said:
“We know of no statute that makes a sheriff a final and exclusive judge of where a man’s residence is, or what is the age of a minor, or who are the officers of a corporation, or where their place of business is; and when the statute made it the duty of the sheriff to ascertain these facts it did not make his return of such facts conclusive. Of his own acts his knowledge ought to be absolute, and himself officially responsible. Of such facts as are not in his special knowledge he must act from information, which will often come from interested parties, and his return thereof ought not to be held conclusive.” (p. 231.)
This rule has been adhered to ever since it was announced, whether the judgment assailed was foreign or domestic. The latest applications of the rule may be found in Schott v. Linscott, 80 Kan. 536, 103 Pac. 997, and O’Neil v. Eppler, 90 Kan. 314, 133 Pac. 705.
The plaintiff contends that Bond v. Wilson, and other cases which followed it, were overruled by the decision in the case of Goddard v. Harbour, 56 Kan. 744, 44 Pac. 1055. In Goddard v. Harbour the return was that the summons was served personally, a fact within the sheriff’s personal knowledge. In conformity with the earlier cases, all of which were cited, it was held the return was conclusive. In the opinion it was said:
“In the cases heretofore decided by this court the right to controvert the sheriff’s return has been expressly limited to matters not coming within his personal knowledge, and the opinions in all the cases, including, also, Mastin v. Gray, 19 Kan. 458, recognize this distinction.” (p. 748.)
No question arises with reference to giving full faith and credit to the judgment of a court of a sister state, because the defendant would be entitled to contest the sheriff’s return if an attempt were made to enforce the judgment in the state of West Virginia. In the case of Fuel Co. v. National Bank, 89 W. Va. 438, the syllabus reads:
“Upon a proceeding to vacate a judgment taken by default in a case in which the defendant had no notice of the pendency of the action in any manner or form, the return of the officer indorsed upon the summons is only prima jade evidence of service, and may be overthrown by proof of such lack of notice.”
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment against it rendered under section 3822 of the General Statutes of 1915, the statute that makes cities liable in damages for the acts of mobs.
The evidence proved that the plaintiff had returned from a bank with $1,637 to .use in his business in Kansas City; that when he got to his place of business, he started to go from an automobile into his building; that he was there met by an armed man who demanded the money; that this man was assisted by two others seated in an automobile, one at the wheel with the engine running and the other in a seat with a revolver drawn and held on the plaintiff; and that the plaintiff, through fear of great bodily injury, delivered the money to the man on foot, who immediately got into the automobile and the three rapidly rode away. There was no tumult nor excitement. A demurrer to the plaintiff’s evidence was overruled. The defendant did not introduce any evidence. A verdict was returned in favor of the plaintiff for $1,637, and judgment was rendered in his favor for that amount.
The right to recover under this statute has been upheld where an armed mob took a person from the county jail and hung him (City of Atchison v. Twine, 9 Kan. 360); where a prisoner was taken from the custody of the sheriff and killed while on the way to the penitentiary (Adams v. City of Salina, 58 Kan. 246, 48 Pac. 918); where one was injured while gathering information concerning the violation of law (Iola v. Birnbaum, 71 Kan. 600, 81 Pac. 198); where a charivari party took a bride and groom, placed them in a wagon in the nighttime, tumultuously drew it by hand up and down the street, and while doing so ran the wagon over a boy and injured him (Cherryvale v. Hawman, 80 Kan. 170, 101 Pac. 994); where a saloon keeper was injured and his property was destroyed (Stevens v. Anthony, 82 Kan. 179, 107 Pac. 557); where a number of prisoners, confined together in a city jail, combined and severely whipped another prisoner (Blakeman v. City of Wichita, 93 Kan. 444, 144 Pac. 816); where a city marshal, who was also a deputy sheriff, went with a number of persons pretending to act as a posse to the home of one charged with a felony, surrounded his house, engaged in a gun fight with him, and shot and killed him (Harvey v. City of Bonner Springs, 102 Kan. 9); where a body of about 200 men went from a city to a man’s home outside the city limits, destroyed the house and carried away personal property (Easter v. City of El Dorado, 104 Kan. 57, 177 Pac. 538); where four policemen, plain clothesmen, with a warrant went to the home of a man, broke down the doors of the house, assaulted and beat him, ransacked the house, and frightened the members of the man’s family, without exhibiting a warrant when requested to do so (Moore v. City of Wichita, 106 Kan. 636, 189 Pac. 372); where members of a labor union assaulted and beat a member of a different union (Sabins v. Kansas City, 109 Kan. 133, 197 Pac. 860); and where one who had been active in the enforcement of the prohibitory-liquor law was assaulted and beaten (Wilkins v. City of Mineral, 109 Kan. 46, 197 Pac. 863). The inability of the city to prevent the action of the mob is no defense. (Iola v. Birnbaum, 71 Kan. 600, 81 Pac. 198.)
It has not been held that three or more persons, who, under previous arrangement between themselves, rob a man on the street,, constitute a mob. That would make a mob of every band of three or more persons who combine to commit any crime and together, commit that crime. The legislature did not intend that any three men who deliberately plan to commit murder, robbery, burglary, arson, or any other felony, and who go together and commit that crime, should constitute a mob, under section 3822- of the General Statutes of 1915. If the legislature intended to accomplish that result, cities are responsible in damages for much of the crime committed within their limits. Until the legislature specifically says that cities are liable in damages for such crimes when committed by three or more persons, it must be held that cities are not liable under such circumstances.
The judgment is reversed, and judgment is rendered for the defendant.
Burch, J., dissents. | [
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The opinion of the court was delivered by
Mason, J.:
Edna Wamberg obtained a decree of divorce from J. W. Wamberg on January 29, 1921, in an action brought by her on October 7, 1920. The judgment included an allowance of $1,000 as alimony. On March 2, 1921, the defendant filed a petition to vacate the judgment upon the ground that he had refrained from attending the trial in reliance upon a written stipulation to the effect that no allowance for alimony should be made. A hearing was had upon this petition and relief was denied him. He took this appeal on July 15, 1921.
The parties will be spoken of as plaintiff and defendant according to their relations in the original suit, whether or not the present proceeding should be regarded as a new action. On October 9, 1920, the defendant and the plaintiffs attorney entered into a written stipulation reading as follows:
“Whereas, there is now pending in the above named court an action for divorce between the above named parties.
* “And whereas, the parties have agreed to a settlement of their property rights, in lieu of any further or different alimony and attorneys fee as herein stated.
“The plaintiff agreed to prosecute her action for divorce to a final determination and the defendant will file no answer therein.
“The defendant agrees to pay to the plaintiff the sum of Five Hundred Dollars in -the manner following, Fifty Dollars in cash receipt of which is hereby acknowledged, and the sum of Four Hundred Fifty Dollars within ten days from this date. Defendant further agreed to pay to Walter L. Bullock, the sum of Five Hundred Dollars in the following manner. One Hundred Dollars cash, the receipt of which is hereby acknowledged, and the sum of four hundred within ten days from this date, this amount to be in full for his services as her attorney.
“Plaintiff agrees to sign any deeds that may be necessary in the conducting of defendants real estate business.
“Plaintiff agrees to turn over the Oldsmobile upon the signing of this agreement.”
The Oldsmobile referred to was a car at the time in the possession of the plaintiff which the defendant claimed to own subject to a mortgage to a third person for more than its value. The car was delivered to the defendant in pursuance of the agreement and retained by him. The fifty-dollar payment mentioned appears to have been made. A check was given for the one-hundred-dollar payment acknowledged, on which the defendant stopped payment. No other payment was ever made. On November 4, 1920, the court made' an order for the payment by the defendant to the plaintiff of $40 on the 15th of each month and also $50 for her attorney’s fee and $100 as suit money. Forty dollars was paid on November 15, 1920. The defendant failed to make any further payment and on December 20, 1920, in a proceeding against him on account of such failure the court found that he was unable to meet the requirement of the original order and substituted therefor an order to pay $50 suit money and $50 attorney's fee by January 1, 1921. Neither of these payments was made and on January 18, 1921, the following agreements were executed in behalf of the parties by their attorneys:
“Stipulation.
“It is hereby stipulated and agreed by and between Walter L. Bullock, attorney for Edna Wamberg, the above named plaintiff, and Clement L. Wilson, attorney for J. W. Wamberg, the above named defendant, that upon the defendant’s complying with the order of the court made on the 20th day of December, 1920, that the plaintiff is not to ask for any further or additional alimony, costs or attorney fees, and that upon the payment of the order by G. W. Shell all property rights by and between the plaintiff and defendant are settled.
“It is further agreed that the plaintiff will claim no further rights in the property of the defendant and that upon the payment of the money by G. W. Shell, all orders of the court will be released.
“The defendant agrees to withdraw his answer and consent that the above action may be tried at any time the plaintiff elects.”
“January 18th, 1921.
“By mutual agreement between J. W. Wamberg and Edna Wamberg and her attorney, Walter L. Bullock, the order made on December 20th, 1920 at Greensburg, Kansas has this day been settled to-wit;
“That J. W. Wamberg hereby assigns to Edna Wamberg for suit money and attorneys fee in the case of Edna Wamberg, plaintiff vs. J. W. Wamberg, defendant, action for divorce in Dodge City, Ford County, Kansas, which claim and account has been agreed upon, which G. W. Schell owes J. W. Wamberg of $98.66 (Ninety Eight Dollars and sixty-six cents) and this is to be the authority of G. W. Schell to pay said claim.”
At the hearing of the petition to vacate the judgment the defendant testified that he signed the stipulation of October 9 under duress. That testimony is not here important because no claim of that nature was made in the application to vacate, the reason there given for nonperformance on his part being his lack of means, of which it was alleged he gave notice to the plaintiff’s attorney. Moreover the court may not have believed the defendant’s statements in this regard. The plaintiff introduced no evidence and the present controversy must be determined upon the facts already stated.
The plaintiff contends that the stipulations of January 18 did not supersede that of October 9, and did not affect the allowance of permanent alimony, but have reference merely to suit money and attorney’s fees, being a substitute for the order of the court of December 20. We think, however, that their true interpretation is that the plaintiff would make no demand for alimony, suit money or attorney’s fees beyond the payment of the $100 provided in the court order of December 20, and that the order on Schell (if paid) .would be accepted in lieu of that amount. This seems to us to follow from a consideration of all the provisions of the agreement, particularly in-view of the language: “Upon the payment of the order by G. W. Shell all property rights by and between the plain tiff and defendant are settled.” The language by which the order on Schell is introduced has some tendency to support the plaintiff’s contention, but we think it must yield to the specific provision quoted.
The plaintiff raises the point that the Schell order was never paid. There is nothing to indicate, however, that it was ever presented, and we think presentation was incumbent upon the plaintiff as a foundation for that objection. The plaintiff also contends that the defendant’s testimony shows that the debt from Schell was not due until March. 1, 1921. What the defendant said was that the indebtedness of Schell to him was absolute at the time the order was given, but that Schell wanted to wait until March 1. We do not regard this testimony as indicating that the debt was not due, or as excusing the presentation of the order.
The plaintiff suggests that an agreement between the parties concerning alimony was not binding upon the court, citing Blair v. Blair, 106 Kan. 151, 153, 186 Pac. 746. However that may be (and of course reasons may exist for setting aside such an agreement) we think no greater allowance than that provided by the last stipulation should have been made without giving the defendant notice and an opportunity to be heard concerning it, since he was justified by its terms in remaining away under the assumption that the stipulation would control.
The plaintiff’s final suggestion is that the petition to vacate the judgment is in effect a motion for a new trial and the appeal from the order denying it should not be entertained because the ten days’ notice of an intention to appeal required by the statute (Gen. Stat. 1915, § 7582) was not given. While the defendant asked to have the decree of divorce vacated we see no sufficient reason for such an order and regard the proceeding as maintainable only as one for reopening the question of the allowance of alimony. Therefore the statutory provision referred to does not apply. (Kremer v. Kremer, 76 Kan. 134, 90 Pac. 998, 91 Pac. 45. See, also, Haverty v. Haverty, 35 Kan. 438, 11 Pac. 364.)
The order denying the petition to vacate the judgment for alimony is reversed and the cause is remanded with directions to set aside that part of the judgment, in order that the question of an allowance to the wife may be retried. | [
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The opinion of the court was delivered by
West, J'.:
The state on the relation of the county attorney sought to enjoin the defendants from fencing up the west end of Evergreen street in the city of Hays. The court sustained a demurrer to the petition and the plaintiff appeals.
It was alleged that Evergreen street had for a long time been an open public highway, running east and west, one hundred feet wide; that the defendants had constructed in the street about thirty feet north of the south line of said street a fence, cómposed of wooden posts and barbed wire, to the east.line of Pine street, except where Evergreen and Chestnut streets intersect; that before the action was begun the defendants connected this fence by a fence connecting and enclosing thirty feet with their land, and thereby depriving the public of access j¿o that portion of Evergreen street. It was prayed that the court adjudge the fence to be a nuisance and that the defendants be ordered to abate it. ’ The demurrer was based on the grounds that the court had no jurisdiction, the plaintiff no legal capacity to sue, and that the petition did not state a cause of action.
It is argued by the plaintiff that the state has paramount au~ thority over streets and highways where the general public is interested, and that section 7165 of the General Statutes of 1915 (amended by chapter 247 of the Laws of 1917) gives the state unequivocal authority to bring this action. That section provides that an injunction may be granted to enjoin the maintenance of a common nuisance.
It is contended by the defendants that the petition does not show any need or necessity for judicial interposition, and they suggest that the officers of Hays have ample power to maintain the streets and keep them in a safe condition, and in the absence of some showing of failure so to do the county should not assume jurisdiction, and that the court has no jurisdiction of an action to enforce the ordinances of the city.
Their brief states that they submitted to the trial court ordinance No. 886 of the city, vacating thirty feet of the south side of Evergreen street, at the place complained of, and this statement is not denied. Assuming that this ordinance was submitted to the trial court we fail to find any objection thereto in the record, and so must treat the case as one submitted to the court on the petition of the plaintiff and the demurrer to the evidence along with the city ordinance authorizing the obstruction complained of. If this be the position, then the ruling of the trial court was right. Moreover, if the ordinance was improperly submitted and considered and hence the demurrer wrongfully sustained as a mere matter of pleading, yet no substantial error was in fact committed because the plaintiff had no right in the face of the ordinance to maintain an action to enjoin the very thing it authorized to be done. In The State v. Order of Eagles, 100 Kan. 480, 164 Pac. 1063, the plaintiff’s evidence was not sufficient to entitle it to an inj'unction, but tended to show that the defendants were entitled to judgment, and it was held that it was mere technical or nonprejudicial error to sustain a demurrer to the plaintiff’s evidence instead of rendering judgment for the defendants thereon. Attention was called to section 581 of the civil code requiring us to disregard all mere technical errors whjch do not appear to have affected the substantial rights of the party where it appears upon the whole record that substantial justice has been done. (See, also, In re Underwood, Petitioner, 103 Kan. 505, 175 Pac. 38.)
Finding no substantial error sufficient to work a reversal, the judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The petition in this action is styled an “application for writ of mandamus.” It s’tates a cause of action in mandamus and one in quo warranto. A controversy arose between the defendants and the state board of education, of which defendant Wooster is a member.
1. The defendants denied to the other members of the board of education access to the books and records of that board, which are kept in the office of the state superintendent of public instruction, at a time when the members of the board, other than defendant Wooster, desired to meet as a board. The defendants then contended that the meeting of the board was illegal, and for that reason denied the board access to the books and records and refused to permit the board to examine them. That contention of the defendants was without merit. The board, or any member of it, has the right of access to the books and records of the board and has the right to examine them at any time during reasonable hours, whether the board is in session or not. The defendants were not justified in refusing to any of the members of the board access to those books and records.
2. C. M. Miller had been, by the state board of education, appointed director of federal vocational education. This was done under the act of congress, February 23, 1917, chapter 114, section 9 (39 U. S. Stat. 933). That act appropriates large sums of money for vocational education on condition that the states shall appropriate an equal amount and that expenditures for that purpose shall be equal on the part of the federal government and of the state. The state, by chapter 45 of the Laws of 1921, appropriated large amounts for this purpose. Miller was, by the defendants, denied access to the books and records relating to his duties. He had the unqualified right of access to them, and neither of the defendants was justified in refusing him permission to see and examine them at any time that he might see fit.
3. It appears that Helen Bennett was employed by the state board of education at a salary of $125 per month for the purpose of administering the funds for vocational education; that she was allowed her salary for the month of August, 1921; and that defendant Wooster has refused to approve the voucher for the salary of Helen Bennett for that month. It also appears that defendant Wooster is threatening to refuse to approve the voucher of C. M. Miller. If neither Helen Bennett nor C. M. Miller had been employed by the state board of education to assist in the distribution of the vocational education fund, nor had performed the services required, defendant Wooster would be justified in refusing to approve the vouchers allowing their salaries; but that is not the situation presented. The act Appropriating money for vocational education (Laws 1921, ch. 45) provides that vouchers against the fund shall be approved as provided in chapter 280 of the Laws of 1917. That act provides that the vouchers shall be approved by the state superintendent of public instruction. This matter is controlled by King v. Wooster, ante, p. 625.
A peremptory writ of mandamus has been issued commanding the defendants to permit the board of education to have access to its books and records at all reasonable hours, commanding the defendants to permit C. M. Miller to have access to the books and records of the board of education pertaining to vocational educa tion, and commanding defendant Wooster to approve the vouchers of Helen Bennett and C. M. Miller.
There remains to be construed those matters that are presented by what may properly be termed proceedings in quo warranto.
4. The petition alleges that defendant Wooster, who by law is made chairman of the state board of education (Gen. Stat. 1915, § 8871, as amended by Laws 1919, ch. 256, § 1), is assuming to exercise the power of refusing state certificates to teachers and certificates to institute conductors and instructors, of rejecting applications for such certificates and for the renewal thereof, and of revoking such certificates. It is further alleged that the defendant Wooster is assuming to make and promulgate rules, regulations, and requirements concerning the issuance of state certificates to teachers and certificates to conductors and instructors of normal institutes. The plaintiff asks that the law be declared concerning the authority of the state superintendent of public instruction to exercise these powers. This is a question of statutory construction. - An examination of the following statutes is necessary:
“The state board of education . . . shall . . . issue state teacher’s certificates under such regulations, not inconsistent with law, as the state board may determine.” (Gen. Stat. 1915, § 8872.)
“The state board of education shall have authority to hold examinations and to issue teachers’ certificates to persons of good moral character who may give satisfactory evidence of the requisite scholarship, culture, professional attainments and ability, as provided in this act; and all certificates issued by the state board of education shall be valid in any township, county, school district, or city of the first or second class for the time specified in the certificate unless sooner revoked by the state board of education. All certificates issued by the state board of education shall be countersigned by the state superintendent of public instruction. ...” (Gen. Stat. 1915, § 8993.)
“Normal training teachers’ certificates may be issued by the state board of education as herein provided to graduates from normal training courses in high schools and academies accredited for this purpose" by the state board of education.” (Gen. Stat. 1915, § 8999-, as amended by Laws 1921, ch. 232.)
“The state board of education may issue temporary teachers’ certificates valid for one year only in such schools and departments as may be specified in said certificate.” (Gen. Stat. 1915, § 9002.)
“The said state board of education is empowered to cancel any state certificate which said board on satisfactory proof finds to be held by a person of immoral character or otherwise disqualified for a teacher.” (Gen. Stat. 1915, § 9023.)
“Any certificate issued by the state board of education, regents of the state normal school, county board of examiners or city board of examiners may be revoked by the body issuing the same on the grounds of immorality, gross neglect of duty ...” (Gen. Stat. 1915, § 9039.)
These statutes reveal that the legislature has placed within the control of the state board of education all matters concerning the examination and qualifications of the classes of teachers named, and no duty is imposed on the state superintendent of public instructipn concerning these matters except what is imposed on her as a member of that board. She has no more authority concerning issuing or revoking certificates than any other member of the board. She has authority equal to any other member.
5. It is alleged that defendant Wooster is assuming the authority of ranking and accrediting schools and colleges in this state.
“The state board of education . . . shall prescribe courses of study for the public schools of the state, including the common or district schools, the graded schools, and the high schools; they shall also prepare a course of study for the normal institutes; and they shall revise the several courses of study when in their judgment such revision is desirable; they shall have authority to make rules and regulations relating to the observance of the prescribed courses of study.” (Gen. Stat. 1915, § 8872.)
Section 8874 of the General Statutes of 1915 reads:
“The state board of education shall have exclusive and sole authority to define official standards of excellence in all matters relating to the administration, course of study, and instruction in rural schools, graded schools, and high schools, and to accredit those schools in which the specified standards are maintained; and the board may grant to accredited schools an appropriate certificate or other evidence of approval.”
Section 8875 reads:
“Any person who shall complete a four-year course of study in any high school accredited by the state board of education shall be entitled to admission to the freshman class of the state university, the state agricultural college, or any of the state normal schools, on presenting a statement containing a transcript of his high-school record signed by the principal of the school and certifying that such person has satisfactorily completed said course of study.”
The express provisions of the' statute place control of these matters directly in the state board of education.
6. The petition further alleges that defendant Wooster is acting on the assumption that the state board of education cannot meet except on the call of its chairman. Section 8872 of the General Statutes of 1915, in part, reads:
“The state board of education shall meet at such times and places as may be determined by them and at the call of the state superintendent of public instruction.”
Under this statute, there is no question about the authority of the state superintendent of public instruction to call a meeting of the board of education; but that is not the question presented. Can the board meet without a call from its chairman? It cannot be said that the board cannot meet if the state superintendent of public instruction should refuse to call a meeting. If it becomes necessary for the board to meet, there is no law prohibiting it from meeting and transacting the business that is necessary to be done. If this be not correct, the board might be very seriously interfered with in the performance of its duties. The statute gives the board authority to meet at such times and places as it' may determine. The statute does not say that the board must fix regular times and places for its meetings. It may very properly perform its duties in meetings at fixed times and places, but may very well depend on making arrangements for meeting whenever necessary.
In The State, ex rel., v. Younkin, 108 Kan. 634, 638, 196 Pac. 620, this was said:
“While the powers of a public officer or board are those and those only which the law confers, yet when the law does confer a power or prescribe a duty to be performed or exercised by a public officer, the powers granted and duties prescribed carry with them by necessary implication such incidents of authority as are necessary for the effectual exercise of the powers conferred and duties imposed.”
It must be said that the board can meet, if it so desires, without being called together by the state superintendent of public instruction.
7. The defendants question the jurisdiction of this court to entertain a petition to declare the law on any question under the declaratory-judgment statute. (Laws 1921, ch. 168.) This court has original jurisdiction in mandamus and quo warranto. (Const., art. 3, § 3.) The validity of the declaratory statute has been upheld. (The State, ex rel., v. Groue, 109 Kan. 619, 201 Pac. 82.) | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for «damages for assault and battery. The plaintiff recovered, and the defendant appeals.
The plaintiff is the wife of the defendant’s son. She testified she was handled very roughly, and was badly injured. The defendant testified he slapped the plaintiff a little on the side of her face. The plaintiff’s husband corroborated his father. The jury returned a general verdict for $1,000, and returned the following findings of fact:
“4. Do you find that the plaintiff pushed defendant away from the table, or was in the act of pushing defendant away from the table, at the time defendant slapped her? A. Yes.
“5. Did the defendant do anything more to the plaintiff than merely to slap her, and if so, please state in detail what it was. A. No.
“6. Do you find that the defendant, at the time he slapped plaintiff, did so maliciously? A. Yes.
“7. If your verdict is for the plaintiff, state what amount you find to be her actual damage sustained. A. None.
“8. If your verdict is for the plaintiff, state what sum, if any, you award her as punitive or vindictive damages. A. $1,000.”
The defendant moved for judgment on the special findings. The plaintiff moved to set aside finding No. 7. The defendant’s motion was denied, the plaintiff’s motion was allowed, and judgment was rendered on the general verdict.
The defendant insists the court invaded the province of the jury-in setting aside the 7th finding. The jury passes on the credibility of witnesses and the weight of testimony while it has possession of the case. When the jury has stated the result of its deliberations, in verdict or in finding, and the court is called on to review the jury’s work, the court must do so according to its own judgment, and should set aside verdict or finding or both, when satisfied the jury has not properly discharged its function. (Williams v. Townsend, 15 Kan. 563.)
Punitive damages may not be recovered unless substantial actual damages have been sustained, and the question whether the plaintiff sustained substantial actual damages was not determined in her favor when the 7th finding was set aside. The plaintiff says it is not necessary, to support a verdict for punitive damages, that actual damages be found or recovered; it is enough that actual - damages be proved, and in this instance actual damages were proved. The jury found the defendant did no more than slap the plaintiff, and that finding is not questioned. The jury evidently believed the injuries to which the plaintiff testified, and of which her husband knew nothing, were fabrications. Likewise, the jury evidently believed the money the plaintiff paid a doctor, whom she consulted after she consulted a lawyer, and whom she did not call as a witness, was misspent. The court was not satisfied with the jury’s finding of no actual damage, and set the finding aside; but the court could make no finding of its own, and this court is not authorized to declare that appreciable actual damages have been established. Besides that, this court is committed to the rule that punitive damages are never more than an incident to a cause of action for actual damages, and, when allowed, are allowed only in addition to recovered actual damages. (Schippel v. Norton, 38 Kan. 567, 572, 16 Pac. 804.)
The defendant admitted he slapped the plaintiff, but denied he caused her physical hurt. The admission and the 5th finding entitled th% plaintiff to nominal damages; but nominal damages will not sustain a verdict for punitive damages. (Shaffer v. Austin, 68 Kan. 234, 238, 74 Pac. 1118.)
The jury found the defendant was actuated by malice. Malice bears no relation to the subject of actual damages. It does not, per se, constitute a cause of action, cannot take the place of injury in a cause of action, and cannot enhance actual damages.
“Harm done without excuse cannot be made more wrongful than it is by the addition of bad faith or personal ill-will, nor made lawful by its absence.” (Pollock, The Law of Torts, 11th ed., p. 23.)
If actual damages, not merely nominal, have been sustained, malice may warrant allowance of a sum in addition to compensation, by way of -punishment of the wrongdoer. Otherwise, the presence or absence of malice, is unimportant.
Neither party asked for a new trial. The defendant stood on his motion for judgment on the findings, and the plaintiff stood on her motion to set aside the 7th finding. Setting aside the 7th finding did not improve the general verdict. The 8th finding stated that the whole sum awarded as damages was awarded as punitive damages, and that finding precluded judgment in favor of the plaintiff. Nothing but a successful new trial could put into a verdict for the plaintiff the element of substantial actual damages. She did not desire a new trial, and the litigation is at an end.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for the defendant. | [
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The opinion- of the court was delivered by
Burch, J.:
The action was one to recover on a contract for life insurance applied for by Herman Mesloh. The plaintiff moved for judgment on the pleadings, a stipulation relating to certain facts, and the opening statement of counsel for the defendant. The defendant moved for judgment on the pleadings, the stipulation, and the opening statement of counsel for the plaintiff. The motion of the defendant was denied, the motion of the plaintiff was allowed, judgment was rendered accordingly, and the defendant appeals.
Fred Fleer, a soliciting agent of the company, took Mesloh’s application. The application was subsequently approved, and the policy was written. The policy was sent to a. state agent of the' company, and by him to Fleer, for delivery, but before it was delivered Mesloh died. The application signed by Mesloh was dated September 1, 1918, and contained the following provision:
“I hereby agree . . . that the company shall incur no liability until this application has been approved by it at its home office, the policy delivered during my good health, and the first annual premium thereon shall have been paid by me: Provided, That if the first annual premium be paid at the time of making this application, the insurance shall be in 'force from the date of the approval of the application by the company at the home office.”
The application also contained the following statement by Mesloh: “I have paid the first premium of $108.85 to Mr. Fred Fleer.”
The petition stated that the first annual premium was paid and satisfied at the time the application was signed, but that the plaintiff was unable to state how. The payment was either in cash, or by agreement to pay at some later date. The plaintiff was unable to state whether the agreement was oral or in writing, but if a promise was given in settlement and payment of the premium, the time when such promise required payment in cash was January 1, 1919. The opening statement of counsel for plaintiff did not clarify the matter of payment. With the jury in the box, and the burden resting on the plaintiff to proceed with the production of evidence of payment, counsel was unable to specify what his evidence would be, and said:
“I think the evidence will show it was either done by note or by cash or by some oral arrangement, the evidence will show just exactly the method, but I think the evidence will show clearly that the first annual premium was actually settled in some way on the date the application was taken, . . .”
The defendant’s answer undertook to state the facts:
“The defendant alleges that it is informed and believes, and therefore alleges the fact to be, that at the time such application was taken, and after the same had been filled out and signed, the said Herman Mesloh told the said Fleer that he was unable to pay the premium at that time, but that it would be necessary for him to first sell property belonging to him, and realize the money necessary therefor. That thereupon it was agreed that the said Mesloh would raise the money necessary and would send the same to one Brettman, a relative of the said' Mesloh, and that the said Fleer would deliver the policy, when it came, to the said Brettman, who would have the money therefor. That such arrangement was satisfactory to the said Fleer, and the application was sent to the company. The defendant alleges that the said Mesloh did not send such money to the said Brettman, or any part thereof, and that on that account the said policy was never delivered to the said Mesloh, or to Brettman, or to any one else.”
The facts were amplified in the opening statement for the defendant :
“Now, gentlemen, there is no doubt in the world but what the evidence will show exactly what happened at the time this application was taken.
“There were only three persons present, Fred Fleer, Mr. Brettman, a cousin of Herman Mesloh’s, and Herman Mesloh, who is now dead.
“Now the arrangement that was made, as the evidence will substantiate to you, is simply this: Mr. Fleer, after they had agreed upon the amount of insurance, filled out the application for insurance, and filled out all blanks, assuming that Mr. Mesloh would pay him for the insurance, which is the hope of all agents, that a man will pay for his insurance at the time they write the application, and he filled out the blank that ‘I have paid the first premium of $107.85 to Mr. Fred Fleer.’ And Mr. Mesloh, in signing the application, said to himj ‘I cannot pay the first premium, I have got to sell some stock before I can pay the money.’ If he had been able to pay the money at that time, the company has, and Mr. Fleer had, a receipt which the company calls a binding receipt, to be given to Mr. Mesloh if he paid the first premium, in which receipt it is stated that, the applicant having paid the first annual premium, this insurance will be effective from the time your application is approved by the home office. But Mr. Mesloh said he did not want to pay the premium at that time, and the arrangement made was this: Mr. Herman Mesloh said, ‘I will have to sell some stock, I am going in the army,’ I think he said shortly or the next day, 'and I will send the money, after I sell my stock, up to Mr. Brettman,’ who was his cousin and lived up in or near Deshler, Nebraska. And that arrangement was made, and Mr. Fleer was to deliver the policy to Mr. Brettman and ge,t the money at the time the policy was delivered; that was the arrangement.
“Now the policy got to Mr. Worth¡ who was state agent, living at St. Joe, Mo., along around the 22nd, 23d, or 21th of September. Mr. Fleer was out on the road at the time, and by the time Mr. Worth could get the policy to Mr. Fleer, and Mr. Fleer down to Deshler, Mr. Herman Mesloh was dead. I think he died the 5th of October.
“Mr. Fleer inquired of Mr. Brettman, who said no money or anything else had ever been paid to him on account of the policy. Now there is the case. It was simply where a man had applied for insurance, and never completed the transaction by paying his premium, ...”
The court held the defendant was bound up to the time it discovered it could not get the money from Brettman, and rendered judgment for the face of the policy, with interest, less the unpaid first annual premium, with interest.
The district court erred. The applicant agreed the company should be under no liability until the first annual premium was paid, and the first annual premium was not paid.
For present purposes it may be conceded Fleer had all the authority the board of directors of the company would have possessed if it had been dealing directly with the applicant. The applicant entered into an arrangement respecting payment of the premium, which was perfectly satisfactory to Fleer, and, under the concession, to the company. The arrangement was partly oral arid partly in writing, and was to this effect: The applicant was to obtain money with which to pay; payment was to be made in money when the policy was delivered to Brettman; meanwhile, there should be no liability on the part of the company. It is elementary law in this state that there could be no payment unless what was done extinguished all right of the company to collect premium for the first year, and rendered all obligation of the applicant to pay premium for the first year nonexistent. Plainly, nothing of the kind occurred. Payment was not made, and neither time of payment nor credit was extended. The oral arrangement was consistent in every detail with the written agreement, and liability waited on the sale of the applicant’s stock, the placing of the proceeds of sale in the hands of Brettman, and Brettman’s payment of the premium in cash at the time the policy was delivered to him.
The plaintiff contends the defendant is concluded by the statement in the application, “I have paid the first premium of $108.85 to Mr. Fred Fleer.” In support of the contention, the- plaintiff cites the case of Harrington v. Mutual L. Ins. Co., 21 N. D. 447. The decision in that case was rested on a statute of the state of North Dakota, making acknowledgment of receipt of premium conclusive evidence of payment of premium, notwithstanding a stipulation liability should not attach until actual payment. The court took occasion to cite the case of Basch v. Humboldt Mut. F. & M. Ins. Co., 35 N. J. L. 429, in which the New Jersey court, without a statute, held in accordance with the North Dakota statute. The ground of the decision in the New Jersey case is interesting. The court said:
“Such an acknowledgment appears to be analogous, and equivalent to the acknowledgment of the receipt of a valuable consideration in a conveyance operative by force of the statute of uses, such acknowledgment being always considered conclusive for the purpose of giving a legal force to the transaction.” (p. 431.)
This court prefers to find legal force, if there be any, in the facts of a given transaction, rather than in a fiction useful in administering the law of Henry "VIII, and in making search for legal efficiency, 'receipts-do not count for much as against the truth. They do not even shift the burden of proving payment. (Bridge Co. v. Wayland, 107 Kan. 532, 192 Pac. 752.) In this instance, however, no receipt was given. Fleer had with him, when the application was taken, receipts which, if one had been issued, would have given the applicant insurance from the date his application was approved. Those receipts, however, were for payment of premium, and the applicant lacked money with which to qualify himself to receive one. The statement in the application was merely Mesloh’s own self-serving representation, and was not true. It has been decided many times that an application which does not truthfully state the agreement between applicant and soliciting agent, does not bind the applicant; the actual agreement controls. The sauce has equal piquancy for the insurer. The actual arrangement between Fleer and Mesloh controls, and, under that arrangement, payment of premium was to accompany delivery of the policy.
The plaintiff asserts that delivery of the policy to Fleer with unconditional instruction to deliver it to Mesloh, made a contract of insurance. The policy was not delivered to Fleer, in the sense that anything was effectuated between the company and the applicant. Sending the policy to Fleer merely amounted to passing it from one hand of the company to another, from a general agent at the home office, to a special agent in the field. Fleer was not agent of the applicant to receive the policy, and the policy remained in the custody and control of the- company, undelivered to anybody, so far as the applicant was concerned.
The plaintiff pleaded the instruction to Fleer, which read as follows: “We are inclosing policy No. 15,776 for Herman Mesloh for delivery, ...” This letter was not an unconditional instruction to deliver, much less an instruction to deliver under such circumstances as to nullify an express condition of the document to be delivered. The policy was simply placed in the hands of Fleer for the purpose of consummating the relation between the applicant and the company formed by acceptance of the application and by the oral arrangement with Fleer regarding payment of premium. Let it be assumed there was a contract relation between the applicant and the company when the policy was sent to Fleer. The application was incorporated in the policy, and the contract was, the company should incur no liability until the first annual premium was paid.
The plaintiff pleaded the arrangement between the company and Fleer for division of the first annual premium and the bookkeeping which followed acceptance of the application. Those matters were of no concern to the plaintiff, and were irrelevant to the subject of payment of premium by the applicant. (Marshall v. Insurance Co., 98 Kan. 502, 159 Pac. 17.)
The plaintiff pleaded a letter from the company to Mesloh, congratulating him on his good judgment in selecting the company as his insurer, and referring to him as a policyholder. The letter followed approval of the application which contained Mesloh’s false statement that he had paid the first annual premium, insteac] of the actual arrangement with Fleer.
In his opening statement to the jury, counsel for plaintiff related a conversation between Fleer and the applicant’s brother, occurring after the application had been taken, in which Fleer said the premium had been settled and taken care of for the first year. The statement embodied a fair interpretation of the nature of the arrangement Fleer had with Mesloh and Brettman for payment of the premium, but the statement afforded no ground for assuming payment of premium as a condition to liability was waived, and in no event could the statement bind the company.
The result is, payment was not made, there is no basis on which to predicate waiver of paj^ment or estoppel to deny liability, and the indispensable condition to liability on the part of the company was not complied with.
The plaintiff contends in her brief that, should the judgment of the district court be reversed, she should 'be allowed to submit the case to a jury. As the case stands, there is nothing to submit to a jury. The plaintiff speaks, of an uncertainty respecting method of payment, which the jury should resolve. There is no uncertainty respecting method, because the facts disclose nothing resembling payment, and an inference of payment would be contrary to the law defining payment, Other suggestions regarding sending the case to a jury ignore the fact, which the plaintiff cannot be permitted to evade or minimize, that the applicant failed to perfect insurance.
In strictness, the petition failed to state a cause of action. None of the facts proposed for the purpose was sufficient to show waiver. While payment was alleged, the allegation was accompanied by a statement that the plaintiff did not know how payment was made. The allegation therefore reduces to a conclusion, accompanied by a confession that the plaintiff is not able to state facts on which to rest the conclusion, that is, facts stating a cause of action. The opening statement of counsel for plaintiff has been quoted. When counsel for the defendant had concluded his opening statement, the whole case was in fact before the court, and the court evidently regarded the motions for judgment as a final submission. In announcing its decision the court said:
“The plaintiff having asked judgment upon the pleadings, statements, and stipulation, and the defendant having asked the same relief, the court has -considered them both together.
“It is apparent to the court that the parties have framed the pleadings and made the admissions for the purpose of having the matter settled in this manner if possible, and while it is not perhaps a part of this lawsuit, I think it is very commendable on the part of counsel to endeavor to get together in that way, and shorten suits of this character, if they can. I certainly want to put on record my approval of that method of trying it.”
The brief for the plaintiff contains no suggestion that, if the case were returned to the district court, any fact favorable to the plaintiff could be produced in addition to those which have already been discussed. Under these circumstances, the litigation ought to end.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted of violating the statute prohibiting a person from-drawing a check on a bank, knowing he has no funds on deposit to meet the check when presented, and appeals. Two counts of the information were quashed, and the state also appeals.
Section 1 of the statute reads as follows:
“It shall be unlawful for any person, corporation, or partnership, to draw, make, utter, issue or deliver to another any check or draft on any bank or depository for the payment of money or its equivalent, knowing, at the time of the making, drawing, uttering or delivery of any such check or draft as aforesaid that he has no funds on deposit in or credits with such bank or depository with which to pay such check or draft upon presentation.” (Laws 1915, ch. 92, § 1, Gen. Stat. 1915, §3471.)
Section 2, as amended in 1917, provides a penalty for “willfully violating” any of the provisions of section 1. (Laws 1917, ch. 170.)
Section 3 reads as follows:
“That in any case where a prosecution is begun under this act, the defendant shall have a right, upon application made for that purpose before trial, to have said action abated by showing to the court or judge that he has had an account in said bank upon which said check or draft was drawn, thirty days next prior to the time said check or draft was delivered and that said check or draft was drawn upon said bank without intent to defraud the party receiving the same, and if the court shall so find, said action shall be abated and the defendant shall be discharged upon paying into court the amount of such check and the costs in said case.” (Laws 1915, ch. 92, § 3, Gen. Stat. 1915, §3473.)
Another section defines the term credits; another makes the statute inapplicable in case the check be paid; and another distinguishes the statute from the false-token statute and other existing laws. At the same session the legislature passed an act which provides punishment for obtaining money or other valuable thing by cheats, frauds, and bogus checks. (Laws 1915, ch. 203, § 1, Gen. Stat. 1915, § 3470.)
The first count of the information was based on a check to the Dodge City Wholesale Grocery Company, for $133.44, dated August 9, 1920. The second count was based on a check to the Dodge City Wholesale Grocery Company, for $96.57, dated September 7, 1920, and the count contained an allegation that, when the check was delivered to the payee, the defendant told the payee he had no funds on deposit to meet it. The third count was based on a check to the McCord-Kistler Mercantile Company, for $129.04, dated November 22, 1920, but drawn and delivered to the payee on November 20, 1920. All the checks were drawn on the Farmers’ State Bank of Larned.
The defendant filed a motion to quash the'information, on the ground it did not state facts sufficient to constitute a public offense. The motion was overruled as to the first count, and sustained as to the second and third counts. The defendant then pleaded guilty to the first count, but moved the court to arrest judgment, on the ground the first count did not state facts sufficient to constitute a public offense.
The defendant contends the criterion of guilt in criminal law is wrongful intent, and the statute does not require criminal intent in order to constitute the felony denounced. The statement is entirely too broad. The worthless check must be willfully drawn, knowing at the time there are no funds on deposit to meet it. Beyond that, the legislature may, for protection of the public interest, require persons to act at their peril, and may punish the doing of a forbidden act without regard to the knowledge, intention, motive, or moral turpitude of the doer. There is no constitutional objection to such legislation, the necessity for which the legislature is authorized to determine. (The State v. Brown, 38 Kan. 390, 393, 16 Pac. 259; 16 C. J. 76-78.) Whether or not the legislature has enacted such a statute is a matter of interpretation.
The defendant contends the offense of giving a worthless check is related to the false-token and false-pretense group of crimes, and consequently, in order to constitute a crime, the check must be given with intent to defraud, and fraud must be accomplished by procuring money or other valuable thing. That the legislature was not adding to the list of punishable deceits and frauds, is manifest from the interpretative section of the statute, and from the fact the legislature at the same session passed the bogus-check act. The purpose of the statute was to discourage overdrafts and resulting bad banking (Saylors v. Bank, 99 Kan. 515, 518, 163 Pac. 454), to stop the practice of “check-kiting,” and generally to avert the mischief to trade, commerce and banking which the circulation of worthless checks inflicts. Although the statute tends to suppress fraud committed by the worthless-check method, the evils referred to are all quite distinct from those consequent on fraud, and the statute is to be regarded as creating a new and distinct offense.
In Kentucky, the worthless-check act makes the giving of such a check, with intent to defraud, a crime. In the case of Commonwealth v. McCall, 186 Ky. 301, the court distinguished the worthless-check act from the statute relating to obtaining money or property by false pretense or false token, as follows:
“This section creates a new and distinct offense, the commission of which is accomplished by giving a check with the intent to defraud on a bank in which the maker knows he has not sufficient funds to pay the check, and it is not essential to constitute .an offense under this section that any false representation, statement or pretense should be made by the maker of the check concerning the state of his account in the bank, on which the check is given, or in connection with the transaction. No questions need be asked by the person to whom the check is given or information volunteered by the person giving the check. The mere giving of such a check with the intent to f defraud will constitute the offense, and the intent to defraud will be present whenever money, property or other thing of value is parted with by the person to whom the check is given.” (p. 305.)
In the case of The State v. Miller, 74 Kan. 667, 87 Pac. 723, cited by the defendant, the court concluded, from the title of the act and the language of the section under consideration, that the statute forbidding sale of mortgaged property without written consent of the mortgagee contemplated intent to defraud. In the recent case of State v. Taylor, (S. Dak.) 183 N. W. 998 (decision not yet officially reported), the legislative intention was indicated by a change of definition. In that case, the substance of the charge was that the defendant willfully, knowingly, unlawfully and feloniously obtained money, by giving a check on a bank which he knew did not exist. The supreme court of South Dakota held the words willfully, knowingly, unlawfully, and feloniously, were equivalent in meaning to “designedly,” and said:
“The crime of false pretenses, as defined by section 645 of the Revised Renal Code, 1903, was changed by section 4249, Code of 1919, by omission of the words ‘with intent to cheat and defraud.’ The new section, so far as material here, reads:
“ ‘Every person who designedly, by color or aid of any false token or writing, . . . obtains from any person any money or property, is punishable,’ etc.
“Under this section a specific allegation'that the act was done ‘with intent to cheat or defraud’ is not required, and such intent is not a necessary ele ment of the crime defined by this statute. The statute requires only that the. act shall have been done ‘designedly.’ ” (p. 999.)
In this instance it seems clear that fraudulent intent was purposely omitted from the enumeration of elements of the crime.
The defendant contends the statute is in conflict with section 16 of the bill of rights, which forbids imprisonment for debt except in case of fraud. It is said the check was given to pay an acknowledged debt, long past due, and neither debtor nor creditor made or lost anything, but the debtor must be imprisoned because the debt was not discharged by the check. The information does not disclose the consideration for the check. It may be conceded, however, the statute applies to a transaction of the character described. Nevertheless, the statute does not impose imprisonment for debt. This subject -was considered by the supreme court of Georgia, in the case of Hollis v. State, 108 S. E. 783 (decision not yet officially reported). The constitution of the state of Georgia declares “there shall be no imprisonment for debt.” The worthless-check act of 1919 resembles the statute of this state, except that the check must be drawn with intent to defraud. The court said the drawer of the check is not imprisoned for debt, but for fraud, and cited the case of Smith v. The State, 141 Ga. 482. In the cited case, the court had under consideration the act designed to punish fraudulent practices in obtaining board, lodging and other accommodation at hotels, inns, boarding houses, and eating houses, and held imprisonment was not imposed for debt, but for the forbidden practices. Under the statute of this state, the offense does not consist in nonpayment of debt, but in resorting to a practice which the legislature regarded as demoralizing to business.
The second count of the information was not vitiated by the allegation that, when the check was given, the defendant told the payee he had no funds in the bank to meet it. The payee was not deceived, but deception of the playeé of a worthless check is not the primary evil which the statute was designed to frustrate.
The third count of the information was based on a postdated check. The specific evils which the statute was designed to remedy follow from the giving of a worthless postdated check, and no reason is apparent for excepting such a check from operation of the statute if, when it is given, the drawer knows it is worthless for want of funds.
In the case of Neidlinger v. The State, 17 Ga. App. 811, the court had under consideration the worthless-check act of 1914 of the state of Georgia, which reads as follows:
“Any person who shall draw and utter any cheek, draft, or order for present consideration upon a bank, person, firm or corporation with which such drawer has not at the time sufficient funds to meet such check, draft, or order, and shall thereby obtain from another money or other thing of value, or induce such person to postpone any remedy he may have against such drawer, shall be guilty of a misdemeanor, and upon conviction shall be punished as prescribed in section 1065 of this code: Provided, That if such drawer shall deposit with such drawee of such paper, within thirty days thereafter, funds sufficient to meet such check, draft, or order, together with interest which may have accrued, there shall be no prosecution under the provisions of this act.” (p. 812.)
The court held the act was not intended to cover postdated checks. The court reasoned as follows: A fraudulent intent must exist and be operative before the giving of a worthless check could constitute a crime; the statute penalized conduct similar to forms of cheating and swindling, and consequently the court should assume the elements of the offense were similar to those of cheating and swindling; otherwise, the statute would simply afford means of collecting debts through the instrumentality of the criminal law; one who knowingly takes a postdated check for an article of value, relies, not on funds in bank to meet the check, but on ability of the drawer to have funds on deposit when the check is presented; there is an implication that the drawer does not have present funds on which to draw; and the payee is apprised that the paper constitutes no more than a promise to pay in the future. The major premise of this argument is unsound and, if the statute were passed as the result of activities of bankers and business men’s associations, as in this and other states, the court failed to view the statute from their standpoint. The offense is not committed against the payee of the check, but consists in the public nuisance resulting from the practice of putting worthless checks in circulation.
In 1919, the legislature of Georgia passed a new worthless-check act which, by express declaration, made intent to defraud an element of the offense. In the case of Strickland v. State, (Ga.) 110 S. E. 39, the maker of the check told the payee he did not have money to spare, and wished to date the check ahead. In holding the maker not subject to prosecution, the court of appeals followed the Ngidlinger case.
.The defendant contends the statute is bad because it sanctions compounding of felony. Use of the expression- “compounding of felony” is fallacious in this connection. The legislature could affix such punishment, mild or severe, as it desired, and could provide for relief from prosecution on such terms as it desired, without offending against any guaranty which the drawer of a worthless check is authorized to invoke.
In the case of Commonwealth v. McCall, 186 Ky. 301, the court had under consideration the Kentucky “cold-check” law, which contains this provision:
“Provided, however, That if the person, who makes, issues, utters, or delivers any such check, draft, or order, shall pay the same within twenty days from the time he receives actual notice, verbal or written, of the dishonor of such check, draft, or order, he shall not be prosecuted under this section, and any prosecution that may have been instituted within the time above mentioned, shall, if payment of said check be made as aforesaid, be dismissed at the cost of defendant.” (p. 304.)
This provision was interpreted as follows:
“It is clear under this statute, in fact so provided, that if the maker of the check ‘shall pay the same within twenty days from the time he receives actual notice, verbal or written, of the dishonor,’ he cannot be punished for giving the check, and that if any prosecution has been instituted before the expiration of the twenty days it shall be dismissed if the check within that time is paid. But the maker of the check cannot save himself from the penalty of the statute by returning property received on the faith of it, or any property or other thing of value except money, in the full amount of the check.
“Nothing short of this will acquit the maker, no matter what he and the payee have agreed to. Their agreement to settle the matter in any other way than as provided in the statute will not be allowed to stay the prosecution or prevent the enforcement of the penalty.” (pp. 306, 307.)
The worthless-check act of Florida provides punishment for a person who gives a worthless check, who shall not, within twenty-four hours after written notice of presentation and nonpayment, make full and complete restitution by returning the consideration received for the check. In the case of McQuagge v. State, 87 So. 60, the supreme court of Florida held this statute to be constitutional, without, however, stating the objections to constitutionality or the reasons for the decision. -
The judgment of the district court denying the motion in arrest of judgment is affirmed.' The judgment sustaining the motion'to quash counts two and three of the information is reversed, and the cause is remanded for further proceedings. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by the Parkersburg Rig & Reel Company to recover $1,050 from the Freed Oil & Gas .Company, and to foreclose a mechanic’s lien on the premises of defendant, upon which tanks had been erected.
The defense was that the plaintiff was informed of the purpose -for which the tanks were purchased and undertook to build structures fit for that purpose, but it was alleged that one of the tanks by reason of defective material and workmanship collapsed shortly after it was filled with oil with the result of a loss of 4,445 barrels of crude oil, for the loss of which defendant asked a judgment against plaintiff for $1,300. In a trial with a jury the plaintiff was awarded a judgment for $1,132.25 and the foreclosure of a mechanic’s lien was adjudged. Defendant appeals.
There was no express warranty of the tanks constructed, but defendant contends that there was an implied warranty by plaintiff that the tanks were to be sufficient to hold oil and that when the tank collapsed the warranty was broken and the plaintiff became responsible for the consequent loss. It appears that the material, which is composed mainly of staves and hoops, is purchased by the plaintiff in quantities and that these were cut in the lengths required at plaintiff’s plant and shipped out to that part of the* oil field operated by the defendant. There the staves were cut and fitted and the strips of iron were made into hoops by riveting the ends together. In the course of construction if the plaintiff’s workmen found a defective stave it was thrown out, and if any of the hoop iron was found to be weak or defective, that part was not used. The plaintiff then built a base upon which the tank was constructed. Large hoops were used at the bottom of the tanks and above that smaller sizes were used. When the tanks were set up they were immediately filled with oil and within a few hours one of them bursted,, and the oil sank into the'¿round. It was found that some of the hoops were pulled apart where they had been spliced or riveted together, and others had burst at places other than the joints, and a. number of staves had broken.
Plaintiff contends that the tanks were sold as specific finished articles of merchandise and that the defendant had an opportunity to inspect them when they were erected and purchased them on its own judgment and at its own risk. In the agreement of purchase there were no specifications made as to the kinds of wood and iron that were to be used nor as to the methods of construction. The only provision„was that they were to be of a certain size capable of holding 1,600 barrels of oil. The plaintiff was informed of the purpose for which the tanks were to be used. It held itself out as a competent tank builder, it selected the material and constructed the tanks upon its own plans and undertook to build tanks that would hold the quantities of oil mentioned, and it is claiming a mechanic’s lien for constructing the tanks. The facts bring the case, clearly within the rule stated in Tank Co. v. Oil Co., 108 Kan. 690, 196 Pac. 1111. There it was held that—
“A tank company which, under contract with an oil company, furnishes material and labor and constructs a 1,600-barrel tank for the storage of oil on the oil company’s premises, impliedly warrants that the tank shall be reasonably fit for the purpose for which it was sold.” (Syl. if 1.)
That decision settles the principal contention in the present case and there is no occasion for further discussion as to the existence or effect of the implied warranty. It follows from the decision and the authorities cited therein that plaintiff impliedly warranted that the tank purchased was reasonably fit for the special purpose for which it was intended. The test of fitness by use showed that either by reason of defective material or improper construction the tank did not meet the requirements of the contract and the plaintiff became liable for a breach of the implied warranty.
There was error in the instructions in effect charging that the implied warranty did not cover defects which defendant could have discovered by the exercise of ordinary prudence, and that if it accepted and used the tank without objection it waived the right to rely on the warranty as to the defects which might have been discovered by the defendant by the exercise of ordinary care and prudence. There was no basis for placing this limitation on the liability under the warranty. The defendant had nothing to do with the selection of material out of which the tank was built nor with the plans and specifications upon which it was built, neither had it any part in its construction. No claim is made of an improper use of the tank by the defendant nor that it collapsed through the fault of the defendant. It contracted for and plaintiff undertook to build a tank that would hold 1,600 barrels of oil. The defendant trusted the judgment and skill of the plaintiff in constructing one fit for that purpose. Defendant had no opportunity and was under no obligation to inspect either material or workmanship employed in its construction. He could only learn of the weakness and unfitness of the tank by the test of use and, as we have seen, it cqllapsed shortly after it was first filled with oil. It is clear that there was an implied warranty and the plaintiff was responsible for the bursting of the tank unless it occurred through some fault of the defendant-. In Tank Co. v. Oil Co., supra, the court in speaking of latent defects said:
“Unless hidden defects frustrating purpose were embraced, the warranty .had no function to perform, and a choice must necessarily be made between -warranty and no warranty.” (p. 693.)
In referring to the liability of the builder of a tank in such a cáse, it was remarked:
“Assuming the tank collapsed within that time, the -tank company’s liability became absolute, unless it could establish its defense that the accident occurred through fault of the oil company. The tank did not stand up, the warranty was broken, and due care in selecting material and in building the tank was not a defense.” (p. 693.)
At the opening of the trial the court permitted the plaintiff to amend its reply by alleging that if defendant suffered any loss by the bursting of the tank it was caused solely by the negligence of the defendant in failing to build and maintain a bank or dike around the tank to catch and save the escaping oil. In its instructions the court told the jury.that if the defendant did not use the care exercised in building a dike around the tank, such as a generally careful oil producer would use, he could not recover for so much of the oil as might have been saved by that process. The defendant was not required to anticipate the negligence of the plaintiff, or a breach of the warranty, or to build embankments to prevent loss by reason of its breach of the implied warranty. A witness for defendant testified that a dike around the tank was built but that it was constructed for the purpose of protecting the- oil from fires and was not made in preparation for the possible bursting of the tank nor to protect oil escaping by reason of its negligent construction. The failure to build the dike would not lessen the liability of the plaintiff for oil that was actually lost by reason of the breach of the warranty. Under the testimony it cannot be said that it was lost through the fault of the defendant.
The judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action by a husband against his wife, in which he charged her with adultery, and the relief prayed for was a divorce and the custody of their five-year-old daughter.
The trial court found the woman guilty of adultery, but that it was committed “with the knowledge, connivance and consent of the plaintiff,” and denied the divorce. Until the further order of the court, the child was entrusted to the- care of its mother, except that the father should have its custody three months each year in vacation time. Defendant was also allowed alimony in the sum of $100 per month.
The plaintiff appeals, complaining of this judgment in all its parts; and to determine its justice and propriety, the outstanding features of the evidence will have to be narrated at some length.
In 1915, the plaintiff, Laban E. Harmon, then a reputable young man of twenty-four years, married the defendant, Helen Lewis, in Quincy, 111. She was about twenty-one years old, a member of a good family, a church member, and Sunday-school attendant. On their marriage they came to live in Independence, Kan.’, where the plaintiff had a responsible position as accountant for a large corporation. In time a daughter was born. Gradually they enlarged their circle of acquaintances, and acquired the esteem of the community. The plaintiff husband became prominent in lodge circles and the defendant wife attended church, brought her infant daughter to Sunday school regularly, and worked as a substitute teacher. She was a good housekeeper and much attached to her child and saw to its cleanliness, neatness and manners with marked attention. Thus launched and thus conducted the marriage craft of this couple bade fair to achieve life’s voyage with a minimum of rough weather. After a time, however, they met another young couple, Mr. and Mrs. Daugherty, who-moved in the same social circle. The Harmons and the Daughertys became friends and frequent visitors in each other’s homes. Their intimacy became in time so close and constant that almost every evening they were together. The Harmons were “Laban” and “Helen” to the Daughertys, and the latter were “Bill” and “Bonnie” to the Harmons. They danced, attended picnics, and went auto riding together. Bill usually danced with Helen; Laban with Bonnie. In the automobile, the plaintiff usually drove and Mrs. Daugherty rode in the front seat with him. The defendant and her child and Mr. Daugherty rode in the rear. In their homes, at late hours of the night the plaintiff and Mrs. Daugherty often sat on the porch while defendant and Mr. Daugherty danced inside in the dark to the music of the phonograph. Sometimes they sat outside while the plaintiff and Mrs. Daugherty danced inside under the same circumstances. Laban and Bonnie liked the same kind of dances — waltzes; while Helen and Bill preferred “fox trots.” At times the plaintiff and Mrs. Daugherty went auto riding late at night, while the defendant stayed at home to put the child to bed, and Mr. Daugherty stayed with her. Again, it would be the defendant and Mr. Daugherty who would go riding together, leaving plaintiff and Mrs. Daugherty at home. And thus, the intimacy of the two couples grew, until it passed all reasonable bounds. At length, the plaintiff, according to his testimony, conceived the idea that defendant had violated her marital fidelity with Mr. Daugherty. He suggested this to Mrs. Daugherty. She avowed her disbelief in anything of the sort. Plaintiff and Mrs. Daugherty, when auto riding at night by themselves frequently argued this matter; and after some weeks of such discussion, in which the existing intimate association of the four did not alter or abate in any respect, plaintiff and Mrs. Daugherty determined, as they say, to test the questioned relationship of Mr. Daugherty and Mrs. Harmon. Late one night plaintiff and Mrs. Daugherty announced, that they were going for a ride; they got in the automobile and drove rapidly around a short block, and returned to the house and surprised Mr. Daugherty and Mrs. Harmon .in adultery. Then there were tears of the young women, of course; and they and the young husbands discussed what should be done. It was agreed that the incident should not be made, public, that Mrs. Harmon should go back to her parents in Illinois, that she should renounce the custody of her little daughter, and waive all her rights in her husband’s property. Laban and Bill thereupon, the same night, about two o’clock a. m., went to Daugherty’s office and this agreement was reduced to writing; and Mrs. Harmon signed it. The families spent the remainder of the night together, took their meals next day together and spent the ensuing night together. Then Mrs. Harmon and the child went to Quincy, 111. From there she wrote piteously to plaintiff to forgive her, begged to be taken back to her husband’s affection and trust, and declared she could not give up her child.
“. • . Laban, I would be the happiest little gii;l in the world if I only knew I could come back to you. I do love you — you only — and will never look at another man again and raise Hortense just as you want me to. Remember it wasn’t my fault — and I didn’t do anything so indiscreet — honestly I never . . .
“You can never have another child like Hortense and neither can I. I would be willing to devote my entire life to raising a family — and Laban we no doubt could have a wonderful family judging from Hortense.
“Really Laban we kept too late hours— . . .
“Laban won’t you please, please forgive and I’ll put my whole life into you and Hortense.
“Oh, a line from you would help me wonderfully.”
She seems to have been led to believe that if she did not resist a • divorce from her husband, Daugherty would likewise be divorced from Mrs. Daugherty, and that she. could and should marry him. She wrote:
“Laban, don’t you think I should marry Bill tho — because he is the only fellow if I have been untrue to — if you call it being untrue — since I have been married. I presume the safest way in this world to be on the square — is not to even look at another man.”
To Mrs. Daugherty, she wrote:
“Yes Í feel that ‘Bill’-and I should marry — if I were to marry some other fellow — and perhaps some day have Hortense — he never would love H like ‘Bill’ would. ‘Bill’ said he believe he tho’t as much of H. as he would his only child and certainly would be good to her. . . .
“ ‘Bill’ said if I didn’t marry him — he didn’t care what became of him.”
It appears that the grounds on which plaintiff at first intended to base his claim to a divorce did not include the charge- of adultery— merely neglect of duty, etc. But when the defendant had time to realize the extent of her sacrifice in being deprived of her child, she became unmanageable. Daugherty wrote to her:
“I am writing you this once, Helen, to get you to do right. If you expect & want to marry me as soon as we can then you must do as I say in this. I am willing to do as I agreed with you dear, but positively will not if you persist and bring it to court. Why you wont gain a thing & in the end will be worse off. You would have your name and reputation ruined, no alimony, no Hortense & No chance of seeing her at all and no prospect with me. Not that I think you are madly in love with me, because you are not, but I believe we could be happy and have a good home. But not if it comes to court. I am through in that case.”
Plaintiff and Daugherty made one or two trips to Quincy to reason with her and to get the child. In fact, one time they went together and met Mrs. Harmon. The plaintiff testified:
“Q. Now when you got there this seducer of your house was there?’ A. Yes.
“Q. And you all had a conference, didn’t you? A. Yes, sir; we did.
“Q. Now what did you talk about? A. Talked about first about the custody of Hortense.
“Q. Yes, and you told your wife that unless she would give up that child you would publish to all her friends and go out and tell her parents that you caught her and Bill. Daugherty in a compromising position? . . . A. I simply said if she wasn’t satisfied with the agreement we three had made there together, that the only recourse she could have would be into the courts. And if it was carried into the .court I would of course reserve the right to amend my petition and tell the truth.
“Q.. Now was there anything that you people discussed up there with Bill-Daugherty except the possession of that child and that child’s future, and the mother’s position. A. Yes, sir.
“Q. What was it? A. We discussed Mrs. Harmon and Mr. Daugherty’s future. Mrs. Harmon said that her folks would be curious when Hortense was gone. They wouldn’t know the truth. And that I couldn’t expect to leave her without any alimony. That her parents would never understand, not knowing the cause of my divorce, why I didn’t pay her alimony. And she said if I would pay her alimony until such time as she and Mr. Daugherty could get married, that her folks need never know. And I told her I was considerably in debt, and I was going to do all I could for her.
“Q. Why didn’t you throw her a government bond, or something? A. I give her two fifty dollar government bonds. She said she was in need of clothes and out of money, and told her that I would give her fifty dollars a month, and Mr. Daugherty volunteered that he would give her $25.00 a month.
“Q. You didn’t hit him then, did you? A. No, I didn’t hit him.”
Space forbids further details of this marital shipwreck. It has to be added, however, that Daugherty’s seduction of plaintiff’s wife did not alter in any noticeable degree the bosom-friend comradeship which had theretofore existed between plaintiff and Daugherty. He visited at Daugherty’s, went riding with the Daughertys, and danced with Mrs. Daugherty, though less frequently. The two men co operated zealously to constrain the defendant not to make a fight in court for the custody of her child. They held before her the impending exposure of her shame before her parents and the public, but the mother instinct in defendant was not to be coerced, whatever the consequences.
To the foregoing much abridged narrative, gleaned from the abstract and counter-abstract, what shall we say to the plaintiff’s contention that the trial court’s finding of connivance is not supported by the evidence? His counsel cite cases to the effect that one spouse who suspects the other spouse of adultery may suffer the suspected one, in a single instance, to avail herself of an opportunity to indulge her adulterous disposition with no other motive than to obtain proof of her delinquency which would entitle him to a divorce, and that such conduct on his part is not connivance. Undoubtedly that proposition is good law. (Wilson v. Wilson, 154 Mass. 194, 12 L. R. A. 524, and notes; 19 C. J. 89, 91, and notes; 9 R. C. L. 394.) But it does not appear that the trial court based its finding of plaintiff’s connivance in this case upon the conduct of the plaintiff on the night when he discovered his wife in adultery — the announcement that he and Mrs. Daugherty were going for a ride, their circuit of the block in the automobile, the opportunity thereby given to the delinquents, and its consequences. The connivance as shown by the evidence began long before that incident. The persistent and unusual intimacy of these four young people, the late hours, the night rides, plaintiff with Daugherty’s wife, defendant with Daugherty, the sex-instinct-arousing dances and embraces in the dark, in all of which plaintiff acquiesced, and to which his similar conduct gave passive assent, if not encouragement — these and the other incidents above led to the overthrow of his wife’s marital fidelity. This course of conduct may not inaptly be designated as a form of connivance; at least it is persuasive evidence from which a finding of connivance can be deduced. Plaintiff testified that it never occurred to him that in taking the many night auto rides with Bonnie, leaving defendant and Bill to their own devices, taking his wife every other night to Daugherty’s house to dance with and embrace Bill in the dark and to go riding with Bill while he himself similarly and alternately danced and went night riding with Bonnie, and receiving the Daughertys on alternate nights in plaintiff’s home for similar practices— notwithstanding all these matters it never occurred to him that he was leading his wife into temptation and giving Daugherty most unusual opportunities for her seduction. The trial court was not bound to believe such testimony. No doubt there are such guileless and unsuspecting simpletons in the world, but they are hardly to be found among men of plaintiff’s intelligence and business and social standing. Plaintiff cannot be heard to say that he did not know the conventional standards of right conduct which respectable society has reared and crystallized into a moral code to guide and keep its members in the path of virtue; and it is neither cant nor preaching to say that plaintiff himself persistently violated that code when night after night he left his wife with Bill Daugherty while he and Bonnie Daugherty waltzed in the dark and went auto riding and otherwise gave her the example which led to her infidelity. He knew-his wife better than anybody. She was the mother of his child. He must have known that the absurd lengths to which his extraordinary intimacy, informality and unconventionality with the Daughertys had grown, as well as defendant’s, was bound to culminate in some such manner as it did. As was said in Wilson v. Wilson, supra, the husband—
“Must not, however, make opportunities for her, though he may leave her free to follow gpportunities which she has herself made. He is not obliged to throw obstacles in her way, but he must not smo.oth her path to the adulterous bed.” (p. 196.) (See, also, Noyes v. Noyes, 194 Mass. 20; 10 Ann. Cas. 818 and notes, 120 A. S. R. 517 and notes.)
Moreover, the trial court was constrained to take an unfavorable view of plaintiff’s antecedent conduct from his continued association and comradeship with Daugherty after the discovery of the episode which established the guilt of his wife. But even if plaintiff’s course of conduct be not precisely characterized as connivance, it was altogether inconsistent with that freedom from fault which would compel a reversal of the judgment. Without narrowing the effect of the undisputed evidence to the finding of connivance, we cannot hold that a divorce was erroneously denied. There are three parties to every marriage and to every divorce — the man, the woman, and the state itself. As said in Dennis v. Dennis, 68 Conn. 186, 34 L. R. A. 459:
“As the state favors marriages ... so the state does not favor divorces, and only permits a divorce to be granted when those conditions are found to exist, in respect to one or the other of the married parties, which seem to the legislature to make it probable that the interests of society will be better served, and that parties will be happier, and so the better citizens, separate, than if compelled to remain together. The state allows divorces, not as a punishment to the offending party nor as a favor to the innocent party, but because the state believes its own prosperity will thereby be promoted.” (p. 197.)
Whether or not the plaintiff’s course of conduct which the trial court declared to be connivance was properly so defined, this record will not warrant this court in holding that the divorce was erroneously denied; and a debatable reason for a judgment or a debatable finding of fact is not of controlling importance when from the whole record this court is assured that the judment itself is correct. (Civ. Code, §581.). In Fitzgerald v. Realty Co., 106 Kan. 54, 186 Pac. 738, where this court approved a judgment, it was said: “The fact that the [trial court’s] reason given for the ruling does not meet the approval of this court affords no ground for reversal.” (p. 56.)
Another error assigned is urged: A witness had testified without objection that from her observation and acquaintance with defendant, the latter was a fit person to have the custody of her daughter; but the trial court sustained an objection to a question on cross-examination:
“Q. Now Mrs. Lowry, if it should be a fact that Mrs. Harmon has been guilty of intimate or adulterous relations with a married man other than her husband, would you regard her as a proper person to rear her child?”
A similar question put to the Presbyterian minister who. had testified for the defendant was similarly ruled out.
This is of little consequence. We do not find this excluded testimony brought on the record in support of the motion for a new trial, which renders it still less important. (Scott v. King, 96 Kan. 561, 566, 567, 152 Pac. 653; The State v. Ball, 110 Kan. 428, 432, 433, 204 Pac. 701.) What response these witnesses would make' to such a question could be of very little assistance to the court. Mayhap the woman would have answered in the negative; and the preacher with a broader and more tolerant outlook on the frailties of humanity would have answered that if the erring mother had repented of her sin and was sincerely determined to amend, such a lapse from the path of virtue would not disqualify her from faithfully rearing her child in the path of reptitude. But whatever response the witnesses might have made, there were all sorts of evidence that except for defendant’s temporary infatuation for her paramour, she was a good mother; and moreover, while the evidence does not show nor hint— and we have no inclination to infer — that plaintiff’s infatuation for Mrs. Daugherty had extended to a similar infidelity, .yet his persistent habit of dancing in the dark and auto riding with another man’s wife, and his affected innocence or blunted sense of the impropriety in such conduct, left it far from clear that the child — and that child a daughter, too — would be any better off in his care than in its mother’s care. The court’s order is only temporary. If it transpires that the mother has not mended her ways — and if the father does not develop a better sense of how to occupy his leisure time, it may be necessary for the court, charged as it is with the discretionary exercise of the state’s power as parens patrice, to deprive both of its custody, and bestow it upon someone who can better appreciate and discharge a parent’s responsibilities.
We note a protest in plaintiff’s reply brief touching the defendant’s unduly extended counter-abstract. At this late day, the proper way to bring that matter before the court is by a motion to retax costs.
The record contains no error, and the judgment is affirmed.
Burch, J., dissents from the first paragraph of the syllabus and corresponding portion of the opinion. | [
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The opinion of the court was delivered by
Burci-i, J.:
The action is one to compel the state auditor to sell an abandoned channel of the Kaw river, and to distribute the proceeds according to chapter 272 of the Laws of 1921.
The act is entitled:
“An Act relating to the sale, disposition and conveyance, in certain cases, of the abandoned channel of navigable streams in the state of Kansas.” «
The act provides that, whenever a channel of a navigable stream is so changed that the land between the old'bank is abandoned by the water and a new channel is established, the land forming the old channel shall be sold by the auditor, and patented to the purchaser. Sections 2 and 3 read as follows:
“The proceeds arising from the sale of said land shall be applied as follows: First. To the payment of all expenses necessarily incurred in surveying, appraising and selling the same. Se'cond. To pay the respective owners of the land taken by said stream for the new channel, for the value of the land, as fixed by the state auditor, thus taken from them, in the ratio that the land taken by the new channel bears to the selling price of the land sold in the abandoned channel.
“The balance, if any, shall be paid in,to the state treasury to become a part of the common school fund of this state.”
The petition states that the Kaw river, a navigable stream, has established itself in a new channel, at a place near St. Marys, and the owners of land taken by the new channel have requested the auditor to execute the statute. The auditor answers that the statute is based on an erroneous assumption of fact respecting what the state owns, and that the provision relating to distribution of proceeds of sale is illegal and void. The auditor is correct in both his contentions.
Before the change of channel occurred, the state owned the bed of the stream. The petition does not tell how the change of channel occurred, whether by gradual and imperceptible relinquishment of one and acquisition of the other, or by sudden and violent irruption of the water, whereby the new channel was cut and the old one deserted. If the change was accomplished by the first method, the state no longer owns the old channel, and has nothing to sell. If the change was accomplished by the second method, the state does not own the new channel, and would get nothing for its money. Assuming the change was caused by flood, the state has full jurisdiction over the river in its present location, for preservation and protection of its public highway character, but the proprietors whose lands were invaded and degraded by the avulsion still own the bed and banks of the stream. (Fowler v. Wood, 73 Kan. 511, 529, 85 Pac. 763.)
The brief for the state suggests that the statute is a condemnation statute. Both the title and the body of the act forbid-such an interpretation. The statute states that it is supplemental to chapter 322 of the Laws of 1915. That act declared abandoned beds of navi gable rivers to be school lands, provided for survey and sale, and provided for placing the proceeds in the school fund. The attorney-general offers no suggestion of public purpose to be promoted by using money which has been regarded as belonging to the school fund, or for that matter, by using any other public money, in buying river beds; the statute does not present a single feature characteristic of a condemnation statute; and the declared purpose is tq sell land which the state owns, not by exercise of eminent domain to acquire other land.
The legislature may not make a gift of public money, any more than it may make a gift of public property, for the private benefit of an individual (Winters v. Myers, 92 Kan. 414, 140 Pac. 1033), and that would be the result of selecting a few flood sufferers of a special class and reimbursing them for their losses.
The writ is denied. | [
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The opinion of the court was delivered by
Mason, J.:
F. W. Karl sued John Maloney upon two promissory notes, given to Williams & Ketchersid and by them indorsed to the plaintiff. The defendant answered setting up facts alleged to amount to a failure of consideration and unlawful conduct on the part of the plaintiff in the transaction in the course of which the notes were given, and charging the plaintiff with notice of these defenses. An objection to the introduction of any evidence under the answer — in effect a demurrer to it — was sustained, judgment was rendered for the plaintiff, and the defendant appeals.
1. The answer contained allegations that the notes were given for shares in an “oil proposition,” the payees promising to deliver to the defendant certificates thereof; that such delivery had never been made; and that within a day or two after the execution of the notes the payees and the plaintiff entered into collusion to cheat the defendant, in pursuance of which plan the notes were indorsed to the plaintiff, an agreement being made betweén the payees and the plaintiff that no shares should be issued to the defendant. The plaintiff suggests that under these allegations, inasmuch as the consideration for the notes was the payees’ promise to deliver the certificates, the promise having been made there could be no failure of consideration, whether the promise was kept or not. The expression “failure of consideration” is sometimes treated as meaning the same as “want of consideration.” Whether or not a difference between the two phrases can be justified as a matter of verbal accuracy, where a note is given in consideration of a promise the breaking of the promise is a defense to an action on the note, which is often spoken of as a failure of consideration. (13 C. J. 368; Richardson & Morgan Co. v. Gudewill, 61 N. Y. Supp. 1120; Gale v. Harp, 64 Ark. 462; Palmer v. Guillow, 224 Mass. 1.)
2. The plaintiff contends, however, that the allegation of the nondelivery of the certificates does not amount to a statement that the promise had been broken, because it does not appear that the time for delivery had arrived, nothing having been said as to when they were to be delivered. In the absence of any express provision, the implication is that the certificates were to be furnished within a reasonable time. (23 R. C. L. 1368.) The notes were due in nine months and the action was brought' nearly five months after their maturity. Especially in view of the allegation that the plain tiff and the payees agreed that no shares should be issued to the defendant the petition as against a demurrer must be deemed to charge a breach of the promise to deliver the certificates. This allegation is sufficient also to put in issue the question of the plaintiff being a holder of the notes in due course.
3. The part of the petition alleging illegality in the transaction reads as follows: “Defendant further says that the said N. B. Ketchersid and Roy Williams, at the time of the execution and delivery of the notes aforesaid, and at the time of the sale to this defendant of the shares of ‘Fawley Royalty,’ were selling and disposing of the said ‘Fawley Royalty’ in violation of the so:called blue-sky law of the state of Kansas; and that plaintiff knew this to be the fact at the time he took said notes.” The plaintiff asserts that the paragraph quoted contains “nothing more than a conclusion without a single fact upon which the conclusion could be based”; that it lacks these statements: that the shares referred to were speculative securities within the meaning of the .blue-sky law (Laws 1919, ch. 153, § 1); that they were not excluded from that category by exceeding one twenty-fifth of the whole royalty (same, subdiv. 7); that the payees were issuers of the shares and were not selling them for their own account in the usual course of business (same act, § 5); and that the “Fawley Royalty” had not complied with the law.
It is true the allegations are extremely general, but we think by a very liberal interpretation they may be regarded, when attacked by demurrer and not by a motion for greater definiteness; as sufficient to charge a violation of the statute.
The judgment is reversed and the cause is remanded for further proceedings in accordance herewith. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued her two brothers, Walter L. Manson • and William Thomas Manson, for $5,000, alleging that they had agreed to pay her that sum- in consideration of her forbearance to bring a suit to set aside their father’s will and certain conveyances.
The petition alleged that prior to his death in February, 1916, ■ the father, Walter Manson, sr., had made conveyances of a large part of his property, and that immediately after his death the defendants produced what they asserted was his last will and testament with codicil, containing a bequest to the plaintiff of $500 and no more; that she, the plaintiff, took the position that the will and codicil were void because procured by the brothers through fraud, duress and undue influence and that the conveyances preceding the will were void for the same reasons; that she claimed her rights as a daughter and heir at law as though her father had died intestate without making such conveyances and that she advised the defendants that she would begin litigation to recover her interest as a legal heir; that the controversy thus arising and existing was in good faith on her part; that a compromise and settlement between her and her brothers was orally agreed upon.
“That for and in consideration of this plaintiff giving up, foregoing, waiving and abandoning her said claims and her said threatened litigation and in addition thereto that this plaintiff should not contest the said will and codicil, but would receive and accept the bequest therein in her favor in the said sum of $500.00 the said defendants would in addition thereto pay to this plaintiff within the time and on the conditions hereinafter set forth the sum of Five Thousand Dollars ($5^)00.00). That as a further part of said settlement and agreement it was agreed that said sum of $5,000.00 should be paid by said defendants to this plaintiff immediately upon the expiration of one year from the date of the death of the said Walter Manson, and on the further condition that this plaintiff had not, within said year, brought any action to contest the will and codicil of the said Walter Manson, deceased, or to cancel and set aside the conveyances ...”
The answer denied generally all the allegations and denied that William Thomas Manson had any authority to act for his brother, Walter L. Manson, in making any contract with the plaintiff, and alleged that there was a total failure of consideration to support the pretended oral contract alleged, and that the pretended cause of action set out by plaintiff was barred by the five-, three-, two- and one-year statutes of limitation.
The plaintiff testified to a conversation had with Thomas Manson in the presence of his wife:
“I told him that I wanted to get the $5,000 apiece and the $1,000 that was given us in the will and if he would- do that we would not bring suit against them and would not tie up the property and that they said they thought that was a little too much. Finally I said I will take $4,000 for myself but I would not take less than $5,000 for my sister. He, Tom, said I will give you $4,000 if you don’t sue and they wanted me to write my sister and find out about her part, if she would not take $4,000 instead of $5,000. I wrote to her and she sent me a telegram, which came on February 25th.”
She testified that at the time of the funeral she had a talk with her brother Walter and after telling him what she thought about the condition of affairs he said:
“It did not look just right and he said for me to talk it over with brother Thomas and we could talk it over and then he would see brother Thomas and talk it over with him and then he said whatever brother Tom said would be all right with him.”
Further, a few days after her father’s death the plaintiff went to see two of the attorneys for the defendants and was advised to bring suit; that she had a good case. She then went to her brother Thomas’s house and after she had told him her side of the case he said that it was wrong for him to do the way he had done and he was sorry for the part he had in it. He said he had seen Walter and had been to Kingman to see an attorney and they had agreed to pay the money to her and her sister one year after the date of her father’s death. Thomas said he had received ,a letter from Walter but would not let the plaintiff see it, but that Waltér would come through with his part of the agreement. In 1917, Walter had a talk with the plaintiff and said that whatever Thomas had agreed to do would be all right with him and agreed to carry out the details as Thomas had made them.
The plaintiff recovered, and the defendants appeal, assigning as error certain rulings touching instructions, and the denial of a new trial.
The defendants requested the court to instruct that any agreement on the part of the defendants to pay or do anything in consideration of forbearance on the part of the plaintiff to brifig suit would be without consideration and void. This was refused. The court charged that if the plaintiff had expressed dissatisfaction with the will and in good faith threatened to contest it, and that thereafter in order to compromise and settle the difference between the members of the family the plaintiff agreed not to Contest the will and not to involve the estate in litigation, and in pursuance thereof the defendants, or either of them agreed to pay a certain sum of money to the plaintiff, the jury would be warranted in finding that there was a sufficient consideration to support such oral agreement, if one were made. The jury were told in substance that in order for the plaintiff to recover she must have believed in good faith that she had a valid cause of action.
It is contended that the negotiations did not constitute an oral contract; that the agreement claimed to have been made was for forbearance to bring a groundless suit; and it is also argued that before the plaintiff could recover she must show that her father was incapacitated or under duress when he made the conveyances and the will.
The jury in answer to special questions found that the agreement was made and that its terms were that in consideration of the plaintiff’s foregoing litigation the defendants would pay her $4,000 upon the expiration of the year after the death of the testator. From an examination of the record we find that the evidence was sufficient to justify'these findings and the verdict reached by the jury-
There is nothing to indicate that the plaintiff was acting in bad faith in her threat to bring suit, but on the contrary she had been advised by good lawyers that she had a good case, and she evidently felt th.at she had been unfairly treated in the distribution of her father’s estate. While the alleged oral contract was denied, the testimony already quoted was. sufficient if believed, as it manifestly was, to substantiate the*claim of the plaintiff.
Finding no material error in the record, the judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The'plaintiff, F. B. Hazelwood, sued the defendant and P. H. Suiter for damages for the conversion of certain cane seed, which he alleged he had purchased at constable's sale.
The defendant answered by general denial, and denied that he was indebted to the plaintiff or to Suiter who had raised the cane seed as the defendant’s tenant.
The case was dismissed as to Suiter and the plaintiff recovered against Jenkins, the verdict being for $200.
The defendant appeals and claims that the execution sale at which the plaintiff was purchaser was held without sufficient'notice and therefore void; that the court erred in instructing the jury that the validity of the sale could not be questioned by Jenkins because he was not a party to the action in which the sale was had; also, that the court gave the jury no measure of damages and there was no evidence to support the verdict for the amount awarded by them.
Counsel concede that an entire stranger to a lawsuit who buys in personal property at a judicial sale even when notice thereof was for an insufficient length of time acquires a title which cannot be questioned collaterally, but they argue that the plaintiff was not an innocent purchaser at the constable’s sale and therefore Jenkins has a right to assert the insufficiency of the notice and the invalidity of the plaintiff’s title. The plaintiff has filed no brief.
It seems from an examination of the record that the plaintiff’s wife, M. E. Hazelwood, got a judgment against Suiter and wife in justice’s court for $164.99 and costs, and levied on a crop of cane which Suiter had raised on defendant Jenkins’ farm; that the levy was made August 12, and the property was sold August 21, the statute requiring the sale to be advertised ten days. (Gen. Stat. 1915, § 7848.) The plaintiff, F. B- Hazelwood, testified that he attended the sale and purchased Suiter’s undivided interest in the cane; that the action was brought by his wife while she ran a store at Gove City, and that he was in the store with her on a salary.
“I went with the sheriff when he attached the cane. I never took possession of the horses I bought.' I never took possession of the cane. I had my arrangement to cut it. . . .
“Q. Did you pay Mr. Cook [the sheriff] out there for this cane and these horses? A. I satisfied the account.
"Q. How did you satisfy it? A. I satisfied her claim.
“Q. How did you satisfy that? A. I paid for it with wages.
“Q. Who did you pay? A. Mrs. Hazelwood. '
“It was the agreement when I bought it that I was to settle for it that day. I never paid any money to Mr. Cook. I had something to do with the filing of this suit of M. E. Hazelwood against P. A. Suiter. I knew it was filed ... I started the suit for Mrs. Hazelwood. I had authority to start it. I think I paid the costs to the sheriff. I cannot say how much money I paid. I do not think Mr. Suiter owes myself or Mrs. Hazelwood anything at this time.”
The defendant testified among other things that in August, 1918 (the month in which the levy was made), Suiter had an interest in the crop:
“He owed me $128.00 which he has not paid. He assisted in the harvesting of the crop. He made no objection as to the time or manner of cutting the crop. There was nothing left after the expenses were paid. . . . Our contract was that he was to receive one-third of the proceeds of the crop after the expenses were paid.”
The court charged the jury that the validity of the former proceedings between the plaintiff and another party could not be complained of by one not a party to that-action, and could not be collaterally attacked.
“In other words, if you find from the evidence that the plaintiff in this action purchased the property in controversy in this action at a Sheriff’s sale based on an execution issued in a case in which the Defendant Jenkins was not a party then in such event you are instructed that Defendant Jenkins cannot in this present action attack the validity of the officers proceedings in the action in which such execution was levied.”
No instructions were given touching the measure of damages unless it might be inferred from instruction No. 6:
“If you find for the plaintiff in this action you should deduct a reasonable compensation for the expense of cutting and harvesting the property and if you consider the testimo^ as to the market value of such property then in such event you should also deduct reasonable compensation for thrashing and hauling.”
There was testimony as to how many bushels an acre the crop averaged, and that kafir corn was worth $1.50 a bushel and sold at $1.50 a bushel for chicken feed. Counsel contend that the measure of damages was the value of the property at the time of the con version and that there was a dispute as to what interest Suiter had in the crop and no denial that he owed Jenkins money, and no testimony whatever as to the necessary expense of harvesting and thrashing. In Jenkins v. Kirtley, 70 Kan. 801, 79 Pac. 671, where the damages were for the breach of a partnership contract, the jury were told that in fixing the amount it must be left to their discretion, and the instruction was considered faulty as it left the jury without guidance—
“But, beyond this, it contained a positive misdirection, in that it told them they could use their own ingenuity in the matter. Having undertaken to state a rule the court should have given one which was correct. The elements of damage open tt> consideration should have been enumerated and methods and criteria for. their estimation should have been pointed out.” (p. 803.)
13 Cyc. 236 was cited, which holds that the rules by which damages are to be estimated should be laid down by the court, and “ ‘it is its duty to explain to the jury the basis on which the assessment should be made, the proper elements of the damages involved, and within what limits they may be estimated in the case involved.’ ” (p. 804.)
The general rule is that one who buys property at a judicial sale, even when the notice is insufficient, acquires a title which, though it might be voidable at the instance of an opposing claimant if the purchaser had been a party to the suit, is good in the hands of a stranger to the suit who purchased bona fide. (Cross v. Knox, 32 Kan. 725, 5 Pac. 32, and Rounsaville v. Hazen, 33 Kan. 71, 5 Pac. 422.) In the latter case it was said:
“It is also in evidence that Rounsaville had full knowledge of said judgment before the release was entered, and before he purchased the property from Noble; and that while he and Noble were negotiating with reference to the purchase and sale of the property, they procured an abstract of the title to the property which showed that the judgment was in fact a lien upon the property; and the evidence is undisputed that Hentig himself, during that very time, told Rounsaville that the judgment was a lien upon the property, and that, while he was willing to release the judgment, as Noble desired him to do, yet that he did not consider that anything he, Hentig, might do with reference to the matter, would be worth anything.” (p. 75.)
3 Freeman on Executions, 3d ed., § 340:
“With respect to infirmities in the proceedings, the plaintiff and his attorney are less favored thap strangers to the writ. Strangers are allowed and encouraged to rely upon the facts set forth in the record, and upon the presumption that all the officers of the law have in all respects performed their duties. But if notice of vices or infirmities in the proceedings is brought home to strangers purchasing at execution sales, then such vices or infirmities may impair the title in the hands of such purchaser with notice; but it is incumbent on the plaintiff and his attorney to keep informed of all the proceedings taken in the case under their direction, or by virtue of their authority. The law will not permit them to be ignorant of such proceedings.”
Freeman on Void Judicial Sales, 4th ed., § 48:
“A purchaser’s claim to relief is dependent upon his bid being made in the belief that the sale was of a perfect title. If he knew of the defect, or from pursuing inquiries suggested by the pleadings or notice of sale would have known of it, he is not entitled to be released.” (p. 164.)
Herman on Executions, § 328:
“An execution-creditor who bids off the property at a sale on his own execution, and applies the bid on his judgment, is not regarded as a bona fide or innocent purchaser; . . . The law presumes that he has notice of every fact and step in the proceeding, from .the commencement of the action until after the completion of the proceedings under execution, and the creditor is bound to know that all the proceedings are legal up to the sale ... a plaintiff who bids on the property in the name of another, but applies the amount due on his judgment in payment pf his bid, and is himself the real purchaser, the person in whose name the property is purchased is not an innocent purchaser.” (pp. 487-489.)
“The courts are divided upon the question as to whether the judgment creditor who purchases at his own sale is affected by irregularities, liens, and equities of which he had no actual notice. According to the doctrine prevailing in the majority of jurisdictions he is not an innocent purchaser, but is chargeable with notice of all irregularities in the judgment, execution, and sale, and of all liens upon, and equities subsisting against the property in the hands of the judgment debtor.” (23 C. J. 764.)
Under the plaintiff’s own testimony the execution sale was in a case engineered if not brought by himself in the name of his wife. He did not even take the pains to satisfy the judgment or have her satisfy it. He simply made some arrangement with her, he says, by which his wages due himself from her went to offset the matter. He satisfied her claim. He “paid for it with wages.” The sheriff testified that Mr. Hazelwood paid the costs but “paid no cash on the judgment.” So, to all intents and purposes the suit was the plaintiff’s suit and he bought with the same knowledge and responsibility as if he had been the nominal as well as the practical plaintiff in the action. In such capacity he levied on the grain claimed by the defendant, and at a sale after only nine days’ notice he bought it. Under all logic and authority he was not an innocent purchaser, and the defendant’s attack on the validity of the sale was not collateral as against him.
The jury should have been given the basis of damages and there should have been evidence as to value and also as to the cost of putting the crop in condition for market. - The judgment is reversed and the cause remanded for further proceedings in accordance herewith. | [
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The opinion of the eourt was delivered by
Bukch, J.:
The action was one for damages for loss of property burned by fire set by one of the defendant’s engines. The plaintiff recovered, and the defendant appeals.
The engine was drawing a train of freight cars, and was laboring on an upgrade. A high wind was blowing, and fire was .carried to the plaintiff’s barn, a distance, measured on the course of the wind, of from 500 to 700 feet. The negligence charged was failure to provide sufficient spark-arresting apparatus, and unskillfulness on the part of the enginemen in operating the engine. The property destroyed consisted of the barn, two stallions, other live stock, hay, grain and farming implements, equipment, and supplies. The jury returned a verdict for $1,800 damages and for an attorney fee, and also returned findings of fact, which follow:
“1. At the time said fire is claimed by plaintiff to have been set, what if any defect was there in the fire-arresting equipment of the engine that plaintiff claims set said fire? A. Insufficient evidence.
“2. Please state fully what particular negligence, if any, you find on the part of any employee of defendant in the running and operating of the train which plaintiff claims set said fire. A. None.
“3. Do you find that on the occasion in question the engine that plaintiff claims set the fire, was equipped with apparatus of standard construction to arrest the escape of fire? A. No.
"4. If you answer the preceding question in the negative, state in what respects said engine was not equipped with apparatus of standard construction to arrest the escape of fire. A. Insufficient evidence.
“5. Was the fire complained of by plaintiff set out or started by unavoidable accident? A. Insufficient evidence.
“6. What engine of defendant, if any, do you find set fire to plaintiff’s property on the occasion complained of? A. Extra 754.
“7. If you find for plaintiff, please state what particular negligence, if any, you find from the evidence defendant was guilty of, that caused the fire to plaintiff’s property on the occasion complained of. A. Insufficient evidence on spark arrester.
“8. If you find for plaintiff, please state what particular employee of defendant, if any, you find was guilty of negligence that caused said fire. A. None.
“9. On the occasion complained of, do you find that an unprecedented wind was blowing? A. No.”
Certain subjects are presented as they must have been presented to the jury, by debate of the eVidence. The evidence will not be recited or discussed. The court concludes the jury was warranted in finding the engine set the fire. In the instructions, the sense in which the term “unprecedented,” as applied to the wind, was to be understood, was elucidated by stating the jural equivalent, “that it would not have been reasonably anticipated by defendant in the exercise of ordinary care.” Interpreted by the instruction, the 9th finding was sustained by the evidence, and the wind did not constitute an independent intervening cause of the fire which relieved the defendant of liability. The amount of the verdict is sustainable by the evidence.
The defendant proved that its fire-arresting apparatus consisted of what is called the master mechanic’s front end, the nature of which was described to the jury. Witnesses stated the equipment was “approved” and “standard,” and was generally used on coal-burning engines throughout the country. The defendant’s principal witness on this subject was cross-examined as follows:
“Q. What do you mean when you say this is standard equipment? A. The size of the mesh netting used on all engines. I do not know anything about other roads except the Frisco. Other roads may have different netting.
“Q. You are not able to say whether this is the latest or newest improvement, are you? A. No.
“Q. You are not able to say whether this is the latest or best improved equipment for engines in the way of spark arresters, are you? ... A. I am under the impression that it is the standard netting for most railroads.”
The defendant requested the following instruction, which was not given:
“You are instructed that, in equipping its engines for the prevention of fire, defendant was not required necessarily to adopt any particular appliances or the latest appliances or the best appliances for that purpose,', but was only required to adopt appliances of standard or approved pattern or construction for the prevention of the escape of fire from said engine, and to use ordinary care in maintaining and operating it.”
The court gave the following instruction:
“7. You are instructed that the defendant is not an insurer against loss by fire that may be caused by escaping sparks or cinders, and is liable for such fire, if at all, only when caused by the negligence of such company; and if it is shown that said defendant exercised ordinary care and prudence in the operation of the particular locomotive which it is claimed caused the fire, and that said defendant exercised ordinary care and prudence to prevent the escape of cinders by supplying and maintaining reasonably sufficient and proper appliances and equipment, then defendant is not liable, and your verdict must be in its favor.”
The defendant says the requested instruction should have been given to protect it from consequences of the cross-examination, whereby the plaintiff’s attorney fixed in the mind of the jury the notion of latest and best fire-preventing apparatus. If the requested instruction had been confined to what the defendant was not re-, quired to do, it might have been given. Instead of that, the instruction announced a rule which will not bear analysis.
The rule contended for would permit railroad companies to fix their own standard of duty in equipment, and would limit obligation to use ordinary care to maintenance and operation only. The court has considered this subject before. In Abbey v. Railway Co., 108 Kan. 88, 194 Pac. 191, the defendant proved that its cattle guards were standard guards of approved pattern in general use. The plaintiff proved that horses and cattle walked over the guards at will. The court said:
“Neither railroad companies nor cattle-guard manufacturers who succeed in having their product installed on railroads are permitted to establish standards.” (p. 89.)
In the Abbey case the statute established the standard. In this case the standard is found in the common law, and was well stated to the jury in the instruction which the court gave.
It avails the defendant nothing to argue that in cases of this kind the jury fixes the standard, and there may be as many standards as jury trials. It would be a fine thing, in these days when nothing is absolute, if our system of laws was so complete we c'ould find in it just rules to govern human conduct in all its relations. Since that is impossible, we follow the method which our legal history has demonstrated to be most serviceable in promoting social welfare. In certain fields there can be no rules in the strict sense of the term. There are standards only. Nuisance is a matter of degree. Negligence is a matter of degree. In such fields the law takes its standards from the common experience of common life, and permits the jury, subject to direction and correction by the court, to measure conduct by them. In this instance, a device which would allow no spark to escape would choke the draft, and the problem is to construct engines so they can pull trains without throwing too much fire. There must be a balancing of interests. The carrier is likely to be so engrossed with the importance of getting traffic over the road that it will not give due consideration to imminence of danger and magnitude of disaster portended by escaping fire. It will take chances. Therefore, to protect the public from greater risk than it ought to bear, the carrier must be answerable for observance of a measure of caution which its own self-interest had no part in determining. The law must fix the standard, and the one which the court stated to the jury is the external, objective standard to be observed generally when foresight and caution are demanded.
After the jury had deliberated several hours,-the court of its own motion withdrew instructions numbered 4 and 5, and read to the jury substitutes for them. The defendant argues the court was powerless to give the jury a different charge on any material issue after conclusion of argument, citing Foster v. Turner, 31 Kan. 58, 1 Pac. 145. The third paragraph of the syllabus in that case reads:
“After a jury has retired for the consideration of its verdict, and pending its deliberations, it may sometimes ask for further explanation or information, and the court may sometimes rightfully give the same; but the court would not in any case be justified in giving another full, complete and different charge to the jury upon any of the material questions involved in the issues of the case.” (p. 59.)
'The reason given for the decision was that, provious to 1881, the jury was instructed after argument of counsel. In that year the code was amended by placing instructions to the jury before argument of counsel. The court said:
“This was the only amendment made by the legislature to the section at that time. Hence the legislature evidently intended that this new provision should be obeyed.” (p. 63.)
The decision was rendered nearly forty years ago, when the minds of lawyers and judges were still dominated by that intense formalism which came near causing them to lose the respect of the people whom they serve. The succession of steps in. procedure was not considered as an aid to the attainment of a just result. No result, however just, was tolerated unless the steps had been taken one by one in the prescribed order, beginning with the designated foot. Rules of procedure are no longer regarded in that way. The purpose of the statute of 1881 was to give counsel opportunity to apply the declared law of the case in argument to the jury, and of course the statute should be obeyed. The statute was intended, however, to promote, and not to thwart justice, and was not designed to prevent the court from correcting an error, or clearing up an ambiguity, or supplying an omission, whenever that may be done without prejudice to substantial privilege. As this court indicated in the opinion in the case of Carter v. Becker, 69 Kan. 524, 77 Pac. 264, the district court has a large discretion in the matter of giving additional instructions after the jury has retired for deliberation; a judicious exercise of the discretion tends to sure and efficacious administration of justice; and only in the event of abuse, resulting in prejudice, will an exercise of the discretion be ground of reversal.
The third paragraph of the syllabus in the case of Foster v. Turner, 31 Kan. 58, 1 Pac. 145, is overruled.
The defendant objected to the substituted instructions, on the ground they were erroneous. The plaintiff needed a high wind in order to make out his case, and some of his witnesses were not sparing in use of superlatives in trying to express their conceptions of velocity of the wind. Since a strong wind was blowing, the defendant wanted one so high it would be unprecedented, but had very little evidence on the subject. It is said the instructions prevented the jury from considering the plaintiff’s evidence relating to velocity of the wind, in determining whether the defendant had overcome the plaintiff’s prima facie case of negligence, made by proving the engine set the fire.
As the case went to the jury, the defendant had three defenses: First, the fire was not proximate result of negligence on its part; second, the engine was properly equipped and managed; ,and third, the plaintiff was guilty of contributory negligence. The court dealt with these defenses in reverse order. Instruction No. 4, before and after modification, related to the burden resting on the plaintiff to establish his cause of action, and the burden resting on the defendant to show contributory negligence. Instruction No. 5, before and after modification, related to the plaintiff’s prima facie case of negligence, and the burden resting on the defendant to overcome that prima facie case. There remained the subjects of inevitable accident and intervention of the wind. Inevitable accident was' treated separately in instruction No. 9, and intervention of the wind was treated in instruction No. 14, whicli reads as follows:
"14. If you find from the evidence that fire was carried by the wind from defendant’s engine to plaintiff’s property, and that such wind was unprecedented, that it would not have been reasonably anticipated by defendant in the exercise of ordinary care, and that but for the unprecedented nature of the wind said fire would not have occurred on said occasion, then you shall return a verdict for the defendant.”
This 'instruction did not limit the jury to consideration of the defendant’s evidence only, and there is no basis for believing the jury so understood it'.
Original instructions 4 and 5 contain references to the subject of the fire not being proximately caused by defendant’s negligence. In connection with these references, the instructions used the expressions, “if it shall appear from the whole evidence,” and “unless you should further find by a preponderance of the evidence” — preponderance of the evidence having been defined to include the whole evidence. The subject of the defendant’s negligence as proximate cause was not germane to the themes of the instructions. • Injecting it into the instructions complicated and tended to confuse them. Omission of words from No. 5 made nonsense of it, and it was necessary to correct it. The opportunity was improved to clarify and simplify both 4 and 5, by taking" out the extraneous matter. The result was the logical scheme of instructions which has been described. The defendant objected to these modifications, on the ground issues were singled out and given undue prominence. What issues were thus exaggerated were not specified. The actual effect of the modification was to make the various issues equally distinct and equally prominent. What the defendant really complains about is that it lost the benefit of the cumulative effect of two statements, that all the evidence should be considered in determining whether its negligence was proximate cause of the fire, that is, in determining whether or not the wind was unprecedented, since the plaintiff offered none but the statutory evidence relating to equipment and management of the engine. The discussion of instruction No. 14 sufficiently disposes of this complaint.
The defendant contends the special findings are inconsistent. The jury was asked to state what particular employee was guilty of negligence, and what particular negligence certain employees were guilty of. (Findings 8 and 2.) Both answers were, “None.” The employee who claimed he inspected the spark-arresting device before and after the fire, testified it was in good condition. The argument is, the eighth finding included the inspector, whom the jury believed; if he had found anything wrong, and had not reported it, he would have been negligent, and the jury would have so found; since he was not negligent, and testified the apparatus was in good condition, it must have been so, and the defendant is entitled to judgment. Negligence in inspection was not an issue made by the pleadings or submitted to the jury. The issue to which the inspector’s testimony related was not sufficiency of inspection but sufficiency of the fire-arresting apparatus. The appliances were under investigation, not the inspector, and it may not be assumed, in order to destroy the integrity of special findings, that the court submitted, or the jury returned, a finding outside the issues. Regarding-the findings as within the issues, one relating to persons and the other to conduct, they are consistent with each other and with the.-.jury’s manifest dissatisfaction with' the inspector’s testimony.
It is said the jury convicted itself of inconsistency by acknowledging there was evidence enabling it to declare the engine was not equipped with proper apparatus, and then by declaring the evidence was insufficient to enable it to state in what respect the apparatus was defective. (Finding 3, and findings 1 and 4.) There was evidence from which the jury could infer the engine was not properly equipped. Live coals not only escaped, but escaped in such form and size they could be carried all the way to plaintiff’s barn, and still retain sufficient heat to ignite inflammable material there. Notwithstanding the speculative testimony of defendant’s experts, there was abundant evidence to show this actually occurred, and the categorical answer “No” was properly returned to the third interrogatory. The evidence was not sufficient to allow the jury to specify the particular defects in the equipment, and answers to questions 1 and 4 properly stated the fact.
Nothing else is presented of sufficient importance to require special mention, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Mrs. Flora M. Crosby brought this action alleging that she owed a commission of $1,400 to either C. P. Bolmar or William Quail, defendants, for procuring a sale of certain real estate, and she asked that the defendants litigate between themselves which was entitled to the commission.
Issues were joined between the defendants; there was a trial and a verdict and judgment in favor of Quail, from which Bolmar appeals.
' Mrs. Crosby owned business property on Kansas avenue known as the Rowley corner, which she listed, together with other property, with C. P. Bolmar on November 25, 1919. The Rowley property was priced at $55,000. The Farm Mortgage Trust Company was in the market for business property between 5th and 9th streets. Bolmar endeavored at different times to interest the company in the Rowley property and also offered other business properties which he had for sale or thought he could obtain the agency for. In February or March, 1920, William Quail procured from Mrs. Crosby the right to sell the Rowley property and another known as the Fullerton property. From that time, he was diligent in trying to sell to the mortgage company both properties or other property on Kansas avenue. At least two other real-estate agencies had the Rowley corner for sale and were endeavoring to sell it to the mortgage company. Both Bolmar and Quail submitted to the company different properties as well as the Rowley corner. On April 20, Bolmar saw J. E. Griest, secretary of the mortgage company, and again suggested the Rowley property: Griest asked him if he really had authority to sell the property. Bolmar produced the November letter from Mrs. Crosby and discovered that the offer was limited to thirty days, but he insisted that he had verbal authority from Mrs. Crosby extending his agency. Griest told him in substance that if he could sell the property for $55,000 he could go and see J. P. Slaughter, president, and Collingwood, one of the directors, and tell them that he, Griest, was in favor of buying. Bolmar did so and those officers spoke favorably of purchasing if certain terms could be agreed upon as to payments. Bolmar went at once to see Mrs. Crosby, who informed him that she had taken the property off the market and had written all the agents, including himself; and she handed him a carbon copy of the letters. His testimony is that he said to her, “I have been working on this thing ever since you sent me this letter in November. It seems to me kind of hard when I am almost on the eve of a sale to have it taken out of my hands.” He asked her for an extension of twenty-four hours in which to sell the property and she consented. He told her what he had done with the Farm Mortgage Trust Com pany and what they could do in the matter of payment. He testified that he said to her, “I will go down arid present it to them and believe these terms will be satisfactory, and you have given me twenty-four hours and that I am the only person — in giving me an extension, practically it is out of the market except as to me.” She said, “Mr. Bolmar, if any other of these agents who have this property for sale ask me for this extension of twenty-four hours, I will give it to them the same as I have given it to you.” He went to_Slaughter and Collingwood and informed them that she had accepted the proposition. They told him the board of directors was to meet the next day and asked him to be in his office about two o’clock. While the board of directors of the mortgage company was in session the next day he was called to the meeting; terms were agreed upon and a memorandum contract was signed by him, and the company’s check for $5,000 handed to him, which he carried to Mrs. Crosby within the twenty-four hours, and the sale was completed.
Quail testified in substance that in February he presented to Mr. Slaughter for the company four different properties on Kansas avenue,. including the Rowley corner, March 15. That Mr. Collingwood, vice president, thought it was too small and the price too high but told him they would take it up at the board meeting; that two or three days before the sale was made he was trying to get another property listed, and Collingwood and Slaughter promised that in case he did, they would look at it; that he “kept putting places up to them”; he didn’t know what action they would take when the board met; that the board meeting was not a special meeting to consider the Rowley corner only; he was getting all the properties he could to submit to them at that meeting as he understood they were going to pick a location that night. He never knew just when the meeting was to be held but it was in the near future; the first thing he knew about the property having been sold was when he read it in the morning paper after the sale had been completed by Bolmar. Mrs. Crosby had given him no terms on which she would sell; “she just said she wanted $55,000 for the property”; he was then asked:
“Q. Then whether you could have sold the property to the mortgage company depended upon what terms she wanted, wouldn’t it? A. Well, if I had the same show Mr. Bolmar had I could have found that out and if they had made me an offer on that property I could mighty soon have found out how much they would have to pay down and whether it would be accepted or not. I suppose he had to go to her to find out the same as any other real-estate man.
“Q. Did you have any idea about what the terms were? A. No, sir, because I did not have any.
“Q. Therefore, you couldn’t give them any terms on it? A. No, sir.”
Mr. Slaughter, president of the company, testified that he got his first notice of the Rowley property from Quail in February. “Between this time and the time we bought, he talked frequently with me about it and continued until the time the property was sold.” The board met and bought the property April 20. Mr. Bolmar was called to the meeting; did not know by whom; after he came an informal contract was entered into between Mrs. Crosby and the company; that when it became apparent that the board was going to enter into the contract it occurred to him that he had two friends that were trying to sell the property to the company and he thought they were equally interested, “and I said, 'Hold on,” or words to that effect, ‘Will Quail has been trying to sell this property to us and I think he is interested,’ and Mr. Bolmar stated that he was the only one at this time that had the property for sale. .. . . Then we went ahead and made the trade.”
He was inclined to think that some other real-estate men mentioned the Rowley corner “to us, but these two men were the ones that were most active in trying to sell it to us.” On cross-examination he testified that the company proposed to Mr. Bolmar to pay $5,000 earnest money and another substantial payment in thirty days and the balance as soon as title could be perfected; that the company had not submitted its terms to anybody before that meeting ; a provisional contract was entered into, which Bolmar took to Mrs. Crosby for her to sign, and returned with the information that she would accept it; that when they finally concluded to accept the property they closed the deal with Bolmar and executed the contract with him as Mrs. Crosby’s agent; that Bolmar stated at the meeting that Mrs. Crosby had given him twenty-four hours in which to sell the property.
“Q. That was one of the things that hurried you people up wasn’t it? A. Well, we arrived at the conclusion to buy and I suppose that might have had some influence.”
Clay Hamilton, attorney and director of the mortgage company,, testified that Mr. Bolmar was called to the board meeting after it was in session; the witness was present all the time until the meeting adjourned and didn’t hear anything said by Mr. Slaughter or anybody else before the resolution to purchase the property was passed in regard to Mr. Quail having anything to do with the sale of the property; they were all sitting around the table close together.
Mr. Collingwood, vice president, testified that he did not remember of anything interrupting the transaction nor of anything said about Mr. Quail and believed that if anything had been said they would have remembered it. Mr. Collingwood further testified that , after Bolmar had been sent for at the board meeting they advised him that if he could deliver the property on terms satisfactory to them the deal could be made. “Mr. Bolmar told me he had twenty-four hours in which to sell Mrs. Crosby’s property.” The witness informed the board at that meeting that the property would be withdrawn from the market. “I am not sure just how many hours- — -and that if they wanted to buy it at all that it was necessary to deal for it right then.”
J. E. Griest testified that he talked with Bolmar about purchasing the property and informed him that the board would have a meeting the next day and that if he really had authority to sell it he had better be on hand; that the board of directors first decided to purchase the Rowley corner a few minutes before the transaction was completed and when Mr. Bolmar was sent for.
“Q. You may state whether at that board meeting you heard Mr. Quail’s name mentioned? A. I did not.”
Mrs. Crosby testified that when Mr. Bolmar came to her house the evening before the directors’ meeting she told him that she had that afternoon written letters to the different agents who had this property listed, withdrawing it from the market; that Mr. Bolmar said he was sorry as he thought he had a purchaser and requested twenty-four hours more to consummate the deal, “so I told him I would do so. I also withheld the letters I had written to the others and mailed them the next day and Mr. Bolmar had twenty-four hours more, and within that twenty-four hours came and brought me $5,000 to bind the sale”; that the terms were satisfactory and the sale was consummated. She remembered about being called over the telephone by Mr. Quail but said she did not remember when it was — “it wasn’t a great while before the sale was made, but he called me over the phone and I told him the price of the property and of course it was understood if he could sell it or sold it why he had the privilege of doing so.” She testified that Mr. Quail never told her over the phone or any other way that the Farm Mortgage Company was a customer of his or was proposing to buy this property ; had never notified her of that fact.
There was introduced in evidence the check for $5,000 payable to C. P. Bolmar, agent for Mrs. Crosby; also a copy of the memorandum contract upon which the sale was consummated’.
There is no conflict in the evidence as to what each of the agents did to effect a sale. Each had authority to sell; each exhibited the property to the purchaser and urged a sale; each suggested other properties to the mortgage company as suitable for its purposes; there was no interference by Bolmar with the work done by Quail as in Gregory v. Kennedy, 82 Kan. 565, 109 Pac. 400, cited by appellee. As said in Votaw v. McKeever, 76 Kan. 870, 92 Pac. 1120:
“The real and controlling question is this: Which of these agents earned the commission for making this sale? . . . Who first called the attention of the purchaser to the property or who finally closed the contract by receiving a part payment of the purchase-price or who was most diligent in showing the premises to the purchaser are unimportant facts, except as they tend to support the controlling proposition.” (p. 875.)
Under the circumstances of that case it was held to be a question for the jury. But it was said that—
“The rule of law is that that agent is entitled to the commission who is the proximate, efficient and procuring cause of the sale.” (p. 876.)
It is true, as stated in the appellee’s brief, the fact that Bolmar actually closed the sale does not entitle him to the commission if Quail was the procuring cause of the sale. Until the day before the meeting of the directors of the mortgage company neither of these agents had earned a commission, any more than had the other agents who had been showing the same property to the mortgage company. It is said in the brief for Quail that the only thing Bolmar did was to close a sale previously worked up by Quail; that “the day before the board met, Bolmar stumbled on to Mr. Griest and went over to the board meeting; he kept Mr. Quail away from the board meeting by misrepresentations of fact, innocent or otherwise.” There is no testimony to sustain the contention that anything Bolmar did kept Quail away from the meeting. Good faith and fair dealing did not require Bolmar to notify Quail or the other agents that there was to be a board meeting or that the property was to be withdrawn from sale the next day, and that they could get an extension of twenty-four hours to sell the property; nor did good faith require that he inform Quail of the terms of payment which he had learned would be satisfactory to the mortgage company, and to Mrs. Crosby. When Bolmar stated at the meeting that Mrs. Crosby had given him twenty-four hours in which to sell the property and'that it would be withdrawn from the market at that time he stated the truth. He was the only agent who knew this fact or knew the terms upon which Mrs. Crosby would sell, and the terms of payment upon which the company would be willing to purchase. That Quail did not have “the same show that Bolmar had” was his own fault — not Bolmar’s.
The controlling fact, about which there is no conflict in the evidence, is, that save for the diligent efforts of Bolmar, the Rowley corner would have been withdrawn from the market before any of the several agents who had the property listed, and who had tried to induce the mortgage company to purchase it, could have effected a sale. Counsel for both parties admit that Bolmar struck while the iron was hot. Up to the time he made the strokes that counted, it may be conceded that he and Quail stood on equal terms, but without Bolmar’s efforts the property would have been withdrawn from sale before the minds of the parties were brought together; and no one can do more than speculate as to what might have happened if Bolmar had done no more than Quail did. Therefore, Bolmar, by producing a -purchaser ready, able and willing to take the property on terms acceptable to both parties, was the procuring cause of the sale, and as a matter of law is entitled to the commission. Upon the undisputed facts there was nothing to submit to the jury, and the court should have sustained the motion for a directed verdict. ‘
The judgment is reversed and the cause remanded with directions to enter judgment in favor of Bolmar. | [
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The opinion of the court was delivered by
West, J.:
The defendant appeals from a judgment recovered against him for damages for failure to thresh the plaintiff’s wheat.
The plaintiff lived in the north bottoms near Kansas City, Kan., and rented wheat land there, and the defendant owned a threshing machine. It appears that in these bottoms the soil is very rich and that after the wheat is put in shock, unless speedily threshed, dampness and growth of heavy vines usually cause considerable damage.
The plaintiff alleged that in the summer of 1918, he entered into an oral contract with the defendant that as soon as the plaintiff’s wheat was cut and ready for threshing the defendant would immediately begin to thresh the same and complete the work without delay. A résumé of this agreement was given by the plaintiff on the stand, that the defendant asked him if there was any ground in the bottoms that he could get:
“ ‘Now, if I could get ground down there, I would bring my thresher down there just as soon as the last bundle was cut, and would thresh it.’ So I talked with Mr. Reimer in regard to his field. The next day we made a deal. I talked to Mr. Reimer about it, and Mr. Reimer and I came to a conclusion as to what we would do which was afterwards presented to Mr. Myers. . . . Mr. Reimer, Mr. Myers and myself afterwards had a conversation with reference to that piece of land Mr-. Reimer and I rented from Mr. Stanley. ... I took Mr. Stanley out there and Mr. Myers told us if we would turn him over this ground to put in wheat, as soon as the last bundle was cut there he would be there with his machine to thresh it. He told me that if I would turn over this ground, he would come and thresh my grain as soon as the last bundle was cut, which I did, between 40 and 50 acres.”
He further testified that he finished cutting his wheat in July, shocked it well, but it was tangled and was heavy, well-grained wheat; that he had about 115 acres; that it was left shocked according to the custom there; that the defendant failed to come and thresh it and it turned out that he had moved away, and it was claimed he had sold his machine. The plaintiff stated he made an effort to get his threshing done; that he knew of one other machine in that part of the country but could not get it; that finally another man came with the same machine the defendant had had and did the work; that by that' time the wheat was growing over with vines and there had been rains and heavy dews; that the wheat had begun to sprout and it was very wet, and the price was greatly diminished. He finally got 1,200 bushels out of- the crop and he had 60 bushels too wet to sell to' the elevator. He testified to renting from Mr. Stanley 40 acres of the land, which was a part of the land the defendant afterwards put in wheat.
Henry Reimer testified that he had been growing wheat in these bottoms for the last few years and was present when some conversation was had between the parties in the presence of others about threshing the crop in the season of 1919. Myers said he would like to have some wheat land and witness and Mr. Grilley talked the matter over and came to an agreement:
“We got together over there by the threshing machine. When Mr. Myers was present, Mr. Myers, Mr. Grilley and I talked over the matter of the fall threshing of 1919. . . . And Myers said then that if he would get that land, we sure wouldn’t have to wait for a threshing machine — when the last bundle was cut he would be right down there and thresh for us. He got the land. I had 50 acres of the land rented. I would not have given up the land if Mr. Myers had not made the agreement to come and thresh immediately as soon as the last shock was cut. Mr. Myers got the land with the consent of Mr. Stanley who was present.”
Witness said that he rented 50 acres from Stanley, the same 50 acres Myers put in wheat.
“I rented that 50 acres of Stanley some time when we were cutting wheat in July. I rented it from him myself and I am the man that had the 50 acres that was finally given up to Mr. Myers. Stanley rented it to me. . . .
“Mr. Grilley also had some land down there that he rented from Stanley. Mr. Grilley rented about 43 or 45 acres from Mr. Stanley; I don’t know the exact number. Both what I had and what Mr. Grilley had was turned over to Mr. Myers.”
A. C. Bates testified, among other things, that he helped work in this wheat after it'was shocked; that he and several others worked together;
“When we first started, the vines was all that was necessary to be tore off. The wheat was in fairly good enough shape to thresh then. After the rain come, and the wheat got to growing, of course, it growed and matted together. Then we had to take and tear the shocks all apart, and scatter them around, so the sun would dry them out. We put in about two or three days doing' this; probably four days. The threshing was going on while we were doing this. Monday morning we got started to threshing, and we just threshed about three hours, and that was when the rain come; and from that time, then when we got started threshing again, it was between seven and eight days. I saw the first wheat that was threshed on that first morning. It was in good shape; ...
“I observed the wheat after it was threshed and all excepting what they threshed the first morning that the machine started on Mr. Grilley’s wheat,' was all wet wheat and sprouted. . . . That was all damp and sprouted. There was anyway two-thirds of the grain sprouted. This is true of all the wheat except the wheat that was threshed the first two hours.”
An elevator employee testified that he made a record showing the grade of plaintiff’s wheat, which tested 55 pounds to the bushel, moisture 12.2, graded 4 on account of test weight; that 55 pounds to a bushel represents a low quality of wheat; 4,720 pounds of Grilley’s wheat graded No. 4 and brought $2.06; the government price on No. 1 was $2.18, No. 2, $2.15 and No. 3, $2.12.
Jack Adair testified that he helped get the Grilley wheat ready for threshing and when they took the vines off the wheat it had sprouted and the wheat was damp all the way down through the shock; some of it would not go through the machine and they had to throw one or two or three bundles out of every shock.'
J. P. Jobe testified that he helped through the threshing of the Grilley wheat which was four or five weeks after the cutting was finished; that when the threshing was begun the wheat was in pretty fair shape, and then came the rain and it began to grow and sprout.
“The wheat was wet and sprouted and it choked up the separator. They would have to pull the straw out at the back end of the machine. I noticed that the'wheat was being blown out through the blower; the wheat went . through the blower and choked it.”
He judged between a third and a half of the wheat was wasted by the bundles thrown away. The plaintiff's son swore to substantially the same matter.
Mr. Stanley, who had charge of the land, testified about the conversation touching the renting of this land to the defendant;'that Myers and Grilley said they thought it would be the best for everybody if they could get this threshing machine down there first, and the witness said they made arrangements to rent the land to Mr. Myers and Kopfer.
“Mr. Grilley and Mr. Reimer told me that Mr. Myers and his engineer Kopfer wanted to rent some wheat land and they Reimer and Grilley, would relinquish the land I had rented to them to Myers and Kopfer on condition that Myers would thresh there first next year. ... I agreed on behalf of F. N. Clark to rent that available wheat land to Mr. Myers and Mr. Kopfer on the basis of one-third of the grain. . . .”
On cross-examination, he testified:
“During June or July, 1918, I rented the land to Reimer and Grilley that Kopfer and Myers afterwards put in.”
The defendant assigns as error the admission of incompetent evidence, the exclusion of competent evidence, the overruling of the demurrer to the plaintiff's evidence, the refusal of certain instructions, the giving of others and the denial of a new trial.
It is first contended in the brief that no valid contract was proved; that the arrangement testified to was too uncertain and indefinite to amount to a binding agreement, and authorities are cited touching the certainty and definiteness necessary to constitute a valid contract. We find no difficulty, however, in believing from the testimony that the defendant wanted some of this bottom land to put in wheat and agreed with the plaintiff if he would rent him something like 4.0 acres he would begin threshing as soon as the wheat was cut.
It is argued that there was no acceptance of the provisions shown, but the testimony indicates that the proposition came from the defendant and was accepted by the plaintiff and that an arrangement was made by which something like 40 acres of plaintiffs leased land was turned over to the defendant so that he might sow it in wheat.
The trouble seems to be that after getting the land the defendant sold his machine, and apparently went out of the threshing business, paying no attention to the contract by virtue of which he had secured the land.
It is further contended that no consideration passed from the plaintiff to the defendant to sustain the alleged contract, but one of the primer principles of contract law is that a promise is a good. consideration for another promise, and the plaintiff testified that the defendant promised to thresh his wheat promptly, in consideration of which the plaintiff promised to turn the land over to him, and did so.
Some difficulty is professed to be found in giving proper significance to the phrase “turn him over the land,” but the testimony made it quite clear that after the plaintiff had rented certain land he allowed the defendant'to step into his shoes as lessee, thereby “turning it over” to him, and allowed him to sow wheat as plaintiff intended to do.
It is further suggested that if the plaintiff was to transfer the right to the use of the land for the ensuing year he had no assignable or transferable interest, and in support of this suggestion it is pointed out that the defendant proceeded to lease the land of Mr. Stanley, agent of the owner. Very true, but Mr. Stanley testified that it was in pursuance of the agreement on the part of the plaintiff that the land which he had already rented to Grilley and Reimer should be turned over to the defendant.
It is argued that there is no evidential basis for the amount of damages assessed. It is pointed out that one of the plaintiff’s claims was for $2,616, or one-half the wheat worth $2.18, and another that about 1,200 bushels were damaged to the amount of $340, and it is argued that the $1,800 returned must have been based, or partly based, upon the first claim. From the evidence, however, the jury might well have concluded that had the contract been lived up to, and the threshing done as soon as the wheat was cut, a very different yield and price would have resulted to the plaintiff, and the testimony touching the result of the delay, the grade of the wheat, its dampness and its price afforded substantial basis for the verdict returned.
The objections to certain rulings on evidence have been examined and considered, and we find no materially prejudicial error therein. The complaint that Mr. Stanley was permitted to state that he had rented the land to Myers that he had previously rented to the plaintiff and Reimer, who “relinquished” it, is not serious in view of the fact that he had already gone all over this matter, giving in substance the conversations from which these conclusions as to “renting” and “relinquishing” are fairly to be drawn.
Finding no error affecting the substantial rights of the defendant, the judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
In an action against her husband to recover on certain notes he owed to a bank, Bertha P. Moore was garnished. Her answer denied that she was indebted to her husband. The bank filed exceptions to the answer. The issue was tried by the court and judgment rendered in favor of the garnishee, from which the bank appeals.
The Moores lived in Oklahoma on an eighty-acre farm which was their homestead. The title was in the husband. On December 27, 1919, they sold the land for $3,400. About ten days after the sale Moore moved with his family to Chetopa, Kan., where they have since resided. The purchaser testified that Mr. Moore refused to accept a check for the purchase money and insisted upon cash before he delivered the deed; that he paid the money, $3,400, to Moore and saw Moore give his wife the money. Bertha P. Moore, the garnishee, testified in substance: They had resided on the farm in Oklahoma eight years; they had a couple of prospective buyers before it was sold and she talked with her husband about it before the sale; she told Mr. Moore she would not sign the deed unless he promised to turn the money over to her; he said all right, he would do that; she later learned of the sale to Mr. Sellers; this conversation was about two weeks before the sale was finally consummated. When she learned of the sale she had the same conversation with her husband. They had eight children there living with them on the farm; this farm was all'the property they had except some stock. She was at. the First National Bank of Yinita when the deal was closed up; the purchaser counted out the money to Mr. Moore, and he counted it out to her. She gave her husband $300 of the money to pay some bills and a note for $110 that she had signed; she kept the money in her possession, placed some of it in the First National Bank of Chetopa and afterwards purchased negotiable drafts with it. One purpose in purchasing drafts was to prevent the creditors from getting it.
On cross-examination the wife was asked:
“Q. You claim that you had an arrangement with your husband to the effect that he was to turn the money over to you for the purpose of placing it in another homestead? A. Yes, sir.
“Q. That was the only arrangement you had with your husband? A. Yes, sir..
“Q. You had not made up your mind then as to where you would buy another homestead? A.- No, sir.”
She also testified that her husband was not indebted to her at that time.’
The plaintiff bank contends that conceding the money from the sale of the homestead was exempt in Oklahoma, it lost its exempt character when Moore and his family became nonresidents of that state and moved to Kansas. Decisions of the supreme court of Oklahoma are cited holding that the homestead laws of that state apply only to a bona fide resident there and that a permanent removal from the state constitutes an abandonment of the homestead. No one will doubt the correctness of those decisions, and it may be conceded that money derived from the sale of a homestead in Oklahoma is, when brought into Kansas no longer exempt under the laws of Oklahoma. The plaintiff therefore argues the case as one involving the exemption laws and insists that the garnishee must rely either on the exemption laws of Oklahoma or of Kansas in order to show a title to the money turned over to her by the husband. The testimony, however, shows that at the time of the sale of the Oklahoma farm the Moores had no intention of leaving Oklahoma, and attempted to rent property in Oklahoma, but being unable to do that they shortly afterwards changed their minds and became residents of Kansas.
Mrs. Moore’s contention is that since the money was the proceeds of property exempt in Oklahoma under the laws of that state, her husband had a perfect right to give it to her; and since the money became hers before the family lost their residence in Oklahoma, it is still hers and not subject to garnishment for a debt of her husband. The courts of Oklahoma have followed the rule long ago declared in this state that a debtor may make such disposition as he pleases of the proceeds of exempt property without committing a fraud upon his creditors. (Hixon v. George, 18 Kan. 253; Sproul v. Atchison National Bank, 22 Kan. 336; Citizens’ Bank v. Bowen, 25 Kan. 117; Hopper v. Arnold, 74 Kan. 250, 86 Pac. 469.) The Oklahoma cases are: Kershaw v. Willey, 22 Olda. 677, 98 Pac. 908; Cook v. Carter, 61 Okla. 62, 160 Pac. 877; Alexander v. Bobier, 166 Pac. 716.
In Kershaw v. Willey, supra, it was said:
“The spirit of the homestead law is to protect the wife and family against the improvidence of the head of the family, as well as against urgent creditors, and no one can complain if the wife of an insolvent husband refuses to-sign a deed for the sale of the homestead until her husband agrees that the money procured as the proceeds of such sale may be transferred to her, and the execution of such deed by her is ample consideration to support the transaction.” (Syl. If 2.)
The plaintiff insists that “Bertha P. Moore claimed upon the garnishment trial that such money, being derived from the sale of a homestead in Oklahoma, was exempt and the trial court agreed with that contention and discharged the garnishee.” True, Mrs. Moore claimed and proved that the proceeds of the sale of the homestead were exempt under the Oklahoma statute and decisions at the time the sale was made; but her claim goes farther than that. Her evidence shows that she refused to sign the deed except upon the promise of her husband that he would give her the money; that in pursuance of that arrangement the sale was effected, and he gave her the money, which thereupon became her property, and of course not liable for debts of the husband. The exemption laws of Kansas have no application. From the time the money became hers, she does not need to rely upon any statute of exemptions.
We do not think the fact that she and her husband understood that she intended to use the money to purchase another homestead somewhere affects her right to claim to be the owner of the money. Nor do we think that a creditor of her husband can be concerned or the rights of such creditor affected by her failure within a reasonable time to invest the money in another homestead.
The bank insists that it was error to overrule the objection to the testimony of Bertha P. Moore on the ground that it called for a conversation between her and her husband. She was the real party in interest in the garnishment proceedings. (Civ. Code, § 239.) Under this provision the proceedings are deemed an action against the garnishee and defendant as parties defendant. Had she lost upon the issue of the exceptions to her answer, costs might have been taxed against her in favor of the bank. (Civ. Code, § 247.) We think the objection was properly overruled and that the testimony was competent.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is a friendly action to obtain a judgment declaring the meaning of section 1649 of the General Statutes of 1915. The district court held that the defendants had power under that statute to contract debts for the renewal and replacement of electrical equipment to be paid for out of future proceeds arising from the sale of electricity, there not being sufficient funds on hand to pay the obligation created. The plaintiff appeals.
The action was tried on an agreed statement of facts, as follows:
“It is hereby stipulated by and between plaintiff and defendants above named, that the sole question at issue herein, is whether or not Section 1649, of the General Statutes, Kansas, 1915, to wit:
“‘1649. Unlawfully creating debt: Payment of warrants, 617. No indebtedness shall be created by the Board of Commissioners, nor order or warrant of indebtedness of the city drawn or issued on the treasury in payment of any indebtedness, to exceed the amount of funds on hand in the treasury at the time, except for building side walks, or supplying and erecting lamp-posts, or where provision has been made for the issuance of bonds. And any member of the board of commissioners who shall knowingly vote for, or in any manner aid or promote the passage or adoption of an ordinance, legislation or other act of said board creating an indebtedness, or drawing any order or warrant on the treasury in payment of any indebtedness which exceeds the amount of funds actually on hand in the treasury at the time for such purpose, except for building sidewalks or supplying and erecting electric lamp posts, or where provision has been made for the issuance of bonds, shall thereby be guilty of malfeasance in office, and such action shall, ipso jacto, vacate his office, and he shall be liable on his official bond for such malfeasance. . . .’
—prohibits, and if not, whether or not the powers conferred by law authorize the Board of Commissioners of the City of Coffeyville, Kansas, to at once under the facts purchase the machinery described in the pleadings, for its electric light plant, and that this case may therefore be submitted to the court upon the following agreed statement of facts:
“1. Coffeyville; Kansas, is a city of the first class under 18,000 population, operating under what is known as the Commission form of Government; that Frank McClellan is the duly qualified and acting Mayor, and W. L. Marcy and Oscar Jensen are the duly qualified and acting Commissioners.
“2. That the City of Coffeyville has for a number of years owned and operated a Municipal electric light plant and has been during said time, and now does, furnish electric -current to its inhabitants for light and power. That it also operates and owns a water works system and the power for said system is supplied by the municipal electric light plant.
“3. That the expense of the machinery the City of Coffeyville • contemplates to purchase is the sum of $46,350.00 and that the city has on hand in its electric light fund, available at this time, to apply on said purchase the sum of $30,000.00.
“4. That the entire cost of said machinery it intends to purchase is $46,-350.00 which sum is to be paid out of the electric light fund derived from revenue from customers of electric current, and it is intended that no part of said cost will be paid out of any fund raised by tax levy and the contract will so provide.
“5. That the City of Coffeyville has bids on file from supply houses, providing that the entire cost be made in payments out of the electric light fund as it accrues from the sale of electric current and it is not intended that any warrant be drawn on the treasury until the money to pay the same is actually on hand.
“6. That the' machinery which the board of Commissioners of the 'city of Coffeyville desire to purchase is for the renewal and replacement of old and antiquated machinery, which on acount of constant use for over fifteen years, has become inefficient, worn out and undependable; that on account of an unexpected breakage, the plant being in such a condition, it is liable to, at any time become out of order and unable to supply the necessary electric current for its customers and its streets, and for its water works system.
“7. That in the judgment of the Board of Commissioners of the City of Coffeyville, Kansas, it is necessary that the machinery be immediately purchased to insure more efficient and economic service to its customers, and further that to delay the purchase thereof until it actually has on hand a sum sufficient to pay for the same will, in their judgment endanger the service actually necessary to be rendered, and subject the city to claims for damages.”
So much of the statute as is involved is set out in the second paragraph of the agreed statement of facts. That statute prohibits the board of city commissioners in cities of the first class from creating an indebtedness or drawing any order or warrant to pay an indebtedness to exceed the amount of funds on hand in the treasury at the time. It is agreed that the expense of the contemplated purchase will be $46,350 and that the city has only $30,000 on hand available for that purpose. Under these circumstances, the city can contract for the expenditure of $30,000 and no more.
The judgment is reversed, and the trial court is directed to enter judgment enjoining the defendants from contracting an indebtedness for the purpose named and from issuing orders or warrants therefor in excess of $30,000, until funds are provided therefor. | [
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The opinion of the court was delivered by
Dawson, J.:
The state brought this action in the district court to challenge the authority of the defendant to exercise the official powers of a director of a school district.
It appears that school district No. 101 in Kingman county was organized in August, 1919, and that the defendant was elected director at a special school-district meeting called by the county superintendent pursuant to such organization. At the regular annual meeting the. following year, April 9, 1920, a successor to defendant was elected; but defendant declined to forego and surrender the rights, duties and privileges of his office, on the ground that his term had not expired. To settle this question this action was begun.
'The trial court gave judgment for the state, declared the defendant to be a usurper, and ousted him. He appeals, and directs our attention to the statutes governing the election of school-district officials. The state does likewise. The question may b.e of some importance, but it is by no means difficult.
Section 8892 of the General Statutes of 1915 provided that when a school district was organized the county superintendent should call a special district meeting for the election of school-district officers, and for the transaction of such business as is prescribed by law for special school-district meetiúgs.
The regular time for the election of school-district officials is on the second Friday in April of each year (Gen. Stat. 1915, § 8907), and one member of the trio constituting the district school board should be elected thereat — the legislative plan being that changes in the personnel of the board should only be made gradually, so that there may always be some persons on the school board who are familiar with the school district’s affairs. To that end it was provided, in section 8950 of the-General Statutes of 1915, chapter 122, Laws of 1876, that beginning with the year a. d. 1874 a director should be elected for three years, a clerk for two years, and a treasurer for one year; and that thereafter the terms of such officials should be for three years. By this plan only one member of the board is to be elected each year, except in case of vacancies which do not now concern us. It was also provided in the same act (Gen. Stat. 1915, § 8909) that if the time for holding a regular annual school-district meeting was suffered to pass without such meeting or election, that a-special meeting might be called and officers chosen thereat, who should hold their offices until the next regular annual meeting, but no longer, if their successors were then elected and qualified as the law intends.
From this it appears that the legislature has outlined a consistent and uniform plan for selecting school-district officials and defining their terms. If elected at a regular annual meeting they hold for the full term, or in case of vacancies for the balance of such full term, in accordance with the scheme for uniformity outlined in the act of 1876. If not so elected, but chosen at a special district meeting, all such officials hold only until the regular time for choosing district officers — the next succeeding regular annual school-district meeting on the second Friday in April. Surely this determines the present question.
But an argument is made that the officials chosen at a special district meeting called at the organization of a new district justifies the application of some other rule, or a different construction of the statutory rules quoted above. If there was a special statutory rule governing this particular matter there would be nothing for us to do but follow it; but it seems hardly proper to make a judicial distinction between officers.of a new district elected at a special meeting and officers of an old district thus elected, when the legislature itself did not attempt to make such distinction. At the time this act was adopted, in 1876, the matter of organizing the various subdivisions of the state such as counties and townships (as well as school districts) was in full vogue, and in these analogous cases the county and township officers selected in the first instance only served until the next regular election. (Comp. Stat. 1879, § 1366.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
This is the third appeal in this action, which was to recover damages for injuries alleged to have been caused by a performer sliding down a wire rope at the Electric Theatre. The first trial resulted in a hung jury, the second in a verdict for the plaintiff for $4,000, and the third in a verdict for $5,000.
The two complaints relied upon in the defendant’s brief are the refusal of the court to permit the witness Harmon to be further cross-examined in regard to his motive for testifying for his wife, and in allowing Doctor Harms to describe the death scene of the plaintiff’s grandchild.
William Harmon is the husband of the plaintiff, and after testifying about her condition after the injury, and after admitting that he sued her for a divorce in 1919, -and made an affidavit in which he charged her with neglect of duty and with certain other faults, afterwards sued the defendant to recover damages on account of her injury. He was asked the somewhat oratorical question:
“Q. Why do you say, you, a man of health and a strong man, suing for $5,000.44 damages, suing this theatre company, and knowing that her — that this condition was due as you claim in your petition when you filed that poverty affidavit, due to her injury, were you unmanly enough to sue your wife for divorce on that account? A. Well, I did it.
“Q. You did that? A. Yes, sir.
“Q. And you count yourself a man? A. I think I am.
“Q. Now you are testifying in her favor, aren’t you, to get money from the Electric Theatre Company?”
—and to this question an objection was sustained. If from the examination and cross-examination shown by the record the jury were not thoroughly competent to discern and determine why he was testifying in favor of his wife, an answer to this question would have been of no benefit to them whatever.
The limits of proper cross-examination are usually within the discretion of the trial court, and we deem the ruling a proper exercise of that discretion. (Sumner v. Blair, 9 Kan. 521; The State v. Pfefferle, 36 Kan. 90, 12 Pac. 406; Hamilton v. Miller, 46 Kan. 486, 26 Pac. 1030; The State v. Ross, 77 Kan. 341, 94 Pac. 270.)
Touching the criticised evidence of Doctor Harms it may be said that after he had described the condition of the plaintiff after her injury, and after stating that he had examined her-since that time, and had taken care of her for several months, he was asked if during the fall of 1918 he called at the home of her daughter, and said that he did; that her child was seriously ill with pneumonia and died. He described how the plaintiff picked up the child after the doctor told her she was dying, that the plaintiff used her left arm and the child dropped back in the bed, and she then picked it up with the right arm and attempted to blow breath into her. An objection was made to this testimony, stating that-as it was given in the presence of the jury the plaintiff began to weep, and cofinsel asked that the jury be discharged, to which it was replied that the testimony was referred to merely to show the condition of the plaintiff’s left arm. The objection was overruled. It is urged that this testimony of Doctor Harms caused the plaintiff to weep and become hysterical in the presence of the jury, but we find nothing in the record to indicate any excessive outburst of emotion. We do not regard the average jury as, and cannot assume those impanelled in this case to have been, more sentimental than average men, and average men are sometimes moved by compassion at a plethora of tears, and sometimes become quite unsympathetic. Considering the testimony touching the plaintiff’s' injury, and the course of the litigation, we find no evidence of passion or prejudice on the part of this the third jury which sat in the case.
The other assignments of error are without merit, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action to recover damages for the alleged breach of a memorandum of agreement pertaining to certain bonds. The trial court overruled defendant’s demurrer to the petition, and he has appealed. The instrument sued on reads as follows:
“Memorandum of agreement entered into this 13th day of February, 1922, by and between M. R. Amerman of Wichita, Kansas, party of the first part, and The Brown-Crummer Investment Company, of Wichita, Kansas, party of the second part.
“Whereas, the said M. R. Amerman, now has under contract the construction of certain street improvements of the city of Ponca City, Oklahoma, consisting of the following street improvement districts: 13, 16, 17, 22, 24 and 25, the cost of which work is approximately $300,000; and
“Whereas, said M. R. Amerman desires to sell the bonds to be issued and delivered to him in payment of such work to The Brown-Crummer Investment Company under the following terms and conditions:
“Said Amerman agrees to deliver to the Brown-Crummer Investment Corn pany, at Wichita, Kansas, 90% of the bonds covering street improvement districts 13, 16, 17, 22 and at the price of 80 cents and accrued interest, on the dollar, said Brown-Crummer Investment Company having the right to select the 90% portion of said issues as desired by it.
“Regarding the approximately $100,000 of bonds to be issued to cover the cost of street improvements, districts 24 and 25, the said Amerman agrees to deliver all of the bonds of said issue upon the following conditions:
“Said Brown-Crummer Investment Company shall pay to said Amerman, the price of par and accrued interest for approximately 60% of such bonds, being the third, fourth, fifth, sixth, seventh and eighth maturities. The first, second, ninth and tenth maturities of such bonds, or approximately 40% thereof, shall be deposited with The Brown-Crummer Investment Company, in trust, however, as follows:
“If there are any delinquencies in the payment of any of the bonds comprising the 60% portion described above, sufficient of the funds collected from the 40% portion of said bonds shall be turned over to The Brown-Crummer Investment Company to be applied absolutely to the payment of such delinquencies. In case any delinquent payments of said 60% portion of bonds are eventually paid by the city, the amount thereof is to be returned to the trust fund at the time of such payment.
“At the expiration of the period when all of the bonds comprising the 60% portion have matured and have been paid, the bonds or proceeds remaining from the 40% portion shall be divided equally between said Amerman and The Brown-Crummer Investment Company.
“The Brown-Crummer Investment Company agrees to pay said Amerman interest at the rate of six per cent (6%) per annum on his one-half equal portion of said fund so held in trust by it.
“It is understood that all of the bonds above described shall be 6%, 1 to 10 year optional bonds, issued under the laws of Oklahoma, and are to be delivered by October 1, 1922, all of which bonds are to be accompanied by complete transcript of the proceedings, the approving opinion of G! A. Paul, attorney, Oklahoma City, and shall also be subject to approval as to legality by James G. Martin, attorney, Wichita, Kansas.” (Concluding paragraph with signatures.)
The petition alleges that the bonds issued by district 22 were delivered; that “No bonds from districts 13, 16 and 17 were ever delivered by defendant to plaintiff, and defendant has at all times failed, neglected and refused to deliver to plaintiff any bonds covering said improvement districts 13, 16 and 17, although plaintiff has often demanded delivery thereof.” There were further allegations with respect to the statutes of Oklahoma with reference to improvement bonds; that the improvements were made by districts with which both plaintiff and defendant were familiar; that the amount of bonds which should have been delivered to plaintiff for districts 13; 16 and 17 was $136,131.17; that they were at the time of the value of one hundred cents on the dollar and accrued interest; and that by reason of the neglect, failure and refusal of the defendant to deliver the bonds, plaintiff has been damaged in the sum of $27,226.23, for which sum plaintiff prays judgment with interest' since October 1,1922.
It is contended on behalf of appellant that plaintiff’s petition fails to state a cause of action for the reason: (1) That the portion of the “memorandum agreement” upon which plaintiff endeavors to predicate its action is unilateral and cannot form the basis of this action by plaintiff. (2) There is no allegation that bonds for improvement districts 13, 16 and 17 were ever issued, or issued and delivered-to defendant. (3) And in any event, the petition does not allege that plaintiff was at any time ready, able and willing to take the bonds.
Examining the memorandum of agreement it will be noted that the provisions therein with respect to bonds covering improvement districts 13, 16, 17 and 22 are quite different from the provisions concerning bonds to cover the- cost of street improvement districts 24 and 25. As to the bonds for districts 24 and 25, there are specific covenants that defendant agrees to deliver them, and that the plaintiff shall pay defendant for them at a stated price, and as to some of them a sort of trust agreement is provided. There are no such mutual covenants with respect to bonds covering street improvement districts 13, 16, 17 and 22. As to these, there is a covenant of defendant to deliver them to plaintiff, but there is no covenant on plaintiff’s part to receive and pay for them. The parties knew how to make mutual covenants, for they did so with respect to the bonds for districts 24 and 25. Hence, the fact that they did not do so with respect to the bonds for districts 13, 16, 17 and 22, indicates a clear intention not to have mutual covenants with respect to them. The provisions, therefore, with respect to these bonds are unilateral (Van Deren v. Heineke & Co., 122 Kan. 215, 252 Pac. 459, and cases there cited), and certainly can amount to nothing more than an offer on defendant’s part to deliver to plaintiff such bonds on certain terms. (See Williston on Contracts, §§ 13, 25.) Only indirectly, if at all, does the petition allege that plaintiff accepted such offer. There is an allegation that defendant “has at all times failed, neglected and refused to deliver plaintiff any bonds covering said improvement districts 13, 16 and 17, although plaintiff has often demanded delivery thereof.” When we consider that the petition in this case was filed two days less than five years after the memorandum agreement was executed it will be seen that these allegations are vague and indefinite as to any time and manner of accepting an offer, treating the provisions respecting them as an offer on behalf of defendant, and the petition lacks .any specific allegation that plaintiff was ready, able and willing to buy the bonds on the terms proposed at any specific time. But we pass these contentions of appellant without more careful analysis, for the reason that we deem the second point argued by appellant as being well taken and decisive of this appeal.
Examining the written instrument we are forced to inquire, What bonds were the parties having a memorandum of agreement about? The instrument recites that defendant has under contract the construction of certain street improvements, “and whereas, said M. R. Amerman .desires to sell the bonds to be issued. and delivered to him in payment of such work.....Said Amerman agrees to deliver, . . .” etc. It is clear this memorandum of agreement related only to “bonds to be issued and delivered to” Amerman. It did not relate to any other subject. Now there is no allegation in the petition that the bonds for street improvement districts 13, 16 and 17 were ever issued and delivered to Amerman. It is conceded in the brief of appellee in this court that bonds for these improvement districts were never issued. It therefore follows that the subject matter of the memorandum of agreement never came into existence. Their existence was, of course, essential to any sale and transfer of them by defendant to plaintiff. Appellee’s answer on this point is that this is a matter of defense. This answer -is not good. Even if the written instrument be construed as a binding contract, with mutual obligations for defendant to sell and deliver these bonds to plaintiff, and plaintiff to accept and pay for them; or, if it be construed as an offer on the part of defendant to sell them to plaintiff upon certain terms, which offer had been properly and in due time accepted, still the subject matter of their contract is “the bonds to be issued and delivered to” defendant. Before plaintiff could maintain an action either for specific performance or for damages for failure to perform, it is essential that it allege and prove that the bonds were in fact issued and delivered to defendant, and that- he had failed to deliver them to plaintiff. (See House v. Faulkner, 61 Tex. 308, where a similar instrument was construed.) In its brief appellee suggests that the fact that the bonds were not issued may have arisen from some fault or dereliction of defendant. There is no allegation of this kind in the petition and nothing in the record upon which to base such an argument. We are unable even to see how that would be material in so far as this memorandum of agreement is concerned. If such a situation existed, it is possible plaintiff might have predicated some kind of an action thereon in tort, although it is difficult from anything suggested, even in the briefs, to see how that might have been done, and we need not further speculate on it, for this action is not founded in tort; it is predicated on this memorandum of agreement, and plaintiff's action must stand or fall upon its terms. Since the terms of this instrument relate only to bonds to be issued and delivered to defendant, and since it is conceded that no bonds were in fact issued or delivered respecting improvement districts numbers 13, 16 and 17, it necessarily follows that plaintiff has no cause of action by reason of any failure of defendant to deliver to plaintiff such bonds. With this view of the case the litigation may just as well end.
The judgment is reversed, with directions to sustain the demurrer to the petition. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action against the board of county commissioners of Lyon county to recover damages occasioned by a defective bridge and approach thereto, particularly with reference to the guard rail, and involves the question of the statute of limitations and the sufficiency of the evidence of the required five days’ notice of such defect to the chairman of the board. The answer was a general denial and a plea of contributory negligence, and the reply was a general denial.
An objection was made by the defendant at the beginning of the trial to the introduction of any evidence because the cause of action was barred by the two-year statute of limitations. The court reserved the ruling on the objection and proceeded with the introduction of evidence until the plaintiff rested. The defendant then filed a demurrer to the evidence and reminded the court of the objection to the introduction of evidence, the ruling on which had been re served. In the further consideration of the objection which followed, the attention of the court seemed to be centered upon the regularity and sufficiency of the service of summons upon the defendant, so that if the first attempt at service was not good the case would not be deemed as commenced within the period of two years from the time of the injury. After hearing evidence as to the service, because the record of such was lost and incomplete, the court sustained the objection to the introduction of evidence, because the action was not commenced within two years after the date of the injury. Counsel for defendant then requested the court to rule upon the demurrer at the same time. Thereupon the court sustained the demurrer to the evidence upon two grounds- — -because the action was barred by the statute of limitations, and because the evidence did not disclose the statutory knowledge of, or notice to, the chairman of the board. The motion for a new trial filed by plaintiff was overruled, and the plaintiff appeals.
It was error to sustain the objection to the introduction of evidence, because an action against a county for damages on account of a defective bridge is a liability created by statute, and the two-year statute of limitations does not apply.
“Under the statute providing that ‘an action upon a liability created by statute, other than a forfeiture or penalty’ can only be brought within three years, and ‘an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated,’ only within two, an action against a county based on injuries due to a defective bridge falls within the former classification — it is one upon a liability created by statute and the period of limitation applicable to it is three years.” (Hollinger v. Dickinson County, 115 Kan. 92, syl., 222 Pac. 136.)
It is said the three-year statute was not mentioned in this connection in the trial court and therefore should not be argued on appeal, but that is not the real question. The dates in the petition show it is fully within the three-year limit, and, of course, no one would invoke that statute under such circumstances. The only question before the trial court was whether or not the action was barred by the two-year statute, and, since it is not applicable to this kind of a case, the action was not and could not be barred by it.
The ruling of the trial court on the demurrer to the evidence was consistent with the ruling on the objection as to the first ground and erroneous for the same reason as on the earlier ruling. Appellant urges that the second ground given by the court for sustaining the demurrer to the evidence is not good, because there was certainly enough evidence as to the actual knowledge of, and notice to, the chairman of the board to go to the jury, and if not controverted was sufficient to sustain a verdict. We concur in this view of the evidence as contained in the abstract, especially in the light of the following Kansas decisions to the effect that knowledge of the condition brought home to him by actual notice is knowledge of the alleged defects: Sims v. Williamsburg Township, 92 Kan. 636, 141 Pac. 581; Watkins v. Harper County, 95 Kan. 166, 168, 147 Pac. 822.
“Held, that the latter portion of the instruction is not open to the objection that it authorized a finding of liability upon constructive notice; and that under the circumstances of this case, knowledge of the conditions, brought home to the trustee by actual notice, was knowledge of the defect which plaintiff claims caused the injury.” (Dubourdieu v. Delaware Township, 106 Kan. 650, syl. ¶ 6, 189 Pac. 386.)
Our conclusion is that the demurrer to the evidence should have been overruled on the second ground as well as the first, on the theory that the chairman of the board had an actual knowledge of the alleged defect, viz., the need of a guard rail on the wing wall if the wing wall was a part of the bridge, or some protection or warning to the traveling public of the dangerous condition of the place if it was only a part and portion of the highway.
“It was a question of fact for the jury and not a question of law for the court whether or not a highway with a stone retaining wall along the side next to a steep creek bank was defective for want of a barrier of some kind to check or restrain frightened horses from going over the wall.” (Sims v. Williamsburg Township, supra, syl. ¶ 1. See, also, Dent v. Jefferson County Comm’rs, 118 Kan. 519, 235 Pac. 873.)
The ruling and judgment of the trial court are reversed and the cause remanded, with instructions to overrule the demurrer to the evidence and grant a new trial. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This controversy originated in a proceeding to condemn land belonging to Phillip Sicks, deemed necessary to the erection of a viaduct where a highway crossed a railroad, and to recover the damages sustained. At the conclusion of the proceedings, including a trial in the district court as to damages sustained, an award of $2,000 was made to Sicks, from which the county commissioners appeal.
Sicks, it appears, owned a farm' alongside of a state highway which passed in front of Sicks’ home near which was a grade railroad crossing. It was proposed to improve the highway and federal aid had been allowed for the project on condition that the grade crossing should be eliminated. To accomplish this it was deemed necessary to build an overhead crossing called a viaduct. The county commissioners made an order approving the plan, and finding that more land was necessary than was included in the highway the commissioners proceeded to condemn land owned by Sicks. A view was made by the commissioners after notice had been given to landowners. The plaintiff 'was present when the view and a partial assessment of damages were considered. The commissioners determined that Sicks was entitled to an award of $184.20 for two small wedge-shaped tracts of land taken, and the further sum of $768 for dirt taken to be used in building the viaduct. The allowance on the dirt item was on the basis that 12,800 yards of earth would be taken, and the value was fixed at six cents per yard. When these allowances were made the commissioners modified the original claim filed by Sicks by segregating and interlining in it the awards made on the two items, and entering a total of $952.20. A warrant was issued in favor of Sicks for that amount. When Sicks learned of the award made he protested and refused to accept the warrant which had been issued to him. After the original claim was filed Sicks presented a claim for $15 for the loss of a fence, and after-wards filed a further claim of $6,000 for damages to the land not taken. When the'award was made for the two items some negotia tions were had between the commissioners and Sicks as to additional damages to the land adjoining the viaduct and not condemned or taken. An agreement was then made that the allowances on the two items of damage for which a warrant was issued might be taken down by Sicks and another owner without prejudice to plaintiff’s claim for additional damages to land not taken. The commissioners caused to be entered on the journal the following order:
“It appearing that C. C. McCarty and P. H. Sicks, both of whom were awarded certain sums as the value of the lands taken and damages to the adjoining land, desire to accept said sums so awarded and to withdraw the same with the understanding that their receiving the money'would not prejudice their rights to claim additional damages to the lands adjoining the said tracts so taken and from which dirt was to be removed.”
In accordance with the agreement the check for the partial allowances for the two items was accepted by Sicks, and the further allowance for damages for the part of the farm not taken was left for future consideration. Sicks was informed by the commissioners that the taking of the award made would be no bar to a claim for other damages. The claim for the additional damages was laid over by the commissioners from time to time from December 2,1924, until August 4, 1925, and several other continuances were ordered by the board on the ground that the viaduct had not been completed, apparently on the theory that the extent of the damages could not be ascertained until the viaduct had been built. When the matter of further damages was taken up by the commissioners an additional allowance of $300 was made, which was not accepted by Sicks, and the controversy was then transferred to the district court where it was tried with the result already stated.
The commissioners contend that the failure of Sicks to take an appeal from the first award waived the right to any further claim for damages, and that the award stood as a final determination of the subject of damages sustained by the condemnation. We cannot agree with this contention. Only a partial award was made by the commissioners. Only two items of the damages sustained were considered and determined and consideration of other damages was postponed. The evidence sufficiently shows that the duty which devolved upon the commissioners was not complete when the partial award was made. The proceeding was continued for a future hearing and decision. The commissioners recognized that the proceeding was not finished when it later increased the allowances of damages to the amount of $300. They also recognized that further consideration would be given to plaintiff’s claim for damages when they agreed with him that the acceptance of the amount allowed for two items of his claim would not be a bar to his right to claim additional damages to the lands adjoining the tracts taken. Plaintiff was claiming damages beyond the allowances made; that is, to the remaining part of his farm. The viaduct, which, it appears, was about twenty-five feet high, erected in front of his home, not only-cut off his view but it obstructed ingress and egress to and from his premises. It affected drainage so that water was accumulated and held on his land near his residence. Plaintiff testified that, “it is just a regular lake of water up and down there on the east side in front of my house.” There was proof as to the destruction of two wells of water, and the problem of finding other good water in other parts of his farm was doubtful, it being shown that it is difficult to find good water in that section. Some other injuries which it was claimed lessened the value .of the unappropriated part of his farm were shown. These were the elements of damages for which claims were made and for the consideration of which the hearing by the commissioners was postponed to a later date. In such a proceeding it is not essential that the commissioners should complete their work at a single sitting or at any fixed time. It is competent for such tribunals to adjourn their meetings from time to time as the necessities of the case may require. (L., N. & S. Rly. Co. v. Meyer, 50 Kan. 25, 31 Pac. 700.) No reason is seen why they may not legally examine several items of damages claimed and determine the award to be made upon those upon which satisfactory proof is produced and then make a partial report, leaving other items for further examination upon additional view and evidence. Ordinarily the filing of a final report by the commissioners ends their jurisdiction, but in cases where final report is made and there are omissions therein and matters left undecided it would still be their duty to complete their examination and report, a duty which, if necessary, may be compelled. (State, ex rel., v. Railway Co., 105 Kan. 548, 185 Pac. 286.) Here, however, the commissioners had not completed their work or made a final report. The matter of damages to the land not taken was continued for further examination and determination. The partial report, therefore, did not bar a full and complete inquiry and did not end their authority to finish the inquiry and make an assessment of the damages actually sustained.
There is a contention that the terms of the entry made by the commissioners .in their journal to the effect that an award had been made for damages to adjoining land operated to preclude the plaintiff from thereafter claiming such damages. This ex parte order entered without the knowledge of the defendant is not binding upon him.
In that connection complaint is made of an instruction of the court with respect to this order, in which the court stated:
“You are further instructed that pursuant to said -claim and the action of the defendant thereon, an ex parte order was drawn by defendant, through its counsel, making allowance therefor, which said order has been introduced in evidence and read to you, and which said order includes the phrase ‘and adjoining lands.’ In this connection you are instructed that the phrase ‘and adjoining lands’ was not included within the claim filed by plaintiff and is not binding upon him because he had no part in the drawing of the order and had no knowledge thereof. What is meant in these instructions by the term ‘ex parte’ is that it is one-sided. That is to say, the party on the other side has no part in the drawing of the order and no knowledge of the same, and as a matter of law is not bound thereby unless the same was included in his claim filed.”
As interpreted by the commissioners, the entry is inconsistent in that under one phrase there is an implication that a sum had been awarded as damages to the land not taken, while in a later part of it it carries the idea that plaintiff had a right to claim damages sustained by the land not taken. Evidently the phrase was inserted to cover the allowance of $768 for the dirt to be taken from the land not condemned and was not intended to cover the general damages to the remainder of plaintiff’s farm.
There is criticism of some other of the instructions and also as to comments of the court in the course of the trial, but we discover nothing material in them. The evidence is sufficient to sustain the finding of the jury as to the damages sustained and no error being found in the record, the judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J. :
In November, 1888, Charles Coleman, the husband of plaintiff in error and the father of Clyde C. Coleman, Walter A. Coleman, and Charles F. Coleman, made his will. The wife was given a life-estate in the homestead, and other provisions were made for her support and maintenance. . With respect to the real estate in controversy, it is necessary to consider the scope, effect and meaning of the third item of the will, which reads :
££I give and bequeath to my children, Clyde C.Coleman, Walter A. Coleman, and Charles F. Coleman, and such child or children that hereafter be born to me, all'of my estate which is not herein specifically designated and bequeathed to others, to be divided equally among them, giving to each of my said children, to be paid out of my general estate, the sum of $1500, as each shall arrive at the age of twenty-one years. I also desire that none of my real estate shall be sold (excepting two lots of ground designated) until the youngest surviving child shrill arrive of age, and in case either one of them shall die without heirs or legal representatives of his own the survivors shall take his portion of the said estate equally.”
After the execution of the will another son was born and named Frederick. In December, 1888, Charles Coleman, the testator, died, and in May following the infant son Frederick died. Plaintiff in error, widow of the testator, declined to take under the will and elected to take under the law, and one-half of the real estate, except the homestead, was set apart to her by the probate court. The homestead is not in controversy.
This was an action in which the widow sought to recover the interest of the child Frederick, who died after his father, as his sole heir under the law of descents and distributions. The surviving sons of Charles Coleman, deceased, who were defendants below, claimed under the terms of the third item of the will, above set out. It was agreed that Mrs. Coleman had received her part of her husband’s estate. No part of the property involved in this action was needed to make up the widow’s share under the law. Plaintiff below failed to recover, and she has prosecuted proceedings in error to this court.
Counsel for defendants in error has incorporated in his brief the opinion of the trial court, which meets our approval. We quote a part of it:
“ It is correct that under the laws of Kansas and the facts of this case Mrs. Coleman was the legal heir of the boy Frederick when he died. But did .Coleman-, the testator, when he wrote the word' ‘ heirs ’ in his will, in the clause before quoted, use said word in its primary sense, meaning thereby any one who would inherit, or did he use it in what may be called a limited sense, and referring only to children?
“In 2 Underhill on Wills, page 822, it is said : ‘It may appear from the context (of the will) that the testator has used the words “heir” and “heirs” not in their strict and primary sense, but in a limited sense, and as synonymous with the words ‘ ‘ child ’ ’ and “ children.” Cases of this sort (says the author) are extremely numerous,’ and, on the following page of his work, he cites over fifty cases decided (in the main) by courts of last resort in this country, wherein (the" writer says) the word ‘ heirs ’ was held to mean ‘children.’ I have not had time or opportunity to examine any of these cases, but I know of no reason for doubting the author’s statement. See, also, Abbott et ux. v. Essex Company, 18 How. (U. S.) 202, 15 L. Ed. 352; Underwood et al. v. Robbins et al., 20 N. E. 230, and 15 A. & E. Encycl. of L., 2d ed., p. 324.
“It is also said, on pages 824 and 825, 2 Underhill, that ‘ a devise to M. and W., in general language, but, if either of them should die without leaving an heir, then, to the survivor, means, if either should die without leaving children.’
“In determining, therefore, in what particular sense the testator used the words ‘heirs,’ resort must be had to the context of the will and the instrument in general and as a whole. The important and controlling matter to arrive at is the intention of the testator, and that is the polar star by which courts should be guided in construing the terms of a will; and it is broper to remember, in that connection, that there is doubtless no class of written instruments wherein the courts have taken greater liberties in the construction, arrangement or substitution of words, in seeking to arrive at the intention of the maker, than in the case of wills. A familiar instance often arises as regards the conjunctions ‘or’ and ‘and.’ The rule is well settled that whenever necessary in order to ascertain the intent with which such words are used, and to give them effect when their meaning is ascertained, the disjunctive conjunction ‘or’ will be read as the copulative conjunction ‘and,’ and vice versa. (Noble v. Teeple, 58 Kan. 398, 401, 49 Pac. 598.) And numerous other instances, of the same general nature, might also be cited.
“Turning, then, to the will of Mr. Coleman, and examining the entire instrument, it will be noticed, in the first place, that the testator divided it into four separate clauses, which he styled ‘items.’ Item one simply contains some general directions about the payment of his debts ; the fourth and last item relates to the appointment of his executors, and some other matters of detail; so that the second and third clauses of the will are the only ones containing testamentary dispositions. In item two he makes careful and seemingly ample provision for his wife. It is proper to infer that the testator, when he drew his will, believed that his wife would accept its provisions. If he had not thought so, it is hardly reasonable to suppose that he would have exercised the painstaking care he did in the dispositions he made in this clause of the will in her favor.
“As bearing on this phase of the case, the following is quoted from 2 Underhill, p. 832 :
‘“The fact that the testator has made a substantial testamentary provision "for his widow in lieu of dower, and then has devised all the residue to “his heirs,’’ may raise a strong presumption that he does not intend she shall take as one of his heirs.’ The author cites a number of cases in support of this statement.
“Passing to item three in the will of Mr/Coleman, it will be seen that it deals entirely with the matter of the devises he made to his children. It begins by devising to them ail his estate not previously designated and bequeathed to others, ‘to be divided equally among them.’ Further on he says : ‘In case either of them shall die without heirs or legal representatives of his own, the survivors shall take his portion of the estate equally.’ The dominant feature of this clause of the will is that the children should have all of the property not previously disposed of, and that they should have it in equal proportions. The testator was caring for his children as a class ; it was them and their children he had in mind when he drew this clause of his will; the wife is not even alluded to. And to hold that when he used the terms ‘ heirs or legal representatives,’ he contemplated and intended in the event of the death of any of his children without issue that the shares of such children should all vest in the wife instead of the surviving children, it seems to me would be most manifestly at variance with the general-purport and tenor of the will, as gathered from the entire instrument.
“It might also be said that such an interpretation would be directly opposite to the practical construction given the will by the plaintiff herself, as shown by her condjuct in the premises and acquiescence -in the rights of the surviving children to the property in controversy, for more than ten years prior to the commencement of this action.”
The case of Abbott et ux. v. Essex Company, 18 How. 202, 215, 15 L. Ed. 352, cited in the opinion of the learned judge, is particularly applicable. The clause of a will before the court reads :
“It is my will that if either of my said sons, namely John or Jacob, should happen-to die without any lawful heirs of his own, then the share of him who may first decease shall accrue to the other survivor and his heirs, ’ ’
It was held that by use of the words “lawful heirs of his own” the testator meant lineal descendants or issue.
It is next contended by counsel for plaintiff in error that if the words “heirs or legal representatives of his own” mean surviving children the remainder over to the survivors is repugnant to the estate previously granted, and void. The intention of the testator must be arrived at from the will itself, considering all parts of it. In Palmer v. Blodgett, 60 Kan. 712, 57 Pac. 947, such rule of construction was applied to a deed for the purpose of ascertaining the intention of the grantor. The will before. us is divided into four separate items. There was no attempt in any of these items to devise a fee-simple estate in the property to the wife, as was done in McNutt v. McComb, 61 Kan. 25, 58 Pac. 965. The remainder over to the surviving children in the event of the death of one of them is consistent with the entire will. It is further argued :
“These children having survived the testator they took the whole estate freed from the limitation over, in the event of the death of one of them. The limitation will be held to refer to the time of the death of 'the testator) in other words, the limitation contained in? the will referred to the death of the testator, and inasmuch as all the children survived him the estate became absolute in the four children and the limitation of no avail.”
The court below correctly held that the will did not make an immediate gift of the property to the children. The executors were to have charge of the real estate until the youngest child should become of age, and not until that time was the property to be sold and the proceeds divided among the children.
It is finally contended that the limitation over, and the estate sought to be conferred thereby, is void for remoteness, and created a perpetuity prohibited by law. This claim is not well founded. Three of the testator’s children were living when the will was made; the other child was born prior to his death, and the fee to the proceeds of the property in question was to vest in them when the youngest child became of age. See Underhill on Wills, volume 2, sections 879, 884.
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. :
This was an action brought by the board of county commissioners of Saline county to enjoin the Union Pacific Raili’oad Company from excavating a ditch in, or interfering with the use of, an alleged highway. In 1870 proceedings were had toward the laying-out of a highway along, and within fifty feet of, the Union Pacific railroad track, and the roadway has been improved and used since that time. The railroad company contended that the road was not legally established ; that it was upon its right of way, which extended 200 feet on each side of the railroad track; that the public had acquired no right to use any portion of the right of way for a highway; and finally it was averred that in 1890 the claims of the respective parties to this litigation had been fully and finally determined in a prior action. In the present case the court found and decided that the alleged highway was on the right of way of the railroad" company; that the proceedings had before the board of county commissioners in 1870 toward the establishment of a highway were absolutely void ; that-a highway had not been acquired or established over the right of way by prescription; that the issues in the present action were the same as those in the prior action, but that the county was not then properly brought into court, and was therefore not bound by the judgment then rendered; and, finally, that the railroad company was estopped from asserting that the roadway was not a public highway.
Each party complains of adverse rulings, but the question of res judicata is controlling, and the only one that requires consideration. The former litigation as to the roadway in question was begun in the district court of Saline county in 1889, and final judgment was rendered October 22,1890. In the entry of judgment then made it was recited that the railroad company was entitled to a perpetual injunction against the county commissioners of the county and the township officers from entering upon the company’s right of way, or laying out the highway in question, and it was adjudged and decreed that they be perpetually enjoined from doing so, or in any way interfering with the railroad company in the exclusive use of its right of way over which the roadway had been laid out. The jurisdiction of the court rendering that judgment., is unquestioned, and, as the trial court found the issues in that proceeding to be identical with those submitted in the present one, the only remaining condition essential to a judgment by estoppel is the identity of parties; that is, whether the ■ county of Saline was a party to, and bound by, the judgment-then rendered.
The petition in the first action was entitled “The Union Pacific Railway Company, plaintiff, v. J,obn W. Burke, Taylor Miller, and P. Swedlund, county commissioners of Saline county, Kansas, Peter Soldan, township trustee of Spring Creek township, and John 0. Lundquist, road overseer of district No. 4 of Spring Creek township, defendants.” Among other things, it was alleged in the petition that the county of Saline, through its duly constituted officers, and the township of Spring Creek, through its duly constituted officers, had entered upon, and were laying out, repairing and building a highway over, the right of way of the railroad in violation of the rights of the railroad company, and it was asked that they be enjoined from so doing. Upon this petition a temporary order was issued restraining the defendants-from continuing the work. A summons was issued to Burke,. Miller, and Swedlund, as county commissioners of Saline county, and was duly served on them. In behalf of the county the county attorney filed a motion to dismiss the action, alleging that the court had no jurisdiction because the highway was a state road and no notice of the action had been given to the state officers. In the caption of the motion the county attorney described the defendants as “The, board of county commissioners of Saline county,. Kansas,” and he signed it as “county attorney.”
The defendants filed an answer, which bore the same title as the petition, in which it was admitted that Burke, Miller and Swedlund were the acting county commissioners of Saline county, and it also contained averments as to the claims and defenses of the county with respect to the establishment and existence of a highway. _ It was signed byE. W. Blair, “as attorney for defendants.” A demurrer to the answer was filed which was entitled ‘ ‘The Union Pacific Railway Company v. The Board of County Commissioners of Saline County et al.” An order was made overruling the demurrer and giving judgment for the railway company, which was approved by E. Vi Blair as “county attorney and attorney for defendants.” Later, and in October, 1890, the case came before the court again, and a supplemental.entry of judgment was made. It was entitled “The Union Pacific Railway Company v. The Board of County Commissioners of Saline County et al.,” and in it the defendants were perpetually enjoined from using the highway. This entry was also signed byE. W. Blair as “county attorney of Saline county, Kansas.”
In the first pleading, as in some of the other proceedings, the technical corporate name of the county was not used, and the process was not served on the county clerk as the statute requires. The county should have been sued as “The board of county commissioners of the county of Saline.” Instead of impleading the defendants as a board of county commissioners, the commissioners constituting the board were named. The county commissioners, however, were sued in their official capacities, and no complaint was made against them as individuals. The wrongs complained of in the petition and sought to be enjoined were charged to have been committed by the county through its duly-constituted officers, and it. was the county commissioners and their successors in office against whom judgment was asked. The averments proceeded on the theory that the action was against the commissioners as a board, and the only defect in the name was the omission of the word “board” and the substitution of the names of those constituting the board. Instead of raising in a proper way the question whether the county had been sued in its correct corporate name, the county commissioners, as well as the county attorney, answered to the merits and ■ tried the case upon the theory that the board was in court, asserting the rights, and protecting the interests, of the county. This is illustrated not only by the substantive averments in their answer but also by the fact that when the commissioners appeared and moved for a dismissal of the proceeding because the state had not been brought into court, they called themselves “The board of county commissioners of Saline county,” and the motion was signed by the legal representative of the county as “county attorney.” The demurrer to the answer, the pleading upon which judgment was entered, designated the commissioners as a board in its caption, and the final j udgment not only described the defendants as a “ board of county commissioners,” but actually enjoined the commissioners as a board, and this form of entry the county attorney expressly approved. The issue was one affecting the county, the officers charged with the duty of representing the county in its litigation appeared and presented that issue to the court, and the result was a judgment against the county. It is too late to say that the misnomer of the defendant in some of the pleadings nullified the judgment or relieved the county from its effect. If such a defect were relied on, advantage should have been taken of it at the beginning, but where a party ignores it and tries the case out as if the correct name were used the defect is waived and the judgment is binding. The use of the proper name of the county in the later proceedings, including the judgment, in effect amended the pleadings as to the name, or, «at least, warranted the court in treating them as amended.
In School District v. Griner, 8 Kan. 224, the correct corporate name of the district was not used, and advantage of the defect was attempted to be taken by an objection to testimony. The court, however, held that the filing of an answer to the merits without raising the defect of misnomer was a waiver, and it was too late to take advantage of it by an objection to the admission of testimony.
In the case of Bank v. Haskell County, 61 Kan. 785, 60 Pac. 1062, the claim was that an order was not binding upon the county because it was not correctly named as a party to the litigation. In the action the board of county commissioners was not at first properly and formally made a party to the case, and the board, after fighting the case to a conclusion, undertook to take advantage of the defect. Upon this claim it was remarked :
“The board of county commissioners throughout the litigation was the real party in interest. It was not at first made a party upon the pleadings, but subsequently was made such, and in fact it appeared so at all times by the county attorney, although the case was at first entitled in the name of the state of Kansas and subsequently in that of the county • treasurer. The case was not nominally entitled in the name of the board of county commissioners as plaintiff, but the interests involved were the interests of the county, and, as such, have been most diligently and pertinaciously defended by the board of commissioners, the county treasurer, and the county attorney. It is too late now for the board of commissioners to interpose-the objection that it is not and has not been in court to answer the contentions of the Bank of Santa Fe for the possession of the property in dispute.”
(See, also, Thacher & Stephens v. Comm’rs of Jefferson Co., 13 Kan. 182; School District v. Carson, 10 id. 238; Hoffield v. Board of Education, 33 id. 644, 7 Pac. 216; Weaver v. Young, 37 id. 70, 14 Pac. 458; Commissioners v. Bank of Commerce, 97 U. S. 374, 24 L. Ed. 1060.)
It must be held that the county was a party to the-former proceeding and is bound by the judgment-then rendered. The issues 'involved having been directly adjudicated against the contentions of the-county, they cannot be reopened or relitigated in the same or any other tribunal.
It follows that the judgment of the district court-must be reversed, and the cause remanded with directions to enter judgment in favor of plaintiff in error.
All the Justices concurring.
Burch, J., not sitting. | [
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Per Ouriam:
These cases involve no questions other than those already passed upon in The State v. Crilly, ante, page 802, 77 Pac. 701, and are, therefore, affirmed upon that authority. | [
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The opinion of- the court was delivered by
Cunningham, J. :
The object of this action was to enjoin the prosecution of 542 separate suits brought by defendants Jordan, Blackman, Armstrong; Kassábaum, and Jones, by their attorneys, E. D. McKeever and W. S. McClintock, before T. T. Wright, a justice of the peace of Shawnee county. The petition shows that the. plaintiff was a telegraph company doing business in the state of Kansas and the various other states of the Union ; that there had been presented to it by the several defendants, in the aggregate, 542 telegrams for transmission over its lines, accompanied by a fee of fifteen cents for each one, with a demand that such messages be transmitted, all of which was done in pursuance of the provisions of chapter 38 of the Laws of 1898 ; that such transmission was refused, and thereupon the 542 actions were brought as above noted, each for the recovery of the penalty and attorney’s fee provided for in said act; that the act was unconstitutional and void, and, therefore, that no recovery could be had against the plaintiff in any of said actions ; that none of said telegrams was tendered for transmission in good faith, and that said actions were brought for the purpose of annoying and vexing the plaintiff. Plaintiff prayed that the defendants be permanently restrained from the prosecution of said actions.
As a feature of the claimed unconstitutionality of the questioned act, it was averred that the rate for the transmission of messages as therein fixed was inadequate and confiscatory. The defendants filed various motions and demurrers raising different questions of law. T. T. Wright, the justice of the peace, was dismissed from the case. The issues were finally closed by answer, and the Honorable J. G. Slonecker was appointed referee to take evidence and make findings of fact and of law, which in due time he did. Upon his report the court rendered judgment as prayed for by plaintiff, and the defendants bring error.
Not a few of the questions raised are merely academic. The law under which the 542 actions were brought before the justice having been by this court decided to be unconstitutional and void, they had no basis of law upon which to stand. (Telegraph Co. v. Austin, 67 Kan. 208, 72 Pac. 850.) Some of the points raised, however, may be entitled to brief consideration.
It is claimed that the court had no jurisdiction to determine the matters involved, inasmuch as all of these questions were embraced in the actions pending before the justice, which actions were for the recovery of money and in which the parties had a right to a trial by jury; that this right could not be taken from them thus indirectly by the interference of a court of equity. It has long been a well-recognized function of courts of equity to take cognizance of actions-like this. Here were 542 separate actions, which the petition alleged to be not only groundless but vexatious, and brought for the purpose of annoying the plaintiff. The question is whether the actions may be maintained at all, rather than whether upon a trial of them a jury may be had. Surely it would be inequitable to permit parties to proceed seriatim to the trial of 542 baseless and vexatious actions for the purpose of accomplishing no beneficial result. The mere multiplicity of actions might not constitute ground for the relief here sought, though we are not sure but that instances are found where courts have interfered to stay proceedings upon all but one of a like series of actions until the merits may be determined by the trial of that one ; however this may be, certain it is that, if the actions are not only numerous but vexatious and groundless, as here alleged, equity will promptly intervene. (Cole v. Young, 24 Kan. 435; 3 Encyc. of Pl. & Pr. 565; Third Ave. R. R. Co. v. The Mayor etc. of N. Y., 54 N. Y. 159; Board of Supervisors v. Deyoe, 77 id. 219.)
It is further claimed that the petition shows that the plaintiff had no right to maintain this action, it not having complied with the provisions of section 1283, General Statutes of 1901, and, therefore, that the demurrer should have been sustained. The petition discloses that the plaintiff was a foreign corporation, but does not disclose that it had not complied with the requirements of the chapter cited. This was defensive matter, and to be availed of should have been pleaded. (Northrup v. Wills, 65 Kan. 769, 70 Pac. 879.) The same question, however, was raised when, during the progress of the case, defendants asked leave to file a supplemental answer setting, up the fact that the plaintiff'had not complied with the statute. Permission was denied by the court. Aside1 from the fact that it was discretionary with the court to grant such permission at the time it was asked, we further note that there was a showing made by the telegraph company that it had in due time, under the terms of the law, made an effort to comply therewith in as full a degree as it was possible for it to do. If this attempt was technically insufficient, it did show an honest purpose and desire to comply with the law, and the court will not now reverse the action of the court below because of the technical insufficiency of this compliance, especially when the plaintiff's in error, in view of the fact that they have no right to recover under the law invoked by them, could obtain no relief.
It is strenuously urged that, although-chapter 38 of the Laws of 1898 has been declared void, still the ■plaintiffs in error had a right to maintain their actions brought before the justice on the common-law liability of the telegraph company, the fee tendered for the transmission of the telegrams being sufficient and not confiscatory. However this may be, as a matter of fact, and whatever may be said about the referee’s finding upon this point, the bills of particulars in those actions were brought under the statutes and to enforce the penalty therein prescribed, and not upon any common-law liability of the company.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
This is a proceeding to reverse an order of the district court sustaining a demurrer to plaintiff’s petition. The plaintiff was the owner of certain real estate in Lyon county, Kansas. A petition was presented to the board of county commissioners of said county asking that a public highway be located between two points stated in the petition, which would cross over .the land belonging to plaintiff. Such proceedings were had as resulted in the location of the road.
Thereafter the plaintiff filed a petition in error in the district court asking that court to set aside and vacate the order of the county commissioners locating and .establishing the road through and across his land. The plaintiff did not attach to the petition in error filed in the district court a transcript or any authenticated record of the proceedings had before the board of commissioners. Under the provisions of our code, and the uniform practice in this state, a party seeking to have an order or judgment of an inferior court, board or tribunal reviewed by proceedings in error must bring to the reviewing court the proceedings had in the lower court in some of the ways provided by statute. The only way that a reviewing court can be informed of what the proceedings were in the -inferior court is by a properly authenticated record of such proceedings. In the ab sence of such record there is nothing for the superior court to review.
Probably the defendant should have filed a motion to dismiss the petition in error in the district court, instead of a demurrer, but this mistake in practice was not prejudicial to the plaintiff. In the absence of such record, the district court had no jurisdiction to review the proceedings of the county commissioners.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of .the court was delivered by
Atkinson, J. :
On January 5, 1901, A. B. Harris-sold to John T. Stewart, for $2000, twelve shares of the capital stock of the Wellington National Bank.. Harris subsequently brought this action against Stewart to recover the difference between the amount he received for the stock and its'actual value at the time he sold it to Stewart. Judgment was rendered for plaintiff on the verdict and findings of a jury, and defendant prosecutes error.
Defendant, at the time he purchased the stock off plaintiff, was president of the bank and the holder of a majority offthe stock, and he had been such president continuously since 1893, and actively engaged in the management of its affairs. Plaintiff was a man over' eighty years of age, and retired from active business. He had never engaged in the business of banking and had never attended a meeting of the stockholders off this bank. The petition set forth these facts and in substance, charged that, through his agent, T. F. Randolph, defendant purchased the stock of plaintiff that he withheld from plaintiff a knowledge of the affairs of the bank, and by fraud, and by concealing from plaintiff the real condition of the affairs of the bank, obtained the stock at much less than its actual value. A recovery was asked for the difference between the amount received and the actual value of the stock at the time of the sale. Defendant’s answer, in substance, denied that he withheld from plaintiff the information requested; that had he procured the shares of stock from plaintiff by fraud or- concealment; that Randolph was his agent (under ■oath) ; and averred that plaintiff had, or could have •obtained upon inquiry, full knowledge of the condition and affairs of the bank at the time he sold the shares of stock.
' Defendant was charged with undertaking and carrying out a scheme so to manipulate and manage the condition and affairs of the bank as to enable him to acquire the stock at a price grossly inadequate to its real value. The capital stock of the bank was $50,000, represented by 500 shares of the par value of $100 each. When defendant took charge of the bank its affaii's were in a deplorable condition; the bank had been improvidently managed ; the financial condition of the community and the country at large was wretched. Under the change of management many thousand dollars of the notes held by the bank were charged off its books as worthless ; much of the real estate owned by the bank was charged off the books. Time brought about a general improvement of financial conditions, and prosperous agricultural seasons in the community.
One by one the old officers and employees were dropped out. Defendant was a director and president, and became supreme in the management of affairs. By good financiering on the part of the new management, the bank prospered. As conditions improved there were payments made of many of the notes that had been charged off the books as worthless. The lands became valuable. The bank, in the meantime, had become the owner of ninety-eight shares of its capital stock which had been pledged to secure an indebtedness. Its affairs became very prosperous. These conditions were well known to defendant, and were but slightly known to plaintiff. The payments made on notes which had been charged off, instead of being carried in the profit-and-loss account, where the condition of the bank would be more readily shown from an examination of its books, were carried in the cashier’s account, and funds carried in the cashier’s account did not appear as assets. Lands not charged off the books were carried at a nominal valuation only, and lands charged off the books did not appear as assets. The chai'ged-off property and the funds carried in the cashier’s account did not appear in the published reports of the condition of the bank.
A four-per-cent, dividend only had been paid to stockholders from June, 1897,. and no dividends were paid to the holders of stock during the two years plaintiff was the owner of the stock sold to defendant. Plaintiff, before selling the stock, went to defendant and inquired about the condition of the bank, and asked if dividends would be paid. Defendant informed him that no dividends would be paid, that the bank was in good condition, but that the policy was. to strengthen it. He related to plaintiff the bad condition of affairs at the time he took charge of it, and told him of the large amount of paper then charged off. Defendant gave to plaintiff no further knowledge or information of affairs than to say that the bank was in a good condition. Defendant himself at two different times made a proposition to purchase the stock of plaintiff, on one occasion offering $1000, and, about two weeks before he purchased the stock through Randolph, he offered $1400 for it. Plaintiff received from defendant, through his agent, Randolph, $166 per share for his twelve shares of stock. At that time it was worth $350 per share. Gradually defendant bought up stock of the bank. Not long after he purchased the stock of plaintiff, he acquired the ninety-eight shares of the capital stock held by ■the bank. This he obtained for a sum much less than its real value. He was then the owner of 445 ■of the 500'shares of the capital stock. Within a ■short time thereafter a dividend of 120 per cent, was ■declared. Other dividends soon followed.
Upon the trial, among others the court gave to the Jury the following instruction :
“You are instructed that the president, or other managing officer of a corporation doing business as •a bank, stands in relation of a trustee to all the stockholders who are not themselves engaged in the active management of the bank ; and before any managing ■officer of a bank who is acquainted with its condition ■and affairs can rightfully purchase the stock of such hank from stockholders who are not actively engaged in the management and operation of the bank, such managing officers must inform such stockholders of the true condition of the bank and its affairs and assets, and must give to such stockholders all the information affecting the value of the stock which such managing officer himself possesses ; and a purchase from a stockholder who is not acquainted with the condition and affairs of the bank of his stock in such bank by one of the managing officers, without first having informed such stockholder of the true conditions of the bank and of the amount and value of its assets, is a fraud on the part of such managing officer, and renders him liable to pay the stockholder the full value of the stock, without reference to the price agreed on at the time of the sale, provided the stockholder himself does not know the value of the stock.”
Of the giving of said instruction plaintiff in error complains and assigns error. Does the instruction given correctly state the relation' of the president or other managing officer of a corporation to the stockholders of such corporation not actively engaged in the management of its affairs ? Does it correctly declare the lawful duty of such president or other managing officer, relative to his obligation to the stockholders not engaged in the active management of the corporation,, before he can rightfully purchase of them their stock ?
The exact questions before us have never been determined by this court. Our attention is directed to Mulvane v. O’Brien, 58 Kan. 463, 49 Pac. 607, as a parallel case. Mulvane was a director and the president of the corporation and O’Brien was also a director and the secretary. Defendant himself did not purchase the stock of plaintiff, but sold it to another and accounted to plaintiff for the par value only, and not for the amount he had actually received for it. The action was to recover from defendant the difference between the amount accounted for and the amount defendant actually received for the stock. The case was determined, not on the duties of defendant toward plaintiff because of any fiduciary relation existing between them as a stockholder and the president and managing officer of a corporation, but because of a contract of agency at the time existing between them, whereby defendant undertook to sell for plaintiff his stock in the corporation. Again, had the right to a recovery been based on a claim of fiduciary relation existing between defendant and plaintiff, the former as the president and managing agent of the corporation and the latter as a stockholder therein, the facts would materially differ from those in the case under review. There defendant and plaintiff were president and secretary, respectively, of the corporation, and jointly managed its affairs. Each was actively engaged in the management, and had an equal opportunity to know of its condition and affairs. The same cannot be said of plaintiff and defendant in the case at bar.
The managing officers of a corporation are trustees not only in-relation to the corporate entity and the corporate property, but they are also, to some extent and in many respects, trustees for the corporate shareholders. That they are trustees for the corporation and the corporate property all the authorities are agreed. It would be difficult to lay down a general rule comprehensive of the extent of, and all the instances in which, their trusteeship exists as to the stockholders of the corporation. Pomeroy, in his work on Equity Jurisprudence, after an analysis of the relations, recognizes and announces the doctrine that in their fiduciary relation the directors and managing officers of a corporation occupy, as to the corporate entity and corporate property, the position of quasi-trustees. Of the relation of such officers to the stockholders of the corporation, he says :
“On the other' hand, the directors and-managing officers occupy the position of gwm-trustees towards the stockholders aloné, and not at all towards the corporation, with' respect to their shares of stock. Since the stockholders own these shares, and since the value thereof and all their rights connected therewith are affected by the conduct of the directors, a trust relation plainly exists between the stockholders and the directors, which is concerned with and confined to the shares of stock held by the stockholders ; from it arise the fiduciary duties of the directors towards the stockholders in dealings which may affect the stock and the rights of the stockholders therein, and their equitable remedies for a violation of those duties. To sum up, directors and managing officers, in addition to their functions as mere agents, occupy a double position of partial trust; they are quasi- or sub-modo trustees for the corporation with respect to the corporate property, and they are quasi- or sub-modo trustees for the stockholders with respect to their shares of the stock.” (Yol. 2, 2d ed., § 1090.)
The supreme court of the United States, in Jackson v. Ludeling, 21 Wall. 616, 22 L. Ed. 492, declared:
“The managers and officers of a company where capital is contributed in shares are, in a very legitimate sense, trustees álike for'its stockholders and its creditors, though they may not be trustees technically and in form.”
In Sargent v. K. M. Rld. Co., 48 Kan. 672, 688, 29 Pac. 1063, an action brought by Sargent to recover on an order assigned to him for 1000 shares of the stock of the railroad corporation, the question of the good faith of the transaction was before the court for determination. Chief ' Justice Horton, in speaking for the court, said:
“The relation between the directors of a cprporation and its stockholders is that of trustee and cestui que trust. The directors are persons selected to manage the business of the company for the benefit of the shareholders. It is an office of trust which, if they undertake, it is their duty to perform fully and entirely. No director of a railroad company or any other corporation can use his official position to secure a personal advantage to himself.”
The general rule applicable to a purchase and sale between parties who sustain to each other a confidential or fiduciary relation appears to be that, to sustain the sale, the buyer must show affirmatively that the transaction was conducted in perfect good faith, without pressure or influence on his part, and with express knowledge of the circumstances and entire freedom of action on the part of the seller. The rule is applied with more or less strictness to all the well-known cases of fiduciary relation, as that of attorney and client, trustee and cestui que trust, principal and agent, and guardian and ward. (Dunn v. Dunn, 42 N. J. Eq. 431, 7 Atl. 842; 8 A. & E. Encycl. of L., 2d ed., 644.)
In Oliver v. Oliver, 118 Ga. 362, 45 S. E. 232, the right of plaintiff to a recovery was conceded where defendant, the president and director of a corporation, purchased of plaintiff his holdings of stock in the corporation at $110, worth at the time $185 per share. The action was brought to recover of defendant the difference between the amount by plaintiff received for the' stock and the value of the stock at the time of the sale. It was charged that defendant in the purchase of the stock withheld from plaintiff information known to defendant and unknown to plaintiff relative to its value, which, owing to the fiduciary relation existing between the parties, it was the duty of the defendant to ■ disclose to plaintiff. It is a well-considered case. Many features of it are applicable to the case under review. We quote from the opinion the following :
“It is a matter of common knowledge that the market value of shares rises and falls, not qnly because of an increase or decrease in tangible property, but by reason of real or contemplated action on the part of managing officers; declaring or passing dividends ; the making of fortunate or unfortunate contracts ; the loss or gain of property in dispute ; profitable or disadvantageous sales or leases. And to say that a director who has been placed where he himself may raise or depress the value of the stock, or in a position where he first knows of facts which may produce, that result, may take advantage thereof, and buy from or sell to one whom he is directly representing, without making a full disclosure and putting the stockholder on an equality of knowledge as to these facts, would offer a premium for faithless silence, and give a reward for the suppression of truth. It would sanction concealment by one who is bound to speak and permit him to take advantage of his own wrong—a thing abhorrent to a court of conscience. It is conceded that the position which the director occupies prevents him from making personal gains at the expense of the company or of the whole body of stockholders. But a rule that he is not trustee for the individual sharesholders leads inevitably to the conclusion that while a director is bound to serve stockholders en masse he may antagonize them one by one ; that he is an officer of the company, but may be the foe of each private in the ranks. When it is admitted, as it must be both from the very nature of his duty and from the rulings of nearly all the cases, that he is trustee for the shareholder, how is it possible, in principle, to draw the line and say that while trustee for some purposes he is not for others immediately connected therewith?”
The case of Board of Commissioners of Tippecanoe Co. v. Reynolds, 44 Ind. 509, 15 Am. Rep. 245, is the leading authority cited and relied on by plaintiff in error in support of the claim that the instruction under consideration does not correctly state the law. It was in that case held that there was no relation of trust between the president and director of a corporation and one of its stockholders ; that in- the absence of actual fraud a purchase of stock by the former from the latter was valid, though in his official position the president knew at the time he purchased the stock it was worth more than its nominal market value, but did not disclose to the stockholder the facts within his knowledge as to its real value. The decision was rendered by a divided court in 1873. It is bottomed upon the view announced by the court that, while the officers and managing agents of a corporation are trustees for the corporation and its corporate property, they sustain no trust relation to the stockholders of the corporation, and owe to them none of the duties of a trust relation. The rule laid down has met with much criticism. The position taken leaves the stockholders’ interest in the corporation and all matters affecting its value wholly in the charge and keeping of the managing officers of the corporation, and leaves the stockholders their legitimate prey. We cannot give the sanction of our approval to the views there expressed.
The fact that the directors and managing officers of a corporation are gwcm-trustees for the stockholders does not prohibit them from dealing with the latter. The only restriction is that in such dealing their conduct be fair, open, and above reproach. Because of the trust relation and the better opportunities afforded for acquiring information, before any director or managing officer of a corporation, having a knowledge of the condition of its affairs, can rightfully purchase the stock of one not actively engaged in the management he must inform such stockholder of the true condition of affairs.
Defendant suggests that plaintiff himself should have exercised more diligence in investigating the affairs of the bank ; that the books were open to him. By this we are asked to say that in this case a means of knowledge is equivalent to knowledge ; that a clue to the facts'which, if diligently followed up, would lead to a disclosure is equivalent to a discovery. Plaintiff could not be required to make an investigation of the books of the bank to determine its financial condition simply because it was in his power to do so. The diligence required by one to protect his interests is only such as a person of ordinary prudence would exercise' under like circumstances. In a case like this the trust relation existing between the parties,' the superior opportunities of defendant to know of the condition of the affairs of- the bank, and his actual knowledge of its affairs, required no such diligence of inquiry on the part of plaintiff as contended for by defendant. Plaintiff had the right to rely upon the belief that defendant would disclose to him the true condition of the affairs of the bank and that he would not be called upon to investigate the condition of its affairs before he could with safety sell to defendant his holdings of stock. It is not the intent of the law- to place a restraint on the affairs of business when conducted fairly, honestly, and openly, nor to deprive one party to a contract of the advantage which superior judgment, greater skill or better information may give, but it cannot give its approval to a course of dealing that .will permit those occupying a trust relation to be unmindful of the trust, betray the confidence reposed, and profit by such betrayal. r The jury, in addition to returning a general verdict for plaintiff, returned numerous special findings. The record discloses that there was some competent testimony to support all the special findings returned, including the one that Randolph was the agent of defendant. The findings are in harmony with and uphold the general verdict.
The brief of plaintiff in error contains sixty-seven assignments of error.. Most of them are based on the rulings of the trial court in the admission of testimony. Some are admitted by counsel to be unimportant, or cured or corrected by subsequent proceedings. Many of them are based on the claim that the testimony introduced was not within the issues. In a case of this character, where fraud is charged, great-latitude is allowed to the scope of the inquiry, the limit resting largely in the discretion of the trial court. The record discloses no abuse of this discretion. Nor did the court abuse its discretion in limiting the number of witnesses used on impeachment.
The instructions given fairly state the law of the case, and there was no error in refusing the instructions requested and not given.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
The state of Kansas, upon the relation of F. A. Meckel, as county attorney of_ Chase county, sought by this action to restrain and enjoin the defendants, who together constitute the board of directors of union school district No. 4, of Chase county, from proceeding with the erection of a school building for the use of that district. This order was denied by the district court, and the plaintiff seeks a reversal of that action.
From an agreed statement of facts found, in the record it appears that union school district No. 4 was duly formed out of territory formerly composing districts Nos. 4 and 23, both of which had old schoolhouses. At a meeting held for that purpose on May 10, 1902, union district No. 4 voted to issue bonds in the sum of $2000 for the purpose of building a new schoolhouse. These bonds were issued and sold and that sum came to the hands of the defendants for the purpose designated. The same meeting selected a site for the proposed schoolhouse, but no directions were then or afterward given to the board when to build or the kind or character of house to build. Some time before August 12,1902, the board procured a bond for a deed to the site selected and on that day, having agreed upon the kind of a house, and obtained plans therefor, began its erection. They put in a foundation, purchased lumber, hired carpenters, made window- and door-frames, created obligations, and made expenditures in the total sum of $1232, exclusive of the amount agreed to be paid for the site. They Were proceeding with the erection of the house, with a view of getting it ready for occupancy by November 1, 1902, when, on September 9, 1902, a request was presented to the board, sufficient in form and signed by a sufficient number, to call a special meeting of the qualified electors of the district for these purposes :
“To take such action as may be deemed advisable as to the erection of a schoolhouse or suspend the erection of the same; to contract" for the building, or refuse to contract for same at this time ; to sell or die- pose of any material on hand, or pay for any purchased by the board ; and to pass such orders as may be deemed necessary as to anything and everything pertaining to the interests of said district generally.”
In pursuance of that request a district meeting was duly called for September 20, 1902, which on that date adopted the following resolutions by a vote of 29 to 11:
“That the board is hereby instructed to suspend work on new schoolhouse..
. “That the board is hereby instructed to sell any material purchased, to the best interests of the district.”
The board, however, conceiving that they were not required to obey these instructions, were proceeding with the erection of the house under construction when this action was brought to compel compliance with the orders of the district meeting. It further appears that on August 30, 1902, some fifty-three of the resident taxpayers of union school district No. 4, probably being a majority of such taxpayers, joined. in a petition to the county superintendent of public instruction to divide such district and resolve it into the two original districts ; this petition, however, was denied by him upon the ground that no warrant of law existed for such action. Schools were being conducted in both the old schoolhouses, the contracts with the teachers having been made, however, with a view of transferring them to the new house when completed.
The contention here arises over the authority of the school-district meeting to make the orders it did oh September 20, 1902. No claim is made that this meeting was not lawfully assembled, or that, if it could act at all upon the matter involved, its action was not regular. It is denied by the board that the action taken was within the powers of the elector’s.
In the discussion of this question we shall not refer to the fact that the board never received any instructions from the district meeting as to the time when they should proceed in the erection of the house or the kind of a house they should build, but shall proceed upon the assumption that the authority given was sufficient to cover these points ; or, if not, that such lack of authority was cured by the passage of chapter 347, Laws of 1903, enacted February 27, 1903. The question then is, Had the district meeting authority to direct the suspension of the work on the new build ing and the disposition of the material on hand, as it attempted to do, and is its agent, the district board, bound to obey such order?
This district is what is known to our law as a “ union school district.55 By section 6157, General Statutes of 1901, such district is made a body corporate, and presumably, as such body, has a right to direct its own affairs. The duties and powers of its board of directors are the same as those provided by law for other school-district boards. The entire act relative to such union districts clearly points to the conclusion that after they are once organized they are to be governed in the same manner, and pass under the same statutory regulations, as other school districts. They are, indeed, but school districts of larger size, formed by the union of other districts.
By section 6127, General Statutes of 1901, the qualified inhabitants of a school district lawfully assembled have power
“to authorize and direct the sale of any schoolhouse site or other property belonging to the district when the same shall be no longer needful for the use of the district.55
Section 6181 directs that the district board
“shall build, hire or purchase such schoolhouse as the voters of the district, in a district meeting, shall have agreed upon, out of the funds provided for that purpose, and make sale of any schoolhouse site or other property of the district, . . . when lawfully directed by the voters of such district at any regular or special meeting.”
The only limitation upon the power of the district meeting in the management of its affairs in respect to the sale of property belonging to it is “when the ■same shall be no longer needful for the use of the district.” Who then is to decide when this condition ■exists? This decision, of course', must rest either with the school-district meeting itself or with the courts. Here the school-district meeting assumed to determine it. No claim is made that its determination was influenced by other than honest motives or the best of reasons ; indeed, no reason appears in the record why it chose by so large a majority to take the action it did. If we were disposed to indulge in speculation we might imagine a variety of very good reasons, but we do not think that either the district court or this court has any authority, in the absence of any claimed corruption, to inquire into those reasons: The law leaves the district meeting to manage those matters as it may choose. As the taxpayers must foot the bills, they are entitled to determine the expenditures and conduct of the business. The authority conferred by the quoted statute is broad enough to cover the property ordered to be sold. They may direct the sale of “other property;” hence, why not lumber or window-frames as well as an old stove or discarded furniture ? The right to sell must of necessity carry with it the right to determine the propriety of selling. If the propriety of selling were a question to be determined by the court, the court would be vested with a supervisory power in the management of the affairs of the district, not only as to the sale of property, but in other matters, for the school-district meeting is vested with discretion by the use of similar language, or inferentially, as to many of the duties committed to it. The courts would indeed have a, very busy time were they to undertake to supervise the actions of various bodies and boards created by the statutes and endowed with various powers by language similar to that here employed.
The case of School District No. 6, in Dresden v. Ætna Insurance Co., 54 Me. 505, was very similar to the one at bar. The district had voted to sell the new schoolhouse. The authority found in the statute under which it acted was “to sell and dispose of any schoolhouse or other property, if necessary.” It was there contended that the sale of the house was bad policy and was not necessary. The trial court submitted the question of necessity to a jury, which found that no necessity existed. The supreme court held that the school district was the exclusive and final judge of the necessity of the sale ; that the voters were interested in the most judicious disposition of the property, they knew the present necessities as well as the future wants of the district better than strangers possibly could, and that the matter was their business. This case cites many others supporting the same view.
The suggestion is made by defendants in error that their acts in proceeding as they did in purchasing material and commencing the building were all. ratified by the delay of the district meeting in countermanding such action, and that by reason of such ratification the district may not now suspend the further prosecution of the work. We see no basis for such claim. The work which the board was doing was not for themselves—they had no interest personal in its prosecution ; they were acting for their principal, the union school district, in its corporate capacity, and must take their orders from it. Their authority was a limited and special one, dependent upon the legally expressed will of the district. (School District v. Brown, 2 Kan. App. 309, 43 Pac. 102.)
We think the order given them by the district meeting on September 20, of which they had full notice, was well within the powers of such meeting and must be obeyed by the board. It may or may not be wise. The district court did not think i.t was. The district meeting may have been better situated than was the court correctly to determine the question, but, whether it was or not, the question was one for the meeting and not the court to settle.
The judgment of the district court will be vacated, and the cause remanded with directions to grant the injunction.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
The appellant was convicted under section 2098, General Statutes of 1901, upon an information charging that he did, on the 23d day of May, 1903, in the county of Cherokee, state of Kansas, unlawfully, feloniously and wilfully break and injure passenger-car No. 31 on the Southwest Missouri Electric Railway Company’s tracks, by throwing a stone against, and breaking the glass in, a window of said car. The Southwest Missouri Electric Railway Company is a street-railway company, and passenger-car No. 31 was a street-car being run on Mineral street in the city of Galena when the alleged offense was committed. The section under which the appellant was prosecuted reads as follows :
“Every person who shall wilfully cut, break, burn, injure or destroy any. locomotive, car, or other machinery, which now is or which may hereafter be in use upon any railroad in this state, or any wood-house, car or water-station erected for the accommodation and use of any railroad within this state, shall on conviction thereof be punished by confinement and hard labor in the penitentiary not less than one nor more than three years.”
The court instructed the jury in part as follows :
“Under the law of this state, so far as it is applicable to this case, it is enacted as follows: ‘Every person who shall wilfully . . . break, . . . [or] injure . . . any . . . car . . . which now is or which may hereafter be in use upon any railroad in this state . . .< shall on conviction thereof be punished. . . .’
“You are instructed that, as a matter of law, the railroad of the Southwest Missouri Electric Railway Company, described by the evidence in this case, is such a railroad as is mentioned in the statute from which I have just quoted ; and that statute is applicable to, and is invoked by, the charge preferred by the averments of the information in this case.”
Appellant contends that a street-car is not within the provisions of this section. We have not sought to ascertain when this section was first enacted into the laws of this state, but we find that it is section 105 of chapter 31 of the General Statutes of 1868. This was prior to the ■ existence of street-railways in Kansas. While this would not of itself be conclusive that street-railway cars were not included in this section, we cannot presume that the legislature intended to protect a class of property which did not exist in the state. The only article of property mentioned which indicates that a street-railway car might be included is the word “car,” but that word is used in connection with “locomotives,” “wood-house” or “water-station erected for the accommodation and use of any railroad within this state.” This class of property is not the equipment of a street-railway. The motive power of the first system of street-railways in the state was mules and horses, and street-railways have never possessed such equipments as “wood-houses” or “water-stations ;” so that the word “car” was evidently intended to refer to passenger- and freight-cars used on railroads where locomotives, wood-houses and water-stations are essential to their operation. The legislature has never treated the term “railroads” as inclusive of street-railways.
Subdivision 3 of section 727, General Statutes of 1901, in describing the general powers of the mayor and council of cities of the first class, and authorizing such cities to levy and collect a license-tax, provides that a license-tax may be collected upon all “railroad and railroad companies (including street- or horse railroads) and in subdivision 20, in granting authority to such cities to regulate parks and public grounds, it is provided that they shall have power “to provide for and regulate the construction and passage of railways and street-railroads through the streets, avenues, alleys or lanes and public grounds of the city.”
In section 5955, General Statutes of 1901, it is pro-. vided: “In any contract for the sale of railroad or street-railway equipment or rolling-stock it shall be lawful to agree that the title to the property sold or contracted to be sold . . . shall not vest in the
purchaser until the purchase-price shall be fully paid.” It will be observed that the legislature thought it necessary to mention street-railways specially, indicating that it did not understand the term “railroads” to include street-railways.
The authorities generally hold that street-railways are not included in the word “railroads,” and the provisions of the statute of the different states concerning railroads have not been held to include street, railways. In Funk v. St. Paul City Ry. Co., 61 Minn. 435, 63 N. W. 1099, 29 L. R. A. 208, 52 Am. St. Rep. 608, it was said :
“Laws 1887, c. 13 (G. S. 1894, §2701), provides that every railroad corporation owning and operating a railroad in this state shall be liable for damages sustained by an agent or servant by reason of the negligence of any other agent or servant. Held, that this law is not applicable to a street-railway corporation, although its line is operated by cable.”
In Manhattan Trust Co. v. Sioux City Cable Ry. Co., 68 Fed. (C. C.) 82, we find this statement in the syllabus :
“The Iowa statute (McClain’s Code, § 2008), malting a judgment against any railway corporation, for injury to person or property, a lien superior to that of mortgages on its property, does not apply to street-railway corporations.”
In Louisville & Portland Railroad Co. v. Louisville City Railway Co., 63 Ky. 175, it was held:
“A provision in a railroad charter that no other railroad should be constructed between two named points in a city, cannot be construed as prohibiting the construction of street-railways anywhere within the city for the convenience of its inhabitants.
“In a technical sense, a street-raihoai/ is not a railroad, and, in such contradistinctive sense, the term ‘railroad’ was used in the charter.”
In Lincoln Street R. Co. v. McClellan, 54 Neb. 672, 74 N. W. 1074, 69 Am. St. Rep. 736, it was held:
“Section 3, article 1, chapter 72, Compiled Statutes 1897, providing that ‘Every railroad company, as aforesaid, shall be liable for all damages inflicted upon the person of passengers while being transported over its road, except in cases where the injury done arises from the criminal negligence of the person injured,’ etc., has no application to street-railways.”
Also, in Bridge Co. et al. v. Iron Co., 59 Ohio St. 179, 52 N. E. 192, it was held :
“The statutes of this state relating to railroads are separate and distinct from those relating to street-railroads, and the word ‘railroad’ in section 3208, and in section 1 of the act of March 20, 1889, 86 O. L. P. 120, section 3231-1, Bates’s Statutes, does not include street-railroads.” •
We are firmly convinced that the act charged against appellant was not in violation of any of the terms of the section under which he was charged and convicted.
The judgment of the court below is reversed and the appellant discharged.
All the Justices concurring. | [
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Per Curiam:
These actions were begun by Douglass against A Galend and Joseph Soupseit in one case, and by the same plaintiff against A. Galend and John Clark in the other, to recover possession of real estate and the rents and profits thereof. The two actions were begun on August 5,, 1887. Galend answered and Douglass replied thereto on August 27, 1887. The records show that the actions were pending until September 5,1893, when A. Galend died and they were revived in the names of his widow, Aglace Galend, his two sons, Alfred and Arthur Galend, and Alberti Pavier, heir and legatee, the only heirs of the deceased.
The petitions were not amended. On December 4,1894, Aglace Galend, the widow, and Alfred Galend' and Arthur Galend, the two sons, filed in the cases entries of appearance. Alberti Pavier did the same, but the actions were afterward dismissed as to him. No pleadings were filed by the widow and sons of A. Galend, deceased. When the cases were called for trial they disclaimed, and judgment was entered in their favor for costs. Of this the plaintiff in error complains.
We do not think that the court erred in this ruling. There is nothing in either record to show that the petitions were amended by making the widow and sons of A. Galend parties defendant after the latter’s death. There was no right to maintain the actions without such amendments. (C. B. U. P. Rld. Co. v. Andrews, Adm'r, 34 Kan. 563, 9 Pac. 213.)
Plaintiff in error states that the heirs of A. Galend litigated with him for about thirteen years. There is nothing in either record to bear out this assertion.
The judgments will be affirmed. | [
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The opinion of the court was delivered by
Greene, J.
: This is an original proceeding in mandamus. The Knights and Ladies of Security is a fraternal beneficiary association. S. R. Tuttle was the financial secretary of Columbia council No. 50, a subordinate council of said association, and all dues were payable to him. John M. Miller was a member in good standing of council No. 50 up to July, 1902. The plaintiff was a level-rate member and his dues were payable monthly. In July, 1902, he tendered to the financial secretary all dues which he claimed were owing by him for that month, which'were refused. On July 31 the financial secretary declared and entered the plaintiff as a delinquent, and suspended him for the non-payment of his July assessment.
This action was brought to compel the association and the financial secretary to accept from plaintiff the amount so tendered in full payment of his assessment for the month of July, 1902, and to reinstate him as a member in good standing. An alternative writ was allowed, to which the defendant makes return, in substance, that the amount so tendered by the plaintiff as his July assessment was less than the actual amount due from him ; that plaintiff’s contract with the association is made up of its charter, which is chapter 23, Laws of 1898, as amended by chapter 147 Laws of 1899 (Gen. Stat. 1901, §§3568-3584), the code of 'laws of the order in force when plaintiff became a member and as subsequently changed, and his application and certificate ; that because of the nature and purpose of the association and the express terms of plaintiff’s contract the association reserved the right to make any change in its by-laws reasonable and necessary to the accomplishment of its general pur pose ; that in pursuance of such reserve power the national council, at its biennial meeting held at Louisville, Ky., in 1902, so amended its by-laws as to require all level-rate members belonging to plaintiff’s' class of risks, who held certificates issued prior to March 1, 1896, which provided for a level mortuary rate of a fifty-cent monthly assessment on each $1000, to pay a graduated rate as of the age when admitted, thus raising the plaintiff’s rate from fifty cents to seventy cents per month on each $1000 of insurance.
The plaintiff denies that he consented to the reservation of such power by the association, and alleges that the meeting of the national council held at Louisville, Ky., was without authority and in violation of one of the by-laws of the order, which provides that all meetings of the national council shall be held in the city of Topeka; that therefore its act placing plaintiff on the graduated list was void. Some other contentions are made by both parties, but we do not deem them of sufficient importance to be entitled to special consideration.
The local affairs of the order are controlled and managed by local or subordinate councils and its general affairs by a national council. The latter is composed of national officers and representatives rom the states. The representatives are elected by the members from each state where the order is established, and are apportioned one for each state and one for every 1000 members, or major fraction thereof. The by-laws of the association in force when the plaintiff became a member which are necessary to a right understanding and determination of the questions presented were the following:
“Section 1. The National Council of the Knights and Ladies of Security shall, alone, have the power to amend the constitution, ritual, laws and rules of discipline of the order, and it shall exercise all the powers of a supreme body of associations similar to this.
“Seo. 2. Its decisions on all matters pertaining to the order shall be final. It shall hear and decide all appeals, redress all grievances, and provide by legislation for the enforcement of its decisions.
“Sec. 3. It shall have the power to grant charters to councils ; to form them into state meetings, so that they may be properly represented in national meetings. It shall have the power, by a vote of two-thirds of the members present at any meeting, to deprive a council of its charter ; provided, such deprivation or annulment shall be made only for the violation of the constitution or commands of the national council or of the national executive committee.
“Sec. 4. It shall have exclusive jurisdiction of all councils of the order, and shall have the right and power to collect all assessments for the general, beneficiary and reserve funds.”
It is stated that the purpose and object of the organization is
“to unite both sexes in one grand fraternal association for the promotion of benevolence, charity, social culture, mental improvement, education, care for the sick and needy, to aid one another in obtaining employment, to assist each other in business, to induce the general elevation of the morals of society, and to provide a beneficiary fund, payable at death as the insured may direct, a sum ranging from $500 to $3000, or part in case of physical disability or partial, disability.”
For the purpose of raising this beneficiary fund the following provision is made :
“Each member shall pay to the financial secretary of the council to which he or she belongs, on each assessment, a sum according to the amount of his or her beneficiary certificate as shown in the following table, which is as follows : 25 cents on $500 beneficiary certificate, 50 cents on $1000, $1 on $2000, and $1.50 on $3000.”
Article 3 provides :
“Section 1. National meetings shall be held quadrennially, in the city of Topeka, Kan., on the second Tuesday in January, -at 9 :30 a. m., in the national hall of the society.
“Sec. 2. Called sessions of the national council shall be convened by the national president when twelve or more members of the national council, each in good standing, notify him in writing over their signatures of the object of the meeting. The business-to be transacted must be specified in the call, and no other business shall be transacted.”
Subsequently section 1 was so amended as to provide for the holding of national meetings biennially.
The plaintiff’s application for membership contained the following agreement:
“I further agree, if accepted as a member of the-order, to faithfully abide by all its rules and regulations.”
Preliminary to a determination of the important- and controlling issue in this case is the question,. Are the entire proceedings of the national council held at Louisville, Ky., in 1902, void because of a provision in the by-laws that all meetings of the national council shall be held in Topeka, Kan. ? The charter of this association is chapter 23, Laws of 1898, as amended by chapter 147, Laws of 1899 (Gen. Stat. 1901, §§ 3568--3584). By the provisions of section .8 of the original act, the governing body of this association has the power to make by-laws not inconsistent with the constitution and laws of the state and of the United States, and section 10 authorizes such association so to amend its by-laws as to provide for holding the meetings- of its legislative body in any other state or territory where such association has subordinate lodges. Under the provisions of sections 1 and 2 of its by-laws the national council has power to amend the by-laws without notice or formal proceeding, and “its decision on all matters pertaining to the order shall be final.” The record of the proceedings of the national council held at Topeka, Kan., 1900,.shows that the association adopted the following resolution : ‘ ‘Resolved, that the national council hold its meeting two years hence in the city of Louisville, Ky.” It was within the power conferred upon the national council, notwithstanding the by-laws, to change the place of its meeting, and its decision on this question was final, and the proceedings regularly had at such meeting were not void.
The important question in this case is, Did the association, with the consent of plaintiff, reserve the power so to alter or amend its by-laws subsequently to the issuance of plaintiff’s certificate as to increase the amount of his monthly assessments ? The plaintiff’s certificate is not his entire contract, and therefore not determinative of his rights and duties ; it is not complete in itself. Some of the conditions and agreements which make his contract must be looked for elsewhere. The certificate does not contain a statement of what his rate of assessment is nor when it shall be paid. To supply these omissions we must look to the by-laws of the association, his application, and certificate. To determine his rights and the exact relation between the plaintiff and the association we must look to the charter of the association.
The by-laws in existence when plaintiff became a member conferred upon the national council the power to amend its constitution, and also, provided that its decisions on all matters pertaining to the order should be final. The plaintiff, knowing that this power was vested in the national council, made application to become a member, in which application he agreed faithfully to abide by all .the rules and regulations of the order, if he should be accepted as a member. He was accepted on the conditions expressed in his certificate of membership, one of which is the following :
“This certificate is issued upon the express condition that the said insured shall in every particular, while a member of the order, comply with all the laws, rules and requirements thereof, and shall at his death be a member in good standing of said order.”
This association was organized for the mutual benefit and support of its members. It has no capital except what is paid by the members for the mutual benefit of all in case of sickness, or of their beneficiaries in case of death. It was not organized for profit, but to furnish a cheap rate of insurance for its members. The contractual relations between the members and the association should not be measured by the standard, or determined by the legal principles, which are applicable between-an ordinary insurance company and the holder of one of its policies. The.insured are members of the association ; ■ each has a voice in all proceedings pertaining to its business or general welfare, and in some ways it assimilates a partnership. All money collected by its scheme of assessment is the common property of the members, to be paid out in such amounts and to such persons as are designated by the members in their certificates upon the happening of certain events. For the purpose of better carrying out the scheme a national council was created, upon which was conferred the power to decide all matters pertaining to the order, and it was provided that its decisions should be final.
The condition in plaintiff’s certificate that he should in every particular, while a member of the order, comply with all the laws, rules and requirements thereof was a consent on his part not only to comply with the laws then in force, but also to comply with all reasonable rules and regulations that might be made thereafter in the interests of the association. Every person joining an association obligates himself, without so expressing it, to conform to, and comply with, all its existing laws ; and, if the provision in the plaintiff’s certificate means anything, it is that he agreed to comply with all laws then in force or subsequently to be enacted by the national council.
It therefore follows that the alternative writ must be set aside, and the case dismissed at the cost of plaintiff.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
This was an action brought by the defendant in error against her husband, the plaintiff in error, in the district court of Butler county for the sole purpose of recovering alimony. The husband at the time resided in Grant county, Oklahoma. The wife did not reside in Butler county, but her husband owned real estate there, which she caused to be attached. Subsequently to the bringing of this action the husband brought an action in the county of his residence against the wife for a divorce. The wife appeared and filed her answer and cross-petition, which contained allegations of extreme. cruelty and gross neglect of duty on the part of the husband and prayed for a divorce and an allowance of alimony. The allegations of this cross-petition, as against the husband, were the same as those contained in the wife’s petition in the action for alimony filed in Butler county. The Oklahoma case went to trial, and the court found that the wife had abandoned her husband and that he was without fault, and granted a decree of divorce upon the allegations of his petition, but reserved the question of property rights for the further and subsequent order of the court. By supplemental answer in the Butler county case the defendant set out the wife’s answer and cross-petition in full and a copy of the decree rendered by the Oklahoma -court. An unverified general denial was filed in reply.
Upon the trial of this action the defendant objected to the introduction of any testimony on the part of the plaintiff because she was estopped by the decree of the Oklahoma court from proving the facts alleged in her petition for alimony.- Testimony in support of' the plaintiff’s petition, however, was received, whereupon the defendant offered the answer of the wife filed in the Oklahoma court and the decree rendered by that court, and they were admitted in evidence. This decree did not show the date of its rendition, and because of the absence of such date the court refused to consider it, holding that it was thereby rendered •absolutely void. In announcing that conclusion the •court used the following language :
“Well, I do not care to hear anything further so far as this decree is concerned. I am satisfied that it is absolutely void. The necessary thing under the law is the date on which it is rendered. If the statute means anything at all it means that. Now .there is (nothing in this decree to show when that six months will expire. Of course, you allege in your answer that it was made on a certain date, but her reply •denies that absolutely. I am satisfied that the decree is absolutely void, so there will not be any use of wasting any further time on that proposition, and the •court will find that the decree rendered by the district court of Oklahoma is void and of no effect.”
Thereupon,, the defendant declining to introduce any other evidence, the court upon the evidence on the part of the plaintiff adjudged that she had a right to recover alimony, and entered judgment therefor, decreeing the same to be a lien upon the attached real estate.'
The questions arising upon this statement of facts which engage our attention are: (1) Did the court err in refusing to consider the decree of divorce and in holding it void? - (2) If it did, what would have been its effect had it been considered by the court ? It cannot be that the court intended to hold, as a general proposition, that the. omission of the date of its rendition from the journal entry of a judgment renders it void. We conclude, rather, that it was referring to section5142, GeneralStatutesof 1901, which directs that “every decree of divorce shall recite the*day and date when the judgment was rendered in the cause, and that the decree does not become absolute and take effect until the expiration of six months from said time,” and held that, inasmuch as this statute required the de cree to recite the date of its rendition, without such date it would be void. In the case of Durland v. Durland, 67 Kan. 734, 74 Pac. 274, this court had occasion to remark upon the object and purpose of this section, and there held, in substance, that it had but one object, and that was to prevent the divorced parties from remarrying within the inhibited term ; that for all other purposes the. decree would take present effect. It would necessarily follow that, for the purpose for which the defendant below introduced the decree, its efficiency nowise depended upon its date.
It is suggested that the court did not err in refusing to consider it in evidence because its verity was not sufficiently attested by certificates, as required by the statute. However, the record shows that it was received in evidence, but the court refused to consider it simply and solely on one ground—that it was void, and not that it was not sufficiently attested. Had it refused to permit its introduction because not properly authenticated, another question might have been presented, or the defendant might have been prepared to introduce a properly-authenticated copy or asked for a continuance to permit him to do so. It is enough to say that the court did admit the decree in evidence, but refused to give it force for the one specific reason-set out above, and hence we are called upon to pass on the sufficiency of that reason only. We are clearly of the opinion that the reason assigned by the court for not considering the decree was erroneous, and that whatever weight this decree by its terms was entitled to should have been given it.
What would have been the result upon the action had the Oklahoma decree been considered valid by the trial court ? The statute authorizing a proceeding by the wife for the purpose of obtaining alimony from the husband (Gen. Stat. 1901, § 5144) says that such action may be brought “for any of the causes for which a divorce may be granted.” In this proceeding the causes set up in the wife’s petition for alimony were extreme cruelty and gross neglect of duty on the part of the husband. These were the identical caúses contained in the wjie’s cross-petition in the Oklahoma court as grounds for granting her a divorce and alimony there. As a matter of law we must hold that the truth of them was litigated and determined by that court, it having full jurisdiction of the subject-matter and of the parties. That court determined that the husband was without fault; that is to say, it determined that the allegations upon which the wife depended in her action for alimony were untrue, and, if untrue, she could not prevail in this action to recover alimony. The matter upon the truth of which her right of recovery was based had become res judicata against her and could not be relitigated or inquired into again by the Butler county court. We need not stop to inquire what might have been the result had not the wife submitted herself to the jurisdiction of the Oklahoma court or had there pleaded the prior pendency of the case in Butler county. After that court had decided against her she could not be permitted to open up and relitigate these questions, even though they were pending in another forum at the time of the first adjudication ; she submitted herself to the Oklahoma court and must abide its determination.
Our attention, however, is called to the fact that the Oklahoma court did not determine the question of' alimony, but held that open for further investigation and subsequent conclusion, and that therefore the question of alimony was not res judicata, and the Butler county court may proceed with its determination. The infirmity in this reasoning is that alimony may not be granted to a wife in an action brought solely for that purpose except upon adequate grounds therefor, and, of course, a court may not decree alimony in such action unless it find true the grounds relied upon; hence, the grounds relied upon here having been found untrue by the Oklahoma court, that question is res judicata in the Butler county court, and that court could not award alimony, the grounds therefor not being sustained. The question here is not what relief the Oklahoma court may later award the wife, but what relief she may obtain in this action. Alimony may be granted to a wife in an action brought for divorce, even though the wife be adjudged in fault; not so in one brought for alimony only.
Some other grave questions are presented in argument, but under our view, as above expressed, we find no necessity for considering them.
The judgment of the court below will be reversed, and the cause remanded with directions to proceed in accordance with this opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, O. J. :
George' Peake, as receiver of the' Siegel-Sanders Live-stock Commission Company, recovered a judgment by default against Henry Orchard for $590. Within a short time, and at an adjourned-term, Orchard filed a motion asking vacation of the- judgment, alleging as grounds that no summons had been served on him, that he had no notice of the pendency of the action, and knew nothing of it until after the rendition of the judgment. There was added to the application the statement that he had a good defense to the action, and a request that he be allowed to file therein an answer. At the hearing considerable testimony was offered concerning the service of the summons and Orchard’s knowledge of the pendency of the action, upon which the court denied the motion and refused to vacate the judgment.
If there was any doubt of the jurisdiction of the court over the person of Orchard, it was removed when he appeared and set forth the defenses he had to the action. The averment of matters relating to the merits of the case which were non-jurisdictional in character waived any defects there might have been in the service of the summons.
The principal controversy on the motion, however, was the service of the summons, and whether Orchard had originally been given legal notice of the institution of the action. A summons was issued, and upon it the sheriff made a return showing personal service of the same on Orchard. The return was conclusive of the questions of service and of jurisdiction. It being a matter of the truth and falsity of which the sheriff had personal knowledge, his return was not open to contradiction or to be disproved by extrinsic evidence after the rendition of the judgment. (Goddard v. Harbour, 56 Kan. 744, 44 Pac. 1055, 54 Am. St. Rep. 608; Thomas v. Owen, 58 id. 313, 49 Pac. 73; Warren v. Wilner, 61 id. 719, 60 Pac. 745.) The oral testimony that was received strongly supported .the official return.
The sheriff caused service to be made through a deputy, and himself wrote the return ; but even a return signed by the sheriff when the service is actually made by a deputy, although not the approved method, is sufficient. " (Goddard v. Harbour, supra.) While the return in this case was not. written by the deputy who made the service, it plainly indicated that it had been served by him.
The validity of the appointment of the deputy was challenged, mainly because the appointment and oath of office of the deputy were not filed in the office of the county clerk, as provided by section 1745 of the General Statutes of 1901. The requirement of the section is directory in its character and does not affect the qualification of the officer. The mere fact that the papers were not on file did not invalidate the appointment or the service made. Aside from this consideration, it was abundantly shown that the deputy had been regularly appointed, had taken the oath of office, and had been acting as deputy under the appointment for considerable time. He had the qualities of a de facto officer, at least, and his official acts .could not be safely ignored. (The State v. Quint, 65 Kan. 144, 69 Pac. 171.)
From the evidence in the record we cannot say that the court abused its discretion in denying the applica-' tion of plaintiff in error. The judgment is affirmed.
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The opinion of the court was delivered by
Smith, J. :
Nearly all of the brief of counsel for plaintiff in error is devoted to the contehtion that the verdict of the jury was contrary to the evidence and should have been set aside by the trial court. We have read the testimony on both sides of the controversy, and while it does not strongly preponderate in favor of plaintiff below yet we are not prepared to say that there was no evidence to justify the result. Doctor Tandy, a disinterested witness, testified that in like cases the practice among members of his profession, when first called, is to take hold of the afflicted part to ascertain the cause of the injury, and that excruciating pain suffered by the patient should impel a physician to seek knowledge of a dislocation ; that great pain and a feeling of paralysis in the limbs would impose the duty of making some examination to determine the seat of the trouble. He further testified that it was difficult to locate a dislocation or fracture ; that in such cases a surgeon ought to make a careful examination, if the parts are in a condition so that it can be done ; that the pain would be alleviated by reducing the dislocation at the time ; that there would be much unnecessary suffering if proper relief were not administered for ten or eleven days. Doctor Forney, another physician, testified that in his judgment a dislocation of the right shoulder ought not to be overlooked by a skilled physician', if a close examination were made. There was testimony showing that when Doctor Manser was called there was no swelling in the arms.
Upon cross-examination of Doctor Emersonian expert who testified for the defendant below, responses were extracted from him from which the jury might infer that the treatment of Mrs. Collins by Doctor Manser evidenced a negligent failure to discover the true cause of her suffering. The matter rested largely on the opinion'of physicians having experience in the treatment of such cases. It is true, as contended by plaintiff in error, that a physician is required to possess a reasonable degree of learning and skill only ; that the exercise of ordinary care and diligence will •exempt him from liability; and that he is not responsible for errors of judgment in matters of reasonable doubt. (Erastus Tefft v. Hardin H. Wilcox, 6 Kan. 46.) The court so instructed .the jury, and the sole question involved was whether the conduct of defendant below in his treatment of the patient showed a breach of professional duty, within the rule stated. It was the claim of defendant that Mrs. Collins did not apprise him of any injury to her right arm and shoulder, and that after examination he discovered nothing but a bruise on the left arm which caused some discoloration; that he injected morphine into that, but did not treat the other arm at all. It will be seen from this that there was direct conflict between the testimony of plaintiff and that of defendant.
Defendant below was a physician of eighteen years’ practice, which fact it is presumable that plaintiff knew when she called him. It was his duty to use reasonable care to ascertain the seat of his patient’s trouble. It was to be expected that he would treat the disorder itself and not the symptoms of it. For neglect to exercise reasonable skill in ascertaining the source of her distress defendant below was held liable. There can be no doubt that physicians and surgeons in such cases must respond in damages if their carelessness result in injury to the patient. In Burk v. Foster, 69 S. W. (Ky.) 1096, 59 L. R. A. 277, a physician was held liable for a failure to discover a dislocation of the arm at the shoulder joint. He was called in to attend the injured person within an hour after an accident. As a consequence of his neglect, the muscles of the patient’s arm atrophied, the shoulder joint became stiffened, and the arm practically useless. The court said :
“In this case the patient was entitled to an ordina rily careful and thorough examination of his injuries, such as the circumstances attending their infliction, the condition of the patient and the surgeon’s opportunities for examination suggested and allowed. If the dislocation was discoverable by such examination, and if the physician felt that because of lack of appliances or lack of experience he was unable to treat any peculiar feature of the injury, it was at least the right of the injured man to be apprised of his condition, that he might call in more skilled attention, if he desired.”
(See, also, Carpenter v. Blake, 75 N. Y. 12; Langford v. Jones, 18 Ore. 307, 22 Pac. 1064; Lewis v. Dwinell, 84 Me. 497, 24 Ad. 945.)
The question of contributory negligence charged to-the plaintiff below was submitted to the jury under proper instructions.
It is contended that, if the neglect of Doctor Manser be conceded, his patient suffered mental distress, only, for which no recovery can be had. Doctor Tandy testified that if the joint or dislocation had been reduced in time the intense pain which plaintiff suffered would have been lessened ; that unnecessary pain would result from a delay of ten or eleven days. It may be said that the failure of the doctor to alleviate-the patient’s suffering was the cause of it, at least, to the excess above a minimum to which it might have been reduced after prompt discovery of the cause and by proper treatment. To that extent he caused her physical harm by a negligent omission to exercise reasonable skill. Where mental suffering is an element of physical pain, or a consequence of it, damages for it may be recovered. Mental suffering, however, resulting from the injury which arises in the mind but is not a part of the pain naturally attendant upon, and connected with, the injury, cannot be regarded as an element of damage. (City of Salina v. Trosper, 27 Kan. 544; 1 Suth. Dam., 3d ed., 275; Chicago City Ry. Co. v. Taylor, 170 Ill. 49, 48 N. E. 831. See, also, Lathrop v. Flood, 63 Pac. [Cal.] 1007.)
The present case does not fall within the rule announced in Railroad Co. v. Dalton, 65 Kan. 661, 70 Pac. 645.
The judgment of the court below will be affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by J. T. Sandefur to recover from H. H. Hines the sum of $500 as commission for procuring a purchaser for certain real estate of Hines’s in Coffeyville. Defendant denied that Sandefur was his agent or that he had been employed to sell the land, and when plaintiff had rested the trial court sustained a demurrer to his evidence.
The only question presented here is, Did the testimony, when viewed in the light most favorable to plaintiff, tend to show his employment by the defendant to find a purchaser for the real estate, and that he procured a purchaser ready, able and willing to take the property at the stipulated price? It is well settled that a broker employed to sell land is Entitled to his commission when he is the procuring cause of a sale, and has produced a buyer who is willing and able to pay the agreed price and to consummate the sale. The testimony tended to show that Sandefur was a real-estate agent and had been engaged in the business at Coffeyville for about ten years; that about the 1st of January, 1902, he asked Hines to place his property with him for sale, bub Hines said he did not then desire to sell, but that later he might want to do so and he would then let him know. About the middle of January, 1902, Sandefur wrote Hines asking him to list the property with him for sale. In response to these requests Hines wrote the following letter :
“Winfield, Kans., Feb. 5th, 1902. Thos. Sandefur, Esq., Coffeyville, Kans,:
Deab Sib—Some time ago you wrote me regarding the sale of my building there. At that time I did not want to sell but have decided now to do so. I will make you a price on the building, and if you can find a buyer for me let me know as soon as possible. I want five thousand dollars cash. There is at present a mortgage of one thousand dollars on it. The buyer can assume the mortgage if he so desires and pay me $4000. I want to sell the property so I will get $4000 cash clear out of it besides your commission ; so you must add your commission to the selling price ($5000). Let me hear from you at your earliest convenience. Yours truly,
H. H. Hines.”
Immediately after the receipt of this letter Sandefur took steps to sell, and after some correspondence and negotiations he did, in the early part of June, 1902, procure a purchaser who was ready and willing to take the property for $5500 and to pay the price in cash. When informed that the property had been sold and he was requested to complete the sale, Hines said he had raised money by the sale of other property, and, therefore, did not need money and would not sell or convey the Coffeyville property. We think the evidence was sufficient to take the case to the jury.
Defendant’s contention is that there was no employment because there' was no reply to his letter and no acceptance of the offer which he had made. His letter, however, was a response to the proposal previously made by Sandefur to him. He had been asked to list his property with Sandefur, and in compliance with the request he did so in the letter of February 5,-1902. The testimony, taken together, is open to the interpretation that his letter was an acceptance of the proposition made by Sandefur to sell the property at such price as Hines might list it. It is true that, at the close of the letter, there was a request for an early reply, but that is substantially a repetition of the request earlier made in the letter that “if you can find a buyer for me let me know as soon as possible.” This statement indicates that the reply or response contemplated by Hines was a notice that a purchaser had been found.
Another consideration which weighs against the defendant is that when informed that a purchaser had been found he did not question the employment of plaintiff and did not object to the terms of the sale.. He based his refusal to complete the sale on the single ground that he was no longer in need of money, having raised it by the sale of other property. His conduct at that time was some evidence tending to show an employment of Sandefur, and further, that the sale conformed to the instructions given by Hines to his agent.
The contention of no agency, and therefore no liability, which the defendant now makes, is wholly in consistent with the position which he took when he refused to complete the sale and when the defendant’s cause of action accrued. It is not becoming in him' to place his refusal on one ground, and, when the plaintiff has been driven into litigation to enforce the contract, to defend his refusal on another and wholly-different ground. The rule applicable in such cases was stated in Redinger v. Jones, 68 Kan. 627, 75 Pac. 997, in which Mr. Justice Burch made the apt quotation that, “where a party gives a reason for his condupt and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground and put his conduct upon another and a different consideration. He is not permitted thus to mend his hold; he is estopped from doing it by a settled principle of law.” (Railway Co. v. McCarthy, 96 U. S. 258, 24 L. Ed. 693, and cases there cited. See, also, Davis v. Wakelee, 156 U. S. 680, 15 Sup. Ct. 555, 39 L. Ed. 578; Davis & Rankin Bldg. & Manuf’g Co. v. Dix, 64 Fed. [C. C.] 406; Tabler, Crudup & Co. v. Sheffield Land, Iron & Coal Co., 87 Ala. 305, 6 South. 196; Harriman v. Meyer, 45 Ark. 37; McDonald v. Hooker, 57 id. 632, 22 S. W. 655, 23 S. W. 678; Wallace v. Minneapolis & Northern Elevator Co., 37 Minn. 464, 35 N. W. 268; Wyatt v. Henderson, 31 Ore. 48, 48 Pac. 790; Harris v. Chipman, 9 Utah, 101, 33 Pac. 242; Ballou v. Sherwood, 32 Neb. 666, 49 N. W. 790, 50 N. W. 1131; Frenzer v. Dufrene, 58 id. 432, 78 N. W. 719; 9 Rose’s Notes [U. S.] 424.)
The defendant’s demurrer to the evidence admitted every fact and every inference which the testimony most favorable to the plaintiff tended to prove, and when the testimony in the case is measured by the rules applicable to a demurrer to the evidence it must be held that it tended to prove the cause of action alleged, and therefore the judgment must be reversed and the cause remanded for a new trial.
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Tfie opinion of the court was delivered by
Smith, J. :
West street, in Hillsboro, an incorporated city of the second class, runs north and south along the western limits of the town. Defendant in error, who was defendant below, owns property on the west side of the street and abutting thereon.. South of his premises there are several residences, one of which was occupied by plaintiff in error at the time of the injuries complained of. There was no sidewalk on the east side of the street. About two years before plaintiff below was injured, Ebel took up a board sidewalk in front of.,his property and substituted for it a cinder walk about four feet wide and eighteen inches above the bottom of the gutter. The cinder walk was held in place by planks set on edge, and these were kept upright by pins, or stakes, driven in the ground against the planks on the street side.' The walk was in general use by persons living south of EbePs place who had occasion to go back and forth to the business part of the town.
Defendant below, desiring to drain his land into the gutter, dug a ditch across the cinder walk to a depth of twelve to eighteen inches, and about the same width, with perpendicular sides. It was left open and unguarded. On the evening of April 16, 1901, while it was yet light, plaintiff below, plaintiff in error here, went to church with her husband and young daughter, and passed over the cinder walk. They saw the ditch across the sidewalk which had been dug that day, stepped over it without inconvenience, and noted its' location, so that they might avoid it on returning. After the meeting was over, Mrs. Wiens, accompanied, by her husband and daughter, started home. When they reached the vicinity of the sidewalk in question, they found many teams in the road, or street, adjacent to the walk. It was a dark and rainy night. Plain-' tiff below, while walking slowly, fearing a fall into the ditch, did fall into it, and suffered injuries for which she sought to recover damages from Ebel. The court below sustained a demurrer to plaintiff’s-evidence on the theory that she was guilty of contributory negligence. She has come here alleging error.
Defending the ruling of the trial court, counsel for defendant below comment thus in their brief on the conduct of Mrs. Wiens :
“ Plaintiff knew of the ditch which defendant had cut through the walk for the purpose of draining his land into the gutter along the public road. She, in company with her husband and daughter, passed over it safely in daylight, about half-past six o’clock, April 16, on their way to a meeting. When they returned after the meeting was out it was dark. They did not provide themselves with a light to enable them to see the ditch. The plaintiff did not provide herself with a cane or other means for ascertaining the location of the ditch. She did not take hold of her husband’s or daughter’s arm to assist her in crossing the ditch, although her husband was only two steps ahead and the daughter not more than that distance in the rear. She took no precautions whatever to avoid stepping-into the ditch ; simply felt for it with her feet in the dark. She stepped down into the ditch and was precipitated forward, and claims to have thus sustained the injuries complained of.”
The list of precautionary measures which plaintiff might have adopted could be extended beyond those suggested by counsel, and still leave the question of' her contributory negligence to be decided by the jury.
We cannot yield assent to the conclusion that, considering all the circumstances surrounding plaintiff below when she was injured, as a matter of law she was guilty of contributory negligence barring a recovery, and that after plaintiff had rested no question of fact was left for the jury to decide. It has-been held often by this court that knowledge of a defective sidewalk will not debar a traveler knowing such fact from using it. In Langan v. City of Atchison, 35 Kan. 318, 326, 11 Pac. 38, 43, 57 Am. Rep. 165, Chief Justice Horton, speaking for the court, approved what was said in Maultby v. City of Leavenworth, 28 Kan. 745, 748. In the latter case is found the following:
“Now, in this case the plaintiff was intent on business. While he knew the condition of the sidewalk, he was cautious in his action. Ordinarily a party is not obliged to forsake the sidewalk and travel in the street, for while thereby he would avoid one kind of risk he would expose himself to another, to wit, that of injury from passing vehicles. Besides that, the condition of a street on a rainy night is not such as to invite the steps of one traveling on foot. Nor is a party, although he is aware of the condition of the sidewalk, necessarily obliged to go around the block or travel by another street. The reasonableness of his action depends upon the distance of the surrounding way'and the urgency of his need. And all this presents a question of fact for the consideration and determination of a jury. We therefore think that the district court erred in discharging the jury and entering judgment for the defendant. Obviously there was a question of fact as to whether the conduct of plaintiff was reasonably prudent.”
To the same effect see City of Emporia v. Schmidling, 33 Kan. 485, 6 Pac. 893; City of Horton v. Trompeter, 53 id. 150, 35 Pac. 1106; Davis v. City of Holton, 59 id. 707, 54 Pac. 1050; Whitford v. Southbridge, 119 Mass. 564; Flynn v. Watertown, 173 id. 108, 53 N. E. 147; Mellor v. Bridgeport, 191 Pa. St. 562, 43 Atl. 365; Dundas v. City of Lansing, 75 Mich. 499, 42 N. W. 1011, 13 Am. St. Rep. 457, 5 L. R. A. 143; Mosheuvel v. District of Columbia, 191 U. S. 247, 24 Sup. Ct. 57, 48 L. Ed. 170, 63 L. R. A. 571.
There were many things j ustifying plaintiff in using the sidewalk. The darkness of the night prevented her from seeing the dangerous place ; the many teams in the street and its muddy condition were circumstances to be considered in estimating the degree of cure used.
There is an implied invita'tion to the public to use a sidewalk. Defendant below did nothing to indicate that this invitation was withdrawn, which he could have done easily by guarding the excavation. If the plaintiff below exercised that degree of care which persons of ordinary prudence usually exercise under similar circumstances, she was not guilty of contributory negligence. (Chicago & N. W. Ry. Co. v. Prescott, 59 Fed. 237, 8 C. C. A. 109, 23 L. R. A. 654.)
The judgment of the court below is reversed and a new trial ordered.
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The opinion of the court was delivered by
Mason, J.:
On June 1, 1900, an execution was issued upon a judgment in the district court against J. B. Gatliff. It was levied upon four city lots, which were sold on July 23 following, being bid in by the plaintiff, R. M. Hill. On September 22, 1900, a motion was filed for the confirmation of the sale, in which motion the sale was described as having been made on the 24th of July, 1900. On September 24, 1900, an order of confirmation was made. For some reason an entry of this order upon the journal of the court was not made until more than eighteen months after the sale. The entry, when made, recited a hearing upon the motion to confirm the sale and an order of confirmation, without mentioning the date of the the sale. A certificate of purchase was executed on October 18, 1900, and a sheriff’s deed on January 25, 1902. On October 4, 1902, the defendant filed a motion to set aside the sale and the “pretended order of confirmation” upon the following grounds : That the levy was excessive, and that plaintiff caused it to be made for the purpose of defrauding defendant; that the sale was not properly advertised; that it was riever confirmed; that the amount bid was grossly inadequate; that no motion was ever filed to confirm the sale. Besides the matters referred to in the motion defendant relied upon a claim that the property sold comprised two distinct, although contiguous, tracts which should not have been sold in gross. The court, after hearing evidence, set aside the sale, the levy, and the confirmation, and the plaintiff, who was the purchaser, brings this proceeding to reverse such order.
Objections are made to the consideration of the case, based upon two grounds : (1) That matter was inserted in the case-made by plaintiff in error after it had been served and after the expiration of the time allowed for suggesting amendments; (2) that it is not shown that all the evidence is preserved in the record. The facts in relation to the first objection are that after the case had been served upon the defendant the plaintiff discovered that a certain material exhibit had been omitted, whereupon he procured the case-made, corrected the omission, and made a new service, which defendant accepted, all within the time originally fixed for serving the case, and before it was signed and settled. There was nothing objectionable in this. (Sloan v. Beebe, 24 Kan. 343.) In the preparation of the case the plaintiff’s attorneys', after setting out the proceedings had with reference to the motion to set aside the sale, added a statement in the form of a certificate made and signed by themselves that the “foregoing case-made” contained (among other matters) all the evidence introduced at the hearing. It is argued that, under the authority of Winstead v. Standeford, 21 Kan. 270, this certificate was no part of the case-made, and that its recitals are of no effect. In that case this court disregarded similar statements made in a notice to the opposing attorneys, which was not shown ever to have been served upon them. Here the certificate immediately preceded the acknowledgment of service and was a part of the document served upon the adverse party and afterward settled and signed by the judge as a case-made. If the matter in question were in the form of a mere statement instead of a certificate, and did not refer to the • “foregoing case-made,” its efficiency could not be questioned. We do not think these considerations sufficient to render it ineffectual.
Questions as to excessive levy, lack of sufficient notice of sale and inadequacy of price are necessarily involved in, and determined by, the order of confirmation, and ordinarily cannot be relitigated. In this ■case no special circumstances are shown justifying a Teinvestigation of these matters upon motion of the ■defendant filed, more than two years after the conhrmatiop, especially in view of the fact that at any time within eighteen months after the sale the defendant could have redeemed the property by payment' of the amount for which it was sold. There is nothing substantial in the claim that the sale was never confirmed. The date of sale given in the motion to confirm was manifestly a clerical error, and the fact that a formal record was not made until some time after the order of confirmation is not important.
The judgment is reversed, and the cause remanded with directions to overrule the motion to set aside the sale and other proceedings.
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The opinion of the court was delivered by
Greene, J. :
C. C. McDowell and John McDowell were brothers, and sons of Charles McDowell, who died possessed of two tracts of land containing 98 and 160 acres, respectively. The 98-acre tract was encumbered by a mortgage to Chase county, upon which' ■$1000 was due at the time of the transactions hereinafter stated. On July 29, 1881, Charles McDowell borrowed from J. K. Carter $1000 with which to pay ■the Chase county mortgage, and secured Carter by a mortgage on the 160-acre tract: On April 3, 1883, ■Charles McDowell conveyed to John McDowell the '■98-acre tract, which was at the time clear of encumbrance, and to C. C. McDowell 100 acres of the 160-•acre tract, which was encumbered by the Carter mortgage given by Charles McDowell and wife and C. C. McDowell and wife. These conveyances were gifts from the father to his sons. It is agreed that the 98-acre tract and the 100-acre tract were of equal value.
Plaintiff alleges that when these conveyances were made, in order to make the gifts equal between the sons, the father exacted an agreement from John McDowell that he would pay one-half of the Carter mortgage and that C. C. McDowell should pay the remainder, thus equalizing the value of the gifts, and leaving the sixty acres retained by the father clear of all encumbrance. The two sons paid the accruing interest annually upon the Carter debt until it matured, when it was renewed by the execution by Charles and C. C. McDowell of a new note, secured by a mortgage upon the 160-acre tract. It is alleged that at this time a new agreement, similar to the former one, was exacted of John and by him executed. After the renewal of the Carter note John paid' his proportion of the interest on this debt until the time of his death, which occurred August 1, 1888, and soon thereafter this plaintiff was appointed administrator of his estate.
The present action originated in a proceeding in the probate court by C. C. McDowell to have one-half of the Carter debt charged against the estate of John. The cause was appealed from there to 'the district court, where judgment was rendered against the administrator, and to reverse it the latter prosecutes error. (This cause has been in this court before and is reported in 63 Kan. 75, 64 Pac. 980.)
The first error alleged is in the admission of the testimony of W. D. McDowell, W. W. Sanders, and Robert Clements, relating to statments made to them by John McDowell concerning his liability for the Carter indebtedness. It is claimed that this testimony was introduced to toll the statute of limitations, and erroneously so, because it was made to strangers who had no interest in the matter. It is riot clear that this was the only purpose for which this testimony was introduced; it was competent for another purpose. The administrator denied that John McDowell had agreed to pay any portion of the Carter debt. The testimony .of these witnesses of statements made by John that he was liable for one-half of the Carter debt was admissible as tending to prove the fact.
It is contended that more than three years had ■elapsed between the time of the original agreement and the time when this proceeding was commenced ; that therefore the statute of limitation had barred any ■right of action, and the court should have sustained defendant’s demurrer to the evidence offered by plaintiff. We think counsel has overlooked the testimony •of J. F. Kirker, the cashier of the Strong City Bank, which was to the effect that the bank held the Carter note and mortgage for collection, and that some time within a year before the death of John McDowell he •came to the bank and inquired of Kirker about his note. When informed that the bank held no note against him, he referred to the Carter note and stated that he was liable for one-hálf of it and interest, and that he desired to pay his proportion of the interest,, which he did, and the cashier credited it on the note. This statement to the cashier, while acting as the-agent of Carter, is equivalent to a statement made to-Carter himself. (Sibert v. Wilder, 16 Kan. 176, 22 Am. Rep. 280; Schmucker v. Sibert, 18 id. 104. 26 Am. Rep. 765; Investment Co. v. Bergthold, 60 id, 813, 58 Pac. 469.)
Of course, an oral admission of a debtor of his-liability will not toll the statute, but a payment made to the agent of the creditor to be-applied on the debt, accompanied by a statement by the person making it-that he is liable for one-half of it, is sufficient acknowledgment-of his liabilty'to toll the statute as to him. Section 4452 of the General Statutes of 1901 provides : “In any case founded on contract, when any part of the principal or interest shall have been paid, an action may be brought in such case-within the period prescribed for the same after such payment. . . .”
A contention is made that the court erred in excluding the testimony of Margaret McDowell. It was the purpose of the defendant to prove by this witness that there was another and different agreement between John and Charley by which John had agreed to pay one-half the interest on the Carter debt. It was not. the purpose to show by such testimony that the agreement relied on by plaintiff did not exist, nor that the money paid by John to the cashier was not under such agreement, but to establish a theory different from that claimed by plaintiff. It did not tend to-dispute or deny any material contradicted fact; at best, it could only have raised a very remote inference against the claim of plaintiff. In view of the evidence in this case, the defendant was not prejudiced by the exclusion of such testimony.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Bukch, J. :
James McClaren died in 1869, leaving a will devising to his widow a life-estate in the land in controversy, consisting of an eighty-acre tract, with remainder in fee to his daughters, the plaintiff and the defendant. On March 16, 1874, these sisters orally agreed to divide the land, the plaintiff taking the south forty acres and the defendant the north forty acres, and on the same day the widow conveyed her interest in the respective tracts to her daughters by separate deeds. The husband of the defendant was also named as grantee in the deed to the defendapt of her share of the land.
The defendant took possession of her part of the land, and has at all times since been in the actual possession of it, claiming to be the owner; has made lasting and valuable improvements upon it; has paid all taxes assessed against it, and has received all the rents and profits accruing from it since 1874. The plaintiff lived on or near the tract deeded to her for a few years and then sold it, keeping the proceeds as if the land had been her own. She has known since 1874 that her sister claimed the exclusive right to the north forty, and throughout the years made no claim upon it of any kind until she commenced this suit, in February, 1902. The devisee of the life-estate died in 1888. The plaintiff now denies that her verbal agreement and her conduct and the conduct of her sister in reliance upon the agreement are sufficient to exclude her from title to, and possession of, the land.
The courts have little forbearance toward claims so destitute of moral and conscientious quality. The statute of frauds was enacted to prevent, and not to foster, injustice, and the rule is settled in this state that possession, the payment of taxes, and permanent improvement under a parol agreement, with knowledge and acquiescence, remove the contract from the operation of the statute. (Holmden v. Janes, 42 Kan. 758, 21 Pac. 591; Newkirk v. Marshall, 35 id. 77, 10 Pac. 571; Holcomb v. Dowell, 15 id. 378.) Upon the same principle a parol partition acted upon in thiscase will not be disturbed. (Crimmins v. Morrisey, 36 Kan. 447, 13 Pac. 748; Duffey v. Rafferty, 15 id. 9, 13; 21 A. & E. Encycl. of L., 2d ed., 1137 et seq.)
It is said that the defendant’s possession must be referred to the deed from her mother as life-tenant and that she could not hold adversely to her cotenant of the fee. This proposition ignores the agreement between the parties under which the land was divided between them, and under which the plaintiff surrendered all right to the defendant’s portion. The cotenancy of the fee was then at an end. The plaintiff no longer held any estate in remainder in the defendant’s part of the land, and the defendant was at perfect liberty to take title to the life-interest in her own portion and hold the entire estate adversely to the plaintiff.
At the time the agreement to divide the land was made, the defendant lacked a month of being of age. The contract, however, was voidable only and became binding when the defendant failed to disaffirm within a reasonable time after attaining majority. (Gen. Stat. 1901, §4183.)
The case of Love v. Blauw, 61 Kan. 496, 59 Pac. 1059, 48 L. R. A. 257, 73 Am. St. Rep. 334, has no application because the partition in this case was between owners of the fee, and not between life-ten.ants on one side and remainder-men on the other.
The findings of fact are assailed as unsupported by the evidence. In a few unimportant particulars the court may have embodied in its findings some facts which the record only suggests', but every fact essential to a judgment in favor of the defendant was abundantly sustained.
The facts relied on as an estoppel to the plaintiff’s recovery were sufficiently pleaded, and 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. :
On December 3, 1895, Cassandra F. Clark borrowed of the defendant in error, Patrick H. Shepard, the sum of $2300, and gave her note therefor, due in two years after date, with interest at the rate of ten per cent, per annum from date. To secure the payment of this note certain bonds of the Rosemont Land Company, the payment of which was secured by mortgage upon real estate' in Wyandotte county, Kansas, were assigned and delivered to Mr. Shepard, and the following written agreement relative thereto was made by the parties:
“This agreement, made and entered into the 3d day of December, 1895, by and between Cassandra F. Clark, of Kansas City, Mo., party of the first part, and Patrick H. Shepard, of Kansas City, Mo., party of the second part,
“Witnesseth: The party of the first part has this day borrowed from the party of the second part the sum of twenty-three hundred ($2300) dollars for which she has given to the party of the second part her promissory note of even date herewith, payable two (2) years from its date at the Interstate National Bank of Kansas City, Kansas, with interest at ten per cent, per annum from date, payable annually; and for the purpose of securing the payment of her note, the party of the first part hereby assigns'and transfers, or causes to be assigned or transferred, to the party of the second part thirty-eight (38) bonds of the Rosemont Land Company, issued by said company on the 4th day of May, 1891; twenty of the same being of the denomination of one hundred ($100) dollars each, and eighteen (18) of the same being of the denomination of five hundred ($500) dollars each; the payment of which said bonds is secured by trust deed or mortgage given by the Rosemont Land Company, the maker of said bonds, upon a tract of thirty-two ( 32) acres of land situated in section eight (8), township eleven (11), range twenty-five (25), Wyandotte county, Kansas, all of which said bonds were issued by said Rosemont Land Company to the Commonwealth Loan and Trust Company; and which said bonds have been indorsed and assigned by said Commonwealth Loan and Trust Company and now belong to the assignee of the People’s Guaranty Savings Bank of Kansas City, Missouri, which said bonds are to be held by.the party of the second part for two years, or until party of first part fails to comply with this contract, as collateral security for the payment of the note given by the party of the first part to the party of the second part.
“It is further agreed between the parties hereto that the party of the first part shall, within twenty (20) days after the date of. this contract, cause to be instituted in the proper court in Wyandotte county, Kansas, a suit .to foreclose the trust deed or mortgage above referred tp, securing the payment of said bonds ; that said foreclosure proceedings shall be begun and maintained in the name of the party of the second part, or his assigns ; but the party of the first part, or her assigns, shall employ and pay the attorneys therein, and shall pay all costs of said proceedings; that on the termination of said foreclosure proceedings, the party of the second part, or his assigns or representatives, should he or they become the purchasers of said land under said foreclosure proceedings, shall convey to said party of the first part, her heirs or assigns, the land so purchased at said foreclosure sale, upon the payment by the party of the first part, her heirs or assigns, to the party of the second part, his heirs or assigns, the amount of the principal and interest then due on the note given by the party of the first part to the party of the second part, and when all of the other terms and conditions of this contract have been complied with by the party of the first part, her heirs or assigns.
“It is further agreed that should the party of the first part fail, neglect or refuse to pay the interest upon her said note given to the party of the second part, or fail to comply with all the terms and conditions of .this contract, the party of the second part may sell, or cause to lie sold, in any manner he may see fit, and with or without notice, the bonds above referred to, and which he holds as collateral security for the payment of the note given by the party of the first part to the party of the second part.
“In witness whereof, the parties hereto have set their hands and seals to duplicate hereof at Kansas City, Kansas, this 3d day of December, 1895.
Patrick H. Shepard.
Cassandra F. Clark.”
Soon after the execution of this contract Mrs. Clark, in accordance therewith, caused an action to be brought in the proper court, in the name of Mr. Shepard, for the foreclosure of the mortgage against the Rosemont Land Company, and deposited fifteen dollars as security for costs of the action. This is all she did under the terms of the contract or in payment of her note or interest thereon, unless she paid two years’ interest, which is disputed. The foreclosure action proceeded to judgment, and at the .sheriff’s sale Shepard became the purchaser of the land and received a sheriff’s deed therefor, which was dated September 19, 1899. He went into possession, paid the delinquent and current taxes, and the costs of the foreclosure suit, including attorney’s fees. From the date of the sheriff’s deed up to the commencement of this action February 28, 1902, Shepard was in undisputed possession of the land in question, renting, using, managing, and in all respects treating it as his own. At no time did Mrs. Clark or the plaintiffs in error, who are her heirs at law, she having died, .ever offer to pay Shepard the amount due him upon his note or his expenditures.
The foregoing contract was placed on record, constituting, as Shepard thought, a cloud upon the title of the land in him. For the purpose of having this removed and having the respective rights of all parties determined, he brought this action, wherein, after setting out the facts substantially as above, he prayed
“that the court order and decree herein that, unless said amount, as claimed by the plaintiff herein, be paid within a reasonable time from the rendition of said decree herein, said contract be canceled, and for a further order declaring said contract to be null and void and of no force and effect, and that the right, title and interest, if any the defendants might have, may be forever barred.’’
The defendants’ answer admitted the giving of the 'note by Mrs. Clark, the assignment of the collaterals, the execution of the agreement, the foreclosure of the Rosemont Land Company mortgage, and the purchase of the land in question by the plaintiff at the sheriff’s sale in question, but averred that the legal effect of all this was that of a mortgage ; that defendants were the owners and holders of the title to the real estate ; that whatever was due to Shepard upon the note and for expenditures was a lien upon the real estate ; and prayed that an accounting be had, and the amount due, if any, be determined, and declared only a mortgage lien on the land; and that, upon its payment, Shepard be directed to convey the title to the defendants.
Upon these issues the court, upon evidence, found the amount due, and directed that if it should be paid to the plaintiff within ten days he should convey the premises to the defendants by a quitclaim deed, but that in case of failure to make such payment within that time, they and all persons claiming under them should be forever barred and foreclosed of any right to redeem, or right, title or interest in the land. To vacate this order the defendants below bring this proceeding in error.
. The only serious claim of error is that the court took a wrong view of the character of this transaction ; that it should have held that the title which Shepard was holding, acquired as it was, constituted, as between the parties, a mortgage to secure to him the amount of money due him ; and that, it being a mortgage, the court could not decree, as it did, a strict foreclosure, but that it should have adjudged that amount a lien on the land and directed its sale as upon foreclosure. This presents the inquiry of the character of the transaction between Shepard and Mrs. Clark. Was it such as to create but a mortgage» upon the land in favor of Shepard, and did the subsequent purchase of the lands by Shepard under the foreclosure proceedings instituted by Mrs. Clark simply place in him a defeasable title, amounting only to a mortgage, which must be regularly foreclosed ?
It must be borne in mind that it was the bonds of the Rosemont Land Company that Mrs. Clark assigned, transferred and delivered to Shepard for the purpose of securing her note. This transaction was a pledge of these bonds and not a mortgage-upon the land, and it created the relation of pledgor and pledgee, not of mortgagor and mortgagee. The relation that exists between pledgor and pledgee and mortgagor and mortgagee are entirely different under the law. A pledgee must take possession of his pledge ; a mortgagee may not, in the absence of stipulations to that effect. A pledgee may retain possession of his pledge until his debt be satisfied, and is not bound to dispose of the pledge by formal sale, even upon the maturity of his debt, but may, if he choose, have strict foreclosure of his lien by summary sale, upon advertisement. A mortgagee, under our statute, is never entitled to strict foreclosure, but must proceed by proper suit, and await the period of redemption. Were the transaction one involving simply the choses in action, there being no real-estate mortgage securing them, probably there would be no question of the character of the holding or the right of the pledgee ; but these bonds’of the Rosemont Land Company were secured by mortgage. That, however, was but an incident to them; and the law is that, when a mortgage which secures choses thus held is-foreclosed and the land bid in by the pledgee, it becomes, by substitution, the collateral security, taking the place of the choses which the mortgage had ¡secured, and, as such, is governed by the law of pledge, •and not of mortgage. (Ross v. Barker, 58 Neb. 402, 78 N. W. 730; Dalton v. Smith et al., 86 N. Y. 172; Brown, Administrator, v. Tyler and others, 8 Gray, 135, 69 Am. Dec. 239; Cole. Coll. Sec., 2d ed., § 183; Jones, Pledges, Coll. Sec., 2d ed., § 660.)
The land in Shepard’s name occupied the same position as did the bonds prior to the foreclosure; the relation of mortgagor and mortgagee never existed between him and Mrs. Clark. A mortgage is a grant, and, as in all other grants, there must be a grantor, a grantee, and an estate to be conveyed. Mrs. Clark never had any estate in this land ; therefore she could convey none by mortgage or otherwise.
Besides the questions which would arise under the law of pledges, had there been no agreement between these parties, there is the question of the relationship created by the agreement. It provided that Mrs. Clark should institute and prosecute to fruition a foreclosure suit and pay all of the expenses of the same. This certainly implied her assent to such proceeding. It provided further that, should Shepard become the purchaser of the land under such foreclosure proceedings, he should .convey it to her upon the payment of the amount due. This implied Mrs. Clark’s consent to his purchase of the land with the agi’eement that it thereby should become his, to be held absolutely by him, unless she should pay the amount found due to him within a reasonable time. Clearly this agreement did not constitute a mortgage ; the most that could be claimed would be a right to redeem upon the payxnent of the amount due, and to receive back from Shepard the full title which he had legally acquired.
Shepard’s action was one to determine the amount due him and afford the representatives of Mrs. Clark an opportunity, by its payment, to obtain a conveyance of the land to them, and to obtain a decree that, in default of such payment, any claim that they might make, or color of claim that might arise, by reason of the record of the agreement, should be extinguished. This was clearly the extent of their right under the law, and especially so, under the agreement.
It is suggested that the' period of ten days for redemption was unreasonably short. That was a matter resting within the sound discretion of the court, and we cannot say that this was abused. The answer itself set up that the defendants were ready and able to discharge the amount found due, and not much fault should be found with the court for having taken them at their word. Nor was there specific objection made to the shortness of time.
Complaint is made that the amount found by the court to be due Shepard was excessive; at least, by two years’ interest on Mrs. Clark’s note. Shepard’s petition alleged that there was due to him the face of the note, with interest from December 3, 1897—an implication that the interest upon the note from its date to the time it fell due had been paid; however, had the allegation been specific, we do not think that Shepard would have been irrevocably bound thereby. His object was not to recover on the note, but to give opportunity for redemption of the land, if defendants should desire it. His prayer was that the amount due him be ascertained, and the defendants joined in this prayer. The court was endeavoring to ascertain the amount due. There is sufficient evidence in the record to justify the finding made by the court in this respect.
We find no error in the record, and hence affirm the judgment.
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The opinion of the court was delivered by
Mason, J. :
On January 18, 1882, the mayor and council of Leavenworth, a city of the first class, passed an ordinance granting for twenty years to the Leavenworth City & Fort Leavenworth Water Company, a corporation, the right to construct and maintain a system of water-works and to use the streets of the city so far as necessary for the purpose. Section 21 of the ordinance read :
“The city of Leavenworth reserves the right, on or after the expiration of twenty years from the date of this ordinance, to purchase these works of the company, together with all extensions, rights and franchises belonging to the same, upon giving said company six months’ notice thereof in writing, the valuation to be determined by three hydraulic engineers not in the employ or interest of the city or company, the city choosing one, the company one, and the third by these two ; and the valuation of the works by these commissioners, or, if they fail to agree, a majority of them, shall define the sum to be paid to the company by the city; and in case no sale of the works to the city be effected at the expiration of tweny years or thereafter as aforesaid, then the contract then existing between said parties shall continue during the period so passed over.”
The ordinance was duly accepted and acted upon by the company. At the time of its passage the city had no express power to purchase water-works, and the statute (Laws 1881, ch. 37, §35) forbade the granting of such a franchise for a longer period than twenty years, or its renewal, except by consent of a majority of the qualified voters of the city, to be ascertained at an election to be held for that purpose. This statute was amended by section 2 of chapter 34 of the Laws of 1883, which provided that upon the expiration of the twenty years for which a grant had been made, or might thereafter be made, for the maintenance of a system of water-works, the city might buy the water-works at a valuation to be fixed by three appraisers, one to be chosen by the owners, one by the city, and the third by these two; the franchise granted to'the company by the city to continue until' a purchase should be effected, such purchase to be made only in pursuance of an election by the voters of the city, and elections not to be held oftener than once in ten years. The same section' also included the following:
“All ordinances heretofore passed and contracts made by the mayor and council of any city of the first class since the passage of the act of which this act is amendatory, granting to any company or corporation the right to erect, maintain and operate water-works in and for such city, provided that the same would be authorized by said section 35 as hereby amended, are hereby in all things legalized, confirmed and made valid, and all rights acquired under the said act of which this act is amendatory are hereby preserved, subject to the provisions of this act.”
A large part of the expense of the company in the construction of its system of water-works was incurred after the passage of this act. In 1891 the whole of such section was repealed and an act was passed providing a method by which a city might under certain circumstances acquire water-works constructed by private capital at a valuation to be determined by three commissioners, one to be named by the city,one by the owner of the water-works, and the third by the district court. (Laws 1891, ch. 73, §4; Gen. Stat. 1901, §772.) In 1897 the legislature embodied in an independent act the same general plan with certain new features, among which was a provision, that the two commissioners not selected by the court should be designated by the county commissioners. (Laws 1897, ch. 82, §12; Gen. Stat. 1901, §664.) This section attempted to authorize the taking of water-works by condemnation proceedings, but it has been held to be unconstitutional because that object was not expressed in the title of the act. (Enterprise v. Smith, 62 Kan. 815, 62 Pac. 324.)
Some six months before the expiration of the franchise granted to the water company the city gave notice that it desired to, and would, buy the waterworks. The company thereafter designated an appraiser upon its part to act in fixing the value of the property. The city, however, ignored this action and called an election to vote upon a proposition to issue bonds either to purchase the existing water-works or to erect a new plant. On February 17, 1902, the water company brought an action against the city and its officers, alleging in substance that they were attempting to acquire the water-works under color of the act of 1897, and asking that they be enjoined from attempting .to take the property against the plaintiff’s will in any other manner than that provided in the ordinance. A temporary injunction was granted and upon a final hearing it was made permanent. The city brings this proceeding to review the action of the district court.
It is contended on behalf of the water company that the ordinance passed in 1882 was validated by the -statute of 1888, and that, notwithstanding the expiration of the twenty years, the company is entitled to the full enjoyment of all the rights granted it by the ordinance until such time as the city may see fit to purchase the water-works at a valuation made by arbitrators selected according to its terms, or according to the provisions of the statute of 1883. The city contends that the attempted ratification was ineffectual and that the rights granted by the ordinance are at an end. These conflicting claims exhibit the vital controversy between the parties; but the formal question now presented for determination is merely this : Did the trial court err in granting the permanent injunction ?
The plaintiff in error assumes that the city has been enjoined from acquiring in any way a water-works system of its own, but the judgment rendered did no more than restrain the mayor and council “from taking the property of the said plaintiff without its consent in any other manner than as provided by the act of 1881, and the ordinance 'of 1882, and the act of 1883.’’ A conclusion of law was made that the ordinance, in connection with the acts of 1881 and 1883, constituted a valid contract, and this declaration was incorporated in the journal entry of judgment as a part of the decree. This, however, was in effect a mere recital in the nature of a reason for the determination reached rather than an essential part of the final judgment. It was not, and did not profess to be, an attempt to define the respective rights of the city and the company under the ordinance and statutes further than to accord to the company a sufficient standing to enable it to resist an attempt to take its property by other than lawful means. Even if the rights of the company granted by the ordinance expired absolutely at the end of twenty years, it •still was the owner of the plant, and as such could claim the protection of a court of equity against an unlawful attempt to deprive it of its property.
It is unnecessary to discuss in detail the various specifications of error. The judgment must be affirmed unless it appear that either the city was not attempting to take the property without the consent of the owner and in some other manner than that provided in the ordinance (or in the statute of 1883), or that the city had a right so to take it. The findings of the court show a proclamation by the mayor calling an election to vote upon a proposition to vote bonds for the purchase or erection of water-works, reciting that the proceedings are taken under certain specified sections, including section. 12 of chapter 82 of the Laws of 1897 (Gen. Stat. 1901, §664). This is the section already cited, providing' for a valuation of the water-works by commissioners appointed by the district court and county commissioners, and the city could hardly invoke its aid without admitting a design to acquire the property under its provisions. But the plaintiff in error complains that this finding has no support in the evidence, and the objection appears to be well founded. However, the finding is of no importance except for the purpose indicated, and elsewhere in the record there is found an affidavit that an attorney of the city had admitted in open court during the progress of the litigation that defendants were proceeding under the act of 1897 to acquire the. property. Under all the circumstances of the case, this will be held to be a sufficient showing in this regard.
Plaintiff in error claims that the company had no vested right in the method provided by the contract and statute of 1883 for fixing the value of the property in case of a sale to the city, and cites in support of the contention the cases of Spring Valley Waterworks v. Schottler, 110 U. S. 347, 4 Sup. Ct. 48, 28 L. Ed. 173 (s. c., 61 Cal. 3), and Spring Valley Waterworks v. Bartlett, 16 Fed. (C. C.) 615. An agreement to sell upon a valuation to be fixed by three appraisers, one of them to be chosen by the company, cannot be made the basis of a compulsory sale at a valuation to be settled by commissioners in the selection of whom the company has no voice. The manner of selecting the persons who are to decide the selling price is a substantial part of such a contract. (State, ex rel. Brown, v. McPeak, 31 Neb. 139, 47 N. W. 691.) In the cases cited it was held that a private corporation, organized under a law authorizing it to supply water at rates to be fixed by a commission, part of the members of which were to be selected by itself, may be-required to submit to a later law substituting for such commission a tribunal in the formation of which it was given no voice. But these decisions did not proceed upon the theory that the change in the method of fixing the charges for water did not affect the substantial interests of the company; they rested upon two wholly different principles. One was that “whenever private property is affected by a pub- lie use, . . . the public, through the legislature, may determine the compensation he may charge for the use of his property.” The water company being under an obligation to furnish water at reasonable rates, it was held to be competent for the legislature to provide its own method of insuring their reasonableness. But it does not follow that the state can, through any • agency, determine at what price one shall sell his property. It is not apparent in the present case that the company was under any obligation to sell at a reasonable price, or at any price except such as should be fixed by the plan to which it had agreed. The other consideration upon which the California statute was upheld was the reservation by the state constitution of the power to amend any law for the formation of corporations. The original statutory provision for fixing the water-rates, the benefit of which the company sought to retain, was a part of the very act under which the corporation was formed, and the case was therefore within the express terms of the constitutional reservation.
The power of amending acts conferring corporate powers is reserved by the Kansas constitution. (Const., art. 12, §1.) But the statute of 1883, the protection of which the company claims, did not relate to a grant of franchises to a corporation as such. It authorized certain rights to be given by the city “to any person or persons, company or corporations.” ( The State v. Haun, 61 Kan. 146, 59 Pac. 340, 47 L. R. A. 369; County of Santa Clara v. Southern Pac. R. Co., 18 Fed. [C. C.] 385.) The authorities referred to, therefore, have not the full effect claimed for them. However, the question upon which they are cited does not arise here, for the legislature has not attempted to change the contract made by the city and water com pany. The statute of 1897 did not amend that of 1888 ; it did not seek to enforce the sale of the property under the contract (or the earlier statute) at a price to be fixed by a new plan; it attempted to enable the city to acquire water-works by an entirely different method—that of condemnation. It is competent for the legislature to authorize the taking of a water-works system by the right of eminent domain, notwithstanding existing contracts with the municipality, for which allowance may be made in awarding damages. (Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 17 Sup. Ct. 718, 41 L. Ed. 1165.) Section 12 of chapter 82 of the Laws of 1897 (Gen. Stat. 1901,' § 644), had it been valid, would have authorized the acquisition of the property by payment of the value as determined by the means it provided, in spite of the company’s contract rights, unless an intention to prevent an interference with them might be derived from the requirement that the valuation be made “exclusive of the city’s franchise or property element therein but by reason of the defective title the section was ineffective for any purpose.
It is suggested, however, that sufficient power to acquire the property may be found in section 4 of chapter 73 of the Laws of 1891 (Gen. Stat. 1901, §772). As already stated, that section provided for the condemnation of water-works, and was the basis of the 1897 section, which was practically a reenactment of it with a few changes—chiefly those necessary to extend its provisions to public utilities other than water-works. Such an enactment of á new statute covering its entire subject-matter obviously effected the repeal of the earlier' section, unless this result was prevented by the later section’s being inoperative by reason of the defect in the title. But even if this .section of the statute of 1891 be still in force, the inquiry remains whether it applies to any water-works other than such as have been constructed under the provisions of that act. Its language is :
“No grant or contract provided for in the preceding section shall continue for a longer period than twenty years ; and any such grant or contract may be terminated at any time after the expiration of ten years from the making of the same, or such less time as may be fixed at the time of making such grant or contract; and the city may acquire title to the waterworks property, and all the rights, privileges and franchises thereto pertaining, in the manner following.’
Probably the legislature assumed that all waterworks constructed under the former act would be governed by its provisions, notwithstanding its repeal. There is an obvious difference between the language just quoted and the corresponding part of the 1897 statute, which by its terms was made applicable to any water-works. As was said in Enterprise v. Smith, supra, statutes attempting to assert the sovereign power of dispossessing the citizen of his property must be strictly construed. We hold that the statute in question applied only to water-works constructed under the provisions of that act.
There being no way other than that provided in the ordinance by which the city can lawfully acquire the water-works here involved without the consent of the defendant, there was no error in the judgment enjoining it from attempting to do so.
Plaintiff in error contends that the preliminary injunction was improvidently granted and should have been vacated. The final judgment was in no way dependent upon, or.influenced by, the rulings relating to the preliminary injunction, and since the decree for a perpetual injunction is approved by this court there is no purpose in considering the regularity of the temporary.order.
What has already been said is sufficient to determine the result of this proceeding—that the judgment of the district court must be affirmed. But to stop here would be to leave unsettled the principal matter of controversy between the parties—the question whether the attempted ratification of the contract by the act of 1883 was effective. The question is presented in the record by the declaration in the final judgment that the ordinance was valid, and as it has been fully argued on both sides it will be considered and decided. The grounds upon which the statute is attacked are three : (1) That the part under discussion was not within the title ; (2)' that it was void because the legislature could not by subsequent enactment give vitality to a contract which was beyond the power of the city when made; and (3), that it was obnoxious to the several constitutional provisions requiring general laws to have a uniform operation, and forbidding special legislation granting corporate powers, or providing for the organization of cities, or in any case where a general’law can be made applicable.
The title was “An act to amend [certain sections of] an act entitled ‘An act to incorporate and regulate cities of the first class, and to repeal all prior acts relating thereto,’ approved March 4, 1881.” It is argued that neither this title nor the title of the act of 1881, which is included within it, is broad enough to cover a provision legalizing existing ordinances. Existing ordinances were sought to be legalized, however, only so far as they related to the subjects involved in the amended sections and conformed to the requirements of the new act in reference thereto. This seems entirely pertinent to the matter of the regulation of cities of the class affected. It would serve no good purpose to review the cases arising under the requirement that the title and body of an act should agree. It is sufficient to say that we do not deem this title misleading.
There are cases holding that the contract of a municipality, void for want of capacity, cannot be validated by subsequent legislation, but the great weight of authority is to the contrary. In Brown v. Mayor, 63 N. Y. 239, 244, it was said :
“The power of the legislature to ratify a contract entered into by a municipal corporation for a public purpose, which is ultra vires, results from its power to have originally authorized the very contract which was made. Municipal corporations are agencies of the state, through which the sovereign power acts in matters of local concern. It may confer upon them, subject to such constitutional restraints as exist, power to enter into contracts, and may annex such limitations and conditions to its exercise as, in its discretion, it deems proper for the protection of the public interests. -The right to limit involves the power to dispense with limitations ; and in this case, as the legislature could have authorized this contract without previous advertisement or competitive bidding, it may affirm the contract, although made originally without authority of law.”
See other cases cited in note to Steele Company v. Erskine, 39 C. C. A. 173, 181, 98 Fed. 215; also, O’Hara v. State of New York, 112 N. Y. 146, 19 N. E. 659, 2 L. R. A. 603, 8 Am. St. Rep. 726; Los Angeles City Water Co. v. City of Los Angeles, 88 Fed. (C. C.) 720; C. & P. Telephone Co. v. Balto. City, 89 Md. 689, 43 Atl. 784; The State, ex rel. the Attorney-general, v. Miller, 66 Mo. 328; Morris & Cummings v. State, ex rel. Cussett, 62 Tex. 728; The Mill Creek Valley Str. Ry. Co. v. The Village of Carthage et al., 18 Ohio C. C. 216; note to Hasbrouck v. Milwaukee, 80 Am. Dec. 718, 730, 734.
The present case is not within, the rule applied in Commissioners of Shawnee County v. Carter, 2 Kan. 115, and Felix v. Wallace County, 62 Kan. 832, 62 Pac. 667. Those cases denied the tight of the legislature to perform the judicial function of determining the validity of claims asserted against municipalities. Here existing contracts were confirmed only so far as they would be authorized under the powers conferred by the new act.
The argument against the statute upon the ground that it is within the constitutional prohibition against special legislation derives plausibility from the consideration that, so far as the part now in question is concerned, it applied solely to conditions existing when the act was passed, and could have no future operation, and whether the ordinances to be affected by it were few or many their number was fixed and definite and not capable of enlargement. So much of section 1 of chapter 66 of the Laws of 1893 (Gen. Stat. 1901, §635) as excluded from corporate limits such parts of town sites as had already been vacated was open to the same objection. But that act was upheld by the court of appeals (Town Co. v. City of Smith Center, 6 Kan. App. 252, 51 Pac. 801) in a decision afterward affirmed by this court (60 Kan. 857, 56 Pac. 1131). The case chiefly relied upon in this connection by plaintiff in error is Ceclar Rapids Water Co. v. Cedar Rapids, 118 Iowa 234, 91 N. W. 1081. There the city of Cedar Rapids, having passed an ordinance in excess of its powers, the legislature by a special act attempted to give it validity. The court held the attempt to be ineffectual, but for the express reason that the practical effect of the act was to ex cept a single municipality from the operation of the general law relating to cities of its class, and thereby to destroy the uniformity of its operation. Here the portion of the act complained of, instead of tending to prevent uniformity in the regulation of cities of the first class, distinctly tends to promote it. The new methods put in force as to such cities generally are made, so far as possible, to reach back and apply to steps already taken before their adoption, so that different rules should not obtain in the same city, or even in different cities, with respect to similar matters. Similar acts were upheld against the same objections in Kumler v. Silsbee, 38 Ohio St. 445, and in Davidge v. Common Council, 62 Hun, App. Div. 525, s. c., 71 N. Y. Supp. 282. In Kittinger v. Buffalo Traction Co., 160 N. Y. 377, 396, 54 N. E. 1081, it was said of an act confirming certain consents previously given by cities’for the operation of street-railroads :
“This act is general in terms and applies to every situation, like that therein described, in all of the cities of the first and second class in this state. How many "there may be we have no means of ascertaining, and it is not necessary for the one claiming the benefits of the statute to show that other corporations in the same or other cities enjoy the advantages of it. The constitutionality of a statute is not determined by matters outside of the statute, but from the statute itself.”
In Flynn v. Little Falls Electric & Water Co., 74 Minn. 180, 192, 77 N. W. 38, 78 N. W. 106, it was said:
“We think that counsel for the plaintiff have overlooked the fact that this is merely a curative act, intended to provide for a temporary object, to wit, the legalizing of a certain class of existing village ordinances and contracts. For such a purpose a really distinctive class may, and often must, be based upon existing temporary circumstances. . . . Hence, the act is not subject to the objection of being special legislation, if it in fact includes all existing village ordinances and contracts similarly situated as respec the subject and object of the act.”
In Read v. Plattsmouth, 107 U. S. 568, 576, 2 Sup. Ct. 208, 27 L. Ed. 414, it was said, a curative act be ing under consideration :
“The language of the constitution, forbidding special legislation of that description, conferring corporate powers, evidently refers to grants of authority to be exercised by the body itself and in the future, and a consideration of the evil intended to be remedied by the prohibition will confine it to grants of that character, and will not include a statute like that now under discussion.”
In Springfield Safe Deposit & Trust Co. v. City of Attica, 85 Fed. 387, 391, 29 C. C. A. 214, it was said of various Kansas cases cited, including City of Topeka v. Gillett, 32 Kan. 431, 4 Pac. 800:
“ They do not sustain the contention that the legislature of Kansas has no right to pass a law applicable to a particular municipal corporation, legalizing acts already done, which are invalid by reason of a defective or irregular exercise of some corporate power, although the act works no change in the powers of the corporation to be exercised in future.”
In the syllabus of Windsor v. City of Des Moines, 101 Iowa, 343, 70 N. W. 214, it was said :
“Act April 10, 1894, to legalize certain unexecuted grading contracts made by the city of Des Moines, which were invalid by reason of defects in the notice of proposals for bids, is a valid curative act, and does not contravene constitution, article 3, section 30, forbidding the passage of local or special laws for the incorporation of cities and towns.”
We hold that the act in question is not within the purpose and intent of any of the constitutional inhibitions, and that the trial court ruled correctly that the ordinance and contract were valid.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
.Smith, J. :
Plaintiff in error must fail in her at-tempt to get title and possession to the property involved for three reasons :
(1) She purchased land from Mary P. Jones which was encumbered by a mortgage for $10,000 to Hiram Holt, executed by her grantor. Its existence was a matter of record. When the Wisconsin Planing Mill Company began suit to foreclose its lien for material furnished to Mary P. Jones, it did not, it is true, seek to fix its claim as a charge on the land now in controversy, but on other lands covered.-by the Holt mortgage. Before Hiram Holt was made a party to the action brought by the planing-mill company, Mary P. Jones had executed a deed to the land in question to plaintiff in error, but it was withheld from record until after Hiram Holt had come into the foreclosure suit, set up his mortgage against Mary P. Jones and her codefendant on the same land and obtained judgment thereon and an order of sale of the mortgaged property.
The case must be treated as though the legal title to the land now in question vested in Mary P. Jones at the time the decree foreclosing the Holt mortgage was entered, and regard Jennie Jones as a purchaser pendente lite. (Smith v. Worster, 59 Kan. 640, 54 Pac. 676, 68 Am. St. Rep. 385; Baker v. Land Co., 62 id. 79, 61 Pac. 412; Atchison County v. Lips, ante, p. 252, 76 Pac. 850.)
Mary P. Jones and her codefendant, T. B. Jones, were duly served with summons in the suit brought by the Wisconsin Planing Mill Company to foreclose its lien. They were bound to take notice of the cross-petition of Hiram Holt, filed thereafter, in which he asked for and obtained a decree for the foreclosure of his mortgage and an order of sale of the property in controversy. In Kimball and others v. Connor, Starks and others, 3 Kan. 414, 431, it was said : “When the original summons is served the defendants are' in court for every purpose connected with the action, and the defendants served are bound to take notice of every step taken therein.” In Curry v. Janicke, 48 Kan. 168, 29 Pac. 319, it was held that when a party has been properly served with summons he must take notice of an answer and cross-petition filed by a defendant who was made a party to the action .after the answer-day named in the summons. Mary P. Jones and T. B. Jones being in court to answer in a suit brought to foreclose a material-man’s lien on land which they had mortgaged to Hiram Holt, they ought reasonably to have expected that their mortgagee would come in and assert his rights under his mortgage. They being in court, their failure to plead did not render any action that was taken in the suit less •obligatory upon them.
(2) After the sale in foreclosure of the land claimed by plaintiff in error, her grantor, Mary P. Jones, and T. B. Jones, filed a motion to vacate and set aside that ■sale on eight grounds. The first challenged the court’s jurisdiction over the persons of defendants ; four others attacked the appraisement returned by the sheriff; the fifth alleged that there was a combination botween bidders at the sale which suppressed competition ; another, that sufficient notice was not published ; and another, that no money was paid by the purchaser. This attack on the sale, so far as it was based on non-jurisdiction al grounds, was a general appearance in the case. (Burdette v. Corgan, 26 Kan. 102; Life Association v. Lemke, 40 id. 142, 19 Pac. 337; Investment Co. v. Cornell, 60 id. 282, 56 Pac. 475; Baker v. Land Co., supra.)
(3) The whole of section 22, township 18, range 13, the northwest quarter of which is here involved, was sold under the decree of foreclosure to Hiram Holt for $5500, the sale confirmed, and a sheriff’s deed executed. Holt and his grantees have been in peaceable possession since 1887. This is not a suit to redeem, but an action in ejectment. The following cases are decisive against the right of plaintiff in error to recover the land: Kelso v. Norton, 65 Kan. 778, 70 Pac. 896, 93 Am. St. Rep. 308; Stouffer v. Harlan, 68 id. 135, 74 Pac. 610; Mortgage Co. v. Gray, 68 id. 100, 74 Pac. 614.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Per Curiam:
On the first proceeding in error it was held that, the notes being given to plaintiffs and the mortgage securing them to another, the mortgagee was a necessary party to an action of foreclosure brought by the payees of the notes. (Swenney v. Hill, 65 Kan. 826, 70 Pac. 868.) When the case went back for a new trial the' mortgagee was made a party. It was within the power of the court to allow the amendment, and proper to permit plaintiffs to show the real ownership of the mortgage and how it came to be drawn in favor of another. The objections to testimony in regard to the mistakes of the scrivener are not material. The rights of the plaintiffs were not affected by the foreclosure of the second mortgage, and as it does not appear that plaintiffs exercised the option given them to de clare the whole debt due until action was brought, there is nothing to show that it was barred. The testimony offered did not constitute a defense to the action and the decision of the court in so holding was correct.
In the briefs attention is called to the form of the judgment, which did not provide for redemption as it should have done. The petition in error, which specifically sets out the errors relied on, does not make the omission mentioned a ground of error, and, hence', it is not open to consideration now. If an attempt be made to exclude defendants from the statutory right, the district court will doubtless, upon application, afford protection to the defendants.
The judgment is affirmed. | [
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Per Ouriam:
This was an action to recover for personal injuries sustained by a passenger while alighting from a railroad-train, which, it was alleged, was negligently and prematurely started while she was alighting and before she had time and opportunity to do so. A recovery was had, and the principal complaint is that the proof of negligence was insufficient to sustain the findings and judgment.
There was testimony tending to show that the train was crowded, many standing in the aisles; that Mrs. Loewe did not hear the station announced, but that when the train was slowing up she learned that the station was her destination ; that she started out of the car without delay when the train stopped; that it was dark and there were no trainmen to assist her; that when she reached the steps of the car and was about to alight on the platform the train started, throwing her under the car and crushing her foot. There was testimony, too, that a very brief stop was made, ■and, although the car was crowded and many were to depart, the jury found that the stop was but one and one-half minutes. It is true that there was much plausible testimony contradictory of that stated, and it would seem to us, from a reading of the record, that the preponderance was against the plaintiff below, but, under the rules which obtain in a reviewing court, it must be held that there was sufficient evidence to sustain the finding of negligence on the part of the railroad company, and the absence of contributing negligence on her part. Under her testimony it was a question of fact whether it was negligence for her to leave the car while it was in motion. (A. T. & S. F. Rld. Co. v. Hughes, 55 Kan. 491, 40 Pac. 919.) While the starting of the train was noticed by others, it was not observed by her until her foot was placed on the platform of the station.
We find nothing substantial in the objections that the findings were not supported by the testimony and were fatally inconsistent with one another; nor do we find any sufficient grounds for a reversal.
The judgment is affirmed. | [
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Ter Guriam ■:
The plaintiff seeks to reverse an order of the district court which permitted receivers, on their own application and over his objection, to make a final report and be discharged. Prior to such application this court had held that the district court had acted without jurisdiction in the appointment of such receivers. (Bowman v. Hazen, ante, page 682, 77 Pac. 589.)
Plaintiff in error contends that at the time the receivers made this application the court had no jurisdiction to pass on the questions presented or to make any orders therein, except to set aside the appointments, in pursuance of the mandate of this court. While we agree to this contention, the order actually made was not prejudicial to him and did not in any way substantially affect any of his rights. The court examined the accounts of the receivers, allowed their expense accounts, which were paid by the adverse party without expense to the plaintiff in error, and also ordered the receivers discharged.
Many questions are argued by plaintiff in error which this court cannot examine because of the insufficiency of the record. The most of. such questions are involved in another case between the same parties submitted at- this term. There appears to be nothing substantial involved in this case except the costs in this court.
For the reasons stated, this proceeding is dismissed. | [
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Per Curiam:
The court below sustained.a demurrer to plaintiff’s evidence, and the ruling is assigned as error. There is no statement in the case-made showing that it contains all the evidence. At the beginning of the trial the record recites “and thereupon the plaintiff offered the following testimony.” There are no words expressive of continuity between the testimony of the several witnesses. At the close of the evidence appear the words “plaintiff rests.” The case-made also shows that a written personal-property statement was admitted in evidence and marked “Exhibit A,” which is omitted from the record.
The proceedings in error must be dismissed on the authority of Smith v. Alexander, 67 Kan. 862, 74 Pac. 240. See, also, Wertz v. Albrecht, 58 id. 576, 50 Pac. 500; Eddy v. Weaver, 37 id. 540, 15 Pac. 492.
The proceedings in error will be dismissed. | [
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The opinion of the court was delivered by
Smith, J. :
This case was decided in October last and the judgment of the court below reversed. (73 Pac. 896.) A rehearing was allowed, and the question submitted to counsel for argument was whether the decree in the foreclosure suit of Huston, Trustee, v. The Bow Creek Irrigation Company and others was resjudicata respecting the rights claimed by Huston in the ejectment action as a mortgagee in possession.
The mortgage for $950 on the land in controversy held by Huston was set up for the first time in the foreclosure suit in his reply to the answer of the Stroup heirs. Upon motion of the latter all allegations concerning it were stricken out. In the former opinion Mr. Justice Pollock, speaking for the court, said :
“True, all the allegations as to the prior mortgage were, upon motion, stricken from the reply, and the plaintiff was denied the right actually to litigate his rights under that mortgage; but the test of the effect of a former judgment or decree is not ‘what was actually litigated and determined’ but ‘what was putin issue, and might have been determined under the .issues.’ ”
The language quoted is too general when applied to the facts of the present case. This was an action in ejectment. The former was an equitable suit in foreclosure. The true rule, now well established, is that where a second action between the same parties is upon a different claim or demand the judgment in the prior action operates as an estoppel only as to those matters in issue upon the determination of which the finding was made or the judgment rendered, and does not extend to matters which might have been, but were not, litigated and determined in the former action. The leading case on the subject in this country is Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195. An action was brought on four bonds issued by the county of Sac for $1000 each and four $100 coupons attached. The bonds matured in 1868, 1869, 1870, and 1871. As a defense the county relied upon the estoppel of a judgment rendered in its favor in a former action brought against- it by one Samuel C. Smith on certain earlier maturing coupons on the same bonds, accompanied with proof that the plaintiff, Cromwell, was at the time the- owner of the coupons sued on in that action, and that the same was prosecuted for his sole use and benefit. In holding that the defense of former adjudication did not .avail, Mr. Justice Field said :
“In all cases, therefore, where it is sought to appty the estoppel of a j udgment rendered upon one cau.se -of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in -the original action ; not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive-in another action.”
The question is exhaustively treated in the opinion quoted from, and many authorities, both English and American, cited to sustain the principle stated. In Davis v. Brown, 94 U. S. 423, 428, 24 L. Ed. 204, Mr. Justice Field again said -:
“ When a judgment is offered in evidence in a subsequent action between the same parties upon a different demand, it operates as an estoppel only upon the matter actually at issue and determined in the original action ; and such matter, when not disclosed by the pleadings, must be shown by extrinsic evidence.”
The same doctrine was reaffirmed and applied in Nesbit v. Riverside Independent District, 144 U. S. 610, 12 Sup. Ct. 746, 36 L. Ed. 562, and in Dennison v. United States, 168 id. 241, 18 Sup. Ct. 57, 42 L. Ed. 453. The case of Clark v. Blair, 14 Fed. 812, 814, was a suit in equity to set aside and cancel certain tax deeds. It was insisted that a decree of a Nebraska district court between the same parties was an adjudication. Mc-Crary, circuit judge, said :
“The former suit, however, was brought to obtain a different remedy and secure a different relief from that which is sought in the present case, although the relief sought in the two cases was predicated upon the same facts. The former suit was brought before the tax deed was executed, and for the purpose of enjoining its execution, while the present suit is instituted after the execution of the tax deed, for the purpose of having the same set aside as fraudulent and void. For the purposes of this question, we may say that the present is a suit based upon the same facts, or between the same parties or their privies, but to enforce a different demand and obtain another form of relief. It is, therefore, not a case in which the parties are conclusively bound by all that might have been litigated in the former suit. They are conclusively bound only by what was in fact litigated and decided. Cromwell v. County of Sac, 94 U. S. 351” [24 L. Ed. 195].
The following cases lay down the same doctrine : Rossman v. Tilleny, 80 Minn. 160, 83 N. W. 42, 81 Am. St. Rep. 247; State, ex rel., v. Cooley, 58 id. 514, 60 N. W. 338; Foye v. Patch, 132 Mass. 105; Montpelier S. B. & T. Co. v. School Dist. No. 5, 115 Wis. 622, 92 N. W. 439; Pitts et al. v. Oliver, 13 S. Dak. 561, 83 N. W. 591, 79 Am. St. Rep. 907; Wentworth v. Racine County, 99 Wis. 26, 74 N. W. 551; Chicago, R. I. & P. Ry. Co. v. St. Joseph Union Depot Co., 92 Fed. (C. C.) 22; Lawrence v. Stearns, 79 id. (C. C.) 878. See, also, section 506 of the second edition of Black on Judgments. In Vanfleet on Collateral Attack, the author notes the confusion which has arisen in applying the doctrine of res judicata to cases of collateral attack. In section 17 he says :
“It is the opportunity to make defense which bars a collateral attack on the original judgment, while it is the contest actually made and passed upon which gives the successful party the right to use the judgment as a bar to the same contest in a new action on a different subject-matter.”
Of our own cases that of Knickerbocker v. Ream, 42 Kan. 17, 21 Pac. 795, is nearest in point. The syllabus reads :
“Two notes were given at the same time for part payment of a header ; both were executed by the same makers to the same payee; an action -was brought upon one of the notes; upon trial a verdict was rendered for defendants for fifty dollars damages, which they remitted, and a judgment was rendered in their favor for costs. In a subsequent action between the same parties on the other note, the judgment in the former action is not a defense in the last action, when defendant’s answer fails to show that all the defenses that might have been tried in the former action were: decided in defendant’s favor.”
In the prior decision of this case the rights of Huston under his $950 mortgage were treated as having been involved in, and determined by, the decree foreclosing the $5000 mortgage executed to him by the Bow Creek Irrigation Company. As before stated, Huston was nqt only not permitted to litigate the question whether his $950 mortgage was a lien on the land in controversy, but he was shut out from pleading it, and wholly precluded from tendering an issue involving its force or validity as an encumbrance on the land. The $5000 mortgage which Huston owned was held not to be a lien on the property now in controversy. There was, therefore, in the equity suit not only no' adjudication of Pluston’s rights under the $950 mortgage, but there was no issue respecting it, and the land on which it was a lien was not mentioned or referred to in the decree. The rule stated in Davis v. Brown, supra, to the effect that the estoppel in a second controversy on .a different cause of action operates “only upon the matter actually at issue and determined” in the first action deprives the judgment in the prior equity suit of any effect on the rights of Huston, the mortgagee, in the subsequent ejectment action.
It follows that the instruction given by the trial court that the judgment in«the foreclosure suit did not affect the right of Huston as a mortgagee in possession was correct.
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
Marshall, J.:
The defendant was tried for the murder of Arthur C. Banta, was convicted of murder in the first degree, and appeals.
1. Complaint is made of the admission of the evidence of R. C. Russell, an attorney at law. The defendant contends that the evidence of Russell was admitted in violation of the fourth subdivision of section 321 of the code of civil procedure, which in part reads:
“The following persons shall be incompetent to testify: . . . Fourth, an attorney, concerning any communications made to him by his client in that relation, or his advice thereon, without the client’s consent.”
It is argued that the part of the conversation detailed by the witness came within this prohibition. A. L. Wallace operated a restaurant in Great Bend. The defendant had a chattel mortgage on the restaurant. It seems that one Shepler had commenced an action of forcible entry and detainer to obtain possession of the property. The defendant went to Russell to talk about the matter. On the trial, Russell was questioned, concerning .the conversation' between them, as follows:
“Q. Before he advised with you, did you have any conversation with him or overhear any conversation relative to the deceased, Arthur Banta? A. Yes, sir.
“Q. D'id that conversation that you had with defendant, Nixon, at that time, have anything to do with the advice that you had to give to him that afternoon? A. Well, I didn’t so consider it.
“Q. You may state what that conversation was.”
After these questions the jury retired, and Mr. Russell made the following statement to the court:
“Dr. Nixon came into my office- and came right into my private office. I was at my desk and he says, ‘This man Banta is double crossing everybody. I didn’t think he would double cross me but I am thoroughly satisfied that he is and he is a double crossing -, and is trying to do it again,’ and we had some little conversation about that side of it, in other words that is the substance of it and then he went into the legal matter he came up to advise about. The legal matter was with reference to the forcible entry and detainer of Curly Wallace from his restaurant building, that was being prosecuted by Mr. Shepler and wevtalked there about the forcible entry and detainer suit and he told me that Banta had told him that he could keep them in that building until December without any question, he would guarantee that he could do that without giving bond for double the rent, and I told him that I did not know of any law by which that could be done, and we got down the Statutes and other books and went into that and then he tried to get Curley Wallace by ’phone, ’phoned to his office and Curley’s restaurant four or five times. I told him I didn’t want to advise him positively as I didn’t know of any way they could stay in there until December without giving bond for double the rent. Well, he said that he can do it, he will show all you-some new law. I said, ‘Well, it will be new law to me and he might be able to do it, I don’t know,’ and he stayed there about an hour and when he got through he said, ‘What do I owe you’ and I said, ‘You don’t owe me anything,’ and he went out he took a 15.00 bill out and put it on my desk.”
After the jury returned, Mr. Russell answered as follows:
“Dr. Nixon came into my office and said substantially as follows: ‘I always knew that Arthur Banta was a double-crossing - and that he double-crossed everybody, but I didn’t think he would double-cross me,’ or words to that effect.”
On the hearing of the motion for a new trial, in discussing this proposition, the court said:
“The evidence of Mr. Russell as to-a statement that Dr. Nixon had made to him regarding Mr. Banta, it is urged that that is error. I looked that matter up rather carefully before I made the ruling on it, and I am not inclined to change the ruling made at this time. I don’t think that a man may come into a lawyer’s office and talk about matters that have nothing whatever to do with his business that he is there upon, and come in and claim that it is a confidential communication so that the attorney cannot testify. In this case I think this evidence was just as competent, as I don’t think anybody would claim, that if the defendant had gone into. Mr. Russell’s office and said to him, T am going kill Banta,’ and then consulted with him, it would claim such a matter was privileged; so I am satisfied with that ruling.”
In 40 Cyc. 2371, this language is found:
“In order for a communication between attorney and client to be privileged it must relate to the subject matter of the employment, and be made for the purpose of enabling the attorney to'correctly understand the matter in which he is employed, and of obtaining professional advice or assistance.”
The rule as there stated is supported by The State v. Newherter, 46 Iowa, 88; Moyers v. Fogarty, 140 Iowa, 701; Denunzio’s Receiver v. Scholtz, 117 Ky. 182; Marsh v. Howe, 36 Barb. (N. Y.) 649; Dixon v. Parmelee, 2 Vt. 185; and Note, Denunzio’s Receiver v. Scholtz, 4 Ann. Cas. 531. The trial court rightly, concluded that the communication so far as it was admitted in evidence was not-privileged under the statute.
2. Complaint is made concerning a juror named Elridge York. The defendant says, “The man York not only swore that he had no opinion, but went further and swore that he had not recently talked with anyone concerning the case, when the truth was that he was talking about the case with his neighbors at the very moment he was called as a venireman.” A witness, Frank Case, testified on the hearing of the motion for a new trial as follows:
“I was standing in front of the court house while the jury was being empanelled in the case of State v. Nixon, and while standing talking to some gentlemen Mr. E. York came along. Mr. Gardner, one of the gentlemen to whom I was talking, said, ‘Mr. York, you had better look out or they will get you on the jury.’ Mr. York replied, ‘No, they won’t. I can’t sit on the jury because I have formed an opinion in this case.’ Just then Mr. Sam Kellam, clerk of the court, called Mr. York and said that the sheriff wanted him.”
York, on his voir dire, testified:
“I remember the circumstances of the killing of Mr. Banta. The circumstances were discussed among my neighbors and friends. From what I read and heard I did not form any opinion as to the guilt or innocence of the defendant, and I have not any opinion now. I never talked to anyone who 'claimed to know anything about this case. No one has talked to me about the case lately. I know of no reason why I should not be permitted to sit as a juror in this case.”
From the brief of the defendant, it may be gathered that York on the hearing of the motion for a new trial testified as to the conversation had by him, as follows:
“I know Cliff Gardner and Frank Case. I saw them on the corner there by the Citizens National Bank, just before I was summoned as a juror. There was quite a little crowd there. Cliff Gardner came up and he said, ‘They can’t get us on this jury in the Nixon case, can they, York, because we have all formed our opinion,’ and I said, ‘I guess so.’ Just at that time Sam Kellam came across and said, ‘There is Mr. York. Your name is drawn.’ ”
The court on the hearing of the motion said:
“I believe Mr. York when he .stated he had no opinion of the guilt or innocence of the defendant when he was qualified as a juror in this case, and I believed-his remarks that he made today that he entertained no opinion of it at that time; so I think he is not guilty of any misconduct in this case to procure his seat on the jury, or afterwards.”
A similar complaint is made of a juror named Ernest Miller. The defendant states that Miller “swore that he had no opinion and had not talked with anybody about the case.” The defendant contends that this statement was not correct and that Miller had said to one Frank Grommes about the middle of September, “Well, I think Dr. Nixon is as guilty as the other two.” When the motion for a new trial was heard, Frank Grommes testified to having such a conversation with Miller. Miller on that hearing testified:
“Q. That night you were playing at Dan Casey’s, or at any other time prior to the Nixon trial, had you formed or expressed any opinion as to the guilt or innocence of Dr. Nixon? A. No, sir; not that I remember of.
“Q. Did you tell anyone at that dance at Dan Casey’s, or at any other dance, that Dr. Nixon was just as guilty as the others? A. No, sir.
“Q. Did you say anything of that kind or character? A. No, sir.”
The court, after the motion for a new trial had been presented, said that his statement concerning Elridge York applied to Ernest Miller.
On the examination of the jurors nothing appeared to show that either York or Miller was in any way disqualified. From the evidence introduced on the hearing of the motion for a new trial, the court might have concluded that either had formed an opinion in the case; but the court was entirely justified in the conclusion that was reached and in holding that both were competent jurors. That finding of the trial court is just as conclusive as any other finding made by the triers of fact on evidence from which reasonable minds might reach different conclusions.
3. A. L. Wallace and Roy Hayes testified as witnesses for the state. They were charged with the murder of A. C. Banta and had been confined in the jail of Barton county. The defendant argues that these men were guilty of the murder of Banta and that they conspired to fasten the crime on the defendant. On behalf of the state, evidence was introduced tending to show that, during the absence of the officers, Wallace and Hayes had not communicated with each other and had no opportunity of so communicating, for the reason that they were confined in different parts of the jail and were not allowed to be together. Two other persons, Willie Rippey and Harry Barnett, were prisoners in the jail during all or a portion of the time that A. L. Wallace and Roy Hayes were confined therein prior to the trial of. the defendant. Willie Rippey and Harry Barnett were not produced as witnesses on the trial; but they were produced on the hearing of the motion for a new trial. No showing was made as to why they were not produced on the trial. They testified that Wallace and Hayes were with each other repeatedly and that they talked to each other. Rippey testified that he heard Wallace say that he did the killing. Barnett testified that he was frightened away by the officers, who told him that if he came to the courthouse he was liable to get into trouble. The court held that diligence to obtain that evidence was not shown. It was incumbent on the defendant to show that he had exercised diligence to procure that evidence. That showing was not made.
4. Complaint is made of the admission of the testimony of Earl Jordan. He testified that he had a telephone conversation with a man whom he identified as W. A. Nixon on the night that Banta was killed; that Jordan was at the Elks’ Club; that he answered the telephone when it rang; and that the person at the other end of the line called for Arthur Banta, the deceased. Jordan was questioned concerning his recognition of the voice on the telephone line. He stated that he could not swear to a man’s voice over the telephone, but that he was satisfied in his own mind who it was that talked to him and stated that the voice was that of the defendant, W. A. Nixon. A person can be recognized by his voice the same as by his face or his form, although recognition by the voice may not be as easy over the telephone as by talking face to face. The testimony of Mr. Jordan showed that in his’judgment the person talking to him was W. A. Nixon. That rendered'his testimony competent, although his hesitancy may have affectedtits 'weight; that, however, was a matter for the jury.
5. The jury was not instructed concerning murder in the second degree nor any of the degrees of manslaughter. The defendant complains of the failure of the court to so instruct the jury. No such instructions were requested.
Arthur C. Banta was killed about four and one-half miles west of Great Bend, on a cross-country road which was not much traveled. His body was left by the side of the road near his automobile. Four shots had been fired into his body — one wounded a thumb; one entered his arm; and two were fired into his breast. He was a small man, weighing about 119 pounds. There was evidence which tended to show that he was killed soon after nine o’clock in the evening; that shortly previous to that time, the defendant telephoned to Banta who was then at the Elks’ Club and asked him to come to Nixon’s office; that Banta went to Nixon’s office; that the two got into Banta’s car and drove west in the city of Great Bend; that Banta was recognized in the car while it was going west; that Nixon also was recognized, not directly but by the coat that he wore which was produced and identified on the trial; that Nixon had made arrangements with Hayes to go in Nixon’s automobile to the place where Banta’s body was found and to approach the place with dimmed lights on the car; that Hayes was signaled to go by Nixon when the latter and Banta started to leave Great Bend; that Hayes did as he was signaled and drove to the place named by the defendant where he saw Banta’s car; that Nixon there got into the car with Hayes; that Nixon told Hayes to sit over, took the wheel, and drove rapidly into Great Bend; and that Nixon stated to Hayes that Banta would not owe anybody else. Nixon denied being at the place when Banta was killed and introduced evidence tending to prove that fact. The evidence tended to show that the bullets— three of them — taken from Banta’s body, had been fired from a 32-20 Colt’s revolver and that the defendant owned such a revolver. There was evidence which tended to show that A. L. Wallace and Roy Hayes were connected with the defendant in the killing of Banta, but that evidence did not tend to reduce the degree of the crime of which the defendant was guilty, if he were guilty.
From the evidence presented to this court as above briefly summarized, it appears that the defendant must have been guilty of murder in the first degree or that he was- not guilty at all. The defendant’s counsel by their failure to request an instruction of murder in the second degree or of manslaughter must have recognized this fact and must have felt that it would be better for the defendant to go to the jury on a charge of first degree murder alone and attempt to secure an acquittal rather than risk a verdict of murder in the second degree or some degree of manslaughter. Under the evidence and by reason of the failure of the defendant to request such an instruction, it was not reversible error for the court to fail to instruct the jury concerning murder in the second degree or the several degrees of manslaughter. (The State v. Newton, 74 Kan. 561, 87 Pac. 757; The State v. Winters, 81 Kan. 414, 105 Pac. 516; The State v. Truskett, 85 Kan. 804, 820, 118 Pac. 1047; The State v. Curtis, 93 Kan. 743, 752, 145 Pac. 858; The State v. Roselli, 109 Kan. 33, 40, 198 Pac. 195; The State v. Young, 109 Kan. 526, 200 Pac. 285.)
6. The defendant contends that error was committed by the court in giving instructions numbered 4 and 14. The fourth instruction read:
“If you believe from the evidence, beyond a reasonable doubt, that the defendant Nixon and Hayes, or Nixon, Hayes and Wallace entered into an agreement or arrangement by which they were to take money or other personal property from the person of Arthur C. Banta, the deceased, by force or putting him in fear, which acts would constitute robbery, and in furtherance of such agreement an attempt to carry out to completion such arrangement, Arthur C. Banta came to his death at the hands of either of said parties to such agreement at the time and place and in the manner charged in the information, a killing of the deceased in furtherance of such agreement would constitute murder in the first degree and the defendant Nixon would be guilty even though he did not personally fire the alleged shots which killed Banta and although he might not have even been present when such alleged act was committed; all of the parties participating under such circumstances are principals and equally guilty. In such event as before detailed, none of the parties may have intended to kill Banta but if, in attempting to carry-out such agreement or arrangement, if he met his death, it would constitute murder in the first degree and the state, under such circumstances, need not prove that the actual killing, if any, was deliberated upon or premeditated upon and planned in advance.”
The part of the fourteenth instruction material for the consideration of this complaint read as follows:
“If you have a reasonable doubt in your minds as to the presence of the defendant at the place of the killing of Arthur Banta, and his participation therein you should acquit the defendant — unless you shall believe from the evidence, beyond a reasonable doubt, that an agreement or arrangement had been entered into between the defendant, Nixon, and Hayes and Wallace, or either of them, to take money or personal property from the deceased by force or putting him in fear and that in furtherance of said agreement, Arthur Banta was killed, then as hereinbefore instructed, the defendant would be a principal and equally guilty whether he was present or not at the time of the actual killing of said Banta.”
The argument of the defendant is that there was no evidence on which to base these instructions. The defendant’s brief contains the following language:
“Hayes testified that Dr. Nixon went out with Banta and killed him and he went out and picked the doctor up and the crime was then complete; no one else there. Wallace testified that Dr. Nixon told him that Hayes first shot Banta while he (Nixon) was over in the wheat field, and when he came back he held Banta while Hayes finished the killing.”
Wallace testified that he had a conversation with the defendant shortly previous to the time defendant left Great Bend on the evening that Banta was killed. That conversation is abstracted by the defendant as follows:
“He [the defendant] said, ‘Al, you aren’t going?’ I said, ‘no.’ He said, ‘you have got cold feet?’ I said, ‘no.’ I got out of the car, opened up the door, started over and got over and he kind of honked the horn and we stood there and talked a few minutes, several words passed, I don’t know, he honked the horn, he said, ‘Come here’ motioned for me. I went back and he said, ‘You fix an alibi,’ I said, ‘very well’ and I went in and fixed an alibi.”
Another part of the evidence of Wallace is abstracted by the defendant as follows:
“Ho [the defendant] said, ‘Curly, he owes me this money and I am going to have it.’ I said, ‘In what way are you going to get it?’ and he picked up a piece of paper — oh, I am ahead of my story there. He said to me, T am going to got it if I have got to kill the -.’ I said, ‘Well, Doctor, that won’t gain you anything.’ He said, T can mark the bill paid’ or something like that and pretty soon we talked around there and he picked up a piece of paper, which was a note, and he said, T am going to make him sign this note’ and hit his hand on the desk and I said, ‘Doctor, you can’t make him sign that note because he is an attorney and it would just mean harm to you to undertake to try it’ and he said, T don’t see how, if he ever signs this note, how it will mean harm to me.’ I said, ‘very well.’ I fooled around and went out.”
There was evidence sufficient to justify the court in giving instructions four and fourteen.
7. Another proposition urged by the defendant is as follows:
“This court within very recent years has twice reversed criminal cases, not because there was error enough in the records to have reversed the cases, but because there was error and coupled with that error was the fact that this Court, after reading the record, felt a strong doubt of the defendant’s guilt.”
The defendant cites The State v. Alexander, 89 Kan. 422, 131 Pac. 139, and The State v. Henson, 105 Kan. 581, 185 Pac. 1059. In The State v. Alexander, supra, this court said:
“The testimony relied on to support the verdict does not show who fired the fatal shot, and seems inconclusive as to the part taken by the defendants in the tragedy. A careful examination of the record has been made to determine whether the errors referred to probably led to a result which otherwise would not have been reached, although in other circumstances they might perhaps be disregarded. The district court, it appears, approved the verdict with hesitancy. This court is not satisfied that justice has been done and it is concluded that the errors referred to should not be disregarded.” (p. 429.)
In The State v. Henson, supra, the court said:
“Wo are unable to say that there is no reasonable probability that the verdict was influenced by the rulings, held to have been erroneous, relating to the admission and exclusion of evidence bearing upon the vital matters in controversy. Their cumulative effect increases the hkelihood of actual prejudice having resulted. The conviction must therefore be set aside.” (p. 591.)
The defendant’s argument is necessarily based on the theory that this court may be dissatisfied with the correctness of the verdict and would be disposed to reverse the judgment on slight error. The jury heard the evidence and returned a verdict of guilty of murder in the first degree; the trial court approved that verdict; and this court, after reviewing the evidence as set out in the abstracts, must say that it too is satisfied with the verdict. The evidence that has been summarized in this opinion compels the conclusion that the defendant deliberately murdered Arthur C. Banta.
No error has been found, and the judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
This action was brought by Melissa S. Manley, widow of Richard L. Manley, deceased, and her daughter, S. Vinette Thomas, against Alma Hitchcock, Mrs. Manley’s other daughter, to set aside a deed conveying certain real estate to her daughters, reserving for herself only a life estate, for an accounting and partition.
It was alleged that this deed covered her own land as well as lands left her by her husband; that contemplating another marriage she was prevailed upon by the defendant to make this deed. •
She further averred that it was recorded without her knowledge; that she received nothing for it, and that for these reasons it should be set aside. She also asked to have a mortgage for $1,500 set aside, and that the debt, secured thereby be applied on the distributive share of Vinette Thomas’ part of the estate, and also a mortgage given to the defendant when the other mortgage was executed and which the plaintiff alleges was without consideration and was unconscionable and void. She also asked for rents and profits and for an accounting for any tracts of land sold, and alleged that the property could not be partitioned without manifest injury, and prayed that a commissioner be appointed to appraise each tract and cause the same to be sold.
The answer alleged among other things, that the deed was made at the instance of the plaintiff herself without any designs on the part of the daughters; that the loan of $1,500 evidenced by the mortgage sought to be set aside was not made by the plaintiff to S. Vinette Thomas, but by some loan company; that the defendant received none of the money secured thereby, but mortgaged some of her own property in order to help her sister secure the loan. The statute of limitation was also pleaded.
The case was tried by the Honorable Shelby C. Brown, judge fro tem., who held the cause open for the submission of written briefs and argument, and. after full consideration found generally for the defendant and denied the prayer of the petition to set aside the deed and quiet the title of part of the property in her, and refused to cancel the mortgage. The court found that the defendant should be allowed as full compensation for her services in looking after the estate the rent of certain property for a period fixed in the decree, and ordered possession to be surrendered to the plaintiff, Melissa S. Manley, and denied partition.
The plaintiffs appeal, and claim that the evidence did not warrant the conclusion reached.
Mr. Manley died in 1906, and his wife and two daughters lived together until 1913, when the daughters married and moved away. Afterwards, the mother advised them that she might remarry, although it seems she did not. There had been some talk about her leaving the property to them by will, but it is claimed that when there appeared some prospects of her remarriage they desired to have the property deeded to them, which was done, the mother reserving a life estate. The defendant had much to do with the management of the different tracts of land, a number of them being within the corporate limits of Iola; the plaintiff, S. Vinette Thomas, was a school teacher; in a general way the three got along fairly well, although there was at times some friction, and display of temper on the part of the defendant. The deed was executed in October, 1914. This suit was brought June 17, 1920, and in the petition the allegation relied on for the basis of setting aside the deed is that sometime during the year, 1914, the plaintiff contemplated remarriage and was prevailed upon by the defendant to make a deed covering all of the property she owned, reserving only a life estate therein—
“That said deed was made October 7, 1914, and included plaintiff’s own land above described as well as all lands left to her by her husband, Richard L. Manley, deceased. That plaintiff did not remarry and did not receive any consideration for the making of said deed; that she reluctantly made said deed but did so to avoid friction and difficulty.”
If this furnishes any reason for setting aside the deed it is merely for failure of consideration, but, be that as it may, the court after hearing all the evidence and seeing the witnesses denied the relief sought which included setting aside the mortgage made by the plaintiff, S. Vinette Thomas. This mortgage arose out of a transaction by which Mrs. Thomas secured a loan of $1,500. She received a letter in 1915 from the defendant suggesting that the deed from the mother be put on record, and a mortgage be made by Mrs. Thomas to secure a loan she wanted to make in New Mexico to save the Iola property, and in order to enable her to do so the defendant joined in a mortgage on the Kansas property and took back a contract of indemnity from Vinette. The indemnity contract to the defendant was secured by the mortgage (now sought to be set aside) on the Kansas land. We find nothing in the record to show that the loan-company mortgage has been paid,” and therefore, see no reason why the indemnity mortgage to the defendant should be set aside.
This is purely and only a fact case, no question of law on which there is any serious dispute being involved, unless it might be the statute of limitation, and in view of the result reached it is not necessary to consider that.
The testimony did not convince the trial court of fraud, duress, overreaching or undue influence by which the deed was procured, but there was considerable evidence that it was in accordance with the mutual, desires that the daughters should have the property upon the death of the mother, and that any contemplated marriage should not bring about a different result.
The defendant was allowed by the trial court what was deemed proper for her services in looking for a number of years, after the various pieces of property involved in the father’s-estate, and the decision leaves the parties practically where it found them, and we find in the entire record no grounds for overturning the result reached.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Porter, J.;
The Delphos Milling Company sued the defendant upon an account. The petition alleged that the defendant purchased merchandise from the plaintiff at different times and in different amounts and at the prices set forth in exhibit A, attached to the' petition, which was a verified, itemized statement of the account between plaintiff and defendant, and that after giving the defendant credit for all payments, set-offs and 'counterclaims to which he was entitled there was due and owing on the account a certain sum with interest at six per cent, as shown on exhibit A. The exhibit consisted of an itemized statement of the account with numerous items, credits, and charges, and was verified by the president of the plaintiff company, who stated that he had read the petition and examined the statement of account, “and knows the petition and statement of account and all statements and items therein are just, true and correct and there remains due plaintiffs from the defendants the sum of $1,436.42.”
The answer was a general denial with a plea of payment, to which the plaintiff filed a reply consisting of a general denial.
On the trial, after counsel for the parties had made their opening statements, counsel for the plaintiff suggested that the burden was on the defendant. The court, however, held that although the answer was not verified, the burden was on the plaintiff for the reason that the petition failed to allege the corporate existence of plaintiff, and for that reason defendant could not admit it, and held that the burden of proof was on the plaintiff. Plaintiff then introduced evidence to show that it is a corporation, and rested. The defendant demurred to the evidence on the ground that it failed to 'prove any cause of action. Plaintiff’s counsel asked opposing counsel to point out under the pleadings wherein the evidence had failed, whereupon defendant’s counsel said, “because there is no allegation contained in the petition as to the correctness of this account.” The court overruled the demurrer and also a motion to direct a verdict for the defendant, and upon the defendant electing to stand upon the demurrer and motion, the court rendered judgment as prayed for in the petition. The .defendant appeals and insists that the court erred in these rulings and in overruling the motion for a new trial.
In the briefs of the defendant it is said that two material questions are presented: First, did not plaintiff, by filing a reply and proceeding to trial without questioning the sufficiency of the answer waive verification of the answer? Upon this proposition defendant cites Emery v. Bennett, 97 Kan. 490, 155 Pac. 1075, and Livingston v. Lewis, 109 Kan. 298, 198 Pac. 952. In the first case cited it was held that although section 110 of the civil code requires that the answer to a petition in an action founded upon a written instrument for the unconditional payment of money should be verified, the verification is waived when the plaintiff joins issue on the answer, introduces evidence contradicting such defense and aslcs instructions covering his theory of the law pertaining thereto. In the case at bar plaintiff did not proceed to trial without questioning the sufficiency of the answer. It insisted that the burden was on the defendant because the answer was unverified. The court erroneously, we think, held that it was necessary for plaintiff to offer proof that it was a corporation. Plaintiff acquiesced in the ruling and offered evidence upon that issue alone. We think it was of no importance whether plaintiff was a corporation or not. From the opening statements of counsel it appears that the defendant dealt with plaintiff as the Delphos Milling Company, a corporation, and could not be heard to say or urge as a defense that plaintiff was not a corporation.
In the second case cited it is held that if plaintiff reply to the unverified answer and go to trial on the issues of fact and introduces his evidence thereon, he cannot complain that the court tried out and determined the question of the alleged partnership on the evidence presented. Here, however, plaintiff’s reply was a • general denial, which went, not to any part of the answer requiring verification, but to that part pleading payment.
The code does not provide for the filing of a reply except where new matter is alleged. The only traversible thing in the answer was the plea of payment. In other words, the answer admitted the correctness of the account, but alleged payment. The reply traversed the plea of payment. On the trial plaintiff offered no evidence in support of the reply, and insisted that the burden on that issue was upon the defendant, which was true. On one immaterial matter the court held the burden to be on the plaintiff. But plaintiff confined its evidence to that issue alone. It would be carrying technical rules of pleading to the extreme to say that by filing a general denial plaintiff was estopped to insist upon the failure to verify the answer denying the correctness of the account. Plaintiff merely offered evidence to show that it was a corporation, which the court required it to do. It did not go to trial on the issue of the correctness of the account, and therefore the rule stated in the cases cited has no application.
The second point relied upon by defendant is that plaintiff was not relieved from proving .the correctness of the account, because it is insisted that the petition contained no allegation of the correct ness of the account. The language of the petition is not aptly chosen. But our code provides that—
“In the construction of any pleading, for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties.” (Civ. Code, § 117.)
It does not require a very liberal construction of this petition to hold that it alleges the correctness of the account. The petition states 'that the plaintiff purchased the merchandise at the times, dates and in the amounts and prices set forth and alleged in plaintiff’s exhibit A, which is the verified itemized statement of the account. It then states the amount due plaintiff on the account, attached to the petition; and the affidavit of the president states, under oath, that he has read the petition and the statement of the account, and that all statements and items therein are just, true and correct. The defendant selected the ground upon which he saw fit to place his demurrer, which was, that, there was no allegation in the petition as to the correctness of the account.
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff on behalf of himself and others similarly affected filed this original action in this court, praying for a writ of mandamus against the city officials of Wichita, directing them to assess the cost of a certain street improvement according to plaintiff’s notion of how that ought to be done, and not as the defendant officials have done it.
As the dispute between the parties over the correct interpretation of the statute is one very easily settled, we will decide that question, but we will have to add some comment touching the pro priety of this kind of a lawsuit to settle this sort of questions at the instance of private individuals.
And first, as to the statute: Chapter 118 of the Session Laws of 1921 authorizes cities of a certain population to repave their streets, at the discretion of the city government and regardless of protest or remonstrance, when the original paving is ten years old, and provides that the city shall.pay one-third of the entire cost of such re-pavement, and that the remaining two-thirds of the cost shall be borne by abutting property owners as provided in other and earlier legislation.
East Douglas avenue in Wichita is one of the principal thoroughfares of that city, and as the original paving thereof had become worn and dilapidated, the city government determined to repave a portion of it under the authority of chapter 118. The entire cost was determined, and two-thirds thereof assessed against the abutting property, which included the plaintiff’s.
Under other and earlier statutes, the entire cost of paving, except the street intersections, is assessed against the abutting property. (Gen. Stat. 1915, §§ 1231, 1233, 1757, 1974.) Under such statutes the cost of paving the intersections is paid by the city at large.. Now, in this case, notwithstanding the plain terms of the act of 1921, which declares that the city at large shall bear one-third of the cost of repaving and the benefited property shall bear two-thirds of the cost, it is plaintiff’s contention that the cost of repaving the intersections should be segregated from the entire cost of the street improvement, and that portion of it should likewise be borne by the city at large. The statute will not bear that interpretation. It means precisely what it says — one-third of the entire cost is chargeable to the city and the remainder is to be assessed to the benefited property. The only relation this statute has to earlier legislation touching street improvements is that the assessment of two-thirds of the cost shall be apportioned among the lots, tracts, pieces and parcels of land within the benefited district in the same mann.er as provided by law for the construction of street paving under statutes, covering such matters in detail.
With that question settled, we must now add that this action is not properly maintainable in this court at the instance of private litigants. Our original jurisdiction in mandamus should not be perverted into the entertainment of actions by private citizens to compel public officers to perform their official duties. Exceptions to this rule there are, but ordinarily an action in mandamus to compel public officials to do their duty must be brought in the name of the state of Kansas on the relation of one of its officers duly authorized —the county attorney or the attorney-general. There is a statute giving private citizens peculiarly aggrieved by a tax assessment a right, if timely exercised, to challenge the validity of an assessment of taxes made or threatened. It reads:
“An injunction may be granted to enjoin the illegal levy of any tax, charge or assessment, or the collection of any illegal tax, charge or assessment, or any proceeding to enforce the same, or to enjoin any public officer, board or body from entering into any contract or doing any act not authorized by law that may result in the creation of any public burden’ or the levy of any illegal tax, charge or assessment; and any number of persons whose’property is or may be affected by a tax or assessment so levied, or whose burdens as taxpayers may be increased by the threatened unauthorized contract or act, may unite in the petition filed to obtain such injunction. . . .” (Gen. Stat. 1915, § 7163, as amended by Laws 1917, ch. 247.)
Aside from this statute just quoted, private individuals have no general legal right to provoke litigation to question the action or conduct of public officials. They should lodge their complaints against public officials with the public functionary selected by law to deal with official irregularities. (Bobbett v. The State, ex rel., Dresher, 10 Kan. 9; Miller v. Town of Palermo, 12 Kan. 14; A. T. & S. F. R. Co. v. The State, 22 Kan. 1; Nixon v. School District, 32 Kan. 510, 4 Pac. 1017; Albach v. Fraternal Aid Union, 100 Kan. 511, 515, 516, 164 Pac. 1065; Abraham v. Weister, 103 Kan. 162, 172 Pac. 898.)
Even in the cases where private individuals may maintain a taxpayers’ suit under section 265 of the civil code, expedition is a prime requisite, and usually there is a twenty or thirty days’ limitation in which such a.suit may be brought. If the present controversy had been brought as an injunction suit in a court of general jurisdiction, it would have been too late to enjoin the assessment as made by the city officials. (Rockwell v. Junction City, 92 Kan. 513, 141 Pac. 299.) This does not conclude all the objections which could be made against the sort of action here presented, but it is clear that the writ of mandamus should be denied and the action dismissed.
It is so ordered. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff bought a stallion at defendant Anna E. Webber’s sale, gave his note for $275, found the animal worthless as a breeder, sought rescission, failed, and sued to cancel the note. The defendant bank bought the note before maturity, but the plaintiff claims it was nonnegotiable because it had written thereon, “This note given for stallion under guarantee as given at Webber sale.” The plaintiff alleged that as part of the transaction by which he bought the horse, the defendant by her agent, the auctioneer, war ranted and guaranteed the horse to be a good foal getter, first class for breeding purposes, which warranty and guaranty proved false.
The defendant, Mrs. Webber, answered by general denial, and also alleged that she made the sale as administratrix, and being inexperienced in business affairs had her brother, Will Brier, look after the sale; that the clerk of the sale, T. A. Tegarden, looked after the notes taken, but she did not know under what condition this note was executed; that no express warranty or guaranty was made or authorized by her; that it was announced that this horse had a record, which record would go with him; that his fluid tested ninety per cent pure, and that a purchaser could look up his record and be satisfied before taking him; that he would not be guaranteed as a foal getter; that such fluid test for the previous year was correct; that when the plaintiff came for the horse after the sale he said he guessed he was all right, and thereupon took him; that she did not authorize Will Brier nor the auctioneer to warrant or guarantee the horse as first class for breeding purposes, and if any such warranty was made it was without her knowledge; and that the words on the note were placed there without her knowledge or consent.
When the case was called for trial the plaintiff sought by what he calls a supplemental petition to include damages for $150 for feeding the horse. The jury found for the defendant. The plaintiff moved for a new trial and presented an affidavit that several of the jurors found for the_ defendant because she was a “widow woman” and that there was no question that the horse had been warranted as claimed by Mr. Jones.
It appears that when the opening statement was made plaintiff’s counsel included a claim for the feed and care of the- horse, and on objection the court stated that this would not be considered.
There was testimony that the auctioneer had stated that the horse was a ninety per cent foal getter. But a number testified that, no such statement was made, but that he was proclaimed as a horse whose fluid tested ninety per cent pure. There was abundant evidence of his worthlessness as a foal getter. An interesting item of evidence was that the banker who acted as clerk of the sale stated he made the indorsement on the note at the time Mr. Jones signed it —“that he would not have placed the indorsement on the note if he had not known the horse had been guaranteed, and that he .absolutely knew what Mr. Jones had in mind when he (Jones) signed the note.” No claim of authority to make such indorsement was even hinted at. There was convincing evidence that, regardless of any fluid test, the horse was practically inefficient.
While the feed bill might have been a proper element of damages if it had been included in the original petition (Hostetler v. Bartholomew, 95 Kan. 217, 147 Pac. 1134; Cooper v. Ragsdale, 96 Kan. 772, 153 Pac. 516), still no excuse was shown for presenting it for the first time when the case was called for trial under the guise of a “supplemental” petition, and moreover, no showing was made on the motion for a new trial as to any evidence on that point — hence for that reason no error was committed in denying the motion. (Civ. Code, § 307.)
We find no error in respect to the admission or exclusion of evidence or in the instructions.
Of course, jurors cannot be heard to impeach their verdict by statements that they violated their oaths as jurors, and decided for the defendant because she was a “widow woman.” Things that inhere in the verdict and belong to the inner sanctum are not to be spread out for the gaze of the losing party to a lawsuit, else there might never be an end to litigation.
The jury evidently believed the witness who said the horse was not stated to be a ninety per cent foal getter, but to have a ninety per cent pure fluid test, a thing compatible with such utter worthlessness as he seemed to have manifested — a physical defect testified to possibly accounting for the difficulty. ’ ■
At any rate, there was the usual conflict of evidence which the jury and trial court settled in favor of the defendant, and finding no material error, the judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The appellant was convicted upon two counts of an information charging that with the intent to cheat and defraud one Mary Broadbent he made to her false and fraudulent representations to the effect that the New Spring Creek Oil Company was then actually paying its stockholders dividends of 30 per cent per annum from production of oil and gas; that she, believing the representa tions and in reliance thereon, purchased shares of the corporate stock of the oil company and paid to one R. J. Bell and the appellant $1,000 therefor; that in truth and fact the company was not honestly engaged in the production of oil and gas; that it was a stock-selling scheme, and was not then paying bona fide dividends on its stock, and that the appellant well knew that the representations he had made were false and fraudúlent.
1. The appellant was called as a witness in his own behalf, and testified that he was thirty-nine years of age. He related his business experience or lack of experience; he told of meeting R. J. Bell in 1916, who induced him to look at an oil proposition at Shamrock, Okla. He testified that Bell showed him oil wells with two pumps that were operating and pumping oil into tanks, and that Bell made a statement to him concerning what this property was producing; that he never had seen an oil well until Bell took him down there; that after the company was organized he went out and helped to sell the stock, and that Bell told him that the oil that they had gotten out of Spring Creek had been sold, and the 'property had already paid $16,000; that the money went to an Oklahoma bank to pay dividends. He further testified that Bell showed him at another time figures as to what two of the leases were doing and would do; that he believed the figures to be true and correct; that he received a paper from Bell when he went out to sell stock and relied upon the figures therein in making sales and believed Bell’s statements with reference to it. The appellant was further questioned as follows:
“Q. Did he [Bell] make any statement to you at that time about what this property was producing, this Spring Creek property? A. He did, yes, sir.
“Q. Did he say anything to you about how much it had produced? A. Yes, sir.” f
To this the state objected for the reason that the evidence was immaterial and hearsay.
“By the Court: It is all immaterial.”
Counsel for the appellant objected to the court’s statement in the presence of the jury as prejudicial and stated further that the only way counsel could show the good f'aith of appellant was to prove the facts shown to him.
“By the Court: Is there any rule of law whereby a man can make a statement as a statement of fact that is wholly hearsay? What Mr. Bell told him about the proposition is outside of this case.”
Following this colloquy the court did permit the appellant to testify to some of the statements Bell had made to him. But the inquiry was restricted considerably, and the comment by the court practically destroyed the effect of the testimony that had been admitted. The information charged that the appellant “did then and there unlawfully, feloniously, falsely and fraudulently, and with the intent to cheat and defraud” make certain representations and that at the time he made the statements he knew them to be false. The intent with which he made the statements being the principal issue of fact, we think he had the right to show that he believed the statements he was charged with making to be true, and the facts upon which his belief was founded. In order to constitute the crime of making false pretenses, the intent must be established by proof. The rule is well stated in Bowers v. Railway Co., 82 Kan. 95, 107 Pac. 777, where it was held:
“Where the motive, intent or belief of a person is a material fact to be ascertained, and he is a competent witness to prove such condition, he may testify to it directly in connection with his testimony detailing the circumstances and situation in which he was acting at the time.” (Syl. IT 1.)
See, also, Gardom v. Woodward, 44 Kan. 758, 25 Pac. 199, where it was held that—
“Upon a question of fact as to whether a sale of personal property was made for the purpose of hindering, delaying and defrauding the creditors of the seller, it is competent for the seller as a witness to testify directly as to whether he in fact intended by the sale to hinder, delay or defraud his creditors.” (Syl.)
The comment of the court with respect to the character of the testimony was improper. The testimony was not hearsay although it involved statements made to the witness by another person.
2. The appellant was asked whether he had received any telegrams from Bell at different times about what the company was doing; he answered that he had. Several telegrams were offered in evidence and the appellant testified that he received them on the respective dates from the Western Union Telegraph Company and believed that they were telegrams from the party whose name was signed to them. Upon the state’s objection the court held the telegrams were incompetent. The court then made the statement that he was informed there was within the county the party who was claimed to have sent the telegrams and that he could be had in the court room within an hour, and that until the telegrams were better identified the objection to their introduction would be sustained. Appellant’s counsel stated that they had been informed that R.»J. Bell, who was not present, was in the county jail under conviction in a case recently tried in .the same court; that they were further informed and believed that he was a witness hostile to the appellant, and they did not wish to put him on the stand or vouch for anything to which he would testify. Upon the refusal of appellant to send for Bell, the court sustained an objection to the introduction of the telegrams.
The seventeen telegrams offered in evidence are set forth in the abstract. Some of them appear to contain statements which would naturally tend to sustain appellant’s contention respecting his good faith in making the representations as to the company being a bona fide and prosperous oil company. The court appears to have held that the copies delivered to the appellant were not the originals. In order to determine which is to be considered the original — the copy filed with the telegraph company for transmission or the copy received at the point of destination — the circumstances must be considered ; the purpose of the evidence, the real issue sought to be established. Of course, in a controversy between the sender and the telegraph company involving delay in transmission, the copy filed for transmission would be the original. In a controversy arising between the receiver of the telegram and the telegraph company, it is plain that the copy delivered at destination would be the original. Doubtless cases arise where both are considered originals. In case of an action against the telegraph company for a mistake in trans*mission, the copy filed by the sender would be an original copy, and if the copy received contained a mistake it would be also an original. The rule is stated in 10 R. C. L. 910:
“The question whether a message as left with a telegraph company for transmission to another point, or. the message as delivered at its destination, is to be considered the original when it is desired to use either as evidence, depends entirely upon circumstances. It is the general rule that if the person sending the telegram takes the initiative and the telegraph company is considered to be his agent, the telegram as delivered at the end of the line is the original, especially if there is no dispute as to the contents of the telegram.”
(And see, Note, 8 Ann. Cas. 270.)
In the present case the appellant was seeking to show the receipt of certain telegrams which purported to have been sent by Bell and which appellant claims induced him to believe that the oil company’s affairs were prospering and that the company was engaged in a bona fide business. The real question was not whether Bell sent these telegrams, but whether the appellant received them in the usual and customary way in which telegrams are received from the Western Union Telegraph Company, and whether he believed they were sent by Bell, and that they contained truthful statements upon which he could rely. For this purpose thé telegrams, as received, were the originals. If the state contended that they were not in fact sent by Bell or that the appellant did not believe they were sent in good faith, thé state should have offered evidence to establish these facts. It was error to exclude the evidence on the ground that the telegrams themselves were secondary and that before they could be introduced it was necessary to send to the jail for the man whose name appeared as the sender.
Other questions are argued in the briefs, but as there is nothing to indicate that they will arise on a second trial of the case they require no comment.
The judgment is reversed and a new trial ordered. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action by the holder of a chattel mortgage on growing wheat to enjoin the sale of the crop under an execution in another action against the mortgagor. A temporary injunction was issued. On the trial in April, 1927, there was judgment for defendant, which dissolved the injunction. This judgment was erroneous. (Isely Lumber Co. v. Kitch, 123 Kan. 441, 256 Pac. 133.) No appeal was taken in time to keep the injunction in force. (R. S. 60-3331.) Thereafter, and within the time provided by statute (R. S. 60-3309) for appeals generally in civil cases, plaintiff perfected an appeal to this court. This appeal did not keep the temporary injunction in force. (Brown v. Wilkerson, 82 Kan. 553, 108 Pac. 816.) In the meantime, there being nothing to stay the execution sale, we are advised that the wheat crop has been sold and the proceeds disbursed. The action to enjoin the sale under the execution is therefore moot, and no ruling which this court might make on the question at this time could affect it in any way.
The appeal is therefore dismissed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff, The Farmers Cooperative Union, a corporation organized under the provisions of sections 17-1501 to 17-1515 of the Revised Statutes, and the president and each member of the board of directors, sued D. N. Alderman and a number of others, stockholders in the corporation, on an agreement by a majority of the stockholders that each stockholder become liable to the corporation for $350, to be evidenced by promissory notes for that amount. Some of the stockholders gave such notes, and some did not. Judgment was rendered sustaining a demurrer of the defendants to the petition of the plaintiffs. From that judgment, the plaintiffs appeal.
One ground of demurrer was that the second amended petition did not state facts sufficient to constitute a cause of action against-said defendants. The petition alleged the incorporation of the Farm ers Cooperative Union, and also alleged that each of the other plaintiffs and each of the defendants was a stockholder in the corporation; that the corporation became financially embarrassed and could not continue in business without financial assistance from the stockholders; that at the annual meeting of the stockholders in April, 1921, attended by a large majority of them, the financial condition of the corporation was made known to those present; and that—
“It was suggested that for the purpose of carrying on the business in the future and continuing the business of the corporation, each stockholder should pledge himself for the sum of three hundred fifty dollars ($350) to indemnify and save the directors harmless from any loss for becoming personally responsible to the creditors of the corporation for the money to carry on the business. And thereupon a resolution was introduced and adopted by the unanimous vote of the stockholders, which resolution was in words and figures as follows, to wit:
“ ‘A motion made by D. N. Hill, seconded by L. A. Smith, that a $350 note be signed by each individual stockholder to the Farmers Cooperative Union Elevator, guaranteeing the board of directors against any loss that might occur. This motion carried. Date April 18, 1921.' ”
The petition further alleged that—
“By the adoption of said resolution and by the unanimous action, consent and verbal agreement of all the stockholders and members of the corporation present, it was agreed and understood that each stockholder should obligate himself to the extent of $350, and that the business of the corporation should be continued as a joint venture or undertaking between the corporation and the individuals who were the stockholders and members thereof, the consideration for the said arrangement being the benefit which each stockholder would receive in having a market for his crops of grain. It was fully understood that the corporation was not to be dissolved; that the business was to be continued in the name of the corporation; and that each stockholder would become personally responsible for the sum of $350. . . .
“The plan adopted was knowingly and willingly adopted by the stockholders, each pledging his personal obligation in the sum of $350 for the purpose and with the intent of the stockholders who voted for the resolution and adopted the same and afterwards ratified, confirmed and approved the plan, that they should become personally responsible and liable as partners with the corporation in the future operation of the business of the corporation. . . .
“Soon after the adoption of said resolution and the said plan of carrying on the business of the corporation, a number of the stockholders, who are defendants herein, did execute promissory notes in accordance with the resolution to evidence and pledge their personal obligation in accordance with the resolution. . . .
•'“The stockholders who are defendants who did not sign the notes, either neglected or refused to sign the notes in accordance with their pledge or promise to do so, or were never requested to sign the notes by any of the officers of the corporation, but all of the defendants treated the transaction in the continuation of the business upon the basis and theory that each stockholder was liable to the extent and amount of $360 for the debts and obligations of the corporation, and all of them, with full knowledge of the premises, l'atified and approved the transaction and the manner in which the directors pledged themselves to the bank to carry on and continue the business of the corporation.”
The petition alleged that relying on the action of the stockholders, the plaintiffs have incurred obligations in the sum of $20,000, and that the assets of the corporation at the time the action was commenced did not amount to more than $3,000.
The prayer of the petition was for contribution from each of the defendants on account of the obligations incurred by the plaintiffs.
The petition disclosed that not all of the' stockholders signed notes. The defendants were stockholders in the Farmers Cooperative Union. The plaintiffs plead the acts and conduct by which it was alleged the defendants, with the other stockholders, became partners with each other and with the corporation. It must be determined from the acts and conduct alleged in the petition whether or not the plaintiffs and the defendants were partners. If the acts and conduct alleged show that a partnership did not exist, the allegation that a partnership was created must be disregarded because that allegation then becomes a conclusion of law and is controlled by the allegations of fact on which the allegation of partnership was based. The petition alleged that the business of the corporation should be continued in the name of the corporation; that the corporation was not to be dissolved; and that the notes were executed to save the directors harmless from any loss for becoming personally responsible to the creditors of the corporation for money with which to carry on the business. The facts alleged show that the defendants were stockholders in the plaintiff corporation, not partners with it nor with the other stockholders.
Were the defendants who signed the notes liable thereon? The notes were nonnegotiable and were made payable to the plaintiff corporation. The notes were signed pursuant to the resolution adopted at the stockholders’ meeting. That resolution provided that each of the stockholders should sign notes. Some of the stockholders did not sign notes. To make the notes obligatory on those who did sign, all should have signed. When any one failed or refused to sign, no obligation to pay was imposed on those who did sign. The stockholders present at the stockholders’ meeting could not bind those not present who failed or refused to comply with the terms of the resolution. They were stockholders, and their rights as such could not be affected by the resolution that was adopted. Not being binding on them, the notes were not binding on the others. All were bound or none.
The liability imposed by the notes signed was single and individual. Each signed for himself. There was no joint liability. Each should be sued separately. Hall v. Hall, 124 Kan. 466, 260 Pac. 645, is controlling on this question.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This action is one to recover upon an oral contract to superintend the construction and remodeling of a building in Kansas City for the compensation of eight per cent of the cost of labor and material. The answer admits there was an oral agreement, but alleges, it was only for the release from plaintiff’s employment of one Mallott, a special foreman, to superintend the construction and remodeling of a building for the defendant, for which release the defendant agreed to pay the plaintiff a bonus of five per cent of the cost of the labor.
Trial was had by a jury on these two theories and a verdict was rendered for the plaintiff. Motion for a new trial was overruled and judgment was rendered for plaintiff and against -defendant, from which defendant appeals.
Two errors are particularly assigned and supported by affidavits used on the hearing of the motion for a new trial: First, misconduct of the prevailing party in the use of prejudicial remarks by his counsel in the closing argument to the jury; and, second, misconduct of the jury in the jury room.
The remarks attributed to counsel for appellee in his closing argument are a comparison of the litigants as to financial ability, the defendant being described as a very wealthy man and the plaintiff as a poor man; that defendant would never miss the amount claimed by the plaintiff, because he had just signed a prize fighter’s bond for several thousand dollars and was rich enough to be accepted on such a bond. The affidavit also shows defendant was referred to as a boss politician, and controlled the attorneys of his county, so that none of them would take this case against him.
The affidavit filed by the appellee on the hearing of the motion for a new trial sets out the remarks about signing the bond as follows : “That Mr. Brady owned thirty-five apartments; that he was rich enough that he could sign a bond for five thousand dollars, which was more than plaintiff was asking’for in this case.”
The affidavit filed shows that when appellant’s counsel objected to the remark about defendant signing the prize fighter’s bond the court remarked that “he did not understand the statement of counsel to have been so broad, but if counsel had said that Judge Brady had signed a bond it should not be considered by the jury.” . This seems to have been the only objection made in the course of the closing argument. The record shows that the defendant testified he was the owner of thirty-five pieces of improved property in Kansas City; that he had bought, repaired and sold several more; that he had held a number of political positions in his city and county, and was at the time of the trial county counselor. Aside from the question of the impropriety of discussing politics and comparative wealth, there was sufficient evidence in the record to furnish a basis for such remarks. The court evidently did not understand that counsel for appellee had said that defendant had signed such a bond, but took the precaution to tell the jury not to consider it if he had so stated.
“Before a judgment will be reversed for miseonduet of counsel of the prevailing party occurring at the trial it must be made to appear that such misconduct prejudiced the rights of the defeated party.
“Ordinarily where the trial court has directed the jury to disregard the matter, and with full knowledge of all the circumstances has approved the verdict, and has overruled a motion for a new trial based upon the ground of misconduct, this court will not reverse the judgment.” (Smith v. Cement Co., 86 Kan. 287, syl., 120 Pac. 349. See, also, Bortnick v. Cudahy Packing Co., 119 Kan. 864, 241 Pac. 442.)
There is no showing here that the jury was prejudiced by such remarks other than by a process of reasoning from cause to effect and a reasonable presumption, but presumptions of prejudice of the jury from questionable remarks do not obtain in this state. To effect a reversal, prejudice must appear, and it does not appear in this case. (State v. Peterson, 102 Kan. 900, 171 Pac. 1153; Stimpson v. Motor Car Co., 114 Kan. 363, 366, 219 Pac. 501; State v. Owen, 124 Kan. 533, 261 Pac. 600.)
The second assignment of error relates to the misconduct of the jury in the jury room. It is stated by one of the jurors in an affidavit that the foreman, after reading the instructions, gave his interpretation of them, stating he had had considerable experience with jury work and understood such matters. He kept the instructions and read them whenever any one wanted to know something of what they contained, and this juror who made the affidavit did not get to read them. The juror further states that she desired to return a verdict for plaintiff for eight per cent of the labor bill only, and the foreman informed her the instructions did not permit such a verdict to be rendered, and for that reason she supported the ver diet of eight per cent on labor and material. The court had instructed the jury that if they found the oral contract to be as claimed by the plaintiff he would be entitled to recover eight per cent of the cost of labor and material, and if they found it to be as claimed by defendant the verdict for plaintiff should be five per cent of the cost of labor only. We are sure the foreman did not misinterpret the instructions when he said a verdict for eight per cent of the cost of labor only was not authorized by the instructions. We cannot call this misconduct in the jury room, and see nothing in the affidavit of this juror that points to anything prejudicial to the rights of the appellant.
“The rule followed that, while a juror may testify as to what transpires in the jury room, he cannot tell what considerations induced him to agree to the verdict, nor give his reasons therefor.” (Ohlson v. Power Co., 105 Kan. 252, syl. ¶ 2, 182 Pac. 393.)
“Before a judgment will be reversed because of misconduct of part of the jurors in making statements in the jury room, based on the knowledge of such jurors outside the evidence, where upon the whole record it appears that substantial justice has been done, it must affirmatively appear that the substantial rights of the party complaining have been prejudiced thereby.” (Hamilton v. Railway Co., 95 Kan. 353, syl. ¶ 6, 148 Pac. 648.)
The defendant admitted there was an oral contract between him and the plaintiff, and that under it he owed the plaintiff five per cent of the cost of labor only, which was five per cent of approximately $6,000, or $300, but the jury accepted and credited the theory of the plaintiff that he was entitled to a commission of eight per cent on the cost of labor, $6,000, and the approximate cost of material, $12,000, a total of $18,000, or $1,500 commission. The trial court approved this verdict as meting out substantial justice In this we concur.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action is one of mandamus to require the state auditor to register municipal bonds. The auditor moves to quash the alternative writ, which shows the following facts:
On March 5, 1928, an ordinance of the city was passed and approved calling an election to be held on April 3 to determine whether bonds should be issued for the construction of a system of city waterworks. The ordinance provided that the notice of election should be published for three consecutive weeks, the first publication to be at least twenty-one days prior to the date fixed for the election. The ordinance was published on March 15. The election notice was published on March 8, March 15 and March 22. On April 3 the bond election was held, and the proposition to issue bonds was carried by a vote of 68 for to 52 against. One hundred and thirty-six persons were qualified to vote. All voters were fully advised of the date and purpose of the election, and none of the 16 who failed to vote omitted to do so for lack of notice. Following the election, bonds were issued and were sold.
The pertinent statutes read as follows:
“Whenever the governing body of any such city shall desire to procure authority for the issuance of bonds under the terms of this act, they shall pass an ordinance directing the calling of an election for the submission of the question to the electors thereof, which election shall be held according to law.” (R. S. 12-802.)
“No ordinance having any object beyond the bare appropriation of money shall be in force until published as herein provided.” (R. S. 15-107.)
“Notice of such election shall be published in a newspaper of general circulation in the municipality once each week for three consecutive weeks, the first publication to be not less than twenty-one days prior to such election; . . (R. S. 10-120.)
The auditor contends the ordinance was of no effect for any purpose until published, therefore the election notice of March 8 was not a legal notice. The result was, the first publication of the election notice did not occur twenty-one days before the election, and the notice was legally published but two weeks instead of three. The city contends the statute relating to notice of the election was literally fulfilled; publication of the first notice before publication of the ordinance was an irregularity which did not affect the informative quality of the notice; the public had in fact just such notice of the election as,the law required; nobody could be misled or prejudiced, and the purpose of the law in providing for notice was as fully accomplished as if the first notice had been technically legal.
The court regards the city’s contention as sound, and holds the defect in the publication of the notice did not invalidate the election.
The motion to quash is denied. Opportunity will be given the auditor to make return to the alternative writ showing registration of the bonds. Should this return be promptly made, the costs will be taxed to the city; otherwise a peremptory writ will issue. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Charles Jenks was prosecuted upon the charge of statutory rape upon Ida Lovin, a girl twelve years of age, and was found guilty. He appeals.
There appears to be sufficient evidence to support the verdict, and in fact the defendant makes no complaint of any lack of sustaining evidence, but bases his sole contention for reversal upon a ruling of the court permitting the introduction of evidence to the effect that he had taken immoral and indecent -liberties with other young girls about the time of the offense charged against the defendant. It appears that defendant lived in a cabin on a street near a school building, and that school children passed his cabin on their way to school. He had the habit of giving young girls candy and small sums of money and had been inviting them to enter his cabin. Ida Lovin was requested by him to enter the cabin a number of times through a back door, and at each visit he gave her ten cents, and she testified that on two occasions he locked the door and had intercourse with her.
There was testimony that he invited Bernetta Garner, a young school girl, to enter his cabin by the same back door, saying that he would give her money if she did. She testified that when in the cabin he raised her dress and handled and played with her, and afterwards gave her a small sum of money. The only objection made to the testimony was the general one that it was incompetent, irrelevant and immaterial. Cecil Hansen, another young school girl, testified that he had invited her into the cabin several times; that he had her come through the back door, then he locked the door, put his hand under her clothes and upon her person, and that he gave her money on these occasions. The only objection to her testimony was, that some of the questions were leading and suggestive, and most of these were sustained. The objection raised on this appeal is that the evidence tended to prove another offense than the one charged in the information. That objection was not made in the trial court, but was first mentioned in this appeal. Under the general rules objections to testimony first made on an appeal is not available as a ground of error. (State v. Shanahan, 114 Kan. 212, 217 Pac. 309; State v. Fox, 116 Kan. 180, 225 Pac. 1042.) Passing, however, the contention that the objections of defendant were not sufficiently specific to challenge the attention of the trial court, we still must hold that the testimony itself was admissible as against a specific objection. It was competent to show the lustful disposition of the defendant and the system used by him in taking indecent-liberties with young girls, as he had with Ida Lovin. It tended to corroborate the charge upon which he was being tried. In a prosecution for statutory rape, it was held that:
“While the general rule is that one crime cannot be established by proof of other independent crimes, there are well recognized exceptions to the rule, and one of them is that in sexual offenses proof of prior and subsequent acts of intercourse are admissible to show the lustful disposition, the existence and continuance of the illicit relation, as these tend to explain the act charged and corroborate other testimony of the prosecution. The exception has been so frequently and thoroughly considered that there is no occasion for further consideration or comment.” (State v. Stitz, 111 Kan. 275, 276, 206 Pac. 910.)
Defendant insists that the rule cannot apply to cases where the victims of defendant’s lust are other than the one upon whom the rape charged was committed. In State v. Bisagno, 121 Kan. 186, 246 Pac. 1001, where defendant was charged with statutory rape with an infant, testimony that he had committed a like offense upon another girl about the same time was received, and it was held upon appeal that it was admissible to show a lustful disposition of the defendant, and thus supplement and corroborate other evidence that he had committed the offense charged.
Following the rule of these authorities it must be held that no error was committed in the reception of the testimony even if the objection made had been sufficiently specific.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In an action by Antony Ligiejko against Adam Niczyperowicz, for alienating the affections of his wife, the plaintiff recovered. The defendant appeals, alleging error in the admission of evidence in refusing to direct a verdict in defendant’s favor on the ground that the action was barred by the statute of limitations, and that the verdict was not sustained by the evidence. The jury returned a verdict awarding plaintiff damages in the sum of $3,125. The court overruled a motion by defendant for a new trial, but at the same time ruled that the verdict should be reduced to $2,000, and judgment for that amount was rendered.
Only a' part of the evidence was brought up on the appeal. It appears that the appeal was dismissed on grounds alleged, but upon a stipulation by the parties that the appeal should be reinstated upon the condition that the defendant should waive the ground of error that the verdict was not supported by the evidence. The stipulation was filed, the appeal reinstated and the case was finally submitted on a partial record of the evidence.
Defendant presents as error the admission of a conversation be tween plaintiff and his wife, during which she told him that she was going to “shag” him out of the house and bring Adam in. That she had said that several times, and got mad when plaintiff brought a suit against Adam. The defendant moved the court to strike out this testimony. The ruling on the motion was reserved by the trial court, and at the close of the plaintiff’s testimony the court sustained the motion and struck put the evidence to which objection had been made, and at that time instructed the jury that all the evidence as to statements or communications made by his wife to him were stricken out and must not be considered by them. Since the communication was stricken out and the jury admonished to give it no consideration, no prejudice .could have resulted. It cannot be assumed that the jury would disregard the instruction of the court and consider testimony expressly taken from its consideration.
Defendant assigns as error the admission of testimony given by plaintiff. He was asked if defendant had come back to plaintiff’s home after he had been prohibited from going there by an order of the court. Plaintiff replied, “I goes to sleep at about eight o’clock, and usually it is about that time or later that Adam conies, about ten o’clock; I am sleeping and don’t know, but witnesses see.” It is said that the phrase “but witnesses see” was hearsay in its nature and should have been stricken out. What witnesses did see is not stated. The remark, however, interpreted is not so' material as to be a ground of reversal. Besides one of the defendant’s witnesses testified that he was at plaintiff’s home after he had been driven away by an. order of the court. The admission of the testimony cannot be regarded as prejudicial error.
An assignment of error is that the findings and verdict are without support in the evidence, and some of the evidence is quoted apparently with the view of maintaining this contention. This assignment is not available to the defendant since the parties agreed and stipulated that it should not be treated as a ground of error. More than that, the alleged ground could not have been considered if there had been no waiver. Only a fraction of the testimony was brought up in the appeal, and hone of the special findings of the jury were preserved. The sufficiency of the evidence to sustain the verdict could not be considered without the substance of all'the pertinent evidence. Probably the absence of evidence in the record induced the making .of -the agreement to waive the assignment that the verdict was without support. ' • ' '
Finding no .error in the record, the judgment is affirmed. | [
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The opinion of the court was delivered by
Greene, J. :
This” was an action in partition and ejectment which resulted in a judgment for defendants. C. A. Roach and G. H. Roach were partners engaged in the grocery business and jointly owned the lot in dispute. Both of them died, and the plaintiffs below, who are plaintiffs in error here, were the widow and children of G. A. Roach, and the defendants were the widow and children of G. H. Roach, the former claiming, as heirs, the undivided one-half of this lot and .asking that it be divided and that they be placed in possession of their part. The defendants claimed that O. A. Roach sold his interest to G. H. Roach.
On the trial, defendant Mary Roach, the widow of G. H. Roach, was permitted to testify to a conversation between herself, her husband, and 0. A. Roach, which, according to her testimony, was a sale by G. A. .Roach of his undivided one-half of this lot to her husband. This evidence was admitted over the. objections of the plaintiffs and is the first error assigned. Section 4770 of the General Statutes of 1901 reads:
“No party shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person when the adverse party is the executor, administrator, heir at law, next of kin, surviving'partner or assignee of such deceased person. . . .“
Under this statute, when the parties on one side of a controversy are the executors, administrators, heirs at law or next of kin of a deceased person, and have ■acquired title to the cause of action immediately from such deceased person, the adverse party cannot testify to any transaction or communication had personally with such deceased person. Argument could not make this statute plainer. The plaintiffs in this action were heirs at law and next of kin of G. A. Roach, deceased. Mary Roach was one of the adverse parties, and was clearly excluded by this statute from testifying to any conversation had with 0. A. Roach, or to any con versation between him and another in which she had taken part, concerning the cause of action.
On the trial plaintiffs introduced one O. E. Ashenfelter, and undertook to examine him concerning the sale by C. A. Roach to G. H. Roach of his one-half of the partnership business. The defendants objected to this witness’s testifying to any such transaction, on the ground that Ashenfelter was acting at that time as an attorney and counselor for the parties. Without embodying his testimony in the opinion, suffice it to say that it did not show that he was acting in such capacity. He was not an attorney at law; he was merely called in to reduce the agreement of the parties to writing. He gave no legal opinion or advice. His testimony should, therefore, have been admitted.
For the reasons herein suggested, the judgment of the court is reversed and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
The appellant was convicted of the murder of his wife, and sentenced to hard labor in the penitentiary for fifty years. She had been beaten to death by blows upon the head with some blunt instrument, and by blows upon the body in the region of the heart, which produced a fracture of two ribs and copious internal hemorrhage. The appellant claimed she had opened the gates of death herself by that self-slaughter against which the Almighty has set his canon.
It would offend the pages of the journal of this court to spread upon them a full' account of the distillation of the deadly venom of the defendant’s icy heart; therefore, the gruesome facts disclosed by the record of the district court, including the defendant’s brutish treatment of the unpitied body of his wife, whose soul the accumulated bitterness of years had filled with wretchedness, will be referred to no further than is absolutely necessary to determine if the scales of justice were held by a steady hand throughout the prosecution.
The information was assailed by a motion to quash and by a motion to make more definite and certain. Upon its face the information appears to be direct, specific, and plain. The objections to it were couched in general terms. No attempt has been made, either in the brief or in the oral argument, to point out any particular in which the appellant was anywise embarrassed or imperiled in making his defense by the supposed blindness of the charge, and the conclusion must be that his constitutional right to demand the nature and cause of the accusation against him has been safeguarded.
When the appellant was arrested he immediately wrote in dust, and gave to the winds, a monstrous fabrication concerning his wife’s death by suicide. An autopsy revealed neither external nor internal evidence of any war whatever .between her neck and a suspended noose. When asked of bruises on the body he gave an explanation, and explanations multiplied as fast as his information of other mutilations grew. The examination of a witness disclosed that in the defendant’s earliest narrative he had omitted to introduce the only invention adequate to account for the broken ribs. To escape from this predicament the defendant’s counsel asked the witness on cross-examination the following question: “But at that time it was supposed she came to her death by a blow on her head ?’’’ The witness was not allowed to answer, and the defendant claims the right to a new trial for that reason.
The question made no reference to any statements concerning the cause of death, which were in fact communicated to the defendant, and which might have absorbed his attention for the time. It related merely to the bubbles of conjecture and surmise which had been blown upon the pipe of rumor', and which were floating about in the idle wind of gossip. Counsel for defendant understood this at the time, and proceeded to draw from the witness the details of his conversation with the defendant. The details were that the witness had told the defendant that his wife was wounded on the head and on the breast and on the thighs and on the abdomen, and that he did not tell the defendant she had come to her death by a blow on the head. The entire record considered, the assignment of error is trivial.
Some of the neighbors of the deceased woman were present at the coroner’s inquest, and made a close examination of her neck. At the trial one of them said it was not in any other than a natural condition, and another said that so far as he could see it was in a natural condition. Technical objections to this testimony were argued at length, but it is not necessary to consider them. The testimony tended to negative the existence of external evidence of strangulation. There is no contradiction in the record of the fact that no such evidence existed. Some eight or ten witnesses examined the body when it was first discovered and exhumed, and found none. It was disinterred a second time, and a thoroughly scientific examination made, with the same result. Then the defendant caused the much mutilated remains to be dug up and ravaged once again for some slight sign of exculpation, and no external evidence of suicide was found. Therefore, the bits of evidence referred to were neither prejudicial nor important.
The defendant pretended that his wife had suffered an accident the evening before her death which might have broken her ribs. He said he was present when it occurred, and claimed to have made the quick suggestion of a doctor’s aid. ' Concerning other matters, the defendant paraded himself as an ideally compassionate and sympathetic husband. On cross-examination he was required to answer the following questions : “How many times did you have a doctor when children were born?” (there had been nine of them) and “I will ask you if you did not complain of paying that ten dollars time and time again, to your wife?” Counsel for the defendant say the questions were calculated to give the impression that he was a low, coarse, brutal and degraded person. But the defendant proved himself to possess a character so low, coarse, brutal and degraded that the vilest imputation which the state might make could not affect it. When, in his own defense, the defendant told upon the witness-stand of hiding the bruised and naked body of his wife for a day between bales of hay in the barn, of loading it at night without protection or covering upon the frame of a grain-drill, of driving with it afield, and then burying it face downward in a shallow ditch near the head of a ravine, he sunk into an abyss of infamy at which the very fiends must falter.
A Doctor Smith, who was introduced as a witness for the defendant, was not permitted to answer the following question :
“You may state to the jury whether in your opinion, after a person had been buried a month and a day and an examination of the brain had and the condition found as testified to by Doctor Tucker, a person could tell what caused the condition of that brain?”
It is said that the question was intended to meet Doctor Tucker’s opinion about the cause of the condition of the brain. Doctor Tucker had described the condition of the deceased woman’s brain, and from many facts had given his opinion regarding the cause of death, but he had not assigned a cause for the condition of the brain. Therefore, the reason given for the question fails.
Doctor Smith appears to have heard Doctor Tucker’s testimony for the state on a given day. Subsequently Doctor Tucker was recalled and gave additional descriptions of the result of the autopsy held on the body of the deceased, and gave opinions, based upon his complete investigation, about the cause of death. These descriptions and opinions Doctor Smith did not hear. The court refused to permit Doctor Smith to give an opinion on the question whether or not the wounds he had heard Doctor Tucker describe were necessarily fatal, and the defendant asks that the verdict against him be overturned for that reason. From the manner in which the record is prepared it is impossible to say upon what Doctor Smith’s opinion would have been based had he been permitted to answer the question. Therefore, error is not made manifest. But Doctor Smith was afterward recalled and examined by means of hypothetical questions, apparently to the extent of his knowledge and to the extent of counsel’s ingenuity, and every vestige of prejudice, if the previous ruling were erroneous, was eliminated.
From the demeanor of the defendant as a witness in his own behalf, it would appear that he was incapable of violence even in the vibration of his vocal cords, and, probably for the purpose of rebutting the natural conclusion that he was cringing like a self-convicted felon, his attorneys undertook to prove that soft speech was habitual with him. The court per mittecl them to prove his usual tone of voice, but declined to allow a witness to compare it with .the way' he talked the day before. It is claimed that the conviction of murder was unwarranted on this account. Without any precedents for guides the court is inclined to follow the analogy of the common law, and to hold that after the defendant’s every-day tones had been established the jury were as well qualified as anybody else to make comparison between them and the defendant’s witness'-box voice. The practice here attempted to be inaugurated may be regarded as closed.
Certain questions were propounded to professional witnesses for the defendant and excluded, which called for the probable acts of an individual suffering from puerperal mania, and for an explanation of the witnesses’ understanding of the term “puerperal mania.” The material matters then under investigation were the physical condition of the deceased, and the effect of that condition, if it were diseased, upon her mind. The causes and symptoms of any disease from which she might be suffering, and which would affect her conduct, were proper matters of inquiry, and the effect of any disease upon her conduct was relevant. But the court was not bound to permit the witnesses to wander further. Therefore, the ruling of the court was correct. But the witnesses answered a series of carefully considered questions developing the fact that a certain organ of the deceased was not in a normal state, and that the diseased condition which it disclosed would likely cause puerperal mania —an unsound condition of the mind. They further described the symptoms of puerperal mania, and stated that it would produce an excited state, accompanied by wild talk and melancholia, a state of mental depression, and one of them expressed the opinion that a suicidal tendency might be exhibited. Therefore, the whole matter sought to be elicited by the questions to which objections were sustained was fully exploited in a proper, scientific way, and the only controversy left is that between the court and counsel over the form of interrogatories, which is no longer of any importance.
The defendant asked the court to instruct the jury that the state must prove the absence of certain facts in order to establish guilt, as the absence of self-defense and of other justification or excuse. The request contained nothing more substantial than a play upon words. If a killing be wilful, deliberate, and premeditated, it cannot be justifiable or excusable; and if the burden be placed upon the state to prove a wilful, deliberate and premeditated killing, it already has the burden of proving a killing from which justification and excuse are absent. The burden was so imposed in this case. The same rule obtains with reference to all inferior degrees and crimes provable under the information, and the requested instructions were rightfully refused.
When a witness in his own behalf upon the trial, the defendant admitted that the only defense he had involved for its support the propagation of a prodigious lie, notwithstanding the fact that a lie will inevitably recoil upon the head of the liar and that the truth is profitable to all men at all times. In this appeal no assignment of error has been presented which merits more than passing consideration. It is the law that whosoever crawls upon the belly shall eat dust, and the judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
The plaintiff below recovered a j udgment against the defendant railway company for damages on account of injuries to his minor son. The defendant presents to this court the single question of the sufficiency of the evidence to sustain the verdict.
It is claimed that the evidence was insufficient to identify the train which inflicted the injury as one operated by the' defendant; to show authority in the fireman who expelled plaintiff’s son from the train to do so; and to show wantonness on the part of the defendant, the injured boy being a trespasser. It is also claimed that the plaintiff’s son was guilty of contributory negligence. These questions were all matters of fact to be established by evidence. The record has been examined and it is found to contain some substantial evidence sustaining the verdict at every point at which it is assailed. The jury were the triers of the facts; this court has no authority to exercise any such function; it cannot settle disputes concerning what conflicting evidence proves, and when evidence is undisputed' it will not pronounce a conclusion respecting it, when different inferences might reasonably be drawn. A discussion of the facts of this case would subserve no useful purpose.
■ The judgment of the district court is affirmed. | [
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Per Curiam:
The plaintiffs brought this action to enforce the specific performance of a contract to convey real estate, relying upon a written contract of sale made by one D. C. Barr, as the agent of the defendant, and a subsequent ratification by her. The court made numerous special findings of fact and conclusions of law, and rendered judgment thereon for plaintiffs. These findings cover every material fact involved in the controversy, and are each amply sustained by the evidence. An examination of the record does not disclose any error committed by the court in the admission or exclusion of evidence.
The judgment is affirmed. | [
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Per Curiam:
This case involves the granting of an injunction to restrain a road overseer from maintaining an obstruction to the flow of water through a culvert across a public highway. The findings of fact are insufficient to establish the existence of a natural watercourse across the highway at the place of obstruction. (Gibbs v. Williams, 25 Kan. 214, 37 Am. Rep. 241; K. C. & E. Rld. Co. v. Riley, 33 id. 374, 6 Pac. 581; C. K. & W. Rld. Co. v. Morrow, 42 id. 339, 22 Pac. 413; C. K. & N. Rly. Co. v. Steck, 51 id. 737, 33 Pac. 601; Singleton v. A. T. & S. F. Rly. Co., 67 id. 284, 72 Pac. 786.) Therefore, the case must be treated as one in which an injunction is sought to control the repair of a road by a road-district overseer.
The law relating to the authority and power of road overseers was fully discussed by Chief Justice Johnston in the case of Shanks v. Pearson, 66 Kan. 168, 71 Pac. 252. The questions involved in that case are identical with those arising upon the record under consideration.
The district court having found, though in a somewhat dubious way, the existence of a circumstance authorizing it to interfere, its judgment is affirmed. | [
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The opinion of the court was delivered by
Cunningham, J.:
This was an action on a note and for the foreclosure of a mortgage given to secure the same. The petition nowhere in its caption or body recited “the name of the court and the county in ■which the action is brought,” as provided in section 87 of the code of civil procedure (Gen. Stat. 1901, § 4521). It was, however, indorsed upon the outside “No. 9019, district court, Sumner county, Kansas,” and was filed in that court.- Upon a prseeipe properly entitled, a summons was issued and duly served on the defendants. Conceiving that this summons was issued without authority and its service void and conferred no jurisdiction, because the petition lacked the proper caption, the defendants entered their special appearance and moved to quash the summons and set aside the service. Pending the consideration of this motion the plaintiff asked and obtained leave to amend the petition by writing at the head of it and above the names of the parties the names of the court and county in which the action was pending. The motion to quash and set aside the service was overruled, the court retained jurisdiction of the parties and subject-matter, and proceeded further in the cause. Defendants at all stages reserved this question, and now present it here as their first assigment of error.
The defendants contend that the statute in question is mandatory, and that the omission from the caption of the petition of the name of the court and county in which the action was brought was fatal to jurisdiction, the statute reading, as it does, that “the petition must contain” these statements, and that their omission would be fatal, as omitting entirely the venue of the action. An analogous question to this was presented in the case of Butcher v. The Bank of Brownsville, 2 Kan. 70, 83 Am. Dec. 446, where it was held that the omission of the word “petition” from the caption, the insertion of which the statute makes equally mandatory, was -not fatal, but might be cured by amendment. The defendants could in no way have been misled or prejudiced by the omission of which they complain. The summons fully informed them where the action was pending. All statutes of jeofailes, such as the provisions in our code of civil procedure which permit amendments of any pleading, process, or proceeding at any stage, in furtherance of justice, and require the disregard of errors and defects not going to the substantial rights of parties, amply justify the action of the court. (Civil Code, §§ 139, 140 ; Gen. Sta't. 1901, §§ 4573, 4574 ; Merrill v. Grinnell and others, 10 How. Prac. 31; Davison v. Powell, 13 id. 287; Hotchkiss v. Crocker, etc., 15 id. 336; 4 Encyc. Pl. & Pr. 592.) Besides, it will be borne in mind that the names of the court and the county were found upon the petition, not strictly in the caption, but upon the outside, where, for all purposes, they would be quite as efficient as though in the caption itself. We think that the amendment allowed, if any were necessary, was well within the power of the court.
Upon the trial the only litigated question was whether the statute of limitations had run on the note sued on so as to bar foreclosure. To toll the statute a payment of sixty dollars within the statutory period was relied on. A payment of this amount was admitted by the defendants. The plaintiff claimed that it was made as interest or,' at least, as a general payment on the indebtedness. The defendants claimed that it was made not as interest or as a' general payment, but for the specific purpose of discharging the taxes on the mortgaged land. This question was resolved by the jury in favor of the contention of the plaintiff, and we think correctly so, upon the evidence, if properly admitted. It is contended, however, that improper evidence was admitted in proof of this issue. The payment was made to an agent of the owner of the note, who testified that it was for interest, and that he at the time of the demand made an entry to that effect upon books of the account which he kept as between himself and his principal. These books were produced in court and,, after having been identified and the showing made that the entries were made at the time of the occurrence of the events therein shown, and were correct, were admitted in evidence over the objection of the defendants for the purpose of corroborating the agent’s oral evidence as to the character of this payment. This action is claimed to have been erroneous. In one sense, they were books of account between the plaintiff and the defendants, and were no less so because the entry was made by the plaintiff’s agent; and while in another sense, they were the books of account between the plaintiff and his agent, still they showed the condition of the account between the parties principal. In either view, we think their admission well within the authority of section 387 of the code (Gen. Stat. 1901, §4835).
This payment of sixty dollars was not actually indorsed upon the note until after the expiration of the time in which the statute of limitations would have run thereon, and it is claimed that such indorsement was necessary to toll the statute; that a mere- payment was.not sufficient. In support of this contention we are cited to the cases of Hamilton v. Coffin, 45 Kan. 556, 26 Pac. 42, and Good v. Ehrlich, 67 id. 94, 72 Pac. 545. These cases do not sustain the contention of the plaintiff in error. It is the payment of a part of the principal or interest, and not the indorsement of such payment upon the account or evidence of debt, which tolls the statute. (Code, §24; Gen. Stat. 1901, § 4452-.)
After the execution of the mortgage in question the mortgagor conveyed the title of the mortgaged premises to his son, who did not assume the payment of the mortgage indebtedness. The payment relied on to toll the statute was made by the original mortgagor, and it was claimed that such payment would not avail to toll the statute as against the son, the holder of the legal title, and that the mortgage, therefore, could not be foreclosed as against him. This question has been settled against this contention by the case of Jackson v. Longwell, 63 Kan. 93, 64 Pac. 991, and several cases following.
We have looked into the other assignments of error and find them without merit.
. 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
Cunningham, J. :
Alois Denning and John Knoll were friends, or on friendly terms, and had been so for some time. They were both addicted to the excessive use of alcoholic liquors. A personal encounter occurred between them on the 19th day of February, 1903, closing a convivial season of some five or six hours, during which time both had indulged in the use of intoxicants to a considerable extent. This had occurred at Denning’s place of residence, which was in connection with his store.
It seems that there was a matter of disagreement between the parties concerning a report which Knoll said he had heard relative to alleged improper relations between himself and Denning’s wife. This, however, did not appear to be serious, and Denning had assured Knoll that he would take such measures as were necessary to contradict any unfavorable comment and rectify any supposed wrong. However, an altercation, somewhat noisy and violent, at least, on the part of Knoll, took place between them, during which the latter broke some dishes on the table at which they were seated partaking of their dinner together. Denning remonstrated and told Knoll that he must cease these violent demonstrations or leave the premises. With a view of enforcing this requirement Denning procured a pistol, but there was little evidence that he had any purpose to use it against Knoll. With alternating periods of apparent friendliness and boisterousness, the matter finally culminated in Knoll’s throwing Denning to the floor, getting upon him with his knees, striking him with his fists, and breaking his leg in some way, not indicated by the evidence. The entire evidence pointed strongly to the conclusion that the whole affair was merely a drinking bout indulged in by the two men, resulting in this altercation, in which Denning was sadly and unnecessarily worsted. Denning was suffering from chronic alcoholism and fatty degeneration of the heart. In consequence of his injury he was put to bed, and by reason of the inactivity thus enjoined, and his previous diseased condition, self-infection resultant from the inability properly to throw off the natural secretions ensued; from which complication he died on the 23d of 'March, thirty-two days after his injury. While his physical condition prior to his injury was such as would have eventually resulted in his death, the injury which he received hastened that result.' From a prosecution which resulted in his conviction of, and sentence for, manslaughter in the first degree, Knoll prosecutes this appeal.
Complaint is made of the denial of a motion to quash the information. While in terms this information charged murder in the first degree, we doubt the sufficiency of the facts, as therein set out, to support a conviction for that offense, but are of the opinion that sufficient facts are therein found to support the conviction of manslaughter in the first degree, and, hence, following The State v. Triplett, 52 Kan. 678, 35 Pac. 815, that no prejudicial error resulted.
What purported to be the dying declaration of Denning was introduced in evidence. It is contended that this testimony was improperly received, because it was not sufficiently shown that Denning at the time he made it believed himself to be in extremis. The declaration was made on March 7, sixteen days prior to his death ; his condition thereafter and up to the time of his death is not shown.. The qualifying evidence came from the lips of Denning’s sister, and the strongest language attributed to Denning, as indicating his estimate of his condition at that time, was as follows :
“Pie said that he had to die of the whipping of John Knoll; that he had to die ; that any hour, any day, he might die ; and he had to die of the whipping of John Knoll; that any hour and any day he might die; and that he had to die of the whipping he got from John Knoll. ... I asked him what made him say so; what made him say that he had to die ; and he said that the pains from the whipping John Knoll gave him, from the whipping on his head and breast where John jumped on him with his knees' that pain is what makes him know he is to die.’’
It is not disclosed in the record whether at the time this statement was made Denning was confined to his bed or able to be around; we may presume, however, that he was unable to be up. Nor does it appear that he had received information from any one that his condition was in any way serious—not to say dangerous. There is absolutely nothing outside of these declarations to indicate the condition of his mind concerning the probability or imminence of death.
The reasons why dying declarations are taken out of the rule which excludes hearsay testimony are those of necessity, joined with the conclusion that a realization by the declarant of the certain and speedy approach of death would be as powerful an incentive on his part to tell the truth as would the administration of an oath. So that it is familiar law that, in order to authorize the introduction of such declarations, it must be shown that there was in the mind of the deceased at the time of the making of the statement a present belief of the close and certain approach of death ; indeed, this belief must be so present and grave-that the declarant must not be merely in articulomortis, but under the sense of impending death, without expectation or.hope of recovery. (The State v. Wellington, 43 Kan. 121, 124, 23 Pac. 156; The State v. Furney, 41 id. 115, 21 Pac. 213, 13 Am. St. Rep. 262; The State v. Wilson, 24 id. 189, 36 Am. Rep. 257; The State v. Medlicott, 9 id. 257; 10 A. & E. Encycl. of L., 2d ed., 366.) It is quite true that where this condition of.' mind exists at the time of the making of the statement, such statement is not rendered inadmissible by a subsequently entertained belief or hope on the part of the deceased that he may recover.
Tested by the rule above stated, was the preliminary proof of the condition of Denning’s mind such'as to warrant the admission of the so-called “dying declaration ” ? We think not. It indicated little more than at the time the declaration was made he entertained the belief that sometime in the future the injuries received would result in his death. When that result-might occur was unknown to him; its occurrence in the immediate future evidently was not anticipated. There was nothing indicating that he considered it imminent, or that he thought himself about to die-There was little more relative to expectation of death-than what any person might truthfully say. It was-sought to strengthen the showing of the decedent’s knowledge of approaching death by introducing the evidence of a priest that the “last rites” were administered to Denning, but it was not shown when this was done, what its significance was, or that Denning, knew it had any significance. This testimony added nothing to the preliminary showing.
The court instructed the jury that if the defendant was not justified in his assault he should be convicted. -of murder in the first or second degree, or of manslaughter in the first or second degree, or of assault and battery, thus excluding from their consideration ■the question of whether he might not be guilty of manslaughter in the fourth degree. In this we think the court erred. Section 26 of the act relative to crimes and punishments (Gen. Stat. § 2011) provides :
“The involuntary killing of another by a weapon, or by means neither cruel nor unusual, in the heat of passion, in any cases other than justifiable homicide, ■shall be deemed manslaughter in the fourth degree.”
Under the circumstances of this case, as shown by the evidence, we think the jury might well have found the defendant guilty under this section had they been permitted so todo, under proper instructions.
The appellant was sentenced under what is known as the “indeterminate-sentence law,” the same being chapter 375 of the Laws of 1903. He now claims that such a sentence was void because section 5686 of the General Statutes of 1901, which provides for a fixed sentence, was not repealed by chapter 375 of the Laws of 1903, and, hence, being in force, he should have received his sentence thereunder. The title to chapter 375 is as follows :
“An act to provide for the indeterminate sentence of persons convicted of certain felonies, for the termination of such sentence and the release of such persons, defining the duties of the directors and warden of the penitentiary in relation thereto, and repealing section 5685 of the General Statutes of 1901 and- all other acts and parts of acts in conflict herewith.”
It will be noted from this recitation that section 5685 was therein named as the one to be repealed, whereas the section which-was desired to be repealed, and which, by section 10 of the act, was in terms repealed, was section 5686. Of course, there having been an error in the title of the act in the recitation of the number of the section desired to be repealed, such section was not expressly repealed, even though correctly numbered in the body. We must, however, hold that it was repealed by clear implication. The whole scope and purpose of chapter 375 was to provide for an indeterminate sentence and to substitute it for the fixed term of sentence provided for in section 5686; hence, we hold that, although there was a failure expressly to repeal section 5686, it was repealed by implication. (Baker v. Land Co., 62 Kan. 79, 61 Pac. 412.)
OtheT matters of error are urged which have received our attention, but we find therein no prejudice to the appellant. For the errors above noted the judgment will be reversed, and the case remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
This action is original in this court. It involves the title to the office of district judge of the twenty-ninth judicial district. At the general election of 1899 the plaintiff was elected to the office named, the duties of which he assumed upon the second Monday in January, 1900. He continued in the exercise of such duties for a term of four years, ending on the second Monday in January, 1904. Under the law as it existed at the time of his election, the plaintiff’s successor would have been elected in the odd-numbered year 1903.
At the time of the plaintiff’s election the constitution contained the following provisions material to an exhibition of his claims :
“General elections shall be held annually on the Tuesday succeeding the first Monday in November. Township elections shall be held on the first Tuesday in April, until otherwise provided by law.” (Art. 4, §2.)
“All county officers shall hold their offices for the term of two years, and, until their successors shall be qualified, except county commissioners, who shall hold their offices for the term of three years ; provided, that at the general election in the year eighteen hundred and seventy-seven the commissioner elected from district number one in each county shall hold his office for the-term of one year, the commissioner elected from district number two in each county shall hold his office for the term of two years, and the commissioner elected from district number three in each county shall hold - his office for the term of three years ; but no person shall hold the office of sheriff or county treasurer for more than two consecutive terms.” (Art. 9, § 3.)
“Township officers, except justices-of the peace, shall hold their offices one year from the Monday next succeeding their election, and until their successors aré qualified.” (Art. 9, §4.)
The constitution also provides as follows :
“All judicial officers shall hold their offices until their successors shall have qualified.” (Art. 3, § 12.)
At its session in the year 1901 the legislature passed a resolution submitting to the people an amendment to the constitution in the following terms:
“iSenate Concurrent Resolution No. 5, Proposing an amendment to the constitution relating to and providing for biennial elections.
“Beit resolved by the legislature of the state of Kansas, two thirds of the members elected to each house thereof concurring therein :
Section 1. The following proposition to amend the constitution of the state of Kansas is hereby submitted to the qualified electors of the state for their approval or rejection, to wit: The constitution of the state of Kansas is hereby amended by striking out the whole of section 2 of article^ 4, and sections 3 and 4 of article 9, of said constitution, and inserting in lieu of said sections the following, which shall constitute section'2 of article 4 of the constitution: Sec. 2. General elections and township elections shall be held biennially on the Tuesday succeeding the first Monday in November in the years bearing even numbers. All county and township officers shall hold their offices for a term of two years and until their successors are qualified ; provided, one county commissioner can be elected from each of three districts, numbered 1,2, and 3, by the voters of the district, and the legislature shall fix the time of election and the term of office of such commissioners; such election to be a general election, and no term of office to exceed six years. All officers whose successors would, under the law as it existed at the time of their election, be elected in an odd-numbered year, shall hold office for an additional year and until their successors are qualified. No person shall hold .the office of sheriff or county treasurer for more than two consecutive terms.
“Sec. 2. This proposition shall be submitted to the electors of this state at the general election of representatives in the year 1902 for their approval or rejection. The amendment hereby proposed shall be designated on the official ballot by the following title : ‘The biennial-election amendment to the constitution,’ and shall be voted for or against, as now provided bylaw under such title.” (Laws 1901, ch. 424.)
At the same session of the legislature an act was passed providing for biennial elections of county officers except county commissioners, which contained two sections as follows :
“Sec. 3. On or before the second Monday in January, 1902, the governor shall appoint a judge for each of the following judicial districts, to wit: The tenth, fourteenth, fifteenth, seventeenth, nineteenth, twentieth, twenty-first, thirtieth, thirty-first, thirty-second, thirty-third, thirty-fourth, and thirty-fifth, who shall hold their offices from the second Monday in January, 1902, until the second Monday in January, 1903. At the general election in 1902 a judge shall be elected in each of said judicial districts, who shall hold his office for a term of four years from the second Monday in January, 1903. And there shall be a judge elected in each of said judicial districts at the general election every four years thereafter. No election for judge of the district court shall be held in said districts in the year 1901.
“Sec. 4. On or before the second Monday in January, 1904, the governor shall appoint a judge for each of the following judicial districts, to wit: The sixth, seventh, eighth, ninth, eighteenth, twenty-ninth, and thirty-sixth, and of the court of common pleas of Wyandotte county, who shall hold their offices from the second Monday in January, 1904, until the second Monday in January, 1905. At the general election in 1904, a judge shall be elected in each of said judicial districts and in said Wyandotte county, who shall hold his office for a term' of four years from the second Monday in January, 1905. And there shall be a judge elected in each of said judicial districts at the general election every four years thereafter. No election for judge of the district court shall be held in said districts in the year 1903.” (Laws 1901, ch. 176.)
The resolution quoted was proposed in the senate on January 16, 1901. It was finally adopted by both houses on February 12 following. On January 31 the house referred the resolution to its judiciary committee, and on the same day the biennial-election bill was introduced in that chamber. The bill finally passed both houses February 28. The resolution and the bill each provided that it should take effect upon publication in the statute-book, which occurred May 1, 1901.
By decisions of this court rendered in July, 1901, and February, 1902, the statute was held to be valid. (Wilson v. Clark, 63 Kan. 505, 65 Pac. 705; The State v. Andrews, 64 id. 474, 67 Pac. 870.) No election of judges of the district court was held in 1901, and appointments made by the governor under the statute were upheld. At the election of November, 1902, the proposed amendment to the constitution was adopted. No election to the office of district judge in the district concerned was held in the year 1903. Prior to the second Monday in January, 1904, and claiming to act under the biennial-election law quoted above, the governor appointed the defendant to the office in question. The defendant duly qualified, and on January 12, 1904, entered upon the performance of his duties as judge of the district court of the twenty-ninth judicial district.
May this court oust the defendant and restore the plaintiff to the office which both parties claim? The question involved is purely one of interpretation. The generally-recognized rules for enabling truth to cometo utterance in such, matters are old and well understood, and need not be restated here. The latest exhibition of them may be found in the eighth volume of the Cyclopedia of Law and Procedure, commencing at page 724, together with abundant references to authorities illustrating their application. A similar service has been performed in volume 6 of the second edition of the American and English Encyclodedia of Law, at page 920 et seq. Pertinent cases are digested in volume 10 of the Century edition of the American Digest, at page 1222 etseq. Blackstone’s rules for the interpretation of laws and the construction of statutes (Commentaries, 59 and 87) are models of terse and luminous statement, and are sufficient for a correct determination of this controversy. The treatment of the subject by Hugo Grotius in the chapter “De Interpretatione” of his work, “De Jure Belli et Pacis” (Lib. II, Cap. XVI), has never b,een superseded ; and some of the most exalted portions of our modern doctrine Grotius translates from Aristotle.' Therá is, therefore, no lack of qualified guides.
The plaintiff plants himself in the position that the words of the constitutional amendment, “all officers whose successors would, under the law as it existed at the time of their election, be elected in an odd-numbered year, shall hold office for an additional year, and until their successors are qualified,” are the measure of his rights. He says :
“We have nothing to consider except the import of those words according to their ordinary and known meaning as used in common parlance. . . . No question of law or construction can arise under this language, and to determine whether the plaintiff or any officer ‘shall hold office for an additional year,’ we have only to inquire, What was the law existing at the time of his election ? And if we find that under it his successor would be elected in an odd-numbered year, then the whole question is solved, and such officer holds for an additional year.”
He insists that the change from annual to biennial elections disturbed the official term - of judges of the district court as well as of county and township officers, ■and that the words of the amendment must ■ be given a signification as large as the necessity for their use. When measuring by their context he relates the words quoted to the first sentence of the amendment, fixing the elections, instead of to the second, referring to certain officers, and allows no possibility of sequence or dependence between the words upon which he stakes his case and those in juxtaposition with them ; and he asserts that the framers of the amendment would have injected some characterizing word, as, for example, the word i‘such,” between the words “all” and “officers” if it had been intended to make a reference to the officers designated in the second sentence. When confronted with the statute'the plaintiff contends that the legislature adopted the resolution before there was any statute, and hence must have had judges of the district court in mind and must have provided for them by the amendment. He says :
“It is manifest that the statute was not enacted' with any reference to the proposed amendment and its provisions, and that the amendment was proposed and adopted without reference to any statute whatever.”
He claims the statute was temporary and covered only a part of the field, while the amendment was permanent and covered it all; and that the amendment repealed the statute because inconsistent with it, and because the amendment was the later law, derived from the highest possible authority in the state.
At the threshold of any discussion of these claims appears the case of Griffith v. Manning, 67 Kan, 559, 73 Pac. 75, decided by this court July 10, 1903. The syllabus of that case reads :
“The amendment to the constitution regulating elections, adopted in 1902, refers only to the election of county and township officers, and the term ‘all officers/ therein used, means all county and township officers.
“The office of judge of the city court of Kansas City is neither a county nor a township office, and hence the term of the incumbent thereof is not extended by virtue of said amendment.”
The action in that case was one of quo warranto. It was brought against a person who held possession of an office because he claimed to be an officer whose successor would, under the law as it existed at the time of his election, be elected in an odd-numbered year ; therefore, under the express terms of the constitutional amendment, he claimed the right to hold for an additional year and until his successor should qualify. The court heard oral argument, considered the briefs, and after careful consideration arrived at a conclusion embodying the unanimous opinion of all the justices. It was held that the office claimed was not a county or a township office.' But that did not determine the case. The incumbent was an officer, and an officer who fell within the exact description of the third sentence of the constitutional amendment, .if the language there used were to be given the force now contended for. The position of the defendant was identical with that of the plaintiff in this case. If the expression “all officers” were to be given a literal interpretation the defendant was entitled to hold. It was absolutely necessary, therefore, to determine whether or not the words “ all officers ” should be given an unlimited and unrestricted signification ; and if the' language of the amendment were held to apply to some officers only and not to all officers,’ it was then necessary to determine further if the defendant was included. The scope of the amendment was of the essence of the controversy, and the conclusion of the court was expressed in positive terms as to what it did include, rather than in negative terms as to what it did not include. Although the governor of the state could act upon the authority of the statute alone, he doubtless made the appointment assailed in this action in full reliance upon the finality of the interpretation which the constitutional amendment received in the case of Griffith v. Manning, and that decision ought not to be overturned upon anything short of the most positive conviction of error.
Because, however, the office involved Is one of great importance to the people of the district and of profit and honor to its incumbent, and because it was not specifically mentioned in the opinion in the case of Griffith v. Manning, the court has examined the question anew, thankful for the able and critical arguments of the counsel for the respective parties both in the briefs and at the bar.
In support of his cause, the plaintiff cites the opinion of Johnson, J., in the case of Newell against The People, 7 N. Y. 9, 97, as follows :
“Whether we are considering an agreement between parties, a statute, or a constitution, with a view to its interpretation, the thing we are to seek is the thought which it expresses. To ascertain this, the first resort in all cases is to the natural signification of the words employed, in the order and grammatical arrangement in which the framers of the instrument have placed them. If thus regarded, the words embody a definite meaning which involves no absurdity and no contradiction between different parts of the same writing, then that meaning apparent upon the face of the instrument is the one which alone we are at liberty to say was intended to be conveyed. In such a case there is no room for construction. That which the words declare is the meaning of the instrument; and neither courts nor legislatures have the right to add to or to take away from that meaning. This is true of every instrument, but when we are speaking of the most solemn and deliberate of all human writings, those which ordain the fundamental law of states, the rule rises to a very high degree of significance; It must be very plain, nay, absolutely certain, that the people did not intend what the language they have employed, in its natural signification, imports, before a court will feel itself at liberty to depart from tho plain reading of a constitutional provision.”
This language is but an amplification of that of Vattel, in his Law of Nations (Bk. 2, ch. 17, §263), which was substantially adopted by this court in Fitzpatrick v. Gebhart, 7 Kan. 35, 47, and it undoubtedly expresses the true rule of the law. The plaintiff, however, does not bring himself within its terms. He insists that the case be decided not upon the words of the instrument but upon the words of a single sentence of the instrument; not upon the words in the order and grammatical arrangement in which the framers placed them but upon such words in a different order and arrangement; and he would ignore the absurdity involved in making the words extend to ward councilmen and school-district officers.
It is a truism that a fragment of a writing torn from the body of an instrument is no criterion of its meaning. Words always take the tang and dye of their fellows, and depend for their effect upon their collocation. When wrested from their setting and association, they lose their quality of enlightenment and their informing power. The stark literalness of the interpretation contended for would have hanged the surgeon who opened the vein of a man who fell down in the streets with a fit, under the enactment that whoever drew blood in the streets should be punished with the utmost severity (Black. Com. 61) ; and would have approved the suggestion of Pericles that an obligation of persons to lay down their steel might be satisfied by laying down steel buckles when swords were meant. (Grotius, supra.) Therefore, the court cannot be confined to the words the plaintiff quotes, and the fact that it is a constitutional provision which is to be construed makes no difference.
The case of Pape v. Capitol Bank, 20 Kan. 440, 27 Am. Rep. 183, is directly in point. Section 8 of article 13 of the constitution reads :
“No banking law shall be in force until the same shall have been submitted to a vote of the electors of the state at some general election, and approved by a majority of all the votes cast at such election.”
No banking law has ever been submitted to a vote of the people of this state. An examination of the context shows, however, that the words “no banking law” referred merely to a single kind of banking law, and in so deciding this court said :
“Unquestionably there are three kinds of banks lefined by Bouvier—banks of deposit, banks of discount, and banks of circulation ; and the language of the first section of said article 13 is general: ‘No bank shall be established otherwise than under a general banking law.’ So that, under a technical construction of sections one and eight, and ignoring the other sections, the establishment of any bank, of any kind, and for any purpose, would be forbidden. And as the article does not name incorporated, as distinguished from unincorporated banks, and as constitutional provisions have respect to the substance, and not merely to the form, or name, the carrying on of any banking business by any corporation, institution, or person, whether issuing currency, receiving deposits, or discounting commercial paper, would fall within the prohibitions of this article. Clearly no such check upon the commercial interests of the state was intended. ‘ Banks and Currency / is the title ; and currency banks are those and those only intended by the article. All banks, that is, all banks within the scope of the article, are required to keep offices and officers for the issue and redemption of their circulation. But a bank of deposit purely, has no circulation. It is not a bank, therefore, within the scope of the article.”
Since it is permissible for the court to seek further light, a single fact will show that avail must be made of every possible aid. There are two laws providing how the office in dispute shall be filled, if plaintiff’s theory of the constitutional amendment prevail. The legislature framed the amendment, and it framed the statute. The suggestion of a conflict is the suggestion of a doubt as to the literal meaning of words. The adoption of a constitutional amendment will not repeal a valid statute unless the repugnance between them be irreconcilable. (Leavenworth Co. v. The State, 5 Kan. 688, 693; Prohibitory Amendment Cases, 24 id. 700, 722.) And in determining the question of repeal the court must be guided by the same considerations that control in other cases. (Prouty v. Stover, Lieut. Governor, 11 Kan. 235.)
The title of the resolution describes a single subject, and that is biennial elections. The ballot to be voted by the people designates the subject of the amendment as “The biennial-election amendment to the constitution,” and it purports to amend a section of the constitution which provides for annual elections. The regulation of terms of office is not named in either of the descriptions by which the amendment might be known ; therefore, the establishing of biennial, instead of annual, elections appears from the face of the instrument to be its purpose. Certain sections of the constitution relating to terms of office, however, were amended. Upon examination, these terms are found to relate to county and township offices only, to require annual elections to fill them, and to be the only terms of office standing in the way of biennial elections. The regulation of terms of office must be re garded, therefore, as a mere incident of the main scheme, and their adjustment as purely subordinate and subsidiary to the primary and substantial matter of biennial elections. The terms of office to be affected are specifically named, and no names but those of county and township officers occur. In treating of the incidental matter of terms of office the expression “all officers” is used. To avoid a glaring absurdity, it is necessary to assign a particular, instead of a general, meaning to the words. Their antecedents should be sought among the provisions of the document devoted to matters of their rank. Immediately preceding them, in logical and grammatical arrangement, classes of officers are specifically named to whom they very plainly apply. The law of parsimony forbids the assumption of anything more than is necessary to account fully for the expression. County .and township officers satisfy every requirement in this respect, harmonize ambiguous words with every part of the instrument, and prevent an unwarranted broadening of the obvious scope of the amendment. To relate the words “all officers” to the first sentence of the •amendment confuses the entire subject. Other descriptive words would be superfluous. Nowhere in the sections amended is any specific reference made to judges of the district court; nowhere in the new sections is any specific reference made to them. The purpose of the act is fully subserved without interpolating them, and the conclusion announced in Griffith v. Manning must follow.
If construed in the manner described the amendment is in perfect harmony with the statute. The claim of the plaintiff that the amendment and the statute are random acts perpetrated with the utmost indifference to each other, but conveniently clashing in time to extend his term, cannot be conceded.
The statute provides in the most positive way for the appointment of judges after the time when the proposed amendment would take effect, if adopted. This method of filling the exceptional term is directly opposed to the one proposed by the amendment, if the amendment refer to such officers. The resolution and the statute must be regarded as contemporaneous acts of the same body, and so be construed together, or the statute must be regarded as an interpretation of the scope of the resolution by the legislature which framed and proposed it. In either event they were both designed to stand.
At the time of the adoption ■ of the two measures the legislature was engaged in the inauguration of a policy of holding elections every two years. That body was wholly competent to bring about the desired change so far as judges of the district court were concerned, and so far as other offices were concerned, except those mentioned in sections 3 and 4 of article 9 of the constitution. , To remove these obstacles the amendment was proposed. It cannot be presumed that the legislature set in motion the unusual proceeding of a constitutional change to accomplish that which it was able to do by statute, and the fact that it did pass a statute covering the matter within its power conclusively shows that the amendment was understood to relate to other things.
Looking at the amendment itself, it is very plain no permanent policy i’egarding the terms of judges of the district court was in contemplation, since the legislature is still left free to readjust the commencement of such terms and to provide for the interregnum arising from such readjustment. The legislature framed the amendment and not the people themselves in a constituent assembly. The legislature was responsible for the meaning of its proposition to the people. Before the resolution was published the legislature gave to it a definite meaning by a statute which excluded judges of the district court from its purview. With this meaning the resolution was presented to the people for their consideration. The statute was held to be constitutional by this court. It operated to prevent the election of judges in the year 1901. The governor acted upon it and filled the resulting vacancies by appointment, and at the moment when the voter deposited his ballot in the box at the election of 1902 it was undisputed law that no election of judges would take place in 1903, whether the amendment carried or not. Under the circumstances, to assume that the people regarded the amendment with some peculiar notion of their own different from that assigned to it by its proponent and expounder, and destructive of a valid companion law, seems chimerical, indeed.
The conclusion must be that the adoption of the amendment did not repeal the statute, and that the statute provides, through appointment by the governor, for filling the exceptional term occasioned by the elimination of the election of 1903.
The foregoing is sufficient to indicate broadly the views of the court. It would transcend all proper limits of a written opinion to answer in detail all the points made by the plaintiff. The court is of the opinion that he cannot prevail. The writ is denied, and judgment is rendered for the defendant for costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
If the testimony tended to show that the appellant, without justification or excuse, as defined in sections 9 and 10 of the crimes act (Gen. Stat. 1901, §§1994, 1995) killed, or assisted, aided, or abetted in killing, Masten, without malice, expressed or implied, then the grade of his offense was reduced from murder to one of the degrees of manslaughter. Manslaughter is distinguished from murder by the absence of malice as a constituent element. If, under the influence of some violent emotion, á. sudden intent was formed which, upon adequate • .provocation, overwhelmed the reason of the appellant, then the killing was not murder, but man- •' slaughter only. It is important to refer to our statutory provisions respecting manslaughter to de- ■ termine whether the court was legally justified in re-' fusing to instruct the jury on the different degrees of manslaughter, excepting the first. As to it, counsel for defendant' expressly requested the court not' to instruct the jury on the elements of that crime. We shall, therefore, give no consideration to the assigned error, founded on a ruling now alleged to be • erroneous, which was invited by counsel for appellant.
The killing of a human being under circumstances which do not constitute excusable or justifiable homicide, without a design to effect death, in the heat of. passion, but in a cruel or unusual manner, is declared by our statute to be manslaughter in the second degree. (Gen. Stat. 1901, §2001.) So, also, it is manslaughter in the same degree unnecessarily to kill another either while resisting an attempt by such other person to commit any felony or do any other, unlawful act, after such attempt shall have failed. (§2002.) It is made manslaughter in the third degree to kill another in the heat of passion, without design to effect death, by a dangerous weapon, in any case except where the homicide is excusable or justi-' fiable. (§2003.) Again, “the involuntary killing of another by a weapon, or by means neither cruel nor unusual, in the heat of passion, in any case other than justifiable homicide, shall be deemed manslaughter in the fourth degree.” (§ 2011.)
In the present case, the effect of the instructions given was a ruling by the court that the circumstances ■of the homicide confined the offense to a wilful, deliberate and premeditated killing, which is murder in the first degree, or to a murder done purposely and ■maliciously, but without deliberation and premeditation, which is murder in the second degree. In this we are well convinced that the court erred. The cir'cumstances of the homicide indicate a total absence ■of bad feeling or hostility on the part of appellant toward Masten before the fatal blows were struck. The two worked side by side pitching grain to the thrasher, •and no one testified that they did not sustain friendly relations up to the very moment that the affray began. The witnesses for the state testified to the fact and manner of Masten’s death, but respecting the-reasons for it they did not enlighten the jury except to repeat one or two somewhat damaging admissions of the accused, which he, however, denied making.
In The State v. Kornstett, 62 Kan. 221, 61 Pac. 805, the accused was charged with murder in the first degree. It was held that a trial court is justified in refusing to instruct the jury on the lower degrees of such crime only when the testimony shows beyond question that defendant is guilty of the higher offense. In The State v. Buffington, 66 Kan. 706, 709, 72 Pac. 213, 214, the court said :
“The defendant in a criminal prosecution has a right to have the court instruct the jury in the law applicable to his contention, if it be supported by substantial evidence, however weak, unsatisfactory or inconclusive it may appear to the court. To refuse so to instruct the jury would be to invade its province in the trial of a case. The question is not whether, in the mind of the court, the evidence as a whole excludes the idea that the defendant is guilty of. an inferior degree of the offense charged, but whether there is any substantial evidence tending to prove an in ferior degree of the offense. If there is, then the question of such degree should be submitted to the jury. The unsupported testimony of the defendant alone, if tending to establish such inferior degree, is sufficient to require the court so to instruct.
In The State v. Patterson, 52 Kan. 335, 34 Pac. 784, it was held that where there is even slight evidence that the offense committed may have been of a lower degree than the one charged it is proper to charge the law of such inferior offenses.
Adverting to defendant’s testimony, it appears that there was a controversy between Masten and Tom Clark over a small amount of money, which the latter claimed Masten owed him for a stack of oats. When appellant approached them they were quarreling over this indebtedness. Sam. Clark said : “See here, fellows, settle this without any trouble.” Masten then said to him: “If you want a hand in this you can have it,” and swore he could whip both of them. Appellant said : “I don’t want a hand in it. Tom is my brother, you are a friend of mine, and I would rather pay the six dollars than have any trouble.” Masten then turned around to defendant and said : “I will settle you both right here.” He said he could whip both of them, and do it quickly. When he said “I will settle you both,” he stepped back, grabbed his pitchfork, and started to pull off his glove. He was angry. Appellant thought he was going to jump on him. He turned round to strike, and appellant threw his fork in his face. It struck him. He turned and started to raise his fork when Tom Clark struck him on the head. He turned found the second time, when he gave him another blow which knocked him to the ground. Appellant, being afraid that his brother would strike him again, said: “Don’t hit him! Don’t hit him!”
The fact that defendant’s testimony gave support to the theory that he acted in self-defense was not inconsistent with the claim that, if guilty, his crime was manslaughter and not murder. The accused had the right to present both aspects of the case to the jury, and rely on an act of self-defense and also on one resulting from a sudden passion without malice. The first paragraph of the syllabus of the case of Stevenson v. United States, 162 U. S. 313, 16 Sup. Ct. 839, 40 L. Ed. 980, reads:
“On the trial of a person indicted for murder, although the evidence may appear to the court to be simply overwhelming to show that the killing was in fact murder, and not manslaughter or an act performed in self-defense; yet, so long as there is evidence relevant to the issue of manslaughter, its credibility and force are for the jury, and cannot be matter of law for the decision of the court.”
Under section 2001, General Statutes of 1901, referred to above, the jury might have concluded that appellant killed, or-assisted in the killing of, Masten without a design to,-effect death, in the heat of pas-, sion, in a cruel or unusual manner, by means of blows inflicted with a pitchfork, through anger aroused by the threats and hostile demonstrations of the de-, ceased. They might have found, also, under section 2002, supra, that appellant unnecessarily killed Mas-ten while resisting an attempt of the latter to strike him with a pitchfork, after the attempt to strike had failed. The,witness James Tunks testified that he saw the defendant striking Masten over the head-after the time when appellant said that Masten attempted to strike him. The jury, also, after consid-. ering all the attending circumstances, might have-inferred that appellant was guilty of manslaughter-in! the fourth degree. The. trial court took the view that there was no adequate or reasonable cause for the appellant to be thrown into such passion as to dethrone his reason for the time being, sufficient in law to reduce the crime from murder to manslaughter.
This court has repeatedly held in homicide cases where self-defense was pleaded as a justification for the killing that a reasonable apprehension by the accused of imminent danger to his life or limb was a sufficient excuse, and of the reasonableness of this apprehension the jury were to be the judges. (The State v. Bohan, 19 Kan. 28; The State v. Keefe, 54 id. 197, 38 Pac. 302.) The same rule is applicable to the case at bar, and whether there was sufficient cause to believe that heated passion and not malice impelled the homicide was for the jury to decide.
The case of The State v. McCarty, 54 Kan. 52, 36 Pac. 338, is cited by counsel for the state in support of their contention that where the jury, under proper instructions, have found a defendant guilty of a superior offense, the giving of erroneous instructions, or a total failure to instruct, with reference to an offense of an inferior degree is not error. That case does approve such doctrine by quoting The State v. Dickson, 6 Kan. 209, with the observation that the latter case ought not to be extended to unreasonable limits. It will be seen, however, from a reading of the opinion in The State v. McCarty that the court held that there was no proof justifying the giving of an instruction under said section 2002, General Statutes of 1901. On the other degrees of manslaughter the court gave directions to the jury satisfactory to the appellant.
Appellant asked the court to give instructions on all the degrees of manslaughter except the first. The court requested counsel to formulate a theory on which instructions respecting manslaughter in the second, third and fourth degrees should be given, which he failed to do. The court was justified in refusing to instruct on manslaughter in the first degree, but, as to the other degrees, the failure of counsel to formulate a theory on which the court might instruct was not a sufficient reason for such refusal. The testimony itself, without the aid of counsel, presented to the court a sufficient theory on which to base instructions respecting the several degrees of manslaughter to which we have referred. Section 5681 of the General Statutes of 1901 requires the court, in a criminal case, to state to the jury all matters of law which are necessary for their information in giving a verdict. This must be done without request from the defendant. (Craft v. The State of Kansas, 3 Kan. 450.)
The judgment of the court below will be reversed and a new trial granted.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J. :
The defendant is a corporation organized on the mutual plan for the purpose of insuring ■its members against loss of property by fire. Its bylaws provide for the appointment of agents, but state that no agent shall take any risk until he has given a bond and such bond has been approved. The bylaws further provide that an agent shall act as surveyor of the company, and shall be authorized to receive money and notes as premiums and to receipt therefor, but that if applications be rejected at the office of the company he shall refund any commissions he may have retained.
Prior to June 3, 1901, E. A. Shankle was appointed an agent of the defendant. He gave a bond, which was duly approved, and his authority to represent the company continued until after this loss. On June 3, 1901, the agent, Shankle, took a written ap* plication of the plaintiff for insurance upon sundry articles of personal property in the aggregate sum nf .$2750. • The premium charged by the company on its risks was two dollars per hundred. Under the by-laws premiums are settled by the note of the insured, forty .per cent, of which is payable in cash, to be indorsed on the note. Through an error in addition the agent footed the several items of the application as $2550, and computed the premium upon that sum. The plaintiff séttled for his insurance by giving his note for $51 and paying $20.40 in cash, when he should lhave -given his note for $55, and have paid $22 in ■cash. The application was dated and signed June 3, 1901, and stated that it was for insurance for the term of five years from June 3, 1901. At the time it was taken the agent agreed that the insurance would begin on that .day. The application incorporated a copy of the company’s by-laws, and provided that the company would be bound by-no representation, agreement or promise of the agentmot contained in the application itself. The plaintiff was already a member of the defendant company and the holder of a policy of insurance expiring June 13, 1901, on a part of the property described in the application, and, as a part of the transaction of June 3, this policy was surrendered and canceled. The plaintiff also'held another ■policy of the company covering property which he had inherited from his lately deceased wife.
; The agent delivered the plaintiff’s application, premium note and cash premium toi the proper officer of the company, who, on June 5, 1901, stamped the application as approved. Soon afterward the agent’s •mistake was discovered. By direction of the secretary ■of the company the agent corrected, by erasure and interlineation, the amount of the insurance as computed in the application to $2750, and' made the date at which the - insurance should commence read June 13, instead of June 3. He then wrote up, ready for signature, a new application (which, however, stated that the insurance should run from June 3), prepared a new note for the proper amount, and sent them, together with the old note and application, to the plaintiff, enclosing with them a letter in the following terms:
“Alliance Cooperative Insurance Company,
“ Fire, Lightning, aud Windstorms. Home Oeeice, Topeka, Han.
$2,750,000 at risk.
Agency at Topeka, Kan., June 8, 1901.
“Dear Bro. Corbett: I find that your application calls for $2750 insurance on your home property. We made a mistake in adding it and fixing the premium note and cash payment. The note for $2750 ought to be $55. You signed one for $51. See enclosed application and note.
“Please sign the new note and application and return to me with $1.60 more to make up the $28, which is two-fifths of the two notes, ($15 and $55) which added together make $70, two-fifths of which was to be paid in advance. You can compare the amounts on the two places—$2750 on home place, $750 on the other one. Notes $15 and $55. You may keep the old note and application. I will send you receipt for balance on payment.
Yours in cooperation, E. A. Shankle,
1243 Lane street, Topeka, Kan.”
“The old note was $51. You paid $20.40. The new one is $55, $22 to be paid on it, when $1.60 more is paid. The other application, note and payment are all right.”
After the receipt of this letter the plaintiff made some effort to rectify the mistake, but was not wholly diligent in the matter, and no policy was issued to him. The company continued to retain the money the plaintiff had paid.
On July 10, 1901, the property described in the application was' destroyed by fire. In a suit by the insured to recover for his loss the foregoing facts were established by the evidence and some of them were found specially by the jury. The jury further found that the minds of the parties did meet upon a contract of insurance for $2750, that the plaintiff’s application was accepted and approved for that amount on the day it was stamped approved, and that the plaintiff had been able and willing to pay the balance due from him, although he had not done so. The jury also returned a general verdict for plaintiff upon which judgment was entered. In this court the company criticizes the conduct of the trial court in a number of particulars.
The plaintiff attached to his petition - an incorrect copy of the application. The allegations in the body of the petition were correct, however, and a document conceded to be the original application was introduced in evidence as a part of plaintiff’s proof of his right to recover. When introduced the application appeared in the form it presented after it had been changed by the agent. Parol evidence was admitted to explain the appearance of the writing and to establish the transaction as it actually occurred, and the company complains that a written instrument was contradicted. Clearly such is not the case. Alterations of written instruments and clerical errors in their preparation of the character described may be shown by parol,
In establishing the facts with reference to the application as actually made it was unavoidable that oral testimony should be given concerning the agreement that the insurance should date from June 3, and it is said that the condition of the application that no representation, agreement or promise of the agent not contained therein was thereby violated. The statement in the application, however, that it was for in surance for the term of five years from the 3d day of June, 1901, was a sufficient embodiment of the agreement in the application to satisfy the condition.
The policies the plaintiff already held on June 3 were introduced in evidence. The one which was canceled was clearly admissible to establish the plaintiff’s theory of the case. The .bearing of the other policy upon the issues to be tried was very remote, if it were pertinent at all; but the findings of fact show that the jury were not confused or misled or diverted from the main question, and, hence, the error, if any were committed, does not appear to be material.
The company requested the court to instruct the jury that in order to constitute a binding contract the minds of the parties should meet upon the terms and subject-matter of the insurance, and that such a misunderstanding as would prevent a meeting of minds would prevent the formation of a contract. The instruction was correct in law but was not given. The court, however, was not bound to instruct the jury in any particular form, and instead of instructing abstractly, as requested, it summarized the conduct of the parties from different points of view and instructed the jury as to the conclusion they should draw if they found the facts to be as the court hypothesized. The court’s summary of facts involved, as a necessary conclusion, an agreement of the parties upon all essential elements of the contract, and therefore sufficiently covered the subject.
It is said that the court’s instructions allowed the company to be bound by oral statements of its agents, in opposition to the plaintiff’s written application. This is but a reassertion of the matter disposed of in considering the objection to the- oral evidence introduced. .
It is said that the instruction ignored the right the company had to reject applications. Prom the by-laws referred to, such a right is only inferentially reserved, but, conceding the company to have such power, it never did reject the plaintiff’s application. It'simply asked that its agent’s mistake be corrected, ■and at all times treated the agent’s agreement with the applicant as binding. Therefore, there was no ■occasion to point out to the jury what the company might have done had it desired to reject the risk.
It is- said that it is a policy of insurance which makes the contract. Such is not the law. The conduct of the parties, including the retention of the plaintiff’s money by the company, together with the application, was sufficient to establish a contract, in the absence of a controlling provision of the by-laws or an agreement to the contrary. (Insurance Co. v. Stone, 61 Kan. 48, 58 Pac. 986.) No such condition ■or agreement appears in the record, and the plaintiff was entitled to recover without any policy’s having been issued.
It is said that the court’s instructions made the company liable because it did not return the plaintiff’s cash payment. Instead of this the court submitted ■all the facts to the jury, and made a verdict in favor of the plaintiff depend upon a finding of the entire series.'
Authorities cited with respect to the effect of the plaintiff’s delay in rectifying the agént’s mistake are mot apposite,-and other criticisms upon the court’s theory of the law of the case and the manner in which it was applied at the trial are invalid.
After the jury had been discharged and at the time of pronouncing judgment the court heard evidence as to what would be a reasonable fee for plaintiff’s at torneys. Believing the fees established by the testimony as reasonable to be too great, it reduced the amount to $150 and adjudged a recovery by the plaintiff of- that sum as an attorney’s fee, to be included in the costs of the case. The company questions the right to collect attorney’s fees at all, and claims that if they may be recovered the performance of services and their value should be pleaded and proved as other facts, and that the jury should fix the amount of recovery as any other item of damage. ■The court proceeded under section 3410, General Statutes of 1901, which provides as follows :
“The court in rendering judgment against any insurance company on any such policy of insurance shall allow the plaintiff a reasonable sum as an attorney’s fee, to be recovered as a part of the costs.”
The constitutionality of this statute was sustained in the case of Assurance Co. v. Bradford, 60 Kan. 82, 55 Pac. 335, and the view of the law there announced has since been promulgated by the supreme court of the United States in the case of Fid. Mut. Life Assn. v. Mettler, 185 U. S. 308, 22 Sup. Ct. 662, 46 L. Ed. 922, and in other decisions. The doctrine of those cases is that attorney’s fees may be imposed upon a delinquent company under the police power of the state .as a kind of penalty incurred in the conduct of business affected with a public interest, and its correctness is no longer open to debate. The legislature has chosen to make important distinctions in the imposition of burdens of the character mentioned in different cases. In actions against railroads for damage by fire, attorney’s fees are recovered as a part of the judgment itself and inhere in the general cause of action for damages. (Gen. Stat. 1901, § 5924; Railway Co. v. Ludlum, 63 Kan. 719, 66 Pac. 1045.) In other statutes the fees allowed for the plaintiff’s attorney-are identified with the damages for which the action is primarily brought. In such cases the punitive character of the award is quite conspicuous, and it should be determined as any other item of the plains tiff’s claim.
In suits against insurance companies, however, the legislature has indicated that the allowance is to be made as an indemnity for an outlay occasioned by the company’s fault, and recovery is limited to a reimbursement of the successful party for the necessary expenses incurred in the prosecution of his claim. The award, therefore, falls strictly within the category of costs, is taxed as such, and the court is not bound by the testimony of witnesses in fixing the amount to be allowed. (11 Cyc. 24, 106.) The question is not, therefore, properly for the jury.
The record is free from material error, and the judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted of selling intoxicating liquors contrary to law. At the conclusion of the state’s evidence it was required to elect upon what transaction disclosed by the evidence it would rely for a conviction. It made an election which the defendant moved to have made, more definite and certain. The court denied' the motion, and error is assigned upon that ground. The ruling, however, was not brought to the attention of the dis-, trict court by any specification of the motion for a new trial, and hence it cannot be reviewed.
. The state elected to rely for a conviction upon sales made in the months of November and December, 1902, testified to by one D. McFadden. The defendant was convicted of a sale made December 11, 1902. McFadden testified in a very definite way to purchases of intoxicating liquor from the defendant. While in the defendant’s place, which he called a bar-room, and which was fitted up with all the paraphernalia of a saloon, he called for beer, got what he called for of the defendant, paid the defendant for what he got, and drank it there. Some of these transactions, the witness said, occurred in November, but he declined, to be certain as to the month ; indeed, his mind, became so unequivocally and unalterably fixed upon the doubt and obscurity which rested like a pall over the matter of date that he admitted to defendant’s counsel, on cross-examination, that he was sure he was not certain. The witness then testified in a very definite way to being at defendant’s place at divers times in the month of December, to calling for beer, to the defendant’s responding to his calls, and to drinking there at least more than twice in the month of December with a man named Scott; but, after ransack "ing his recollection, he was hopelessly in doubt about 'paying for what he drank in December. It seems ■that when the elements of a sale flashed clear upon McFadden’s clouded vision the date vanished, and that when time and place and beer and boon companions 'rose up before his' mind’s eye the vulgar price slunk :into oblivion.
Scott’s memory was sufficiently vivid with respect to transactions barred by the statute of limitations, ■but it was utterly unequal to the strain of reproducing recent occurrences, and the court sent him to a ¡private room for a time to give him an opportunity to recuperate and'to recall some facts relevant to the ■case on trial. .When placed upon the witness-stand a .second time he admitted that he and McFadden had drunk together, but he could not'sa}'- just where, although he was free to admit he had been in defendant’s place and upon dubious dates had bought both beer and whisky of the defendant.
The jury saw and heard these witnesses. No doubt their demeanor while testifying made the truth apparent beyond any possibility of mistake. Again, the jury may have given credence to McFadden’s testimony intended to make it doubtful if the sales which he remembered took place in November, and then reconciled the evidence upon the theory that those sales occurred in December. Other legitimate interpretations of the evidence inconsistent with the defendant’s innocence might be made, and the verdict returned by the jury be well sustained by proof.
The defendant’s motion for a continuance was properly overruled, because the affidavit in support of it ■offered nothing by wray of evidence but a negative conclusion.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
Defendant in error, who was plaintiff below, brought his action on a note for .$2000 in the capacity of trustee of an express trust, and recovered judgment, which the defendant seeks to have reviewed and reversed.
The defendant’s verified answer admitted the execution of the note and contained defensive matter. Upon the trial the note in suit was introduced in evidence, and its indorsement in blank by the payee thereof shown. Conceiving that he was required also to show the capacity in which he had brought the action, the plaintiff introduced in evidence a decree of the court of common pleas of Highland county, Ohio, establishing the allegations of his petition in regard to his express trusteeship. This was objected to because not properly authenticated. Its admission over this objection forms the first claim of error. Its authentication was by the judge of that court, with the certificate of the clerk, both of which were apparently regular, under the United States statutes providing for the authentication of judgments from the courts of sister states. Added thereto, however, was the certificate of the governor of the state of Ohio and the secretary of state, apparently for the purpose of conforming to the requirements of section 371 of the code of civil procedure (Gen. Stat. 1901, §4819), which provides for the certification of proceedings in courts of a foreign country. The objection made goes to the faultiness of the certificate of the governor of Ohio required by this section. The certificate of the judgment was sufficient without attaching thereto any certificate of the governor. The state of Ohio is not a foreign country, and, hence, the judgments of its courts need not be authenticated in pursuance of this section. No such certificate being required at all, the attaching of a faulty one did not render the otherwise sufficient certificate bad.
The matter adjusted in the court of common pleas related only to the interest which several claimants had’in the note in suit. All of these parties were before that court. The defendant, the maker of the note, however, was not a party. He, therefore, claimed that the adjudication of the character in which the plaintiff held the note was not binding on him, and incompetent to be introduced against him. The question- adjudicated involved in no way the interests of the maker of the note; it only settled the rights of the several parties interested in the proceeds thereof. This could be done without the presence of the maker. If he were required to pay the note at all he was not concerned about when he should pay it.
It is further contended that, the note having been shown to have been indorsed in blank by the payee, such indorsement was, as a matter of law, a conveyance of the entire beneficial interest, and the plaintiff could not, by any evidence aliunde, contradict it, and make it an assignment to him as a trustee of an express trust. The indorsement in blank served to convey to the one to whom it was thereby transferred the legal title, and it was entirely competent, if material, to show the capacity in which he was holding such title. We are, however, further of the opinion that none of the above questions was very material, for, as we have suggested, by this assignment the plaintiff held the legal title to tbe note, and as such holder he was entitled to recover thereon. (Manley v. Park, 68 Kan. 400, 75 Pac. 557.) The question of distribution of the proceeds of such collection was a matter between the trustee and his eestxiis que trust, and not one in which the maker of the note was interested.
The plaintiff had been adjudged a bankrupt; a portion of the money due upon the note had belonged to him and now belonged to the trustee in bankruptcy. The decree of the court of common pleas required that such portion should be paid over to the trustee in bankruptcy after its collection by the plaintiff. Objection is now made that in some way this is violative of the rights of the defendant; that it is inconceivable that a bankrupt could be made a trustee for this purpose, and, hence, that the plaintiff could not recover. We see nothing inconsistent in the matter, and only mention it to afford opportunity to deny the contention of the plaintiff in error.
Objections are made to the giving of special instructions and the refusal to give others as requested, but they are without merit. No beneficial end would result from detailed comment. The facts upon which the merits of the litigation turned were somewhat involved. A sharp conflict of testimony between the plaintiff and defendant was presented to the jury, and they took the plaintiff’s view. We may not interfere, nor are we so disposed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Atkinson, J.:
This is a suit by William W. Hubbard to foreclose a mortgage for $1400 on a tract of 160 acres of land in Kingman county. It is the second foreclos ure of this mortgage. The defendant, L. M. Corum, plaintiff in error here, purchased the premises after they had been encumbered. By error in the former suit in making the owner of the legal title to the premises a party defendant to the action, the name of L. M. Crum instead of L. M. Corum was used. Service was had by publication, defendant made no appearance, judgment in foreclosure was rendered, the premises were sold by the sheriff, and purchased by plaintiff, William W. Hubbard, and a sheriff’s . deed issued therefor. Thereafter defendant, L. M. Corum, denied to plaintiff possession of the premises, and this second suit in foreclosure was begun. Upon the first trial the district court denied to plaintiff Hubbard a' second foreclosure of the mortgage. The case was then brought to this court (Hubbard v. Corum, 65 Kan. 309, 68 Pac. 1128), and was reversed and remanded.
In this suit a personal judgment was asked against defendant, based on a claim that in the deed conveying the premises to him he had assumed'the payment of the mortgage. At the time of the commencement of. the suit a writ of attachment was issued and levied on other lands of defendant. This attachment subsequently, upon application, was dissolved. Among other defenses interposed by defendant in his answer to plaintiff’s petition was a claim or set-off for $1100, damages alleged by defendant to have been by him sustained on account of the wrongful attachment of his premises by plaintiff. A' demurrer was sustained to this defense, and of that ruling of the court defendant complains.
Whether defendant’s claim for damages would constitute a proper set-off to plaintiff’s claim, it is not necessary to determine. The record discloses that more than three years elapsed after the sustaining of the demurrer before the petition in error was filed in this court. When the court sustained the demurrer to that portion of the defendant’s answer, he could have immediately brought that ruling to this court for review. (Civil code, §542; Gen. Stat. 1901, §5019.) He could not bring it to this court after one year from the making of the order. (Code, §556; Gen. Stat. 1901, §5042; Blackwood v. Shaffer, 44 Kan. 273, 24 Pac. 423.)
While the case was pending in the supreme court, defendant, unsolicited, wrote several letters to plaintiff, residing in the state of New Hampshire, and later called on him at his home. While there defendant procured from plaintiff, for the sum of $200, a release of the mortgage, which he caused to be placed of record. After the case was reversed and remanded by this court, defendant filed a supplemental answer, pleading the discharge and satisfaction of the note and mortgage in -suit. Plaintiff replied, alleging that the satisfaction of the mortgage had been obtained by defendant from plaintiff through misrepresentation and fraud. The case was tried before the court and a jury upon the question of whether or not the satisfaction of the mortgage had been obtained by defendant from plaintiff through misrepresentation and fraud, and a verdict was returned in favor of plaintiff. The claim for a personal judgment against defendant was withdrawn. The court adopted the verdict of the jury and entered judgment in foreclosure for the sum of $1889.
As no material errors appear in the record, the judgment of the court below will be affirmed.
All the Justices concurring. | [
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Per Curiam:
Plaintiff in error, which was plaintiff below, sought recovery in treble damages for trespass upon its real estate. At the close of its evidence a demurrer thereto was sustained upon the sole ground that it showed that the plaintiff was a foreign corporation doing business in this state without having authority to maintain an action or have recovery because it had not complied with the requirements of section 3 of chapter 125, Laws of 1901 (Gen. Stat. 1901, §1283). That it was a foreign corporation and that it' had not complied with the provisions of said section were and are freely admitted, but it is claimed that it was not doing business in this state. The evidence disclosed that it had been doing some business. Whether it was the business which it was organized and authorized to do—its regular and ordinary business—or such business as was only incidental, was not shown; presumably, the former. At any rate, the court found that it had placed itself, by reason of the business which it had done, in the list of foreign corporations which were required to comply with the provisions of said section as a prerequisite to its right to sue in our courts. We are unable to say the court erred in this.
The judgment will bó affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
A motion to dismiss the petition in error has been made on the ground that the provisions of section 1, chapter 380, of the Laws of 1903, respecting the extension of time for serving a case-made, have not been followed. Judgment was entered on April 20, 1903. On that day the time to make and serve a case-made on defendants in error was extended until August 1, following. The latter were allowed until' August 10 to suggest amendments, the case to be settled upon five days' written notice by either party. Service was had on defendants in error June 29, 1903, and the case was settled and signed on July 17, both parties appearing by their attorneys. No amendments were suggested. The point is made that the record does not show that the notice of extension was filed with the clerk of the district court. Section 1 of chapter 380, Laws of 1903, requires that within ten days after the 'entry of judgment the case-made or a copy of it be served on all the adverse parties or delivered to the clerk of the court. This section contains the proviso “that the court or judge before whom the case was tried may, on motion, order an extension of time for serving such case-made, which notice of extension shall be filed with the clerk of such court.”
It is evident that the word “notice” used above should be read “order,” and that the legislature intended the order of extension to be filed with the clerk of the court. If, however, the words of the statute must be taken literally, then we think the prder of extension made by the court or judge, and filed with the clerk, satisfied the requirement directing that “notice of extension” be given.
The case on its merits involves the constitutionality of chapter 112, Laws 1874 (Gen. Stat. 1901, §§ 6053-6055), which is entitled “An act to provide for opening private roads or highways.” It reads :
“Section 1. That when any landholder, who has no road or highway, desires the benefit of a road or highway, such person may petition the county commissioners of the county in which such person resides to open a private lane or road to a public highway, when it shall be the duty of said commissioners to appoint three disinterested viewers to view and open a lane or road by the nearest and most practicable route to an established highway : provided, that said lane or road shall follow or run parallel with some section or subdivision line ; said road not to exceed two rods in width.
“Sec. 2. Said viewers shall assess all damages, when damages are claimed, and the road shall be declared open when the damages, if any, are paid.
“Sec. 3. That no portion of the expense of viewing and locating roads under this act shall be chargeable to the county or state, but shall be paid by the person for whose benefit the road is located.”
Under the express terms of this law a landowner may petition the county commissioners to “ open a private lane or road to a public highway.” The title of the act restricts its operation to private highways, and, in view of chapter 108, Laws of 1874, now incor porated into chapter 89, General Statutes of 1901 (§§6016-6072), providing for the opening of public roads, passed at the same session of the legislature, it is obvious that the later law was intended for purposes which could not be accomplished under the prior act. Sectipn 29 of chapter 108, Laws of 1874 (Gen. Stat. 1901, §6044), reads as follows :
"Sec. 29. That whenever the premises of any person in this state shall be so completely surrounded by adjoining lands, the property of other persons, as to be without access to any public highway, then such person may petition the board of county commissioners of the county in which such premises lie for a road through some portion of the adjoining lands, and the board shall, on the presentation of such petition, proceed in accordance with the provisions of the foregoing sections to lay out such road, make returns of plats, and allow damages, if any should be held or allowed, provided said road shall not exceed twenty-five feet in width, and be laid out upon the section or half-section lines when practicable."'
Under the above section of the general road law, ample relief is afforded to a landowner whose premises are so completely surrounded by adjoining lands as to be without access to any public highway. If his petition for a road be granted and the highway established, under the general law, it is public in character.
No necessity.existed for the enactment of chapter 112, Laws of 1874, except for the purpose indicated by its title, which is to provide' for opening private highways as distinguished from public roads. The legislature emphasized the difference between private and public roads by the passage of the two acts.
Under section 10 of chapter 108, Laws of 1874 (Gen. Stat. 1901, §6025), the county commissioners, upon the coming in of the viewers’ report, are prohibited from opening the road unless when opened it will be of public utility. Again, by section 18 (Gen. Stat. 1901, § 6033) all male persons between twenty-one and forty-five years of age, who have resided thirty days in the state, and who are capable of performing labor on public highways, are made liable to perform two days’ work each year on the public roads, furnish a substitute, or pay $1.50 per day to the road overseer to be expended in repairs on the public roads. By section 20 (Gen. Stat. 1901, § 6035) a failure to perform the two days’ work or pay the amount stated is declared to be a misdemeanor punishable by fine. Under the rules of construction applicable to penal laws, no person would be amenable to fine for refusal to do work in improving or repairing a road laid out under “an act to provide for opening private roads or highways,” when the penalty for his default is found in a law applicable to public highways only.
"We are asked to proclaim by judicial fiat that roads designated by the lawmakers as “private highways” are public in character. So to declare would be an aggressive and unwarranted invasion of the domain of legislation, from which courts are excluded. We are confined in jurisdiction and power to the field of interpretation of legislative acts. A law plain in its meaning, with a purpose clear and well-defined, without ambiguities, ought to rest secure from judicial distortion, leaving the responsibility for its failure to fulfil an expected object with its legislative creators.
A reference to section 3.of chapter 112, Laws of 1874, now under consideration, leaves no doubt of the personal and private nature of a road established .under its authority. It is provided that no portion of the expense of viewing and locating the road shall be chargeable to the county or state, “but shall be paid by the person for whose benefit the road is located.” This, in connection with the first section, which speaks of “a private lane or road,” leaves no latitude-for construing the language otherwise than according to its plain and obvious sense.
The case of Lockerman v. Comm’rs of Chase Co., 27 Kan. 659, cited as authority by plaintiff in error, is somewhat confusing and difficult to understand. The-learned justice who wrote the opinion had before him the Compiled Laws of 1879, where the two chapters— 108 and 112 of the Laws of 1874—-are run together, making chapter 89 of the Compiled Laws of 1879. There is, however, in the opinion a citation, with seeming approval, of Bankhead v. Brown, 25 Iowa, 540, which is an authority of much weight on the question involved. The law passed on in the Iowa case was entitled “An act for the establishment of private roads in Iowa,” enacted in 1886. It is found in a. note at page 542 of the report, and does not differ materially from chapter 112, Laws of 1874, above-quoted. In holding the law unconstitutional, as an attempt to appropriate private property for private-use. Chief Justice Dillon said :
“If the road now in question had been established as a public road under the general road law (as we .confess we do not see why it might not have been), . there would, in our minds, be no doubt as to its validity, although it does not exceed a half-mile in length, and traverses the lands of but a single owner. For the right to take land for a public road, that is, a road demanded by the public convenience, as an outlet to a neighborhood, or, it may be, as I think, for a single farmer without other means of communication, cannot depend upon the length of the road, or the number of persons through whose property it may pass.
“With respect to the act of 1866, we are of opinion 'that roads thereunder established are essentially private, ■that is, are the private property of the applicant therefor, because,
“First. The statute denominates them ‘private •roads,’ and is entitled ‘An act to provide for establishing private roads.’ If the roads established thereunder were not intended to be private, and different from ordinary and public roads, there was no necessity for the act.
“Second. Such road may be established upon the petition of the applicant alone ; and he must pay the costs .and damages occasioned thereby, and perform such other conditions as to fences, etc., as the board may prescribe.
“Third. The public are not bound to work or keep such roads in repair, and this is a very satisfactory test as to whether a road is public or private.
“Fourth. We see no reason, when such a road is ■established, why the person at whose instance this was done might not lock the gates opening into it, or fence it up, or otherwise debar the public of any right ■thereto.” ' ,
To the same effect see Blackman v. Halves, 72 Ind. 515; Wild v. Deiget al., 43 id. 455, 13 Am. Rep. 399; Sadler v. Langham, and Moore v. Wright & Rice, 34 Ala. 311; Logan v. Stogsdale, 123 Ind. 372, 24 N. E. 135, 8 L. R. A. 58; Richards v. Wolf, 82 Iowa, 358, 47 N. W. 1044, 31 Am. St. Rep. 501; Dickey v. Tennison, 27 Mo. 373; Witham v. Osburn, 4 Ore. 318, 18 Am. Rep. 287; Varner v. Martin, 21 W. Va. 534; Healy Lumber Co. v. Morris, 33 Wash. 490, 74 Pac. 681, 63 L. R. A. 820; Ell. Rds. & Sts. (2d ed.) § 192.
The case of Masters v. McHolland, 12 Kan. 17, relied on by counsel for defendants in error, does not support their contention: There the road was laid out under the provisions of chapter 89, General Stat utes of 1868, a general road law relating to public highways. The court said :
“Neither the findings nor the testimony show that this was other than a public road. Its condemnation was sought in the ordinary proceedings for condemning public roads. It was pronounced by both viewers and county board of public utility. The expense of opening is borne by the public. All damages assessed would have to be paid by the public. It affords one citizen at least a means of communication with the balance of community, and the balance of community a means of communicating with him.”
A quotation is then made from Bankhead v. Brown, supra, to the effect that the taking of the land from one owner, necessary to establish a public highway to enable another to have an outlet to market, schools, and for other purposes, is not in a just sense the taking of private poperty for private use but for the general good.
There would be no difficulty in sustaining the court below if the road in question had been laid out and established under the general road law, and the road found to be of public utility. The legality of the acts of the viewers and county commissioners rests on a law which is in conflict with the fundamental rule that private property can be appropriated for public use only. It is true that the courts have expressed divergent views on the proposition involved. See Sherman v. Buick, 82 Cal. 241, 91 Am. Dec. 557, 585, and note, in which it was conceded that the legislature is without power to establish private roads in the sense that they are the property of particular individuals. The court then proceeded to declare that such roads are public, perverting the language of the lawmakers to a meaning directly opposite that expressed in their enactment. We are content in the present case to rely on the sign to denote truly the thing signified, and not 'distort by strained interpretation plain and palpable legislative expression, or by far-fetched reasoning give to well-understood language a significance different from that conveyed by the words employed.
The judgment of the court below will be reversed, with directions to proceed further in accordance with this opinión.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J. :
At a crossing near the town of Lane a train of the Missouri Pacific Railway Company collided with a .team and wagon driven by C. L. Griffith, destroying the wagon, killing one mule, crippling another, and greatly injuring Griffith. He brought this action to recover the damages sustained. The only negligence alleged against the railroad company in his petition was that the locomotive, with train, which struck him “was being negligently and recklessly managed, in this, to wit: that it was being run at a high and reckless rate of speed ; that no warning was given of its approach to said crossing on said public highway by ringing the bell on said locomotive, or by sounding the whistle thereof, or by any other means.”
In describing the crossing and the situation where the accident occurred, he averred that on the right of way, and immediately east of the crossing, the company permitted to be constructed and maintained two frame buildings which obstructed the view of the railroad-track east of the highway, and also that at that time the company had placed on its sidé-track a boarding-train which extended easterly from the highway, and that this, together with the buildings mentioned, completely obstructed the view of a traveler approaching on the highway south of the railroad-tracks. No negligence was imputed to the railway company on account of the location of the buildings or the position of the boarding-train. In the course of the trial, which resulted in a verdict in favor of Griffith, the court charged the jury as follows :
“The particular acts of negligence imputed to the defendant in this action by the plaintiff are that it permitted to be constructed and maintained two frame buildings in such a manner as to obstruct the view of its track east from the public highway, and that it placed upon its side-track south of its main track a train of cars known as a boarding-train, extending easterly from about the center of the public highway in Lane, Kan., where plaintiff desired and attempted to cross defendant’s track, to near the station-house of defendant.”
In another instruction the jury were advised that the railway company must not allow any unnecessary obstruction on its right of way near a public crossing which might cut off the view of an approaching train, and that if it unnecessarily and negligently .permit buildings or other structures or things to stand upon its right of way at a public crossing or highway, it is responsible for injuries resulting to travelers from such negligence, providing such travelers be free from fault. In other instructions the attention of the jury was directed to the placing of the buildings on the right of way and the boarding-train on the side-track as grounds of negligence, and they were told that if such negligence contributed directly to the injury of the plaintiff they should return a verdict in his favor.
The pleadings did not make the location of the buildings and boarding-train a ground of negligence or a basis of recovery. That they were on the right of way was stated in the petition, but it was- not averred'that they were unnecessarily or negligently placed and maintained there. It is sometimes necessary that there be buildings on the right of way of a railroad near a public crossing, and also that cars stand on side-tracks, near a crossing for a short time, in such positions that they would obstruct the view of a traveler approaching a railroad-track; in other cases, the placing and maintenance of such obstructions may be wholly unnecessary, and may constitute negligence as to one injured in a collision with a train, where the injury would have been averted if the view had been unobstructed. The plaintiff, however, did not charge negligence in this respect., and the defendant had no cause to anticipate that it would be required to meet a charge of negligence not stated in the petition. The reference made to the obstructions did not enlarge the issues in the case. It was not improper to set forth in the petition the existence of the obstructions, as they, to some extent, affected the parties in respect to the care which each should exercise. Greater precaution should be taken, and a higher degree of vigilance exercised, by a traveler at a crossing where his view of the track is obstructed than where no such obstruction exists (A. T. & S. F. Rld. Co. v. Hague, 54 Kan. 284, 38 Pac. 257, 45 Am. St. Rep. 278; C. R. I. & P. Rly. Co. v. Williams, 56 id. 333, 43 Pac. 246); and a higher degree of care is required of a railroad company in running its trains over such crossings. (A. T. & S. F. Rld. Co. v. Hague, supra; Mo. Pac. Rly. Co. v. Moffatt, 56 Kan. 667, 44 Pac. 607.)
The existence of the obstructions mentioned in the petition and' shown in the testimony may have been the reason for requiring other and different warnings of the approach of the train to the crossing than were given, and their existence, on the other hand, may have explained why the plaintiff below did not see the approaching train, and to some extent relieves him from the imputation of contributory negligence ; but in no event was it competent, under the pleadings, to treat the existence and location of the buildings and cars as negligence upon which the jury might base a recovery. A plaintiff must recover, if at all, on the specific grounds stated in his petition. The specific acts of negligence alleged in this case were the reckless rate of speed and the lack of proper warnings of the approach of the train, and there can be no recovery for any other act. If other grounds of negligence were relied on they should have been distinctly set forth in the petition, and it was not competent for the court to enlarge the issues and submit to the jury-grounds of recovery other than those raised by the pleadings. (A. T. & S. F. Rld. Co. v. Irwin, 35 Kan. 286, 10 Pac. 820; Railway Co. v. Moffatt, supra.) The trial court not only made the obstructions a ground of negligence, but stated to the jury that placing and permitting the buildings and boarding-train to remain on the right of way, thus obstructing the view, were the principal acts of negligence imputed to the defendant company.
For the error mentioned the judgment of the district court must 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
Greene, J. :
The defendant was informed against for selling intoxicating liquors.' Pie filed a plea of a-former conviction in bar, to which the court sustained. a general demurrer. The trial then proceeded, and the defendant, with the consent of the county attorney and the court, waived a trial by a full jury and tried the cause to a jury of eleven persons, who returned a verdict of guilty. Thereupon the defendant filed his motion for a new trial, alleging that he could not be legally tried by a jury of less than twelve persons ; that under the provisions of our constitution it was beyond his power to waive such a jury ; and, therefore, that the verdict was void and should be set aside. This motion was overruled and sentence pronounced, from which defendant appeals.
The first contention is that the court erred in sustaining a demurrer to his plea in bar. A plea in bar of a former conviction or acquittal should contain the complaint, indictment or information upon which it is alleged that such acquittal or conviction was had, and also a complete transcript, or so much of the proceedings as is necessary to show the final disposition of the cause; otherwise, a court is unable to determine the question presented by the plea; it can only be determined from the record. (1 Bish. New Crim. Proc. § 815; Crocker v. The State of Georgia, 47 Ga. 568; Bailey v. The State, 26 id. 579; Smith v. State, 52 Ala. 407.) The record in this court contains none of the proceedings had upon the former trial. We are, therefore, unable to determine the question presented on this ground of error.
The second contention is that, notwithstanding the defendant’s agreement to waive a jury of twelve and his consent to be tried by a jury of eleven, the verdict is void. The provisions of our constitution upon which the defendant relies are section 5 of the bill of rights, which provides that “the right of trial by jury shall be inviolate,’.’ and section 10, which provides that ■“in all prosecutions the accused shall be allowed a speedy public trial by an impartial jury.”
Authorities-are numerous holding that the jury referred to means a common-law jury of twelve persons. It is not necessary to determine' what the rule would be in this case in a prosecution for a misdemeanor, in the absence of any statutory regulation. Speaking generally, however, a defendant in a prosecution for a misdemeanor was not always, as a matter of right, ■entitled to a jury trial at common law., We are relieved from an investigation of the right of the defendant to a jury trial at common law by the provisions of section 5689 of the General Statutes of 1901, which reads: “The defendant and prosecuting attorney, with the assent of the court, may submit, the trial to the court, except in cases of felonies.” If in such ■case the defendant may waive a trial by jury and submit the trial and decision of his cause to the court, there is no constitutional or statutory provision prohibiting him from consenting to a trial by less than a full jury.
Similar statutory provisions are found in Indiana, Arkansas, Illinois, and Missouri. Their courts have universally held that in cases of misdmeanor the defendant, with the consent of the prosecuting attorney and the court, may waive a trial by a jury and submit the cause to the court. (Murphy v. The State, 97 Ind. 579; State v. Ebert, 40 Mo. 186; State v. Mansfield, 41 id. 470; State of Missouri v. Larger, 45 id. 510; Darst et al. v. The People, 51 Ill. 286, 2 Am. Rep. 301; Warwick v. State, 47 Ark. 568, 2 S. W. 335.)
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Smith, J. :
In 1897 May’ E. Renberger became a member of the Fraternal Aid Association. A benefit certificate, which was in effect a life-insurance policy, was issued to her by the society, for the sum of $2000, payable at death to Abraham Renberger and Arthur J. Renberger, her husband and son, respectively. In August, 1902, during her last illness, Mrs. Renberger, with the consent of the association, surrendered that certificate and there was issued to her another in its stead, both alike in all respects except that the beneficiaries named in the new certificate were Arthur J. Renberger, the son, to the amount of $1500, and M. F. Dale, a brother, to the amount of $500. She died in September, 1902. Soon after a controversy arose between the husband, who was named as a beneficiary in the first certificate, and the association respecting the right of the former to a portion of the insurance. The Fraternal Aid Association then commenced an action in the nature of a bill of interpleader, making the beneficiaries in both certificates parties, and praying that it might pay the amount of the insurance into court and be discharged from all further liability to any of the persons claiming a right to the fund. Its petition was allowed, and the sum of $2000, the amount of its liability under the certificates, was paid into court.
Plaintiff in error, M. J. Gillam, filed an interplea in the case, and this controversy arose over the question whether it stated a cause of action. The material allegations were as follows :
“This interpleader alleges that May E. Renberger, who had said certificate issued, as alleged in petition, had been sick for a number of months, and that this interpleader, being at the time a practicing physician in the city of Florence, where the said May E. Renberger lived, at the instance and request of said May E. Renberger attended her during all the time that she was sick prior to her death, and that he had furnished medicines and care for said May E. Renberger during such time at her special request and instance. This interpleader further says that said May E. Renberger was specially interested in having this inter-pleader paid out of the fund named in said benefit certificate, which she had caused to be taken out as alleged in said petition ; that a month or six.weeks prior to her death, knowing that she could not long survive, she, the said May E. Renberger, made an oral agreement or arrangement with the said M. F. Dale whereby it was agreed by and between the said M. F. Dale and said May E. Renberger that she was to have a new benefit certificate issued by said plaintiff, naming said defendant Dale as a beneficiary to the amount of $500, and that he was to accept said sum as trustee, and out of the same pay the inter-pleader's bill for medical attendance during the sickness of said May E. Renberger and also the funeral expenses of said May E. Renberger ; that said defendant, M. F. Dale, then and there orally agreed that if such change was made in the benefit certificate he would accept the same as trustee, and after the death of May E. Renberger, and out of the same, pay said funeral expenses and the' amount coming to this interpleader for his medical attendance so given May E. Renberger as aforesaid. Wherefore this interpleader says in truth and in fact said M. F. Dale is trustee for this interpleader, as far as the said beneficiary is concerned, to the amount due for for his said services and care, so rendered as aforesaid.”
In the prayer Gillam asked the court to order the sum of $187.40, the amount due him for medical services and attendance on the deceased, to be paid out of the benefit fund in the custody of the court. A demurrer was interposed to this interplea, for the reason that no cause of action or ground for relief was stated therein. The demurrer was sustained, and this ruling is before us for review.
Plaintiff in error claims a part of a fund arising from a benefit certificate issued after chapter 147, Laws of 1899 (Gen. Stat. 1901, §3569), went into effect. This law erects all fraternal beneficiary associations into corporations, provides for their form of government, and requires that the payment of benefits shall be made “from assessments, premiums or dues collected from its members, and interest accumulations thereon.” The following is contained in the first section of the act:
“The payment of death benefits of such an association shall be to the families, heirs, blood-relatives, affianced husband or affianced wife of, or to persons dependent upon, the member thereof.”
It is. provided that such associations shall be governed by the law quoted from and shall be exempt from the provisions of other insurance laws of the state. Persons who may receive death benefits from fraternal aid associations are designated in the statute and are restricted to specific classes. Creditors are not mentioned. It would contravene the public policy of the state, expressed in the law, to permit •others than those designated to have an insurable interest in the life of a member.
In the ease of Britton v. Royal Arcanum, 46 N. J. E. 102, 105, 18 Atl. 675, 676, 19 Am. St. Rep. 376, Britton was a member of the Royal Arcanum, a mutual benefit association. He was insured for $3000, and had one Brennan, a creditor not related to him, named in the certificate as his beneficiary, to whom the certificate was delivered. The contract of insurance was made in Massachusetts, where the statute restricted the beneficiaries in such societies to “widows, orphans, or other relatives of deceased members, or persons dependent upon deceased members.” The action was brought by the mother of. the deceased against the Royal Arcanum to recover the amount of the insurance. Vice-chancellor Van Fleet said :
“Britton’s attempt to make Brennan his beneficiary must be treated as nugatory. In another case involving the same question, I have said, in conformity to-what I understand to be the uniform course of decision on this subject, that, where a corporation is. organized under a statute authorizing the formation of corporations to accumulate a fund to be paid to the widows and children of deceased members, the corporation can only pay the fund to the widows and children of deceased members ; and if it should make a promise to pay any part of it to any other person its-promise would- be void. Its promise would not only be ultra vires, but in direct contravention of the purT pose of the statute from which it derived both its corporate existence and power. And a member of such a corporation is equally powerless to divert .from its-appointed channel that part of the fund of the corporation which becomes payable on his death. (American Legion of Honor v. Smith, 18 Stew. Eq. 466.) So-that I think it must be' regarded as entirely clear that Brennan has no right whatever to the sum in controversy, nor to the certificate of membership issued to Britton.”
To the same effect see American Legion of Honor v. Smith, 45 N. J. E. 466, 17 Atl. 770; State, ex rel., v. Peoples &c. Association, 42 Ohio St. 579; Clarke v. Schwarzenberg, 162 Mass. 98, 38 N. E. 17; Skillings v. Massachusetts Benefit Association, 146 id. 217, 15 N. E. 566; American Legion of Honor v. Perry, 140 id. 580, 5 N. E. 634.
Nor can a person having no insurable interest in the life of another obtain benefits under a policy issued to one having an insurable interest, in which the latter was a mere trustee for the former. An advantage cannot be obtained by indirection which would be denied if sought openly. (Whitmore v. Sup. Lodge Knights and Ladies of Honor, 100 Mo. 36, 13 S. W. 495.)
It is argued that the association, by paying the amount of the benefit certificate into court, waived the claim that plaintiff was not in the class of beneficiaries mentioned in the statute, which it might lawfully do. Whatever the rule may be where beneficiaries are designated in the constitution or by-laws of the society only, it is clearly beyond the power of benefit associations governed by the law of this state, and given corporate existence by such law, to pay out funds collected from its members to persons not within the classes designated in the statute.
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
Greene, J. :
This lawsuit grew out of a proceeding to establish the corners and boundaries of defendant’s land. After the filing of the surveyor’s report the plaintiff appealed to the district court, where the survey was set aside because of some irregularities in the proceeding. The court appointed a surveyor who made a survey, determined the boundaries, located the corners of the land, and made his report to the court. This report was confirmed. The plaintiff prosecutes this error to reverse the several orders and final judgment of the court.
The jurisdiction of this court is challenged for the reason that the amount in controversy does not exceed $100, exclusive of costs. The record does not disclose the amount or value in controversy. To this record is attached a certificate, signed by the judge who tried the cause, stating that a constitutional question is involved. There was no constitutional question presented in the oral argument or in plaintiff’s brief. Not being informed what question of constitutional law is involved or what the contention of plaintiff upon such question may be, we assume that it has been waived. Several alleged errors are argued, but none involves a constitutional question. The law which confers upon this court jurisdiction to review proceedings in error because a constitutional question is involved does not give it jurisdiction to determine other questions arising at the trial. (Mo. Pac. Rly. Co. v. Kimball, 48 Kan. 384, 29 Pac. 604.)
Por the reasons here suggested the judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J. :
This was an action upon a promissory note for $878.50, which resulted in a judgment for defendant, and plaintiff complains of it. The note had been sold before maturity to plaintiff, Howard' F. Martindale, by the payee, Herman Fist, who indorsed it. Fist was an agent of the New York Life Insurance Company, and this note was given for the first premium on a $10,000 policy of insurance to be issued by that company on the life of defendant. It was contended by defendant that the note in controversy had been obtained from him by Fist through misrepresentation and fraud ; that the conditions and provisions of the policy to be issued to defendant had been misrepresented ; that since its execution and delivery the note had been altered ; that when it was executed and delivered the word “ten,” indicating the rate of interest designated in the blank form of the note, had been stricken out, leaving the note to bear no interest from its date ; that since its execution the figure “5” had been inserted above the place where the word “ten” had been stricken out; and the word “date” had been stricken out and the word “maturity” written beneath it; that all of these alterations had been made after the note had been executed and delivered to Fist. No policy was issued and delivered to defendant, due to the fact that he neglected and refused to submit to a physical examination.
The case was tried before the court and a jury. Upon the trial it was shown that plaintiff had purchased the note of Fist, along with other notes, at a discount of ten per cent. There was only the testimony of Fist and Stotler regarding the alleged fraudulent representations made in obtaining the note, and the time when the alterations had been made. The note plainly showed that it had been altered in the particulars mentioned, the only question being when these alterations were made. Fist testified that they were made in Stotier’s presence, before the note was signed and delivered. Stotler testified that there were no such alterations on the note when he signed and delivered it, and that they had not been made with his knowledge or consent.
A reading of the record fails to disclose any knowledge on the part of plaintiff of fraudulent representations alleged by Stotler to have been made to him by Fist. Notwithstanding this fact, the court instructed the jury upon the question of the legal effect and the right of plaintiff to a recovery upon the note, if it should be found that the same had been obtained from the defendant by Fist through misrepresentation and fraud, and complaint of it is made by plaintiff in error. The instruction complained of would have been proper had Fist continued to be the owner of the note, or had there been evidence tending to show that plaintiff, at the time of the purchase of the note in controversy, knew, or by the exercise of ordinary care could have known, that it was obtained from defendant by misrepresentation and fraud.
It is urged by defendant that plaintiff in error could not have been prejudiced by the instruction complained of, inasmuch as the court also instructed the jury that, if plaintiff should be found to be a bona fide purchaser of the note for value, he could recover of defendant, notwithstanding the note had been obtained of defendant by Fist through misrepresentation and fraud. The instruction should not have been given, for the reason that it would .tend to confuse the minds of the jurors and lead them to believe that they must consider and weigh the evidence upon the subject of fraud. True, it was charged in the answer of defendant that plaintiff had knowledge of the fraud used in procuring the note from defendant, but, as above stated, there was no evidence before the jury that would fairly tend to show any such knowledge on the part of plaintiff at the time he purchased the note.
The case should have been submitted to the jury with instructions regarding 1;h.e legal effects of the alterations in the note, there being evidence tending to show-that they had been made after its execution and delivery, and without the knowledge and consent of defendant.
For error of the court in -giving the instruction complained of, the judgment will be reversed and a new trial granted.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
The note for the amount of which judgment was rendered was a non-negotiable instrument. (Bank v. Gunter, 67 Kan. 227, 72 Pac. 842.) Itis evident that the court below regarded the note as negotiable ; otherwise, the demurrer to the original answer alleging payment by the makers to the payees would have been overruled. The testimony admitted showed payment by R. A. Sykes & Son to .Ladd, Penny & Swazey before the maturity of the paper. The payment was made by the shipment of cattle to the latter. The makers of the paper had no notice of its transfer on March 28, 1900, when the proceeds of the cattle shipped by them to Ladd, Penny & Swazey were placed to their credit in satisfaction of the debt evidenced by the note. That the note was not due ■did not affect the sufficiency of the payment. There was no objection on the part of the payees to receiving the amount prior to the maturity of the debt.
Considering the letters which passed between the parties as having been admitted in evidence, they show that on March 26, 1900, defendants below wrote to Ladd, Penny & Swazey, stating: “Will ship four cars to-morrow, Tuesday. We want to pay our note, $3300. The bal. please ex. to us.” In response to this, two days later, Ladd, Penny & Swazey wrote to R. A. Sykes & Son: “Your letter received and we applied the proceeds of your sale as directed, and will call in the note and obtain for you all the rebate possible on same.” The information contained in this letter assured the debtors that the proceeds of the cattle sale had been applied as they directed ; that is, to the payment of the note. The volunteered statement by the payees that they would call in the note and obtain all rebate possible came after the proceeds of the cattle sale had been appropriated by Ladd, Penny & Swazey to the payment of the indebtedness. The payment was complete, and the debt discharged at the moment the payees sold the cattle and received from the proceeds a sufficient sum to pay the amount of the note. When this was done the instructions contained in the letter of R. A. Sykes & Son of March 26 were followed.
The vital question is whether the makers of the note, at the time they paid the amount of it to the original payees, were without notice that the latter had by assignment parted with their ownership. If the makers had such notice before payment, they are not protected ; if they paid without notice, the debt is discharged. That part of the letter of March 28 from Ladd, Penny & Swazey to R. A. Sykes & Son in .which they say that the proceeds of the sale of cattle were applied as the letter directed narrated a past transaction, and the remainder, which informed them that they would call in the note, was a promise to do something in the future which in no manner affected the application of the payment- to the debt made before the letter was written1. The letters should have been received in evidence and the case submitted to the jury.
The judgment of the court below will be reversed and a new trial granted.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
This case was dismissed from the bench at the October, 1903, sitting of this court. We then concluded that we had no jurisdiction to consider the questions presented because of a want of timely certification of the case-made. Fearing that this question had not received a sufficiently serious consideration, a rehearing was granted, and we have gone over the question again with great care.
The facts involved are these : The case was tried by the Honorable R. M. Pickier and judgment entered at the October term, 1901, time being given up to, and, including, January 1, 1902, to make and serve a case. On December 29, 1901, this time was duly extended to March 1, 1902. On January 12,1902, Judge Pickler’s regular term expired, and he was appointed his own successor. On February 20, 1902, acting as the incumbent judge, he extended the time for making and serving a case “till and including the 1st day of April, a. d. 1902,” and the defendants were “allowed till and including the 21st day of April, a. d. 1902, in which to suggest amendments thereto ; the said case to be settled and signed on five days’ written notice by either party.” The case was served on March 25, 1902, and settled and signed on May 25, 1902, by Judge Pickier, presumably by virtue of his authority as the trial judge, as he had no other authority. Whether he 'had authority at that time so to settle and sign the case is the question.
His authority at that time was only such as it would have been had he not been his own successor. (Mowery v. Bank, 67 Kan. 128, 72 Pac. 539, and cases there cited.) His term of office as trial judge had expired; his authority, therefore,,to set- tie the case must be found in section 549 of the code of civil procedure. (Gen. Stat. 1901, §5035.) The extension of February 20 was valid and placed the matter in the same condition as though the order then made had been made at first. It is contended that section 549 must be read in the alternative ; that there are therein two conditions either of which authorizes the certification of the case by the trial judge ; that in this case there is found one of these conditions, which is that, as Judge Pickler’s term of office expired before the time given for making the case, therefore, by the terms of this section, he possessed the indefinite time, limited only by one year, aud the giving of five days’ notice, within which to settle and sign it. Some show of reason for this contention is found in the language of the section and in a cited case from Oklahoma (Barnes et al. v. Lynch et al., 9 Okla. 11, 59 Pac. 995), but in the light of the prior decisions of this court we cannot so hold.
It will be borne in mind that no time for settling and signing the case was fixed by the order; it was left indeterminate, to be subsequently fixed by the action of one or the other of the parties to the action. The jurisdiction of a trial judge out of office is not authorized, by the cited action, thus to be kept in suspenso; the time for settling and signing is required •by it to be fixed. In the case of Mowery v. Bank, supra, we find the following language :
“Following the previous decisions of this court construing the above statute, it must be held that where a trial judge is granted the power to settle a case for this court after his term of office has expired, the statute requires the time for the exercise of the power to be fixed at the date of the expiration of his term of office.”
The question was again closely approached in the very recent case of Butler v. Scott, 68 Kan. 512, 75 Pac. 496, and a similar conclusion reached.
We are compelled to affirm our former order of dismissal, and decline to take jurisdiction of the merits of the case.
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The opinion of the court was delivered by
Cunningham, J. :
The Kansas City Piano Company brought its action in replevin against J. D. MacRae to recover the possession of a piano. A redelivery bond was given by MacRae, with L. S. Naftzger, one of the plaintiffs in error, as surety, and the instrument retained. The piano company had judgment for the recovery of the possession of it and, upon its inability to obtain it or MacRae’s failure to deliver it, for the recovery of the sum of $200. To reverse that judgment MacRae brought proceedings in error in this court, but it was affirmed. (MacRae v. Piano Co., 64 Kan. 580, 68 Pac. 54, 56 L. R. A. 924, 91 Am. St. Rep. 236.)
After the final determination of that action the piano company caused garnishment summons to be issued and served on plaintiff in error Naftzger. In this garnishment proceeding MacRae filed his answer setting out the reasons why the funds in the hands of Naftzger belonging to him should not be subjected to the payment of the above money judgment against him. The first reason, briefly summarized, was that, after the commencement of the action and prior to the rendition of the judgment, the piano company, which was a Missouri corporation, had been dissolved in accordance with the law of its domicile ; that more than one year had elapsed since.its dissolution, and the action had not been revived in the name of the real parties in interest or the successors in interest of the company, or in the name of any one authorized further to prosecute the case. He set out the statute of the state of Missouri in force at the time of the dissolution of the corporation, which, in so far as it relates to the persons who are authorized to carry on pending litigation on behalf of the stockholders thereof, is substantially the same as the Kansas statute (Gen. Stat. 1901, § 1312). This provides that the directors or managers of a dissolved corporation shall be trustees for the creditors and stockholders thereof, and as such may maintain judicial proceedings for the purpose of collecting debts due to such corporation. The Missouri statute specifically provides that such proceeding shall be “by the name of the trustees of such corporation, describing it by its corporate name” (1 Rev. Stat. [Mo.] 1899, § 976). The second defense pleaded that no demand had been made upon MacRae for the possession of the piano in question after the rendition and affirmance of the judgment, and claimed that inasmuch as the money judgment was in the alternative it could be enforced only in the event that possession of the replevied piano could not be had, and that no proceeding to collect the money judgment could be maintained until after a demand had been made and refused. Defendant Naftzger adopted the answer of MacRae, and added that the money in his hands belonging to MacRae was deposited with him for the purpose of securing him as surety on the redelivery bond and' as surety for costs in the proceeding in this court. No issue was taken upon the truth of these answers by any pleading by the piano company. The court, however, proceeded to render judgment directing payment of the money in the hands of Naftzger into court to be distributed in a manner that would protect him, and from that judgment this proceeding in error was brought by MacRae and Naftzger.
This disposition of the matter could only be had upon the theory that neither of the defenses had merit in law, so that the question now here is whether either of them presented a legal reason why the piano company might not, at that time and in that manner, seek satisfaction of its judgment. The first defense seems quite sufficient. The dissolution of a corporation operates, as to it, the same as the death of an individual ; all its powers, prerogatives and authority— its life—ceased,- and all legal proceedings then pending were at once suspended. At the common law this termination of corporate powers became so radical that a corporate debtor was entirely discharged of his obligation, and all actions by or against it were at once, and forever abated ; not even an execution on a judgment theretofore obtained could issue. (9 A. & E. Encycl. of L., 2d ed., 603; 10 Cyc. 1310.) It is only in virtue of some statute authorizing it or some principle of equity requiring it that these results may be avoided, or that pending proceedings may be further prosecuted, or judgments already rendered enforced. It is not necessary now to decide whether the bar of the* statute had run upon a proceeding to revive this action in the name of the parties who, the statute says, may further prosecute it. It is sufficient to say that after the dissolution of the corporation such substitution, under authority of such statute and in pursuance of its terms, must be had in order that the action may proceed. It could no longer be maintained in the name of the dissolved corporation. (Paola Town Co. v. Krutz, 22 Kan. 725; Eagle Chair Co. v. Kelsey, 23 id. 632.) The defendants could raise this question. They could well say that there was no one authorized to receive the fruits of this action ; that had there been the money judgment could have been avoided by turning over the replevied property' to the persons authorized to receive it. In face of the undenied facts pleaded relative to the dissolution of the company and the failure to substitute the parties whom the statute authorizes to carry on the litigation, we are of the opinion that the court erred in proceeding with the case without such substitution.
The second defense, as pleaded, had no merit. A defendant who has given a redelivery bond in a replevin action, and against whom a judgment has been rendered in the alternative, as in this case, must tender back the replevied article in as good condition as when he obtained its possession by reason of his redelivery undertaking, or else he may be made to respond upon his redeliverv undertaking in the amount of the money judgment, the burden resting -upon him to restore possession to the plaintiff, and not upon the plaintiff to demand or enforce possession. (Peck et al. v. Wilson, Use, etc., 22 Ill. 205; Berry v. Hoeffner, 56 Me. 170; Parker v. Simonds, 8 Metc. 205; Capital Lumbering Co. v. Learned, 36 Ore. 544, 59 Pac. 454, 78 Am. St. Rep. 792; Arthur v. Sherman, 11 Wash. 254, 39 Pac. 670; 24 A. & E. Encycl. of L., 2d ed., 535.)
The judgment is reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
Rosamond A. Scruggs was the wife of Phineas T. Scruggs. Her husband dying intestate, she was, on December 30,1891, appointed administratrix by the probate court of Wyandotte county, and thereafter gave a bond conditioned as provided by statute (Gen. Stat. 1901, § 2818). On January 5,1895, she made a final settlement of the estate, after having given the notice required by section 2957 of the General Statutes of 1901. The court made an order of distribution, with which the administratrix fully complied. Thereafter the plaintiff in this litigation, claiming to be entitled to one-sixth of the estate as an heir, in virtue of being the illegitimate, but acknowledged, son of the intestate, sued Mrs. Scruggs and a surety upon the bond to recover $20,000, alleging that the order of distribution was void as to him because no notice has ever been given under the provisions of section 2974 of the General Statutes of 1901. A demurrer to his petition was sustained, and he brings this proceeding to review that ruling.
In the case of Proctor v. Dicklow, 57 Kan. 119, 45 Pac. 86, it was held that the probate court has jurisdiction to decide who are entitled to share in the distribution of the estate of a deceased person, and that its determination cannot be collaterally assailed. There an heir sued the administratrix upon her bond, but was denied relief on the ground that he was concluded by the proceedings in the probate court. In the opinion it was said:
“Although he had legal notice of the final settle ment and distribution, he ignored the probate court, and without appearance or objection allowed the final settlement to be made, the estate distributed, and the final decree entered discharging the administratrix and releasing the sureties on the bond from further liability. . . '. The final settlement and closing up of an estate is a judicial determination to which all interested are summoned, and by which all having a day in court are concluded. . . . The plaintiff, with legal notice and actual knowledge that a settlement and distribution were about to be made, could not safely ignore the proceedings in the probate court. The matters of which.he complains have been finally determined in that court, and he is bound by the adjudication.”
While the report of the case does not disclose the precise character of the notice referred to, it was in fact, as shown by the record, in no material respect different from that given by Mrs. Scruggs. That decision therefore, if accepted as an authority, precludes a recovery by the plaintiff. But we are asked to examine into, and determine as a new question, the purpose and effect of the statute now invoked for the reason that it was not called to the attention of the court in that case.
The statute under which notice,was .given (Gen. Stat. 1901, § 2957) reads :
“If an executor or administrator wish to make final settlement, he shall publish for four weeks, in some newspaper in this state having general circulation in the county, a notice to all creditors and others interested in the estate that he. intends to make final settlement at the next term of the court.”
It is claimed by plaintiff in error that this notice relates'merely to the adjustment and.settlement of accounts between the estate and creditors and has no relation to the matter of the distribution of the residue of the estate among the heirs or legatees, and that before any valid order for such distribution can be made a notice must be published in accordance with section 2974 of the General Statutes of 1901, reading :
“Each person entitled to distribution, not applying therefor, shall be notified In writing of such application ten days before such order shall be made ; or if such person do not reside in this state, a notice of such application shall be published in some newspaper in this state, four consecutive weeks before such order shall be made.”
It is argued that this is the construction which has been given to the two sections in Missouri, from which state they were adopted, and that such interpretation should have controlling force. It is true that this court seems not to have been called upon heretofore to interpret the latter section, that both sections were adopted literally from the statutes of Missouri, and that the supreme court of that state has given the corresponding sections the construction contended for by plaintiff. (The State, to use of Morrison’s Adm’r, v. St. Gemme’s Adm’r, 31 Mo. 230; Lilly v. Menke, 126 id. 190, 220, 28 S. W. 643, 994; Baker v. Lumpee, 91 Mo. App. 560.) But the Missouri decisions were made after the enactment of the Kansas statute, and after a change in the Missouri statute, which may have affected its interpretation. To discover the meaning of section 2974 it is important to consider it in connection with the preceding section, which reads :
“If any personal property descend, and an equal division thereof cannot be made in kind, the probate court may order the s.ale of such personal property, describing the time, place, manner and terms of sale, and cause the money to be distributed according to the rights of those entitled to distribution.”
The natural conclusion from a comparison of the two sections is that they relate simply to the sitúa tion arisiELg when personal property descends which cannot be divided in kind; that the words "such application” in the second section refer to an application for a sale of the property under such circumstances, and that the notice referred to is a notice of the application for such sale. That this was the understanding of the Kansas legislature that adopted the sections is clear from the fact that in the Revised Statutes of Missouri of 1845, which furnished the basis of the Kansas enactment, the subject of this second section was thus indicated in the heading of the article and in a marginal note: "Notice of application to sell for the purpose of distribution, how and when to be given.” (Rev. Stat. Mo. 1845, ch. 3, art. 6, §5.) And this heading and marginal note were adopted, together with the section, by the Kansas legislature which adjourned August 30,1855. (Stat. Kan. Ty. 1855, ch. 1, art. 6, §5.) It is to be remembered that under the administration act, of which this section was a part, only so much of the personal property of the decedent as was perishable was sold at once. If this did not result in sufficient money to pay the debts, enough more was sold for that purpose. Ordinarily the remainder was distributed in kind among the heirs or legatees, no notice being required in connection with an order for the purpose. The section under consideration, with the one preceding it and the one following, were made necessary in order to provide for the contingency of the personal property’s being incapable of division.
In December, 1855, the Missouri statute was amended by adding the words "or partition,” so that the first clause of the section became "Each person entitled to distribution or partition. ’ ’ A corresponding change was made in the section which followed it, and an entirely new section was inserted preceding it, relating to pro ceedings where a division of the personal property could be made in kind. (Rev. Stáb. Mo. 1855, ch. 2, art. 6, §§5-7.) As a result of these changes, the section which originally had no operation except where indivisible personal property descended was made to apply also to cases where such property was divisible, and when occasion for its construction arose (the earliest case cited having been decided in 1860) it was interpreted as though it had been originally framed as then found. Thus, what had been a requirement, exacted only under special circumstances, became in Missouri a general rule, applicable in all cases.
It is .not necessary to consider what practical effect, if any, is to be given the section in our statute. In 1859 the Kausas legislature enacted the existing chapter relating to executors and administrators, substantially adopting the Ohio law on the subject, retaining, however, a few sections of the old statute, including this one. Inasmuch as under the present procedure substantially all the personal property of the estate is ordinarily sold within three months, it may be that the section no longer has any function to perform. But, in any event, it has not the force of the present Missouri statute.
We conclude that the Missouri decisions do not require any modification of the views expressed in Proctor v. Dicklow, supra., and that the plaintiff was bound by the order- of distribution made by the probate court.
As this conclusion is fatal to the plaintiff’s recovery, it is unnecessary to discuss any of the other questions raised.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
The State Bank of Chase brought an action against Fannie Chatten, seeking to subject real estate standing in her name to the.payment of a judgment against her husband, E. L. Chatten. The bank was denied relief, and brings this proceeding to review the judgment.
The facts found by the trial court, so far as necessary to exhibit the disputed questions of law, were as follows: In 1891 E. L. Chatten owed the bank $5196, due not later than June of that year. On January 11, 1892, the real estate here involved was bought at a sheriff’s sale by E. L. Chatten in the name of his wife, he paying the consideration, $3375, by a check drawn on another bank. Soon after this the cashier of the State Bank of Chase had information that such a check had been given by Chatten for the land, and expressed surprise that he had that amount with which to pay for it. A sheriff’s deed naming “Mrs. E. L. Chatten” as grantee was executed on March 8, 1892, and recorded on May 27, 1892. In June, 1893, Chat-ten’s debt to the bank was renewed by the giving of several notes, including one due August 15, 1893, for $696.32, and two due September 15, 1893, for $900 and $984, respectively. As early as March, 1894, the bank’s cashier had actual notice that Chatten had bought the land in the name of his wife, and that the deed had been taken in her name. On May 23,1894, the bank sued on the notes for $696.32 and $900, and caused garnishment process to be served on two other banks. On the next day a written agreement was entered into between the bank and Chatten. It recited that the bank held the three notes just described, which embraced all its demands against Chatten, and that Chatten disputed the correctness of the amount claimed. It then provided for an adjustment of all such claims and disputes and the settlement of the indebtedness in consideration of $2000, to be paid at various times in the future, for a part of which certain security was to be given, and that the garnishment action should be dismissed. Notes partially secured were given at once for the agreed payments, and the action was dismissed in pursuance of the agreement September 4, 1894. At the time of this settlement Ohatten was insolvent, and the bank knew of the fact. His financial condition before this was not shown.
On December 4, 1894, the bank sued Chatten upon the new notes, and upon obtaining judgment began the present action to subject the real estate in controversy to its payment. It was not found that the conveyance was fraudulent-, and there was a general finding for the defendant. Plaintiff in error claims that under these circumstances it was entitled to recover by virtue of sections 7880 and 7881 of the General Statutes of 1901, reading as follows :
“When a conveyance for a valuable consideration is made to one person and the consideration therefor paid by another, no use or trust shall result in favor of the latter; but the title shall vest in the former, subject to the provisions of the next two sections.
“Every such conveyance shall be presumed fraudm lent as against the creditors of the person paying the consideration therefor ; and where a fraudulent intent is not disproved, a trust shall in all cases result in favor of prior creditors to the extent of their just demands, and also in favor of subsequent creditors if there be sufficient evidence of fraudulent intent.”
These sections are, in effect, the same as those adopted in several other states, from which they differ only in being somewhat more specific, the language employed having the evident purpose to cover by express declaration matters elsewhere left to implication. (For references to such statutes, and decisions under them, see 15 A. & E. Encycl. of L., 2d ed., 1166.) The purpose of the first section quoted is to prevent the trust that would otherwise arise in favor of one paying the consideration upon the conveyance of land to another. In the absence of the statute, property so conveyed would, in consequence of such trust, be liable to seizure upon execution against him who paid the purchase-price. (The Ocean National Bank v. Olcott, 46 N. Y. 12, 16.) The two sections correspond with those discussed in the case cited, in which it was said :
“After adopting the fifty-first section [our section 7880], it was indispensable to make some provision to preserve the rights of creditors, otherwise the grantee would have held the title absolutely against creditors and all others. Hence the fifty-second section [our section 7881] was adopted, which placed the property in the same relation to creditors as it would have been, if the debtor himself had fraudulently transferred it, and the words used were appropriate for that purpose. The object of the statute was to cut off all interest in the person paying the consideration, and then to declare property liable for his debts.” .(Page 18.)
“It is difficult to perceive any distinction, or any reason for it, between the rights of creditors as to property fraudulently transferred by the debtor him self, and property paid for by him and transferred to a third person. Why should creditors have different and superior rights to enforce their debts, in the latter case, to those enjoyed in the former ? I can see no reason for any distinction, and I do not believe the statute has created any.” (Page 22.)
A subsequent creditor who seeks to set aside a voluntary conveyance made by his debtor encounters a presumption that the deed was made in good faith, which he must overcome by sufficient evidence before he can succeed. (14 A. & E. Ency.cl. of L., 2d ed,, 309.) By the statute quoted the rule is the same where a subsequent creditor seeks to impress a trust for his benefit upon property conveyed to a third person, the consideration being paid by the debtor. So, in either case, a subsequent creditor can obtain no relief if, at the time he gave credit, he knew of the facts regarding the conveyance he seeks to have declared fraudulent. (14 A. & E. Encycl. ofL., 2ded., 282.) Here there was no finding of fraud, and at the time of the dismissal of the.first action the bank had full knowledge of the circumstances of the deed to Mrs. Chatten. The important inquiry, therefore, is whether plaintiff is to be considered a subsequent, or a prior, -creditor. Chatten was indebted to the bank at a time prior to the execution of the sheriff’s deed to his wife, but after that time the bank, after having sued upon its claim and issued garnishment process to enforce it, made a settlement with him, accepted new notes and securities, and dismissed its action. It has been held that no i'emedy against the fraudulent transfer of property is lost by accepting a renewal note, unless the transaction amounts to a payment, judged by the ordinary tests (Bank v. Lesser & Lewinson, 9 N. M. 604, 58 Pac. 345, and cases cited), but in Eigleberger and others v. Kibler, 1 Hill, Eq. 113, 120, 26 Am. Dec. 192, it was said :
“Were it necessary for the purposes of the case, I should have little hesitation in saying that each renewal of the debt, and taking a new security, was a satisfaction of the antecedent one, and that these renewals could not operate to keep in existence a charge on the land which had been previous to them conveyed away.”
It is no,t necessary, however, to review the authorities further, or to consider their application here, as the precise question presented has already been determined by this court. The facts in the case at bar, and those of Lanphear v. Ketcham, 53 Kan. 799, 37 Pac. 119, are so similar that they may be considered, for the purpose of the present discussion, absolutely identical. It was there said :
“If the first action had been dismissed at the instance of the plaintiff for defects in the petition only, or without prejudice to a future action', many of the questions discussed on the part of the plaintiffs would be entitled to serious consideration; but the first action was settled as well as dismissed. It was dismissed because it was settled. It was settled for the consideration of the $1800 note, given by William Ketcham to the plaintiffs.. This is the note sued on. With full knowledge of all the facts attending the transfer by William Ketcham to his wife of the real estate in dispute, Jewett settled the former action and discharged the attachment, under an agreement with the parties. The plaintiffs cannot assail now the transfer of the real estate, from Ketcham to his wife, upon a transaction prior to the settlement, even if any wrong existed originally concerning the same. The plaintiffs received the note in settlement of the former action, and, therefore, do not stand in the position ,of prior or existing creditors, With power to attack the transfer as a fraud upon their rights. (Brooks v. Hall, 36 Kan. 697, 14 Pac. 236.) Their status is rather that of a creditor subsequent to the transfer, with full knowledge, at the time of accepting the note in settlement, that Mrs. Ketcham held the title of and claimed the real estate in .question. (Sheppard v. Thomas, 24 Kan. 780.)”
Within the authority of that case it must be held that the bank was a subsequent creditor, and therefore could not recover.
Other questions have been argued, relating to the statute of limitations and the effect of the dormancy of the judgment against Chatten, but, in view of the conclusions already reached, it will be unnecessary to pass upon them.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J.:
This is an appeal by John D. Jack from a judgment of imprisonment for contempt by the district court of Shawnee county. Appellant, as a witness, refused to answer certain questions in a proceeding, or investigation, in that court concerning the existence of unlawful combinations of coal-operators, and was adjudged guilty of contempt.
On September 3, 1903, the attorney-general and the county attorney of Shawnee county, proceeding under section 10 of chapter 265, Laws of 1897 (Gen. Stat. 1901, § 7873), filed in the district court of Shawnee county their verified application, informing the court of the existence of unlawful combinations of persons engaged in the operation of coal-mines in Osage county, for the purpose of fixing the price of coal at the mines and the price to be charged to purchasers. It was therein averred that the members of these combinations met monthly in the county of Shawnee and fixed minimum prices to be charged for coal, and agreed that they would not sell it for less than such minimum prices, and that these agreements were carried out and executed by the members. Among others named in said application as having knowledge of the existence of these combinations was appellant, and for him it was therein asked that a subpoena issue. The district judge awarded subpoenas upon the application. The court denied the motion of appellant to quash the subpoena issued, and he thereupon appeared in court as a witness, and was asked the following questions :
“ Ques. Do you know of any meetings of the operators of Osage county being held in this city [Topeka] at intervals during the last year ?
“ Q,. I will ask you if you have any knowledge of a •combine’s or an agreement’s being entered into by cperators in coal of Osage county for the purpose of fixing the price of coal sold to residents and citizens of Kansas ?,
“Q. Have you any knowledge of any meetings of coal-operators of Osage countj^, Kansas, being held in this city on the last Saturday night of each month •during the last year, the purpose of which was to fix the price of coal which was to be charged to citizens ■of Kansas ?
“Q. Do you know of any agreement’s having been ■entered into within this county within the last year between the operators in coal who operate in Osage county, Kansas, by which they attempted to fix and settle the price of coal between themselves and 'citizens of Kansas ? ”
Appellant refused to answer each of the foregoing questions, assigning the following as his reason therefor :
“I am engaged in operating a coal-mine in Osage county, Kansas, and in dealing in the output of said mines, and am on.e of the persons named in the application for subpoenas in this proceeding. The product of the mines of Osage county is the subject of both domestic and interstate commerce, I respectfully decline to answer the questions, or to testify with reference to the subject of this inquiry, for the reason that, in answering the questions and in submitting myself to an examination as a witness, I may incriminate myself and give information as to the details of the said alleged combination and agreement, and the names of parties and witnesses which might supply the means of convicting me of a crime and of subjecting me to imprisonment, fines, forfeitures, and penalties, and I therefore claim the privilege and immunity of section 10 of the bill of rights.”
The anti-trust law (Laws 1897, ch. 265 ; Gen. Stat. 1901, §§ 7864-7874). is vigorously assailed. It is charged that the act is in violation of the fourteenth amendment to the federal constitution, in that it deprives a person of liberty and property without due process of law, and denies him the equal protection •of the law. It is also charged that the requiring of appellant to answer these questions (his refusal so to •do being the cause of his imprisonment for contempt) deprives him of the rights, privileges and immunities guaranteed by section 10 of the bill of rights (Gen. ■Stat. 1901, §92). The motion to quash the subpoena raised the question whether the proceedings ■upon the application and the issuing of subpoenas ■thereunder, as provided by section 10 of the act of 1897, were due process of law,”, within the meaning ■of the fourteenth amendment to the federal constitution. Said section reads :
“The several .district courts of this state and the judges thereof shall have jurisdiction, and it shall be. their duty, upon good cause shown and upon written application of the county attorney or the attorney-general, to cause to be issued by the clerk of said •court subpoenas for such witnesses as may be named in the application of a county attorney or the attorney-general, and to cause the same to be served by the sheriff of the county where such subpoena is issued ; ■and such witnesses shall be compelled to appear before such court or judge at the time and place set forth in the subpoena, and shall be compelled to testify as to any knowledge they may have of the violations of any of the provisions of this act; and any witness who fails or refuses to attend and testify shall be punished as for contempt, as provided by law. Any person subpoenaed and examined shall not be liable to ■criminal prosecution for any violation of this act about which he may testify. Neither shall the evidence of any such witness be used against him in any criminal proceeding. The evidence of all witnesses so subpoenaed shall be taken down by the reporter of said court, and shall be transcribed and placed in the hands of the .county attorney or the attorney-general, and he shall, in the proper courts, at once prosecute such violator or violators of this act as the testimony so taken shall disclose. Witnesses subpoenaed as provided for in this section shall be compelled to attend from any county in the state.”
It is urged by appellant that the proceeding provided by this section is nbt judicial in its character, and is not “due process of law,” in that it is not founded upon complaint, information, or indictment. District courts are expressly created by the constitution, and therein given such jurisdiction as may be provided by law (Const., §6, art. 3), its extent and practice being left to the legislature. Judges of the district courts are expressly created by the constitution, and therein given such jurisdiction at' chambers as may be provided by law (Const., §16, art. 3), its extent being left to the legislature.
The wide scope given to the states in the matter of their judicial tribunals and the character of their procedure, as recognized by the federal government, was clearly set forth in the opinion by Mr. Justice Brewer, in the case of Brown v. New Jersey, 175 U. S. 172, 175, 20 Sup. Ct. 77, 44 L. Ed. 119, where it was said :
“The state has full control over the procedure in its courts, both in civil and criminal cases, subject only to the qualification that such procedure must not work a denial of fundamental rights, or conflict with specific and applicable provisions of the federal constitution. (Ex parte Reggel, 114 U. S. 642, 5 Sup. Ct. 1148, 29 L. Ed. 250; Iowa Central Railway v. Iowa, 160 id. 389, 16 Sup. Ct. 344, 40 L. Ed. 467; Chicago, Burlington & Quincy Railroad v. Chicago, 166 id. 226, 17 Sup. Ct. 581, 41 L. Ed. 979.) ‘The fourteenth amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two states separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each state prescribes its modes of judicial proceeding.’ Missouri v. Lewis, 101 U. S. 22, 31, 25 L. Ed. 989. . . .
“A perfectly satisfactory definition.of due process may perhaps not be easily stated. In Hurtado v. California, 110 U. S. 516, 537, 4 Sup. Ct. 111, 121, 28 L. Ed. 232, Mr. Justice Matthews, after reviewing previous declarations, said: ‘It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law.’ In Leeper v. Texas, 139 U. S. 462, 468 11, Sup. Ct. 577, 579, 35 L. Ed. 225, Chief Justice Fuller declared ‘that law in its regular course of administration through courts of justice is due process, and when secured by the law of the state the constitutional requirement is satisfied.”’
Section 1923, General Statutes Of 1901, gives to district courts general original jurisdiction of all matters, both civil and criminal, not otherwise provided by law. Section 1924 provides that district judges “shall have and exercise such power in vacation or at chambers as may be provided by law, and shall also have power ... to punish for contempt in open court or at chambers.” The right of the district courts and district judges to punish for contempt, without a jury, is well recognized. (In re Millington, Petitioner, &c., 24 Kan. 214; The State, ex rel., v. Durein, 46 id. 695, 27 Pac. 148; 7 A. & E. Encycl. of L., 2d ed., 66; Interstate Commerce Comm. v. Brimson, 154 U. S. 447, 14 Sup. Ct. 1125, 38 L. Ed. 1047.) By section 10 of the act of 1897 the legislature conferred upon district courts and judges thereof the power to order the issue of subpoenas for witnesses, upon written application, and to compel them to attend and testify, with authority to punish as for a contempt upon a refusal so to do. In the case of Interstate Commerce Comm. v. Brimson, supra, the court upheld a somewhat analogous provision of the interstate-commerce act wherein the circuit court is given power to entertain an application of the commission, issue subpoenas, examine witnesses, and commit for contempt where a witness refuses to testify. The procedure under section 10 is an investigation, or preliminary proceeding, and can result in no final judgment, except in a proceeding for contempt against a recalcitrant witness, unless it be the result of a regular judicial trial, conducted in the manner provided by statute. It is a valid exercise of judicial power, and the procedure is “due process of law.”
The case of The State v. Smiley, 65 Kan. 240, 69 Pac. 199, was an appeal from a judgment of conviction for a violation of this law. It was there charged that the act imposed such limitations upon freedom of contract as to constitute a deprivation of the right of property, contrary to the fourteenth amendment to the federal constitution. This court held that it did not conflict with the right to acquire property by lawful contract, the guaranty of which, is secured by the federal constitution, and that the forbiddance of membership in combinations in restraint of trade was a valid exercise of legislative power.
It is contended by appellant that compliance with ' the requirement to answer the foregoing questions would have deprived him of the privileges and immunities guaranteed to him by section 10 of the bill of rights, which provides that “no person shall be a witness against himself.” This is not only a.constitutional right, but it is also a fundamental principle of the common law, embodied in the maxim that “no man can be compelled to criminate himself.” This proceeding before the district court was of the nature of an investigation to inquire whether there had been criminal violations of the anti-trust law. If appellant were guilty of any of the offenses of which inquiry was made by the questions which he refused to answer, he was liable to criminal prosecution under this law. He assigned as a reason for his refusal to answer the questions that in doing so he might criminate himself under the anti-trust law, he being an operator of coal-mines in the state, and dealing in their output. The legislature, by section 10 of the act of 1897, provided immunity to witnesses subpoenaed to testify concerning violations of the act in the following language :
“Any person subpoenaed and examined shall not be liable to criminal prosecution for any violation of this act about which he may testify. Neither shall the ■evidence of any such witness be used against him in any criminal proceeding.”
Was appellant, as a witness upon this investigation, entitled to invoke the protection of section 10 of the bill of rights ? Was he entitled to plead the privilege of silence ? If the immunity against prosecution, provided for by section 10 of the anti-trust law, afford'the witness upon such investigation the protection against future prosecutions that is guaranteed to him by section 10 of the bill of rights, .then appellant was not entitled to invoke the protection of the latter provision ; nor was he entitled to plead the privilege of silence. (Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110; Brown v. Walker, 161 id. 591, 16 Sup. Ct. 644, 40 L. Ed. 819.)
It is well settled that legislative bodies possess the power to grant amnesty to witnesses and compel them to give testimony against themselves. This power has been recognized as a public necessity in the enforcement of laws. Congress and the legislatures of many states have enacted immunity statutes for the purpose of securing convictions for such offenses as gambling, bribery, the manufacture or sale of intoxicating liquors, usury, combinations in restraint of trade, and like offenses, in which two or more pei’sons participate to constitute the crime, the necessities of the case and the difficulty of obtaining witnesses to establish the offense, punish the offenders, and suppress the crime, being deemed sufficient to warrant the extending of immunity to a participant in order to constitute him a competent witness against the other offenders. The constitutional privilege that a person shall not be required to be a witness against himself is of great value to the citizen accused. However, the authorities, state and federal, recognize the rule that when the testimony sought cannot, by reason of an immunity statute, be used as a basis for, or in aid of, a prosecution which might result in fine or imprisonment, or involve a penalty or forfeiture, the privilege cannot be claimed. Immunity statutes must be given a reasonable construction—not a strained and artificial one, and when it is apparent to the court that a person is fully protected from the effect of his testimony he should be required to testify, even though it may show him guilty of a criminal offense.
It is claimed, however, that the immunity afforded by section 10 of the anti-trust law is not sufficient to constitute a substitute for the privilege of silence guaranteed the witness by section 10 of the bill of rights. The legislature determines what acts of the individual shall constitute a crime against the state, and what shall constitute the punishment of an offender, upon conviction. It determines within what period a prosecution for the commission of an offense shall be commenced, and may determine, within constitutional limitation, what shall and what shall not constitute evidence competent to be used upon the trial of an offender. The protection afforded the witness by the constitution is that of not being a witness against himself. If the act of which inquiry is made do not constitute a crime, or, if made a crime, it have no punishment prescribed for its violation, or be no longer punishable, or if the act be barred by the statute of limitations, with no action pending, or the law have been repealed, or if the witness have been tried for the offense and acquitted, or convicted and satisfied the sentence imposed by the law, he can claim no exemption from answering questions relating thereto. Likewise the witness is deprived of claiming this exemption from testifying if the legislature, by the enactment of an immunity statute, have provided that he shall not be liable to criminal prosecution for any violation of the act about which he may testify, nor his evidence used against him in any criminal proceeding. As to prosecutions for those crimes to which his evidence relates, under the immunity act the witness is in the same position, in so far as there is a possibility of using his evidence against him, as though there were no such crimes provided by statute.
It is urged that the amnesty provided by section 10 is not complete, as it affords no immunity to a stockholder in any such corporation. There is nothing in the record disclosing appellant to be a stockholder, an officer, or an agent, or otherwise connected with any corporation that might, in any manner, be affected or .suffer, as the result of his disclosure as a witness. The constitutional provision was intended for the protection of the witness ; “ the hurt must be to himself” ; he himself must be included in the terms of the law before he can have just grounds for complaint. (The State v. Smiley, supra.) However, it was never intended that the immunity afforded the witness by this act should extend to, and protect, the stockholders, officers and agents of a corporation, as such ; the immunity extends to the witness alon'e ; -it was not contemplated that it would be made use of as a pretext for securing immunity to others. That the immunity afforded the witness, to be complete, must extend to the officers, agents and stockholders of a corporation, as contended by appellant, is too remote.
Section 5 provides, as a punishment for one convicted of a violation of the act, a fine of not less than one^hundred dollars nor more than one thousand dollars, and confinement for not less than thirty days nor more than six months. Sections 5 and 6 provide a penalty of one hundred dollars per day for each and every day such violation shall continue after conviction. It is further provided by section 5, that every person, company or corporation who shall violate any of the provisions of the act, be denied the right of, and be prohibited from, doing any business within this state. The last provision contemplates the prohibiting of the continuance of, or engagement in, business in the state only when such business is in violation of the act; it was not intended thereby to prohibit persons from continuing or engaging in any lawful business in the state, not conducted or carried on in violation of the act. Viewed in the light of the interpretation thus given it, the provision is a valid exercise of leglative power, and is not open to the charge made against it by appellant that it constitutes, in effect, banishment from the state.
The provisions of section 7 that in any civil action there may be pleaded in defense that the plaintiff, or any person interested in the prosecution, has within one year been guilty of á violation of any of the provisions of the act, as held in Barton v. Mulvane, 59 Kan. 313, 52 Pac. 883, under a very similar provision of the anti-trust act of 1889 (Laws 1889, ch. 257), contemplates only civil actions relating to, and growing out of, transactions prohibited by the act. It was not intended by the legislature to deprive the litigant of the right to resort to the courts for the protection of property rights and interests not connected with such combinations or trusts. Thus interpreted, the provision is a valid exercise of legislative power, and is not open to the charge of appellant that it constitutes outlawry.
It was the intention of the legislature, by section 10 of the act, to afford the witness complete immunity against criminal prosecution, fines, imprisonment, penalties, and forfeitures, for any violation of the act about which the witness might give evidence upon a proceeding or investigation by the state to acquire information as to violations of the act; and also to afford the witness complete immunity against such testimony’s being used against him in any proceeding of a criminal nature. The immunity afforded by the act is coextensive with the constitutional privilege. A statute providing such immunity is sufficient; a witness, thus protected, cannot invoke the constitutional privilege of silence. (Counselman v. Hitchcock, supra; Brown v. Walker, supra; The People v. Butler Street Foundry, 201 Ill. 236, 66 N. E. 349; Bradley v. Clark, 133 Cal. 196, 65 Pac. 395.)
Appellant assigned as a further reason why he should not answer tjhe questions propounded to him that the immunity afforded does not protect him against criminal prosecution, fines and forfeitures for violations of the federal anti-trust law ; that the proceeding before the district court was an investigation to inquire whether there had been a violation of the state anti-trust law; that appellant, as a witness in the district court upon the inquiry, stated that the product of the mines of Osage county was the subject of both domestic and interstate commerce.
If the product of the mines of Osage county were the subject of interstate commerce, as stated, and appellant, as an operator of these mines, violated the provisions of the federal anti-trust law, and thereby became liable to criminal prosecution, fines and forfeitures thereunder, could he, in an investigation in the state courts to inquire if there had been violations of the state anti-trust law, refuse to testify, if the immunity provided did not protect him against the possibility of criminal prosecutions, fines and forfeitures for violations of the federal anti-trust law? It is not to be presumed that the examination, upon inquiry, will go beyond violations of the state law. If such examination be confined to its legitimate scope, it will not include, but will exclude, all acts which might connect it with interstate commerce, in violation of the federal anti-trust law. Under its power to regulate interstate commerce the United States may legislate upon the subject of private contracts relating to such commerce, and prohibit combinations, pools, and trusts, so far as they relate to inter-state commerce, but it has no jurisdiction over combinations, pools, and trusts, relating to commerce wholly within the state ; nor does the United States acquire jurisdiction over that part of a combination or agreement relating wholly to commerce within a state, by reason of the fact that the combination covers and regulates commerce, which is interstate. In so far as such combinations interfere with interstate commerce, they are under the control of the United States; in so far as they interfere with commerce wholly within the state, they are subject only to the jurisdiction of the state. (Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 20 Sup, Ct. 96, 44 L. Ed. 136.) Where two governments like the United States and a state exercise their authority within the same territory, and over the same citizens, the legislation of that which, as to certain subjects, is subordinate should be construed with reference to the powers and authority of the superior government, and not be deemed as invading them, unless such construction be absolutely demanded. (Commonwealth v. Gagne, 153 Mass. 206, 26 N. E. 449, 10 L. R. A. 442.)
In the case of Brown v. Walker, supra, Brown, who was auditor of the Alleghany Railway Company, was subpoenaed as a witness to give testimony before a federal grand jury upon an investigation concerning alleged violations of the interstate-commerce act by the railway company. He refused to testify, claiming that to answer the questions would tend to accuse and criminate him. He was adjudged to be in contempt. Proceedings in habeas corpus were instituted in the United States circuit court and he was remanded to the custody of the marshal. An appeal was had to the United States supreme court. It was claimed there by appellant that the immunity pro vided by the interstate-commerce act was insufficient to satisfy the constitutional guaranty of protection against being compelled to be a witness against himself. The immunity provided by the act was by the court held sufficient. Mr. Justice Brown, in delivering the opinion of the court, with reference to the construction of the immunity clause of the act said :
“It can only be said in general that the clause should be construed, as it was doubtless designed, to effect a practical and beneficent purpose—not necessarily to protect witnesses against every possible detriment which might happen to them from their testimony, nor to unduly impede, hinder or obstruct the administration of criminal justice. That the statute should be upheld, if it can be construed in harmony with the fundamental law, will be admitted. Instead of seeking for excuses for holding acts of the legislative power to be void by reason of their conflict with the constitution, or with certain supposed fundamental principles of civil liberty, the effort should be to reconcile them if possible, and not to hold the law invalid unless, as was observed by Mr. Chief Justice Marshall, in Fletcher v. Peck, 6 Cranch, 87, 128, ‘the opposition between the constitution and the law be such that the judge feels a clear and strong conviction of their incompatibility with each other.”’
It was further claimed, in this same case, that the amnesty provided by the interstate-commerce act, though sufficient to grant immunity from prosecution by the federal courts, did not afford immunity against prosecution in-the state courts. In treating the proposition and the improbability of being subjected to the criminal laws of another sovereignty, after having quoted extensively, with approval, from the opinion of Lord Chief Justice Cockburn upon that subject, Mr. Justice Brown said :
“But even granting that there was still a bare possibility that by his disclosure he might be subjected to the criminal laws of some other sovereignty, that, as Chief Justice Cockburn said in Queen v. Boyes, 1 B. & S. 311, in reply to the argument that the witness was not protected by his pardon against an impeachment by the house of commons, is not a real and probable danger, with reference to the ordinary operations of the law in the ordinary courts, but ‘a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct.’ Such danger it was never the object of the provision to obviate. The same answer may be made to the suggestion that the witness is imperfectly protected by reason of the fact that he may still be prosecuted and’ put to the annoyance and expense of pleading his immunity by way of confession and avoidance. This is a detriment which the law does not recognize. There is a possibility that any citizen, however innocent, may be subjected to a civil or criminal prosecution, and put to the expense of defending himself, but unless such prosecution be malicious, he is remediless, except so far as a recovery of costs may partially indemnify him. He may even be convicted of a crime and suffer imprisonment or other punishment before his innocence is discovered, but that gives him no claim to indemnity against the state, or even against the prosecutor, if the action of the latter was taken in good faith and in a reasonable belief that he was justified in so doing.”
The anti-trust act of Illinois requires corporations doing business in the state to make and file annually with the secretary of state a verified statement which is termed an “anti-trust affidavit.” In People v. Butler Street Foundry, supra, a proceeding to recover the penalty of fifty dollars per day for failure to make and file such affidavit, as a defense to such action it was charged that the requirement of the making of the affidavit was a violation of the constitutional provision of the state, that “ no person shall be compelled' in any criminal case to give evidence against himself.” The act provided immunity against criminal prosecutions for truthful disclosures of matters required to be shown by the affidavit; and by the affidavit a disclosure of any connection of the corporation with any •combination, pools, trusts, and the like combines, in restraint of trade or commerce, was required. It was urged that the immunity was not coextensive with the constitutional privilege, and that it did not cover prosecutions under laws of other states or under laws of the United States. In passing upon the validity of the act it was held that, while it might be broad enough to include trusts, pools' and combines formed with parties outside the state, yet, in construing the act, the court must consider it as relating to trusts, pools and combines formed within the state. As to the sufficiency of the immunity provision challenged, it was held that it was complete as against prosecution by the federal authorities or by the authorities of other states, as the affidavit required, to the making of which immunity was extended, need relate only to trusts, pools and combines within the state. In making reference to the sufficiency of the immunity afforded by the act, as applied to violations of the federal law, the court said : >
“The possibility that the affidavit required by section la of the anti-trust act of 1891 might contain disclosures tending to show a violation of the .antitrust law of some other state, or of the United States, is not a real and probable danger of criminal prosecution within the constitutional privilege against giving self-incriminating evidence.”
. The anti-trust law is a valid exercise of legislative power, and is not violative of the fourteenth amendment to the federal constitution, as claimed by appellant. Section 10 of the act contemplates that, in the proceeding or investigation before the district court or the judge thereof, to discover if there have been violations of the state anti-trust law, the inquiry will be confined to violations of that law. The record discloses that the examination of appellant was confined to its legitimate scope, within which the immunity afforded him by section 10 was coextensive with the constitutional privilege invoked for his protection. The possibility that his answers to the inquiries might disclose violations of the federal law, and the evidence thus given be used against him in a criminal prosecution for a violation of that law, was not a real and probable danger.
Appellant should have answered the questions asked him upon the inquiry. The judgment of the court below is affirmed.
All the Justices concurring.
Affirmed by Supreme court of the United States, February 20,1905 (25 Sup. Ct. 289).-Rep. | [
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Per 'Curiam:
On the application for a rehearing it is insisted that testimony about the state of defendant’s accounts was received in evidence without producing the book of accounts.. The principal attack on the ruling on evidence was that the entries made from orders and other memoranda in a ledger were not original entries, and to that objection, so far as rulings on evidence were concerned, our attention was mainly directed. Nothing was said in the opinion (ante, page 405,76 Pac. 905) about the objection to the testimony of ■ Pettit because the books themselves were not offered. It was mentioned in defendant’s brief, and was therefore entitled to consideration.
Passing the question that the books were outside the state and beyond the reach of the court’s process, the ab ;sence of the books was not presented in a way to challenge the court’s attention to that particular point, or to render the ruling erroneous. Pettit testified that he was the bookkeeper of his house and made the entries in the ledger from temporary memoranda. He did not make or check the orders, did not take impressions of the orders on the bill-book, and did not take cash or note the receipts on the •cash-books. All these were handled by others and passed up to him to be entered on the ledger. The entries on that book were original entries and were rightly held to be admissible. Whether entries so made should be treated •as original entries was the main controversy when Pettit’s testimony was offered. He testified that he knew the state ■of Stephenson’s account and was permitted to give it. An •objection to the testimony was made by his counsel, who insisted that it must be proved by a book of original entries, and he proceeded to cross-examine the witness, and undertook to show that Pettit had no knowledge of the temporary memoranda, and that what he kept was not a book of original entries.
Some of the general objections were broad enough to cover the point that the books themselves were not in court, but that specific objection was not made; it was, rather, that the entries in the ledger were not original, and that the temporary notations from which the entries were made were not original entries, and that such memoranda were outside the knowledge of- the witness. At the end of an extended inquiry and colloquy, the final objection of ■counsel for defendant was that the testimony was not a book of original entries, and not that the book itself was not produced. The point now made was, therefore, not brought specifically to the attention of the trial court, and, hence, the omission cannot be treated as a ground of reversal.
The petition is deniéd. | [
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The opinion of the court was delivered by
Mason, J.:
This is a proceeding to review a judgment against the city of Atchison for damages alleged to have been occasioned by the neglect of the city to keep a street in proper condition for the use of foot-passengers. The plaintiff had verdict and judgment for $750, and the city prosecutes error.
The essential facts, as disclosed by the petition and evidence, were substantially as follows : At the place of the alleged defect the sidewalk area had not been paved or improved, but for soxhe years there had been in general use a path running the length of the block and connecting at one end with a sidewalk running at right angles to it and at the other with a plank walk built by the city, extending across a street. A roadway forty feet wide had been made at a level several feet below the natural grade where the path was situated. Plaintiff had occasion to use the street at night and on foot. There was no sidewalk on the opposite side of the street, the roadway by reason of recent rains was muddy, the soil being clayey and much worked up by vehicles ; so she followed the path described. She stepped upon a root which extended across the path several inches above the surface of the ground, her ankle turned, and she fell to the ground, breaking her leg and receiving other injuries. The condition of the street complained of had existed for years and the city council had actual notice of it.
The city contends that the petition did not state a cause of action and that its demurrer to the plaintiff’s evidence should have been sustained, and in support of this contention quotes the first paragraph of the syllabus of City of Wellington v. Gregson, 31 Kan. 99, 1 Pac. 253, 47 Am. Rep. 482:
“While, generally speaking, it is the duty of a city to keep its streets in reasonably safe condition for public travel, it is not thereby implied that every street and the whole width of every street must be placed and kept in good condition. The city may, without incurring liability, leave certain streets entirely unopened, and in others put only a portion of the width ' in condition for use.”
That the doctrine thus stated cannot be held to cut plaintiff off from all chance of recovery and to exempt defendant from liability, as a matter of law, sufficiently appears from a consideration of the next paragraph of the same syllabus :
“Whether in any given case a city can be charged with negligence in failing to improve and render safe-for use the entire width of the street, and also whether, when it has put a portion in good condition, it-can be-charged with negligence on account of posts, stakes, or other obstructions outside of the traveled track, are ordinarily questions of fact for the determination of a jury.”
The position of plaintiff in error could be sustained only by holding that a city could never be liable for injuries received by reason of the condition of the sidewalk area in a public street unless it had undertaken to build and maintain thereon an artificial walk, or otherwise by affirmative action to fit it for use as a footway. Such a view conflicts alike with reason and authority. It is justly held that where, for a term of years, there has been a general use by pedestrians of the part of a public street lying outside the improved portion, the city may be deemed to have recognized such use and assumed the responsibility for its being made safe, although no artificial sidewalk has been constructed.
“In cities, where it is customary for travelers on foot to use for that purpose a portion of the public streets on one or both sides of the track which is used for carriages and teams, as a footway or sidewalk, the use of such footway or sidewalk by the people traveling along a public street in any such city, for a series of years, constitutes such footway or sidewalk a part of the traveled part of such street, and imposes upon the city the duty of keeping such footway or sidewalk in repair; and if the same becomes so defective as to render travel over the same unsafe, and the city takes no measures to warn the public against - the use of such footway, the city becomes liable to any traveler who may suffer an injury from such defective footway without his fault.” (James v. The City of Portage, 48 Wis. 677, 682, 5 N. W. 31.)
“If between the sidewalk of a street in a city and’ that portion of the street wrought for a carriageway there is a grassed space, over which a footpath has-been worn by use by persons having occasion to enter another street abutting on this street, but not crossing it, or to come in the opposite direction, the city is liable to a person injured by a defect in such path, if-the path was known to and recognized by the city as-a part of the wrought line of travel, in the absence of any path or other provision made by the city for crossing the street at or near the locality in question,, or of any barrier or other warning to indicate that the path as actually used was unsafe or unsuitable.”' (Ashton v. Newton, 134 Mass. 507, 45 Am. Rep. 347, syllabus.)
(See, also, City of Madisonville v. Pemberton’s Adm’r, 75 S. W. [Ky.] 229.)
Complaint is made that several instructions asked by defendant were not given. One of them included this charge:
“If you find from the evidence in this case that the city did open for public travel only a part of the width of said street, leaving the other portions of' said width in its original condition, then it was only bound to keep in safe condition for travel that portion so opened for public travel.”
The others involved the same proposition, and all of them ignored the possible effect to be given, to the fact of the public use of the path. They were based upon the theory already held to be erroneous and were properly refused. ■
Criticism is made of the instructions given, especially of one which, it is claimed, authorized the jury to base conclusions upon a comparison of the conditions present where the accident occurred with those existing elsewhere. We do not think the instruction fairly open to the construction sought to be given it. ' Considered as a whole, the charge sufficiently advised the jury what view of the evidence would justify a verdict for plaintiff, and, reasonably interpreted, it was free from error.
The judgment is affirmed.
All< the Justices concurring. | [
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Per Curiam:
John R. Libbey, a railroad conductor, was struck by a moving train in the yards of the Atchison, Topeka & Santa Pe Railway Company, at Emporia, and from the injuries sustained he died. His widow brought this action to recover damages for the negligent act, and to the testimony introduced by her the court sustained a demurrer, holding that her own testimony showed that Lib-bey’s negligence was the proximate cause of the injury.
A reading of the the record satisfies.us that the ruling must be upheld. Assuming that the company was negligent in running its trains through the yards at too rapid a rate of speed, and that no one was on the end of the train as it was backed toward Libbey, the testimony of the plaintiff showed that he, who was talking to a coemployee in the yards, recklessly turned and stepped upon a track and in front of a moving train, without looking in the direction from which the train was coming. He was familiar with the yards and with the fact that two switch-engines were continually moving cars backward and forward through the yards. Although it was night-time, plaintiff’s testimony showed that the cars could have been seen by Libbey for a short distance. He knew the dangers of the place; he voluntarily and unnecessarily put himself into a place of danger; and he took no precaution for his own protection. In stepping upon a railroad-track in front of a moving train without looking or listening, he ignored the plainest dictates of ordinary prudence, and plaintiff’s testimony showed that his negligence directly contributed to. the injury.
The objections to rulings on testimony are not material.
The judgment is affirmed, | [
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Per Curiam:
In this case the surety was shown to be liable, whether the revivor proceedings were good or bad. The petition was not open to the charge of duplicity merely because it disclosed all the facts. The judgment of the district court is affirmed on the authority of McCormick v. Fisher, 63 Kan. 199, 65 Pac. 223. | [
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] |
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