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The opinion of the court was delivered by
Porter, J.:
A rehearing was granted upon the complaint of counsel for Meriwether that the former opinion (Stark v. Meriwether, 98 Kan. 10, 157 Pac. 438) overlooked his main contention. Counsel insists that he “relied chiefly, aggressively, and most confidently throughout the entire litigation upon one specific and most prominent fact which appeared in the findings of the trial court.” The complaint then proceeds:
“And this was the omission. The findings refer to the Coulter map thereto attached. The fifth finding refers to island ‘B’ as shown on said map. . The island as shown by the map was right there, directly in front of the Stark land, before any accretions began to form, and directly between Stark’s frontage and the land in dispute, and 700 feet nearer to the Stark land than was the land in dispute. The question was, whether or not the land in dispute was an accretion to Stark’s original frontage. The Coulter map also shows that island ‘B’ as originally formed, and before any accretion began, extended both farther upstream and farther downstream than did the Stark frontage. Also the court shows that island ‘B’ never washed away, but continued to grow eastwardly. Your opinion gives the findings except that they do not show the Coulter map. Consequently, the size and location of the island ‘B’ as herein stated, upon which my contention was based, are not shown in your opinion. Upon the hearing I earnestly- contended that this island' ‘B,’ permanently located as it was, and lying directly in front of the Stark land as it did, and extending as it did both higher up and lower down than Stark’s frontage, and this too, before accretions began forming, was an insuperable obstacle in the way of accretions advancing from the Stark lands in the direction of the lands in dispute which lay 700 feet still farther east.”
This action was commenced October 16, 1906. Meriwether’s answer, filed in December, 1907, set up a general denial, a claim of possession of the lands in dispute, and the further claim that there was a suit then pending in the federal court which involved the title and ownership of all the lands described in plaintiff’s petition. On March 11, 1913, and after an amended petition had been filed, an answer was filed for Meriwether by his present counsel, which, after admitting possession of the lands in controversy, denied the other averments of the petition, set up the fifteen-year statute, of limitations, and further alléged that “the land in controversy is an accretion to an island which arose in the bed of the Missouri river, to which island the defendant had title and which never belonged to plaintiff.” The island mentioned in the answer, was obviously the one referred to in the evidence and findings as the Howe Island, or “Island A.” However, we shall assume that the answer is broad enough to include not only that particular island, but any other to which the defendant could show that the lands accreted. A copy of so much of the Coulter map as is necessary to show the locality and surroundings is reproduced on page 652.
The sole controversy below was whether the land in dispute was accretions to Stark’s frontage on the riprap bank, or, as Meriwether contended, accretions to an island.' The plaintiff offered evidence of witnesses who were familiar with the river at the locality in question which tended to show that there was no island at all at the place marked “B” on the Coulter map. Witnesses for defendant dignified the place as an “island,” and testified that the accretions formed toward the island and not toward the riprap bank. But some contradictory statements in respect to both these matters were shown in the testimony given in the old case of Fowler v. Wood, 73 Kan. 511, 85 Pac, 763, by at least two of these witnesses. Meriwether admitted that in the case of Fowler v. Wood he had testified that in 1889 when he first became familiar with the locality there was no island visible between the state line and the mouth of the Kansas river; that later in the same year he returned to the place when the water was lower and that a sand bar was visible at the place marked “B” on the Coulter map, and that the bar “was attached to the bank all along that locality.” Some of plaintiff’s witnesses spoke of the place as nothing more than a sand bank visible at low water, and explained the Coulter map as showing nothing more than a sand bar. The place on the map was marked “B” during the trial, not to indicate that it was an island, but to distinguish and identify the locality. In the findings the court refers to it on the Coulter map as “Island B,” which never entirely washed away. The mere reference to it in the findings as an island does not, in our opinion, carry with it all the consequences which counsel contends for. In addition to the testimony of plaintiff’s witnesses familiar with the river from the time the accretions firsT began to form, there was other evidence which fully justified the court in overruling the contention upon which counsel places such emphasis. The whole “insular theory” as far as it has any application to the facts respecting the manner in which the identical land in dispute was formed has been time and again discredited by the courts in litigation in which Meriwether was a party and by which he acquired a large portion of the same tract of which that now in controversy forms a part. In a number of suits, some in the courts of this state and others in the federal courts, he filed verified pleadings denying that any of the land comprising the tract of which the Stark lands are a part was formed by accretions to either of the islands which it is now claimed are shown on the Coulter map; on the contrary, he asserted and successfully maintained that the lands were and are accretions to the riprap bank. In much of the litigation he was strenuously opposed by the learned counsel who now represents him in this case, and who has with entire consistency and great ability vigorously maintained the insular theory.
The trial court in the present case must have given considerable weight to the evidence introduced in the way of pleadings, records and judgments in the other litigation. We referred briefly to those cases in the first opinion. We shall now quote more at length from the decision and findings in the case of State of Kansas v. Meriwether, 182 Fed. 457, decided in 1910 by the circuit court of appeals. The controversy in that case arose in a suit against the county treasurer of Wyandotte county to establish the ownership of a fund of $22,000, deposited as condemnation money for the right of way of a railroad across lands including those now in dispute. Jane Stark, through whom plaintiff claims, and Meriwether were parties. Meriwether filed a verified cross-complaint in which he -set forth his claims to the fund by reason of his ownership of most of the tract. He alleged that in 1888 the Missouri river began anew to change its course, and that the lands were formed by accretions to the old south bank of the river as it existed prior to the accretions. He alleged that Jane Stark tvas the owner of the accretions attached to her land lying “just west of and adjoining” his own land; but alleged that the accretions should be equitably divided between the owners of the old south bank of the river, and he claimed that upon his theory of an equitable division of the accretions Jane Stark would not be entitled to any share in the condemnation money. His theory was, as contended in the present case, that even though the lands in dispute were formed by accretions to the river bank, still, inasmuch as his lands extended around the southeast curve of the old river bank, his lines should be extended diagonally across Stark’s accretions, and Stark’s lines, instead of extending outwards toward the new bank of the river, should extend across the accretions awarded to the heirs of Annie B. Wood in the Fowler v. Wood case (73 Kan. 511, 85 Pac. 763).
The state of Kansas intervened in the suit' and, represented by the learned counsel who now appears for Meriwether, set up its claim to the condemnation money; the nature of its claim will be referred to presently. The special master appointed to find the facts and the law reported in 1908, finding Meriwether entitled' to all the $22,000 condemnation money except the sum of $809.50, which the master concluded be longed and should be paid to Jane Stark; but he reserved the question of whether Meriwether’s claim to that sum was in fact superior to hers. We assume that the point reserved was the one depending on the manner in which the accretions should be divided between Meriwether and Mrs. Stark. The report of the master was confirmed and judgment rendered in Meriwether’s favor against George W. Howe and the state of Kansas. The case came before the circuit court of appeals on an appeal by the state.
In the opinion of that court the statement of facts, after reciting the substance of Meriwether’s cross-bill, proceeds as follows:
“The state of Kansas in its cross-bill, after making allegations similar to those of Meriwether, concerning the title and washing away of the land and the change of the river’s channel, alleged that afterwards ‘there appeared above the surface of said stream and within the channel of said stream, an island, which was on both sides'of the state line at said point, and on the Missouri side of the main channel of said stream- of which island the state of Kansas was the owner by reason of its being formed upon and within the bed and channel of said stream, which island gradually extended toward the Kansas or right bank of said stream, also that another or other islands appeared in the bed of said stream on the Kansas side of the state line, and on the Missouri side of the main channel or deeper part of stream, which other island or islands also belonged to the state of Kansas for the same reasons, and that said islands by gradual accretion thereto became united and extended until they' reached the Kansas bank. . . . And defendant says that the said land so condemned was not an accretion to the main land or to any land owned by said Meriwether or to any person through or under whom he claims, but -that the same consisted of islands which formed and appeared in the channel of the Missouri river and accretions thereto, all of which belonged to this defendant, by reason of which fact this defendant is entitled to have and receive the said sum of $22,000.’
“To this intervening cross-bill Meriwether filed an answer, in which he denied the insular theory of the state and reasserted his claim that the land condemned was formed by accretions to his riparian possessions.” (Italics ours.) (State of Kansas v. Meriwether, 182 Fed. 457, 459.)
The statement of facts then quoted the language of the special master, as follows:
“ ‘A change in the bed of said river caused by a shallowing of the channel opposite the riprapped bank began to occur, and a sand bar accretion to said bank began to form after the spring rises in said river, and also a sand bar began to form on the northern and eastern side of the channel as it then existed and from thence on said sand bar accretion and sand bar extended north and east and substantially parallel with the south bank and increased in height and width, and, with their extension and growth, the channel of the river grew shallower and receded in a northerly and easterly direction.' " (p. 459.)
The opinion continues the statement of facts:
“He found that in the year 1889 the National Waterworks Company, an owner of land fronting on the river above that in question, constructed a dyke located about 1,600 feet upstream, from the land in question; also, that the city of Kansas City, at about that time extended a sewer out into the new current of the river; that the effect of these constructions was to retard the flow of water around the point of land at the influx of the Kansas river, make it flow further northward, accelerate the accretion along the southern bank of the river, and increase the height, width, and length of the sand bar in the receding channel of the river; that as a result the channel receded further north and east until in the year 1891 or 1892 it ran, and has ever since continued to run, several hundred feet north of the land in question.” (p. 459.)
We now quote from the opinion itself:
“Because of this last-mentioned fact, among others, it is contended by learned counsel for the state that the land condemned was not an accretion to the shore, but was an isolated growth, an island rising from the bed of the river. We, however, are unable'to agree to this. Not only did the special master and the trial court find against it, but, by reason of the claim that their findings are uncertain and inconculsive, we have examined the evidence including several authentic topographical surveys and plats made between the years 1886 and 1892 while the land was forming, and from them all we are satisfied that the accretion theory is sustained by the proof and that the insular theory is not sustained. The fact that the land along the new channel is a little higher in elevation than that which lies further inland, nearer to the riprapped bank, is a condition not inconsistent with the conclusion reached. The evidence tends to show that in the process of land formation by accretion it is not uncommon to find higher levels next to the channel and a recession to lower levels further inland.” (p. 461.)
Upon the theory that all these new-made lands were accretions to the riprap bank, Meriwether defeated the claim of the state of Kansas and secured not only $21,000 condemnation money, but also title to a large tract of valuable land. His theory was supported by facts sworn to by him. He now asserts the facts to have been the exact contrary; and in order to defeat Stark sets up the claim that the lands in question were formed by accretions to islands. Jn litigation with the state and other parties he established by his own testimony and that of others that the so-called islands were mere “sand bar accretions” to the river bank. Having greatly profited by the process of blowing hot, he now, in order to profit again, blows cold, calmly relying upon the reference in the trial court’s findings to the locality in question as an “island” that .never washed away. He seeks now to magnify the importance of the sand-bar accretion by insisting that when it was first visible there ran between it and the riprap bank next to Fowler’s packing plant the main “channel of the largest river in the world.”
In the former opinion we said that if he was not estopped to assert his present claim perhaps he ought to be. The doctrine of equitable estoppel, strictly speaking, never applies unless the one urging it shows that his position or rights have been prejudiced in some material way by the former attitude or conduct of the one sought to be estopped.
'There was in evidence a letter written by Meriwether to Mrs. Stark in 1903, admitting she was entitled to the accretions in front of her land, but setting up a claim that the accretions should be equitably divided. He alleged the same thing in the condemnation suit wherein Mrs. Stark was a party. We do not deem it necessary, however, to determine whether his conduct in these respects so far prejudiced the grantors of plaintiff Stark that the principle of equitable estoppel applies in strictness, “Whether the principle is described as equitable estoppel, qttast-estoppel, waiver, ratification, election, or as a requirement of consistency in conduct, is not very important.” (Powers v. Scharling, 76 Kan. 855, 859, 92 Pac. 1099.) The foregoing excerpt is quoted with approval in Bank v. Jesch, post, and also the following from 10 R. C. L. 694:
“The doctrine of equitable estoppel is frequently applied to transactions in which it is found that it would be unconscionable to permit a person to maintain a position inconsistent with one in which he has acquiesced.”
It is sufficient to say that, in view of all the facts stated, the claim that it became a physical impossibility for the lands in dispute to have been formed by accretion to the river bank does. not impress this court; and it sees no reason to disturb the findings of the trial court to the effect that These lands belong to Stark, notwithstanding the reference' in the findings to the so-called “Island B.”
The former judgment will be adhered to. | [
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The opinion of the court was delivered by
Burch, J.:
The action was commenced by Johnson to recover damages from Thomas. The charge was that Thomas maintained a dike- extending east and west on the north side of his land, and cut an opening in a dike maintained by Johnson on the east side of the Thomas land, whereby accumulated surface water was cast in volume on. Johnson’s land. Thomas answered, claiming the land on which the Johnson dike was located, and consequently the right to demolish that dike. He also claimed damages for injury to his land resulting from the erection of that dike. Martha S. Wilson owned a narrow tract of land lying between the Johnson and Thomas farms, was interested in the maintenance of the dike, and claimed title to the land on which it rested. She was made a party. At the conclusion of a trial before the court, judgment was rendered denying damages either to Johnson or to Thomas, and quieting Thomas’ title to a strip of land eight feet wide on which the Johnson dike rested. Johnson and Martha S. Wilson appeal.
The errors assigned are that the court denied the motions of Johnson and Martha S. Wilson for a new trial. The only ground of the motions to which the argument of the appellants can apply is that the judgment is contrary to the evidence and contrary to law. Special findings of fact, with conclusions of law separately stated, were not requested or returned, and the case is argued here much as it must have been in the district court. The evidence is quite voluminous, and is conflicting, or open to conflicting interpretations, on every material point.
The first question, in order of importance, related to the location of the boundary line between the Thomas and Wilson tracts. Thomas claimed the line was eight feet east of a hedge which extended north and south on the east side of his land. The next question was whether or not Thomas had lost his right to the eight-foot strip of ground between the hedge and the boundary because of adverse possession by Martha S. Wilson and her predecessors in title. This court is not concerned with any of the various things to be taken into account in determining the weight of the evidence. Its sole concern is with the subject whether or not substantial evidence appears sustaining Thomas’ claim respecting boundary, and sustaining Thomas’ title under the rules of law relating to acquisition of title by adverse possession. The appellants do not attempt to segregate all the evidence favorable to Thomas, give that evidence its full probative force, and then discuss its legal effect. They propound a theory of the case, or perhaps two theories, favorable to themselves, and then seek to sustain those theories by marshaling all the evidence in the record which can be utilized for that purpose, and by discounting all the evidence which stands in their way. The court does not propose to recite or to debate the evidence. Accepting that which was favorable to Thomas, the judgment of the district court was abundantly sustained.
With Thomas’ right to the land on which the Johnson dike stood, and consequent right to abate the dike, disposed of, the remaining question was whether or not the east-and-west dike on the north side of the Thomas land caused water to be accumulated and cast in volume across the Wilson land and upon the Johnson land, to Johnson’s injury. The petition alleged that the surface water on the Thomas land drained toward the north, the dike on the north obstructed its natural flow, it was diverted toward the east, and it debouched on Johnson’s land. The answer alleged that the Thomas land drained toward the east, and that the dike, wrongfully erected by Johnson, obstructed the natural flow of the water and caused it to accumulate on the Thomas land. This made an issue of fact with respect to what course water on the Thomas land would take under the influence of gravity. By a system of drainage, consisting of township, road and private ditches and drains, substantially all water was excluded from the Thomas land except that which fell upon it. Sometimes, however, heavy rains would cause a road drain at the west of the Thomas land to overflow, and some water would reach the Thomas land from that source. Thomas testified that his land all slopes toward the east. Just a little of his land slopes toward the north, “but the fall is all east,” and water falling on his land runs east. He further testified that water overflowing from the road drain would go east. He has no ground on which water stands. There is a slope to it, and water naturally runs down to a low place on Johnson’s land which has been there for years. The dike built by Johnson backed water on Thomas’ land and held it there. D. F. Ramer, who displayed familiarity with the situation, testified that the Thomas land drains “a little to the east, just the same as all the others.” The county surveyor testified that the only drainage of the land is toward the east, that is, in an easterly direction; that water falling on the forty-acre tract north of the Thomas dike would run toward the southeast — more east than south; that water falling on the Thomas land south of his dike would run east, and a little north; and that the Johnson and Wilson tracts lie east of the Thomas land and are lower than the Thomas land.
The testimony just recited is clearly sufficient to sustain the judgment. Conceding that some portion of the water on the Thomas land would flow a little north in its general easterly course, and so be restrained by the Thomas Dike, there was no evidence from which the court could estimate or apportion the quantity or determine the effect on Johnson’s land.
The judgment of the district court is affirmed. | [
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Per Curiam:
We are entirely satisfied with the opinion of the court of appeals on the questions therein discussed. The note was properly taxable at the residence of the plaintiff, and 'he was the person properly chargeable with taxes on it. On the general subject of the situs of credits for the purposes of taxation see Kingman Co. v. Leonard, 57 Kan. 531, 46 Pac. 960. The other questions argued in the brief for the plaintiff fall within the rules declared in Life Association v. Hill, 51 Kan. 636, 33 Pac. 300.
The judgment is affirmed. | [
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Per Curiam:
In a petition for a rehearing filed by the plaintiff it is urged that the court was mistaken in stating in the former opinion that none of the parties had appeared or filed briefs except the appellant. It is. said that the plaintiff “entered his appearance” in this court and filed d disclaimer. All that was meant by the statement in the opinion was that the court had received no assistance in the way of briefs or arguments by any of the parties except the appellant. Since the plaintiff’s disclaimer shows he has no interest in the controversy here he has no right to a rehearing. He makes the further point that he relied upon the rule, frequently declared, that this court will refuse to entertain an appeal when it appears thht the judgment below has been paid. That rule has no possible application in this case, because the judgment which plaintiff’s disclaimer shows has been paid is not the judgment appealed.from. As the opinion stated, the court below rendered several judgments, one, which has been paid, in favor of plaintiff and against the county; another in favor of the county and against the appellant, the board of education of the city of Iola. It also rendered judgment in favor of school district No. 9, But the judgment appealed from, and which was reversed, was the one in favor of the county and against the board of education. Since plaintiff’s judgment has been paid, he, of course, has no interest in the appeal, and his petition for a rehearing is denied.
. For the same reasons a petition for a rehearing filed by school district No. 9 is denied, since the school district had no interest in the judgment appealed from.' | [
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OPINION DENYING A REHEARING.
Per Curiam:
It is complained that the opinion fails-to give due consideration to alleged errors in overruling defendant’s motion for a new trial. Affidavits were presented showing that, during the closing argument by counsel for the prosecution, and at other times during the trial, there was applause by the spectators, indicating a feeling against defendant, and that this prejudiced the jury against him. The record shows that counsel for the defendant objected but once to these occurrences, and that the court admonished the spectators to refrain from future demonstrations, and further admonished the jury to disregard them. Criminal trials' are usually public, and the control of matters of this kind is left necessarily to the discretion of the trial court. That court heard the evidence and decided that nothing occurréd at the trial which was so prejudicial to defendant as to justify setting aside the verdict, and there is nothing in the record to indicate error or abuse of discretion in the refusal to grant a new trial. This claim of error was intended to be disposed of in the former opinion by the statement that the trial court had not abused its discretion in any of the instances of which the defendant complains.
Another claim of error was not touched on in the opinion, and is thought to deserve special comment. It relates to the exclusion of the testimony of Con Wasson concerning what he saw when he passed the railroad bridge on his way to town. This was properly excluded for the reason that the matters sought to be brought out were not communicated to defendant prior to the homicide.
The affirmance of the judgment and the former opinion will be adhered to. | [
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The opinion of the court was delivered by
Mason, J.:
A real-estate mortgage was foreclosed and the property was sold at sheriff’s sale, on June 16, 1913, for $5800, subject to redemption under the statute within eighteen months. On December 11, 1914, the representative of the holder of the right to redeem deposited with the clerk of the court for the purpose of effecting redemption the sum of $6302.66, in addition to the accrued costs. This, deposit was less than the required' amount because the interest was computed at six per cent instead of seven, which was the rate named in the mortgage, and also because a mistake of several dollars was made in the computation on that basis. On December 30, 1914, a further sum of $100.64 was deposited with the clerk in an effort to complete the required amount on the seven per cent basis. This additional deposit was made two weeks after the expiration of eighteen months from the day of sale, and was about $21 less than enough to make the total deposit equal to the principal and interest up to that time. On January 2, 1915, the sheriff executed a deed to the purchaser, the National Supply Company, and on January 15, 1915, an additional sheriff’s deed was executed. On January 9, 1915, the supply company executed a warranty deed to the property to 13. J. Lambert, who on February 12, 1915, conveyed a half interest to Charles R. Clapp, trustee. Later Charles A. Loomis .acquired the interest of the former holder of the right of redemption and brought an action to cancel the sheriff’s deeds and subsequent conveyances on the ground that an effort to redeem had been made in good faith within the time allowed by the statute, and that the circumstances were such that the failure to deposit the correct amount should not be deemed to have worked a forfeiture of the right. Judgment was rendered for the plaintiff, the court however requiring him to pay $25 additional to make up for the prior shortage. The defendants appeal.
1. In Stewart v. Park College, 68 Kan. 465, 75 Pac. 491, it was held that unsuccessful attempts to meet the holder of the certificate of sale, for the purpose of paying him the redemption money, did not amount to an .effort to comply with the statute, and were not sufficient to prevent the loss of the right to redeem with the expiration of the- eighteen months. While the mode of redemption is fixed by the statute, in exceptional cases the courts have relieved parties from strict compliance with the statutory rule, even to the extent of enlarging the time limit. (Quinton v. Adams, 87 Kan. 112, 123 Pac. 740.) Here the. attempt to redeem was made by one of the receivers of the owner of the right of redemption. He asked the clerk of the court to let him know the amount required to redeem. The clerk indicated that he was in doubt whether the interest should be figured at six or seven per cent, but after consideration and inquiry said he understood it should be six per cent, and made the computation on that basis stating the amount to the receiver, who paid it. The interest should have been figured at the contract rate of seven per cent. (Clark v. Nichols, 79 Kan. 612, 100 Pac. 626.) In behalf of the defendants it is argued that the mistake made was one of law, that the receiver had no right to rely upon the judgment of the clerk in the matter, and was therefore guilty of such negligence as to prevent a court of equity from relieving him from the consequences of his error. It is true that the receiver was not entitled to rely absolutely on the statement of the clerk, and might, in the exercise of a sufficient degree of diligence, have informed himself from the record of the exact amount required to redeem. But “the statute very properly provides for redemption by payment to the clerk of the court, who acts as an officer of the law and not as the agent of any party in interest” (Hess v. Conway, 92 Kan. 787, 793,142 Pac. 253), and in applying to him for information as-to the necessary amount, and in making payment thereof, the receiver gave abundant evidence of a purpose in good faith to do' whatever the law required to effect a valid redemption. Conceding that the highest degree of diligence was not shown, and that the mistake made resulted from a misunderstanding of the statute, a court of equity might well in the interest of justice give relief against so severe a penalty as the forfeiture of all interest in the property; especially in view of -the facts that the holder of the certificate of purchase suffered no possible injury beyond a slight delay in receiving the money, and that a readiness to make good the shortage was shown as soon as attention was called to the matter. The deficiency in the second payment, resulting from miscalculation, was' upon the same grounds not; a bar to an order allowing the redemption. It is suggested that the final payment of $25 was slightly less than it should have been, but this does not appear to have been brought to the- attention of the trial court. We think the conclusions stated are sound on principle, because they are necessary to prevent a strict adherence to the naked letter of the statute being unnecessarily made the means of doing a serious injustice. They also find support in decisions elsewhere. In Moore v. Bishop, 20 Ky. Law Rep. 1622, 49 S. W. 957, a redemption was allowed upon the payment of $9 additional after the time limit had expired, the sum previously deposited with the clerk having through some mistake lacked that much of the required amount. In Wakefield v. Rotherham et al., 67 Iowa, 444, the redemptioner paid within due time the amount which the clerk told him was necessary, but which by the clerk’s error-in computation was $6 less than it should have been. He was allowed to complete the redemption after the expiration of the statutory period. There the county was the holder of the certificate of purchase, but that circumstance does not appear to have affected the decision, the grounds of which appear from this excerpt from the opinion :
“It is certainly true that plaintiff could redeem the land from the sale only by paying to the clerk the amount at which the county bought it in, with ten per cent interest thereon from the date of the sale to' the date of the redemption; and it will be conceded that it was his business to determine what that amount was, and that the clerk was not charged with the duty of ascertaining or determining it, in the sense that his determination of it would be conclusive, of the rights of the parties. It does not follow, however, that plaintiff is not entitled to relief against the mistake which occurred in the computation of the amount. The payment was required to be made to the clerk, and he is the custodian of the record of the sale. This record would ordinarily have to be examined in determining the amount which must be paid to effect a redemption.
“Plaintiff went to the clerk’s office for the purpose of ascertaining this amount and of paying it to the clerk. In accepting the statement of the clerk as to the amount he did simply what the majority of ordinarily prudent men would have done under like circumstances. He was guilty of no negligence in the matter. He paid the amount which he honestly' believed was sufficient to make the redemption. His intention was to redeem the property, and he left the office believing that he had effected a redemption, and he knew nothing to the contrary until after the expiration of the year within which, by the provisions of the statute, the right to redeem might be exercised. The right of redemption is a valuable one, and although statutory, it is favored by the law, and to hold that it was defeated by a trival mistake like the one in question would be to ignore the spirit of the statute which created it. We think the district court rightly held that under the facts of the case the redemption might be completed after the expiration of the year allowed by statute.” (p. 447.)
That decision has the greater force from the fact that it was rendered before the enactment of the Kansas redemption law, which was modeled upon that of Iowa. The following cases, although not directly in point, have some tendency in the same direction: Kofoed v. Gordon, 122 Cal. 314; Stephenson v. Kilpatrick, 166 Mo. 262; Kopper v. Dyer, 59 Vt. 477.
2. The contention is made that Lambert is protected as an innocent purchaser of the land. If a complete redemption had been effected by a deposit of the proper sum with the clerk, the sheriff could not, by making a deed to the purchaser, vest him with the power of conveying a good title to a third person. A subsequent grantee would be chargee] with notice of the redemption. Here a redemption had been attempted, but not fully carried out. It was partial and incomplete, but it was treated by the clerk as effective, and his record showed what had been done, and was sufficient to charge buyers of the land with the claims of the redemptioner.
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a promissory note. The defendant claimed a credit which was not allowed by the jury, but which was allowed by the court when judgment was rendered. The plaintiff appeals.
The defendant was a member of a mercantile firm at Haviland, Kan. In March, 1911, he sold his interest in the firm. Among the assets of the firm were a large number of notes and accounts, which, under the contract of sale, he was to assist in collecting. In July, 1911, he went to Los Angeles, Cal., pretended to organize a corporation there known as the AntonMyerwich Company, and assigned the notes and accounts to the dummy corporation. He then transmitted the notes and accounts to a bank in Wichita, Kan., which undertook to collect them. Proceeds of collections were remitted by draft to the Anton-Myerwich Company. The defendant’s brother, Leo Girardey, who was the plaintiff’s husband, resided in Los Angeles. He participated in the sham corporation scheme, and received the drafts sent to the Anton-Myerwich Company, which had no capital stock, no directors, no officers, and no place of business except a vacant room without a sign on the door. Leo Girardey cashed the drafts and deposited the proceeds to his personal account in a Los Angeles bank. The Anton-Myerwich Company was invented in July, 1911. In August, 1911, Leo Girardey received and cashed drafts payable to the Anton-Myerwich Company to the amount of $6844, and received a draft for $1000 direct from his brother. .Out of these receipts Leo Girardey sent a total sum of $3000 to three of Victor Girardey’s relatives in Texas, in obedience to Vic tor’s directions. In December, 1911, and before Christmas, the plaintiff purchased a mortgage for $3750 on valuable property in Los Angeles. Two thousand dollars of the money was furnished by Leo, out of the money he had received in the manner described. The plaintiff claimed her husband owed her much money, and testified as follows:
“Q. Did you mean to say that you got a part of that money from Leo? A. He gave me that money. He gave me that money. He paid me back money that he had borrowed from me.
“Q. Now when you answered that $2000 of this money was money that Leo got from Vie, did you mean that it was money that Leo got from Vic or that Leo got from the Anton-Myerwich Company which he had. organized? A. Well, that was it.
“Q. Well, explain right here what you did mean — from Vic or from the Anton-Myerwich Company? A. I mean from the Anton-Myerwich Company, the money that had been sent him to transact the business, from the Anton-Myerwich Company, which is the same thing as Vic, I suppose, because he was the whole company.
“Q. Then you did n’t mean Victor had sent Leo that money and Leo handed it to you? A. No, sir; it was from the Anton-Myerwich Company he got the money. He toqk the money out because he was managing the business, and he paid himself. When he was paying all this other money, he saw there was no money going to be left, I suppose, and he paid himself and paid me — he had the graciousness to pay me two thousand dollars of the thousands of dollars he owed me.
“Q. He gave you two thousand dollars of money he had got from Vic and told you it was his? A. Told me it was his money, and it was two thousand dollars. He wanted me to buy this property and I says I have n’t got the money. He says I can help you out with two thousand dollars; I have worked for Vic for this long time and I haven’t got a cent’s pay; he is checking out all this money to these people, and I am going to see where I get my money as I have done all this work for him and I must be paid, and he paid himself I suppose, and he gave it to me, paid me back for the’moiiey that he had gotten from me, and that he used in the interest of Vic..
“Q. Well, would you now, then, in the light of my questions, would you now say that two thousand dollars of the money that went into the purchase of the Flint property came from Victor Girardey through Leo, or did it come from the Anton-Myerwich into Leo’s hands? A. It came from the Anton-Myerwich Company, because that was the money. It was all sent out to the Anton-Myerwich Company, and that is the only way he had of getting it, through transacting that business and paying himself.”
In January, 1912, the plaintiff sent for Victor and he went to Los Angeles. The plaintiff testified as follows:
“Q. Now, Mrs. Girardey, did Victor come out to Los Angeles to your house in January, 1912? A. Yes.
“Q. You sent for him? A. Yes. My husband was not attending to business. He was drinking.
“Q. Who was drinking? A.' My husband; and I was'interested in Vic, to know that his business was being attended to. . ... Vic’s letters would come and Leo would come in and would not look at them; just throw, them down, and I would pick them up and read them, and I found that there was business that ought to be attended to, I thought.
Q. Had you bought the Flint property? Had you bought the Flint property before Victor came? A. The $3700.
“Q. You bought that before Victor came? A. Before Victor came.”
On the occasion of this visit to Los Angeles the defendant asked credit for this $2000. The plaintiff’s version of the conversation follows:
“Q. Did Victor ever ask you to give him credit for two thousand dollars? A. Yes.
■ “Q. Now, where was he when he asked you that? A. In my room— in my apartments at the Knickerbocker Hotel.
“Q. In Los Angeles? A. Yes.
“Q. What reply did you make? A. I told him I would give h'im a receipt when he paid my money, when he paid me what he owed me. He wanted a receipt for two thousand dollars which Leo, I suppose, owed him; I don’t know; but then, anyway, he wanted me to give him a receipt for two thousand dollars which I had not received.
“Q. What reason did he give for demanding that you receipt him or credit him with two thousand dollars at that time? A. Well, he said that there was two thousand dollars unaccounted for with Leo.”
The defendant testified as follows:
“Q. You never had any settlement, did you? A. Sure we had a settlement.
“Q. What kind of a settlement? A. We had a settlement in 1912, settlement in 1912 when I went out to California, and that is when they took this money and was accounting for it . . . and when it got over twenty-eight or twenty-nine hundred dollars Carrie spoke up and said it was not twenty-five hundred they took for this lot, and Leo told her it was, and then they went on with some other figures, and then she turned around and said that there was not but two thousand taken for this lot; . . . and then I told her to give me a receipt for the two thousand dollars, and she said her word was as good as mine and she would not give me a receipt at all; she would not give me anything.”
The jury returned the following special findings of fact:
“12. Did not the plaintiff herein, Carrie W. Girardey, know that Leo Girardey had received from Victor F. Girardey a large sum of money after the execution óf the note and mortgage sued on herein? A. She did know.
“13. Did she not receive the benefit of a part of this money? A. She did, but not as a payment on this $5000 note, but as earnings of Leo Girardey.
“14. If you answer the last question affirmatively, then state the amount thereof. A. $2000.”
The court gave the defendant credit for $2000, with interest from January 1, 1912, and the assignment of error is that the court sustained the defendant’s motion for the credit. The plaintiff’s argument is that the jury’s voluntary statement annexed to the answer to question 13, “but not as a payment on this $5000 note, but as earnings of Leo Girardey,” was a finding that the sum of $2000 received by the plaintiff was in fact earned by Leo and belonged to Leo; that this voluntary finding of the jury is consistent with the general verdict; and that it could not in effect be set aside and the amount of the general verdict reduced without giving the plaintiff the option of a new trial.
The plaintiff is foreclosed from making the contention just stated. The question whether or not Leo had earned $2000 ■by working for Victor, which he had the right to withdraw from the funds in his hands, was not submitted to the jury. On the other hand, the court instructed the jury as follows:
“You are instructed that if you find that Leo Girardey paid to the plaintiff the sum of $2000 from money received by the Anton-Myerwich Company, which in fact belonged to Victor Girardey, to her knowledge, in payment of money that Leo Girardey had borrowed from the plaintiff, then the defendants Victor P. Girardey and Hattie C. Girardey are entitled to a credit for such sum.”
The plaintiff submitted to this instruction. She did not complain of it in any way to the district court, offered no instruction embodying a different principle, does not complain of the instruction in this court, and it became and is the law of the case. Besides this, it is good law.
The plaintiff’s version of the transaction between herself and' her husband amounts to this: Leo had in his possession a bag of money which belonged to Victor, and which Carrie knew belonged to Victor. In Carrie’s presence Leo put his right hand into the bag a,nd took out $2000. The money was Victor’s. Leo put the $2000 into his left hand and said, I pay myself. Then the money was his. With his left hand he gave the money to Carrie and said, I pay you. Thgn the money was hers. The law does not countenance such a proceeding. If Victor had not been indebted to Carrie he could have recovered the money. Being indebted to her, he. was entitled to have it credited on his note.
The legal principle involved is a derivation from the ancient moral principle that a man can not serve two masters. The first duty of an agent is loyalty to his principal, whom he must serve with integrity and fidelity. The agent antagonizes his principal when he undertakes to act for his principal and for himself in the same transaction.. Just what physical, mental and moral services Leo rendered in fabricating the AntonMyerwich Company the evidence does not disclose. He never had possession of a single note or account and had nothing whatever to do with the collection of any note or account. He received several drafts, deposited them to his own credit, and made a few remittances. His wife told how he handled the Anton-Myerwich Company mail. He had no express contract for compensation. There is no evidence in the record that his services were reasonably worth $2000 or any other sum. Conceding that he was “employed,” he “worked” from July until in December. He then decided his principal owed him for his services about twenty-five per cent of the money he had received. The decision was coincident with a desirable bargain presented to his wife. He executed the decision by giving the money to his wife to pay his own debt. She was cognizant of all the facts.
As long ago as 1830 the supreme court of judicature of New Hampshire stated the principle involved as follows:
“When an agent is employed to> receive money for his principal, he can not appropriate the money received to pay what may be due to him from the principal, without the consent of the latter.” (Morse v. Woods, 5 N. H. 297, syl. ¶ 2.)
In the case of Clark v. Lee, 14 Iowa, 425, decided in 1862, an agent holding a power of attorney relating to land, conveyed a portion of the property to his wife, to secure himself for advancements made in connection with the trust. The court said:
“Where a trustee conveys a portion of the trust property to his own wife, for his own use and benefit, a court of equity will not permit him to hold the property so conveyed as a security for moneys advanced for the cestui que trust in the execution of the trust.” (Syl.)
In the case of Englehart v. Peoria Plow Co., 21 Neb. 41, decided in 1887, the agent of a harvesting machine company took a note for the price of a machine which he sold. He indorsed the note, took it himself for commissions he had earned, and passed it to another. The court held that the title of the machine company to the note was not devested, and deemed it sufficient to quote as authority a passage from the writings of the accomplished Story, which is worthy of reproduction here:
“In this connection, also, it seems proper to state another rule, in regard to the duties of agents, which is of general application, and that is, that in matters touching the agency, agents can not act, so as to bind their principals, where they have an adverse interest in themselves. This rule is founded upon the plain and obvious consideration, that the principal bargains, in the employment, for the exercise of the disinterested skill, diligence, and zeal of the agent, for his own exclusive benefit. It is a confidence necessarily reposed in the agent, that he will act- with a sole regard to the interests of his principal, as far as he lawfully may; and, even if impartiality could possibly be presumed on the part of an agent, where his own interests were concerned, that is not what the principal bargains for; and, in many cases, it is the very last thing which would advance his interests. ... If, then, the seller were permitted, as the agent of another, to become the purchaser, his duty to his principal and his own interest would stand in direct opposition to each other; and thus a temptation, perhaps, in many cases, too strong for resistance by men of flexible morals, or hackneyed in the common devices of worldly business, would be held out, which would 'betray them into gross misconduct, .and even into crime. It is to interpose a preventive check against such temptations and seductions, that a positive prohibition has been found to be the soundest policy, encouraged by the purest .precepts of Christianity. This doctrine is well settled at law; but it is acted upon in 'courts of equity to a much larger extent, not only in cases of persons, confidentially intrusted with the management of the property of others; but in cases of other relations of a confidential nature, involving the rights and interests of the employer.” (Story on Agency, 9th ed., § 210.)
Further citation of authority is unnecessary.
There is this difference between passing title to money and passing title to other kinds of property.- Money lacks means of identification. But when it is identified by knowledge of the taker of the source from which it comes there is no difference.
In this instance, no right of an agent to retain money by virtue of a lien for compensation, or right to deliver possession, lawful to the extent of a lien for compensation, was involved. The agent took the law into his own hands, determined that he had a right to compensation, determined the amount of his compensation, determined the date on which compensation was payable, paid himself, and with the same money paid a personal debt to another who was apprised of what 'he was doing. The recipient of the fund was privy to this flagrant breach of trust and can not profit by it under any recognized principle of law or equity. The breach of trust was not condoned by ratification, because the evidence of the plaintiff herself was .that the defendant demanded credit for the money which enabled her to buy the mortgage on the Flint property.
The instruction to the jury which has been quoted applied the principles which have just-been discussed to the evidence which had been adduced. But, whether justified or not, the instruction was and is accepted as the law of the case. The instruction related to the credit of a specified sum of money on the plaintiff’s claim. The jury had no authority to evade it or to disregard it, and the court had authority to allow the credit by virtue of the special findings properly returned, which controlled the general verdict.
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OPINION ON REHEARING.
The opinion of the court was delivered by
Marshall, J.:
An opinion in these actions is reported in
97 Kan. 619, 156 Pac. 716. A rehearing was granted. Both, sides have again argued the cause orally, and have filed additional briefs and cited more authorities. These and other authorities have been examined. We are satisfied with the conclusions reached in the original opinion.
Haskell Co. v. Postal Telegraph-Cable Co., 114 Maine, 277, decided by the supréme court of Maine on December 28, 1915, supports the conclusions reached by this court.
In Boyce v. Western Union Telegraph Co. (Va.) 89 S. E. 106, decided June 8, 1916, a case arising over an interstate telegram containing substantially the same conditions as the telegram in the present cases, the supreme court of Virginia said:
“We áre, however, of opinion that the weight of authority and the better reason sustain the conclusion we have reached that the defendant company is entitled to the protection afforded it by the stipulation in question, and is only liable to the plaintiff for the cost of transmitting the unrepeated message sent by him.” (p. 109.)
See, also, Gardner v. Western Union Telegraph Co., 281 Fed. 405, decided February 28, 1916.
We adhere to and confirm our former opinion. | [
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The opinion of the court was delivered by
Porter, J.:
The action was one, in the language of the learned judge of the district court, “to recover the value of an eighteen-million-year-old lizard.” The petition made the state board of administration of educational institutions the sole de fendant, and was filed June 9, 1914. On November 2, 1914, plaintiff added as defendants E. W. Hoch, Ed T. Hackney, and Mrs. Cora Lewis, members of the state board of administration, and Frank Strong and Rodney A. Elward, trustees of the board of regents of the state university. A demurrer to the petition' was sustained; plaintiff elected to stand upon the petition and appeals. •
The petition charges that in July, 1911, the board of regents of the state university, by its assistant curator of mammal's, wrongfully and without plaintiff’s knowledge or consent, entered upon his farm in Wallace county and rempved therefrom a large and valuable fossil, the property of plaintiff, and wrongfully converted it to the use and benefit of the board of regents and its successors, depositing the fossil in the museum of the university for. exhibition and scientific purposes; that the fossil was of the value of $2500 and plaintiff had received no compensation therefor. It is alleged that the board of administration is a board created by law for the government, management and control of the university of Kansas, having possession, custody and control of the property of' the university, and authority for the disbursement of all funds appropriated for the same, and is the successor of the board of regents, subrogated to the rights, duties and responsibilities of the board of regents, and subject to. its obligations and liable for its debts and contracts. The board of regents was a corporation having the same powers and responsibilities as the board of administration. Prior to July 1, 1913, when it was dissolved, the board of regents had as directors Frank Strong and Rodney A. Elward, who were ex officio its trustees.
1. It is the defendants’ contention that both the original and the amended petition were subject to demurrer because, if they stated a cause of action at all, it was barred by the statute of limitations; that the action is one sounding in tort and therefore barred by the two-year statute (Civ. Code, § 17, subdiv. 3). On the.other hand the plaintiff claims the right to waive the tort and recover upon an implied promise to pay what the fossil is worth. We think,- if either petition stated a cause of action against defendants, it must be held that sufficient facts were stated to authorize plaintiff to waive the tort and rely upon an implied promise to pay the value of the prop erty converted. (Delaney v. Implement Co., 79 Kan. 126, 98 Pac. 781; Douglass v. Loftus, Adm’x, 85 Kan. 720, 119 Pac. 74, and authorities cited in the opinions.) In the Delaney case it was said:
“In determining whether a petition states a canse of action <3® contractu or ex delicto it must be considered in its entirety, but with special reference to' its prominent and leading allegations. Where the averments make it doubtful whether the action is on contract or in tort every intendment must be made in favor of construing it as an action on contract.” (Syl. ¶ 1.)
The two-year statute of limitations was therefore no bar to the action.
2. Defendants further contend that the three-year statute (Civ. Code, §17, subdiv. 2), barring actions on contracts not in writing, had run when the petition was amended to make the members of the board of regents defendants. Plaintiff ■seeks to avoid the effect of this statute upon the theory that the original petition stated a cause of action on an implied promise, that the amendment adding the new parties relates back to the commencement of the action, and that the statute was tolled during the time the action was pending. This contention is not sound. Conceding for the purpose of the argument that the petition stated facts which disclosed a cause of action against the members of the board of regents, they were not made defendants until more than three years had expired from the date when the cause of action accrued. The filing of a petition against A, reciting facts which would authorize an action to be maintained against B, will not toll the statute as to B, if he is not made a defendant until after the statute has run. Until the amended petition added the members of the board as defendants no action seeking to establish liability against them was pending, and when the amended petition was filed the bar of the statute had fallen. (Powers v. Lumber Co., 75 Kan. 687, 90 Pac. 254.)
3. The principal question raised by the appeal is whether the action can be maintained against the board of administration, the original defendant. Prior to 1913 the state university was managed and controlled by a board of regents, which was a body corporate created by the legislature. It went out of existence when the act of 1913 placed the state educational institutions in control of the state board of administration, which was not made a body corporate. The act provided for the appointment of three members of the board, and, among other things, provided that the board shall manage and control the property of the educational institutions'named, including the state university, and conferred upon the board power “to execute trusts or other obligations now or hereafter committed to any of the said institutions; to direct the expenditure of all appropriations the legislature shall from time to time make to said institutions, and the expenditure or investment of any other moneys that may accrue to said institutions by legacy, donations, or the proceeds of fees imposed by authority of law; and to do such other acts as are necessary and proper for the execution of the powers and duties conferred on them by law.” (Gen. Stat. 1915, § 9710.) The power “to execute trusts or other obligations now or hereafter committed to any of the said institutions” can not be construed so as to make either the board of administration or its. members liable for a tort committed by the board of regents; and the plaintiff can not by waiving the tort make either the board or its members liable upon the theory of an implied promise.
Moreover, the university is an agency of the state, created for educational purposes. It is managed by another agency of the state, created to administer its affairs and to disburse such appropriations as the legislature may provide. The board is not given corporate powers, and in the absence of express provisions authorizing the board to be sued, the action can not be maintained. Other reasons might be mentioned which sustain the trial court’s ruling, but these are sufficient.
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The opinion of the court was delivered by
Burch, J.:
The action was one for the interpretation of a will and for possession and partition of real estate affected by the will. The plaintiff was defeated and appeals.
The will was the will of William Flanner. It was executed in September, 1886, and the material portions follow:
“Item 2nd: I will and bequeath all my personal property that may remain after paying all my just debts and the -expenses of administration and funeral expenses absolutely to my beloved wife Elizabeth Ross Flanner to be used by her as she may desire.
“Item '3rd: I hereby desire and require that all my real estate be kept intact and not to be sold but to descend to my children and their bodily heirs, each to havé share and share alike in the distribution of said real estate to my grandchildren.
“Item 4th: I further will and bequeath unto my wife, Elizabeth Ross Flanner, all the proceeds, rents and profits from said real estate to be used by her and for her just as she may desire during her natural life time.
“Item 5th: I will and bequeath to my two sons Edwin Forrest Flanner and Watson Beeson Flanner, all the use, rents, profits and proceeds of my home farm being the southwest quarter of section 16, township 13, range 25, after the death of my beloved wife, and to have the same during their natural life and further to my son Halley Ross Flanner all the proceeds, rents and profits (after the death of my wife) to the south half of the southeast quartér of section 8, township 13, range 25, and to have the same during his life time.
“Item 6th:' I desire that if I shall own at the time of my death any town property or other land, I hereby empower my executor hereinafter named to sell and convey the same to the purchaser thereof and the proceeds received from the sale of said property to be equally divided between my children.”
William Flanner died in the year 1889, leaving a widow, Elizabeth Ross Flanner, three sons, , Watson Beeson Flanner, Halley Ross Flanner, and Edwin "'Forrest Flanner, and a daughter, Ida K. Bryant. The will was probated and in due time the estate was settled and the executors, were discharged. The widow took possession of the real estate under the fourth item of the will and occupied it until her death in 1909. Possession was then taken by the persons named in the fifth item of the will and in accordance with its provisions. Edwin Forrest Flanner died intestate in 1913, leaving no widow and no children. His brothers have since continued in possession of their respective tracts. The living sons and the daughter, Ida K. Bryant, have children, grandchildren of the testator. The testator named all of his children in his will except his daughter, Ida K. Bryant. In the year 1914 she concluded that she and her brothers had been given estates tail by the third item of the will. To bar reversion, she made a conveyance to Bessie E. Bryant, who brings the action. The district court made the following finding;
“I find that the intention of William Flanner was to convey, first, a life estate in the land in question to Elizabeth Ross Flanner, his widow, and after her death a life estate in the eighty acres described to Halley Ross Flanner, and a life estate in the quarter section described to Watson Beeson Flanner and Edwin Forrest Flanner jointly, and that the said lands should not be sold until the termination of the life tenancies provided for in the will, and that at the termination of the life tenancies the land should pass share and share alike to the grandchildren of William Flanner.”
The doubt respecting the testator’s intention is created by the peculiar phraseology of the third item of the will. The plaintiff fixes attention on the words “descend to my children and their bodily heirs,” and eliminates everything else pertaining to the devise of real estate by an argument the trend of which is indicated by the following extracts from her brief: at all, changed’ the holders from tenants in common to holders in severalty.
“It is clear that this clause gave an estate tail to all of the children, and that Mrs. Bryant could convey a fee simple title which would bar ‘herself, her issue, born and unborn, and her father’s reversion.’ (Ewing v. Nesbitt, 88 Kan. 708, 717, 129 Pac. 1131.) ... The clause ‘be kept intact and not be sold’ being unlimited, is of course, void.
“The last clause of item three ‘each to have share and share alike in the distribution of said real estate to my grandchildren’ contains no words of devise and merely relates to the shares each shall take. Mr. Flanner evidently misunderstood the legal effect of his words ‘descend to my children and their bodily heirs.’ To whom the word ‘each’ refers, whether his own children or his grandchildren, or to both, is a matter purely of conjecture; the will throws no light upon it.
“The whole clause is, in fact, meaningless when taken in connection with what precedes it. The contention of defendants that this clause means and is a bequest to the grandchildren is not tenable. There are no words of bequest in this last clause. Defendants’ construction is flatly contradictory to the phrase ‘descend to my children and their bodily heirs.’
“Since item three gave to his children, under Ewing v. Nesbitt, supra, such title .as could be conveyed, the subsequent attempt to reduce the title by giving a life estate to his widow in item four, and to his sons in item fifth,.is void. (McNutt v. McComb, 61 Kan. 25, 58 Pae. 965.) . . . The language of the last clause ‘in the distribution of said real estate to my grandchildren’ in its legal effect did not change the title, but if operative
“But we hold that this last clause is void for uncertainty.”
The argument applies in a logical way declared principles of interpretation, and appears to be flawless. But the law relating to the interpretation of wills, and particularly the doctrine of the case of McNutt v. McComb, supra, would seem to be quite arbitrary if it required the court to suffer a single phrase of a single item of a will to dominate the whole instrument with such arrogance and intolerance. The testator said he desired and required that all his real estate should be kept intact and should not be sold. What did he intend? The plaintiff answers, candidly enough, with one word — void. The testator remembered his wife and devoted an entire item of the will to a provision for her benefit. What did he intend ? The plaintiff answers — void. The wife was to have all the proceeds, rents and profits of the real estate, to be used by her and for her, just as she might desire, during her natural life. After that the testator said he willed that two sons should have the home farm, and another son should have the other farm, during their lives. What did he intend? The plaintiff answers — void. The testator spoke about a distribution of his real estate to his grandchildren, and said something about each to have share and share alike. What did he intend? The plaintiff answers — void. So all there is left of three items of the will, disposing in fairly elaborate fashion of all the testator’s land, is the expression, “I hereby desire and require that all my real estate . . . descend to my children and their bodily heirs.” This expression standing alone, and accorded the technical meaning which the ancient common law attached to it, would give each of the testator’s children an estate tail, an estate seldom found in wills or deeds of Kansas real estate, and not very well understood except by lawyers skilled in the intricacies of the common law. The testator’s widow and son§, reading the will, did not so understand it, and the testator’s daughter apparently did not appreciate the potentiality of the words under consideration until after the decision by this court of the case of Ewing v. Nesbitt, 88 Kan. 708, 129 Pac. 1131. 'That case was decided nearly a quarter of a century aftér the testator’s death, and somehow the feeling can not be suppressed that the interpretation for which the plaintiff contends misses what the testator had in mind.
How shall we know what the testator intended, for that was his will ? There are 'rules and rules for the interpretation of wills. A history of these rules would disclose that they reflected the habits and types of mind of the various periods in which they were promulgated. Just as the human mind passed through a stage in which there could be no worship unless it conformed to a prescribed ritual, so the law and its administration passed through a stage of intense formalism. There Could be no right unless there was a writ which fitted it. The meaning of a deed was ascertained, not by all that might be found within the four corners, of the instrument,’ but by the ceremonial' procession of conventional clauses, and the same mental bias prevailed in the interpretation of wills. Much of this has been outgrown, and common sense methods are now more in favor. Certain rules, .as that a gift or devise in a will can not be cut.down by a subsequent provision, have less authority and are applied with greater discrimination than formerly. Other rules, as that the whole will should be considered and effect given to every part if consistent with a general purpose apparent from the entire instrument, are more depended on.
In the case of Ewing v. Nesbitt, supra, the will as a whole left no doubt that the testator used the words essential to the creation of an estate tail with full appreciation of their legal meaning and effect:
“The fourth paragraph reads as follows:
“ ‘Fourth: I will and bequeath to my daughter, Mary A. Nesbitt, nee Ewing, and to the heirs of her body, the south half ( ½ ) of the northwest quarter (¼) of section No. twenty-one (21), township thirteen (13), of range twenty-four (24), in Johnson county, Kansas.’
“Devises using the same language were made to the testator’s other children, four in number. Besides these the will contained four other devises, which were expressly stated to be ‘free and clear of all entailment,’ thus clearly indicating the intention of the testator to create estates tail by the phraseology employed in paragraph 4 and those like it.” (p. 708.)
In this case the context and the subsequent items of the will indicate that the words “descend to my children and their bodily heirs” were not expressive of such an intention, because if they were the remainder of the item in which they were embedded and the other items of the will were nugatory. Is there a consistent purpose discoverable from the will as a whole which will give effect to all the various parts? If the third item be read after the fifth item, there is little difficulty. Item four gave a life estate to the testator’s wife. Item five gave a remainder to his sons for their lives. Item three gave the remainder in fee to the testator’s grandchildren, who in the final distribution should have share and share alike. Bodily heirs of the testator’s children were the equivalent in his thought to grandchildren, and in giving the fee of the real estate to his grandchildren he made it “descend” to his children, and then to his grandchildren, intact and unalienated.
The finding of the district court is approved and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is a damage suit. The plaintiff issued a policy insuring the plate glass front of a building in Cherry- vale against breakage. In response to an application for gas by a tenant occupying the second floor of the building, the defendant’s employee turned on the gas by opening the wrong stop-box — a stop-box which connected with some old, defective and unused pipe leading into an adjacent building. The stop-box had been acquired with other property by the defendant from an older gas company. The service pipes from the stop-boxes to the abutting property belonged to the property owners. The gas released from the wrong stop-box found its way into the building having the plate glass front. The presence of gas was detected in that vicinity, and the defendant’s servant ignited it with a match while hunting in the basement of an adjoining building for the leak. This explosion blew out and smashed the plate, glass front. ■ The plaintiff paid the owner $150 for the loss covered by the insurance policy, and now seeks by subrogation to recoup from the gas company.
,The defendant’s demurrer to plaintiff’s petition was overruled. This is assigned as error.
A demurrer to plaintiff’s evidence was sustained. And this is assigned as error.
The defendant contends that the petition did not state a cause'of action, because the plate glass was destroyed by fire and the insurance policy provided:
4. “This insurance does not include and the company shall not be ' liable for—
“(a.)Any loss or damage resulting directly or indirectly from fire, whether on the premises described in the schedule or elsewhere.”
In L’Ecuyer v. Life & Accident Co., 97 Kan. 540, 155 Pac. 1088, it was held that a policy of insurance covering accident or death by the burning of a building while the assured was therein did not cover an accident caused by the explosion of a can of kerosene in a building while the assured was therein, although the explosion set fire to the building and did considerable damage. In that case the plaintiff did not wholly fail, but the amount of the recovery was governed by certain other accident features of the policy. In the opinion, it was said:
“Manifestly the decedent was out of the building before the fire had made any progress towards consuming any portion of the building, and it could not have been the burning of the building while he was therein which caused his death.” (p. 542.)
In United Life, Fire and Marine Ins, Co. v. Foote et al., 22 Ohio St. 340, it was held that where an explosive mixture of whisky vapor and atmosphere came in contact with a gas-jet, from which it ignited and exploded, and a fire ensued therefrom which destroyed the property, the loss was occasioned by the 'explosion. A similar case was Briggs et al v. N. A. and M. Ins. Co., 53 N. Y. 446. Another instructive case which discusses this general subject is reported in Transatlantic Fire Ins. Co. of Hamburg v. Dorsey, 56 Md. 70.
Under the familiar rule of insurance law, which attributes loss or injury to its proximate cause only, the pjate glass in this case was broken by the explosion of gas and not by fire. (Mitchell v. Potomac Insurance Co., 183 U. S. 42; Maryland Casualty Co. v. Edgar, 203 Fed. 656; Heuer v. North Western Nat. Ins. Co., of Mihoaukee, 144 Ill. 393; Vorse v. Jersey Plate Glass Ins. Co., 119 Iowa, 555; Boatman’s Fire & Marine Insurance Co. v. Parker, 23 Ohio St. 85; Wadsworth v. Canadian Railway Accident Ins. Co., 49 Can. Sup. Ct. 115, Ann. Cas. 1914C, 306, and Note. See, also, Gas Co. v. Carter, 65 Kan. 565, 568, 70 Pac. 635.)
Moreover, the insurance company was not required to quibble with the assured as to whether its policy fairly covered the breaking of the glass by the gas explosion, or whether the remoter cause, the lighting of the match, was a fire, and that the fire was the cause of the breaking of the glass. The insurance company had the right to pay, and it is subrogated to all the rights of its policyholder against the wrongdoer who released the gas which did the mischief. (Railroad Co. v. Insurance Co., 59 Kan. 432, 53 Pac. 459; St. Louis, &c., Railway v. Commercial Ins. Co., 139 U. S. 223,. 235; Railway Company v. Fire Association, 60 Ark. 325; British American Co. v. Colorado Co., 52 Colo. 589; Babcock v. Canadian Northern Rly. Co., 117 Minn. 434; Ætna Life Ins. Co. v. National Union Fire Ins. Co., 98 Neb. 446; Vance on Insurance, p. 422; 19 Cyc. 894.)
Turning now to plaintiff’s grievance — the sustaining of the demurrer to its evidence, we think this was error. While it may be that there was some infirmity or weakness in it which the record does not disclose, the allegations of the petition were sufficiently supported by competent evidence to require its submission to the jury. It was the duty of the gas com pany to know what it was about when it turned on the gas. It was negligence, we think — or at least the jury might think so — to turn on the gas at the wrong stop-box, and it seems that this negligence released the gas which caused the explosion and broke the glass which the plaintiff had insured and for which, having paid, it is entitled to recoupment against the wrongdoer. (20 Cyc. 1177.)
In McKenna v. Gas Co., 198 Pa. St. 31, the agent of a defendant gas company opened the high-pressure valves of another gas company which he mistook for the valves of his own company and the defendant was held liable, notwithstanding its proffered defense that the high-pressure valves and pipes of. its competitor were defective. The court said:
“Assuming that the Bridgewater Gas Company was negligent in the construction and maintenance of its lines, it does not exculpate the defendant company from its negligence. ... In the case at bar, Mc-'Kenna’s house would not have been wrecked notwithstanding the Bridge-water Gas Company’s defective appliances, had not Miller opened the valve in the by-pass. Without his negligence, therefore, it is too clear for argument that the plaintiff would not have sustained the injuries for which he sues in this action.” (p. 40. Sipple v. Gaslight Co)., 125 Mo. App. 81; Hartman, Appellant, v. Citizens Nat. Gas. Co., 210 Pa. St. 19; Barrickman v. Marion Oil Co., 45 W. Va. 634.)
In Gas Co. v. Carter, 65 Kan. 565, 70 Pac. 635, the plaintiff recovered a judgment against a gas company for the death-of plaintiff’s father by an explosion of gas which had escaped from a gas well through the negligence of the defendant company. The case merely recognized the well-known rule that one who uses for profit a dangerous agency, which science, care and attention can control, is bound to control it with due skill and care. These were wanting in the present case. It was shown that the right stop-box to turn the gas into this building was hidden beneath a brick in the sidewalk, and that the defendant, although the owner of the wrong stop-box by which the gas was turned on and which caused the damage, had given the matter so little attention that it did not know the /right stop-box from the wrong one. If public-service companies controlling such dangerous commodities as natural gas can escape the consequences of such carelessness, life and property will be subjected to hazard indeed. Clearly the facts ad duced in support of plaintiff’s cause of action required their presentation to a jury.
It is suggested by defendant that this case presents a splitting of causes of action, as the explosion damaged the floor of the building, and that this damage was not covered by the insurance policy, and has not yet been paid. Even so, that would not justify a demurrer to the plaintiff’s evidence. The plaintiff can not be entirely held off from asserting its right of action against the defendant until the statute of limitations completely bars a recovery because of some other possible claim for damages which may never be the subject of a lawsuit. While the defendant’s answer pleading this defense mentions these matters, it does not descend into particulars; and in any event such pleading can not be used to strengthen its demurrer to plaintiff’s evidence. If any such cause is pending it may be consolidated with this cause. If not, the parties may be impleaded herein. (Civ. Code, § 361; Insurance Co. v. Railway Co., 98 Kan. 344, 157 Pac. 1187.) Indeed it would be within the discretion of the trial court to order them brought in that the plaintiff may have justice without delay.
The judgment of the district court 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
Mason, J.:
In denying a petition for a rehearing in this case the court said:
“Under the statute providing that the property of an intestate, who is survived by neither spouse, issue nor parent, shall be disposed of in the same manner as if a parent had outlived him and died in its possession and ownership, property inherited by one son of a deceased father from another can not be subjected to the payment of indebtedness owed by the father to any one other than the deceased son.” (Malaney v. Cameron, ante, p. 424, syl., 161 Pac. 1182.)
The appellant asks leave to file an additional petition for a rehearing, which is tendered with the application,, and which is based chiefly upon the ground that the proposition quoted is in conflict with an earlier decision in which it was held that the share of land owned by an intestate, which would have descended to a son if he had been living, but which by reason of his death passed to the son’s widow, was taken by her subject to the claim of another heir against her husband’s estate. (Fletcher v. Wormington, 24 Kan. 259.) That case, however, while tending to support the general theory upon which the appellant relies, arose under a statute (since repealed) materially different from that here involved, relating to the rights of an heir who takes strictly by representation. The section particularly construed read:
“If any one of his [the intestate’s] children be dead, the heirs of such child shall inherit his share, in accordance with the rules herein prescribed, in the same manner as though such child had outlived his parent.” (Comp. Laws, 1879, ch. 33, § 19.)
Stress was laid upon the fact that the provision for the share of a deceased child being inherited by his heirs was followed by the words “in accordance with the rules herein prescribed.” The word “herein” was interpreted as meaning anywhere within the act, which, of course, included provisions making the property of a decedent liable for his debts, and the phrase quoted was treated as a limitation, imposing the payment of indebtedness as a condition, the court saying that, if the intention had been for the property to pass free from the debts of the deceased child, the legislature would have used some such expression as “absolutely and unconditionally” in place of “in accordance with the rules herein prescribed.” In a later opinion written by the same justice, in which the FletcherWormington case was cited, it was said of a statute substantially the same as that now under consideration:
“Of course the property could not pass from the son until after his death, and then only to some living person or persons, and to him or them directly and immediately. It could not pass to any deceased person or through any deceased person. It could not pass to or through the mother, for she was dead. The mother never had, and could not have any title to the property in controversy, either before or after her death, or before or after her son’s death, for she died before the son’s death; and she is mentioned only for the purpose of indicating or of fixing a rule for determining to whom the property of the son directly went when he died.” (Sarver v. Beal, 36 Kan. 555, 559, 13 Pac. 743.)
We regard the provision that the property of an intestate shall in certain cases be disposed of as though his parent had outlived him and died in its possession and ownership as relating to its devolution by the law of inheritance — as furnishing a rule for determining the intestate’s heirs. If the statute should be held to mean literally that the property is to be disposed of in all respects exactly as though a parent had died in its possession and ownership, then it would not go to the parent’s heirs, but to the beneficiaries of the residuary clause of his will, if there happened to be one, for that is the way in which it would have been disposed of if he had owned it at his-death. This court holds that property inherited under such a statute is chargeable with a debt owed to the intestate by the person by reason of whose prior death the recipient becomes the heir, although the majority of the courts which have passed upon the matter decline to go that far, even with respect to one taking expressly by representation. (Note, 47 L. R. A., n. s., 1026.) But we do not think the principle should be so extended as to make the inheritance liable for all the debts owed at the time of his death by the person- through whom the heir traces his relationship to the intestate.
The additional petition for a rehearing is allowed to be filed, but is denied. | [
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The opinion of the court was delivered by
Mason, J.:
John Jesch, the owner of a tract of farm land in Atchison county, rented it to G. H. Hutchison by a written lease for the term from March- 1, 1910, to March 1, 1912, which was at some time not shown extended to March 1, 1918. In the fall of 1912 Hutchison sowed eighty acres to wheat, and on December 20 of that year he executed to the Bank of Denton.a chattel mortgage on his interest in the crop, stated to be an undivided three-fifths. The crop was harvested by Jesch, the owner of the land. The bank sued him for the value of the tenant’s share (less the expenses of harvesting) claimed by it under its mortgage, and recovered a ‘judgment, from which he appeals.
The defendant maintains that as the lease contained no provision to the contrary the tenant’s interest in the property, including the crop, ceased absolutely on March 1, 1913. The plaintiff contends that the tenant was entitled to a share in the crop which he had sown, and that in any event the defendant is precluded by his conduct from asserting title to all of it.
1. The general law on the subject of the rights of the off-going tenant with respect to the waygoing crop is thus stated:
“At common law, where land is leased for a number of years, and consequently the period of its determination is fixed, and the lease is silent as to who shall bé entitled to the growing crops on the land at the end of the term, the outgoing tenant is not entitled to such crops. Where, however, the lease, expressly or by implication, recognizes the right of the tenant to sow in the last year of the term, the general rule is that he has a right to harvest the waygoing crop, where the lease is silent as to who is entitled thereto, and where there is an express agreement that' the tenant shall have the waygoing crop he is of course entitled thereto. So in several jurisdictions, by general custom, the tenant is entitled to the waygoing crop, even where such right is not stipulated in the lease.” (24 Cyc. 1069.)
In Delaware, New Jersey and Pennsylvania the common-law rule is held to have been modified by a general custom, of which the courts take notice, of permitting the tenant in some instances to harvest an annual crop sown before the expiration of his lease and maturing afterwards. (See cases cited in notes to the text quoted, and in Note, 9 Ann. Cas. 1139.) Elsewhere if such a custom exists it is given the same effect, but the party relying upon it is required to prove its existence as a part of his case. In the present instance no evidence was given of any local custom, and we can not say as a matter of law that the practice referred to obtains in this state.
2. If the lease, either expressly or by any fair implication to be drawn from its language in view of the surrounding circumstances, had indicated that it was the duty of the tenant to sow wheat each year, or even that the expectation of the parties was that he should do so, his right to harvest the crop might be readily inferred. But no showing was made of any special circumstances affecting the matter, and the contract contained nothing bearing upon the use to be made of the land beyond these provisions regarding the rent to be paid:
“Tenant to give landlord as rent, two-fifths of oats and wheat, and one-half of the corn, same to be delivered to the market free of charge; and two-fifths of all other crops.”
Where a farm is leased for a single year, from March to March, the naming of wheat as one of the crops the tenant might grow, and the fixing of the portion of it to be applied on the rent, could perhaps be regarded as indicating that he was expected to sow wheat, and to sow it in the fall, since spring sowing is so rare, and therefore that he was to have the right to harvest it after the lease had expired. But here that inference is not warranted because the contract was drawn for two years. The mere reference to wheat as one of the crops that the tenant might raise did not imply that it was to be grown each year, for it is consistent with an expectation that he would sow wheat in 1910 but not in 1911. He would not be warranted in sowing wheat in the fall preceding the expiration of the lease, merely because otherwise a part of the tract would remain for a time unproductive, for the landlord’s right to make such use of the land as he should see fit could only be restricted by his own consent, given expressly or by reasonable implication.
3. Evidence was introduced tending to show these facts, which the court must be deemed to have found: The tenant left the country before the maturity of the crop. In the forepart of June, 1913, the cashier of the bank met Jesch, the owner of the land, and made a demand on him for the wheat.' Jesch asked him if he was the man that was interested in the wheat crop, and he said he was. Jesch then said they would get along all right, and that he would expect him to pay the expenses. The cashier said he would do so. The cashier testified:
“He said I should help him get hands to thresh. . . . He was willing that I should have my part, which was three-fifths, less expenses. There was absolutely no dispute as to my having my interest.”
The plaintiff contends that by his conduct at this time the defendant was precluded from afterwards denying its claim. The defendant maintains that no estoppel could have resulted, because the plaintiff’s position was in no way changed for the worse by reason of anything that had been said. In order for the conversation narrated to operate as a bar to a subsequent denial of the plaintiff’s interest it is not necessary that there should have been a concurrence of all the elements of an estoppel, as the term is usually defined. “Whether the principle is described as equitable estoppel, qwsi-estoppel, waiver, ratification, election, or as a requirement of consistency in conduct, is not very important.” (Powers v. Scharling, 76 Kan. 855, 859, 92 Pac. 1099.) “The doctrine of equitable estoppel is frequently applied to transactions in which it is found that it would be unconscionable to permit a person to maintain a position inconsistent with one in which he has acquiesced.” (10 R. C. L. 694.) The courts properly look with favor upon a claim to a crop reasonably made by or under him who planted it. “If possible, the law allows the one who sows to reap.” (Smith v. Frantz, 59 Ind. App. 260, 270.) Here the defendant not only acquiesced in the bank’s assertion of an interest in the wheat, but also exacted an enforceable promise that it would pay the expenses. Upon this ground we sustain the decision of the trial court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
On August 11, 1913, the Wooden Hoop Silo Company made a contract to build a silo for J. P. Morris, for which he agreed to pay $225. After the completion of the silo he refused to pay the purchase price, and the silo company filed a mechanic’s lien. Subsequently it assigned the lien and claim to the appellee. On January 1, 1914, J. P. Morris died intestate, and this action to foreclose the lien was brought .against the administrators and heirs of his estate. •
An answer was filed which did not contain a general denial; it admitted the material statements of the petition, and in addition set up as a defense that the silo was not constructed according to the terms of the contract'; that instead of No. 1, four-inch flooring specified in the contract, defective car siding and also insufficient wooden hoops were used. It alleged that by reason of these defects the silo burst after it had been filled, and that twenty, tons of silage worth $8 per ton spoiled. The answer alleged that by reason of the faulty construction of the silo and on account of certain expenses incurred in attempting to repair the same, the defendant’s damages exceeded, the amount sued for.
The reply alleged that car siding was substituted for four-inch flooring by agreement with the purchaser and for the reason that he did not desire to wait until the flooring specified in the contract could be obtained, and that the broken hoops were immediately replaced by wire cables with his consent. It denied the other allegations of the answer. The jury returned special findings and a verdict in plaintiff’s favor for $210.74. The findings show that defendants were allowed for six tons of silage spoiled, which the jury valued at $6.per ton.
The findings, which are well supported by the evidence, sustain all the contentions of the plaintiff. Several quite technical objections are raised, but no substantial reason is suggested why the judgment should not be affirmed. The answer denied nothing. The sole defense was predicated upon the 'substitution of material different from and inferior to that specified in the contract. At the trial it was too late for defendants to question whether the silo company was a corporation. Whether the plaintiff, in arranging for the substitution of a different class of lumber from that specified in the contract, was acting under express authority from the silo company, was not material, because, as the evidence and findings show, Doctor Morris, the agent of his father, the purchaser, consented to the substitution, and the evidence shows a sufficient consideration for the agreement. The lumber company was at least a subcontractor and supplied the lumber on the contract of the silo company. The trial court rightly restricted defendant’s proof to the defense pleaded, and properly refused to admit evidence of the condition of the silo at the time of the trial, or to submit that question to the jury.
The special findings show the jury were not misled by the fact that the court in one instruction used the word “and” where the word “or” would have been appropriate.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The city of Topeka recovered in this action a judgment for $19,231.97 against one member of a firm of contractors and the surety company for overpayments made upon a contract for the construction of a sewer. The defendants appeal.
The action originally was against G. W. Brooks and M. W. Gilmore, partners as Brooks & Gilmore, and their surety, and was commenced. October 1, 1907. The sewer had been completed in 1905. While the action was pending, Gilmore brought suit against the city to recover an amount due him upon an individual contract for certain paving work, and in that case the city pleaded as a defense to his claim the same matters which are alleged in the petition in the present case. On the trial of that case it was determined that Gilmore owed the city the sum of $8327.78 on account of the overpayments to Brooks & Gilmore on the sewer contract. Gilmore was given credit for $3580.88 due him on his paving work, and the city was given a judgment against- him for the balance of $4746.90. That judgment was never paid, and on June 19, 1914, the city agreed with Gilmore that if he would assist in the preparation of this case for trial, look up his sewer records and “rock notes,” and testify at the trial; the city would release and satisfy the judgment. This agreement was carried out; the judgment was released by a written instrument expressly reserving to the city the right to proceed against Brooks, the former partner of Gilmore, and against the surety company. In the present case a referee was appointed in October, 1914, who found against Brooks and the surety company, and the district court rendered judgment in accordance therewith.
The referee found among other things that Brooks & Gilmore entered into the partnership August 1, 1904, for the sole purpose of performing the contract for the construction of the sewer in question, and as partners never engaged in any other enterprise; that James F. McCabe, as city engineer, without the knowledge or consent of the mayor and city council, included in the monthly estimates, and the city paid, at contract prices for different sizes of main and lateral sewers which the contractors did not furnish or construct; that he also raised the grade throughout the system from one to eleven feet above the grade provided in the plans and so relieved the contractors -from excavating and back-filling to the amount of more than 6000 cubic yards, making no deduction in the monthly or final estimate for such omitted work; and that Brooks & Gilmore had full knowledge of the fraud and knowingly overcharged and received pay for all the extra work as well as for the work omitted; that acting thus in collusion with the city engineer they received pay for many yards of loose rock more than that actually excavated, and also received frpm the city pay for the excavation of about 3000 cubic yards of solid rock although they had excavated less than 1000 cubic yards. There were many other items unnecessary to mention here, in which the city was overreached in this manner. 'The referee found that as a part of the.secret agreement between the partners and McCabe, and upon his demand, they paid to him for his personal use at different times while the work was in progress sums amounting to $2500.
1. The first claim is that the city, having satisfied and released the judgment against Gilmore for the wrongs complained of, is barred from maintaining this action to recover damages for the same wrongful acts. The. defendants rely upon the principle declared in Westbrook v. Mize, 35 Kan. 299, 10 Pac. 881, the first paragraph of the syllabus of which reads:
“Where several persons jointly commit an injury, the liability is joint . and several, and the party injured may sue all of them in a single action, or he may sue them separately at the same time; but although several judgments may thus be obtained, there can be but one satisfaction, and the acceptance of payment in full upon the judgment obtained against one of such persons will operate as a bar to the further prosecution of actions for the same injury against any of the others.”
In Railway Co. v McWherter, 59 Kan. 345, 53 Pac. 135, it was said in the opinion: “The soundness of the general rule that a settlement with one of two joint tortfeasors ordinarily discharges both, is recognized” (p. 351), but the court also recognized an exception to the rule in a case where “the wrongful act is not done jointly by the persons from whom compensation is sought, but is the deed of one or the other and not of both” (p. 352). In such a case the court said it was “unable to perceive on what principle a settlement with and discharge of one affects the cause of action against'the other.” (p. 352.) The defendants’ contention is this: On the identical cause of action, stated in. the petition in this case the city recovered a judgment against one of the firm of partners contracting with the city to construct the sewer. The legal liability upon which it recovered that judgment was the same .as in this case — the liability of one- partner for the wrongs committed by the firm; and while the liability of each p'artner was joint and several, each was liable for the same amount. It is insisted, therefore, that every element is present upon which' the rule in Westbrook v. Mize, supra, is predicated. The trial court approved the referee’s conclusion of law that the release of the Gilmore judgment did not release or satisfy the city’s claim against the other partner “except as to/the amount actually collected by the city from Gilmore, which- was the sum due him on his paving contract.” This ruling was based upon the authority of Meixell v. Kirkpatrick, 29 Kan. 679; Edens v. Fletcher, 79 Kan. 139, 98 Pac. 784, and the statute authorizing compromises by partners or joint debtors (Gen. S-tat. 1915, §§ 6786-6790). In the Edens case the opinion contains a comprehensive review of the authorities by Mr. Justice Benson, who wrote the opinion. That case differs from this in two respects; there the release was executed before any judgment had been rendered, here after judgment against the joint wrongdoer; in that case no partnership liability was involved, here as to one of the defendants the liability was that of a partner. In the Edens case the rule adopted in New York and believed to be in accordance with the weight of reason and of modern authority was followed. That rule is, that the-intent of the parties to the release controls, and where the creditor or injured party expressly reserves the right to pursue the other wrongdoer, the release of one can not be set up as a defense by the other. The compromise or satisfaction is regarded as a covenant not to sue, instead of a technical release. If, on the other hand, it is an absolute release, the rule declared in Westbrook v. Mize, 35 Kan. 299, 10 Pac. 881, controls, and the instrument necessarily discharges the liability of any other person either jointly or as surety therefor. We perceive no adequate reason why the intention of the parties to the compromise should not be carried out or a different rule enforced on the mere ground that the compromise or release was entered into after judgment had been rendered. It was in effect just as much a covenant not to sue — that is, not to pursue the person further upon the judgment — as was the agreement in the Edens case which was given after suit was commenced and before the action had resulted in a judgment. The release of the judgment as to Gilmore expressly shows that the consideration was not accepted in full compensation for the debt or injury, and should not be given an effect contrary to the intent with which it was executed.
For another sufficient reason the defendants’ contention can not be sustained. The'statute expressly' authorizes settlements by one partner or joint debtor without affecting the liability of the other. (Gen. Stat. 1915, §§ 6786-6790.) It is provided in section 6788 that—
“Such composition or compromise with any individual member of a firm shall not be construed as to discharge the other copartners, nor shall it impair the right of the creditor to proceed at law or in equity against the members of such copartnership firm as have not been discharged.”
In the opinion in the Edens case, supra, mention was made of section 2038 of the General Statutes of 1915 as adopting the old rule of equity in such cases. That section reads:
“Any person jointly or severally liable with others for the payment of any debt or demand may be released from such liability by the creditor, and such release shall not discharge the other debtors or obligors beyond the proper proportion of the debt or demand for which the person released was liable.”
We conclude, therefore, that a partial satisfaction of a judgment against one joint debtor and the release of the same operate only as a payment.pro tanto of the Indebtedness of the other joint debtors.
2. The defendants tendered in court the amount of the Gilmore judgment, and their second contention is that the partnership liability of Brooks & Gilmore was fully determined in the action against Gilmore, and therefore the city is estopped to claim a larger indebtedness than the sum then found to be due. If the city had accepted the tender the defendants would have been discharged from further liability. (Westbrook v. Mize, supra.) But the city declined to accept it, and insisted upon establishing against these defendants a greater liability than the amount found due from Gilmore.
It seems that when the Gilmore case was tried the city had not discovered the extent of the contractors’ fraud nor the extent of its loss thereby. Neither of these defendants was a party to the Gilmore suit. They were not bound by anything determined therein, except that any sums recovered and collected by the city in that action would to that extent reduce their liability to the city. Our statute declares that “All contracts which are by the common law joint only, shall be construed to be joint and several.” (Gen. Stat. 1915, § 2034.) Also, that “Suits may be brought and prosecuted against any one or more of those who are . . . liable.” (Gen. Stat. 1915, § 2037.) In Martin v. City of Chanute, 96 Kan. 433, 436, 152 Pac. 20, it was held that the effect of these statutory provisions is that liability or obligation is not merged in the judgment against one of the contractors, and where such judgment remains unsatisfied it is no bar to a subsequent action against another of the debtors, citing Jenks v. School District, 18 Kan. 356. The judgment was not res judicata because the parties are not the same. (Martin v. City of Chanute, supra.) The defendants could not better their position by offering to pay a judgment to which they were not parties and which had been released by the judgment creditor.
3. In the Gilmore case the city was obliged to pay the costs, and also incurred certain expenses for attorneys’ fees and for procuring evidence to establish the fraud of the contractors. The court included in the judgment in the present case the sum of $1052.25 for these costs and expenses. This it is claimed was error. The referee found the expenses to be reasonable and necessary in order to establish liability against Gilmore. As a result of the litigation with Gilmore the city recovered and applied on the liability of the defendants in this action $3580.88, which it owed to Gilmore for paving, and to that extent the defendants received the benefit, having been allowed credit for that amount in the j udgtoent in this case. The recitals of the surety bond bound the surety company to pay all damages, costs, and expenses of every kind, character and nature incurred in consequence of the contract for constructing the sewer. The costs and expenses were properly included in the judgment (Bank v. Williams, 62 Kan. 431, 63 Pac. 744; Bourke v. Spaight, 80 Kan. 387, 102 Pac. 253.)
4. The surety company presents one more contention. At the time it executed the bond it received from Brooks & Gilmore the sum of $7500 in cash to indemnify it from loss upon the bond, but under an agreement which bound it to return the money as soon as the bond was released without liability to the surety company. It alleged in its answer these facts, and further, that after the completion of the sewer it retained the money for a time, but was forced to surrender" it to Brooks & Gilmore by threats and a demand to return the same made by the insurance department of the state of Kansas at the instance of the contractors, and by reason of an impending suit against it by the contractors. It was further alleged that the money was returned to Brooks & Gilmore only upon notice from James F. McCabe, city engineer, duly attested by the city clerk, that the contractors had completed the work in accordance with their contract and that the sewer had been accepted by the city. The court sustained a demurrer to this part of the answer.
The referee found that while the city paid Brooks & Gilmore the balance due on the contract, it took no other action toward accepting the sewer and the work upon the contract. Had there been no false charges, no bribery or fraud, there might be some force in the claim that the city by paying the balance to the contractors accepted the work as completed, according to the contract. But the city was not aware of the fraud and the conspiracy whereby it suffered a loss. The obligation of the surety company was an unconditional promise to make good the defaults of the contractors. Under the authority of McMullen v. Loan Association, 64 Kan. 298, 808, 67 Pac. 892, and Hier v. Harpster, 76 Kan. 1, 90 Pac. 817, we must hold that there was no positive duty resting upon the city to discover the fraud sooner, and that notwithstanding the delay in seeking to enforce the surety’s liability and regardless of the fact that the surety had in the meantime surrendered its -indemnity, the city is entitled to recover upon the bond the full amount of the loss sustained through the fault of the principals.
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The opinion of the court was delivered by
Dawson, J. :
The plaintiff was given judgment in replevin for the value of certain restaurant equipment purchased by defendant from plaintiff’s wife.
The defendant complains of the prejudicial effect of the introduction of certain evidence, which was later stricken out by the court with instructions to the jury to disregard it. This evidence was intended to connect a brother of defendant with the transaction whereby defendant acquired the property from plaintiff’s wife. This brother had a lawsuit in the same court about the time this case was tried. The jury or some of the jurymen in this case were in the court room part of the time when the brother’s case was being tried, and they heard part of the evidence of the brother, admitting that his testimony did not harmonize with testimony he had theretofore given in a federal bankruptcy proceeding. They also heard the defendant’s brother denounced as a perjurer and his alleged knavery roundly condemned. The defendant contends that the jury were bound to infer that he was tarred with the same stick as his brother, and that this situation was not cured by the ruling of the court instructing the jury to disregard the evidence tending to connect the denounced and discredited brother with this case. Defendant says that all this prevented him from having a fair trial. On the printed page, it might appear so. But, on the other hand, the code provides :
“A new trial shall not be granted . . . unless ... on the motion for a' new trial the [trial] court shall be of opinion that the verdict or decision is wrong,” etc. (Civ. Code, § 307.)
The trial court, before whom these matters transpired, could survey a situation of this sort much better than this court, and its judgment that a new trial of defendant’s cause was not necessary must stand, under well-established principles of appellate procedure. (City of Sedan v. Church, 29 Kan. 190, syl. ¶¶ 2-4.)
A new trial was also demanded because the whereabouts of defendant’s most important witness, the plaintiff’s wife, from whom defendant bought the property, was unknown at the time of the trial. Her affidavit, in support of defendant’s motion for a new trial is before us. It tells of a settlement between her and her husband, whereby the restaurant was turned over to her, and of a divorce proceeding instituted by her against her husband about the same time. This evidence was largely cumulative of what was otherwise developed at the trial — better, perhaps, and more positive evidence than it had been possible for defendant to produce without her testimony — but still cumulative. New trials are not demandable . as a matter of right on that account. (Klopp v. Jill, 4 Kan. 482; Mitchell v. Stillings & Fenlon, 20 Kan. 276; The State, ex rel., v. Creager, 97 Kan. 334, syl. ¶ 4, 155 Pac. 29.) The evidence narrated in the affidavit was not “newly discovered.” It was merely not bn hand at the trial, and defendant does not make a very strong showing of diligence to have the missing witness in attendance or her deposition on file. (Smith v. Williams, 11 Kan. 104; Manufacturing Co. v. Rice, 95 Kan. 816, 149 Pac. 742.) It could hardly have been an arduous task to locate her, seeing she had a divorce suit then pending in the same court, and was represented therein by an attorney of the local bar. It does not appear that a continuance was requested on account of the temporary disappearance of this prospective witness. Moreover, the fáct that plaintiff and his wife had made a settlement whereby she was to receive the restaurant property was not seriously denied. But plaintiff contended that the terms of the settlement included a stipulation that the wife should pay the debts against the restaurant business. Plaintiff also contended that the defendant knew that the settlement had been avoided because his wife had failed to satisfy these debts, and that defendant knew that plaintiff still claimed to be the owner of the property at and before the time he purchased it from plaintiff’s wife. This part of the record has not been abstracted but that such evidence was adduced is not denied.
The other errors assigned have been carefully considered, but need no discussion.
The judgment is affirmed. | [
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The opinion of the court , was delivered by
Mason, J.:
On April 30, 1915, A. B. Hope filed a petition for the foreclosure of a real-estate mortgage executed by Lizzie J. Bashor and J. C. Bashor, her husband. On the 3d of May following the sheriff made return, of the summons, show ing service upon J. C. Bashor on May 1, by delivering a copy to him personally, and upon Lizzie J. Bashor on the same day, by leaving a copy at her usual place of residence. No appearance being made by either defendant judgment was rendered against both on June 21, 1915. An order of sale was issued on July 7, 1915, and the property was sold to the plaintiff on the 7th of ^August following, for substantially the amount of the judgment. On December 6, 1915, Lizzie J. Bashor appeared specially and moved to set aside the judgment and sale because she had not been “duly and legally summoned in said action according to law, or legally notified of the pend-ency thereof.” On March 14, 1916, she filed an amended motion asking the same relief on the ground that no copy of the summons had been left at her usual place of residence, and that the judgment and the proceedings thereunder were void because in violation of the fourteenth amendment to the federal constitution, in that they deprived her of her property without due process of law. The motion was overruled, and she appeals.
The only evidence introduced was the oral testimony of Basil Bashor, the. defendant’s fifteen-year-old son, and Mrs. Bashor. The son testified that when the sheriff came with the summons he was starting a fire in a stove, preparatory to •getting supper, in a house in which the family had resided until two weeks previously, and in which he-and his father were “batching” all the time, while they were putting in a crop; that'at this time all the furniture had been moved to another place, five miles away, where his mother was, with four other children, excepting a bed in which he and his father slept, a cook stove, a table and dishes to eat out of; that the sheriff handed him a copy of the summons and told him to give it to his mother when she came home; that he told the sheriff that they had moved, and that his mother was at the other place; that he never gave the copy of the summons to his mother, because he didn’t think it was anything of any importance. The mother testified that the family had moved out of the house referred to, on the 14th of April; that in September she first learned of the suit having been brought, by reading a letter which had been written to her husband.
1. Although this evidence was not contradicted by any witness it does not follow that the court was required to accept it, or did so. The burden of proof was on the party attacking the truth of the sheriff’s return. The statements of the son that he did not give her the copy of the summons, because he thought it of no importance, and of the mother that she only learned in September of the action having been brought, had sufficient elements of improbability to make their acceptance or rejection a fair matter for the trial court. From the evidence introduced it appeared that the family was in a state of transition, such that its members could have supported a colorable claim of residence at either place, difficult for an outsider to overcome. If the trial court had made a specific finding that the place where the service was made was at the time still the family domicile it could not be set aside on review as without support in the evidence. And such a finding must be presumed to have been made if nec-, essary to sustain the judgment.
2. The matter, however, is affected by another, consideration. In this state an injunction will not be granted against a judgment, merely because it is void for want of a legal service of summons, without a showing that a claim is made in good faith that it is unjust as well as based upon an insufficient notice. (True v. Mendenhall, 67 Kan. 497, 73 Pac. 67; O’Neil v. Eppler, 90 Kan. 314, 133 Pac. 705.) And the same, or a more rigorous, requirement is exacted elsewhere, as a condition to such relief. (23 Cyc. 997; Note, 14 L. R. A., n. s., 213.) The reasons for refusing to enjoin a. judgment without a showing that its justice is at least doubtful apply with equal force where its vacation is sought on the same ground by motion. An independent action brought to set aside a judgment is regarded in this state as a direct proceeding for the purpose. ' (McNeill v. Edie, Sheriff, &c., 24 Kan. 108, 110.) Elsewhere it is sometimes classified as a direct, and sometimes as a collateral attack (23 Cyc. 1065), and the same is true of a motion made to set aside a judgment after the expiration of the term at which it was rendered (Note, 23 Am. St. Rep. 105, 106). That, however, is a mere matter of phraseology. The separate action, because it tenders a specific issue, defined by formal pleadings, to be determined upon a full and orderly hearing, should be entitled to at least as favorable consideration as a mere motion, to be heard rather summarily and perhaps upon affidavits. Doubtless the requirement that he who seeks an injunction against a judgment must show that he believes it to be unjust originated in the notion that he. who invokes the aid of equity must comport himself in .accordance with good conscience. But under a practice which minimizes forms and methods, and looks to the substance of things rather than to the names by which they are known, a litigant who asks the aid of a court in any way is bound to such conduct. He may not by motion in a case which has proceeded to execution, any more than by a separate action, compel the setting aside of a judgment the justice of which he does not question, merely for the purpose of delay. The rule that an injunction will not be issued against a judgment unless its justness is challenged would be of little practical consequence if the result sought could be accomplished by the filing of a motion. Here it is admitted that the sheriff delivered a copy of the summons to Mrs. Bashor’s son at a house occupied by his father and himself, which had been the family’s residence until a short time before, and had not been entirely abandoned as such. The motion to set aside the judgment was made four months after the sale, and over two months after Mrs. Bashor admits she learned of the action. It was based on the assertion that she had not been legally notified of the proceeding, and conveyed no intimation that she had not actually known of its pendency, or that she claimed to have any defense. Her conduct was a practical admission of the existence of the indebtedness sued on, and justifies an inference of a studied purpose to cause delay in the enforcement of the plaintiff’s rights by a belated raising of the question as to the sufficiency of the service. Under these circumstances we think it clear that no error was committed in refusing to disturb the judgment.
In Hanson v. Wolcott, 19 Kan. 207, it was said that a judgment void for want of service- may be set aside on motion at any time, without advising the court of the existence of a valid defense. And the usual rule is that no defense need be shown in such a case. (Note, 18 L. R. A., n. s., 405.) What was really decided in the Kansas, case referred to, however, was the inapplicability to an attack on a void judgment of the provision of the code that “a judgment shall not be vacated on motion on petition until it is adjudged that there is a valid defense to the action on which the judgment is rendered.” (Civ. Code, § 602.) In that case, as well as in most of those cited in the note mentioned, the circumstances were materially different from those here presented. A distinction may well be made, and has been made, between a judgment which may be characterized as void because based upon an attempt at service which the law regards as insufficient, and one “rendered without color of service and without any opportunity, in fact, by any exercise of diligence, to have had a hearing upon the merits.” (True. v. Mendenhall, 67 Kan. 497, 503, 73 Pac. 67.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was a proceeding in forcible entry and detainer brought by Elizabeth R. Hauck against the Valley Falls Mercantile Company and L. Beard, before a justice of the peace. Notices purporting to terminate the tenancy and for surrender of the premises were served upon them. The Davis Mercantile Company intervened, alleging that it was in possession of the premises and that notices had not been given nor action brought against the proper party. An appeal was taken from the judgment of the justice of the peace*and at a trial in the district court the verdict, which was accompanied by special findings, was that the Davis Mercantile Company was guilty.
It appears that the premises in question and the stock of merchandise in them had been owned by Lou Hauck who negotiated a sale of both with Frank B. Harrison, but the deed to the property, at Harrison’s instance, was made to D. J. Owens, who executed a mortgage to Hauck for part of the purchase price. The goods were sold by Harrison to Gregory & Castile, and a lease of the store building for thirty days with the privilege of two years at fifty dollars per month was assigned to them. The merchandise was sold and the rights under the lease were transferred by. Gregory & Castile to the Davis Mercantile Company and the latter went into possession on February 10, 1915. That company conducted the business for several weeks through A. L. Beard and having advertised and offered a prize for a trade name for the store, The Valley Falls Mercantile Company was chosen as a name and Beard was placed in charge as manager. The Valley Falls Mercantile Company was not organized as a corporation, but it transacted all its business under that name and there was no public record that the Davis Mercantile Company was the owner of the store. There is some ' conflict in the testimony as to whether it was generally known that the Davis Mercantile Company was the owner. About the time the Davis Mercan tile Company bought the stock an action to foreclose the mortgage was begun and Beard and the Valley' Falls Mercantile Company, as a corporation, were made parties defendant, but not the Davis Mercantile Company. A receiver was appointed who collected the rent of fifty dollars a month from the Valley Falls Mercantile Company until about the time of his discharge, July 8, 1915. The first payment of rent by the Valley Falls Mercantile Company was made to the receiver at the office of the Davis Mercantile Company. Judgment of foreclosure was rendered, June 10,-1915, in which the Valley Falls Mercantile Company and L. Beard were barred of all right, title or interest in the mortgaged premises. It appears that officers or agents of the Davis Mercantile Company had knowledge of the foreclosure proceedings. After the judgment a settlement was reached by which Owens reconveyed the property to plaintiff to whom Lou Hauck had previously assigned the mortgage, Owens’ deed reciting that the property was free and clear of all incumbrances except taxes. On July 6, 1915, a notice signed by Elizabeth Hauck was served upon Beard as manager of the mercantile company to vacate within thirty days, and on August 7,1915, a three-day notice preparatory to this action was served. The evidence is conflicting as to whether or not the plaintiff knew of the Davis Mercantile Company’s interest before this proceeding was instituted.
The principal contention is that the verdict should have been set aside because of inconsistencies in the answers to the special questions. There was much conflict in the testimony and there appears to have been considerable confusion in the minds of the jury as to the controlling facts in the case. A three-day notice to an adverse party to surrender possession is essential to the commencement of an action of this kind. The general verdict finds the Davis Mercantile Company guilty of unlawful detention of the property, but the jury made a special finding that no notice had been served upon it. The verdict and judgment are based on the theory that the Davis Mercantile Company had gained and was unlawfully withholding possession, but there was a special finding that the company was not in possession when the action was begun. It was found that the Valley Falls Mercantile Company, was only a trade name used by the Davis Mercantile Company, but it appears to have been sued as a legal entity and in the foreclosure proceeding was sued as a corporation. This case was tried as if the Valley Falls Mercantile Company was a real party and the judgment recognizes it as a separate and distinct organization. In this action it was alleged that Beard and the Valley Falls Mercantile Company had been holding' possession of the premises as tenants at will. Notices were served on them and judgment for restitution was rendered against both of them. In the answers to special questions it was found that Beard had no interest in the stock or business conducted at the store other than being an employee or manager of the Davis Mercantile Company. Although finding that the Davis Mercantile Company had no possession, it was in effect found that Beard, who occupied and had charge of the store, was an employee or manager of that company. It is the duty of the court, as plaintiff contends, to harmonize the findings of the jury if it can reasonably be done, but these findings can not be reconciled on any reasonable theory. There is a direct conflict between the general verdict and some of the special findings and many inconsistencies in the findings themselves. The conflict' is upon the vital issues of notice and possession by a defendant. Some of the findings are contrary to the testimony, not in accordance with the theory of either party and are not in keeping with the instructions of the trial court. It is insisted that judgment should be given in favor of the Davis Mercantile Company upon the special findings — that it had received no notice and was not in possession of the property; but other findings are inconsistent with these, and a judgment can not be directed or rested on findings so obviously inconsistent as these are. (Anderson v. Pierce, 62 Kan. 756, 64 Pac. 633.)
The judgment is reversed and the cause remanded for a new trial. | [
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Green, J.:
While visiting a friend’s home, James E. Wilson was detained by police officers. Although the police possessed a warrant to search the residence, Wilson was not named in the search warrant. After Wilson consented to a search of his person, a police officer recovered a bag of crack cocaine from a pocket in Wilson’s clothing. Before searching Wilson, the officer observed that Wilson posed no threat to the officer. In addition, the officer noted that no drugs or contraband were within Wilson’s proximity. Finally, the officer observed that Wilson was not involved in any criminal activity. The issue before us is whether the above facts can provide reasonable suspicion justifying a temporary investigative stop. We conclude that the officer had no reasonable basis to detain Wilson, as we explain more fully below.
Although Wilson consented to the search,' he argues on appeal that his consent was involuntary. In addition, Wilson maintains that there were no intervening circumstances which separated his consent from his unlawful detention. We agree and reverse and remand.
On December 18, 1999, Wilson was at a friend’s home when police presented a search warrant on the residence. Although the warrant permitted officers to search for cocaine and drug paraphernalia, the warrant did not authorize the search of all persons present at the home. Upon entering the residence, officers told the occupants of the house to get down on the floor. Wilson complied and was handcuffed.
Officer James Bray testified that after the house was secured, he turned his attention to Wilson. Officer Bray questioned Wilson without advising him of his Miranda rights. When Officer Bray asked Wilson his name, Wilson told him and indicated that he had identification in his pants pocket. Without asking permission to remove the identification, Bray reached into Wilson’s pocket and retrieved the identification card. The officer then gave Wilson’s identification card to another officer to check for outstanding warrants.
Officer Bray continued his interrogation of Wilson by asking him if he had any drugs on him, which Wilson denied. After Wilson denied possessing drugs, Bray asked Wilson if he could search him. Officer Bray testified that Wilson replied, “[Y]ou’ve got me in handcuffs, you can do whatever you want.” Officer Bray testified that he informed Wilson as follows:
“After that I explained to him that, no, that wasn’t necessarily true, that it was entirely — my exact words were, it was entirely up to him whether or not I searched him. Then I explained to him that he wasn’t under arrest at that time, but that everybody in the house would be detained until we secured the house and had taken control of the residence.”
Officer Bray, however, gave conflicting testimony regarding whether the house had been secured when he interrogated Wilson. The officer testified that “as soon as the other officers gave the all clear, then I started identifying [Wilson].”
After Officer Bray explained to Wilson that he could refuse the search, Wilson nevertheless consented. Officer Bray then searched Wilson and found a bag of crack cocaine in Wilson’s pocket.
Wilson was charged with possession of cocaine. Before trial, Wilson moved to suppress the crack cocaine found in his possession because he was illegally detained and because his consent to search was not voluntary. The trial court found that the facts were as Officer Bray testified. The trial court further found that Wilson voluntarily consented to the search and denied the motion to suppress. Following a bench trial, Wilson was convicted of one count of possession of cocaine.
Illegal Seizure
Wilson’s first argument on appeal is that the trial court erred in refusing to suppress the crack cocaine found on his person because the search was the result of an illegal seizure. Wilson maintains that he was illegally seized because he was detained after tire residence was secured and without reasonable suspicion that he had committed or would commit a crime. According to Wilson, this illegal detention bars introduction of any evidence obtained as a result of the detention.
When reviewing the factual findings of the trial court on a motion to suppress evidence, we give great deference to the findings and uphold those findings if they are supported by substantial competent evidence. State v. Bone, 27 Kan. App. 2d 582, 583, 6 P.3d 914 (2000). In other words, if tire findings of the trial court on a motion to suppress evidence are based on substantial evidence, the appellate court must not substitute its view of the evidence for that of the trial court. State v. Chiles, 226 Kan. 140, 144, 595 P.2d 1130 (1979). “Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved.” State v. Haskins, 262 Kan. 728, Syl. ¶ 1, 942 P.2d 16 (1997).
Nevertheless, in State v. Grace, 28 Kan. App. 2d 452, 456, 17 P.3d 951 (2001), we stated that “the ultimate determination of the suppression of evidence is a legal question requiring independent appellate determination.” More specifically, if a person consents to a search after an illegal stop or during an illegal detention, the court must evaluate whether the consent purged the taint of the earlier illegality. State v. Rice, 264 Kan. 232, 241, 955 P.2d 1258 (1998). If the trial court did not specifically apply the taint analysis to the consent, the appellate court is empowered to do so upon a sufficient record on appeal. State v. Crowder, 20 Kan. App. 2d 117, 122, 887 P.2d 698 (1994).
We must also bear in mind that, on a motion to suppress, the State bears the burden of proving the lawfulness of the officer’s conduct in question. See K.S.A. 22-3216(2); Grace, 28 Kan. App. 2d at 456.
K.S.A. 22-2509 provides: “In the execution of a search warrant the person executing the same may reasonably detain and search any persons in the place at the time: (a) To prevent himself from attack, or (b) To prevent the disposal or concealment of any things particularly described in the warrant.”
Our Supreme Court applied this statute in State v. Vandiver, 257 Kan. 53, 891 P.2d 350 (1995). Vandiver was one of six visitors in the apartment of a convicted drug offender when a police officer entered the apartment to execute a search warrant. The affidavit for the warrant stated that marijuana purchases had occurred at the residence, but did not “provide a factual basis for the issuing magistrate to determine that, other than the occupant, persons within tire premises would be involved in or conducting illegal drug sales.” 257 Kan. at 63. When the officer entered the residence, the apartment reeked of burnt marijuana, and a baggie of marijuana was in plain view on the floor. The officer conducted a pat-down search of Vandiver and removed a film canister containing marijuana from Vandiver’s pants pocket. With regard to the pat-down search, the Vandiver court stated:
“In circumstances where a police officer executing a search warrant of the premises observes unusual conduct by individuals not named in the search warrant which leads the officer reasonably to conclude in light of his or her experience that criminal activity may be afoot and that the persons with whom the officer is dealing may be armed and presently dangerous, the officer is entitled for the officer’s protection and the protection of others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault the officer. See K.S.A. 1994 Supp. 22-2402; Terry v. Ohio, 392 U.S. [1,] 30-31[, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)].” 257 Kan. at 63-64.
In holding that the officer illegally searched and detained Vandiver, the court noted:
“In this case, however, there is no substantial competent evidence that exigent circumstances existed to authorize the search of Vandiver. There is nothing to indicate that the officer was concerned with his safety. After entering the apartment and executing the search warrant, the officer did not recognize Vandiver, had no reason to believe that Vandiver had previously committed an offense, and did not have sufficient facts to arrest Vandiver for possession of the marijuana in plain view. Under these facts . . . [and] under K.S.A. 22-2509(b), the officer executing the search warrant had no reason to detain Vandiver to prevent the disposal or concealment of any objects particularly described in the warrant.” 257 Kan. at 64.
K.S.A. 22-2509 was also applied in Rice. Rice was one of six visitors at an apartment when officers arrived to investigate a complaint of loud music and marijuana use. Officers told the visitors to sit in the livingroom while they conducted a consent search of the apartment. During the 10-minute search, officers found marijuana. No one claimed ownership of the drugs. Before the guests could leave, each had to speak with one of the officers outside the apartment. During the interrogation, Rice consented to a search of his pockets and the officers found marijuana. The trial court suppressed the evidence and the State appealed. The Rice court held that Rice was unlawfully detained under K.S.A. 22-2509 because the evidence was clear that the officers “were not concerned that any of the visitors were armed, nor did they observe anything about Rice’s appearance that would indicate that he had violated, was violating, or was going to violate the law.” 264 Kan. at 239. The Rice court additionally held that Rice’s consent to search was not voluntary.
The instant case is similar to Vandiver and Rice in that Wilson was a visitor at a residence when police detained and searched him. Using the rationale applied in those cases, we must determine whether the officer was justified in detaining Wilson. It is clear from the following testimony of Officer Bray that he was not concerned that Wilson was armed, nor did he suspect that Wilson would dispose or conceal anything described in the search warrant:
“Q. And I think you’ve already testified, correct me if I’m wrong, but at the time you encountered Mr. Wilson, you saw him, he didn’t present any reasonable threat to you, to your person, did he?
“A. No.
“Q. And you didn’t see any drugs or contraband in plain view associated with Mr. Wilson, did you?
“A. No.”
Moreover, Officer Bray testified that he lacked reasonable suspicion that Wilson was involved in any criminal activity when he approached him. See Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).
Because Officer Bray testified that Wilson did not pose a reasonable threat, did not observe drugs or contraband in Wilson’s proximity, and did not reasonably suspect that Wilson was involved in criminal activity, Officer Bray was not justified in his continued detention of Wilson after the house was secured. Moreover, it is important to note that Wilson’s detention exceeded that addressed in Vandiver and Rice in that Wilson was handcuffed during the entire interrogation process and the officers retained his identification card. As a result, we find that Wilson was illegally seized.
Taint Analysis
Because the trial court did not find that Wilson was illegally seized, it did not engage in an analysis of whether Wilson’s consent purged the taint of the improper police conduct. Because we have found that the officer unlawfully detained Wilson, a taint analysis becomes necessary. Fortunately, the factual record before this court is sufficient to conduct the taint analysis.
Consent to search removes the taint of a prior illegal seizure if it was voluntarily given under tire totality of the circumstances. Grace, 28 Kan. App. 2d at 460. “This analysis requires consideration of the proximity in time of the Fourth Amendment violation and tire consent, intervening circumstances, and particularly the 'purpose and flagrancy’ of the officers’ misconduct. [Citation omitted.]” Crowder, 20 Kan. App. 2d at 122. “ ‘[W]hen dre consent to search is preceded by a Fourth Amendment violation, the State, in addition to proving the voluntariness of the consent, must also establish a break in tire causal connection between the illegality and the evidence thereby obtained. [Citation omitted.]’ ” Grace, 28 Kan. App. 2d at 460.
The Rice court determined that events between an illegal detention and a search did not purge the original taint. The factors the court relied on in holding that the subsequent consent did not purge the initial illegality were: (1) the lack of reasonable suspicion of criminal activity of the defendant, (2) the lack of intervening events between the illegal seizure and the consent, and (3) the intensifying pressure applied by the officers to the visitors. 264 Kan. at 243-44. See Grace, 28 Kan. App. 2d at 460-61 (holding that consent to search did not purge the taint of an unlawful detention when no intervening circumstances sufficiently separated the consent from the unlawful detention).
Here, even if Wilson consented to the search, the State failed to establish a break in the causal connection between the illegal detention and the evidence recovered from Wilson’s person. See Grace, 28 Kan. App. 2d at 460. First, Officer Bray admittedly did not have reasonable suspicion of any criminal activity on the part of Wilson. In addition, the illegal detention and the request for consent to search were in close temporal proximity. In fact, Wilson consented while he was illegally detained. The trial court noted that there was no break between the illegal detention and the consent because the police “didn’t take the cuffs back off . . . before they started this questioning. You know [Officer Bray] not only cuffed [Wilson], then he proceeded to try to get consent from a person with cuffs on.” The fact that Wilson was handcuffed at the time he consented to the search constitutes intensifying pressure on the part of the officer.
In finding that Wilson’s consent was voluntary, the trial court relied on the fact that Officer Bray told Wilson that he did not have to consent to the search. However, this notification was not a sufficient intervening event to purge the taint of the unlawful detention. The notification is suspect because after Officer Bray notified Wilson that he did not have to consent to the search, Officer Bray told him that he would be released when the house was secured, even though the residence had been secured at that time.
In addition, it is difficult to discern the purpose of Officer Bray’s request to search Wilson while he was illegally detained. The officer testified that he detained Wilson in order to secure the residence. While it may have been reasonable for the officer to briefly detain Wilson to secure thé residence, it is unclear how a request to search Wilson while he was handcuffed would further the officer’s objective of securing the residence. This variability in the officer’s story does not fill us with confidence.
Considering the totality of the circumstances, we find that even if Wilson consented to the search, no sufficient intervening events, including Wilson’s consent or the officer’s notification, purged the taint of the illegal detention. As a result, the trial court’s failure to suppress the evidence based on Wilson’s illegal detention was clearly erroneous.
Involuntary Consent
Even if Wilson had not been illegally detained, the trial court should have nevertheless suppressed the evidence because his consent to search was not voluntary under the totality of the circumstances.
Voluntariness of a consent to search must be determined from the totality of the circumstances and is a question of fact. State v. Johnson, 253 Kan. 356, 364, 856 P.2d 134 (1993). The essential inquiry in determining the voluntariness of consent is whether it was the product of the free and independent will of the accused. If a defendant’s will has been overborne and his capacity for self-determination critically impaired, the consent offends constitutional standards under the Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). “ The trial court’s findings with regard to the existence and voluntariness of a consent to search will not be overturned on appeal unless clearly erroneous.’ [Citation omitted.]” Rice, 264 Kan. at 242.
In considering whether Wilson’s consent was voluntary, the trial court stated that
“It all boils down to whether or not that consent was voluntary, under all the facts and circumstances of this case. . . . I’m not sure if these visitors should have even been handcuffed under these circumstances, and I certainly don’t think it was wise for the officer to ask this person to give consent while he had handcuffs on the person. I mean, obviously the fact that the defendant was wearing cuffs when asked to give this consent, that weighs in favor of this not being voluntary.”
The trial court was clearly bothered by Officer Bray maintaining Wilson in handcuffs after the house had been secured. In Reynolds v. Florida, 592 So. 2d 1082, 1087 (Fla. 1992), the court noted that “[b]ecause of the inherently coercive nature of handcuffing, the fact that one is under such restraint at the time consent is given will make the State’s burden to show voluntariness particularly difficult.”
The only finding made by the trial court to support its determination that Wilson’s consent was voluntary was that Officer Bray told him that he did not have to consent to the search. However, the fact that the officer told Wilson that he could refuse the search is not dispositive. In denying the motion to suppress, the trial court failed to consider the totality of the circumstances.
Not only was Wilson handcuffed, but other factors comprising the totality of the circumstances indicate that Wilson’s capacity for self-determination was critically impaired. For example, the officers had possession of his identification card at the time he consented to the search. Wilson may have felt compelled to consent to the search in order to recover his identification card. In addition, Officer Bray told Wilson that he would be released when the house was secured, and that promise may have induced Wilson to consent to the search so that he would be released more quickly. The impairment of Wilson’s ability to consent to the search was evidenced by the fact that when he was initially asked to consent, Wilson gave an equivocal response. As a result, based on the totality of the circumstances, we find that the trial court’s determination that Wilson voluntarily consented to the search was clearly erroneous.
In summary, the trial court’s decision to admit the evidence found on Wilson was clearly erroneous on two separate grounds. First, the evidence should have been suppressed because under the totality of the circumstances, the evidence was found as a result of an illegal detention and no intervening event purged the taint of the illegality. Second, the trial court’s decision to admit the evidence was clearly erroneous because under the totality of the circumstances, Wilson did not voluntarily consent to the search. As a result, the evidence should have been suppressed as fruit of the poisonous tree under Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).
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Beier, J.:
Plaintiffs Robert and Karen Shaffer ask us to reverse summary judgment granted in favor of defendant City of Topeka (City) on statute of limitations grounds. We decline and affirm.
A brief review of the facts is necessary to an understanding of our decision.
The Shaffers sustained water damage to their Topeka home, which they attributed to the City’s negligence in executing a shutoff order. They filed a claim with their insurance company, State Farm Fire & Casualty (State Farm), on November 8, 1998. On April 12, 1999, a State Farm representative sent a letter regarding the problem to the city clerk. On April 26,1999, a Topeka assistant city attorney responded that the State Farm letter had been referred to her by the city clerk and that a records search turned up no previous K.S.A. 12-105b claim filed against the City for water damage by anyone named Shaffer. The City therefore denied relief.
On April 28, 1999, State Farm sent a notice of claim pursuant to K.S.A. 12-105b to the assistant city attorney and a copy of the notice to the city clerk. On December 16, 1999, City Attorney Linda Jeffrey sent a letter to State Farm, denying the claim.
On March 15, 2000, attorney Todd Butler of Butler & Associates, P.A., wrote Jeffrey to ask her to waive his firm’s conflict of interest. He wanted to be free to file a negligence lawsuit against the City on behalf of plaintiffs and State Farm. Butler acknowledged the City had denied the 12-105b claim through its December 16 letter and included a copy in his correspondence. Jeffrey waived the conflict of interest by a hand-delivered letter on August 14, 2000.
On September 18, 2000, Gary Fanning of Butler & Associates delivered another 12-105b notice of claim to the city clerk. On September 22, 2000, Jeffrey acknowledged receipt of the notice, stated that the claim should be deemed denied if the City failed to approve it or reach a settlement within 120 days, and asked Fanning to send any documents that might support the claim.
On January 10, 2001, Jeffrey wrote to Fanning again. In this letter, she explained to Fanning that the September 2000 12-105b notice did not deal with a new claim because it made precisely the same complaint as tire April 1999 State Farm notice denied on December 16, 1999. She noted that the City’s denial letter was sent well before the statute of limitations expired in October or November 2000, and thus the September 2000 12-105b claim had not extended the statute of limitations.
On January 16,2001, plaintiffs filed their lawsuit against the City. The City filed a motion for summary judgment on statute of limitations grounds. Plaintiffs opposed it by arguing that 12-105b did not prohibit a later unnecessary notice from being filed to extend the statute of limitations. They also argued that the September 2000 notice was necessary rather than unnecessary because the April 1999 notice had mistakenly been sent to the assistant city attorney rather than the city clerk. Finally, they argued in the alternative that equitable estoppel barred the City from relying upon a statute of Hmitations defense.
The district court granted the City’s motion, finding that State Farm complied with 12-105b by filing its April 1999 notice with the City, that the claim should have been deemed denied when more than 120 days passed without a response, and that the plaintiffs were given explicit notice of the City’s denial of the claim on December 16, 1999. At that point, the district judge said “there should have been no doubt by Plaintiffs as to tbe claim’s status,” and they had no legal basis to believe the statute of limitations would be extended. Allowing multiple unnecessary 12-105b notices to be filed would extend the statute beyond its intend scope and give rise to judicial inefficiency, the judge said. He did not explicitly address plaintiffs’ attempt to block the City’s statute of limitations defense through equitable estoppel.
Our standard of review on the grant of a motion for summary judgment is well established:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. K.S.A. 60-256(c). On appeal, we apply the same rules, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Jackson v. U.S.D. 259, 268 Kan. 319, 322, 995 P.2d 844 (2000).
On appeal, plaintiffs argue the district court erred in finding that their April 1999 notice of claim substantially complied with K.S.A. 12-105b because it was addressed to the assistant city attorney rather than the city clerk; thus the filing of their September 2000 notice was required and should have extended the statute of hmitations. The determination of whether a notice complies with 12-105b requires statutory interpretation and gives this court unlimited review. Smith v. Kennedy, 26 Kan. App. 2d 351, 352, 985 P.2d 715, rev. denied 268 Kan. 888 (1999).
K.S.A. 12-105b(d) provides in relevant part:
“Any person having a claim against a municipality which could give rise to an action brought under the Kansas tort claims act shall file a written notice as provided in this subsection before commencing such action. The notice shall be filed with the clerk or governing body of the municipality . . . . In the filing of a notice of claim, substantial compliance with the provisions and requirements of this subsection shall constitute valid filing of a claim .... Once notice of the claim is filed, no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first. A claim is deemed denied if the municipality fails to approve the claim in its entirety within 120 days unless the interested parties have reached a settlement before the expiration of that period. No person may initiate an action against a municipality unless the claim has been denied in whole or part. Any action brought pursuant to the Kansas tort claims act shall be commenced within the time period provided for in the code of civil procedure or it shall be forever barred, except that, if compliance with the provisions of this subsection would otherwise result in the barring of an action, such time period shall be extended by the time period required for compliance with the provisions of this subsection.”
Plaintiffs rely upon Huffman v. City of Prairie Village, KS, 980 F. Supp. 1192, 1206 (D. Kan. 1997), in which the Kansas District Court found that a notice of claim which was sent only to the city attorney did not substantially comply with K.S.A. 12-105b(d). We are unpersuaded by this authority. The April 1999 notice in this case was also sent to the city clerk as required by K.S.A. 12-105b(d). The letter began: “Please let me provide the following information to you and the City Clerk,” and it concluded with a statement that the information was being given both to the city attorney and to the “City according to K.S.A. 12-105b(d).” The notice was file stamped by the city clerk on May 5, 1999.
This process complied with the spirit as well as the letter of the law. “The legislative intent of K.S.A. 12-105b is to insure that a municipality is made aware of a claim against it and that the municipality has ample time to investigate the claim before being sued on that claim.” Smith, 26 Kan. App. 2d at 361. The April 1999 notice was successful in advising the City of the details of the claim and in giving City officials adequate time to investigate before the process server arrived.
Having concluded the district court correctly regarded the April 1999 notice as substantially in compliance with the statute, we must decide the further issue of the effect, if any, on the statute of limitations of the later unnecessary September 2000 12-105b notice.
Plaintiffs claim that neither case law nor the language of the statute itself prohibits a later unnecessary notice of claim from being filed to extend the statute of limitations under K.S.A. 12-105b(d). To hold otherwise, they argue, would frustrate the prosecution of valid claims and allow defendants to escape liability on a technicality rather than on the merits. It is no surprise that the City believes the district court was correct when it held a later unnecessary notice of claim could not extend the statute of limitations.
Plaintiffs provide no authority to support their position other than their vague appeal to sympathy, and the district court’s holding is eminendy reasonable. Any party who properly files a notice of claim under the statute is afforded the opportunity to have its case decided on the merits by filing an action once the claim is denied or has not been resolved in 120 days. A later unnecessary notice does nothing to advance the claim toward resolution; it merely delays court action and promotes inefficient use of City resources to process an identical claim. The language of the statute is plain. The “time period provided in the code of civil procedure” controls unless “compliance with” 12-105b requires more time. Plaintiffs in this case had already complied with 12-105b well before the expiration of the “time period provided in the code of civil procedure.” They needed no grace period to file their lawsuit, and the City needed no grace period to do its preliminary review of the claim’s merit.
Plaintiffs’ final argument invokes the doctrine of equitable estoppel. The application of an equitable doctrine rests within the sound discretion of the district court. Bankers Trust Co. v. United States of America, 29 Kan. App. 2d 215, 218, 25 P.3d 877 (2001). Judicial discretion is abused when no reasonable person would take the view adopted by the district court. In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 414 (2002). We interpret the district judge’s silence on this issue and his grant of summary judgment to the Ciiy to mean he rejected plaintiffs’ attempt to apply the equitable estoppel doctrine.
Plaintiffs argue Jeffrey s actions between August 14, 2000, and January 10, 2001, gave the appearance that she was treating the claim raised in the September 2000 notice as new. They argue they reasonably relied on her actions to assume the statute of limitations would be extended. The City counters that, despite Jeffrey’s actions, the plaintiffs should have been well aware they had to file their lawsuit within the 2-year statute of limitations because their April 1999 notice had already been denied.
“The doctrine of equitable estoppel has been frequently used to prevent a defendant from relying on the statute of limitations as a defense where the defendant’s fraudulent or wrongful conduct has caused the plaintiff not to file suit within the period of the statute of hmitations.” Robinson v. Shah, 23 Kan. App. 2d 812, 832, 936 P.2d 784 (1997). A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed, and it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts. Rockers v. Kansas Turnpike Authority, 268 Kan. 110, Syl. ¶ 4, 991 P.2d 889 (1999).
A party asserting equitable estoppel against a government must prove:
“ ‘(1) The party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former’s conduct to his injury.’ ” In re Application of Kinnet, 26 Kan. App. 2d 250, 258, 984 P.2d 725 (1999) (quoting Allen v. United, States, 630 F. Supp. 367, 371 [D. Kan. 1984]).
The Ciiy points out correctly that the plaintiffs were not ignorant of the true facts concerning their claim. They knew that their April 1999 notice had been denied. Butler’s March 2000 letter to the city attorney acknowledged the claim had been denied and sought a waiver of a conflict of interest in order to file suit. Jeffrey waived the conflict the following August. It is difficult to see how this waiver could have prompted another 12-105b notice a month later, particularly with the 2-year time limit for the filing of a lawsuit looming.
The situation in Rockers was analogous. In that case, Rockers’ counsel contacted the Kansas Turnpike Authority’s (KTA’s) general counsel, Dugan, and informed him he was prepared to file a petition against the KTA for retaliatory discharge. However, Rockers’ counsel said, he had discovered the notice provision and thus needed the name and address of the KTA’s clerk. Dugan did not say that 12-105b notice was unnecessaiy; he merely named the person to be served and requested that he receive a copy as well. Rockers’ counsel later contended that this conversation led him to make the mistake of serving notice of claim under 12-105b(d) rather than filing a lawsuit within the applicable statute of limitations. 268 Kan. at 117.
Rockers argued on appeal that the KTA should be estopped from asserting a statute of limitations defense because Dugan misled his counsel. The Kansas Supreme Court disagreed:
“Estoppel by silence is often described as involving silence as to material knowledge not held by the other. See Ferrell v. Ferrell, 11 Kan. App. 2d 228, 234, 719 P.2d 1, rev. denied 239 Kan. 693 (1986). The material information Rockers complains about not receiving did not consist of material facts or knowledge known only to the KTA. The relevant statutes and the case law applicable to tiróse statutes, the fact our case law has always described the KTA as an arm or instrumentality of the State, and the fact the KTA has never been held to be a municipality subject to notice under K.S.A. 12-105b(d) were all facts and legal information equally available to both parties.
“Rockers did not rightfully rely on Dugan’s silence or responsive statements. The KTA had no duty to speak, it did not assert that notice was required, and it did not affirmatively mislead the attorney as to material knowledge held only by the KTA. The attorneys for each side are responsible to their respective clients for researching tire law and drawing their own conclusions regarding the applicability of the notice statute. A party cannot base a claim of estoppel on its own acts or omissions induced by the party’s own conduct. Gillespie v. Seymour, 250 Kan. 123,130, 823P.2d 782 (1991). Opposing counsel had no duty to give Rockers his legal opinion on this unsettled point of law and Rockers did not rightfully rely on opposing counsel’s failure to express an opinion.
“Furthermore, in order to show reliance, the party ‘ “ ‘must show some change in position in reliance on the adversary’s misleading statement.’ ” ’ Bowen v. Westerhaus, 224 Kan. 42, 46, 578 P.2d 1102 (1978) (quoting In re Morgan, 219 Kan. 136, 137, 546 P.2d 1394 [1976] ). Here, Rockers’ attorney stated they planned to file a notice of claim and merely contacted Dugan with regard to who should receive the notice. Rockers cannot show he changed his position based on Dugan’s silence.” 268 Kan. at 118-19.
In this case, Jeffrey s actions did not conceal a material fact because plaintiffs knew the April 1999 claim already had been denied. Even without that explicit denial, they could have anticipated that the April 1999 notice was in substantial compliance with K.S.A. 12-105b(d). The district court did not abuse its discretion in refusing to apply the doctrine of equitable estoppel.
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Marquardt, J.:
Herb Jones appeals various decisions of the trial court concerning the priority of security interests in Aero Standard Tooling, Inc.’s (AST) assets. We affirm.
In December 1989, AST signed a major contract with Boeing which required equipment that AST did not have. AST was unable to obtain financing to purchase the equipment. Herb Jones and his father, Gomer Jones, who is now deceased, obtained financing from CIT Group (CIT) for the purchase of the equipment. CIT was granted a security interest in the equipment. The security interest has been released, and CIT is not a party to this action.
Gomer and Herb Jones leased the equipment to AST for 36 monthly payments of $4,000 commencing in January 1990. By March 1993, AST was in default on its payments to the Joneses in die amount of $26,501.20.
Three different banks filed foreclosure actions against AST. The litigation was settled, and one condition of the settlement was that the National Bank of Andover, N.A. (Bank) would have a priority security interest in all of AST’s “collateral, inventory, equipment and everything related.”
AST was eventually forced to cease operation because it owed money to the IRS and the Bank. Lynn Cole, AST’s president, instructed Herb Jones to move AST’s equipment to a different location. In 1997, the Bank foreclosed on AST’s assets. Neither Gomer nor Herb Jones was named as a defendant in the foreclosure action.
Donald Noblit and Lora Jeanne Blase filed a cross-claim against the Bank, alleging that AST owed them $220,000 plus interest on a loan secured by a second mortgage on the real estate where AST offices were located. Noblit and Blase requested that the real estate be sold and the proceeds be applied against AST’s indebtedness to them.
AST failed to answer the foreclosure petition. The trial court found that the allegations of the petition were true and that AST had waived the right of redemption in the mortgage. The trial court foreclosed the mortgage and awarded the Bank $294,627.11 plus 10 percent interest. The trial court found that Noblit and Blase’s mortgage was junior to the Bank’s mortgage. Noblit and Blase were awarded a judgment of $220,000 plus interest.
The journal entry of April 23, 1997, specified that unless the " judgments were paid in full within 10 days, AST’s assets would be sold and the proceeds would be paid in the following order: (1) costs of the litigation and the sale; (2) real estate taxes or special assessments upon the real estate; (3) $294,627.11 plus interest at the rate of $73.87 per day to the Bank until paid in full; (4) Somerset Leasing Group; (5) Noblit and Blase; (6) BRC Bearing Co., Inc.; (7) Q.E.D. Systems, Inc.; and (8) the remaining proceeds, if any, were to be applied according to a further court order.
After April 23, 1997, the Bank assigned its interest in ATS’s foreclosed equipment and real property to Noblit and Blase. Thereafter, Noblit and Blase assigned these interests to Ed Petty Construction and Leasing, Inc. (Petty).
In 1999, the parties agreed to allow Herb Jones to intervene in the foreclosure action to present evidence of his claim that he owned certain items of AST’s property.
The trial court ordered the sale of AST’s assets after it failed to pay its outstanding judgments. The real estate and some additional equipment were sold to Petty for $600,000. After taxes and costs were deducted, the balance of $524,844.61 was applied to the judgment. Noblit and Blase filed a motion for confirmation of sheriff s sale, which was approved by the trial court.
In 2000, the trial court issued a writ of general execution allowing Noblit and Blase to seize and sell certain equipment to satisfy the foreclosure. Jones filed a motion to stay the execution, claiming that the Bank’s judgment was satisfied by the sale of the real estate. Jones’ motion was denied.
Petty purchased the equipment to which Jones claims ownership for $60,000. The trial court entered an order confirming the sale. Jones objected to the order of confirmation, which was overruled. The total sum of $60,000 less expenses of $7,572.44 was credited against the foreclosure judgment. Jones appeals various aspects of the trial court’s rulings to this court.
Jones asks this court to order payment to him of $60,000 from the equipment sale as a first priority creditor. Jones contends that his perfected security interest through possession has priority over all other security interests and any execution under K.S.A. 60-2406. Jones argues that the Bank’s judgment, which was later assigned to Noblit and Blase, was satisfied and the Bank’s perfected security interest was extinguished once the Bank’s judgment was satisfied.
The issues raised by Jones are questions of law. This court’s review of questions of law is unlimited. See First Nat'l Bank & Tr. v. Miami Co. Co-op Ass'n, 257 Kan. 989, 998, 897 P.2d 144 (1995).
The history of the security interests in the property that is the subject of this litigation is as follows: Gomer and Herb Jones filed a Fleet Rental Security Agreement in December 1989, which gave them a perfected security interest in the equipment. See K.S.A. 2001 Supp. 84-9-310(a) et seq. There is no record that the Joneses filed a continuation statement. Thus, in December 1994, the Jo neses lost their perfected status in the equipment. See K.S.A. 2001 Supp. 84-9-515(e).
The Bank filed its financing statement which covered AST’s equipment in March 1992. The Bank filed a continuation statement in December 1996, thereby extending its perfected status for another 5 years. See K.S.A. 2001 Supp. 84-9-515(e). The Bank assigned all of its rights under the security agreement to Noblit and Blase. In turn, Noblit and Blase assigned their rights to Petty. Petty took the assignment subject to any claims or defenses of AST. See K.S.A. 2001 Supp. 84-9-404(a)(2).
Under the Uniform Commercial Code, a perfected security interest has priority over a conflicting unperfected security interest. K.S.A. 2001 Supp. 84-9-322(a)(2). Conflicting security interests have priority according to the time of filing or perfection. J.I. Case Credit Corp. v. Foos, 11 Kan. App. 2d 185, 188, 717 P.2d 1064, rev. denied 239 Kan. 694 (1986).
Jones contends that he became a perfected secured party though possession of the personal property. The record on appeal indicates that Jones did not take possession of the subject property until February 1997. The Bank had filed its security interest in March 1992 and a continuation statement in December 1996, which gave it priority status through December 2001. This made Jones’ status as a perfected secured party junior to the Bank’s. See K.S.A. 2001 Supp. 84-9-322(a)(1).
The Bank was awarded a judgment of $294,627.11 in the foreclosure action. The trial court awarded interest at the rate of $73.87 per day until the debt was paid in full. The journal entry was filed on April 23,1997. The first execution sale was held on October 13, 1999. Interest which would have accrued for 903 days would have been $66,704.61. The Bank’s judgment plus interest totals $361,331.72.
Noblit and Blase held a mortgage in the amount of $220,000. The trial court awarded interest in the amount of 10 percent per year after March 13,1997. The real estate was sold on October 13, 1999. Using rough calculations, we determine that Noblit and Blase’s judgment plus interest amounted to $279,510. In addition, the trial court awarded Noblit and Blase costs and attorney fees in the amount of $750. The total judgment due to Noblit and Blase is $280,260.
The Bank assigned its interests in the personal property and its superior mortgage to Noblit and Blase who then held both judgments. In turn, Noblit and Blase assigned their rights to Petty. Petty’s outstanding judgment totals $641,591.72. Petty paid $600,000 for the real estate and some personal properly at the sheriffs sale on October 13, 1999. The costs of the sale were $1,051.86. The record on appeal shows that AST owed $33,898.47 in outstanding real estate taxes. After the costs and taxes were subtracted from the amount of the sale, there was $565,049.67 remaining for disbursement.
Jones has no interest in the real estate. Through assignment from Noblit and Blase, Petty is entitled to reimbursement on his assigned mortgage rights. See Mid Kansas Fed’l Savings & Loan Ass'n v. Zimmer, 12 Kan. App. 2d 735, 736, 755 P.2d 1352 (1988). Thus, only $284,789.67 remained to satisfy the Bank’s original judgment against AST’s personal property. The Bank’s judgment totaled $361,331.72, which leaves a $76,542.05 shortfall.
Petty purchased numerous items of personal property for $60,000 at the November 27, 2000, sale. It appears that some of the items purchased by Petty are the same items to which Jones claims ownership. Total expenses for the sale amounted to $7,572.44. That left $52,427.56 to be credited towards the outstanding judgment. The judgment balance after the October 13, 1999, sale was $76,542.05.
In satisfying debts when property is sold, the first in time perfected secured party must be paid before any subsequent perfected secured party. See K.S.A. 2001 Supp. 84-9-322(a)(1). Likewise, a mortgagee is entitled to recover profits from the foreclosure of a mortgage. Since Petty has still not been made whole for the debt which represents the Bank’s interest in AST’s personal property, there is no money to satisfy Jones’ security interest.
Jones argues without citation to any relevant authority that the trial court erred by requiring him to maintain the burden of proof of his priority interest in the equipment. Jones believes that he should have had the same burden of proof as a properly pled de fendant to the case. He alleges that this error invalidates all of the trial court’s findings of fact.
On appeal, the issue of an intervenor’s burden of proof involves a question of law over which this court has unlimited review. See Lindsey v. Miami County National Bank, 267 Kan. 685, 689-90, 984 P.2d 719 (1999).
The Kansas appellate courts have only addressed the issue of an intervenor’s burden of proof in other types of cases. In Purma v. Stark, 224 Kan. 642, 643, 585 P.2d 991 (1978), the Kansas Supreme Court ruled that in a garnishment of a joint bank account, there is a presumption of equal ownership. Where there is a claim that the account is owned other than equally, the burden of proof is on the intervenor asserting such a claim. 224 Kan. at 644-45.
Jones argued at trial that the Bank should have had the burden to prove it was entitled to foreclose on AST’s property. We have already concluded that the Bank, as a first in time perfected secured party, was entitled to foreclose on AST’s property and recover the proceeds from its sale. The trial court correctly placed the burden of proof upon Jones, who was trying to prove that his perfected security interest in items of personal property was superior to the Bank’s. We hold that where a party intervenes in a foreclosure action claiming priority over another perfected security interest, the intervenor has the burden of proving its priority.
Next, Jones claims that the trial court erred in denying his motion to disqualify Noblit and Blase’s attorney. Jones filed his motion to disqualify prior to trial, claiming that the attorney had a conflict of interest and was a potential witness in the case because he served as an officer of AST and was personally involved in several of the relevant transactions. Jones’ motion was renewed at the beginning of the trial. The motion was denied; however, the trial court noted that the matter could be revisited if it appeared the attorney would be a necessaiy witness on a material issue. Jones has cited no relevant authority to support his claim.
In deciding whether an attorney should be disqualified, we consider whether the trial court’s findings of fact are (1) supported by substantial competent evidence and (2) sufficient to support the conclusions of law. Barragree v. Tri-County Electric Co-op, Inc., 263 Kan. 446, 454-55, 950 P.2d 1351 (1997).
The general rule regarding conflicts of interest is found at KRPC 1.7 (2001 Kan. Ct. R. Annot. 354). It reads, in relevant part:
“A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
“(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
“(2) each client consents after consultation.”
Under KRPC 1.7, the general rule for disqualification of an attorney is that tire burden of proof is on the party who seeks disqualification. Quality Developers, Inc. v. Thorman, 29 Kan. App. 2d 702, Syl. ¶ 3, 31 P.3d 296 (2001). In deciding a motion to disqualify counsel, the trial court must balance several competing considerations, including the privacy of the attorney-client relationship, the prerogative of a party to choose counsel, and the hardships that disqualification imposes on the parties and the entire judicial process. 29 Kan. App. 2d at 711.
Jones’ motion to disqualify is different from the typical motion under KRPC 1.7 because Jones is not claiming that his attorney had a conflict of interest. See Barragree, 263 Kan. at 456. Instead, Jones claims that Noblit and Blase’s attorney had a conflict of interest. We do not believe that Jones has standing to raise the issue of a conflict with another party’s attorney, and any discussion of a general conflict of interest is inappropriate.
Where the party seeking disqualification is also the one wanting to call die attorney as a witness, the court must be especially sensitive to the potential for abuse. LeaseAmerica Corp. v. Stewart, 19 Kan. App. 2d 740, 750, 876 P.2d 184 (1994).
The prohibition against a lawyer testifying for his or her client has its basis in the rules of evidence. The rule prohibiting a lawyer from acting as both an advocate and a witness on behalf of the client originated in the law of evidence as a corollary to the general principle that neither a party nor one aligned in interest with a party is competent as a witness on the party’s behalf. LeaseAmerica, 19 Kan. App. 2d at 745.
KRPC 3.7 (2001 Kan. Ct. R. Annot 413) disqualifies a lawyer when there is a likelihood that the lawyer will be a “necessary” witness. This standard requires the opposing party to bear a higher burden on a disqualification motion, permits tire court to delay ruling until it can be determined that no other witness could testify, and obviates disqualification if the lawyer’s testimony is merely cumulative. LeaseAmerica, 19 Kan. App. 2d at 751.
In LeaseAmerica, this court approved of the language used by the Supreme Court of Appeals of West Virginia, which noted that there are three factors to be considered when weighing a motion to disqualify an attorney because the opposing party desires to call the attorney as a witness. The West Virginia court considered: (1) whether it had been shown that the attorney would give evidence material to the determination of the issues being litigated; (2) whether the evidence could not have been obtained elsewhere; and (3) whether the testimony would have been prejudicial or potentially prejudicial to the testifying attorney’s client. 19 Kan. App. 2d at 751.
The trial court acted appropriately by denying Jones’ motion to disqualify pending further information. It appears that the trial court was willing to proceed with disqualification if it became necessary during the trial. Jones never called Noblit and Rlase’s attorney as a witness. Therefore, we cannot conclude that the trial court erred by denying Jones’ motion. There is nothing for this court to review, since the trial court was never called upon to apply KRPC 3.7. Jones’ argument to the contrary is without merit.
Jones argues that the sale of the property should have been stayed because he had a senior priority interest. Our standard of review here is abuse of discretion. Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. The party seeking the stay bears the burden of proof to establish that the stay is necessary. State ex rel. Stovall v. Meneley, 271 Kan. 355, 368, 22 P.3d 124 (2001). A stay in a civil case is an extraordinary remedy. 271 Kan. at 367.
Jones’ basic premise is faulty because he does not have a senior interest. He is not entitled to recover any funds until all of Petty’s judgment is satisfied. Until that point in time, Jones’ interests are subordinate. Jones’ arguments to this court are without merit.
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Bukaty, J.;
Robert Davenport was found guilty of driving under the influence in the municipal court of Hutchinson. He appealed to the district court of Reno County. That court sustained his motion to suppress certain evidence. The City of Hutchinson (City) filed this interlocutory appeal, and the district court continued the trial pending this court’s ruling.
The case presents a single question: Was the stop of Davenport by the arresting officer proper under K.S.A. 22-2402? The relevant facts are not in dispute. We are presented with a question of law, and our review is de novo. See State v. Field, 252 Kan. 657, 847 P.2d 1280 (1993). We hold that the stop was not proper and that the trial court properly suppressed the evidence.
Davenport went to the Hutchinson Law Enforcement Center (Center) to check on his daughter whom the police had picked up and to locate her vehicle. Lieutenant Randy Henderson allowed Davenport into the office so Davenport could make a telephone call.
Henderson then took Davenport to the Center’s basement to view his daughter’s vehicle. At that time, the two men were within a few feet of each other and were together for about 5 minutes. Henderson detected the odor of alcohol on Davenport’s breath. Henderson mentioned the odor to Davenport and told him not to drive a vehicle. Davenport replied he was walking, not driving, home. Henderson found this strange because Davenport had mentioned that he lived in Wichita.
Henderson had worked for the police department for 25 years. He was trained in detecting people under the influence of alcohol and had made several arrests for DUI.
After Davenport left the building, Henderson watched him from a window. Davenport walked across the street and stood near a building for less than 5 minutes. The lieutenant described Davenport’s behavior as “looking around up and down the street, both to the south and specifically to the west.” Henderson then saw Davenport get into a pickup truck, start it up, and back it out. He testified that he then called Sergeant David Miller who was in the area.
Henderson told Miller that a man he thought might be intoxicated had just left the station. He also relayed Davenport’s earlier statements about walking although he lived in Wichita. Henderson then told Miller of Davenport’s location outside.
Henderson testified at the suppression hearing that he believed Davenport was possibly intoxicated. Davenport had neither slurred his words nor had an unsteady gait. His eyes, however, were blood shot. Henderson’s concern was that Davenport might be involved in an accident and hit someone. He asked Sergeant Miller to check out and determine whether Davenport could safely operate a vehicle.
Henderson also testified Davenport did not commit any traffic infractions while backing out his pickup truck, nor did he back out in an unusual fashion. Henderson soon lost track of Davenport, but in the short time he observed him driving, Henderson noted that Davenport did not drive in an unusual manner.
Miller testified he, too, knew how to recognize people under the influence of alcohol. Upon his arrival, Miller observed Davenport walk over to a building, stand there for 3 to 5 minutes, and tiren get into his pickup truck.
Miller testified it looked as if Davenport was waiting for a ride. Other officers left the area, but Miller remained. He saw nothing unusual about Davenport’s gait as he watched Davenport walk across the street. He saw Davenport get into his pickup, back out, and drive east. There was also nothing unusual about the way Davenport was driving. Davenport appropriately stopped at a red light, and he proceeded through the intersection when the light turned green. When Miller activated his lights, Davenport pulled over. Davenport provided Miller with his driver’s license and insurance “[a]fter a short period of time” and some fumbling.
The City asserts that since the arresting officer believed Davenport was committing a crime, the trial court erred in granting Davenport’s motion to suppress. Davenport claims Miller did not have sufficient articulable facts to formulate a reasonable suspicion that Davenport was committing a crime.
In its memorandum opinion, the district court framed the issue as “whether K.S.A. 22-2402 permitted Sergeant David Miller to stop the defendant on the date, time and place in question.” The district court then ruled:
“The defendant committed no traffic violation. His driving was not erratic. His speech was not slurred. His gait was normal. There was no threat to the safety of the officer. He was cooperative. There was no reason for Sergeant Miller to stop this man.
“The Court finds that Sergeant Miller did not have specific articulable facts which would reasonably create a suspicion that the defendant had committed, was committing, or was about to commit a crime. Hunches or unpartícularized suspicion are not enough. If Lieutenant Henderson had believed [the] defendant was intoxicated, he could have arrested him at the Law Enforcement Center. He did not.”
We agree.
K.S.A. 22-2402(1) states: “Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such suspect and an explanation of such suspect’s actions.”
“The stop of a vehicle being driven upon the streets . . . always constitutes a seizure. Therefore, to stop a moving vehicle an officer must have articulable facts sufficient to constitute reasonable suspicion under K.S.A. 22-2402 and Terry [v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct 1868 (1968)]. [Citation omitted.] To stop a vehicle to investigate circumstances which provoke suspicion, an officer must be aware of ‘specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion’ that the vehicle contains individuals involved in criminal activity. [Citation omitted.]” State v. McKeown, 249 Kan. 506, 510, 819 P.2d 644 (1991).
A police officer does not have to know the potential defendant was or is involved in criminal activity. Instead, there must be a showing of some facts which would create suspicion in a reasonable person. State v. Finley, 17 Kan. App. 2d 246, 838 P.2d 904, rev. denied 251 Kan. 940 (1992).
Reasonable suspicion is
“ ‘a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less rehable than that required to show probable cause. . . . Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the “totality of the circumstances — the whole picture” [citation omitted] that must be taken into account when evaluating whether there is reasonable suspicion.’ Alabama v. White, 496 U.S. 325, 330, 110 L. Ed. 2d 301, 110 S.Ct. 2412 (1990).” State v. Slater, 267 Kan. 694, 697, 986 P.2d 1038 (1999).
Although police officers must have more than an inchoate and unparticularized suspicion or hunch, the level of suspicion is much less than a preponderance of the evidence standard. Police officers need only have a minimal level of objective justification to make the stop. State v. Steen, 28 Kan. App. 2d 214, 217, 13 P.3d 922 (2000).
Even with the lesser requirements of the reasonable suspicion standard, the trial court properly determined that there were no articulable facts which create a suspicion that Davenport was driving while under the influence or was involved in any other criminal activity. Even if'we combine the knowledge of Henderson and Miller, the only facts suggestive of unusual conduct are that Davenport had alcohol on his breath and that he stated he was walking. Neither of these facts by themselves or together create a reasonable suspicion that justified Miller stopping Davenport in the absence of some indication that he was intoxicated and too impaired to drive.
The City cites many cases to bolster its argument that the stop was proper. In each situation where the court found the stop to be proper, however, there were some facts which indicated that the defendant had engaged in some illegal activity prior to being stopped. Here, no such facts exist. Alcohol on one’s breath alone does not provide a reasonable suspicion to support a stop, nor does the statement by Davenport that he was walking.
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Pierron, J.:
Theodore C. Knapp is currently serving two consecutive life sentences for first-degree murder.
On September 12,1996, the Kansas Parole Board (KPB) denied Knapp’s parole and deferred his next parole hearing for 5 years, or until 2001. After more than 30 days from the last action by the KPB, he filed a K.S.A. 60-1501 petition in the district court. The court dismissed the action because Knapp’s petition was filed outside the 30-day hmitation provided in K.S.A. 1996 Supp. 60-1501(b). On appeal, this court affirmed the district court. Knapp v. Nelson, Case No. 81,089, unpublished opinion filed July 9,1999.
The KPB last heard Knapp’s case on August 21,2001, and issued an action notice on August 27, 2001:
“After considering all statutory factors contained in KSA 22-3717, the decision of the KPB is: Pass to September 2006. Pass reasons: serious nature/circumstances of the crime(s); violent nature of the crime(s); denies responsibility; objections to parole. Extended pass reasons: Inmate has been sentenced for a class A or B felony or an off-grid felony and the board makes a special finding that a subsequent parole hearing should be deferred for 5 years, because it is not reasonable to expect that parole would be granted at a hearing if held before then, for the reasons indicated below: offender denies any responsibility for crimes; time served is not considered sufficient for the loss of two (2) lives and any less time served would diminish the value of the victims’ lives.”
On September 27, 2001, Knapp filed a K.S.A. 2001 Supp. 60-1501 petition challenging the KPB ruling which passed him for parole until 2006. He claimed the KPB ruling was arbitrary and capricious and violated applicable statutes and the Ex Post Facto Clause of the United States Constitution.
On November 16, 2001, the district court summarily dismissed the petition for failure to state a claim upon which relief could be granted and assessed costs to the petitioner.
Knapp brings this habeas corpus action to argue that K.S.A. 2001 Supp. 22-3717, as amended, violates tire Ex Post Facto Clause of the United States Constitution by allowing the KPB to pass consideration of him for 5 years. Knapp argues that the statute in effect when he committed his crimes is applicable, and the KPB’s failure to follow the old statute resulted in an arbitrary and capricious decision.
State legislatures are prohibited from enacting an ex post facto law. United States Constitution., Art. I, § 10, cl. 1. The Ex Post Facto Clause bars enactments which, by retroactive operation, increase the punishment for a crime after its commission. Collins v. Youngblood, 497 U.S. 37, 42, 111 L. Ed. 2d 30, 110 S. Ct. 2715 (1990).
“ ‘A habeas corpus action is the appropriate procedure for reviewing decisions of the parole board. However, because parole is a privilege, a matter of grace exercised by the KPB, this court’s review of the denial of parole is limited to whether the KPB complied with applicable statutes and whether its action was arbitrary and capricious.’ [Citation omitted.]” Torrence v. Kansas Parole Board, 21 Kan. App. 2d 457, 458, 904 P.2d 581 (1995).
Knapp fails to cite which particular version of the statute is applicable to him. Prior to 1995, the relevant part of K.S.A. 22-3717(h) (now [j]) stated: “If parole is denied for an inmate sentenced for a class A or class B felony, the board shall hold another parole hearing for the inmate not later than three years after the denial and shall conduct an annual file review for such inmate.”
Following the 1996 legislative changes, the relevant part of K.S.A. 2001 Supp. 22-3717(j) now reads:
“If parole is denied for an inmate sentenced for a class A or class B felony or an off-grid felony, the board shall hold another parole hearing for the inmate not later than three years after the denial unless the parole board finds that it is not reasonable to expect that parole would be granted at a hearing if held in the next 10 years or during the interim period of a deferral. In such case, the parole board may defer subsequent parole hearings for up to 10 years but any such deferral shall require the board to state the basis for its findings.”
As a general rule of statutory construction, a statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively. However, there is an exception to the general rule. If the statutoiy change does not prejudicially affect the substantive rights of the parties and is merely procedural or remedial in nature, it applies retroactively. State v. Martin, 270 Kan. 603, 608-09, 17 P.3d 344 (2001).
Knapp’s argument that the statute violates the Ex Post Facto Clause is without merit. We have previously determined that K.S.A. 2001 Supp. 22-3717(j) is procedural and not subject to the prohibitions of the Ex Post Facto Clause. Branson v. McKune, 27 Kan. App. 2d 301, 302, 3 P.3d 572 (2000); Bookless v. McKune, 22 Kan. App. 2d 829, 926 P. 2d 661, rev. denied 260 Kan. 991 (1996); Lamb v. Kansas Parole Board, 15 Kan. App. 2d 606, 812 P.2d 761 (1991).
Since the changes to the statute were procedural, K.S.A. 2001 Supp 22-3717(j) applies retroactively and Knapp is not entitled to a parole review every 3 years. The decision of the KPB to defer parole for 5 years was not arbitrary or capricious.
Knapp argues Garner v. Jones, 529 U.S. 244, 255, 146 L. Ed. 2d 236, 120 S. Ct. 1362 (2000), modified the analysis for ex post facto challenges to changes in parole statutes. This is an issue of first impression for Kansas appellate courts.
In Gamer, the defendant was convicted of murder and sentenced to life in prison in Georgia. At the time of his conviction, Georgia statutes provided that the Georgia Board of Pardons (Board) must consider those serving life sentences for initial parole consideration after 7 years and subsequent reconsideration hearings were to take place every 3 years. The Board later amended its regulations increasing the interval between reconsideration from 3 to 8 years after the initial parole denial of prisoners serving life sentences.
The United States Supreme Court set some rules for courts to determine whether statutes that retroactively give discretion to parole boards to decrease the frequency of parole hearings violate the Ex Post Facto Clause of the United States Constitution.
The Supreme Court began its analysis by reviewing its decision in California Dept. of Corrections v. Morales, 514 U.S. 499, 131 L. Ed. 2d 588, 115 S. Ct. 1597 (1995). In Morales, the Court noted that not every retroactive procedural change creating a risk of altering an inmate’s terms or conditions of confinement is prohibited, but rather it hinged on the matter of degree. Therefore, the Court determined the controlling inquiry was whether retroactive application of the change in the law created “ ‘a sufficient risk of increasing the measure of punishment attached to the covered crimes.’ [Citation omitted.]” 529 U.S. at 250. The Morales court indicated that amended rules which created only the “ ‘speculative and attenuated possibility’ ” of increasing the measure of punishment did not violate the Ex Post Facto Clause. 529 U.S. at 251.
The Garner court’s analysis then turned to the operation of the statutory amendment in the whole context of Georgia’s parole system because the essence of the defendant’s case was “not that discretion has been changed in its exercise but that, in the period between parole reviews, it will not be exercised at all.” 529 U.S. at 254. The Court concluded the statutory structure, its implementing regulations, and the Board’s unrefuted representations regarding its operations did not lead to this conclusion. In reaching this conclusion, the Supreme Court noted the Board was required by law to set reconsideration hearings at a maximum of 8 years, and Georgia’s parole rules permitted additional reviews if there were changes in the prisoner’s circumstances warranting an earlier review. 529 U.S. at 254-55.
The Supreme Court went on to hold: “When the rule does not by its own terms show a significant risk, the respondent must demonstrate, by evidence drawn from the rule’s practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule.” 529 U.S. at 255. Therefore, a defendant must show that as applied to his or her sentence, the law created a significant risk of increasing his or her punishment. This showing could be made through evidence about the general operation of the parole system on how the board exercises its discretion, including internal policy statements or actual practices. 529 U.S. at 255-56.
Here, Knapp has failed to show a sufficient risk that his effective punishment will be increased under K.S.A. 2001 Supp 22-3717(j). He was convicted of two counts of first-degree murder and sentenced to two life terms. It is difficult to see how a 5-year deferral increased the risk of Knapp serving a longer time.
The KPB exercised its discretion after a full hearing and gave credible reasons for deferring parole because it was not reasonable to expect that parole would be granted in the intervening period. Knapp may request that his parole hearing be advanced if circumstances change significantly during the deferral period. Kansas Administrative Regulations provide the KPB with discretion to advance the next parole hearing. Swisher v. Hamilton, 12 Kan. App. 2d 183, 186, 740 P.2d 95 (1987); see K.A.R. 45-6-2. Furthermore, the regulations provide that an inmate may appeal or request reconsideration of the KPB’s decision. K.A.R. 45-4-6(b); see Crump v. Kansas, 143 F. Supp. 2d 1256, 1266 (D. Kan. 2001).
Under the circumstances of this case, Knapp has not shown that application of the 1996 amendment of K.S.A. 22-3717(j) to him presents a sufficient risk of greater punishment for his crimes. Therefore, application of K.S.A. 2001 Supp 22-3717(j) to Knapp does not constitute a violation of the Ex Post Facto Clause of the United States Constitution.
Last, Knapp argues he was not permitted enough discovery to establish that K.S.A. 2001 Supp 22-3717(j) in its operation created a significant risk of increased punishment. See Garner, 529 U.S. at 257. The facts of Knapp’s situation as affected by the statutoiy change are known. No further discovery is necessary.
Affirmed. | [
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Green, J.;
Continental Western Insurance Company (Continental Western) appeals from summary judgment entered in favor of KFS, Inc., f/n/a Keller Fire & Safety, Incorporated (KFS). On appeal, Continental Western argues that the trial court erred in granting summary judgment. We agree and affirm in part, reverse in part, and remand with directions.
This case arises out of a fire that occurred on the premises of Inland Pools & Spas, Inc., d/b/a The Spa Factory (The Spa Factory), in Olathe, Kansas, on July 17,1998. On that date, Continental Western was the casualty insurer of The Spa Factory and, as a result of the fire, made payments to The Spa Factory totaling nearly $600,000. Continental Western brought this action against KFS claiming that at least part of the damages resulted from the failures of KFS in designing, manufacturing, installing, or inspecting a fire suppression system that did not activate on the day of the fire.
KFS installed the fire suppression system at The Spa Factory premises under an oral agreement negotiated between John Stroud for The Spa Factory and Julian Ray for KFS. No written contract regarding the installation existed. Ray made no agreement with Stroud or anyone else at The Spa Factory to limit KFS’s liability or damages regarding the installation of the system.
The City of Olathe requires semiannual inspections of fire suppression systems by qualified individuals. Olathe Mun. Code § 16.05.010 (1998). KFS informed The Spa Factory that it was qual ified to conduct the required inspections. The Spa Factory entered into an oral contract with KFS to inspect the fire suppression system. Ray made no agreement with anyone at The Spa Factory to limit KFS’s liability or damages regarding the inspection of the system.
After performing the last inspection before the fire, KFS allegedly presented a service agreement or work order to someone at The Spa Factory. Immediately above the signature line, tire work order states:
“I HEREBY ACCEPT ABOVE PERFORMED SERVICE AS BEING SATISFACTORY AND ACKNOWLEDGE THAT EQUIPMENT HAS BEEN LEFT IN GOOD CONDITION. I HAVE READ, UNDERSTAND AND AGREE TO ALT, TERMS AND CONDITIONS ON THE REVERSE SIDE OF THIS DOCUMENT.”
The “Terms and Conditions” delineated on the reverse side of the work order states, in part, as follows:
“8. Integration. This Invoice is the complete, entire, exclusive agreement and contract existing between the parties regarding the purchase and use of the material, equipment and services included in this Invoice and no oral or written representations, agreements, warranties, or covenants made prior to this Invoice by any party hereto is valid or enforceable unless it is attached to this invoice and made a part hereof.”
The work order also contains the following provisions:
“6. Limitation of Damag.es. Unless otherwise prohibited by law, the liability of [KFS] for failure, incomplete performance or operation, or any other defect in the equipment or system, or its design, installation, maintenance or service, including, but not limited to claims for breach of contract, breach of express or implied warranties, strict liability, or negligence shall be limited to the reasonable expense of repairing and replacing the equipment, as [KFS] shall elect. In no event shall [KFS] be liable for any special, consequential or incidental damages, nor any liability for bodily injury, property damage or economic loss.
“7. WAIVER OF WARRANTIES. UNLESS OTHERWISE PROHIBITED BY LAW, NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, IS MADE BY SELLER REGARDING THE MATERIAL, EQUIPMENT OR SERVICES INCLUDED ON THIS INVOICE, UNLESS SPECIFICALLY SET FORTH IN WRITING.”
KFS moved for summaiy judgment, arguing that the limitation of damages and waiver of warranties provisions were valid and enforceable. Continental Western responded; arguing that the terms and conditions of the work order were not part of the installation or inspection contracts and cannot be construed to modify those contracts because they unilaterally modified the terms of the prior agreements and were not supported by a meeting of the minds or independent consideration. Continental Western further challenged the status of the work order as a contract. Finally, Continental Western claimed that the limitation provisions violated Kansas public policy and, as such, were void and unenforceable.
The trial court concluded that the work order was a contract between the parties or at least part of the agreement between the parties. The trial court further found that the limitation provisions were conspicuous and were not contrary to public policy. Consequently, the trial court granted summary judgment. The trial court later clarified that the work order governed the initial installation of the fire suppression system as well as the later inspections. The trial court further determined that the exclusionaiy and limiting clauses were not contrary to public policy.
Continental Western appeals, arguing that the trial court erred in granting summary judgment in favor of KFS. The standard of review for a motion for summary judgment is well established:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000).
Continental Western first argues that the trial court erred in granting summary judgment because KFS failed to authenticate the work order, which the trial court found to constitute a contract. Specifically, Continental Western contends that KFS failed to authenticate the work order because it did not establish the identity of the signatory, the signatory’s authority to sign the document on behalf of The Spa Factory, and the signatory’s authority to bind The Spa Factory to a contractual agreement. Continental Western maintains that without these affirmations, KFS failed to demonstrate that the work order was in fact a contract.
KFS responds by arguing that this issue was not preserved for appeal because Continental Western failed to argue to the trial court that the work order was not properly authenticated. Issues not raised before the trial court cannot be raised on appeal. Dalmasso v. Dalmasso, 269 Kan. 752, 765, 9 P.3d 551 (2000). A party cannot raise an issue on appeal where no contemporary objection was made and where the trial court did not have an opportunity to rule. State v. Whitesell, 270 Kan. 259, 283, 13 P.3d 887 (2000). Moreover, our Supreme Court has found that a party’s failure to raise a question as to the authenticity of a document is a factor in demonstrating the document’s authenticity. See, e.g., State v. Plaskett, 271 Kan. 995, 1017-18, 27 P.3d 890 (2001).
Continental Western acknowledges that although it failed to object to the authentication of the work order, it argues that it did not waive any error in the authentication of the document because K.S.A. 2001 Supp. 60-256(c) requires the movant to present sufficient evidence to support its motion. Although 60-256(c) requires the movant to show that there was no genuine issue as to any material fact and that it was entitled to judgment as a matter of law, Continental Western was required to object to the authentication of the work order to preserve the issue for appeal. As a result, we find that Continental Western waived any error in the authentication of the work order by failing to object below.
Continental Western next maintains that the trial court erred in determining that the work order constituted a contract between The Spa Company and KFS. Continental Western disputes that the work order constituted an agreement governing any aspect of the relationship between the parties and argues that the function of the work order is confined to its facial appearance — a work order.
Continental Western argues that summary judgment was inappropriate because the issue of whether the work order constituted a contract was a question of fact. Whether a contract exists is a question of fact. Reimer v. The Waldinger Corp., 265 Kan. 212, 214, 959 P.2d 914 (1998). As such, we find that the trial court erred in granting summary judgment because a factual question existed as to whether the work order constituted a contract between The Spa Company and KFS.
Continental Western next argues that even if the work order constituted a contract, the trial court erred in finding that the work order modified the prior oral contracts for installation and inspection of the fire suppression system.
The uncontroverted evidence indicates that the parties entered into oral agreements for the installation and future inspections of the fire suppression system. The evidence further indicates that the oral contracts contained no limitation of damages or disclaimer of warranties. The trial court apparently determined as a matter of law that the work order modified the prior oral agreements. However, whether a term of a contract has been modified or waived by a subsequent agreement is a question of fact. In re Estate of Snook, 272 Kan. 1256, Syl. ¶¶ 1, 2, 38 P.3d 684 (2002); Belger Cartage Serv., Inc. v. Holland Constr. Co., 224 Kan. 320, 330, 582 P.2d 1111 (1978).
Moreover, as noted previously, the integration clause of the work order provides that “[tjhis invoice is the complete, entire, exclusive agreement and contract existing between the parties regarding the purchase and use of the material, equipment and services included in this invoice . . . .” (Emphasis added.) Similar language is included in the waiver of warranties clause: “NO WARRANTY ... IS MADE BY SELLER REGARDING THE MATERIAL, EQUIPMENT OR SERVICES INCLUDED ON THIS INVOICE . . . .” (Emphasis added.)
The work order indicates that the service included in the invoice is “fire system inspection.” The work order further bills The Spa Company for equipment added or replaced during the inspection. Specifically, the work order lists 15 fuse links, an S-hook assembly, and a remite break rod as the equipment or materials subject to the work order.
A trier of fact could interpret the integration and waiver of warranties clauses of the work order as limiting the scope of the work order to the material, equipment, and services included in the invoice. Instead of modifying the oral installation and inspection contracts as asserted by KFS, the work order could reasonably be interpreted by a trier of fact as an entire contract. When the evidence pertaining to the existence of a contract or the meaning of the terms of the contract is in dispute, or the evidence pertaining to the existence of a contract or the terms of the contract admit to more than one inference, a question is presented for the trier of facts. Hays v. Underwood, Administrator, 196 Kan. 265, Syl. ¶ 1, 411 P.2d 717 (1966). Because genuine issues of material fact exist as to the degree, if any, the work order modified the oral installation and inspection contracts, summary judgment was inappropriate.
Finally, Continental Western argues that the trial court erred in granting summary judgment after determining that the provisions of the work order did not violate public policy. Continental Western argues that KFS violated a duty owed to the public that was imposed by a city ordinance requiring inspection of fire suppression systems. Continental Western argues that if the court finds that the limiting language of the work order bars some or all of Continental Western’s claims, then the court should find that KFS’ attempt to evade responsibility is void as against public policy.
A contract will be voided only if enforcement would violate “some explicit public policy” that is “well defined and dominant, and is to be ascertained by reference to the laws and legal precedents.” Paperworkers v. Misco, Inc., 484 U.S. 29, 43, 98 L. Ed. 2d 286, 108 S. Ct. 364 (1987). The public policy of a state is the law of that state as found in its constitution, statutory enactments, and judicial decisions. Petty v. City of El Dorado, 270 Kan. 847, 854, 19 P.3d 167 (2001). Whether a result is contrary to public policy is a question of law subject to unlimited appellate review. Danisco Ingredients USA, Inc. v. Kansas City Power & Light Co., 267 Kan. 760, 765, 986 P.2d 377 (1999).
Continental Western does not allege any violation of a statute, the constitution, or judicial decision, as the court in Petty found is necessary. Instead, Continental Western insists that this court should adopt as the public policy of this state, an ordinance of the City of Olathe. Continental Western fails to provide any authority for adopting the ordinance as public policy.
Mid-America Sprayers, Inc. v. United States Fire Ins. Co., 8 Kan. App. 2d 451, 660 P.2d 1380, rev. denied 233 Kan. 1092 (1983), supports KFS’s position that a statutory statement of public policy is ordinarily necessary. In that case, a limitation of liability clause in an airplane lease was held not to be in violation of public policy, in part, because there was no statutory statement of public policy that the clause offended. 8 Kan. App. 2d at 459-60. Similarly, because there was no statutory statement of public policy regarding the Hmitation of liability or warranty clauses contained in the work order, we find that the trial court correctly granted summary judgment on this issue.
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Johnson, J.;
Pursuant to leave granted by this court, Steve and Diane Burchett filed an interlocutory appeal of the denial of their motion for summary judgment. We affirm the district court’s denial of summary judgment and remand for further proceedings.
The Burchetts’ residence was totally destroyed by fire. Kansas Mutual Insurance Compány (Kansas Mutual) insured the structure. Two days before the fire, the Burchetts had raised the residence limit of Lability from $25,000 to $70,000 and had converted their “actual cash value” poLcy to a “replacement cost” poLcy. For the purpose of this appeal, it is uncontroverted that: (1) the replacement cost of the structure exceeds the limit of liability; (2) the limit of Lability was at least 80% of the cost to replace the structure at the time of the loss; (3) the Burchetts will not repair or replace the structure; (4) the actual cash value of the residence at the time of the fire was between $36,000 and $50,000; and (5) K.S.A. 40-905, the Kansas Valued PoLcy Law, does not apply in this case.
The Burchetts want to collect the $70,000 policy limit; Kansas Mutual wants to pay the actual cash value. The sole issue on appeal is whether the insurance policy allows the Burchetts to recover the replacement cost of their home, up to the policy limit, without the necessity of actually replacing the structure.
Summaiy judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. K.S.A. 2001 Supp. 60-256(c). The trial court must resolve all facts and reasonable inferences in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, the adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. The appellate courts apply the same rules. Where reasonable minds could differ as to the conclusions drawn from the evidence, summaiy judgment must be denied. Halley v. Barnabe, 271 Kan. 652, 657, 24 P.3d 140 (2001). Additionally, our standard of review on the interpretation of an insurance contract is unlimited. When an insurance contract is not ambiguous, the court will enforce the contract as written. See Elliott v. Farm Bureau Ins. Co., Inc., 26 Kan. App. 2d 790, 793, 995 P.2d 885 (1999), rev. denied 269 Kan. 932 (2000).
There are three types of replacement cost provisions in insurance polices, and all three types may appear within the same policy. The first type of provision focuses on the amount of recoveiy and often restricts the insured’s recoveiy to the smallest of the policy limits, the cost to repair the property, or the amount actually spent to replace the property. The second type of provision states that the insurer will not pay more than actual cash value for the damaged property until the repairs are completed or the property is actually replaced. The third type of provision allows the insured to collect the actual cash value of the destroyed property without prejudicing his or her right to claim additional payment for replacement cost within a specified time period. See Annot., Construction and Effect of Property Insurance Provision Permitting Recovery of Replacement Cost of Property, 1 A.L.R.5th 817, 828. Clauses similar to each of these examples are found in paragraphs 3, 4, and 5 of the Burchetts’ policy, which reads as follows:
“2. If the limit of liability on the damaged building is less than 80 percent of its replacement cost at the time of loss, we pay the larger of the following (in excess of the deductible):
a. actual cash value of the damaged part of the building; or
b. that proportion of the replacement cost of the damaged part which our limit of liability on the building bears to 80 percent of the full current replacement cost of the building.
“3. If the limit of liability on the damaged building is at least 80 percent of its replacement cost at the time of the loss, we pay the full cost of repair or replacement of the damaged part without deduction for depreciation.
We pay the smallest of the following amounts:
a. the limit of liability applicable to the building;
b. the cost (in excess of the deductible) to repair or replace the damage on the same premises using materials of equivalent kind and quality, to the extent practicable; or
c. the amount (in excess of the deductible) actually and necessarily spent to replace or repair the damage.
“4. When the cost to repair or replace exceeds the lesser of $1,000 or 5 percent of the applicable limit of liability on the damaged building, we are not hable for more than the actual cash value of the loss until actual repair or replacement is completed.
“5. You may make a claim for the actual cash value amount of the loss before repairs are made. A claim for any additional amount payable under this provision must be made within 180 days after the loss.”
The Burchetts focus on paragraph 3 of the policy as support for their argument that the company must pay the replacement cost of their dwelling, subject only to the limit of liability. The Burchetts conveniently ignore paragraph 4, which specifically limits the company’s liability on large losses to the actual cash value of the loss until actual repair or replacement is completed. Further, paragraph 5 suggests that only an actual cash value claim may be submitted prior to repairs actually being made.
The unambiguous terms of the contract require the insured to actually repair or replace the damaged property before he or she may collect the full replacement cost. If die insured does not repair or replace the damaged property, he or she is only entitled to actual cash value. Almost identical language has been interpreted to con dition recovery of replacement cost upon actual repair or replacement. See Hess v. North Pacific Ins. Co., 122 Wash. 2d 180, 182-84, 859 P.2d 586 (1993). Interestingly, the single case upon which the Burchetts rely for support, National Fire Ins. Co. v. Solomon, 96 Wash. 2d 763, 638 P.2d 1259 (1982), was harshly criticized by the Washington Supreme Court in Hess, and its holding was limited to the facts of that case. Hess, 122 Wash. 2d at 189-91. The only other case supporting the Burchetts’ position, Reese v. Northern Ins. Co., 207 Pa. Super. 19, 215 A.2d 266 (1965), has also been routinely criticized. See Hess, 122 Wash. 2d at 190.
This court and the courts of other jurisdictions when addressing this issue have otherwise unanimously held that actual repair or replacement is a precondition to recovery on a replacement cost policy. See U.S.D. No. 285 v. St. Paul Fire and Marine Ins. Co., 6 Kan. App. 2d 244, 253, 627 P.2d 1147, rev. denied 229 Kan. 671 (1981), overruled in part on other grounds by Thomas v. American Family Mut. Ins. Co., 233 Kan. 775, 779, 666 P.2d 676 (1983); see also Kolls v. Aetna Casualty & Surety Co., 503 F.2d 569, 570-71 (8th Cir. 1974) (applying Iowa law); Snellen v. State Farm Fire & Cas. Co., 675 F. Supp. 1064, 1067-68 (W.D. Ky. 1987) (applying Kentucky law); Miller v. Farm Bureau Town & Country Ins., 6 S.W.3d 432, 437-38 (Mo. App. 1999); Hess, 122 Wash. 2d at 191-92; Hilley v. Allstate Ins. Co., 562 So. 2d 184, 189-90 (Ala. 1990); Higginbotham v. American Family Ins. Co., 143 Ill. App. 3d 398, 400-01, 493 N.E.2d 373 (1986); BSF, Inc. v. Cason, 175 Ga. App. 271, 273-74, 333 S.E.2d 154 (1985).
We affirm the district court’s denial of summary judgment and •remand for further proceedings. | [
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Bukaty, J.:
Michael Lee Mitchell seeks to appeal his criminal convictions out of time. He filed a motion in the district court requesting such relief, and the court denied it. He appeals, arguing that he falls within exceptions to the rule that appeals must be timely filed. Alternatively, he argues that he should be allowed a second hearing on the motion and that he be appointed a conflict-free counsel. We affirm.
This is Mitchell’s second appeal in this regard. Previously, the trial court denied Mitchell’s request to appeal out of time. In State v. Mitchell, case no. 84,350, an unpublished opinion filed February 16, 2001, we reversed and remanded that determination with directions that the trial court conduct a hearing under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), to determine whether Mitchell waived his appeal rights or whether the facts established exceptions to the rule that an appeal must be timely filed. The trial court then conducted such a hearing and again determined that the appeal should be disallowed since no Ortiz exceptions existed. That brings us to the present appeal.
Mitchell argues that he was not informed of the time limit for filing a notice of appeal or that an attorney would be appointed for appeal if he could not afford one. He urges, therefore, that Ortiz provides for an appeal out of time.
Under K.S.A. 22-3608(c), Mitchell had 10 days following the judgment of the trial court to appeal. He clearly did not meet this requirement. Generally, appellate courts do not have jurisdiction to hear a late appeal and must dismiss it. See State v. Ji, 255 Kan. 101, 872 P.2d 748 (1994). However, in the interest of fundamental fairness, the Ortiz court recognized exceptions to the general rule where a criminal defendant either was not informed of his or her right to appeal, or was not furnished an attorney to perfect an appeal, or was furnished an attorney who failed to perfect an appeal. 230 Kan. at 736. Whether any of these exceptions excuse Mitchell from not filing a timely appeal is a question of law over which this court has unlimited review. See State v. Parker, 23 Kan. App. 2d 655, 658, 934 P.2d 787, rev. denied 262 Kan. 967 (1997).
A rather detailed consideration of the facts is necessary to determine the issue.
In August 1995, the State charged Mitchell in the present case. He retained Mitchell B. Christians to represent him. A jury then convicted Mitchell of the charges of battery, criminal damage to property, and obstruction of justice. Other charges were dismissed.
The trial court sentenced Mitchell on January 8, 1996, to 10 months for criminal damage to property, 10 months for obstruction of justice, and 6 months for battery, all to run concurrently. Also, Mitchell was on probation in a 1993 case when he committed these offenses, and the court revoked that probation. It ordered the sentences in the present case to run consecutive to that sentence.
In a letter dated May 29, 1996, Mitchell wrote to the trial judge requesting correction of the journal entry of his sentencing to reflect that the sentence on the battery charge ran concurrently instead of consecutively. In the letter, he wrote, “I am no-longer able to secure legal counsel, only as a last resort I have choosen [sic] to bring this matter to your attention, perhaps you would be gracious enough to look into or to assign an attorney to verify this claim?” The trial judge signed a nunc pro tunc order making the change.
On June 20, 1996, Mitchell wrote to the Sherman County Clerk requesting a copy of the docketing statement and the names of the court reporters who had been assigned to his 1993 and 1995 cases.
On October 7, 1996, Mitchell filed numerous pro se motions: motion to correct illegal sentence, motion for appointment of counsel, motion to proceed in forma pauperis, motion to order transport to court, motion to order show cause, and motion for jail credit. In December 1996, the court held a hearing on the motion to correct illegal sentence, and Mitchell was represented by Christians. The trial court granted Mitchell an additional 134 jail credit days.
Mitchell wrote to the trial court on February 5,1997, requesting rulings on his motions and that a copy of the rulings be sent to him. Additionally, Mitchell stated, “My attorney Mr. Christians has failed to adequately represent me. He never filed my motions for jail credit. I don’t think he appealed my case. Nor has he ever contacted me after Jan-8-96.” The journal entry correcting the jail credit was filed on February 27, 1997.
Two years later, on February 9, 1999, Mitchell wrote the trial court requesting that another attorney, Bonnie Selby, represent him in an appeal of the present case. He stated that Selby had represented him in a 1997 case which was similar to the present one. He further stated that Christians had not contacted him in any way or informed him of his case status.
In response to this letter, the court held a hearing on June 7, 1999; Michael Irvin, as Sherman County Attorney, was the only party present. The court stated it had reviewed the files and found no indication that Mitchell intended to file an appeal. The court held that any appeal was out of time and it was “not going to go back and attempt to reopen it for appeal purposes at this point.” This ruling was the subject of the first appeal in this case.
As stated earlier, on remand, the court held an Ortiz hearing. Mitchell appeared personally and by Bonnie Selby, who was the current Sherman County Attorney, and the State appeared by the acting Sherman county attorney, Scott Showalter. Mitchell testified he and Christians had discussed an appeal but not time limits. He said that he told Christians he wished to appeal on the day of the jury verdict but did not recall whether Mitchell said anything about the appeal on the sentencing day.
On the other hand, Christians testified he was retained through Mitchell’s uncle to represent Mitchell on two. different cases, the present case and a municipal court case. Christians filed an appeal to the district court from the municipal court convictions. Christians recalled the conversation about Mitchell’s appeal in this case on the day of jury trial. He told Mitchell he needed some type of retainer to represent him further through appeal.
There is no indication that the trial court advised Mitchell of his right to appeal at the time of sentencing. That, of itself, is not dispositive of the issue however. In State v. Mitchell, 231 Kan. 144, 146-47, 642 P.2d 981 (1982), defendant Mitchell (no relation to appellant in the present case) claimed he had not been informed either by the court or by counsel of his right to appeal. The Mitchell court stated: “While it is clear the defendant was not informed of his right to appeal by the judge, it is apparent from his actions that he knew something of his appeal right. The question for decision is whether, under the facts of this case, he knew enough. We find that he did not.” 231 Kan. at 146. The court decided to consider the appeal out of time, holding that it was apparent from the evidence that the defendant did not have the particular knowledge of the time frame for his appeal. 231 Kan. at 147.
Similarly, Mitchell maintains that he was not informed of the required time frame for appeal. As Christians testified and Mitchell did not deny, they discussed the appeal after his convictions by the jury. However, the record is not clear whether they discussed the time frame of the appeal.
Mitchell, however, presented facts that distinguish it from the present case. The record there reflects that the defendant made several inquiries regarding an appeal starting shortly after his sentencing. He apparently was told on more than one occasion to file his appeal at a later time. In essence, he was led down the path and never told about the timeliness requirements until long after the time expired. Here, Mitchell never made inquiries with the court about appealing his case until several years later. His first inquiry with the court about assistance for an appeal did not occur until February 1999, when he sent a letter to the trial court asking if Selby could represent him on an appeal of this case. Even then, he never filed a formal written notice of appeal.
Other facts here suggest that Mitchell knew of his appeal rights and that his failure to act in any fashion on them amounts to a waiver.
Mitchell has a significant number of criminal convictions in his past, some of which he has appealed and some he has not. They include felony theft in 1994; aggravated escape, two counts of felony theft and criminal damage in 1990; and misdemeanor theft, battery, and burglary in 1985. Mitchell also had five municipal convictions in 1994 and three in 1995, including the two for which Christians was retained to defend him.
Mitchell argues that neither the trial court nor Christians informed him of his right to appointed counsel if he could not afford to retain his current counsel. However, Mitchell wrote to the trial court requesting correction of the sentencing journal entry in May 1996, 4 months after sentencing. He requested that the court look into the matter or appoint an attorney for him to verify his claim.
In October 1996, Mitchell filed numerous pro se motions. In December 1996, the trial court held a hearing on the motion to correct an illegal sentence, at which time Christians still represented Mitchell.
These facts indicate Mitchell was aware of his appeal rights and was aware that courts appoint attorneys in posttrial matters. His retained attorney still represented him after sentencing. Also, he filed many motions pro se, but not a notice of appeal. He never requested an appeal until 1999, almost 3 years after the sentencing and after he served the present sentence and committed additional crimes. We hold that these facts constitute a waiver of his appeal.
Mitchell next contends that his counsel at the Ortiz hearing had a conflict of interest at the time and, therefore, he should be afforded another hearing with different counsel. State v. Jenkins, 257 Kan. 1074, 898 P.2d 1121 (1995). His point has no merit.
We first note that the trial court appointed Selby at Mitchell’s request prior to the first hearing on this timeliness issue in 1999. The court then allowed her to withdraw a few weeks later since she had accepted a position as an assistant Sherman County Attorney. Nevertheless, she appeared on behalf of Mitchell at the May 21, 2001, Ortiz hearing on remand from this court. Mitchell never objected to her appearance.
Mitchell also acknowledged that he raised this issue for the first time on appeal. Jenkins addressed the issue of when an appellate court will address such a point if it is not raised in the trial court.
“In order to establish a Sixth Amendment violation arising from multiple representation or any other alleged conflict of interest by an attorney, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer s performance. Until a defendant shows that his or her counsel actively represented conflicting interests, the defendant has not established the constitutional predicate for a claim of ineffective assistance of counsel.” Jenkins, 257 Kan. 1074, Syl. ¶ 5.
The Jenkins court then acknowledged that all facts necessary for the resolution of the issue were contained in the record and then decided to proceed to the question without remand. 257 Kan. at 1080. The same situation exists here.
The fact that Selby was an assistant or the actual county attorney at the time of the Ortiz hearing does not in itself establish an ineffective assistance of counsel claim. In State v. Wallace, 258 Kan. 639, 908 P.2d 1267 (1995), our Supreme Court ruled that a court-appointed attorney who was also acting as a special county attorney at the same time did not have a conflict of interest that constituted ineffective assistance of counsel.
Here, Selby did not represent the State at any time in this case. At the Ortiz hearing, the State appeared by Scott Showalter, who prosecuted Mitchell originally in this case. The trial court appointed Selby again to represent Mitchell. The record shows she examined Mitchell, cross-examined Christians, and made closing comments at the hearing. Despite Mitchell’s arguments that Selby could not properly represent him in his case and that he was denied his due process rights, there is no evidence that Selby’s status created manifest injustice, requiring another Ortiz hearing with new counsel.
This is not a case of actual conflict of interest where the conflict adversely affected counsel’s performance. Cf, Jenkins, 257 Kan. at 1081. Mitchell is not entitled to another Ortiz hearing with new counsel under these circumstances.
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Paddock, J.:
Thomas Lewis Hearst appeals the district court’s decision summarily dismissing his habeas corpus petition.
We affirm.
Hearst claims the district court erred by finding his due process rights were not violated during his parole revocation proceedings. He also claims the district court erred by dismissing his petition without conducting an evidentiary hearing.
Although we find there was a due process violation, we find the violation was cured by the decision of the Kansas Parole Board (KPB) at the final revocation hearing. We affirm the district court’s dismissal of the habeas corpus petition.
On August 18, 2000, Hearst was paroled from his indeterminate sentence. He was ordered to comply with several parole conditions. The first condition required Hearst to keep his parole officer continuously informed of his residence and employment and to obtain his parole officer’s advance permission to travel outside of his assigned parole district. The second condition required Hearst to obey all federal and state laws. The fifth condition required that Hearst not illegally possess, use, or traffic in controlled substances, narcotics, or other drugs.
On November 21, 2000, Hearst received a written statement of charges alleging he violated the first condition by changing his residence to an unknown location without his parole officer’s permission. The statement also alleged Hearst violated the fifth condition by trafficking in narcotics.
At the Kansas Department of Corrections (KDOC) preliminary hearing to determine if there was probable cause to show that Hearst had violated the conditions of his parole, the hearing officer found that the evidence established probable cause to believe Hearst had violated the first and fifth parole conditions which had been charged in the written statement. Unfortunately, the hearing officer also found there was probable cause to believe Hearst had violated the second parole condition that he obey all federal and state laws. The violation of the second parole condition had not been included in the written statement of charges that had been served on Hearst. The charge had been added by the hearing officer during the preliminary hearing.
The KPB conducted a final revocation hearing and found Hearst not guilty of violating the second and fifth parole conditions, but guilty of violating the first parole condition. The KPB revoked Hearst’s parole.
Hearst filed a petition for writ of habeas corpus under K.S.A. 2001 Supp. 60-1501. Hearst claimed he was denied due process during the revocation proceedings because the hearing officer (1) did not provide prior notice of the charge of violating the laws by trafficking drugs and (2) was biased during the preliminary hearing. Hearst stated the KPB’s decision to revoke his parole was arbitrary and capricious because it relied upon the hearing officer’s report.
The KDOC and the KPB filed motions to dismiss Hearst’s petition for failure to state a claim upon which relief can be granted, K.S.A. 60-212(b)(6). The district court found Hearst’s due process rights were not violated during the parole revocation proceedings and that the KPB’s decision to revoke Hearst’s parole was not arbitrary or capricious. It granted the motions to dismiss. Hearst appealed.
On appeal, Hearst’s due process arguments focus on the addition of the new charge at the preliminary hearing. Because the KPB found him not guilty of the added charge, the due process issues are arguably moot. However, the district court addressed the due process concerns. Further, an exception to the mootness doctrine exists when an issue is of statewide importance and is capable of repetition. If the exception applies, the court can consider the appeal and render a decision. Board of Johnson County Commrs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 (1996). Here, because the issue concerns the denial of due process in proceedings conducted by state agencies, we apply the exception.
In Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972), the United States Supreme Court set out the minimum requirements for the two phases in parole revocation proceedings.
The first phase includes a preliminary hearing to determine whether there is probable cause to believe that the parolee committed acts that violated his or her parole conditions. 408 U.S. at 485-86.
One of the cardinal requirements for the preliminary hearing is that the parolee must be informed of the alleged violations. 408 U.S. at 487.
The hearing officer must summarize the substance of the evidence that supports the revocation of parole and the parolee’s position and responses. Based upon this information, the hearing officer decides whether there is probable cause to hold the parolee for a final decision on revocation by the parole authority. The hearing officer should state the reasons for the decision and the evi dence relied upon, but need not make formal findings of fact and conclusions of law. 408 U.S. at 487.
The second phase is the hearing by the parole authority. This hearing is to determine more than probable cause. It is “a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation.” 408 U.S. at 488. The parolee must be given the opportunity to be heard and to show that he or she did not violate the parole conditions or, if the violations occurred, mitigating circumstances that indicate the violation does not require revocation. 408 U.S. at 488.
The Morrissey requirements are found in our statutes and regulations. K.S.A. 2001 Supp. 75-5217(a) requires serving the parolee at the time of arrest with written notice that states the parole violation charges. A preliminary hearing to determine whether probable cause exists shall be conducted by the KDOC and the procedures for the hearing are set by the Secretaiy of the KDOC. K.S.A. 2001 Supp. 75-5217(b). The KDOC’s procedures for aprehminary hearing are promulgated in K.A.R. 44-9-105. Subsection (a) states the parolee must be given written notice of the charges, stated with sufficient particularity and provided with sufficient time before the hearing to prepare a defense. It does not authorize the addition of new charges. K.A.R. 44-9-105(a).
After a finding of probable cause that the parolee violated the parole conditions, the parolee has the right to a final hearing before the KPB. K.S.A. 2001 Supp. 75-5217(b). The KPB has authority to adopt rules and regulations in accordance with K.S.A. 77-415 regarding procedures for revocation proceedings that are consistent with the law and as the KPB deems proper or necessary. K.S.A. 2001 Supp. 22-3717(1); K.S.A. 2001 Supp. 75-5217(b). The KPB’s procedures for a final revocation hearing are set forth in K.A.R. 45-9-2. Under subsection (b), the KPB may add charges after continuing the hearing and providing written notice of the new charges and a statement of the evidence.
Hearst does not claim the above statutes and regulations violate the minimum due process standards set by Morrissey. Rather, he claims the state agencies did not comply with those due process laws. Whether an individual’s due process rights were violated is a question of law, over which we have de novo review. Hemphill v. Kansas Dept. of Revenue, 270 Kan. 83, 89, 11 P.3d 1165 (2000).
An administrative agency’s regulations have the force and effect of law and are issued to benefit the agency and the public. Murphy v. Nelson, 260 Kan. 589, 595, 921 P.2d 1225 (1996). The general rule is that “an administrative agency may not violate or ignore its own rules, and where it fails to follow the rules which it has promulgated, its orders are unlawful.” 260 Kan. at 595. Thus, the hearing officer must have authority to add charges under a statute or authorized regulation.
Hearst acknowledges the KDOC’s internal management policies and procedures (IMPP) require the hearing officer’s report or summaiy to state any additional violations that were established during the proceedings. A statement of additional violations in the report is not the same as the addition of new charges at the hearing. Also, the IMPP is not a regulation. The KDOC’s regulations for a preliminary hearing do not have provisions for adding new charges, unlike the KPB’s regulations. Further, tire KPB’s regulations allow new charges to be added only after continuing the hearing and giving written notice and a statement of such evidence against the offender so that the parolee has an opportunity to defend. The hearing officer violated Hearst’s due process rights by adding a new charge without authorization, notice, and continuing the hearing.
Next, Hearst argues the hearing officer was biased against him. At the core of this argument is the addition of the new charge without notice and time to prepare a defense.
Although the addition of the new charge was a due process violation, that fact alone does not show a personal bias. More likely, the hearing officer misinterpreted the KDOC’s IMPP.
Hearst also claims the hearing officer was biased because he did not record in his decision an outburst by the parole officer, a statement by the parole officer concerning Hearst’s release from a halfway house, and the entirety of a discharge letter from the halfway house favorable to Plearst.
The hearing officer’s report summarized the evidence that supported the parole revocation. It also summarized Hearst’s responses and stated that the hearing officer had received and con sidered the letter from the halfway house. The hearing officer s report complied with the Morrissey and K.A.R. 44-9-105(f) requirements for'the written statement of the basis for the hearing officers decision. Formal findings of fact and conclusions of law are not required, nor is the recording of the parole officer’s demeanor.
Next, Hearst claims the KPB did not make an independent decision on the parole violation charges and its proceedings were tainted by the hearing officer’s violation of his due process rights. We disagree. The KPB conducted a de novo hearing and based its decision on the parole officer’s report and Hearst’s testimony. The KPB found Hearst guilty of the violation of the first condition of his parole, which Hearst did not contest. Hearst was found not guilty of narcotics trafficking and violating state or federal laws. The decision leads to the conclusion that the KPB made an independent evaluation of the evidence and merits rather than adopting the decision of the hearing officer, thus curing the due process defect. See Rydd v. State Board of Health, 202 Kan. 721, 728-29, 451 P.2d 239 (1969) (due process defect can only be cured by trial de novo where evidence is weighed and an independent judgment on the merits entered).
Although the district court incorrectly held Hearst’s due process rights were not violated, the end result was correct and its decision should be upheld. See Bergstrom v. Noah, 266 Kan. 847, 875-76, 974 P.2d 531 (1999) (if trial court reached the right result, its decision will be upheld even though it assigned erroneous reasons).
Finally, Hearst contends the district court erred by dismissing his petition without an evidentiary hearing.
Appellate court review of the denial of parole is limited to whether the KPB complied with the applicable statutes and whether its decision was arbitrary and capricious. Torrence v. Kansas Parole Board, 21 Kan. App. 2d 457, 458, 904 P.2d 581 (1995).
The district court can summarily dismiss a K.S.A. 2001 Supp. 60-1501 petition for failure to state a claim upon which relief could be granted where the petitioner can prove no set of facts which would entitle the petitioner to relief. The petitioner has the burden of proof. Johnson v. Stucker, 203 Kan. 253, 260, 453 P.2d 35 (1969), cert. denied 396 U.S. 904 (1969).
The KPB revoked Hearst’s parole because he failed to report his residence to his parole officer after leaving the halfway house. However, Hearst does not contest this reason for his parole revocation. The core of his argument is, once again, the due process violation of adding a new charge. He claims this violation is shocking to the general conscience and constitutes intolerable conduct.
The due process defect was cured at the final revocation proceedings by the KPB. The hearing officer’s erroneous reliance upon the provisions in the IMPP did not rise to the level of shocking the general conscience and intolerable conduct. It was undisputed that one of Hearst’s parole conditions was to keep his parole officer continuously informed of his residence and that he had failed to inform his parole officer of his new residence after leaving the halfway house. In revoking Hearst’s parole, the KPB complied with the applicable statutes, and its decision was not arbitrary and capricious.
Because Hearst cannot prove facts which would entitle him to relief, the district court did not err in summarily dismissing his petition.
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Green, J.:
Josh L. Jackson and Thomas W. HacHer, II, who were visiting an alleged drug house, were searched under the “any other person present” clause of a residential search warrant. The police recovered marijuana from both men, and they were later charged with possession of marijuana. Jackson and Haclder moved to suppress the evidence, maintaining that the search of all persons present was pursuant to an illegal general search warrant. Following a consolidated hearing on motions to suppress, the trial court suppressed the evidence and dismissed the charges. The State appeals; arguing that probable cause supported a search warrant authorizing the search of all persons present at the residence. Alternatively, the State argues that if probable cause did not support the all persons present clause of the search warrant, the evidence seized under the warrant was admissible under the good faith exception to the exclusionary rule of the Fourth Amendment to the United States Constitution. The State further argues that the trial court failed to show the proper deference to the probable cause determination of the judge who issued the warrant. We disagree and affirm.
Detective Robert Bartlett of the Butler County Drug Task Force appeared before the Honorable Charles M. Hart. Detective Bartlett provided the judge with an application and affidavit seeking a search warrant. That affidavit requested authority to search the residence of Charles Watters, 1027 Osage, El Dorado, Kansas, and to seize evidence of the production, use, and sale of methamphetamines.
Included in the affidavit was a detailed description of the detective’s training and experience, including what he had learned regarding common practices for drug users and dealers. The affidavit also included a description of the property to be searched. In addition, the affidavit listed Watters’ arrests and convictions for drug violations, including an arrest for possession with intent to distribute. The affidavit also included details of a recent drug buy at Watters’ residence by a confidential informant which resulted in the controlled purchase of methamphetamines.
In the affidavit, the officer concluded that based on the buy recently made by the confidential informant, on the suspect’s prior arrests, and on his extensive training and experience in dealing with such places, Watters’ residence was a “drug house.” He stated that based on his training and experience, residents and visitors to such drug houses regularly keep individual supplies of drugs, paraphernalia, and other controlled substances on their persons or in their vehicles, and concluded that he would expect both residents and visitors to have contraband on their persons or in their vehicles.
Judge Hart signed the search warrant prepared by Detective Bartlett and authorized the search of the named residence and any outbuildings on the property. The warrant also authorized the officers to search Watters and “any other person(s) present” as well as all vehicles registered to or driven by Watters or other unknown individuals present.
When the search warrant was executed, Watters was present at the residence and was arrested. Jackson and Hackler were also there. Officers searched Jackson and Hackler and discovered marijuana and drug paraphernalia on their persons.
The State charged Jackson and Hackler with possession of marijuana and possession of drug paraphernalia. Jackson and Hackler later moved to suppress the evidence seized from their persons, arguing that the warrant authorizing the search of anyone present at the residence was an illegal general search warrant. The parties stipulated that the officers searched Jackson and Hackler entirely under the any other persons present clause of the search warrant and not due to exigent circumstances.
The trial court held that the warrant affidavit lacked sufficient indicia of probable cause as to the search of any other persons present at the residence and suppressed the evidence seized from Jackson and Hackler. Specifically, the trial court found that the lack of evidence in the affidavit of regular traffic to and from the residence made a finding of probable cause impossible. Further, the trial court held that the good faith exception to the exclusionary rule did not apply. The trial court then dismissed the charges.
The State’s first argument on appeal is that the trial court erred in granting the motion to suppress because probable cause supported the search of any other persons present at Watters’ residence. The State bears the burden of proving the lawfulness of a search and seizure at a hearing on a motion to suppress. State v. Vandiver, 257 Kan. 53, 57, 891 P.2d 350 (1995). When reviewing a trial court’s decision on a motion to suppress evidence, an appellate court gives great deference to the factual findings of the trial court. State v. DeMarco, 263 Kan. 727, 732, 952 P.2d 1276 (1998).
This court will not reweigh the evidence but will review the trial court’s findings to determine whether they are supported by substantial competent evidence. The ultimate determination on the suppression of evidence, however, is a question of law requiring independent appellate determination. 263 Kan. at 732.
Here, the facts were not in dispute and the parties stipulated that the evidence was seized as a result of the all persons present clause of the search warrant. Consequently, there is no need to verify the trial court’s factual findings with substantial competent evidence. The remaining decision regarding the suppression of the evidence must be reviewed de novo. See 263 Kan. at 732.
When reviewing the validity of a search warrant, this court must determine whether the magistrate had a substantial basis for issu ing it. A substantial basis for tbe warrant depends on whether probable cause existed under the totality of the circumstances. In making that determination, this court gives great deference to the magistrate’s determination. A magistrate is required to assess all of the circumstances presented and make a practical, common-sense decision about whether a crime has been committed or is in the process of being committed and whether there is a fair likelihood that the evidence will be found in the place specified. State v. Gilbert, 256 Kan. 419, 421-22, 886 P.2d 365 (1994).
Although general warrants are constitutionally prohibited, warrants authorizing the search of all persons present at a location are not per se invalid. State v. Loins, 26 Kan. App. 2d 624, 627, 993 P.2d 1231 (1999), rev. denied 269 Kan. 938 (2000); State v. Horn, 15 Kan. App. 2d 365, 366, 808 P.2d 438, rev. denied 248 Kan. 998 (1991). In cases involving drugs, the facts in the affidavit must infer that the sole or primary activity at the location subject to the search warrant is the sale of drugs and that everyone present is involved in the illegal activity. See 26 Kan. App. 2d at 627; 15 Kan. App. 2d at 367.
Kansas has not determined what information is sufficient to infer that the primary activity at a location is the sale of drugs. However, in Loins, this court compared the facts in that case to those found sufficient in other jurisdictions. Loins noted that
"[generally, an ‘all-persons’ search warrant will be upheld when the affidavit includes information that the place to be searched is a private residence, that drug use and distribution occur at the place, and that there was a regular traffic of persons entering to malee purchases. See, e.g., Commonwealth v. Smith, 370 Mass. 335, 339, 348 N.E.2d 101, cert. denied 429 U.S. 944 (1976) (upholding an all-persons warrant based on an affidavit that stated that occupants were selling drugs and that there was a regular traffic of persons entering to make purchases); State v. Hinkel, 365 N.W.2d 774, 775-76 (Minn. 1985) (finding probable cause for an all-persons warrant based on an affidavit that included complaints from neighbors about illegal activity at a house and information that illegal liquor sales occurred there); People v. Easterbrook, 43 App. Div. 2d 719, 720, 350 N.Y.S.2d 442 (1973), aff'd 35 N.Y.2d 913, 364 N.Y.S.2d 899, 324 N.E.2d 367, cert. denied 421 U.S. 965 (1974) (finding probable cause for an all-persons warrant based on statements in the affidavit indicating that drug sales and consumption occurred at the apartment); Com. v. Graciani, 381 Pa. Super. 626, 630, 554 A.2d 560 (1989) (finding that the confidential informant’s report of a drug sale at the private residence and the easily hidden characteristic of the contraband justified the all-persons warrant); Com. v. Heidelberg, 369 Pa. Super. 398, 407, 535 A.2d 611 (1987) (upholding a warrant to search all persons because the affidavit included information that the sale of cocaine occurred on the premises); Morton v. Commonwealth, 16 Va. App. 946, 951, 434 S.E.2d 890 (1993) (stating that information in the affidavit regarding drug use and distribution in an apartment justified the search of all persons present); State v. Hayes, 196 Wis. 2d 753, 764-66, 540 N.W.2d 1 (Wis. App. 1995) (upholding the all-persons warrant because the affidavit included information of a recent sale of crack cocaine at the apartment and the officer’s statement that, in his experience, it is common to find others at the location who are involved in the drug transactions).” 26 Kan. App. 2d at 627-28.
The affidavit in Loins stated: (1) that concerned neighbors reported drug activity at the trailer; (2) that a lot of juveniles visited the trailer; (3) that at least a dozen cars would arrive and leave over the course of an evening; (4) that a lot of parties occurred at the residence during which marijuana was consumed; (5) that Loins was known to be at the parties; (6) that the reported resident had been arrested for possession of marijuana and drug paraphernalia; (7) that Loins was convicted of possession of marijuana; (8) that an anonymous informant reported seeing marijuana in the trailer on numerous occasions; (9) that a Crime-Stopper tip reported marijuana sales at the trailer by Loins and two other individuals and that all three were living at the trailer; (10) that it is common for persons buying drugs to stay only a short time and leave with the drugs on their persons; and (11) that Loins was involved in trading sex for drugs at the trailer.
The Loins court concluded that the affidavit in that case contained more information than those supporting all persons search warrants that were upheld in other states. 26 Kan. App. 2d at 628. Based on the information provided to the magistrate and giving appropriate deference to the magistrate’s decision to issue a warrant, the Loins court concluded that there was probable cause to believe that the primary activity at the trailer was drug sales and consumption and that all those present would be involved in the illegal activity. As a result, the Loins court held that the trial court properly denied Loins’ motion to suppress the marijuana found in his pocket. 26 Kan. App. 2d at 628.
Unlike the affidavit addressed in Loins, the affidavit in the instant case failed to set forth facts regarding whether the primary activity at Watters’ residence was the sale of drugs and whether all persons present would be involved in illegal activities. Instead, the affidavit stated the following facts: (1) that the premises to be searched was Watters’ residence; (2) that Watters had been previously convicted of possession of drugs; (3) that a confidential informant knew Watters and knew that he sold drugs at his house; and (4) that 5 days before the execution of the search warrant the same confidential informant purchased drugs through a controlled buy at the residence.
The State attempts to extend this list by noting that the warrant included the following: (1) that the officer was well trained and highly experienced; (2) that the utilities, driver’s license, and vehicle registration records placed Watters at the residence to be searched; (3) that the items to be seized were limited in scope and clearly identified; (4) that the persons to be searched, including any other persons present, were identified by name or by their immediate and physical nexus to the suspected illegal activity; (5) that in the officer’s experience it is common for users to visit a dealer’s residence to purchase drugs and to conceal those drugs on their persons; and (6) that it is practically impossible to predict who is likely to be present at the residence at any given time. However, the facts cited by the State do not indicate whether the sole or primary activity at Watters’ residence was the sale of drugs or whether everyone present would be involved in illegal activity.
The affidavit at issue in the instant case is similar to the one addressed in Horn. In that case, police obtained a warrant to search a house for drugs and drug-related items and to search all persons present. Horn was at the house when police executed the warrant, and cocaine and a large amount of cash were found in his jacket pockets. The trial court denied Horn’s motion to suppress the evidence on the grounds that exigent circumstances justified the search. The Horn court noted that the affidavit supporting the all persons present warrant failed to state that the visitors to the residence were known to be involved in drug trafficking. 15 Kan. App. 2d at 367. Instead, the affidavit merely provided (1) that one con trolled buy was consummated on the premises; (2) that during the controlled buy, persons left the house for unknown reasons before the sale was completed; and (3) that police observed persons leaving the house for the legal purpose of purchasing liquor. Horn concluded that “[t]he facts in the affidavit are simply insufficient to infer that the sole or primary activity at the residence was die sale of drugs and that everyone present would be involved in illegal activity. Accordingly, the search warrant was invalid as to its authorization to search ‘the person of all persons on said premises.’ [Citation omitted.]” 15 Kan. App. 2d at 367.
In granting the motions to suppress the evidence, the trial court in the instant case relied on the fact that the affidavit supporting the all persons warrant failed to state that there was regular traffic to and from Watters’ residence. The State argues that the trial court’s reliance on this single prong is not supported by Loins, nor by a review of the decisions cited by that court. The State points out that there is no rigid requirement that a specified list of factors must be met for an all persons warrant to issue. Instead, probable cause to support a warrant authorizing the search of all persons present is to be determined according to the totality of the circumstances.
Probable cause is not a legalistic and technical determination applying rigid prongs which must be satisfied, but a practical, common-sense determination, taking into account the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 236-37, 76 L. Ed. 2d 527 103 S. Ct. 2317 (1983); State v. Abu-Isba, 235 Kan. 851, Syl. ¶ 2, 685 P.2d 856 (1984).
Here, the totality of the circumstances did not establish probable cause that the primary activity at Watters’ residence was the sale of drugs and that visitors at the residence would be involved in illegal activity. The affidavit failed to address who had visited Watters’ residence, how often others visited, how long the visitors stayed, or the relationship of the confidential informant to Watters. Moreover, there were no facts concerning regular traffic of persons entering and leaving for the purpose of using or purchasing drugs. No surveillance of the house or interviews of the neighbors were conducted to address these missing facts.
An Iowa court reviewing an all persons warrant made a similar observation regarding the lack of information about visitors to a house. In State v. Prior, 617 N.W.2d 260, 267 (Iowa 2000), the court stated:
“Police did not investigate or conduct surveillance to determine if all persons who went to the apartment were involved in drug transactions, or the amount of time visitors would spend in tire apartment, or the time of day of the suspicious activity.
“The officer s attempt to transform the apartment into a drug house through his opinion was contradicted by other information. The apartment was identified as a residence and the trash revealed mail was delivered at the apartment. Thus, contrary to the premise of the officer’s opinion, the apartment was not a place in which no person maintained a legal connection. We agree with the line of cases which recognize the likelihood of innocent persons being present in a residence, regardless of the existence of illegal activity on the premises. [Citations omitted.]”
In setting out a standard for determining if an all persons warrant is supported by probable cause, the Prior court noted drat “the magistrate must be told how many people frequent the place, when they come and leave, and what they appear to be doing. Another important factor is whether anyone who seems to have no connection with the illegal conduct is ever seen there. If such a showing is not made, the warrant will be struck down.” 617 N.W.2d at 265.
The affidavit in the instant case failed to include any facts as to anyone except Watters or the confidential informant. As a result, the issuing magistrate did not have a substantial basis for concluding probable cause existed that the primary activity at Watters’ residence was drug sales and that all visitors at the residence were involved in the illegal activity. The trial court properly granted Jackson’s and Hadder’s motions to suppress.
Next, the State argues that if this court finds that there is not a substantial basis for concluding that probable cause supported the all persons warrant, the evidence seized under the warrant is nevertheless admissible under the good faith exception to the exclusionary rule.
The trial court found that the good faith exception was not applicable because the minimum probable cause test from State v. Doile, 244 Kan. 493, 769 P.2d 666 (1989), abrogated on other grounds by Horton v. California, 496 U.S. 128, 110 L. Ed. 2d 112, 110 S. Ct. 2301 (1990), was not satisfied. Specifically, the trial court found that the affidavit for the search warrant did not contain facts of traffic to and from Watters’ residence from which a determination of probable cause could be made to support a search of all persons present at the residence.
Evidence seized under a warrant should only be suppressed “on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.” United States v. Leon, 468 U.S. 897, 918, 82 L. Ed. 2d 677, 104 S. Ct. 3405, reh. denied 468 U.S. 1250 (1984). This principle is referred to as the good faith exception to the exclusionary rule and was adopted by our Supreme Court in Doile, 244 Kan. at 501-03. See State v. Probst, 247 Kan. 196, 203-05, 795 P.2d 393 (1990).
The good faith exception in Leon provides that evidence should not be excluded unless (1) the magistrate who issued the warrant was deliberately misled by false information; (2) the magistrate completely abandoned his or her neutral and detached role; (3) the warrant is so lacking in specificity that the officers cannot determine the place of the search or the items to be seized; or (4) the warrant bears so little indicia of probable cause that it is entirely unreasonable for an officer to believe that the warrant is valid. 468 U.S. at 923. If none of the four circumstances exist and if an officer acts in good faith, then the evidence should be admitted. 468 U.S. at 922-23.
None of the four above situations requiring exclusion applies in this case. The affidavit contained no false or misleading statements. No pertinent information was withheld from the affidavit. There is no evidence that the issuing judge wholly abandoned his neutral and detached role. The warrant was not lacking in specificity. There are no circumstances where it was unreasonable for the officer executing the warrant not to override the determination of probable cause found by the issuing judge and refuse to execute the warrant. There simply was no bad faith or wrongdoing shown in the issuance or execution of the warrant. This determination would normally end the inquiry and the evidence would be admissible under the good faith exception. Doile, 244 Kan. at 502.
However, in Doile, the court quoted the following language from Leon, as evidence of a minimum probable cause requirement:
“ ‘[Reviewing courts will not defer to a warrant based on an affidavit that does not “provide the magistrate with a substantial basis for determining the existence of probable cause.” Illinois v. Gates, 462 U.S. at 239. “Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.” [Citations omitted.] Even if the warrant application was supported by more tiran a “bare bones” affidavit, a reviewing court may properly conclude that, notwithstanding the deference that magistrates deserve, tire warrant was invalid because the magistrate’s probable-cause determination reflected an improper analysis of the totality of the circumstances, [Citation omitted] or because the form of the warrant was improper in some respect.’ 468 U.S. at 915.” 244 Kan. at 502.
This language was later quoted by the Probst court as evidence that Leon “did not totally abandon the requirement of probable cause and stated the affidavit must contain a substantial basis indicating probable cause.” 247 Kan. at 204.
The Doile court held that the trial court erred in refusing to grant a motion to suppress because the minimum probable cause requirement was not satisfied. The court stated:
“The affidavit herein does not contain any factual allegations from which the judge could have found there was probable cause to believe contraband [would be found on the premises subject to the search-warrant]. . . . The judge must have concluded that finding the small amount of drags on the defendant’s person and in his auto was probable cause to search his residence simply because of the old conviction. This is an ‘improper analysis of the totality of the circumstances’ within the purview of Leon, and we, as a reviewing court, need not defer to the issuing judge’s determination.” 244 Kan. at 503.
Our Supreme Court reiterated this principle in State v. Longbine, 257 Kan. 713, 721-22, 896 P.2d 367 (1995), when it stated:
“If the affidavit supporting the search warrant does not provide an indicia of probable cause to conclude that contraband would be found at defendant’s residence, it is constitutionally and statutorily defective, and the good faith doctrine does not apply. Leon’s good faith exception does not apply to a warrant, such as the one here, that does not provide the magistrate with a substantia] basis for determining that probable cause existed that drags would be found in defendant’s residence.”
Clearly, it is the position of our Supreme Court that an improper analysis of probable cause by the issuing judge will suffice to employ the exclusionary rule, even if an officer reasonably relies upon the search warrant.
Doile, however, has been criticized for relying on Leon as evidence of a minimum probable cause requirement on grounds that Leon does not require automatic suppression of evidence. In addition, the minimum probable cause requirement has been faulted for targeting judicial misconduct rather than police conduct, which was the Court’s focus in Leon. See Comment, The Good Faith Exception to the Exclusionary Rule: An Analysis of Kansas Law, 41 Kan. L. Rev. 95, 108-10, 115-16 (Crim. Proc. ed. 1993).
The State argues that Doile was wrongly decided because although the case purports to apply Leon, it distorts and misreads the decision as creating a minimum probable cause requirement. Although Leon may not have established a minimum probable cause requirement, it is clear that our Supreme Court has established such a requirement. We are duty bound to follow our Supreme Court precedent absent some indication that the court is departing from its previous position. Gadberry v. R.L. Polk & Co., 25 Kan. App. 2d 800, 808, 975 P.2d 807 (1998). Because our Supreme Court has not indicated that it is departing from its previous application of the minimum probable cause requirement, we must follow Doile.
Leons good faith exception is not applicable under the facts of this case because the affidavit failed to furnish the issuing judge with a substantial basis for determining that probable cause existed that the primary activity at Watters’ residence was the sale of drugs and that all persons present at the residence would be involved in illegal activity. Because the minimum probable cause test was not satisfied, the trial court properly suppressed the evidence found as a result of the all persons present clause of the search warrant.
Next, the State argues that the trial court failed to show the proper deference to the probable cause determination of the magistrate who issued the warrant and the trial court applied an inappropriate standard of review. As noted previously, when reviewing the validity of a search warrant, this court must determine whether the magistrate had a substantial basis for issuing it. The probable cause determination of the magistrate who issued the warrant is given great deference. State v. Gilbert, 256 Kan. 419, Syl. ¶ 4, 886 P.2d 365 (1994). The Gilbert court further held that “such after-the-fact scrutinizing should not take the form of a de novo review.” 256 Kan. 419, Syl. ¶ 4. It is not for a reviewing court, whether the district court or an appellate court, to substitute its judgment for that of the magistrate who issued the warrant. 256 Kan. at 421-22.
The State argues that in granting the motion to suppress, Judge Hart was not deferential to the decision to issue the warrant and instead reviewed the issue de novo. The State claims that the record lacks any evidence of a determination by Judge Hart that the judge who issued the warrant (also Judge Hart) lacked a substantial basis to conclude that probable cause existed. The State claims that if there was a substantial basis for concluding that probable cause existed, Judge Hart should have deferred to the judgment of the judge who issued the warrant (himself) and upheld the warrant, just as if another judge had issued it. But see Probst, 247 Kan. at 205; Doile, 244 Kan. at 503.
In deciding whether a substantial basis supports a probable cause determination, “what the district court found or did not find should not be the basis for the Court of Appeals’ review.” Gilbert, 256 Kan. at 422. Instead, this court addresses whether the magistrate had a substantial basis for concluding that probable cause existed and, in so doing, will pay great deference to the magistrate’s determination. 256 Kan. at 422. Although the trial court may have failed to pay great deference to the issuing judge’s determination, we find that the trial court properly determined that the issuing judge lacked substantial basis for finding probable cause existed that all persons present at Watters’ residence would be involved in an illegal activity.
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Elliott, J.:
In this fact-sensitive case, following a mistrial on a one-count complaint charging Clyde A. Wittsell with aggravated incest, the State appeals the trial court’s order dismissing the complaint with prejudice, on double jeopardy grounds.
We affirm.
Our jurisdiction is pursuant to K.S.A. 2001 Supp. 22-3602(b)(l) (State’s appeal from an order dismissing complaint).
Relevant factual and procedural background
The lurid allegations leading to this prosecution are not relevant to the issue on appeal and need not be discussed.
During a second police interview, Wittsell was given a polygraph examination. Present were Wittsell, Detective Shackelford, a social worker, and Joe Rankin, a civilian employee who administered the test. Only Wittsell and Rankin were present during the actual administering of the exam. Detective Shackelford interviewed Wittsell both before and after the polygraph exam, neither of which was tape recorded.
Prior to trial, Wittsell filed a motion in fimine, seeking to exclude any evidence he had taken and failed a polygraph exam. The State agreed not to introduce such evidence.
At trial, Detective Shackelford began to testify about the second police interview. Defense counsel objected, stating he would be unable to effectively cross-examine the detective without violating the order in limine. The trial court overruled the objection, stating it would be appropriate if what the detective asked defendant pretest and posttest were presented to the jury as one continuous interview. The trial court granted defendant a continuing objection to all evidence of the second interview.
Direct examination of Detective Shackelford continued, and she testified defendant made certain incriminating statements during the second interview. During cross-examination, defense counsel handed the detective Rankin’s notes to refresh her recollection of the second interview. After a series of questions, apparently based on the detective’s refreshed recollection, the following occurred:
“[Prosecutor]: Your Honor, I’m confused if [the detective] was present for this part of the interview or if she’s just reading what Mr. Ranldn’s notes are just for clarification for me and the juiy. I guess my objection would be foundation at this point.
“The Court: Well, she testified earlier that Mr. Rankin was present as well as [the social worker], and she recognizes that to be his handwritten notes.
“[Detective Shackelford]: May I say something?
“The Court: No.
“Q. [Defense counsel]: You’ve heard these statements made by Mr. Wittsell, didn’t you, Detective?
“A. [Detective Shackelford]: Part of what Mr. Wittsell told Joe Rankin was a discussion between the two of them prior to the polygraph, which I may not have been present for.
“[Defense counsel]: Objection, Your Honor.
“The Court: Just got a mistrial.”
A hearing was then held to determine whether to proceed with retrial or whether a retrial was barred by double jeopardy. The State called to the stand Detective Shackelford who testified, “In my mind I was thinking, don’t say polygraph . . . and that’s the first thing that blurted out of my mouth .... It was not — definitely not on my part intentional.”
The trial court remarked:
“If I rule that double jeopardy bars retrial, it is not based upon the conduct of [the prosecutor]. . . . There was nothing that the prosecutor did to goad the defendant to move for a mistrial. Quite frankly, I’m not sure whether he moved for the mistrial. He lodged an objection. I declared a mistrial. I’m willing to take the blame or the credit. It was probably on tire Court’s own motion I declared the mistrial. I felt that the manner in which that came out was so absolutely prejudicial that there were no curing remarks that I could make to remove that out of the mind of the jury. You mentioned polygraph, and it’s, “Well if he passed, then the police wouldn’t have prosecuted so he must have flunked or was less than truthful because that’s why we’re here.’ I mean, that’s the only conclusion the jury could draw.” (Emphasis added.)
After further arguments, the trial court made the following findings of fact and conclusions of law on the record:
1. The answer of Detective Shackelford using the word “polygraph” was so prejudicial there was no way to salvage a fair trial.
2. The mistrial was granted without consent of the defendant because the court declared the mistrial before hearing the grounds of defense counsel’s objection.
3. Detective Shackelford, being the lead case investigator, had a vested interest in the outcome of the trial.
4. Detective Shackelford was veiy uncomfortable on cross-examination after being handed Rankin’s notes.
5. Detective Shackelford should have known better than to mention the word “polygraph.”
The trial court then concluded:
“And again, my take on it again was not that this was a rapid-fire drilling cross-examination, that it was a spontaneous statement. The transcript indicates that you [tire prosecutor] objected and interrupted the cross — you objected as to foundation. You also kind of tipped it. You said, ‘I’m confused if she was present for this part of the interview or if she’s just reading what Mr. Rankin’s notes are just for clarification for me and the jury. I guess my objection would be foundation at this point.’
“My response was, “Well, she testified earlier that Mr. Rankin was present as well as [theSRS caseworker], and she recognizes that to be his handwritten notes.’ Then the witness [Detective Shackelford] says, ‘Your Honor, may I say something?’ And I said, ‘No.’ And the next question, ‘You’ve heard these statements made by Mr. Wittsell, didn’t you, Detective?’ She could have said, ‘No,’or ‘I wasn’t present for part of the interview,' but she chose to say, ‘Part of what Mr. Wittsell told Joe Rankin was a discussion between the two of them prior to the polygraph, which I may not have been present for.’ Now, that is a long, deliberate answer. That is not some spontaneous quick-fire response in the heat of cross-examination.
“It’s my opinion that Detective Shackelford, after asking the Court — to address the Court and being denied that opportunity, wanted to terminate the cross-examination. That’s my take, despite her testimony here today. . . . It’s not a citizen witness. It is the case detective. And to that extent, the case detective is so connected with the prosecution of the case that I’m going to make a finding that as an agent of the prosecutor, that is the goading of the defendant into a mistrial. That warrants the invocation of the double jeopardy clause of the Constitution. I’m dismissing the case with prejudice.” (Emphasis added.)
Analysis
The trial court made findings of fact and conclusions of law; therefore, we must first determine whether the trial court’s find ings of fact are supported by substantial competent evidence, and, second, we must determine whether the factual findings are sufficient to support the trial court’s conclusions of law. This second question is one of law and our review is unlimited. Miller v. State, 28 Kan. App. 2d 39, 43, 13 P.3d 13 (2001).
The trial court resolves factual conflicts because it is in a position to assess the credibility of witnesses. It did so here by rejecting Shackelford’s testimony she did not intentionally inject “polygraph” into the trial. We cannot and will not assess witness credibility in the same manner as the trial court, see State v. Kriegh, 23 Kan. App. 2d 935, 938, 937 P.2d 453 (1997), and we are satisfied substantial competent evidence supports its factual findings on this issue. See State v. Alexander, 268 Kan. 610, 619, 1 P.3d 875 (2000).
We also hold the trial court did not err in finding the mistrial was granted without the consent of defendant. Simply put, the trial court granted the mistrial on its own motion without giving defense counsel the opportunity to state his grounds for objection. See United States v. Jorn, 400 U.S. 470, 487, 27 L. Ed. 2d 543, 91 S. Ct. 547 (1971); Gori v. United States, 367 U.S. 364, 365 n.6, 6 L. Ed. 2d 901, 81 S. Ct. 1523 (1961); United States ex rel. Clauserv. McCevers, 731 F.2d 423, 426 (7th Cir. 1984).
As a result, when a mistrial is granted without the consent of the defendant, there must have been a “manifest necessity” for the mistrial in order for a retrial to be permissible under double jeopardy concepts. State v. Johnson, 261 Kan. 496, 500, 932 P.2d 380 (1997); see Arizona v. Washington, 434 U.S. 497, 505, 54 L. Ed. 2d 717, 98 S. Ct. 824 (1978).
In the present case, defendant and the State agree the trial court, under the test announced above, properly declared a mistrial. We need not address this question further.
But for the manifest necessity doctrine to apply to allow retrial, the fault for the mistrial cannot lie at the feet of the prosecution or the judge. Johnson, 261 Kan. at 504. There simply can be no “manifest necessity” for prosecutorial or judicial misconduct.
In the present case, the trial court found, as a matter of fact, Detective Shackelford was “so connected with the prosecution of the case that [it made] a finding that as an agent of the prosecutor, that is the goading of the defendant into a mistrial.” (Emphasis added.) The trial court found the detective to be an agent of the State/prosecution. This is a finding of fact to which we give the trial court great deference. See Kriegh, 23 Kan. App. 2d at 938.
So far as we can determine, whether police misconduct precipitating a mistrial should, be imputed to a prosecutor is a question of first impression in this state. And the only published opinion we have found addressing this issue is United States ex rel. Clauser v. McCevers, 731 F.2d 423. That case involved a grand jury proceeding where the prosecutor was seeking an indictment rather than a conviction. See 731 F.2d at 431. Accordingly, this case is of little help in resolving the present appeal.
Here, the trial court made a finding of fact that Detective Shackelford was an agent of the State. That finding is supported by adequate, though conflicting, evidence. The trial court understood die detective’s personal, vested interest in the outcome of the case and her pride in obtaining a conviction. She conducted the investigation, interviewed witnesses, marshaled the evidence, and presented her case to the prosecutor.
Further, the trial court found Detective Shackelford, as the lead case detective, was uncomfortable with cross-examination and wished to terminate it and found factually she intentionally violated the order in limine and caused the mistrial.
In the context of an allegation the State violated Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), our Supreme Court held the mere fact a prosecutor may not have had actual knowledge of evidence in the possession of law enforcement officials does not prevent imputation of that knowledge to the prosecutor in the interest of justice. State v. Walker, 221 Kan. 381, 383, 559 P.2d 381 (1977); see Kyles v. Whitley, 514 U.S. 419, 437, 131 L. Ed. 2d 490, 115 S. Ct. 1555 (1995).
The reasoning of those cases applies to the present case. To allow a retrial would have the unfortunate effect of providing a mechanism whereby the State could get a second chance at the defendant when the first trial starts to “go bad” for the State or its witnesses.
Additionally, it would be fundamentally unfair to subject defendant to a second trial when the factually found intentional con duct of the lead investigator and one of the State’s primary witnesses sabotages the proceedings. After all, the Double Jeopardy Clause protects a defendant against governmental actions intended to provoke a mistrial. See United States v. Dinitz, 424 U.S. 600, 611, 47 L. Ed. 2d 267, 96 S. Ct. 1075 (1976).
At oral argument, the State argued tire mistrial was the fault of defense counsel, who violated the order in limine by handing Detective Shackelford Joe Rankin’s notes. The State argued the order in limine prohibited the use of Rankin’s notes during trial.
We have searched the record and cannot find support for the claim. We can find no motion in limine and no written order in limine in the record. All we have are some vague comments made during a pretrial hearing. Even the State’s brief on appeal merely declares “[t]he State agreed not to introduced [sic] evidence regarding the fact the defendant had taken a polygraph test.”
We can find nothing in the record to indicate the order in limine went so far as to bar the use of Rankin’s notes taken after the polygraph test was completed. The State has the burden to designate a record sufficient to establish the claimed error. State v. Creamer 26 Kan. App. 2d 914, 916, 996 P.2d 339 (2000).
The trial court properly found, under the facts of this case, that Detective Shackelford was an agent of the State and that her misconduct precludes retrial. See Gilliam v. Foster, 75 F.3d 881, 907 (4th Cir. 1996).
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Beier, J.:
Daniel Macias appeals his sentence for one count of aggravated robbery, contending the district court erroneously included deferred adjudications from Texas in determining his criminal history score.
Macias’ presentence investigation report listed six prior felony convictions from Texas, including five for aggravated assault against a public servant and one for aggravated robbery. Macias objected to the inclusion of the convictions in his criminal histoiy score because the prior Texas cases followed a “deferred adjudication” procedure.
Under this procedure, a Texas court does not enter a judgment of guilt immediately after a defendant’s guilt is established by guilty plea or trial. Rather, the court defers adjudication under the provisions of Article 42.12(5)(a) of the Texas Code of Criminal Procedure and places the defendant on community supervision. If the community supervision is completed successfully, then the case is dismissed and the defendant discharged.
Macias argues this procedure is equivalent to a Kansas diversion, which, if successfully completed, is not counted as a conviction in a person’s criminal history. See K.S.A. 21-4710(a).
The district court made the following findings of fact on the way to ruling against Macias on this point: (1) Macias pleaded guilty to the offenses in Texas; (2) the Texas court reviewed the evidence and found the guilty plea had factual support; (3) Macias gave an informed consent and knowingly waived his rights; and (4) Macias was represented by counsel in Texas. The court then held that the intention behind calculating a defendant’s criminal history score in Kansas was to deal more harshly with those who have demonstrated their propensity toward criminal behavior in the past and, under State v. Presha, 27 Kan. App. 2d 645, 8 P.3d 14, rev. denied 269 Kan. 939 (2000), the Texas cases qualified as preexisting convictions. Their inclusion in Macias’ criminal history under the Kansas sentencing guidelines made his score an “A” rather than an “I.” This gave Macias a presumptive sentence of 221 months’ imprisonment rather than 59 months’ imprisonment.
Macias contends his Texas deferred adjudications were the equivalent of a diversion under Kansas law, which would not be included in his criminal history under K.S.A. 21-4710(a) and Presha. The State argues a Texas deferred adjudication is materially distinct from a Kansas diversion. This issue is one of statutory interpretation; thus our scope of review is unlimited. State v. Vontress, 266 Kan. 248, 259, 970 P.2d 42 (1998).
Under Kansas law, after a complaint charging a defendant with the commission of a crime has been filed but before a conviction, the State may propose a diversion agreement. K.S.A. 22-2907(1). A diversion agreement is a “specification of formal terms and conditions which a defendant must fulfill in order to have the charges against him or her dismissed.” K.S.A. 22-2906(4). A defendant is not required to enter a plea to the criminal charge as a condition for diversion. K.S.A. 22-2910. If the prosecutor finds the defendant has failed to fulfill the diversion agreement, the district court is notified so it can make a determination of whether the defendant has failed to fulfill the terms of the agreement. If there has been a breach of the agreement, the district court resumes the criminal proceeding on the complaint. K.S.A. 2000 Supp. 22-2911(a). If, on the other hand, the defendant fulfills the terms of the agreement, the district court dismisses the criminal charges with prejudice. K.S.A. 2000 Supp. 22-2911(b). Diversions are not counted as part of a defendant’s criminal history. See State v. Hodgden, 29 Kan. App. 2d 36, 41, 25 P.3d 138 (2001).
In Texas, the statutory deferred adjudication procedure includes the following language:
“(a) Except as provided by Subsection (d) of this section, when in the judge’s opinion the best interest of society and the defendant will be served, the judge may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant’s guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision ....
“(b) On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with- an adjudication of guilt on the original charge. . . . After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant’s appeal continue as if the adjudication of guilt had not been deferred ....
“(c) On expiration of a community supervision period imposed under Subsection (a) of this section, if the judge has not proceeded to adjudication of guilt, the judge shall dismiss die proceedings against the defendant and discharge him. . . . For any defendant who receives a dismissal and discharge under this section:
(1) upon conviction of a subsequent offense, the fact that the defendant had previously received community supervision with a deferred adjudication of guilt shall be admissible before the court or jury to be considered on the issue of penalty.” Tex. Code Crim. Proc. Ann. 42.12(5)(a), (b), and (c)(1) (West 2002 Supp.).
Macias urges us to focus on three similarities between the Texas deferred adjudication scheme and the Kansas diversion program: (1) Both can be used to stay further criminal proceedings in the interest of justice; (2) both require the defendant to obey certain terms and conditions during the diversion or community supervision period; and (3) both require dismissal of the case at the successful conclusion of the diversion or community supervision period.
We regard one important difference as critical, however. In Texas, the district court may defer adjudication only after the defendant enters a guilty or nolo contendere plea, or proceeds to a trial where guilt is demonstrated. On the contrary, in Kansas, the State in the person of the prosecutor decides whether to offer diversion; the defendant is not required to enter a plea; no trial is held; and the district court does not make a finding that the evidence substantiates the defendant’s guilt. None of these steps is followed unless the defendant ultimately fails to abide by the diversion agreement.
Two of our precedents offer guidance in this case: Presha and Hodgden.
The most similar case is Presha. Presha argued the sentencing court erroneously included a prior juvenile felony from Florida in his criminal history because the Florida court had withheld a formal adjudication of delinquency. Like Macias, the defendant likened the Florida proceeding to a diversion under Kansas law. At Presha’s Kansas sentencing, the court regarded the Florida finding that Presha committed the offense as determinative, not whether he had been formally adjudicated or placed on diversion. 27 Kan. App. 2d at 646, 648.
On Presha’s appeal, we compared the juvenile offender procedures in the two states and concluded that the principal difference between them lay in the states’ use of the word “adjudication.” We noted that Kansas required a court that found a juvenile committed a crime to adjudicate him or her a juvenile offender. On the other hand, in Florida, once a court found a juvenile violated the law, the court retained the discretion to withhold adjudication of delinquency and place the juvenile in a community control program.
We held that, although Florida would not have treated a juvenile adjudication like a prior conviction for purposes of calculating a later criminal penalty, K.S.A. 2000 Supp. 21-4711(f) required out-of-state juvenile adjudications to be treated as juvenile adjudications in Kansas. 27 Kan. App. 2d at 648-50. Because a Kansas juvenile adjudication would have been included in Presha’s criminal history score, the Florida adjudication was correctly included. The absence of a formal adjudication in Florida did not matter, as long as Presha’s factual guilt had been established.
In Hodgden, we examined the Kansas sentencing effect of an Alaska conviction subject to a later “discharge order.” Alaska per mitted certain convictions to be discharged if the offender abided by certain conditions. Hodgden, again lilce Macias here, argued such an Alaska conviction should not be included in his Kansas criminal history score because the Alaska procedure was analogous to a Kansas diversion. We disagreed, finding it more similar to an expunged conviction which, under our law, must be included in the calculation of an offender’s criminal history score. K.S.A. 21-4710(d)(2); 29 Kan. App. 2d at 40. The critical element was the Alaska .court’s determination that Hodgden was guilty of the prior crime. Once guilt was established, Hodgden’s Alaska situation was more analogous to a Kansas expungement than a Kansas diversion.
Moreover, in Hodgden, the fact that Alaska would not have allowed the discharged conviction to be considered at sentencing for a subsequent offense did not sway us to the defendant’s point of view. In this case, were we to consider the foreign state’s treatment of its own procedure on subsequent sentencing, that factor would add weight to the State’s argument. Texas law permits a deferred adjudication to be considered on the issue of penalty upon conviction of a subsequent offense. See Tex. Code Crim. Proc. Ann. 42.12(5)(c)(l) (West 2002 Supp.).
As was true of the defendants in Presha and Hodgden, Macias’ guilt in the foreign state’s cases was demonstrated to the satisfaction of the court. In Texas, nothing but a formal adjudication remained. This situation is directly comparable to the facts of Presha. And a decision to affirm inclusion of the Texas deferred adjudications in Macias’ Kansas criminal history score is logically and legally consistent with the reasoning of both Presha and Hodgden.
What matters, as the district court observed in Presha, is whether the foreign state concluded the defendant did the crimes, not whether he or she ultimately had to do the time. It is a defendant’s refusal to renounce criminal behavior that our sentencing guidelines seek to inhibit by taking all prior established criminal behavior into consideration. The Presha-Hodgden line of cases, and now this case, further that goal. No matter what lenience another state may wish to show, once we are satisfied that a defendant’s factual guilt was established in a foreign state, that prior crime will count in Kansas.
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Beier, J.:
Andrew T. Dickson appeals his convictions after jury trial on three counts of rape, one count of aggravated criminal sodomy, and one count of criminal sodomy. He raises four issues: (1) Did the district court give an improper preliminary instruction? (2) Was the evidence sufficient to support the criminal sodomy conviction? (3) Did the district court err by failing to give a multiple acts unanimity instruction? and (4) Was his sentence on his rape conviction on Count IV illegal?
We will restate the facts in this sickening case only as necessary for an understanding of our holdings. The charges arose out of Dickson’s sexual activity with two young sisters, K.D. and M.D.
Dickson’s challenge to the district court’s preliminary instructions focuses on the following language: “During the course of this trial, you will hear testimony in regard to certain locations within Sedgwick County. You may not visit these locations on your own, and you may not otherwise conduct your own investigation of these matters. All proper investigations have already been conducted.”
Dickson did not object to this instruction at trial and must therefore demonstrate on appeal that the instruction was clearly erroneous, i.e., persuade us that there was a real possibility the jury would have rendered a different verdict if the error had not occurred. See State v. Evans, 270 Kan. 585, 588,17 P.3d 340 (2001).
Dickson’s first argument is that the instruction shifted the burden of proof on the element of venue to him. Once the State put on its evidence regarding the Sedgwick County locations of the various crimes, venue was never contested. We therefore conclude that any error in mentioning Sedgwick County in the instruction could not have made the difference between a guilty and not guilty verdict on the charges, particularly in the context of other preliminary and final instructions about the State’s burden to prove Dickson’s guilt and listing venue among the elements it must establish.
Dickson also argues the last sentence in the same instruction constituted a favorable comment on the credibility of the State’s witnesses. Because his convictions rested upon the inconsistent testimony of K.D. and M.D., he says, the judge’s instruction was prejudicial. Dickson is correct that “a judge should exercise great care and caution to say nothing within the hearing of the jury which would give them an indication of what he thought about the truth or falsity of any part of the testimony.” State v. Boyd, 222 Kan. 155, 159, 563 P.2d 446 (1977). However, we read the challenged sentence as being neutral. The court did not single out the State’s investigators as especially competent or their results as especially trustworthy. A reasonable juror would assume that both sides in such a serious case had fully investigated its facts and prepared for trial. The inclusion of this sentence was not error.
All of this being said, we are compelled to note that the instruction deviated substantially from its apparent model, PIK Civ. 3d 101.10(c). We do not disapprove of the district court’s effort to ensure that jurors decide the case only on the evidence presented and not on any amateur sleuthing they might conduct at or near the locations described in the testimony. But our appellate courts have repeatedly advised district judges to use PIK language, absent particular facts requiring modification. See, e.g., State v. Moncla, 262 Kan. 58, 71, 936 P.2d 727 (1997). Nothing about this case required the modifications that led to Dickson’s arguments. Again, we urge district judges not to wander too far from PIK unless absolutely necessary.
Dickson’s next argument attacks the sufficiency of the evidence to support his criminal sodomy conviction for causing M.D. to engage in anal intercourse, in violation of K.S.A. 21-3505(a)(3).
According to the testimony supporting this count, Dickson, M.D.’s father, M.D., and two other children were watching television after school. After M.D.’s father fell asleep, Dickson, clad only in his underwear, covered himself and M.D.’s legs with a blanket. When M.D. moved the blanket, she saw Dickson’s penis, and he asked her to hold it. She did not but replaced the blanket. M.D. tried to get away from Dickson, but he moved her to the top of his legs under the blanket. Dickson then pushed M.D.’s clothing aside and inserted his penis into M.D.’s anus. According to M.D., she had already been raped by Dickson on another occasion when he had thrown her onto a bed and placed a pillow over her face until she passed out, and she was afraid of him.
On appeal, Dickson concedes that he engaged in sodomy with M.D., which is an offense under K.S.A. 21-3505(a)(2), but he claims there was no proof that he caused M.D. to engage in sodomy with any person or animal as required by K.S.A. 21-3505(a)(3), the particular subsection under which he was charged.
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000).
Resolution of this issue also requires us to analyze and interpret K.S.A. 21-3505 on criminal sodomy. This endeavor is assisted by simultaneous review and interpretation of K.S.A. 21-3506 on aggravated criminal sodomy.
K.S.A. 21-3505 provides:
“(a) Criminal sodomy is:
(1) Sodomy between persons who are 16 or more years of age and members of the same sex or between a person and an animal;
(2) sodomy with a child who is 14 or more years of age but less than 16 years of age; or
(3) causing a child 14 or more years of age but less than 16 years of age to engage in sodomy with any person or animal.
“(b) It shall be a defense to a prosecution of criminal sodomy as provided in subsection (a)(2) that the child was married to the accused at the time of the offense.
“(c) Criminal sodomy as provided in subsection (a)(1) is a class B nonperson misdemeanor. Criminal sodomy as provided in subsections (a)(2) and (a)(3) is a severity level 3, person felony.”
K.S.A. 21-3506 provides:
“(a) Aggravated criminal sodomy is:
(1) Sodomy with a child who is under 14 years of age;
(2) causing a child under 14 years of age to engage in sodomy with any person or an animal; or
(3) sodomy with a person who does not consent to the sodomy or causing a person, without the person’s consent, to engage in sodomy with any person or an animal, under any of the following circumstances:
(A) When the victim is overcome by force or fear;
(B) when the victim is unconscious or physically powerless; or
(C) when tire victim is incapable of giving consent because of mental deficiency or disease, or when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known by the offender or was reasonably apparent to the offender.
“(b) It shall be a defense to a prosecution of aggravated criminal sodomy under subsection (a)(1) that the child was married to the accused at the time of the offense.
“(c) Aggravated criminal sodomy is a severity level 2, person felony.”
Interpretation of a statute raises a question of law, and our review of such questions is unlimited. State v. Sisk, 266 Kan. 41, 43, 966 P.2d 671 (1998). The fundamental rule of statutory interpretation is that the legislative intent governs when the intent can be ascertained from die statute. 266 Kan. at 43-44. In addition, criminal statutes must be strictly construed in favor of the defendant, but this rule is subordinate to the rule that judicial interpretation must be reasonable and sensible to cariy out the legislative intent and design. 266 Kan. at 43.
Subsections (2) and (3) were added to K.S.A. 21-3505(a) in 1992. See L. 1992, ch. 298, sec. 23. The fact that the legislature enacted both means that it saw some distinction between them. If both subsections prohibited exactly the same conduct, or one prohibited conduct that constituted nothing more than a subset of the conduct prohibited by the other, then one of the subsections would have been unnecessary. “ ‘[Statutes are construed to avoid unreasonable results. . . . There is a presumption that the legislature does not intend to enact useless or meaningless legislation.’ ” KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1231 (1997) (quoting Todd v. Kelly, 251 Kan. 512, 515-16, 837 P.2d 381 [1992]).
It is apparent to us from the plain language of 21-3505(a)(2) and (a)(3) and 21-3506(a)(l) and (a)(2) that the legislature wanted to prohibit and punish sodomy involving a child 15 or younger in all cases with only one exception, although the severity of the punishment for the accused would vary depending on the age of the child. The one exception, under either 2143505(b) or 21-3506(b), would apply when the child was married to the accused at the time of the act. Further, even that exception would disappear if the married child did not consent under any of the circumstances listed in 21-3506(a)(3)(A) through (C). In such a situation, aggravated criminal sodomy could be charged.
In this context, we believe consent also is key to distinguishing between K.S.A. 21-3505(a)(2) and K.S.A. 21-3506(a)(1) on the one hand and K.S.A. 2143505(a)(3) and K.S.A. 2143506(a)(2) on the other. The companion subsections of each statute can be differentiated and harmonized if the “sodomy with” language of 21-3505(a)(2) and 21-3506(a)(1) is limited to a defendant’s sodomy with a child of the designated age when the child has expressed or exhibited a willingness to engage in the act, and the “causing” language of 21-3505(a)(3) and 21-3506(a)(2) is limited to a defendant’s sodomy with such a child when the child did not express or exhibit a willingness to engage in the sexual activity, and yet none of the conditions set forth in 2143506(a)(3)(A) through (C) apply. In addition, 2143505(a)(3) and 21-3506(a)(2) cover a defendant who causes an unwilling child of the designated age to engage in sodomy with a person other than the defendant or with an animal, and yet none of the conditions set forth in 21-3506(a)(3)(A) through (C) apply.
This interpretation recognizes and effectuates the legislature’s clear goal of maximizing protection for the youngest and most vulnerable victims of sodomy, either because they have engaged in it against their will or because tire legislature deems them too young to give a valid consent outside of marriage, while being careful not to criminalize mutually consensual sodomy between married partners of opposite genders, regardless of their ages. Although some of us might quarrel with certain of the legislature’s policy choices underlying this statutory scheme, the policy choices are the legislature’s to make.
This interpretation also leads us to conclude that Dickson was properly charged under 21-3505(a)(3) and that there was sufficient evidence to convict him. He admits that he engaged in sodomy with M.D., and a reasonable factfinder could have concluded that M.D. was an unwilling participant. She testified about the earlier rape and its attendant battery. On this occasion, she tried unsuccessfully to get away from Dickson before he placed her on his lap under tire blanket. Yet the evidence does not rise to the level of violence or menace usually seen in an aggravated criminal sodomy case in which the victim is overcome by force or fear, or prove one of the other factors listed in 21-3506(a)(3)(B) or (C). Rather, under these circumstances, a reasonable jury could conclude beyond a reasonable doubt that Dickson caused M.D. to engage in anal intercourse with him when M.D. had not expressed or exhibited a willingness to do so, in violation of K.S.A. 21-3505(a)(3).
Dickson next takes issue with the district court’s failure to give the jury a multiple acts unanimity instruction. He argues that he was entitled to such an instruction because the State presented evidence of multiple rapes of K.D. and multiple acts of her oral contact with his genitalia.
“In multiple acts cases, several acts are alleged and any one of the acts could constitute the crime charged. When the prosecution presents evidence of several acts that could form the basis of one count charged, either the State must inform the jury which act to rely on in its deliberations or the court must instruct the jury to agree on a specific criminal act.” State v. Dean, 272 Kan. 429, Syl. ¶ 5, 33 P.3d 225 (2001).
This argument is without merit. Both in opening statement and again in closing argument, the prosecutor informed Dickson’s jury exactly which single incident the State was relying upon to convict on each of the rape counts and on the criminal sodomy count having to do with K.D. There was no multiple acts error because the State made the required election or its functional equivalent. See State v. Fulton, 28 Kan. App. 2d 815, 822, 23 P.3d 167, rev. denied 271 Kan. 1039 (2001).
Dickson’s last issue involves his sentence for the rape of K.D. on November 20,1995, which was charged in Count IV. The question of whether a criminal sentence is illegal is a question of law. Our review is unlimited. Sisk, 266 Kan. at 43.
An illegal sentence is defined as “ ‘ “either a sentence imposed by a court without jurisdiction; a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized; or a sentence which is ambiguous with respect to the time and manner in which it is to be served.” ’ [Citations omitted.]” 266 Kan. at 43.
The State charged this rape as a severity level 1 person felony. At the time of the crime, rape was a severity level 2 person felony. K.S.A. 21-3502(c). Dickson’s criminal history was H. His sentencing range should therefore have been 77-82-86 months, K.S.A. 21-4704(a), but the district court improperly employed a range of 184-194-206 months. This sentence was illegal, as the State concedes. We must therefore vacate this sentence and remand the case for resentencing on this count.
Convictions affirmed, sentence for rape of K.D. on November 20, 1995, vacated, and case remanded for resentencing on that count only. | [
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Lewis, J.:
Plaintiff John E. Schwartz brought this malpractice action against the defendant physician, Eustaquio O. Abay II, M.D., alleging negligence in the performance of a spinal fusion. The jury awarded judgment in favor of plaintiff in the amount of $76,200. Included in die jury award was a future medical award of $40,000. The trial court set aside the award for future medical expenses on a motion for judgment notwithstanding the verdict. Plaintiff appeals from the trial court’s action on that motion.
This case has found its way to this court for the second time. It was originally appealed when the trial court granted summary judgment in favor of defendant because plaintiff had produced no expert testimony on the question of causation. This court reversed that decision and remanded the matter for retrial. See Schwartz v. Abay, 26 Kan. App. 2d 707, 995 P.2d 878 (1999). The facts in this case are almost identical to those set forth in our prior opinion.
Plaintiff had been employed as an electrician for nearly 20 years. He also had a long and persistent history of back problems. He first experienced back problems in 1972 and, over the years, has experienced several back injuries or aggravation of back problems and at least three surgeries. Early on, he was diagnosed with having degenerative disc disease. Plaintiffs personal physician referred him to defendant, who performed back surgeries on plaintiff in January 1988, May 1995, and June 1996. This appeal involves the surgery in June 1996.
In the June 1996 instance, defendant concluded that he needed to perform a discectomy and fusion at L4-5. He proceeded with the surgery and assumed he had done so. However, after surgery, it became apparent that he had removed the wrong disc. The discectomy and fusion had been done at L3-4 rather than L4-5. The doctor admitted this mistake and advised plaintiff and his family what he had done. Plaintiff was not charged for the procedure, which carried a price tag of $20,837.28.
At the outset, we note there is no question that defendant negligently fused the wrong vertebra on plaintiff. The only issues are those relating to damages suffered by plaintiff.
As pointed out earlier, the trial court granted defendant’s motion for judgment notwithstanding the verdict, deleting the $40,000 award for future medical expenses.
“ ‘When ruling on a motion for directed verdict, the trial court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the parly against whom tire ruling is sought. Where reasonable minds could reach different conclusions based on the evidence, the motion must be denied. A similar analysis must be applied by an appellate court when reviewing the grant or denial of a motion for directed verdict.’ Calver v. Hinson, 267 Kan. 369, Syl ¶ 1, 982 P.2d 970 (1999).” Wilkinson v. Shoney’s, Inc., 269 Kan. 194, 202, 4 P.3d 1149 (2000).
This court’s standard of review of a motion for judgment notwithstanding the verdict is the same as that for a directed verdict. Hoover v. Innovative Health of Kansas, Inc., 26 Kan. App. 2d 447, 454, 988 P.2d 287, rev. denied 268 Kan. 846 (1999).
Instruction No. 13 advised the juiy that it could award defendant damages for “[t]he reasonable expenses of necessary medical care, hospitalization and treatment received (and of those reasonably expected to be needed in the future).” Although defendant probably should have objected to the jury being instructed to consider future medical damages, we do not believe that failure to object to be fatal to his cause.
The law is clear that expert testimony is not necessary on a claim for damages. Hare v. Wendler, 263 Kan. 434, Syl. ¶ 2, 949 P.2d 1141 (1997).
“In a negligence action, recoveiy may be had only where there is evidence showing with reasonable certainty the damage was sustained as a result of the complained-of negligence. Recovery may not be had where the alleged damages are too conjectural or speculative to form a basis for measurement. To warrant recoveiy of damages, therefore, there must be some reasonable basis for computation which will enable the trier of fact to arrive at an approximate estimate of the amount of loss.” Morris v. Francisco, 238 Kan. 71, Syl. ¶ 3, 708 P.2d 498 (1985).
We have examined the record very carefully and conclude there was no reasonable basis on which this juiy could have computed its award of future medical expenses. Plaintiff argues there is evidence to support that award because previously he had three back surgeries and is at a high risk for reinjury or additional surgeiy. There is no question that there is evidence in the record indicating plaintiff will continue to have back problems and will have future medical expenses. The problem is there is nothing in the record that relates that fact to defendant’s removal of the wrong disc. The record is replete with indications that plaintiff had degenerative disc disease, that his back had required prior surgeries, and that he would continue to experience back pain and further degeneration. However, there is nothing in the record to indicate that any of these future problems would have been caused or contributed to by the June 1996 surgery.
Inexplicably, the record contains not one question as to whether plaintiff would experience future medical expenses as a result of defendant’s negligence. Plaintiff was not asked, defendant was not asked, and no expert witness was called by plaintiff to prove there would be future medical damages. Plaintiff argues the cost of the improper surgery provided the basis for the jury to determine future medical damages. That may be true, but there was no evidence and no testimony whatsoever that a future surgery was scheduled or would be required.
Plaintiff failed to provide any evidence to show that future medical treatment would be the result of an improper surgery rather than the result of his preexisting disc disease. It is true that Kansas law does not require expert testimony on a claim for damages; however, when a case involves preexisting conditions and other contributing factors that may complicate the question of damages, an expert is required to distinguish and attribute those damages that may have been caused by the preexisting condition or other contributing factors and those damages that may have been caused by defendant’s breach of the standard of care. Hare, 263 Kan. at 444-45.
We also note that it appears to be a somewhat close question as to whether plaintiff was damaged at all. Plaintiff testified that he decided to have the surgeiy because he had pain in his leg. During cross-examination, the following occurred:
“Q. And the pain — let’s be clear about this. The purpose of the surgery, the primary purpose, was to alleviate the pain; is that right?
“A. Yes.
“Q. And that goal was accomplished; correct?
“A. Correct.”
In other words, even though defendant performed the wrong surgeiy, the result plaintiff sought was achieved; his pain went away and had not come back. There is no explanation for this phenomenon, but the fact is, this is what the evidence shows.
The evidence in this case shows that if plaintiff has future medical expenses, it is as likely to be due to his degenerative disc disease as to anything that defendant did in the June 1996 surgery. There was no evidence from which a jury could establish a basis for future medical damages, and the trial court did not err in granting the judgment notwithstanding the verdict.
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Lewis, J.;
Butler National Corporation (Butler) sued Gerald T. Kelly & Company (Kelly), alleging that Kelly had agreed to do some accounting work for Butler and had not done the work. Butler sought to recover the payments it had made to Kelly, and it also sought declaratory judgment relief. The trial court held that all of Butler s claims against Kelly were required to be arbitrated and dismissed its petition. Butler appeals from that dismissal.
Butler is a Delaware corporation with its principle place of business in Johnson County, Kansas, and it does business all over the United States. Kelly is a California Professional Corporation providing certified public accountant services.
According to Butler, it received an unsolicited letter from Kelly, offering its accounting services. The parties negotiated on the fee; Kelly reviewed Butler s files and submitted a proposal for audit services for the tax year ending April 30, 1999. Later, Kelly sent Butler another letter estimating the audit work would require 600 hours of professional time at an estimated cost of $50,000 to $60,000. This will be referred to as the 1999 contract between the parties. In addition to the agreement on the fee, the parties also agreed that should a fee dispute arise, it would be submitted to mediation by a third party and to binding arbitration should mediation fail. In April 2000, the parties entered into another agreement, whereby Kelly agreed to observe Butlers physical inventories for the year ending April 30, 2000. Kelly estimated its fee for this service to be $4,100. This will be referred to as the 2000 contract.
Soon, serious disagreements arose between the parties, and Kelly informed Butler it would require another $65,000 in fees for it to complete the 1999 audit, bringing the total cost of the audit to $109,100.
Butler apparently found this to be excessive, and it ultimately filed this action in Johnson County. In the petition, Butler alleged it had paid Kelly in the neighborhood of $40,000 in December 1999 and that it had not seen any bill or statement of work completed by Kelly at that time or at any later time. It further alleged that Kelly wanted an additional $90,000 to complete the 1999 audit. Butler also claimed it sent Kelly the requested $4,100 for the inventory review provided for by the 2000 contract and that Kelly sent representatives to perform the audit who were not licensed to practice public accounting in Kansas.
Butler took the position that Kelly had breached the agreement to perform auditing and inventory review services and asked the court to void the 1999 audit agreement and to determine that Butler was not subject to personal jurisdiction in California or to the jurisdiction of a California arbitration panel. Butler also claimed that Kelly had breached the agreement and that Butler had the right to rescind and should have all monies returned to it.
The prayer of Butler’s petition asks for judgment against Kelly for monies paid, for negligently representing the time and cost required for the 1999 audit, and for breach of contract.
Kelly’s response was to file a motion to dismiss Butler’s petition, arguing the fee provisions in the 1999 agreement required the dispute to be submitted to mediation and then to arbitration. Apparently, the parties had participated in a mediation session, but it was not successful, which left arbitration as Butler’s remedy.
The trial court found that the parties intended for any fee dispute to be arbitrated. It also found that the nature of Butler’s business and its transactions with Kelly brought the whole matter under the Interstate Commerce Clause and Federal Arbitration Act (FAA). The trial court held the contract enforceable and binding, held that Butler’s only remedy was arbitration, and dismissed Butler’s claims.
THE 1999 AGREEMENT
We first turn to the 1999 agreement entered into by the parties. Butler argues that this is not a fee dispute issue, that it has raised other claims, and that this lawsuit is not subject to the arbitration clause. This involves the interpretation of a written agreement, and we have an unlimited scope of review. City of Topeka v. Watertower Place Dev. Group, 265 Kan. 148, 152-53, 959 P.2d 894 (1998). The FAA provides that all doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. Coffey v. Dean Witter Reynolds, Inc., 891 F.2d 261, 262 (10th Cir. 1989). Absent some ambiguity in the written agreement, the language of the contract defines the scope of disputes subject to arbitration. EEOC v. Waffle House, Inc., 534 U.S. 279, 289, 151 L. Ed. 2d 755, 122 S. Ct. 754 (2002).
In determining whether arbitration is required under the facts of a case, we utilize a two-step analysis. We must first determine whether the parties agreed to arbitrate the claims at issue. If that is true, we must then determine “ ‘ “whether legal constraints external to the parties’ agreement foreclose the arbitration of those claims.” ’ ” Via Fone, Inc. v. Western Wireless Corp., 106 F. Supp. 2d 1147, 1150 (D. Kan. 2000) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 87 L. Ed. 2d 444, 105 S. Ct. 3346 [1985]).
The FAA provides:
“[A] contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for revocation of any contract.” 9 U.S.C. § 2 (2000).
In this case, the fee dispute provision in the 1999 agreement reads as follows:
“In the event of a dispute over fees for our services, we mutually agree to try in good faith to resolve the dispute through mediation by selecting a third party to help us reach an agreement. If we are unable to resolve the fee dispute through mediation, BNC and Kelly & Company agree to submit to a resolution by arbitration. Such arbitration shall be binding and final. IN AGREEING TO ARBITRATION, WE BOTH ACKNOWLEDGE THAT IN THE EVENT OF A DISPUTE OVER FEES, EACH OF US IS GIVING UP THE RIGHT TO HAVE THE DISPUTE DECIDED IN A COURT OF LAW BEFORE A JUDGE OR JURY AND INSTEAD WE ARE ACCEPTING THE USE OF ARBITRATION FOR RESOLUTION.”
First, the arbitration clause as set forth above is rather specific. It does not automatically encompass every claim arising out of the agreement between the parties. There is no reason why arbitration provisions cannot limit their coverage to specific types of disputes and leave other disputes in the agreement to the court system. See Alexander v. Everhart, 27 Kan. App. 2d 897, 907, 7 P.3d 1282, rev. denied 270 Kan. 897 (2000). Butler makes a disingenuous argument that its claims for negligent misrepresentation, breaches of the audit and inventory agreements, and for the return of two separate retainers are not fee disputes and are not subject to the arbitration provision which we have quoted above.
Butlers lawsuit against Kelly on the 1999 agreement brings to mind the sage advice about something that “quacks like a duck.” No matter how much Butler would like to explain to us why this is not a fee dispute, the fact remains that it is a fee dispute. Butler wants all the money back it paid to Kelly. Kelly thinks Butler owes it more money. If there were no dispute between the parties about the fees, this lawsuit would not exist.
We will not engage in legal semantics to nullify the arbitration clause between the parties. The lawsuit concerning the 1999 agreement, although there are any number of allegations, still amounts to an effort by Butler to recover all fees it has paid Kelly. We hold the trial court did not err in dismissing those portions of Butler s petition which relate to the 1999 agreement. Those provisions are required to be submitted to binding arbitration.
THE APRIL 2000 INVENTORY AGREEMENT
The trial court, while it dismissed Butler’s lawsuit under its 1999 agreement, also dismissed Butler’s lawsuit based on the 2000 inventory agreement. We conclude the trial court erred in dismissing the cause of action based on the 2000 inventory agreement. The agreement concerning inventory was entered into approximately 6 months after the audit agreement and was reduced to writing by an engagement letter which was signed in April 2000. The engagement letter concerning the inventory contained no arbitration provision and estimated that Kelly’s fees for that service would be approximately $4,100.
We see these as two separate agreements; there is no required arbitration clause in the inventory agreement entered into in April 2000, and the trial court erred in dismissing Butler’s claims concerning that agreement.
The claims arising out of the 2000 agreement are not subject to binding arbitration, and, on remand, should be tried before the trial court.
DECLARATORY RELIEF
Part of Butler’s action asks the court to declare that it was not subject to arbitration in California regardless of whether further relief was sought or other claims raised.
The trial court apparently did not address nor did it decide this issue. It found that Butler and Kelly were parties having their domiciles in different states and that Butler “is a corporation that has publicly traded stock and derives its revenue from distribution of products throughout a nationwide market.”
In this case, the trial court did not address Butler’s declaratory judgment request because it determined all of the claims raised were preempted by the FAA and dismissed the entire petition. Although the trial court has authority to issue declaratory judgments, we are aware of no requirement that it do so. Butler provides us with no citations to show that it was error for the court to decline to rule on the declaratory judgment request.
However, it appears the trial court simply did not address the issue, and we suggest that the issue be addressed and decided on remand.
Affirmed in part, reversed in part, and remanded. | [
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Green, J.:
Troy D. Frazier appeals his conviction of and sentence for possession of ephedrine or pseudoephedrine. On appeal, Frazier argues (1) that the trial court erred in failing to instruct the juiy on the definition of possession; (2) that the evidence was insufficient to support his conviction; (3) that K.S.A. 2001 Supp. 65-7006(a) is unconstitutionally vague; and (4) that the trial court imposed an illegal sentence. We affirm Frazier s conviction, vacate his sentence, and remand for resentencing.
On March 22, 2000, Theresa Foster picked up Frazier from a friend’s residence and the two went to the Coffeyville, Kansas, WalMart to purchase presents for Foster’s daughter’s birthday. After shopping, the couple went to tire Schwinn Motel, where Foster had stayed the night before. Foster and Frazier then drove to Parsons, Kansas, to attend her daughter’s birthday party.
After Foster and Frazier left the motel, police officers executed a search warrant for Foster’s motel room as part of a narcotics investigation. When the officers arrived at the motel room, they knocked on the door, but no one answered. The officers then set up a surveillance of the room and waited for the occupants to return.
After the party, Frazier, Foster, Foster’s two children, and Penny Collins went to the Coffeyville Wal-Mart. Collins and Foster’s daughter went into the store, purchased some items, and put the items into the trunk of the car. The group then returned to the motel.
An officer surveilling the motel room observed Frazier retrieve two Wal-Mart bags from the trunk of the vehicle and carry the bags towards the motel room. Frazier approached the motel room with a key in his hand and was attempting to unlock the door when the officer took him into custody. The bags that Frazier was carrying contained 5 cans of starter fluid, 14 boxes of cold or allergy pills, and 4 lithium batteries. The officer deduced that the items in the bags were to be used to manufacture methamphetamine based on the combination and amount of the items.
Frazier was charged with several drug offenses, but all of the charges except one count of possession of ephedrine or pseudoephedrine were dismissed before the case was submitted to the jury. A jury convicted Frazier of possession of ephedrine or pseudoephedrine. He was sentenced to the standard term of ISO months’ imprisonment based on his criminal history score of H and a drug severity level 1 felony.
Instruction on Definition of Possession
Frazier’s first argument on appeal is that the trial court erred in failing to instruct the jury on the definition of possession. Frazier concedes that he failed to request an instruction on the definition of possession. Accordingly, our standard of review is as follows:
“No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of his or her objection, unless the instruction or the failure to give the instruction is clearly erroneous. K.S.A. 22-3414(3). Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. [Citation omitted.]” State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001).
Frazier argues that the instruction on the definition of possession was necessary because he was in constructive possession of the bags containing the methamphetamine precursors. A defendant is in constructive possession of illegal items if the items are found on premises where the defendant is in nonexclusive possession, rather than on the defendant’s person. See State v. Hazley, 28 Kan. App. 2d 664, 672, 19 P.3d 800 (2001).
Here, however, Frazier did not constructively possess the items in the two Wal-Mart bags because the items were found in his actual possession. As such, this is not a case where the State asked the jury to conclude that Frazier was guilty simply because he was present at a location where illegal items were discovered. Instead, Frazier had actual possession of the items in the Wal-Mart bags because he was carrying the bags. “Possession” under the law involves “[hjaving control over a . . . thing with knowledge of and the intent to have such control.” PIK Crim. 3d 53.00 (2000 Supp.). The omission of that definition in this case was not clearly erroneous.
Nevertheless, Frazier contends that without an instruction on the definition of possession, the jury could have concluded that he was guilty solely because he was carrying the bags to the motel room without knowing what the bags contained. This argument is without merit because the jury was instructed that to convict Frazier of possession of ephedrine or pseudoephedrine, the State was required to prove that Frazier “knowingly possessed ephedrine or pseudoephedrine with the intent to use the product as a precursor to any illegal substance.” Because the trial court instructed the jury that an element of the offense was an intent to use the items for an illegal purpose, the jury was implicitly required to find that Frazier knew what the bags contained. As a result, we find that the trial court’s failure to instruct the jury on the definition of possession was not clearly erroneous.
Sufficiency of the Evidence
Next, Frazier contends that the evidence was not sufficient to support his conviction of possession of ephedrine or pseudoephedrine. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000).
Frazier was convicted of possession of ephedrine or pseudoephedrine in violation of K.S.A. 2001 Supp. 65-7006(a). The statute provides: “It shall be unlawful for any person to possess ephedrine, pseudoephedrine or phenylpropanolamine, or their salts, isomers or salts of isomers with intent to use the product as a precursor to any illegal substance.” K.S.A. 2001 Supp. 65-7006(a).
Frazier contends that the State failed to prove he possessed a substance prohibited by K.S.A. 2001 Supp. 65-7006(a). He argues that the legislature’s reference to “ephedrine” and “pseudoephedrine” in that subsection of the statute indicates an intent to address pure ephedrine. According to Frazier, the evidence is insufficient to support his conviction because the State did not prove that he possessed pure ephedrine. Instead, Frazier concedes that, at most, the evidence established that he possessed a drug product containing ephedrine or pseudoephedrine.
To support his argument, Frazier notes that subsections (b) and (c) of the statute prohibit certain types of marketing of “any drug product containing ephedrine.” See K.S.A. 2001 Supp. 65-7006(b) and (c). Frazier claims that a plain reading of the statute indicates that when the legislature intended to address a drug product containing ephedrine, it called it just that and by failing to use that language in subsection (a), the legislature intended to address only pure ephedrine.
Interpretation of a statute is a question of law; therefore, this court’s standard of review is unlimited. State v. Sisk, 266 Kan. 41, 43, 966 P.2d 671 (1998).
“It is fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. [Citation omitted.] The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.] Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. [Citation omitted.]” In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
Frazier’s argument that K.S.A. 2001 Supp. 65-7006(a) addresses only pure ephedrine is without merit. Interpreting the statute to prohibit possession of only pure ephedrine would be to include language that is not readily found in the statute. K.S.A. 2001 Supp. 65-7006(a) is a general statute that addresses not only pure ephedrine or pseudoephedrine, but also drug products containing ephedrine or pseudoephedrine. Such an interpretation is consistent with the legislative intent of the statute to prohibit the use of otherwise legal drugs containing ephedrine or pseudoephedrine in the man ufacture of illegal substances. As a result, this court finds that K.S.A. 2001 Supp. 65-7006(a) is not limited to the possession of pure ephedrine.
We further find that the evidence is sufficient to support Frazier s conviction. A forensic chemist with the Kansas Bureau of Investigation testified that the pills recovered from Frazier contained ephedrine or pseudoephedrine. After review of all the evidence, viewed in the light most favorable to the State, a rational factfinder could have found Frazier guilty beyond a reasonable doubt. As a result, the evidence is sufficient to support Frazier s conviction of possession of ephedrine or pseudoephedrine.
Constitutionality of K.S. A. 2001 Supp. 65-7006(a)
Next, Frazier argues that K.S.A. 2001 Supp. 65-7006(a) is unconstitutionally vague. Fraziers constitutional claim, however, was not presented to the trial court. Generally, where constitutional grounds are asserted for the first time on appeal, they are not properly before the appellate court for review. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999). We may consider such issues in exceptional circumstances where the asserted error involves a strictly legal question that will be determinative of the case or where consideration of the new issue is necessary to serve the interests of justice or to prevent a denial of fundamental rights. State v. Bell, 258 Kan. 123, Syl., 899 P.2d 1000 (1995).
Frazier has not alleged that any of the recognized exceptions to this rule are present in the instant case. See Mason, 268 Kan. at 39; State v. Mincey, 265 Kan. 257, 267, 963 P.2d 403 (1998). As such, we find that the constitutionality of K.S.A. 2001 Supp. 65-7006(a) is not properly before this court, and we refuse to consider the issue in this appeal.
Illegal Sentence
Finally, Frazier argues that the trial court imposed an illegal sentence. Frazier contends that the conduct for which he was convicted was proscribed by both the statute prohibiting possession of ephedrine or pseudoephedrine, a drug severity level 1 felony (K.S.A. 2001 Supp. 65-7006[a]), and the statute prohibiting pos session of drug paraphernalia, a drug severity level 4 felony (K.S.A. 2001 Supp. 65-4l52[a][3]). Frazier contends that his sentence should have been based upon the statutory limits for drug severity level 4 felonies, rather than those for drug severity level 1 felonies.
Although Frazier failed to bring this argument to the trial court, this court has “jurisdiction to correct an illegal sentence at any time.” See Sisk, 266 Kan. at 43. Moreover, the statutes at issue must be construed in favor of Frazier. See State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998) (“[C]riminal statutes must be strictly construed in favor of the accused.”).
To support his argument that the trial court erred in sentencing him, Frazier relies on State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989). The defendant in Nunn was convicted of aggravated criminal sodomy. On appeal, the defendant argued that aggravated criminal sodomy, a class B felony, and indecent liberties with a child, a class C felony, were identical offenses and, as a result, the trial court erred in sentencing him to a class B felony. The Nunn court found that the offenses were identical because they had the same elements. The court held that “[w]here two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.” 244 Kan. at 229. As a result, the Nunn court remanded the case with directions to sentence Nunn to a class C felony. See also State v. Clements, 241 Kan. 77, Syl. ¶ 3, 734 P.2d 1096 (1987) (“Where two offenses are identical except for the class of felony to which each is assigned, a defendant may be sentenced only under the lesser penalty section.”).
Frazier contends that K.S.A. 2001 Supp. 65-4152(a)(3) has identical elements to K.S.A. 2001 Supp. 65-7006(a). K.S.A. 2001 Supp. 65-4152(a)(3) makes it illegal to possess with the intent to use “any drug paraphernalia to . . . manufacture ... a controlled substance.” Drug paraphernalia is defined in K.S.A. 65-4150(c) to include “all equipment, products and materials of any kind which are used or intended for use in . . . manufacturing ... a controlled substance.” The statute lists various types of items that are included within the definition of drug paraphernalia. Although ephedrine or pseudoephedrine is not named, the statute indicates that the list is not all-inclusive. See K.S.A. 65-4150(c).
This court finds that the trial court erred in sentencing Frazier. Possession of ephedrine or pseudoephedrine and possession of drug paraphernalia are identical offenses. Both offenses prohibit the possession of ephedrine or pseudoephedrine for use in the manufacture of a controlled substance. Ephedrine and pseudoephedrine fall within the definition of drug paraphernalia because they are materials used to manufacture a controlled substance. See K.S.A. 65-4150(c).
Possession of ephedrine or pseudoephedrine and possession of drug paraphernalia are identical offenses even though the statutes use different language to describe the elements. For example, K.S.A. 2001 Supp. 65-7006(a) uses the terms “ephedrine” and “pseudoephedrine” to describe the type of prohibited item, whereas the statute prohibiting possession of drug paraphernalia, K.S.A. 2001 Supp. 65-4152, uses the general terms “equipment, -products and materials.” However, because ephedrine and pseudoephedrine constitute products or materials, those elements are identical. Similarly, the possession of ephedrine or pseudoephedrine statute prohibits possession of ephedrine or pseudoephedrine “with intent to use the product as a precursor to any illegal substance” where the possession of drug paraphernalia statute prohibits possession of a product with intent to “manufactur[e] ... a controlled substance.” Although the statutes use different language, they require the samé requisite criminal intent and, as such, the elements are identical. As a result, we find that possession of ephedrine or pseudoephedrine and possession of drug paraphernalia are identical offenses.
In so holding, we reject the State’s contention that if Frazier’s argument were taken to its logical conclusion, the punishment for possession of cocaine and possession of marijuana would be the same. The State’s position is without merit. Unlike ephedrine and pseudoephedrine, cocaine and marijuana are controlled substances. See K.S.A. 2001 Supp. 65-4105(d)(24) (marijuana); K.S.A. 2001 Supp. 65-4107(b)(5) (cocaine). As such, the elements of possession of marijuana and possession of cocaine are not identical to the elements of possession of drug paraphernalia because marijuana and cocaine are not materials used to manufacture a controlled substance.
As a result, tire case is remanded to the trial court with directions to correct the sentence imposed to conform to the penalties for a drug severity level 4 felony, rather than a drug severity level 1 felony.
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Johnson, J:
The Department of Social and Rehabilitation Services (SRS) appeals the termination of the parental rights of H.R.B.’s natural father (hereafter “Father”). The action was a “pri vate” childinneed of care (CINC) proceeding initiated by Ii.R.B.’s natural mother (hereafter “Mother”). SRS was not notified of the CINC proceeding and, therefore, did not participate, thus giving rise to a question as to SRS’s standing to bring this appeal. SRS wants to generally challenge the concept of a private termination and specifically challenge the sufficiency of the evidence to support a termination in this case. We dismiss the appeal.
H.R.B. was bom on December 5, 2000, in Manhattan, Kansas. His parents were never married; his father was in the military, stationed in Kansas. During Mother’s pregnancy, Father told Mother he did not want to be involved in any part of the child’s life. After being notified of H.R.B.’s birth, Father made good on his pledge to abdicate all parental responsibility; he refused to have any contact with the baby and provided no financial support. Father’s intentions were to leave the military and the state of Kansas within 6 months of the child’s birth and to remain permanently separated from the child.
Four months after H.R.B.’s birth, Mother filed a petition alleging H.R.B. was a child in need of care with respect to Father and requesting termination of Father’s parental rights. The motion alleged that Father did not want to be H.R.B.’s parent; that he had refused all communication with H.R.B.; and that he wanted to be permanently separated from H.R.B., both physically and emotionally. Father voluntarily entered his appearance and waived his rights and privileges under the Soldiers’ and Sailors’ Civil Relief Act of 1940. 50 U.S.C. § 501 et seq. (1994). Although allegedly providing H.R.B. medical assistance at the time, SRS was not notified of the proceeding.
As required in a CINC proceeding, a guardian ad litem (GAL) was appointed to represent the best interests of H.R.B. At the April 18, 2001, hearing, Mother, Father, and GAL were present and agreed to the termination of Father’s rights. Evidence was presented through a proffer, but the district court independently questioned Father. After determining Father’s actions were voluntary and that he understood the consequences of a parental termination, the district court granted the petition. The journal entry terminating Father’s parental rights was filed May 3, 2001.
On May 30,2001, SRS filed an entry of appearance in the district court, claiming to be the assignee of Mother s support rights against Father. Contemporaneously, SRS filed a notice of appeal.
Appellees filed a motion to dismiss the appeal, claiming SRS had no standing. This court directed that the standing issue would be considered by the assigned panel and that the parties should brief the issue.
Our initial concern is that the issue of standing was not presented to the district court. SRS did not seek relief from the trial court; it simply filed an entry of appearance and appealed. Normally, issues not raised before the trial court cannot be raised on appeal. Lindsey v. Miami County National Bank, 267 Kan. 685, 690, 984 P.2d 719 (1999). Here, the rationale for such a rule is exemplified by the absence of SRS’s factual allegations in the record, e.g., proof that SRS provided medical assistance to H.R.B. was not submitted to the district court. As with many general rules, however, there are exceptions. See Jarboe v. Board of Sedgwick County Comm'rs, 262 Kan. 615, 622-23, 938 P.2d 1293 (1997).
In a K.S.A. Chapter 60 proceeding, we would expect SRS to commence its attack on the termination order in the district court. See, e.g., K.S.A. 60-260(b). However, CINC actions are governed by Chapter 38, and neither the statutes nor our case law malee it dear to what extent, if any, the Chapter 60 Code of Civil Procedure applies to CINC proceedings. Further, time is of the essence in cases involving parental rights; children are entitled to the stability of an expedient and final decision on the legal standing of their parents. We believe consideration of the issue is necessary to serve the ends of justice or to prevent denial of fundamental rights. See Jarboe, 262 Kan. at 622.
Whether SRS has standing to appeal involves the interpretation of various statutes; statutory interpretation is a question of law, subject to unlimited appellate review. See In re Guardianship & Conservatorship of Heck, 22 Kan. App. 2d 135, Syl. ¶ 1, 913 P.2d 213 (1996).
SRS claims to be a “party in interest” in any action under the Kansas Code for Care of Children, K.S.A. 38-1501 ei seq., because all such proceedings are brought in the exercise of the parental power of the State. SRS points to the first section of the code for authority that the best interests of the State are not to be ignored:
“K.S.A. 38-1501 through 38-1593 shall be known as and may be cited as the Kansas code for care of children and shall be liberally construed, to the end that each child within its provisions shall receive the care, custody, guidance, control and discipline, preferably in the child’s own home, as will best serve the child’s welfare and the best interests of the state. All proceedings, orders, judgments and decrees shall be deemed to have been taken and done in the exercise of the parental power of the state. Proceedings pursuant to this code shall be civil in nature.” (Emphasis added.) K.S.A. 38-1501.
SRS asserts the State is per se defined as a “party in interest” by the code:
“As used in this code, unless the context otherwise indicates:
“(e) ‘Interested party’ means the state, the petitioner, the child, any parent, any grandparent and any person found to be an interested party pursuant to K.S.A. 38-1541 and amendments thereto.” (Emphasis added.) K.S.A. 2001 Supp. 38-1502.
Appellees suggest the statutory references to the “state” in the CINC code mean the district or county attorney, not SRS. The same definition statute to which SRS points contains a definition for “Secretary,” which is defined as the Secretary of Social and Rehabilitation Services. K.S.A. 2001 Supp. 38-1502(o). “Secretary” is not, however, listed in the definition of “[interested party.” Further, K.S.A. 38-1510 specifically places the CINC code duties on the county or district attorney. K.S.A. 38-1529 defines the respective roles of SRS and the county or district attorney; SRS is to refer the case to the county or district attorney, who makes the determination whether to file a petition. See also K.S.A. 38-1533(a) (the county or district attorney determines upon whom to serve the summons and petition).
In this case, the county or. district attorney was not involved because the proceeding was initiated by Mother through her own attorney. Such a “private” CINC proceeding is specifically allowed under K.S.A. 38-1529, which states:
“(b) Any individual may file a petition alleging a child is a child in need of care and the individual may be represented by the individual’s own attorney in the presentation of the case.”
Our court has determined the CINC statutes permit a proceeding which does not include the county or district attorney or any other representative of the State. In In re C.D.W., 24 Kan. App. 2d 456, 460, 946 P.2d 100 (1997), this court held:
“Under the Kansas Code for Care of Children, K.S.A. 38-1501 et seq., both parents may agree that one parent’s rights should be terminated if the noncustodial parent has no contact with and fails to support the child. The custodial parent will then have grounds to file a child in need of care petition and seek to terminate the noncustodial parent’s rights. Even though the child is being well cared for by the custodial parent, a court may find that the noncustodial parent has abandoned the child and thus find that the child is a child in need of care and proceed to terminate the noncustodial parent’s rights. In this way the custodial parent can be assured that the other parent can never try to challenge his or her custody and will never have custody of the child even if the custodial parent dies. Conversely, the noncustodial parent is assured that he or she will never have to provide support for the child, either directly or through reimbursement to SRS under K.S.A. 1996 Supp. 39-709 and K.S.A. 1996 Supp. 39-755. While this result appears direcdy contrary to the established rule of law that a parent may not simply divest himself or herself of the duty to support his or her child, Kansas statutes are clear that such action is permitted as long as both parents are willing and the court finds it is in the best interests of the child.”
Further, the CINC code does not mandate that notice of child in need of care proceedings be given to SRS. K.S.A. 38-1533(a) provides:
“The summons and a copy of the petition shall be served on the child alleged to be a child in need of care by serving the guardian ad litem appointed for the child; the parents or parent having legal custody or who may be ordered to pay child support by the court, the person with whom the child is residing and any other person designated by the county or district attorney. A copy of the petition and notice of hearing shall be mailed by regular mail, to the child’s grandparents with whom the child does not reside.”
The language of the CINC code does not support SRS’s assertion that it is an interested party in every child in need of care proceeding. Generally, SRS will participate as a support agency for the county or district attorney, but SRS is not entitled to independent notice of the proceedings nor entitled to participate as an independent parly. In a private proceeding, the State does not need to participate at all. In lieu of collaterally attacking our prior holding in In re C.D.W., SRS should make its policy arguments to the legislature.
SRS further argues that, in this case, its interested party status emanates from the fact that H.R.B. was receiving medical assistance from the State. Although the record does not reflect the payments, appellees have apparently conceded that, when the petition was filed, H.R.B. was receiving such assistance.
Indeed, Mother s application for and receipt of State medical assistance effected, by operation of law, an assignment of her right of support to the Secretary of SRS. K.S.A. 39-709(g). Therefore, SRS argues, K.S.A. 39-754(1) makes the Secretary of SRS a “necessary party” to any proceeding which may affect the support obligation. Because terminating Father s parental rights terminates his obligation to support H.R.B., SRS was a necessary party in the CINC case.
SRS does acknowledge, however, that a condition precedent set forth in 39-754(f) is that SRS shall have filed a notice of assignment of support rights with the court which has ordered support payments. Specifically, that statute reads:
“If the secretary of social and rehabilitation services or the secretary’s designee has on file with the court ordering support payments, a notice of assignment of support rights pursuant to subsection (b) or a notice of partial termination of assignment of support rights pursuant to subsection (d), the secretary shall be considered a necessary party in interest concerning any legal action to enforce, modify, settle, satisfy or discharge an assigned support obligation and, as such, shall be given notice by the party filing such action in accordance with the rules of civil procedure.” (Emphasis added.) K.S.A. 39-754(f).
SRS contends that without notice of the CINC proceeding, there was no way for SRS to file its notice of assignment in that case. This ignores that SRS has the statutory authority to enforce its assigned support rights.
“In cases where the secretary of social and rehabilitation services is deemed to have an assignment of support rights in accordance with the provisions of K.S.A. 39-709 and amendments thereto, the secretary is authorized to bring a civil action in the name of the state of Kansas or of the obligee whose support rights are assigned to enforce such support rights, establish an order for medical support and, when appropriate or necessary, to establish the parentage of a child. The secretary may also enforce any assigned support order or file a motion to modify any such order.” K.S.A. 39-755(a).
If SRS has not filed an action to enforce its assigned support rights or filed a notice of assignment as specified in K.S.A. 39-754(b), then it has not become a necessary party in a termination of parental rights case.
In the proceeding below, SRS was not an interested party or a necessary party. It did not participate in the proceedings, and it has no standing to appeal the district court’s order terminating the parental rights of H.R.B.’s father.
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Green, J.:
Following a jury trial, Billy Wayne Carter; II, was convicted of fleeing or attempting to elude a law enforcement officer, obstruction of official duty, and battery on a law enforcement officer. Carter was sentenced to 24 months’ probation with an underlying prison term of 36 months for the convictions. On appeal, Carter contends that the State violated his Fifth Amendment rights by commenting on his post-Miranda silence. In addition, Carter maintains that his conviction for attempting to elude capture under K.S.A. 8-1568(b)(2) was not supported by sufficient evidence. We disagree and affirm.
Just after midnight, on September 30, 2000, Officer Ken Farrar of the Lawrence Police Department was sent to 1951 Miller Drive in Lawrence. The control center told Officer Farrar that a stabbing had occurred at that address. When Officer Farrar arrived at that location, he was joined by Officer Bruce Elliott, and they both proceeded to speak with the victim of the stabbing, Jason Streeter. Streeter told the officers that Billy Wayne Carter had stabbed him with a pair of scissors. Streeter also gave the officers a description of the car Carter was driving. Officer Farrar tiren relayed the description of the car to other officers on patrol.
Shortly before 1 a.m., Officer Matthew Weidl saw a car that matched the description given by Officer Farrar. Officer Weidl did a registration check and confirmed the car belonged to Carter. Officer Weidl then told other officers that he would need assistance to conduct a felony car stop. When Officer Sam Harvey and Sergeant Mike Pattrick arrived, the three officers stopped the car. Officer Harvey told the driver of the car to stick his hands out the window into plain sight. The driver initially put his hands out the window, then almost immediately pulled them back in the car. The officer repeated the request for the driver to place his hands outside the window of the car. The driver ignored the request and started to drive the car away.
Officers Weidl and Harvey, who were in full uniform, pursued the car in their fully marked patrol cars with lights and sirens activated. Sergeant Pattrick pursued in his unmarked car. The chase eventually ended at 2200 Harper. The driver left the car and ran toward the front porch of a trailer. At this point, Officer Weidl chased after the driver on foot and tackled him. The driver then got to his feet and a struggle ensued as the officers attempted to restrain the driver. After the officers had the suspect under control, Officer Weidl saw a pair of scissors in the suspect’s hands. Officer Weidl used his flashlight to strike the suspect’s hand until he released the scissors. All of the officers on the scene identified the suspect as Carter.
Two of the officers received minor injuries in the struggle. Additionally, Carter received injuries and was taken from the scene in an ambulance. Carter testified that while he was at the hospital an officer asked him if he would like to explain his side of the story. Carter testified that he told the officer he had just received a shot from the nurse, and that while he would like to help in any manner he could, he did not believe it was in his best interest to say anything while he was under the influence of the drugs.
Carter first argues that during recross-examination the State impermissibly commented on his silence. At trial, Carter s sole defense was his credibility. Carter contends that the State’s comments on his silence gave the jury the impression that he had no explanation for his actions immediately after the incident, but fabricated a story in the interim. It is constitutionally impermissible for the State to elicit evidence at trial of an accused’s post-Miranda silence. Doyle v. Ohio, 426 U.S. 610, 618, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). Claims that the State has impermissibly commented or questioned about a defendant’s post-Miranda silence are measured by the harmless error standard. State v. Fulton, 28 Kan. App. 2d 815, 820, 23 P.3d 167, rev. denied 271 Kan. 1039 (2001). Carter’s argument fails in several respects.
First, defense counsel failed to object to the offending line of questioning. Carter concedes this point; however, he argues that this court must reach this issue to serve the interests of justice and prevent a denial of fundamental rights. See State v. McIver, 257 Kan. 420, 433, 902 P.2d 982 (1995). This argument is unavailing as Kansas law has made it clear that a question or comment challenged under Doyle requires a timely and specific objection to preserve the issue for appeal. K.S.A. 60-404; State v. Haddock, 257 Kan. 964, 973, 897 P.2d 152 (1995); State v. Scott, 28 Kan. App. 2d 418, 426, 17 P.3d 966 (2001).
Second, defense counsel arguably opened the door to the line of questioning conducted by the State. “A defendant cannot open up an issue at the trial and use unrestricted statements to his or her advantage and then on appeal, after an unfavorable result is obtained, contend the trial court’s ruling to be erroneous.” State v. Saleem, 267 Kan. 100, 109, 977 P.2d 921 (1999).
The State argues that its questioning was simply a response to defense counsel asking Carter if the officers gave him an opportunity to explain his side of the story. Specifically, during redirect examination defense counsel asked:
“Q. [Mr. Branson], That’s not like these officers — they didn’t ask you to explain your side of the story at that point in time, did they?
“A. [Billy Carter]. No, never did.”
On recross-examination the State asked:
“Q. [Ms. Wilson]. Nobody ever asked you your side of the stoiy?
“A. [Billy Carter], Later when I was at the hospital an officer did.
“Q. And you didn’t want to tell them your side of the story then, did you?
“A. Well, one of them nurse ladies had just given me a shot and I had mentioned to her that it was like all my body was just real relaxed and numb and I explained to the officer that I would be more than happy to cooperate in any way that I could, but because I was under the influence of drugs or whatever that the doctor had just given me that I didn’t believe that it was in my best interests to say anything.
“Q. You said you tried — the officers were hurting you at the porch, right?
“A. Yeah.
“Q. They weren’t giving you a chance to say, hey, I didn’t do anything wrong, at the porch, right?
“A. I don’t know that even was an issue. I mean they were just — ”
Defense counsel on redirect examination purposely asked Carter if the officers gave him an opportunity to explain his side of the stoiy. Therefore, the later questioning by the State regarding Carter s opportunities to explain his side of the story to the officers was within the scope of the redirect examination.
Third, there is no indication in the record that Carter ever received Miranda warnings. Central to Doyle is the idea that when the government advises a defendant of his or her Miranda rights, it has induced the defendant’s silence by impliedly assuring the defendant that his or her silence will not be used against him or her. Thus, it is a violation of due process to allow the government to comment on, or to use for impeachment purposes, silence induced by the Miranda warnings. Doyle, 426 U.S. at 618. The United States Supreme Court has held, however, that cross-examination of a defendant regarding that defendant’s postarrest, but pre-Miranda, silence did not violate due process. Fletcher v. Weir, 455 U.S. 603, 607, 71 L. Ed. 2d 490, 102 S. Ct. 1309 (1982); State v. Nott, 234 Kan. 34, 43-44, 669 P.2d 660 (1983). The appellant bears the burden of furnishing a record which affirmatively shows that prejudicial conduct occurred in the trial court. State v. Richard, 252 Kan. 872, 874, 850 P.2d 844 (1993). Carter has not referred to any portion of the record indicating that his Miranda warnings were given.
Additionally, Carter argues that even if Miranda warnings were not given, they should have been given. The law in Fletcher does not make any such distinction and simply holds that it is appropriate to impeach a defendant with the defendant’s postarrest, but pre-Miranda, silence. Fletcher, 455 U.S. at 607. Accordingly, the protections afforded by Doyle never attached.
Fourth, Carter argues that the State’s comments regarding his silence were statutorily impermissible because they violated K.S.A. 60-425 and K.S.A. 60-439. Carter does not provide any analysis or authority supporting this argument. Furthermore, analogous case law demonstrates that Carter’s argument must fail. In State v. Searles, 246 Kan. 567, 574, 793 P.2d 724 (1990), Searles also maintained that the State impermissibly commented on his privilege against self-incrimination in violation of K.S.A. 60-425 and K.S.A. 60-439. Specifically, the State elicited at trial testimony that during an interrogation the police asked Searles if he had committed the murder they were investigating. Testimony was then given that Searles answered the question by stating, “ ‘I have nothing to say.’ ” 246 Kan. at 572. Searles argued that by informing the interrogating officers he had nothing to say, he was asserting a constitutional right and was exercising a statutory privilege under K.S.A. 60-425 “ ‘to refuse to disclose in an action or to a public official . . . any matter that will incriminate such person.’ [Citation omitted.]” 246 Kan. at 574. The exercise of the privilege against self-incrimination, as described in K.S.A. 60-425, is protected by K.S.A. 60-439:
“If a privilege is exercised not to testify or to prevent another from testifying, either in the action or with respect to particular matters, or to refuse to disclose or to prevent another from disclosing any matter, the judge and counsel may not comment thereon, no presumption shall arise with respect to the exercise of the privilege, and the trier of fact may not draw any adverse inference therefrom. In those jury cases wherein the right to exercise a privilege, as herein provided, may be misunderstood and unfavorable, inferences drawn by the trier of the fact, or may be impaired in the particular case, the court, at the request of the party exercising the privilege, may instruct the jury in support of such privilege.” K.S.A. 60-439.
The Searles court stated that K.S.A. 60-439 “is limited to a situation where a comment is made on a privilege in the trial where the privilege is asserted.” 246 Kan. at 574. The court then explained there was no error because although “the State did elicit the fact that at one point Searles stated he had nothing to say, the State did not comment on that assertion.” 246 Kan. at 574.
In the instant case, the only possible example of Carter exercising a privilege not to incriminate himself was when Carter instructed the officer questioning him at the hospital that he did not wish to answer any questions. This fact, like the fact in Searles, was elicited by the State during trial. Also, like the State in Searles, the State in the instant case did not make any other comment concerning this fact. Therefore, no violation of K.S.A. 60-425 and K.S.A. 60-439 occurred.
Next, Carter argues that the trial court erred in finding sufficient evidence to support his conviction for fleeing or attempting to elude a police officer under K.S.A. 8-1568(b)(2) as a severity level 9, person felony. “When sufficiency of the evidence is attacked, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ [Citation omitted.]” State v. Zabrinas, 271 Kan. 422, 441-42, 24 P.3d 77 (2001).
Fleeing or attempting to elude a police officer is defined in K.S.A. 8-1568 as:
“(a) Any driver of a motor vehicle who willfully fails or refuses to bring such driver’s vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle or police bicycle, when given visual or audible signal to bring the vehicle to a stop, shall be guilty as provided in subsection (c)(1), (2) or (3). The signal given by the police officer may be by hand, voice, emergency light or siren. The officer giving such signal shall be in uniform, prominently displaying such officer’s badge of office, and the officer’s vehicle or bicycle shall be appropriately marked showing it to be an official police vehicle or police bicycle.
“(b) Any driver who violates the provisions of subsection (a) and who:
(2) is attempting to elude capture for the commission of any felony, shall be guilty as provided in subsection (c)(4).
“[c](4) Every person convicted of violating subsection (b) shall be guilty of a severity level 9, person felony.”
Carter was convicted' of a severity level 9, person felony, as provided in K.S.A. 8-1568(c)(4). This conviction was based on juiy instruction No. 15. That instruction provided:
“The defendant is charged in count four with the crime of fleeing or attempting to elude a police officer. The defendant pleads not guilty. To establish this charge each of the following claims must be proved: One, that the defendant was driving a motor vehicle; and two, that the defendant was given a visual or audible signal by a police officer to bring the motor vehicle to a stop; and three, that the defendant intentionally failed or refused to bring the motor vehicle to a stop, or otherwise fled or attempted to elude a pursuing police officer; and four, that the police officer giving such a signal was in uniform, prominently displaying such officer’s badge of office; and five, that the police officer’s vehicle was appropriately marked showing it to be an official police vehicle; and six, the defendant attempted to elude capture for aggravated battery; and seven, that this act occurred on or about the 30th day of September, 2000, Douglas County, Kansas.”
Carter now argues that element number six of the instruction could not be proven. This contention is based on the fact that the juiy acquitted Carter of aggravated battery against Streeter. Therefore, Carter argues that the lack of an underlying felony precludes the application of K.S.A. 8-1568(b)(2) and subsection (c)(4).
Because there is no direct authority that resolves this question relating to K.S.A. 8-1568, we must turn to the obstruction statute, K.S.A. 21-3808, for help. K.S.A. 21-3808, like K.S.A. 8-1568, criminalizes conduct that interferes with the performance of law enforcement. They are both designed to encourage citizens to cooperate with law enforcement and punish those who make the officer’s job more difficult and dangerous. Thus, it seems logical to consider case law developed in interpreting K.S.A. 21-3808.
Specifically, K.S.A. 21-3808 states:
“(a) Obstructing legal process or official duty is knowingly and intentionally obstructing, resisting or opposing any person authorized by law to serve process in the service or execution or in the attempt to serve or execute any writ, warrant, process or order of a court, or in the discharge of any official duty.
“(b)(1) Obstructing legal process or official duty in the case of a felony, or resulting from parole or any authorized disposition for a felony, is a severity level 9, nonperson felony.
(2) Obstructing legal process or official duly in a case of misdemeanor, or resulting from any authorized disposition for a misdemeanor, or a civil case is a class A nonperson misdemeanor.”
In State v. Hudson, 261 Kan. 535, 931 P.2d 679 (1997), the defendant was charged with felony obstruction of official duty. There, the officer turned on his lights and siren when he saw the defendant run a stop sign, and the defendant drove away from him. The defendant eventually abandoned his vehicle and continued his evasion of police on foot until he was apprehended. A later investigation revealed that the defendant’s driver’s license had been suspended and that there were outstanding felony warrants against him. Based on those felony warrants, the State charged the defendant with the felony offense of obstructing legal process or official duty in violation of K.S.A. 21-3808(a). However, because running a stop sign was a misdemeanor, the trial court reduced the count from a felony to a misdemeanor charge, and the State appealed.
Our Supreme Court held that the term “official duty” under K.S.A. 21-3808(a) was dependent on the officer’s knowledge and intent:
“The touchstone for the classification of tíre offense is the reason for die officer’s approaching the defendant who then flees or otherwise resists, and not the status of the defendant. Thus, the trial court correcdy held that the classification under K.S.A. 21-3808 depends on what the officer believed his duty to be as he discharged it.” 261 Kan. at 538-39.
Because the officer was attempting to stop the defendant for a traffic violation, the obstruction of official duty was a misdemeanor, and the trial court was affirmed.
Applying the Hudson holding, we determine that Carter’s reason for eluding capture and his actual status were irrelevant and that only the officer’s reason for attempting to capture Carter was significant. When the officers were pursuing Carter, they believed he had just committed a felony. Carter was suspected of stabbing another person. Because Officer Weidl requested assistance from other officers to conduct a felony car stop, it was apparent that he intended to arrest Carter for commission of the felony of aggravated battery. Based on Officer Weidl’s intent, the requirement of a felony under K.S.A. 8-1568(b)(2) was fulfilled.
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Elliott, J.:
Michael E. Boswell was charged with one count of possession of drug paraphernalia and one count of possession of cocaine. Pursuant to plea negotiations, Boswell pled guilty to the two charges with the State agreeing to jointly recommend to tire court that he be granted a downward dispositional departure to probation and an upward durational departure to twice the base sentence. The court accepted the plea, found Boswell guilty as charged, and imposed the recommended sentence. Boswell appeals the sentence. Subsequent to the filing of the notice of appeal, Boswell’s probation was revoked and he is now currently serving the underlying term.
We dismiss his appeal in part, vacate his sentence, and remand for proceedings not inconsistent with this opinion. He brings three issues to this court, and we take each in turn.
The Apprendi/Gould Issue
Boswell first argues the sentence violates the holding of State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). In Gould, our Supreme Court held that the statute authorizing upward departures, K.S.A. 2000 Supp. 21-4716(a), is unconstitutional on its face.
The State urges this court not to consider the merits of this case because it was not raised in the district court. See, e.g., State v. Shears, 260 Kan. 823, 837, 925 P.2d 1136 (1996). The State raised the same argument in Gould, and the Supreme Court rejected it on the basis of the exceptions to this rule as stated in Pierce v. Board of County Commissioners, 200 Kan. 74, Syl. ¶ 3, 434 P.2d 858 (1967). Gould, 271 Kan. at 404-05. We will, therefore, address the merits.
As it subsequently turned out, Boswell’s sentence was without statutory authority. See Gould, 271 Kan. at 413 (holding the statutory basis for imposing upward departures, K.S.A. 2000 Supp. 21-4716[a], unconstitutional in its face); State v. Cody, 272 Kan. 564, 35 P.3d 800 (2001) (holding Gould applies when defendant pleads guilty).
Generally, this court does not have jurisdiction to consider sentencing appeals when the sentence is the result of an agreement between the State and the defendant and the sentencing court approves the sentence on the record. K.S.A. 21-4721(c)(2); State v. Starks, 20 Kan. App. 2d 179, 183, 885 P.2d 387 (1994). However, where K.S.A. 21-4721(c) applies, we may consider a claim that the sentence is illegal. State v. Ware, 262 Kan. 180, Syl. ¶ 2, 938 P.2d 197 (1997). The sentence is illegal because the basis for it has been declared unconstitutional by the Supreme Court; thus, there is no statutory authority to impose the sentence.
Boswell’s sentence was illegal and must be vacated.
Boswell’s request for relief is that we vacate his sentence and remand for resentencing within the appropriate grid box in accordance with Apprendi, Gould, and Cody. None of those cases, however, involved a negotiated plea agreement with recommendations for sentencing.
In State v. McLaren, 14 Kan. App. 2d 449, 793 P.2d 763 (1990), we approved the following holding from the Colorado Supreme Court.
“[W]hen a defendant enters into a plea agreement that includes as a material element a recommendation for an illegal sentence and the illegal sentence is in fact imposed on the defendant, the guilty plea is invalid and must be vacated because the basis on which the defendant entered the plea included the impermissible inducement of an illegal sentence.” 14 Kan. App. 2d at 452 (citing Chae v. People, 780 P.2d 481 [Colo. 1989]).
If we follow McLaren, the case must be remanded with directions to the trial court to vacate the sentence and the guilty plea. This course would have several consequences not envisioned at the time of the plea. First, the State may not be able to prosecute this case because (1) the drugs involved may no longer be in the possession of the State, and (2) other witnesses may no longer be available due to the lapse of time. Second, subsequent to Boswell’s conviction, his probation was revoked, and he was ordered to serve the underlying term and is currently incarcerated. Thus, vacating his guilty plea could require that he be freed on bond pending trial, plea, or dismissal.
We find McLaren and Chae distinguishable. In both cases, the sentence was illegal because it impermissibly had the effect of reducing the defendant’s prison term. See McLaren, 14 Kan. App. 2d at 450 (defendant sentenced for a class E felony when proper sentence should have been for a class D felony); Chae, 780 P.2d at 484 (defendant sentenced to a suspended sentence when sentencing court had no statutory authority to order that the sentence be suspended).
In this case, the sentence was illegal because it included an upward durational departure. Boswell was not induced to enter into the plea agreement on the basis of receiving an upward durational departure. Rather, it seems clear this term of the plea agreement was to the benefit of the State, which, in return, agreed to recommend a downward dispositional departure. Simply put, the illegal sentence imposed did not induce Boswell to enter into the agreement.
There is a second ground on which to distinguish Chae. In Colorado, a defendant is permitted to withdraw his or her guilty plea when the trial court chooses not to follow the prosecutor’s sentence recommendation made as promised in a plea agreement. Chae, 780 P.2d at 486.
A plea agreement is akin to a contract. See State v. Wills, 244 Kan. 62, 68-69, 765 P.2d 1114 (1988) (applying contract law to ambiguous plea agreement). In this case, the bilateral contract terms were: (1) Boswell promised to plead guilty as charged, and (2) both parties promised to recommend to the court an upward durational departure and a downward dispositional departure.
In Kansas, the sentencing court is not a party to the contract and is not bound by its terms. See State v. Heffelman, 256 Kan. 384, 395, 886 P.2d 823 (1994). The State and defendant may not enter into a plea agreement calling for a certain sentence, only an agreement that each side will recommend to the court a certain sentence. See State v. Ford, 23 Kan. App. 2d 248, 253, 930 P.2d 1089 (1996), rev. denied 261 Kan. 1087 (1997). Thus, both the State and the defendant are well aware their joint recommendation to the court may not be accepted by the court. In Kansas, unlike Colorado, when the sentencing court refuses to follow recommended charge and sentence concessions, this is not in itself sufficient to constitute good cause for withdrawal of a guilty plea entered before sentence, provided the defendant was clearly advised by the court prior to entering his plea that the court was not bound by any charge and sentence concessions, and defendant was then offered a chance to withdraw the plea. Burden v. State, 225 Kan. 549, Syl. ¶ 2, 592 P.2d 451 (1979); cf. Chae, 780 P.2d at 486.
The law, of course, will not enforce illegal contracts. Wycoff v. Quick Way Homes, Inc., 201 Kan. 442, 447, 441 P.2d 886 (1968). Here, both parties performed their respective promises, and the contract was fulfilled before the judge handed down the sentence. Thus, there is no contract to enforce and, by the same token, no contract to nullify. The plea agreement was completed, and, thus, it is an impossibility to nullify a contract whose ends have been met. We can only consider the illegal sentence the court imposed.
We find proper guidance from the Florida appellate courts. In State v. Jolly, 392 So. 2d 54 (Fla. Dist. App. 1981), defendant entered into a plea agreement which called for an illegally excessive term of imprisonment. 392 So. 2d at 55. The Florida court held:
“[D]ue to the fact that a post-conviction motion may be raised and ruled upon years after imposition, tire state may no longer have the witnesses and other evidence necessary to pursue a trial after a defendant successfully has his judgment and sentence vacated. Therefore, in a situation involving'a reduction of sentence in contravention of the plea bargain, the state should be given the option of either agreeing that both the judgment and sentence should be vacated and taking the defendant to trial on all original charges, or agreeing that only the excessive sentence should be vacated, while having the judgment stand and allowing the defendant to he resentenced . . . .” 392 So. 2d at 56.
This reasoning was followed in Cleveland v. State, 394 So. 2d 230 (Fla. Dist. App. 1981), and the Florida Supreme Court approved these holdings in Forbert v. State, 437 So. 2d 1079, 1081 (Fla. 1983).
We adopt the holding of Jolly and hold that when a plea agreement includes an agreement to recommend to the court an illegal sentence, the sentencing court imposes the recommended but illegal sentence, and the illegal sentence impermissibly increases the defendant’s term of imprisonment, the State may either allow the defendant to withdraw his or her guilty plea, or agree that the illegal portion of the sentence be vacated and the defendant be resentenced to the proper lesser term. This case must be remanded for proceedings consistent with this opinion.
Length of probation and post-supervision
Boswell also contends his probationary period and postrelease supervisory period must be reduced pursuant to K.S.A. 2000 Supp. 21-4611(c)(3) and K.S.A. 2000 Supp. 22-3717(d)(l)(C). This issue was not presented to the district court.
Pursuant to the statutes in effect at the time of sentencing, Boswell was sentenced to 36 months’ probation and 24 months’ post-release supervision.
K.S.A. 2000 Supp. 21-4611(c)(3) now states the probation term for those who stand convicted of a drug severity level 4 crime shall be up to 12 months in length. K.S.A. 2000 Supp. 22-3717(d)(1)(c) states the postrelease supervision term for those convicted of a drug severity level 4 crime must be 12 months. Both statutes are to be applied retroactively. K.S.A. 2000 Supp. 21-4611(d); K.S.A. 2000 Supp. 22-3717(s), (t).
Boswell was sentenced on May 15, 2000, and filed his notice of appeal on May 24, 2000. K.S.A. 2000 Supp. 21-4611 and 22-3717 became effective May 25,2000. We will presume Boswell’s request for reduction of his probationary term and postrelease supervision term was not presented to the district court because he presumed that court no longer had jurisdiction.
This court held in State v. Whitesell, 29 Kan. App. 2d 905, 33 P.3d 865 (2001), that the district court has jurisdiction to modify a defendant’s sentence within the strictures of K.S.A. 2000 Supp. 21-4611(c)(5) even while an appeal is pending.
The issue of the length of Boswell’s probationary period must be presented to the district court before we will consider it. State v. Wilkins, 267 Kan. 355, 367, 985 P.2d 690 (1999) (an appellate court will not consider an issue which was not raised in the district court). We do note in passing, however, that this issue appears to be moot as it has been found he violated the terms of that probation and is now serving the underlying term of imprisonment.
Pursuant to K.S.A. 2000 Supp. 22-3717(t), the Department of Corrections, not the district court, has the authority to modify the length of Boswell’s postrelease supervision time. Thus, even if presented to the district court, it would be powerless to reduce his postrelease supervision time.
We, therefore, dismiss this part of Boswell’s appeal.
Appeal dismissed in part, sentence vacated, and case remanded for resentencing. | [
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Buchele, J.;
Daniel Alvis appeals his sentence. He claims the trial court improperly classified two prior convictions as person felonies for the purpose of determining his criminal history score. We affirm in part and reverse in part.
Alvis pled guilty to four counts of aggravated indecent liberties, all contrary to K.S.A. 21-3503(a)(3)(A). Before sentencing, Alvis objected to his criminal histoiy as set forth in his presentence investigation report. Specifically, Alvis argued that two convictions of burglary and one conviction of attempted burglary were improperly classified as person felonies.
The trial court heard evidence at the sentencing hearing about the prior convictions at issue. The State conceded that one burglary conviction should have been counted as a nonperson felony. The other two convictions involved houses that were not yet occupied, as they were still under construction. The court found that the houses were “substantially completed” and the State had proved by a preponderance of the evidence that the houses were dwellings.
Accordingly, the court found the prior convictions had been properly classified as person felonies.
On December 8, 2000, the trial court, using a criminal history score of B, imposed a prison sentence of 216 months for Count I, and concurrent prison sentences of 59 months for each of counts II - IV.
On appeal, Alvis argues the two convictions at issue should have been classified as nonperson felonies because tire houses involved were still under construction and “not yet suitable for human habitation.” The State counters that the houses, while not yet occupied, were clearly intended for human habitation; therefore, the convictions were properly classified as person felonies. This issue involves the interpretation of statutes, thus providing this court with unlimited review. See Herrick v. State, 25 Kan. App. 2d 472, 474-75, 965 P.2d 844, rev. denied 266 Kan. 1108 (1998).
For the purpose of determining criminal history, a prior burglary is scored as a person felony if the prior conviction was classified as a burglary as described in K.S.A. 21-3715(a). K.S.A. 2001 Supp. 21-4711(d)(l). K.S.A. 21-3715(a) defines burglary as “knowingly and without authority entering into or remaining within any: Building, manufactured home, mobile home, tent or other structure which is a dwelling, with intent to commit a felony, theft or sexual battery therein.” A dwelling is “a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence.” K.S.A. 21-3110(7).
Both parties look to Herrick to support their respective arguments. Herrick filed a motion to correct an illegal sentence, arguing his prior attempted burglary conviction was improperly classified as a person felony for the purpose of calculating his criminal history score. The attempted burglary was of a house in the same residential area in which Herrick lived. Importantly, Herrick knew it was a house and that no one lived there. When he broke in, there were doors, windows, and pieces of wood lying all over the house. The police report indicated that the house was being used for storage.
The district court granted Herrick’s motion and ruled the conviction should have been classified as a nonperson felony. The State appealed, raising the question of whether an unoccupied house that was being used for storage at the time of a burglary constituted a dwelling under K.S.A. 21-3110(7).
This court reversed the district court and held that the house was, indeed, a dwelling:
“The definition of dwelling used in the Kansas burglary statute is particularly broad. A dwelling is not only a building which is used as a human habitation, home, or residence, but one that is intended for use as one. This would seem to indicate that the building does not have to be presently used as human habitation, home, or residence for it to be considered a dwelling.” 25 Kan. App. 2d at 478.
In the present case, both structures at issue were unoccupied houses. The record reveals scant information regarding the condition of the houses. Though still under construction, each house had doors, windows, and locks. The owner of the first house testified that he had planned to move into the house 5 days after the attempted burglaiy had occurred. The evidence also showed there was some diywall up in the second house at the time of the burglaiy-
Alvis maintains that the evidence failed to show the houses were habitable at the time of the offenses and, therefore, it cannot be said they were dwellings as defined in K.S.A. 21-3110(7). For support, Alvis notes the lack of evidence showing that either of the houses had such things as electricity, running water, and toilets. Alvis’ arguments appear to be derived from the following language used by the Herrick court:
“There seems to be no serious argument denying that the building in question was intended for use as a home, although it was not being used that way at the time of the burglary. Neither does it appear that it was so dilapidated as to raise die issue of whether it could be used as a human habitation.” 25 Kan. App. 2d at 478-49.
As previously mentioned, the definition of dwelling is quite broad. Herrick, 25 Kan. App. 2d at 478; see State v. Kirkland, 23 Kan. App. 2d 530, 530-31, 933 P.2d 160, rev. denied 262 Kan. 966 (1997) (held prior juvenile adjudication for burglaiy of funeral home was properly scored as person felony where first floor was used for business and second floor was used as residence; although room burglarized was a self-contained storage room, there re mained a possibility of contact with people because part of building was used as a residence “regardless of whether the burglar had direct access to that part of the building”).
Regarding Alvis’ conviction for attempted burglary, we are convinced there was sufficient evidence presented that the subject house was a dwelling. See K.S.A. 21-3110(7). The evidence that the owner was to move in 5 days later compels such a finding. Accordingly, the trial court did not err in classifying the attempted burglary as a person felony. See K.S.A. 21-3715(a); K.S.A. 2001 Supp. 21-4711(d)(l).
However, the same cannot be said for the burglary conviction. We know the house was under construction and had not yet been lived in. Whether the house was capable of human habitation is unknown. The record is so lacking in information regarding the house’s condition that we cannot conclude the house qualified as a dwelling under K.S.A. 21-3110(7). The State simply failed to carry its burden in this regard. Therefore, we hold that the trial court erred in classifying Alvis’ burglaiy conviction as a person felony. On remand, the trial court must classify the burglary conviction as a nonperson felony for the purpose of redetermining Alvis’ criminal history score. See K.S.A. 21-3715(b); K.S.A. 2001 Supp. 21-4711(d)(2).
We note that the purpose for making a burglary involving a dwelling a person felony is to prevent contact with people. Herrick, 25 Kan. App. 2d at 477. We believe our holding in this case comports with this objective and the reasoning set forth in Herrick.
Affirmed in part, reversed in part, and remanded with directions. | [
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Per Ctiriam:
The proceedings were not brought to this court in time to review the alleged error in refusing to discharge the attachment. There was no reversible error in sustaining the objection to the question asked as to the agreement concerning the amount remaining due on the chattel mortgage. It is apparent from all the evidence that defendants were relying, not upon a subsequent agreement, but upon an understanding which they claimed to have had at the time the written instrument was executed, to the effect that the mortgagee would make some reduction on the rent. Besides, the defense pleaded was payment, not a subsequent agreement. The jury could not have been misled by the instruction that the cause of action on the note was admitted, which only meant that the execution of the note was admitted. The other instructions fairly stated the issues. We .find no error in the record, and the judgment is affirmed. | [
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Per Curiam:
The commissioner’s findings of fact and con«elusions of law are approved, and judgment of ouster is rendered accordingly. The costs incident to the proceedings of the commissioner are divided between the defendant and J. P. Harsha, defendant in the case of The State v. Harsha, ante, p. 93. Other costs follow the judgment. | [
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'The opinion of the court was delivered by
Johnston, C. J.:
Ralph A. Ewing, agent of the United States Express Company at Leavenworth, was ■arrested for the violation of a city ordinance imposing a license-tax on express companies and agencies. He was convicted upon the charge in the city court, and ■upon appeal was again convicted in the district court. In this appeal he is complaining that the ordinance under which he was convicted is invalid, and that^ the statute providing for a license-tax on express companies and agencies is inapplicable and does not warrant the ordinance which was enacted. The statute under which the ordinance was drawn provides that the mayor and council may levy and collect a license-tax upon and regulate the callings and occupations carried on and operated within the limits of the city, '“including express companies and agencies.” The ordinance provides that no person, firm or corporation, through his principal or agent, shall carry on or conduct any business, occupation or calling in the city of Leavenworth without taking out a license and paying the license-tax prescribed in the ordinance. It then provides:
“The sum of $50 per year on the business and occupation of express company, corporation or agency, in receiving packages in the city from persons in the city ■and transmitting the same by express from this city within the state to persons and places within the state •and receiving in this city packages by express transmitted within the state from persons and places in this state to persons within this city, excepting the receipt, transmission and delivery of any such packages to and from any department,- agency or agent of the United States, and excepting the receipt, transmission and delivery of any such packages which are interstate commerce. The business and occupation of receiving, transmitting and delivering of the packages herein excepted is not taxed hereby.”
The violation of any of the provisions of the ordinance is declared to be a misdemeanor, for which a fine may be imposed of not less than the amount of the license required to be paid nor more than double the amount thereof.
The contention that the statute authorizing the tax on occupations conducted within the city does not include the express business of carrying packages from other cities and places of the state into Leavenworth or of collecting packages in Leavenworth and carrying them to places within the state but outside the city has been negatively answered in Topeka v. Jones, 74 Kan. 164.
It is contended, however, that the ordinance imposes, a tax and burden upon interstate commerce, and is. therefore invalid. It will be observed that neither the-statute nor the ordinance proposes to lay a tax upon interstate business. On the other hand, it is made clear by the terms of the ordinance that interstate business, as well as that done for the United States, is expressly-excepted from its operation. It is conceded that persons and corporations engaged in interstate business, may be subjected to the payment of taxes properly levied by the state upon their property within its borders, and also on business wholly conducted within the state; and it is likewise conceded that no state has the-power to lay a direct tax or burden upon interstate commerce. The supreme court of the United States, has held in a great number of cases that a tax levied directly upon interstate business alone or upon such, business where it is carried on in connection with local business, and also a requirement that persons or corporations shall take out a license and pay a fax before-they can conduct an interstate or local business, is a. burden on commerce between the states and a regulation which belongs exclusively to congress. The following may be cited as a type of many other cases: Crutcher v. Kentucky, 141 U. S. 47; Leloup v. Port of Mobile, 127 U. S. 640; Norfolk &c. Railroad Co. v. Penn., 136 U. S. 114. (See, also, The State v. Telegraph Co., 75 Kan. 609, and cases therein cited.) It is equally well settled that persons or companies carrying on a domestic business in connection with interstate business may be subjected to the payment of a state tax imposed on purely domestic business. In the Crutcher ■case, supra, after holding that a statute which made the obtaining of a license a prerequisite to the doing of interstate business was invalid, it was stated that “taxes or license-fees in good faith imposed exclusively ■on express business carried on wholly within the state would be open to no such objection.” (Page 59.) The •direct question of the right to impose a license-tax upon local business carried on by express companies doing both local and interstate business was determined in Osborne v. Florida, 164 U. S. 650. It was there held that, “so long as the regulation as to the license or taxation does not refer to and is not imposed upon the business of the company which is interstate, there is no interference with that commerce by the state statute.” (Page 655.) It was also said that where the “law made the payment of the fee or the obtaining of the license a 'condition to the right to do any business whatever, whether interstate or purely local, it was on that account a regulation of. interstate commerce, and therefore void” (p. 655), but it was held that if an express company can conduct its interstate business without paying any attention to the statute, and is not required to take out a license or pay a tax before doing that kind of business, the statute is valid. (See, also, Western Union Telegraph Co. v. James, 162 U. S. 650; Ratterman v. Western Union Tel. Co., 127 U. S. 411; Maine v. Grand Trunk R’y Co., 142 U. S. 217; Pacific Express Company v. Seibert, 142 U. S. 339; Lehigh Valley Railroad v. Pennsylvania, 145 U. S. 192; Pullman Co. v. Adams, 189 U. S. 420; Allen v. Pullman Company, 191 U. S. 171; Pennsylvania R. R. Co. v. Knight, 192 U. S. 21.)
The declared purpose of the statute, as well as its. operation and effect, is to lay a tax on business which is purely domestic, and of the good faith of the legislation there can be no doubt. It is contended, however, that the situation of the United States Express Company is exceptional, and as to even its' local business the tax is an illegal exaction. It appears that the company uses a branch of the Chicago, Rock Island & Pacific Railway in transporting packages to and from the city of Leavenworth, which is the terminus -of that branch. The railroad comes into Leavenworth from. Missouri, and all express business of the company, either local or interstate, necessarily passes through Missouri. About ninety per cent, of its business is the carrying of articles and packages to people in places, other than Kansas, and the remaining ten per cent, of its business is done between Leavenworth and other points in Kansas, but even this portion of the carriage is for a short distance through Missouri. The license-tax was upon so much of the company’s business as. was carried on in Kansas. It had an office and local conveyances in Leavenworth for the collection of packages in that city, and it made contracts for transporting these packages to places within the state. Likewise it collected packages in other parts of the state- and carried them into Leavenworth, where they were delivered to the consignees. Does the fact that in carrying these packages between points in Kansas they pass over the soil of another state for a short distance make tfie tax on that business invalid? There is no-claim that there is a mileage rate on the business, or that the charge for the carriage by this circuitous route is greater than is made by express companies carrying packages from Leavenworth to Atchison and other Kansas points by direct and shorter routes wholly within the state. This part of the business, it would seem, is intercourse between people in Kansas and between places in Kansas, and can not for purposes of taxation be regarded as commerce between states. Pennsylvania imposed a state tax on the business done-by railroad companies within that state. In transporting property from one point in Pennsylvania to-another point in the same state the property was carried into and through a part of New Jersey. The amount of the tax, however, was determined in respect to the proportion of the transportation within the state. As against the tax it was contended that the deviation of the road through New Jersey gave the business an interstate character and made the tax a burden on interstate commerce. It was claimed that as.. the point of departure and the point of arrival were within the state the intercourse was between these points and not between any other points. It was said in the opinion of the United States supreme court:
“The question does not arise as to the power- of any-other state than the state of the termini, nor as to taxation upon the property of the company situated elsewhere than in Pennsylvania, nor as to the regulation by Pennsylvania of the operations of this or any other company elsewhere, but it is simply whether, in the carriage of freight and passengers between two points in one state, the mere passage over the soil of' another state renders that business foreign which is domestic. We do not think such a view can be reason-, ably entertained, and are of opinion that this taxation is not open to constitutional objection by reason of the particular way in which Philadelphia was reached from Mauch Chunk.” (Lehigh Valley Railroad v. Pennsylvania, 145 U. S. 192, 202.)
It was recognized that there could be no direct regulation of the transportation which has passed beyond the .jurisdiction of the state, but it was held that the state might tax the business done in the course of á continuous carriage from one point to another in the state, although in accomplishing it a part of another state was incidentally traversed. The rule there-. adopted applies here. In this case there is no question of 'rate on transportation, but only a tax laid on that part of the company’s business done within the limits of the state.
Attention is called to Hanley v. Kansas City Southern Ry. Co., 187 U. S. 617, as an authority against the imposition of the tax. It was there held that a state could not fix or enforce rates between points within the state when the transportation was' without the state. It was said that the regulation of transportation is indivisible; that when a rate is established it must be established as a whole, and adopting this unity rule it was held the action of the state was invalid. In that case the Lehigh Valley Railroad case was referred to, and its rule was sustained upon the ground that it was a case of taxation and could be readily distinguished from an attempt by a state to regulate transportation while outside its borders. The case of Maine v. Grand Trunk R’y Co., 142 U. S. 217, was also cited as an instance in which a tax was determined in respect to receipts for the proportion of the transportation within the state, and that such tax' had been sustained, although it was admitted to be interstate. (As tending to sustain the same view, see, also, Cincinnati Packet Co. v. Bay, 200 U. S. 179; United States v. Lehigh Val. R. Co., 115 Fed. 373; Railroad Commissioners v. Telegraph Company, 113 N. C. 213; Campbell v. C. M. & St. P. R’y Co., 86 Iowa, 587.)
The result of the authorities is that a rate on a continuous carriage from point to point within the state is to be regarded as a unit, and when it is applied to a shipment which passes through more than one state it takes on an interstate character and is beyond the regulation of the state; but a different rule obtains in the matter of taxation. The state may properly tax the property located within its borders of a corporation doing an interstate business, and may also tax that part of the business of such corporation which is done within the state. The extent of the state business is of little consequence. The domestic business may be inconsiderable, and if a small but definite part of the business is domestic the company transacting it can not escape paying the state tax on that part. (The State v. Telegraph Co., 75 Kan. 609; Kehrer v. Stewart, 197 U. S. 60.)
The appellant argues that as the tangible property of the express company is subject to taxation it is unjust to impose the additional tax on its business, but all know that express companies have but little tangible property subject to taxation, and the practical methods by which such companies can be afforded an opportunity to contribute their just share of the public burdens and pay for the protection which the public gives is through excise taxes or license-taxes on their business. (Pacific Express Company v. Seibert, 142 U. S. 339.)
The statute and ordinance being valid, and the tax legal, the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
BURCH, J.:
Rotzell died testate, and Markart was appointed administrator with the will annexed. Toffler became surety on the administration bond. Mark-art died without having completed the settlement of Rotzell’s estate. Kesinger was then appointed administrator with the will annexed of the Rotzell estate, and Ackenhausen was appointed administrator of Mark-art’s estate. Kesinger, as administrator, sued Ackenhausen, as administrator, in the district court for money collected by Markart belonging to Rotzell’s estate, and judgment was rendered in Kesinger’s favor. The judgment was presented to the probate court and duly allowed and classified as a claim against Markart’s estate. No probate court order upon Ackenhausen to pay the claim was made, and it was not paid. Kesinger,as administrator, then sued Toffler, the surety on Mark-art’s bond, for the amount of the judgment, and recovered. Toffler prosecutes error, and the sole question is whether the bond was broken upon non-payment of the judgment although the probate'court had issued no order upon Ackenhausen to pay it.
Markart’s death ended his right to the unadministered assets of the Rotzell estate, and none of them passed to his estate or to its administrator. Upon Kesinger’s appointment and qualification he became by law entitled to all of/them, including any balance which might be due from Markart. It required no order of court to vest title and right of possession in Kesinger, and just as soon as the balance due from Markart was finally adjudicated the law made it immediately due and payable without further ceremony. Ackenhausen bore no official relation whatever to the Rotzell estate, and had no concern with it beyond securing for Mark-art’s estate all allowances to which Markart would have been entitled and seeing that the true balance was stated. When an executor or administrator resigns or is removed his official relation to the estate he represented is not wholly terminated; for many purposes he is regarded as still acting, and the probate court retains jurisdiction over him. But Ackenhausen was not substituted for Markart in the administration of Rotzell’s estate. The common-law rule in this respect has been abrogated, and when an executor or administrator dies an administrator with the will annexed, or otherwise, must be appointed, as was done in this case. (Gen. Stat. 1901, §§ 2815, 2829, 2914.) The probate court may have had jurisdiction to make many orders upon Ackenhausen in connection with the settlement of the Rotzell estate, but not upon him as the representative of that estate. In no sense did he stand for the Rotzell estate as Markart stood for it. He did not become the principal of Markart’s bond. It may be conceded that Ackenhausen’s bondsmen would not be liable for his default in paying the claim against Markart’s estate unless an order of disbursement had previously been made. It might take all of Markart’s assets to pay claims of a superior class. It might be necessary to prorate with' other claims of the same rank. Until the probate court determined all questions of this character and directed Ackenhausen how to proceed no duty to pay could arise, so far as the administration of his own trust is concerned. But whatever the situation or ability to respond of Markart’s estate, the legal obligation to reimburse the Rotzell estate became absolute the moment the sum due was finally ascertained, and Markart’s bond was given to secure performance of this obligation. If the rule were otherwise the settlement of the Rotzell estate might be embarrassed indefinitely and insufferably, awaiting orders necessarily conditioned upon the vicissitudes of the Markart estate.
All that is .required in cases of this character 4s a final judgment establishing the liability of the principal in the bond for assets received, unadministered and unaccounted for. An order in the nature of an order for distribution has no proper function to perform. This was shown in the'case of Slagle v. Entrekin, 44 Ohio St. 637. There an administrator resigned. His accounts were adjusted in the probate court, the amount of his indebtedness to • the estate was ascertained, and an order was made upon him to pay it. In an action on his bond the sureties contended that it was error to make the order. ' The court held otherwise, on the ground the order was not one of distribution but merely a part of the formal declaration of the administrator’s^ liability. The opinion reads:
“Where upon the settlement of the accounts of an administrator or executor, who has resigned or been removed, the amount due from him to the estate has been ascertained and determined by the probate court, it is not error in the court to order its payment to his successor in the administration of the estate. It is not an order of distribution, but a judgment in favor of the estate against him upon the settlement of his accounts for assets received and unadministered, and to which, under section 6020, Revised Statutes, the succeeding administrator is entitled.” (Page 640.)
The principle is illustrated in the case of Nevitt v. Woodburn, 160 Ill. 203. At the time the liability of a removed executor was finally established an administrator de bonis non had not been appointed. In affirming a judgment against the sureties on the bond the court said:
“It is -said that the judgment against Ege for the amount due from him on his final report did not order such amount to be paid to the administrator de bonis non. We do not regard this as material. The administrator de bonis non had not been appointed when the judgment was rendered. It was found that the amount which he owed was due to the estate of the deceased, and this was sufficient.” (Page 213.)
If it should be admitted that if Markart’s accounts had been adjusted in the probate court and the amount of his indebtedness had been ascertained there the adjudication of liability by that court would not have been complete without a formal order to pay, the district court took the place of the probate court for every purpose of the proceeding. It did not assume jurisdiction merely to state the account as a referee might, have done, but to administer complete relief. It made a full judicial determination and declaration of Mark-art’s liability, and its award of judgment for the amount found to be due constituted a sufficient direction to pay so far as fixing the liability of Markart’s. sureties is concerned. Kesinger might, if he so desired, prove up his judgment in the probate court and. have it allowed and classified as a claim against Mark-art’s estate, but he was not bound to do so before proceeding against Markart’s bondsmen, much less await, an order for its payment which would necessarily depend upon the condition of Markart’s estate and the. progress made in its settlement.
The surety relies upon the two cases of Stratton v. McCandless, 21 Kan. 296, and Hudson v. Barratt, 62 Kan. 137, but as shown in the case of Surety Co. v. Piatt, 67 Kan. 294, those.decisions merely go to the-extent of holding that where an estate is unsettled and the probate court still has jurisdiction of the administrator himself his liability ought to be determined in. that court before action is taken against his sureties.
The judgment of the district court is affirmed. | [
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Per Curiam:
The point of contention here is, Was there evidence to sustain the finding of the trial court that the defendant had notice of the commencement and pendency of the original action? It appears from the record that there was at least sufficient evidence to uphold the finding. The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
Several assignments of error have been presented and argued, but in the view we have taken, one only need be considered. The plaintiff in error .complains of several instructions given to the jury by-the court, but it especially criticises those numbered 10' and 11, which read:
“(10) If you believe from the evidence that the plaintiff’s intestate saw the approaching train and without negligence on his part failed to observe from his position the unusual speed at which it was running, if' it was running at an unusual speed, so that his conclusion that he could safely cross before the train reached' the crossing was not an unreasonable one, he will be exonerated from contributory negligence on this, account; because it is not negligence in law for a person in the exercise of ordinary care and caution to cross a railroad track upon a road-crossing in front of an approaching train which he has seen and which, does not appear to him to be dangerously near, and which would not have been so in fact if it had not been running at an unusual rate of speed.
“ (11) No principle of law requires that a traveler in a vehicle should stop his team and wait the passing of an approaching engine and train if he discovers an engine and train on the line at such a distance as that in the exercise of reasonable care and prudence he believes he may safely proceed on his way and cross the track. In such a case the question of fact for the jury is, Did he use reasonable care and caution in determining whether or not he could safely cross the track?”
The rule of law stated in these instructions can not, as we view it, be applied to ordinary railroad-crossings. A similar rule has been upheld by this court when applied to the operation of street-cars in a city (Railroad Co. v. Gallagher, 68 Kan. 424, 429), but never to a situation such as this case presents. The similarity between the operation and management of an ordinary street-car and the operation of a fast-running passenger-train, on a double-tracked railroad, through a level, open country, where speed is important, is not so great as to make the rules of management and control identical in each case. Street-cars are constructed and equipped to be operated along streets where people must and do constantly cross. The speed of the cars is comparatively slow, and sufficiently uniform to enable people to form a reasonably accurate judgment as to where the danger line is in crossing. Stops are so frequent that a very high rate of speed is practically impossible. The motorman manages the car with the knowledge that danger is always present and safety can only be secured by constant vigilance. The cars are equipped with appliances which, so far as possible, place them under control. People who are in danger expect to be protected from injury only so lon'g as they themselves use ordinary care. This mutual dependence upon each other places the street-car service upon a plane of its own. It has little in common with the ordinary railroad, where compliance with the demands of public travel requires the operation of heavy passenger-trains over long distances, with few stops, and, at times, at as great speed as safety to the passengers will permit. The difference under which these means of traffic are necessarily operated is obvious and striking, and it seems reasonable that the rules of law applicable to them should be, in many respects, dissimilar.
If the rule in question were applied to railroads generally it would materially conflict with rules now generally recognized, and might seriously embarrass the transaction of the business of common carriers. It is now generally understood that an unusually high rate of speed is not of itself improper or negligent. In the open country, where no peculiar conditions exist which make it dangerous, and speed is not limited by statute, trains may be operated at any speed which the existing exigencies of public traffic seem to require. (A. T. & S. F. Rld. Co. v. Hague, 54 Kan. 284; 2 Thomp. Com. Law of Neg. §§ 1873, 2101.) Under the rule stated in the instructions a traveler at a country crossing, however slight the ordinary travel at such place, may attempt to cross, free from the imputation of contributory negligence, even though he hears and actually sees a train approaching, if, assuming the speed of the train not to be greater than usual, a man of ordinary care and caution would not regard such an attempt dangerous. Under such a rule every train would be compelled to approach all crossings at a speed not greater than the usual rate or accept responsibility for the consequences, and every traveler, when about to cross in front of an approaching train,'might assume that it was not running at an unusual rate of speed, and act accordingly. If he should be mistaken in this assumption, and receive an injury on account of a miscalculation founded upon such mistake, the railroad company would be liable. Ordinarily, the rule now is that a person about to cross a railroad must assume that the speed of every train is as great as the business or necessities of the company require, and he must act accordingly. In volume 7 of the American and English Encyclopaedia of Law, at page 438, the rule is stated as follows:
“If, with full knowledge of the near approach of a train, a traveler attempts to cross in advance of it, and merely miscalculates his ability to do so in safety, there can be no recovery for a resulting injury.”
In support of the text numerous cases are cited, selected from many states. Any rule which encourages a race with an approaching train at every crossing would tend to increase the hazard at such crossings, impede the necessarily rapid movement of trains, and seriously embarrass their operation in locations where such restraint would be of very slight, if any, public protection. The criticism urged against the rule given by the court appeals with especial force because the facts are such as to make it peculiarly applicable and almost certain to mislead the jury.
There were no witnesses who could testify whether or not the deceased took the precaution to look and listen for an approaching train before attempting to-cross the track. The jury were instructed that, in the absence of such evidence, the law presumed that he performed this duty in obedience to the universal instinct of self-protection. The condition of the track was such that, assuming that the deceased looked, he must have seen the approaching train, and, having seen it, must have concluded that the crossing could be made in safety. Upon the assumption that the speed of the coming train was not unusually great, this conclusion was probably fully justified; in fact, however, its speed was extraordinarily great. This mistake was fatal. Haste in crossing was imperative. This necessity does not seem to have been appreciated, and the deceased was overtaken. Such collisions would probably occur more frequently if the láw were as stated in the instructions in question. They could only be prevented by requiring all railroad trains to reduce their speed at every crossing so that travelers in the exercise of ordinary care could more accurately estimate the rate at which approaching trains might be running.
The tendency of these instructions to mislead the jury upon the question of contributory negligence under the facts of this case is too great to permit the verdict to stand. Other questions have been presented and discussed, but this disposes of the case, and nothing further need be considered.
The judgment of the district court is reversed, with direction to grant a new trial and proceed in accordance With the views herein expressed. | [
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The opinion of the court was delivered by
Graves, J.:
An information was filed in the district court of Stafford county charging one Flossie Jordan, a married woman, and Milo Chafin, an unmarried man, jointly, with having committed adultery with each other. Milo Chafin moved to quash the information so far as he was concerned for the reason that an unmarried person can not commit the crime of adultery in this state. The motion was sustained, and he was discharged. The state reserved the question for review, and brings it to this court.
It is contended by the state that when either of the parties accused of this crime is a married person the offense charged is adultery as to both. It is insisted by the defendant that the crime charged can only be committed by a married person, and where one of the parties accused is unmarried the offense is fornication as to such person.
The statute merely prohibits adultery. (Gen. Stat. 1901, § 2221.) The meaning of the word must be sought for elsewhere. In Bouvier’s Law Dictionary it is thus defined:
“The voluntary sexual intercourse of a married per-' son with a person other than the offender’s husband or wife. Bishop, Mar. & D. § 415; 6 Metc. 243; 36 Me. 261; 11 Ga. 536; 2 Strobh. Eq. 174.
“Unlawful voluntary sexual intercourse between two persons, one of whom, at least, is married, is the essence of the crime in all cases. In general, it is sufficient if either party is married; and the crime of the married party will be adultery, while that of the unmarried party will be fornication. 1 Yeats, 6; 2 Dall. 124; 5 Jones, N. C. 416; 36 Me. 205; 27 Ala., n. s., 23; 35 Me. 205; 7 Gratt. 591; 6 Gratt. 673; 96 Ala. 78.”
Webster’s International Dictionary gives the following definition:
“The unfaithfulness of a married person to the marriage bed; sexual intercourse by a married man with another than his wife; or voluntary sexual intercourse by a married woman with another than her husband. It is adultery on the part of the married wrong-doer. The word has also been used to characterize the act of an unmarried participator, the other being married. In the United States the definition varies with the local statutes.”
In the third edition of Bishop on Statutory Crimes, in treating this offense, it is said:
“Although adultery was not punishable in the English common-law courts, it was in the ecclesiastical; and it was ground also for divorce from bed and board. The word, therefore, had acquired a precise legal meaning; and, for reasons already explained, the courts, in interpreting the new statute, should give it this established meaning.....Adultery is the voluntary sexual intercourse of a married person with one not the husband or wife.” (§ 654a.)
“In all cases where one of the parties to the act of criminal intercourse is married and the other is not, it is adultery in the married party and fornication in the unmarried. Such, by the superior weight of the adjudications, the doctrine is believed to be.” (§ 656.)
Many states have modified this definition by statute, and for this reason there seems to be a want of harmony in the decided cases.
A somewhat different. phase of this question was considered by this court recently in the case of Bashford v. Wells, 78 Kan. 295. It is reported in 18 L. R. A., n. s., 580, where an interesting note is given in which the cases are extensively collected and the decisions classified. There is also a similar collection of cases in volume 1 of Words & Phrases Judicially Defined, at pages 212 et seq.
It will be seen that throughout the cases where this question has been decided free from any statutory definition or modification the prevailing idea seems to be that the crime of adultery should be preserved in its ancient and original meaning. We see no reason for departing from these cases. It may perhaps be worthy of note that the legislature adopted the single word “adultery” when creating this crime, as though it had an established and well-understood meaning, which required no further explanation or definition. It may be said, therefore, that there is some legislative sanction for adhering to” the long-established idea that this offense was originally designed solely for the protection of the marriage relation, and can only be committed by a married person.
We think the judgment of the district court is correct, and it is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
By order of the township trustee two ditches theretofore constructed under the drainage statute (Gen. Stat.,1901, §§2535-2550) were repaired, and the cost was apportioned among the landowners benefited. One of these, L. K, Bonnewell, disputed the validity of the charge made against him, refused to pay it, and brought an action to prevent the amount being certified to the county clerk and placed upon the tax-roll. He was denied relief, and prosecutes error.
The defendants maintain that the proceeding should be dismissed because the acts sought to be enjoined have already been performed and therefore there is nothing against which the injunction prayed for can now operate, if allowed. They rely for support in this contention upon City of Alma v. Loehr, 42 Kan. 368, where it was said: “The function of a writ of injunction is to afford preventive relief; it is powerless to correct wrongs or injuries already committed.” That case was obviously well decided, for the act performed, as in Knight v. Hirbour, 64 Kan. 563, was of such a character that the court could not compel its undoing, and an order directed to that end- would necessarily have been fruitless. But the reason quoted was too broadly stated. In a proper case a mandatory injunction may be issued. (Railway Co. v. Billings, 77 Kan. 119; 16 A. & E. Encycl. of L. 342, 343.)
“Where defendant has fully completed the act sought to be restrained, after the filing of the bill but before the issuance of any order or decree, the court has power to compel by mandatory injunction the restoration of the former condition of things.” (22 Cyc. 742.)
Here the charge against the plaintiff has been entered upon the tax-roll, but no such change of conditions has taken place as to prevent the court by proper order from restoring the parties to their original status. A judgment in favor of the plaintiff, by declaring the tax illegal, would nullify the effect of its entry on the roll. In a case cited in support of the text just quoted it was said:
“Complainant had prayed for an injunction, which had not been secured, but after the court had acquired jurisdiction, if the collector enforced payment of the tax that fact would not constitute any defense to the bill, but the money was collected subject to the power of the court to compel the collector to refund it or submit to such other decree concerning it as might be equitable. A party filing a bill for an injunction may fail to procure a preliminary injunction, but any act after the court has acquired jurisdiction will be subject to the power of the court to compel a restoration of the status or to enforce such other relief as may be proper.” (New Haven Clock Co. v. Kochersperger, 175 Ill. 383, 395.)
The validity of the assessment against the plaintiff is attacked upon the ground that the proceédings under which the ditches were originally constructed were void for these reasons, which will be considered in order: (1) The ditches were not located in conformity with the routes described in the petitions on which they were respectively based." (2) The record shows no> finding that such ditches were necessary. (3) No part; of either ditch is located upon the plaintiff’s land..
The statute (Gen. Staff 1901, § 2538) provides that upon a petition of owners of land adjacent to the line of a proposed ditch being filed with the township clerk, “setting forth a substantial description of its proposed starting-point, route, and termination,” and upon certain conditions being fulfilled, the trasteé shall locate and establish such ditch “as substantially conforms with the route described in the petition.” One of the petitions here involved (the one to which the first objection applies with the greater apparent force) asked that a ditch be dug “in the direction most feasible,” along a route described thus: ‘.‘From a point on the north line of said section 5, about 40 rods east of the northwest corner thereof, in a southwesterly direction, through said section 5 and 6 to the Arkansas river.” The ditch actually constructed began on the west side of a road between sections 5 and 6, ran southwest for about half a mile, then turned to the southeast and ran a little over a mile to the river, passing through sections 6, 7 and 8, but not touching section 5. The ditch was also extended a quarter of a mile northwest from the bend. The plaintiff claims that this course did not “substantially conform” with the proposed route, and that the extension northwest from the angle was in reality a separate ditch, not supported by any petition whatever.
The departure from the route indicated in the petition was considerable, but we think not sufficient to devest the trustee of jurisdiction. A lateral ditch draining a part of the land embraced in the original plan was not necessarily an independent project requiring a separate petition. The statutory requirement of substantial conformity clearly implies that the ditch constructed need not follow absolutely the route indicated. Of a somewhat similar provision it was said, in Kinne v. Bare, 68 Mich. 625:
“It is not contemplated . . . that the petition for the drain should contain an accurate description of the termini and route of the proposed drain. It could not be well done without the petitioners first went to the expense of a survey, in order to determine the feasi bility of the route. This the law does not require.' What it contemplates is that the termini and route shall be approximately described for the information of the drain commissioner; and it is left for him to ascertain and determine the practical route and termini.” (Page 627.)
And in Donnelly v. Decker and others, 58 Wis. 461:
“The objection that the ditch varied materially from the line fixed in the petition is disposed of in Neis v. Franzen, 18 Wis. 537 [a road case]. The supervisors had the right to make any suitable variation from such line, in their discretion, so that they did not so far depart from the line in the petition as to be materially another and different line.” (Page 476.)
(See, also, 14 Cyc. 1031, and cases there cited.)
The trustee is authorized to order the construction of a ditch only in case he finds it to be necessary and that it is demanded by or will be conducive to the public health, convenience and welfare. The clerk is required to make a full and complete record of the proceedings. Here the record of the establishment of one of the ditches fails to recite any finding with respect to the necessity of the proposed improvement. The plaintiff invokes the rule thus stated in 14 Cyc. 1043:
“Many of the statutes provide that all of the findings of the board of commissioners or trustees shall be reduced to writing and entered of record by the clerk of the board; and a drain is not legally established in the absence of such written record showing the action of the board, and also showing the existence of one of the statutory grounds requisite for -the establishment of a' drain.”
This rule, however, does not apply to the present case, for our statute does not in terms require a formal declaration by the trustee that he finds the ditch to be necessary, and in the absence of such requirement the order for its construction sufficiently implies such a finding.
“It is not generally requisite that the city ordinance or resolution state that the improvement is necessary, as such ordinance or resolution, having been enacted by the officers whose duty it is to determine the necessity, is in itself deemed a sufficient declaration of the fact; but if the statute expressly requires that the council shall declare its determination that the necessity exists, then such declaration of the grounds on which it proceeds must be made before it can order the improvements.” (25 A. & E. Encycl. of L. 1212.)
Indeed, it has been held that as against a collateral attack the omission to record a determination that a proposed improvement is needed is not fatal even where the statute expressly requires a formal declaration to that effect. See Newman v. City of Emporia, 32 Kan. 456, where it was said:
“The plaintiff claims that the original resolution ordering the improvement to be made on Sixth avenue was informal, for the reason that the city council did not ‘declare such work or improvement necessary to be done.’ Now the statute in force at the time, section 75 of the second-class-city act (Comp. Laws 1879, ch. 19, par. 814), does require that the resolution passed by the city council should ‘declare such work or improvement necessary to be done,’ but we think that the city council in effect complied with the law. When it. declared that the work should be done, and instructed the city clerk ‘to advertise the same in accordance with the law governing such improvements,’ it in effect declared that the improvement was necessary, and thereby invited opposition and protest, and gave as full opportunity for the same as though it had in express tex*ms declared that the improvement was necessary. . . . It is possible that if a proceeding had been commenced before any work was done under this resolution the city council might have been enjoined from proceeding further until it passed a formal resolution declaring that the Work was necessary. But no such proceeding was had, and we think it now comes too late.” (Pages 460, 461.)
The plaintiff is not exempted from the cost of constructing and maintaining the drainage-ditches by the fact that they do not touch his land. Section 5 of the township drainage act (Gen. Stat. 1901, § 2539) reads:
“That the said township trustee, whenever he shall have established any such ditch, drain, or watercourse, shall divide the same into suitable sections, not less in number than the number of owners of land through which the same may be located, and shall also prescribe the time within which the work upon such sections shall be completed, and by whom done. And the said trustee shall assess and allow all the fees, costs and expenses of locating and establishing such ditch, drain, or watercourse, and shall apportion the payment of the same equitably among the parties to be benefited thereby. . . . Whenever any such ditch, drain or watercourse shall become in any manner obstructed, it shall be the duty of said township trustee, after five days’ notice having been given by any person damaged thereby, to cause such ditch, drain or watercourse to be repaired in such a manner as to remove such obstruction, and to restore such ditch, drain or watercourse to its established width and depth. . . . The cost and expense of such work and repairs shall be equitably apportioned among the parties benefited thereby, and said trustee may prescribe the time within which such assessments may be paid.”
When an appeal is taken a jury is required to report (Gen. Stat. 1901, § 2543) :
“First, whether it will be conducive to the public health, convenience or welfare to cause said proposed ditch, drain or watercourse to be established as located ; second, the amount of compensation due to each person in case of the location of thq same; and third, the amount of labor to be performed by such person interested in the opening and constructing of the same, . . . specifying the sections and work to be done as provided in section '5 of this act.”
The provision that the number of sections into which the ditch is divided shall be not less than the number of owners of land through which it is located does not imply that each owner is to construct so much of it as lies upon his own land, but rather suggests that the tracts of land over which it passes may be fewer in number than the persons beneficially affected and therefore liable for the cost.
The plaintiff further objects that in the case of one of the ditches the trustee made the order for repairs without any notice of an obstruction having been giyen by any person damaged thereby. We do not regard such notice as jurisdictional. We think the purpose of the' statute in that regard is to enable one who is injured by an obstruction to require the trustee to take steps for its removal within a fixed time. Where the trustee is satisfied of the need of such'steps he is authorized to proceed upon his own initiative.
Other objections are: That in cleaning the ditch the original line was not followed; that one of the orders for repairs did not show to what ditch it referred; that the place where the work assigned to the plaintiff waS' required to be done was not sufficiently indicated; and that the amount charged for the work was excessive. The claim of a departure from the first location of the ditch does not seem to have been conclusively established. The name used in the record — “the Taylor ditch” — was sufficient to show what ditch was intended; Taylor was the name of the first signer of the petition for one of the ditches, and the other ditch was described in the petition as terminating in “the Taylor ditch.” Any obscurity in the designation of the portion of the work assigned to the plaintiff is unimportant in view of the fact that he' resisted the proceedings on the other grounds specified. And the evidence seems to warrant a finding that the amount charged to the plaintiff was not unreasonable.
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The opinion of the court was delivered by
Smith, J.:
The action is now pending upon a motion of the defendant to dismiss on the grounds that the matter attempted, to be litigated by the plaintiff herein is res judicata; that this court has no jurisdiction in the matter and the action is not triable in this court.
It is the .duty of the state in maintaining its sovereignty to see that none of .the offices created by law is usurped or exercised by persons not legally elected or appointed thereto. For this purpose the state may proceed on the relation of the attorney-general, by an action in quo warranto, to determine the right and title of any person exercising the duties of an office and claiming to be an officer of the state. Furthermore, any person who claims to have been lawfully elected or appointed to an office from which he is excluded by another has such an interest therein that he is entitled to be heard in a legal tribunal and to have his claim determined. It is to the interest of both the state and the person claiming to have been elected that such controversies should be speedily determined.
Elections of the character in question were unknown to the common law. This subject is, then, wholly regulated by statute. The machinery is provided by our statute for conducting elections, with safeguards against fraud, corruption and mistake, and for the determination of the result. Also, if any candidate for an office provided for by the laws of the state or any elector qualified to exercise his franchise in the filling of such office be dissatisfied with the officially declared result of an election, there is provision for a contest thereof. The tribunal provided for contesting township and county elections is composed of the probate judge of the county and two disinterested persons selected by him. It is designated as a court, and is authorized to “pronounce judgment, whether the contestor or contestee or any other person was duly elected.” (Gen. Stat. 1901, § 2671.) The tribunal constituted to determine contests of elections for state offices and for district judges is the state senate; each house of the legislature being, of course, the sole judge of the election of its own members. The senate is not designated as a “court” nor is its decision called a “judgment” by the statute. Its function is, however, practically the same as that of the contest court consisting of the probate judge and two other persons.
These contest provisions, together with requirements that the judges of elections shall be residents of the townships and wards where the elections are held,, that it shall be the duty of each judge'to challenge the vote of any person offering to vote whom the judge knows or suspects to be not a qualified elector, that any elector may challenge any vote, that the respective candidates and a friend or friends — not exceeding three — may be present in the room where the judges are during the time of receiving and counting the votes, and the strict provisions for a secret ballot and for the counting, certifying and sealing up thereof, have evidently been regarded by successive legislatures as sufficient to protect the electors, the candidates and the state in their rights. These provisions constitute the bulwarks of honest elections and the fruits thereof in the state. They have been repeatedly strengthened and builded higher as the successive onslaughts of the combined forces of avarice, ambition and political passion have developed any weakness therein. By these provisions a tribunal is provided for the hearing of contests of the class of that here involved, and, we may say, of the particular contest in question. No appeal from the decision of that tribunal has been provided for, and no original jurisdiction to investigate such an election has been expressly conferred by statute upon this court. Yet we are asked to assume original jurisdiction and try the contest after the special tribunal provided by law has been asked to take jurisdiction, has accepted it, and has determined the case.
This court, by section 3 of article 3 of the constitution, is vested with original jurisdiction in proceedings in quo warranto, which under the common law was a writ issued to one holding an office or exercising a franchise without authority of law. It required the respondent to show his authority or right. For the purpose of testing the right to hold office the writ was issued to such officers as should hold under the authority or warrant of the crown, and to justify his holding the office was required to produce his unexpired warrant of appointment.’ In our scheme of. government a proper certificate of election to an elective office or a commission of appointment to an appointive office corresponds to the royal warrant. Appropriately the writ may here be used to oust one holding an elective office to which he was not elected, or which he is illegally holding after the term for which he was elected has expired or after he has in some way forfeited his right to hold it longer. {The State, ex rel., v. Wilson, 30 Kan. 661.)
A paragraph of the syllabus in Tarbox v. Sughrue, 36 Kan. 225, reads:
“A proceeding in the nature of quo ivarranto lies to a great extent within the discretion of the court; and generally quo warranto will not lie where there is another plain and adequate remedy; but as the statute making provision to contest the election of one declared elected to a county office does not authorize the removal from office of the contestee, and is inadequate for that purpose, quo warranto will lie at the suit of one who claims to have received the greatést number of votes for a county office, not only to try the title to the office, but to remove the defendant therefrom as well.”
In that case the jurisdiction of no other tribunal had been invoked or exercised.
The defendant, with some show of advisory authorities, contends that the jurisdiction of the senate to try the election contest in question is exclusive. We do not think the decision of this question necessary to the determination of this case.
The defendant further contends that the senate acted in a judicial capacity; that dismissing the proceeding, after opportunity had been given the plaintiff to state specifically his grounds of contest, was by analogy equivalent to the sustaining of a general demurrer to his petition, and to a judgment upon the merits, and rendered the controversy res judicata. The plaintiff, on the other hand, denies the power of the legislature to constitute one of its branches a court, but concedes that it had power and did constitute the individuals who are members and officers of the senate as a special tribunal to try election contests of a class which embraces this case. He denies that the senate in dismissing the proceeding decided the case upon its merits, and denies that if it had done so such decision would be res judicata. There is, then, no controversy as to' whether there was at least a legally constituted tribunal, with full power to try and finally determine which of the parties was legally elected to the office and entitled thereto. We think this tribunal had as full powers as the tribunal provided by law for hearing contests in the election of township and county officers.
In Norton v. Graham, 7 Kan. 166, a case in which the binding force of a decision by such a tribunal was involved, it was said:
“When a tribunal having jurisdiction of the subject-matter and the parties has once decided a question, it is res judicata between those parties, and can not be re-litigated by them in an original proceeding before another tribunal.” (Syllabus.)
(See, also, Anthony v. Holderman, 7 Kan. 50; Bland v. Jackson, 51 Kan. 496; The State v. Lawrence, 76 Kan. 940, 943.)
It is contended, however, that the senate, acting as a contest tribunal, did not decide this case upon its merits, but dismissed it for want of a sufficiently specific statement of the grounds of contest, after an order had been made upon the contestant to amend such statement. The statement required is analogous to, and performs the function of, the petition in an ordinary action in a court. It is true that the proper procedure in court, upon the failure or refusal of a plaintiff to reform his petition in accordance with an order of the court, is to dismiss the action without prejudice; but from the nature of this case such an order would have had the same effect as the one actually made. The order of the senate dismissing the case is analogous to the sustaining of a demurrer to a petition in an ordinary action on the ground that such petition does not state facts sufficient to constitute a cause of action, and a final judgment in favor of the defendant in accordance with such ruling. Such a judgment is final upon the facts pleaded, and such facts can not be relitigated between the same parties in any court. (Holderman v. Hood, 78 Kan. 46; Bierer v. Fretz, 37 Kan. 27, 29; Sanford v. Oberlin College, 50 Kan. 342; Bank of Santa Fe v. Haskell County Bank, 51 Kan. 50.)
Probably the ruling of the senate holding in effect that there was no cause of action stated was erroneous, but it is none the less equivalent to a judgment upon the merits. (Lawrence v. Wheeler, 77 Kan. 209.) If, as we have found, the tribunal had jurisdiction, its judgment and decision is conclusive until reversed in an appellate court. (23 Cyc. 1055; Buckland v. Goit, 23 Kan. 327.) It is usual to recognize the determination of quasi-judicial bodies acting in a judicial capacity as equivalent to the judgments of the courts. (23 Cyc. 668, note 9; 24 A. & E. Encycl. of L. 723.)
“When jurisdiction has once attached, the court has a right to decide every question arising in the case, and errors of judgment or irregularities, however gross, which do not render the judgment absolutely void, are not available on collateral attack, but the judgment is valid until reversed or vacated by direct proceeding.” (12 Encyc. Pl. & Pr. 197.)
(See, also, Rowe v. Palmer, 29 Kan. 337; Axman v. Dueker, 45 Kan. 179; Mills v. Ralston, 10 Kan. 206; In re Dill, Petitioner, 32 Kan. 668, 691.)
Assuming, without affirming, that this court may, in a quo warranto proceeding, try an election contest the jurisdiction of which has been by statute expressly conferred upon the members and officers of the state senate, the jurisdiction of this court therein is concurrent with the jurisdiction of such tribunal. In this case the jurisdiction of such tribunal has been invoked by the contestant and has been taken and exercised, and a judgment, in effect, has been rendered therein. This proceeding is an attempt to have a retrial in an original action of the issues there presented. It is in effect a collateral attack, and not a proceeding in error. The decision of the tribunal should here be regarded as a final determination of the questions involved in that decision. However this may be, in view of the great desirability of having such controversies speedily determined, and of the fact that a high tribunal, especially constituted by law to determine the questions involved, has exercised such jurisdiction, we decline to entertain the contest, and the motion to dismiss the action here is sustained. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff brought suit to restrain the defendants from interfering with his possession, use and enjoyment of a gas-well to which he claimed the paramount right. The court found the facts and determined the law in favor of the defendants, and the plaintiff prosecutes error.
The title of the defendants rests upon a mineral lease given by the owner of the land on which the well is .situated, Henry Carbon, to one Robert Fleming, on June 18, 1902. The defendants claim this lease was duly assigned to them and is still in force, unforfeited. If this be true the judgment of the district-court is correct. The claimed assignment was effected, if at all, by a written instrument dated October 15, 1903, in which Fleming assigned and transferred interests described as follows:
“All my right, title, claim and interest in and to one certain franchise granted to the undersigned on the ■3d day of March, 1902, by the city of Mound City, Kan., and being Ordinances Nos. 153 and 154 of said city, and all the gas-pipes and gas-mains and fixtures not-hereinafter reserved, and all my right, title, claim and interest in and to all the oil, gas, coal and other mineral leases of all kinds and descriptions belonging to said undersigned owner, or' which was taken in undersigned’s name, and which said leases and franchises cover real estate situated in and immediately surrounding said Mound City, Kan., and this conveyance is intended to cover and convey all the said leases and franchises of the undersigned owner 'or which may hereafter be taken in my name.”
The Carbon land is a half mile distant from Mound City, and the plaintiff argues that the terms of the assignment exclude it because the word “immediately” forbids the existence of intervening space. This interpretation involves more of purism than the discursive phraseology of the context seems to. require. Like many other absolute expressions the one under discussion is popularly used with less strictness than the literal signification requires (Cent. Dic.; 21 Cyc. 1733), and a fair consideration of the entire instrument leads to the conclusion that the parties intended. the assignment to embrace leases of land lying close about Mound City, although not in actual contact with the town site. If a suspicion of ambiguity in the terms of the writing be admitted it vanishes in the light of the situation, relations and purposes of the parties, and particularly in the light of the evidence showing1 their subsequent conduct with reference to the Carbon lease itself. This evidence need not be recounted here. The district court was clearly justified in holding that an assignment was made as the defendants claim.
The lease granted and conveyed all the coal, oil and gas in and under the premises described, together with the right to enter, drill and operate for and remove the substances named, on the following, among other, conditions :
“(1) Second party agrees to drill a well upon said premises within two years from this date or thereafter pay to first party eighty ($80) dollars annually until said well is drilled, or this lease shall be void.
“(3) Should gas be found, second party agrees to pay to first party fifty dollars annually for every well from which gas is used off the premises.
(8) A deposit to the credit of the lessor in Farmers’ and Merchants’ Bank, Mound City, Kan., to the account of any of the money payments herein provided for, shall be a payment under the terms of this lease.
“(9) If no well shall be drilled upon said premises within ten years from this date, second party agrees to reconvey, and thereupon this instrument shall be null and void.”
No well has yet been drilled. On April 24, 1905, a tender of $80 was made to the lessor according to the terms of the first condition of the lease, and was refused. On June 16, 1905, less than three years from the date of the lease, the sum of $80 was deposited to the credit of the lessor in the Farmers’ and Merchants’ Bank of Mound City, according to the terms of the eighth condition. The plaintiff contends that if no well were drilled the lease became void at the end of two years, unless $80 were paid in advance to keep it alive for another year.
The lease in question is identical in legal effect with the one considered in Rose v. Lanyon, 68 Kan. 126. Diligence in sinking a well was not a vital feature of the contract. The lessee might drill a well at any time within two years, or he might suffer two years to lapse without doing anything and then thereafter pay-$80 annually until he saw fit to drill a well, the latter alternative being limited by the ninth condition terminating the lease absolutely at the end of ten years if no well should then be in existence. The annual payment of $80 is the stipulated price of the privilege to delay drilling a well and supposedly is an equivalent for the benefits the lessor would receive if a well were in operation. The first condition belongs to the same class as the third, in which the lessee agrees to pay $50 annually for each well from which gas is used should wells be drilled, and both conditions are on the same legal footing as provision for the payment of annual sums or for annual performance in other kinds of contracts. The rule governing such agreements is stated in Mower v. Sanford, 76 Conn. 504, as follows:
“An agreement to pay a fixed sum annually, or each year, in the absence of language modifying the ordinary meaning of these terms, can not fairly be construed as a promise to pay such sum annually in advance, or at the commencement of each year. A contract for the payment of money in fixed instalments, containing no other provision for the time of payment of such instalments than that they are to be paid annually, is lawfully performed by the payment of a single instalment at the end of each year.” (Page 506.)
In the case of Curtiss v. Howell, 39 N. Y. 211, the opinion reads:
“The undertaking of the plaintiff was to deliver one thousand tons of ground bark per year for the term of five years, to commence on the first day of September next. Had this undertaking been to pay a thousand dollars per year for the term of five years no one would have questioned the right of the promisor to the whole year in which to make the payment'. The words ‘per year’ are equivalent to the word ‘annually,’ and, to my mind, convey the same idea. It is true that the word ‘per’ may be understood as during, but, had the latter word been used, the meaning would have been the same. The promise would have been performed by a delivery at any time before the expiration of the year.” (Page 213.)
The rule was applied to a mineral lease much like the one now under consideration in the case of Blodgett v. Lanyon Zinc Co., 120 Fed. 893, the syllabus of which reads as follows:
“m a lease for ten years, with a stipulation that in case no well was sunk within two years it should become void unless the lessee should elect from year to year to continue it by paying $40 each year, it is not essential that the $40 should be paid before the commencement of the year, but the payment may be made at any time during the year.”
In the opinion it was said:
“The second ground upon which the bill to avoid this lease was founded is that the Lanyon Zinc Company did not pay the $40 rental for the year from April 10, 1899, to April 10, 1900, until December 23, 1899. The-lease grants the right of use of the land for ten years, and then provides that if a well is not sunk on the premises within two years from the date of the lease it. shall become void, ‘unless the second party shall elect, from year to year to continue this lease by paying or depositing to the credit of the first party each year $40 at the Bank of Allen County, Kansas, until a well is. complete on these premises.’ No well has been sunk. Counsel for the appellants insist that this lease became-null and void on April 10,1899, because the $40 for the succeeding year was not paid on or before that day. They insist that this lease simply gave to the lessee the-option to elect to continue it from year to year by paying the rental for the succeeding year before it commenced. But is this a fair construction of the agreement ? It first grants the exclusive right for ten years from April 10, 1894, and then provides that if a well is. not sunk within two years from its date the lease shall become void, unless the lessee shall elect to continue it from year to year by paying $40 each year. This is. not a mere grant of an option. It is a grant of the right to the use of the premises for the term of ten years, conditioned on the payment of $40 per year after the expiration of the first two years. Nor is there any provision in this contract that this rental shall be paid on or before the commencement of the year to which it applies. An election from year to year, by paying $40' each year, literally means an election by paying during each year, and there is nothing elsewhere in the contract inconsistent with the words and the ordinary meaning of this provision.” (Page 898.)
Such being the law, the lease in this case was continued in force by the tender and deposit recited.
From what has been said it follows that the disputed' assignment was properly received in evidence. It is immaterial that the cross-examination assigned as. error went beyond the scope of the direct examination. The trial was before the court, the evidence had an important bearing upon the controversy, and the plaintiff was not injured because the usual order was varied.. The defendants were entitled to the property on which the well is located. Therefore the plaintiff was an intruder, and it makes no difference what the arrangements were under which the well was drilled or in what capacity the party who made them acted. Since the lease is sufficient.to sustain the title of the defendants it is not necessary to discuss the errors assigned repecting their proof of title by deed.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.;
Mary Yocum and Jennie Blodgett are daughters and only heirs of Ann Ruddicks, deceased, who in her lifetime was the owner of real estate in Reno county, consisting of town lots in Arlington and a quarter-section of farm land. The plaintiff, Mrs. Yo-cum, brought this action against her sister to recover a one-half interest in the real estate. The other defendants are the husband of Jennie Blodgett arid their children.
The defendants answered admitting that Ann Ruddicks owned the real estate in her lifetime, and alleging that she died on the 30th day of December, 1906; that on September 1, 1900, she executed,a will, afterward duly probated, by which she devised a life-interest in. the town lots to defendant Jennie Blodgett, with remainder to the latter’s heirs; that on the 27th day of February, 1902, she executed a warranty deed conveying to Jennie Blodgett eighty acres' of the land, reserving to herself a life-estate therein, and on the same day executed another warranty deed conveying to Jennie Blodget a life-interest in the other eighty acres, with remainder in forty acres thereof to William C. Blodgett and in the other forty acres to George H. Blodgett, children of Jennie Blodgett.
The reply admitted the execution of the will and the conveyances referred to in the answer, but attacked both as having been executed when Ann Ruddicks was of unsound mind, and alleged that both the will and the deeds had been obtained from her by the undue influence of the defendants.
The cause was tried to the court and a jury, and a verdict rendered for the plaintiff as to the farm land and for the defendants as to the town lots. Judgment was rendered in favor of plaintiff for an undivided one-half interest in the farm land, adjudging the deeds executed by Ann Ruddicks in her lifetime void and of no effect, and further adjudging that the last will and testament of Ann Ruddicks was valid and that the title to the town lots passed thereby to the defendants. Of this judgment the defendants complain.
Numerous errors are assigned; we shall consider but two of them. It is claimed that the court erred in giving the following instruction':
“(5) The court instructs the jury that, in deciding whether or not Ann Ruddicks was of sound mind or was unduly influenced at the time of making the deeds in question, you have a right to take into consideration the reasonableness or unreasonableness of her act in making said deeds; and if you believe that a woman of sound mind would not have been likely to do such an act in the free exercise of her judgment, discriminating against one daughter in favor of the other daughter and her family, then you have a right to infer from the act itself that undue influence was used to secure said deeds, though not bound to do so.”
This instruction was erroneous. It practically told the jury that if they regarded the disposition which the deceased made of her property as unreasonable they might infer that at the time she executed the deeds she was of unsound mind or unduly influenced, or both. In the instruction immediately following the court correctly informed the jury that a person of sound mind and not under undue influence has a right to dispose of his property as he desires. The fifth instruction is in direct conflict with this well-settled proposition. The one destroys the other. A person of sound mind who is not unduly influenced may make such disposition- of his property by deed or will as he desires, without regard to its fairness or unfairness. He may give to one child the bulk of his property and cut the other off with a shilling. The instruction, however, authorized the jury to consider whether they would have made the same disposition of their property under the same circumstances ; and, if they concluded that the disposition she made was unfair or. unreasonable, it authorized them to infer from that fact alone that she was unduly influenced when she executed the deeds. This is not the law. The privilege a person has to dispose of his property as he pleases would be a vain thing if it could be frittered away by giving to a jury the right to say that he was of unsound mind or unduly influenced because they regarded the disposition he had made of his property as unfair or unreasonable. This instruction singles out and lays stress upon the fáct that one member of a family has been discriminated against in favor of another. Juries are prone to take matters of this kind into consideration without having their attention specially directed thereto. The particular vice of the instruction, however, is that it authorized the jury in case they regarded the disposition made of her property as unfair or unreasonable to infer from that fact alone that §he was unduly influenced in the execution of the deeds.
As the cause must be reversed and a new trial ordered, there remains to be considered a question of misjoinder. Before the answer was filed the petition contained a cause of action in which it was sought to set aside the deeds of conveyance made by Ann Ruddicks on the ground that they had been obtained by undue influence and because she was of unsound mind. The averments with respect to the deeds were general in character and did not disclose a misjoinder of causes of action. A motion to make more definite and certain was directed to the petition, and thereupon the plaintiff dismissed this cause of action. The defendant then answered pleading the conveyances, and alleging among other defenses that there was a misjoinder of causes of action and of parties for the reason that some of the defendants were interested in portions of the real estate but were not interested in other portions thereof. In her reply the plaintiff alleged that the deeds were void because they had been obtained by undue influence and because Ann Ruddicks was of unsound mind when she executed them. At the trial the defendants objected to the introduction of testimony on the ground of misjoinder, which objection was overruled. At the close of the plaintiff’s evidence they demurred for the same reason, and the demurrer was likewise overruled. They now insist that there was error in both rulings. In this connection considerable stress is laid upon the fact that in offering her testimony the plaintiff proceeded, first, to attack the validity of the conveyances by attempting to prove that Mrs. Ruddicks was of unsound mind and had been unduly influenced when she executed them. The' defendants therefore treat the action as one to set aside the deeds, and urge that the case was tried by the plaintiff upon precisely the same theory as though her third cause of action had not been dismissed.
The plaintiff had the right to dismiss the cause of action in which she sought to set aside the deeds, and she was obliged to reply and set up any new matter upon which she relied to avoid the effect of the conveyances pleaded in the answer.
The petition was in ejectment, and showed on its face no misjoinder. It alleged that the plaintiff was the owner in fee simple of the undivided one-half interest in. all the real estate; that Jennie Blodgett and her husband, together with the other defendants, their children, were in the actual possession of all of it and deprived the plaintiff of her possession. If the answer disclosed a misjoinder of causes of action it did not thereby deprive the court of jurisdiction to try the case nor furnish ground for objection to the introduction of testimony, which can only be based upon the theory that no cause of action is stated. The demurrer to the evidence only raised the question whether the plaintiff had made a prima facie case against the defendants.
There is no such thing known to our practice as a misjoinder of parties, but we assume that the defendants mean by this a misjoinder of causes of action, since they use the two expressions interchangeably. The code of procedure in force at the time the case was tried provided that where a demurrer was sustained to a petition on the ground of misjoinder of causes of action it became the duty of the court, on the motion of the plaintiff, to allow him to file several petitions, and the action then proceeded without further service. (Civ. Code, § 92.) The new code dispenses with this ground of demurrer to a petition. (Laws 1909, ch. 182, § 93.) In this case the defense of misjoinder was not raised by demurrer, and there was no motion or request on the part of the plaintiff to file several petitions ; nor did any defendant who claims that his or her rights were affected by the misjoinder ask for a separate trial or for a severance. On the contrary, all the defendants joined in the same answer and admitted that they were in the possession of all the real estate. The plaintiff claimed an interest in the property as an heir of her mother, and her title was the same as to all the defendants. The misjoinder shown by the answer was at the most technical, and furnished no ground for objection to testimony or for a demurrer to the evidence. The court still had jurisdiction of the parties and of the action and could provide in its decree for the protection of the rights of all parties. Since none of the defendants asked for a separate trial, or claimed to have been made liable for unnecessary costs, we are at a loss to see how their rights could have been preju diced notwithstanding the misjoinder was pleaded in the answer; and, since none of the objections made upon the trial required the court to .take any affirmative action with respect to the misjoinder, it must be regarded as immaterial.
The order in which the plaintiff’s proof was submitted did not make the action one to set aside the conveyances, and the cause was therefore a proper one for submission to a jury. The rights of the parties were not affected by the fact that the plaintiff offered her evidence for the purpose of defeating the conveyances in chief instead of in rebuttal.
Because of the error in the instruction the judgment is reversed and a new trial ordered. | [
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Per Curiam:
This is a proceeding in error from an order awarding a mandamus against the mayor and council of Atchison requiring them to make provision for the payment of a judgment against the city. The objections urged to the proceedings are purely technical. No substantial reason is shown why such provision ought not to have been made sooner, or why it should not now be required, or why the damages allowed should be disturbed. The order of the trial ‘court is affirmed, but as some of the dates named therein for action to be taken have now passed the cause will be remanded that such changes may be made as to render it effective. | [
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Per Curiam:
The facts in this case are substantially the same as in Leslie v. Gibson, ante p. 504. For the reasons given in the opinion in that case the judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Fetzer & Co. brought action against F. N.. Williams, June 2, 1906, to recover the unpaid portion of the agreed purchase-price of some farm machinery. In defense he asserted that he had been damaged by a breach of warranty in a larger amount than the sum sued for. His contention was sustained and he recovered a judgment, from which the plaintiffs prosecute error.
The answer was attacked by general demurrer, by motion for a judgment on the pleadings, and by objection to the introduction of evidence, on the ground that some of its averments were based on the theory "that the defendant had rescinded the contract of pur ■chase and were necessarily inconsistent with others which assumed that he had chosen to affirm it. Inconsistency in the allegations of a pleading, however, is .not a defect which can be reached by demurrer (Munn v. Taulman, 1 Kan. 254; Crans v. Francis, Treas., &c., 24 Kan. 750, 754), much less by either of the other : methods indicated. The further contention is made that the answer failed to state a defense on the rescission theory because it did not allege a return of the property or an offer to return it, and failed to state one on' any other theory because all the items of damage alleged were such as could be recovered only upon •a disaffirmance of the contract. The pleading did state in substance, however,. that the machinery, although warranted to do efficiently the work for which it was intended, proved worthless and unfit for that purpose, and these allegations alone rendered an attack by demurrer futile.
The trial court refused to strike from the answer • allegations as to the purpose for which the machinery was purchased. As this purpose was stated to be the :same for which the machinery was intended, the error in this respect, if any, was immaterial. A request to strike out various items of damage was also denied, but as the jury were afterward directed to disregard them no prejudice resulted from this ruling.
The most serious question presented relates to proceedings which are thus described in the journal entry:
“The plaintiffs . . . made a motion to require the defendant to elect as to whether he affirms the contract and stands on the warranty or rescinds the ■contract and prosecutes his action as one for damages, and the court ." . . sustained said motion and required the defendant to make his election. And the defendant then elected to proceed as for a rescission of the contract, and amended his amended answer . . . by writing therein . . . the words ‘defendant now and has ever since October, 1905, dis-affirmed said contract.’ . . . And thereupon and immediately, and before any further proceedings were had, the defendant asked that he be allowed to change his election, and the change of election was allowed by the court and the defendant elected to affirm the contract and stand on the warranty, and asked to amend his amended answer by striking out all allegations in said amended answer alleging a rescission óf the contract and by inserting the following amendment therein: ‘Defendant is now and has ever since October, 1905, and before, affirmed said contract.’ ”
The plaintiffs assert and the defendant denies that these proceedings show a violation of the rule that “the definite adoption of one of two or more inconsistent remedies, by a party cognizant of the material facts, is a conclusive and irrevocable bar to his resort to the alternative remedy.” (7 Encyc. Pl. & Pr. 364.) If the conduct of the defendant described in the entry-must be taken to have been literally and exactly just what it is there called — an election to rescind the contract — the case would fall within at least the letter of the rule as stated. But the matter must be determined by what the defendant really did — not by the name given to his action in the record made of it. A stage was not reached in the progress of the trial where it. was a function of the court in so many words to require the defendant to elect to affirm or disaffirm the contract sued upon by the plaintiffs. He was supposed to have done that before answering. But as his pleading did not make clear which course he had chosen, it was proper that before trial the issues should be more clearly defined. The motion made by the plaintiffs and sustained by the court necessarily had reference to the settlement of the pleadings — that was the matter under consideration. It must be interpreted either as a motion to require the defendant to elect to rely upon one or the other of two inconsistent portions of the answer, or a motion to make the answer definite and certain by so amending it as to indicate plainly which of two inconsistent theories it was intended to present. What was actually done by the defendant under the order of the court was to amend his answer by making certain • changes, the important one being the addition of an averment that ever since a certain date prior to the commencement of the action he had disaffirmed the contract. True, this change indicated a purpose to stand upon the theory of disaffirmance, but it did not constitute in itself an election ■ — the words added recited that an election had been made long before. What the court then did was not to allow an actual change of election between inconsistent remedies, but to allow a change in the form of expression by which the defendant undertook to declare what choice he had previously made. Inconsistency in pleading is not tolerated, but this does not mean that a party who- has by inadvertence or mistake pleaded the existence of a fact may not thereafter by consent of the court make an amendment denying it or asserting the contrary, and that is all that the record quoted necessarily shows to have taken place in this case.
As already indicated, the answer showed some mingling of inconsistent theories. The defendant, upon the strength of an expression from section 722 of the third edition of Pomeroy’s Code Remedies, quoted but not acted upon in De Lissa v. Coal Co., 59 Kan. 319, suggests that an objection to defenses in an answer upon the ground of their inconsistency can never be sustained. There is an apparent. conflict in the authorities on .this question. (1 Encyc. Pl. & Pr. 855, 856; 31 Cyc. 148.) Many of the cases cited, however, in reality merely decide that the particular defenses under consideration were not in fact inconsistent. The seeming difference of opinion is also in part accounted for by the fact that some of the courts apply the term “inconsistent” to defenses which are not so in fact. The decisions are elaborately reviewed in Seattle National Bank v. Carter, 13 Wash. 281, and in a note thereto in 48 L. R. A. 177. This court has long been committed to the proposition that a general denial is regarded as modified by admissions made in. stating a special defense, which is only an application of the broader principle that every pleading must be= consistent with itself. (Albert Wiley v. Keokuk, 6 Kan. 94; Butler v. Kaulback, 8 Kan. 668.) The plaintiffs, had a right to require all inconsistency to be eliminated from the answer, but as they made no attack upon it except in the manner already stated, and as. the cause was finally submitted to the jury distinctly upon the theory of an affirmance of the contract, no-ground for a reversal of the judgment is shown.
Other questions are raised based upon the claim that the verdict was not supported by the evidence.. We do not think, however, that there was an entire lack of evidence upon any point essential to a recovery by the.defendant. The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
Sarah E. Trobridge, the defendant in error, commenced this action in the district court of Gray county by filing the following petition:
“For her cause of action against the above-named defendants plaintiff alleges:
“That said defendants are the only heirs at law of E-. S. Garten, late of Gray county, Kansas, deceased.
“That plaintiff is the owner of lots three (3), four (4) and the south half (%) of the northwest quarter (!4.) of section two (2), in township twenty-four (24), range _ twenty-nine (29) west of the sixth principal meridian; that said land is now and for several years last past has been vacant and unoccupied.
“That heretofore, to wit, about the first day of January, 1905, plaintiff purchased said land through E. S. Garten, who at that time was transacting business in said Gray county for her as her agent; that plaintiff furnished all of the money for the purchase of said land, but the legal title thereto was taken in the name of said E. S. Garten, for the use and benefit of plaintiff; that on or about the 15th day of January, 1907, said E. S. Garten departed this life intestate, in,said Gray county, Kansas; that said E. S. Garten at the date of his death was the apparent owner of said land as shown by the public records of said Gray county, Kansas, and, by reason of his death as aforesaid, said defendants as his only heirs at law apparently became the owners of said land; that by reason of the apparent descent of the title to said premises to said defendants, as the heirs at law of said E. S. Garten, there was cast upon plaintiff’s title to said premises a cloud which hinders, obstructs and embarrasses her in the free use and transfer of said premises, which cloud she is entitled to have removed.
“That by reason of the premises as above set forth said defendants claim to have and are asserting some interest or estate in or to said premises adverse to plaintiff; but plaintiff avers that said defendants have no right, title, interest or estate in or to said premises, either jointly or severally, and that their claims to any estate or interest in or to said premises are wholly without right and are void.
“Wherefore, plaintiff prays judgment- against s.aid defendants that her title to said premises be confirmed and adjudged to be valid and perfect; that the interest and estate in or to said premises claimed by said defendants be adjudged to be without right and null and void; that said defendants and each of them and all persons claiming by, under dr through them or any one of them since the commencement of this action be forever barred and enjoined from setting up or asserting any right, title, interest or es'tate in or to said premises or any part thereof adverse to plaintiff, her heirs and assigns; and for such other and further relief as shall be agreeable to equity and good conscience, and for costs of suit.”
A demurrer to this petition, on the ground that it did not state facts sufficient to constitute a cause of action by the plaintiff against the defendants, was overruled. The defendants then answered. The case was tried to the court, without a jury. Judgment was rendered for the plaintiff, and the defendants complain.
No express trust is alleged in the petition. The statute of trusts and powers must be considered in determining whether the facts pleaded constitute a resulting trust in favor of the plaintiff. Section 6 of that statute reads:
“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.” (Gen. Stat. 1901, § 7880.)
Section 8 reads:
“The provisions of the section next before the last shall not extend to cases where the alienee shall have taken an absolute conveyance in his own name without the consent of the person with whose money the consideration was paid; or where such alienee in violation of some trust shall have purchased the land with moneys not his own; or where it shall be made to appear that by agreement and without any. fraudulent intent the party to whom the conveyance was made, or in whom the title shall vest, was to hold the land or some interest therein in trust for the party paying the purchase-money or some part thereof.” (Gen. Stat. 1901, § 7882.)
The third exception applies to this case. Paraphrasing the two sections, so far as applicable to this case, the statute provides: When it is made to appear that by agreement- and without fraudulent intent a conveyance for a valuable consideration is made to one person and the consideration therefor is paid by another a trust results, if the grantee undertakes to hold the title in trust for the person paying the consideration. It will be observed that the petition alleges only that the plaintiff through her agent bought the land and furnished all the money for the purchase-price, and “the legal title thereto was taken in the name of said E. S. Garten, for the use and benefit of plaintiff.” There is no allegation that an agreement was made without any fraudulent intent that Garten was to hold the land or any interest therein for the plaintiff. This, is a fatal omission, and the demurrer should have been sustained. The statute requires that, to come within, the third exception, this must be “made to appear.” It. can only be made to appear by evidence, and the petition should allege every fact necessary to. be affirmatively proved to establish the cause of action. This is: elementary law.
That the court erred in overruling the demurrer is clear, and had the defendants stood upon their demurrer the error would have compelled a reversal of any judgment rendered against them. They, however, filed a verified answer, in which, after admitting the death of E. S. Garten and the heirship of the defendants, they denied all the other allegations of the petition and alleged that they were the absolute owners in fee simple of the land in question. This answer did not supply any omission of fact which should have been alleged in the petition, and the question presented is whether the error in overruling the demurrer was prejudicial to the defendants.
On the trial every living person who had anything directly to do with .the transaction which resulted in the purchase of the land and the conveyance thereof to Garten was made a witness and was questioned and cross-examined with reference to the consideration paid for the land, for what purpose Garten received the deed of conveyance, and as to the good faith of the transaction. The defendants even introduced Emery, the grantor in the deed to Garten, for the only apparent purpose of proving that the conveyance was made with a fraudulent intent. The consideration to Emery for the conveyance was the payment or partial payment of a debt from him to one Vinson, and his evidence tended to show that Vinson did not take the title himself but had it conveyed to Garten for the purpose of hindering or delaying Vinson’s creditors in the collection of their debts. Vinson, however, testified that he had paid all of his indebtedness, except that there was a suit pending against him for $500, which was withdrawn; that he told Emery that he owed his sister, the plaintiff, and wanted the land conveyed to Garten to hold for her. This is the only conflict in the evidence. The court evidently credited the testimony of Vinson, and we can not review the case as to the weight of the evidence, the decision of the court being supported by evidence as to this fact.
Had the demurrer been sustained the petition would presumably have been amended by supplying the omitted facts, and the trial would have proceeded as it in fact did. The issue which the omitted facts would have tendered if they had been pleaded was in fact tried to all intents as fully as if the omission had not occurred. We can not, therefore, regard the error in the ruling on the demurrer as prejudicial to the defendants, but will consider the petition as amended in this particular, the only one in which it is contended that it was deficient.
On the trial the evidence of both Vinson anil Emery was that they had been in partnership and upon dissolution and settlement Emery was indebted to Vinson, and that Emery conveyed this land to Garten in part payment of such indebtedness. According to the evidence of Emery, Garten was to hold'the land for Vinson; according to the evidence of Vinson, Emery was to convey the land to Garten to be held for Mrs. Trobridge, the plaintiff, who was a sister of Vinson, in part payment of an indebtedness from Vinson to her. Both witnesses agreed that Garten paid nothing for the conveyance. To sustain the issues on her part the plaintiff offered in evidence the following letter:
“Cimarron, Kan., Sepember 2, 1905.
“Mrs. Sarah E. Trobridge, Bideford, Devonshire, England:
“Dear Madam — As your agent here for real estate and personal property which I am holding for you under arrangements with your brother, Charles T. Vinson, I beg to hand you below a schedule of the approximate value of same:
“One hundred and sixty acres of land, known as the Seaton place; has 100 acres in cultivation; good house of eight rooms; good barn, granary, well, etc. This property is.ten miles south of Cimarron. Cash value, $2000.
“The northwest %, section 2, township 24, range 29; the northwest *4 of section 9, township 24, range 28, both in Gray county, Kansas; -the southeast of section 3, township 23, range 28, Finney county, Kansas. The last three quarter-sections are unimproved and worth jointly in the neighborhood of $1500.
“Twenty-four head of horse stock and their increase, worth in the neighborhood of $600. These lands and personal property, after consulting with Mr. Vinson, will be handled to the best possible advantage, and doubtless to your satisfaction.
“Respectfully yours, (Signed) E. S. Garten.”
The real estate in controversy is a portion of the land described in this letter. The defendants admitted the signature of E. S. Garten to the letter, but objected to its introduction as evidence, first, because it purported to be a communication or transaction between the plaintiff and the deceased, and these defendants are the heirs at law and next of kin of the deceased; second, that it was not shown that the plaintiff accepted the instrument or agreed to or consented to it or acted upon it in any manner whatever; the third objection was made to the legal effect of the instrument; and a fourth’ that there was no evidence that the instrument was ever delivered to the plaintiff or received by her.
There was uncontradicted evidence that the letter had been mailed to the plaintiff by E. S. Garten and had been returned by Mrs. Trobridge to Vinson, and the effect of the instrument as a proposition of law need not be argued at this time, but will be considered in connection with the question whether the transaction amounted to a legal trust.
As to the first objection, the defendants claim that section 4770 of the General Statutes of 1901 excludes this instrument, and cite Roach v. Roach, 69 Kan. 522, in support of their contention. In that case it was simply decided' that a party to a suit adverse to the heirs at law of a certain ancestor could not testify to a verbal contract between the witness and the ancestor in his lifetime. Indeed, the disqualification provided for in section 4770 runs to the witness, and not to the evidence. In this case the plaintiff was not a witness at all, and she is the only adverse party to the heirs. The signature of Garten to the letter is admitted, and the letter itself was the evidence offered. Section 4770 has no application whatever to the question involved, nor have the cases cited by the defendants.
As to the second objection, there was uncontradicted evidence that Vinson had seen the letter before it was mailed; that he was with Garten and saw him mail it to the plaintiff; and that thereafter Vinson wrote to the plaintiff to return the letter to him, which she did. It was also shown that the plaintiff wrote her brother; Vinson, letters about the transaction, but such letters were not, admissible on the part of the plaintiff and were not offered in evidence by her, and the defendants did not seek to have them produced, although there was evidence that they were in the possession of her attorney in court. In the absence of any other evidence, the bringing of this action is itself a ratification of the action of the plaintiff’s brother in having the land conveyed to Garten and a sufficient assertion of the trusteeship of Garten for her. There was no error in the admission of the letter in evidence.
The defendants contend that by the deed from Emery to E. S. Garten, their ancestor, Garten acquired absOlute title to the land, and that upon his death they inherited absolute title thereto under section 6 of the chapter relating to trusts and. powers. (Gen. Stat. 1901, § 7880.) In support of this contention Ingham v. Burnell, 31 Kan. 333, 336, and Gee v. Thrailkill, 45 Kan. 173, are cited. In Ingham v. Burnell three persons paid an equal portion of the purchase-price of a tract of land and had it conveyed to one of the three. The court held that the transaction did not constitute an express trust, but in effect that the party receiving the conveyance held the land as a resulting trust for himself and the other two, and intimated that the plaintiff in that action could have maintained an action in partition for a portion of the land. In Gee v. Thrailkill a husband and wife, owners of certain- land, conveyed it to another by warranty deed, with only a verbal understanding that the grantee might sell or mortgage the property and pay the purchase-price or money so, received over to the grantors. This court held that the verbal contract attempted to create an express trust, and that an express trust concerning real estate, to be valid, can be created only in writing. The latter case is not pertinent to the questions here involved; the former inferentially sustains the contention of the plaintiff herein.
In the early case of Franklin v. Colley, 10 Kan. 260, the provisions of the statute involved herein, which have not since been phang'ed, were fully discussed and determined, and this decision has been cited in this, court many times with approval, and has never been reversed. Paragraphs 1 and 2 of the syllabus read as follow:
“While section 8 of the act concerning conveyances, sections 5 and 6 of the act relating to frauds and perjuries,'and section 1 of the act concerning trusts and powers, make void every parol agreement which attempts to create an estate in lands, yet said sections do, not make void an estate which results from, or which is, created by, operation of law.
“When it is made to appear that, by agreement, and without any fraudulent intent, the title to real property is made to or shall vest in one person, and that such person was to hold said land, or some interest therein, for the use and benefit of the party paying the purchase-money, or some part thereof, the law implies a trust in favor of the latter party, and the person so holding such title will be declared a trustee, and will be decreed to execute a conveyance of the land or interest. so held to the party equitably entitled to the same. And in such case the said ‘agreement’ need not, nor need any part thereof, be in writing. Section 1, ch. 114, Gen. Stat., relating to ‘Trusts and Powers,’ providing that ‘no trust concerning lands’ ‘shall be created unless in writing,’ expressly excepts ‘such as may arise by implication of law.’ ” ,
^ It is contended in this case that the plaintiff did not pay Emery the consideration for the conveyance of the land to Garten, but that the consideration for the con-i veyance of the land was the- cancelation of a debt from Emery to Vinson; hence that this case does not come within the exception. Technically this is true. It is. too technical to meet the demands of equity. If A owed B one dollar and B owed C one dollar and C owed D the same amount, and all the parties mutually agreed that upon the payment of one dollar from A to D all of the debts should be satisfied, and A should accordingly make the payment to D, thereafter no one of the creditors could maintain an action against his debtor for the recovery of the one dollar which the latter had owed, although not one of the debtors had paid one' dollar to his own creditor.
It is further correctly said that the evidence shows, that the plaintiff was in England at the time and knew nothing of this arrangement, and could not have consented to it at the time of the conveyance of the land to Garten; and, further, that there is no evidence that she ratified the transaction. This is true, except that there, is a presumption where a conveyance is made to a person without his knowledge and which is to his benefit, that he accepts such conveyance, unless upon being: notified thereof he promptly repudiates it. The bringing of this action is also conclusive evidence of a ratification of the arrangement at the time of the commencement of the action, and it relates back to the time of the making of the conveyance. There is, also, the further circumstance that Vinson testified that he had two or three letters from the plaintiff in regard to the matter which were in the possession of her attorney,, who was in court. The plaintiff could not use her own letters in evidence, and the defendants omitted to demand the production of the letters that they might introduce them in evidence. It is a general rule that where one assumes to act for another, as did Vinson for the plaintiff in arranging that Garten should hold the land' in trust for her, and the beneficiary is thereafter notified of the transaction and ratifies it, such ratification relates back to the time of the transaction. It is an uncontroverted fact of this case that Garten, the father of the defendants, paid no consideration whatever for the conveyance of the land to him. By the conveyance he held only the bare legal title, and his letter shows he understood he was holding such title in trust for the plaintiff, and the defendants as his heirs by his death acquired no greater right to the land than he had. The trust imposed upon him was not an express trust, but was a trust resulting by the operation of law.
The judgment of the court accords with equity, both as to the heirs and as to Vinson, and is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The plaintiff in error filed her petition in "the district court of Franklin county, which, omitting "the title, reads:
“Plaintiff for a cause of action against the above-named defendant states:
“That on the 9th day of November, 1907, at the town ■ or city of Pomona, in Franklin county, state of Kansas, William L. Iman departed this life; that at the time of his death he was an inhabitant and resident of the ■county of Miami, state of Kansas, and was the owner and possessor of certain personal property in said Miami county.
“Plaintiff further states that on the 21st day of November, 1907, she, who was then and is now the widow -of the said William L. Iman, deceased, was duly appointed and duly qualified as the administratrix of the ■estate of the said William L. Iman, by the probate court of Miami county, Kansas, and at the time of the filing of this petition she is the duly appointed, qualified and acting’ administratrix of the estate of the said William L. Iman, deceased.
“Plaintiff further states that at his death the said William L. Iman left the following-named heirs, all of whom are now living, at the time of filing this petition, viz., this plaintiff (his widow) and a son, Emery V. Iman, about one year old.
“Plaintiff further alleges that the Missouri Pacific Railway Company is a corporation doing business in the state of Kansas, and maintains and operates a line of railway extending from Kansas City, in the state of Missouri, into and across the state of Kansas, into the state of Colorado, and for all purposes of business is a citizen of the state of Kansas; that a line of said defendant’s railway system extends into and across this, Franklin county, Kansas; that on the 9th day of November, 1907, and at the time of filing this petition, the said defendant maintained stations and station agents on, and operated passenger- and freight-trains over, its said line of railway extending through this county.
“Plaintiff further states that on the said day of November, 1907, and for about two months prior thereto, her decedent, the said William L. Iman, was in the employ of said defendant as a brakeman on freight-trains; that prior to November 9, 1907, his run was from Osawatomie to Kansas City and return; that November 9, 1907, the defendant for the first time sent plaintiff’s said decedent on a run west from Osawatomie to Council Grove, as a brakeman on a freight-train; that at Pomona, in Franklin county, Kansas, on the said 9th day of November, 1907, at about 7 o’clock P. M., being dark, plaintiff’s said decedent, William L. Iman, while in the proper and ordinary discharge of his duties as such brakeman, and while attempting to cross the defendant’s railway track, for the purpose of reaching the other side of the track to gain a position from which he could signal the defendant’s engineer, who was on the defendant’s locomotive which propelled and operated the defendant’s freight-train, and while the plaintiff’s said decedent and the other members of said train crew was engaged in switching cars at said place, caught his fdot in the frog of the switch in defendant’s line of railway, and on account of the sole of his shoe catching under the flanges of the rails he was unable to extricate his foot before he was caught by a portion of said freight-train that was then being backed up for the purpose of being coupled to other cars then and there standing on defendant’s track; that the said cars that were being backed knocked said decedent down on the track, ran over him, crushing and mangling his body and instantly killing said decedent; that the death of decedent was then and there wholly caused by the negligent manner in which defendant maintained its road-bed, track and switch at said point,, by not having the frog of the switch and guard-rail blocked, where the rails come close together, so an employee’s foot, while engaged in operating its trains, could not get caught under the flanges of the rails; that this defendant for a long time prior thereto had an opportunity to know and did know that the switch at said point was in a dangerous and unsafe condition; that said decedent did not know and did not have an opportunity to know the unsafe condition of said switch and was without negligence on his part.
“Plaintiff further states that the defendant, by failing to have the proper blocks in the frog of its switch between the guard-rail and the other rail in its track, failed to use ordinary care for the protection of its employees, and failed to use the ordinary degree of care which on said date and for a long time prior thereto had commonly been in use by many of the different railway systems in the state of Kansas.
“Plaintiff further states that at the time of his death decedent was 22 years of age, was sound mentally and physically, was her only means of support, and at the time of his death was earning about eighty ($80) dollars per month.
“Plaintiff further alleges that the said defendant, the Missouri Pacific Railway Company, as aforesaid, did negligently and carelessly cause the death of plaintiff’s decedent, the said William L. Iman, to the damage of plaintiff as administratrix as aforesaid in the sum of ten thousand ($10,000) dollars, and for costs of suit and other proper relief. R. C. Miller,
Attorney for Plaintiff.”
To this petition the defendant filed a general demurrer, which on hearing was sustained, and, the plaintiff electing to stand on her pleading, judgment was rendered against her for costs.
The contention of the plaintiff is that the court erred', in its ruling on the demurrer. The defendant says “the only question to be determined is whether or not the failure on the part of the defendant company to adopt a system of blocking its frogs and switches is negligence per se,” and that such failure is not of itself negligence.
If from the facts stated in the petition it'may clearly be said that the deceased assumed the risk of danger at the time of his employment, or afterward by continuing in the employment without objection, knowing of the danger from the unblocked frog, or knowing that the frogs and the guard-rails of the defendant’s railroad were all or generally unblocked, then such assumption of risk would be a waiver of the negligence of the defendant, if it be negligence, in failing to block the frog and the guard-rail. (See Rush, Adm’x, v. Mo. Pac. Rly. Co., 36 Kan. 129.) The petition, however, expressly alleges that the defendant had an opportunity to know and did know, and the deceased had no opportunity to know and did not know, that the switch at the place of the accident was in a dangerous and unsafe condition.
The defendant undertakes to draw inferences from other allegations of .the petition to overcome these positive statements. But the allegation that deceased had been employed as a brakeman on the defendant’s railroad between Osawatomie and Kansas City does not justify the inference that he was an experienced railroad hand. Nor does the fact that the switch where the accident occurred was not blocked justify the inference that none of the switches between Osawatomie and Kansas City was blocked or that the defendant had not adopted this device on any portion of its system. At any rate, under the liberal rule in this state of construing pleadings attacked by demurrer, inferences, unless practically irresistible, are not indulged to overcome positive averments inconsistent therewith. We conclude that the petition as a whole does not show that the decedent assumed the risk.
(See Hoffmeier v. Railroad Co., 68 Kan. 831; Railway Co. v. Bancord, 66 Kan. 81; Lee v. Mo. Pac. Ry. Co., 195 Mo. 400; Rush, Adm’x, v. Mo. Pac. Rly. Co., 36 Kan. 129; Southern Pacific Company v. Seley, 152 U. S. 145.)
If it is a matter of common knowledge that the device of blocking lock-rails and switches is a beneficial safeguard against injury to the employees of railroad companies and causes no considerable hazard to the public while traveling upon the trains, and that some such device can be installed without an unreasonable expenditure, then the court should take judicial notice of the facts and declare the failure to adopt such device negligence per se. Otherwise, and if the facts are in doubt, the court should not so declare. It may be that in railroad yards where there are many switches over which employees in the discharge of their duties have frequent occasion to pass at all hours of the day and night, and over which trains do not usually pass at great speed, the exercise of ordinary care would require the company to block the frogs, while it could not reasonably be required at a small station on the line. The greater the danger the greater the care required is a familiar rule. That there is danger to trainmen in passing over unblocked frogs this and many other cases attest. That the matter is regulated by statute in some states may be said to be génerally known. But we can not yet say, under the bare allegation of facts pleaded in this case and in the absence of a statutory requirement, that the omission to block the frog in question was negligence per se. It would seem that cinders, which the railroads have in abundance, might be utilized to safeguard employees without danger of derailing trains. But this, also, is a matter for expert evidence. (See Missouri P. R. Co. v. Baxter, 42 Neb. 793; Donegan v. Baltimore & N. Y. Ry. Co., 165 Fed. 869.)
In the petition it is alleged that the. death of deceased was wholly caused by the failure of the defendant to have the frog of the switch and the guard-rail blocked, and that therein the defendant failed to use ordinary care for the protection of its employees. This presents a question of fact, which if admitted or established by evidence should entitle the plaintiff to judgment, and if denied presents an issue for the determination of a jury. (See O’Neill v. Chicago, R. I. & P. R. Co., 66 Neb. 638; Richmond & Danville R. R. Co. v. Weems, 97 Ala. 270; Huhn v. The Mo. Pac. Ry. Co., 92 Mo. 440, and cases there cited.)
The order sustaining the demurrer is reversed, and the case is remanded with instructions to set aside the judgment and to overrule the demurrer. | [
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Per Curiam:
This is an original proceeding in quo warranto, brought by the state to oust the defendant from doing business in the state as a foreign building and loan association without procuring a certificate of authority from the bank commissioner, as the law requires. (Gen. Stat. 1901, § 1421.) It is admitted that the defendant is doing business in the state, and that no such certificate has been procured, but the defendant denies that it is a building and loan association.
The legislature has prescribed a scheme for domestic concerns of this character, but it is not necessary that the plan of a foreign association be identical with that provided for in the statute to subject such association to the law requiring a license. Nor is it necessary that the scheme of the foreign association should conform to that of any other already in use, provided in essence and effect such association performs the functions and accomplishes the purposes for which building and loan associations are usually organized. That the defendant organization clearly does. Its charter is- studiously blind as to the object of its creation. The plan does appear, however, in an “investment contract” which the defendant issues and sells in the place of shares of stock. It is not necessary to encumber the reports with a copy of this instrument or a feature-by-feature analysis and discussion of its provisions. It is unique, presents a system differing in many formal respects from that of building and loan associations generally, and eliminates altogether some of the incidents of ordinary plans. But the vital and essential features of even the type prescribed for Kansas associations appear, and the court finds that the defendant is a foreign building and loan association, has procured no certificate of authority to do business in this state from the bank commissioner, is therefore doing business in the state contrary to law, and ought to be ousted. Judgment accordingly. | [
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The opinion of the court was delivered by
Benson, J.:
The appellant was convicted of maintaining a common nuisance and of selling intoxicating liquor in violation of law. He alleges’ various errors.
The motions to quash the information and in arrest of judgment were properly denied under the rules stated in The State v. Seeger, 65 Kan. 711, and The State v. Giroux, 75 Kan. 695.
Error is alleged in impaneling the jury. One of the jurors, in answering questions as to whether the fact that-a man was charged with an offense would raise in his mind a presumption of guilt, gave seemingly contradictory answers evincing some misapprehension. Thereupon the court informed the juror of the presumption of innocence, and stated the rule to be given in the instructions, and the juror then made satisfactory answers to further questions asked by the court. Upon his whole examination it appeared that he was a competent juror.
The count alleging the maintenance of a nuisance charged the defendant with keeping and maintaining a place where intoxicating liquors were kept, sold, bartered and given away in violation of law, and where persons were permitted to resort for the purpose of drinking such liquors as a beverage in violation of law. The defendant moved for an order requiring the state to elect upon which one of these charges it relied for a conviction, which was denied. Only one offense was charged in this count. A person may maintain a nuisance by keeping a place where such liquors are kept for the unlawful purpose, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage; and both of these unlawful acts may be charged conjunctively, and when so charged an election should not be required. (The State v. Schweiter, 27 Kan. 499; The State v. Reno, 41 Kan. 674; The State v. Bush, 70 Kan. 739; The State v. Giroux, 75 Kan. 695.)
Complaint is made of instructions referring to the fact that a nuisance may be committed by keeping a place of resort for the illegal purpose or where intoxicating liquors are kept for illegal sales. It is said in the brief that there was no evidence “that defendant committed or maintained the nuisance in each of the ways or the manner mentioned.” It was not necessary that there should be proof that he committed the offense in each of such ways. If the nuisance was maintained in any way set out in the information and specified by the statute, it was sufficient. Besides, the evidence is not abstracted, and we must presume that it warranted the instructions.
In the written instructions given the court informed the jury that no inference of guilt could be drawn from the omission of the defendant to testify. It seems from the abstract that the court repeated this instruction orally. This did not violate the rule which requires the instructions to be in writing. They were in writing. The oral repetition of one, after reading all, could not prejudice the defendant. The reading may have been imperfectly done, in which case a repetition was desirable. It could make no difference whether it was reread or repeated from memory.
In the concluding argument the county attorney said: “There was not a syllable of testimony to contradict the evidence of the sale of intoxicating liquor on the 7th day of October, 1906.” This, it is alleged, violates the statute. (Crim. Code, § 215.) The prosecuting attorney is not permitted to refer to the failure of a defendant to testify, and he did not. The testimony óf a defendant is not in all cases the only way in which witnesses against him may be contradicted. The statute does not preclude a fair argument or legitimate inferences (The State v. Yordi, 30 Kan. 221), and there is nothing in the record to show that the statement made was untrue.
An instruction was asked to the effect that one in the bona fide possession of intoxicating liquor may use it as he sees fit or give it away if not done as a shift or •device to evade the law. It does not appear that the refusal of this request was erroneous, (1) because it may not have been warranted by the evidence, and (2) because it may have been included in the instructions .given, the abstract failing to show the absence of such an instruction.
Finding no error in the proceedings, the judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
It seems clear from the provisions of the lease that it contemplated the production of both gas and oil, and whether from the same or separate wells was not considered material. In either case the parties would naturally expect to receive the benefits due them under the provisions of the lease. Some of the wells in controversy produced both oil and gas.
The defendants seem to understand that in such a case the well must be regarded either as a gas-well or an oil-well, depending upon which predominates. The district court, in its findings, appears to have taken the same view. Upon this conclusion a finding seems to be predicated to the effect that if oil predominates it is an oil-well, and gas may be used by the defendants, for their own purposes without accounting to the lessors for any part thereof..
It is claimed that the defendants are liable for gas only when there is a quantity sufficient to justify the expense of saving it and casing the well for that purpose. There is a' clause in the lease which, standing-alone, would apparently justify such a conclusion, but immediately following this clause, and apparently for-the purpose of avoiding such a construction and to prevent any trouble or misunderstanding as to when a. well was producing the stipulated quantity of gas, the further condition was added: “If, however, second party shall use, market or sell gas from any well producing gas, it shall pay,” etc. This indicates that gas shall be paid for if used by the defendants for any purpose other than for drilling, the purpose for which the gas is used by the defendants, rather than the, amount produced by the well, being the test as to when rent shall be paid. If the liability of the defendants for gas used by them depended upon the quantity produced by the well, a controversy might arise whenever-the lessors insisted that there was enough to justify casing the well for that purpose. This provision obviates such trouble and embarrassment, and apparently was inserted for that purpose. The defendants have had the benefit of the lessors’ gas, and no good reason has been shown why it should not be paid for. The fact that this might compel the defendants to pay rent, for gas and royalty for oil out of the same well does not seem important. The lessors should of right -have, what oil and gas their premises produce, whether it is taken from one well or several.
The second defense of the answer fails to state a defense to the petition, and the demurrer thereto should have been sustained.. The judgment of the district court is reversed, with direction to sustain the demurrer to the second defense of the answer and proceed in accordance with the views herein expressed. | [
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The opinion of £he court was delivered by
Mason, J.:
In 1874 a dam was erected across the Smoky Hill river, upon land which was purchased by Jacob Brown in 1894. The dam was then partly washed out, but he rebuilt it and maintained it until 1904, when a part of it was again washed away. As he was preparing to rebuild it John Whitehair and other upper riparian landowners sought to enjoin him from doing so. Having been denied relief, they prosecute error.
The defendant claimed that the dam had been maintained continuously (except for the intervals due to the washouts) from the time of its construction, at the same height at which he proposed rebuilding it.. The trial court so found, and of this the plaintiffs vigorously complain. There was very positive testimony to the contrary, and even that of the defendant’s witnesses was somewhat indefinite and contradictory. But after a careful reading of the abstracts we can not say that there was an entire lack of evidence in support of the finding, and it must therefore stand.
The dam having been maintained for more than fifteen years, the owner’s right to continue it became unassailable by those whose property had been encroached upon to the same extent during all of that time. (8 A. & E. Encycl. of L. 711; 1 High, Inj., 4th ed., § 799; 2 Farnham, Waters & Water Rights, § 558.) The fact that it had been out of repair and out of use for a considerable period at the time Brown purchased it is not important, for the prescriptive right had already been ■perfected, and was not lost by an interruption in its' exercise. (8 A. & E. Encycl. of L. 714; 2 Farnham, Waters & Water Rights, § 562.) The plaintiffs, however, showed that in 1903 and in 1904 a portion of "their lands above the dam were overflowed for the first time, and they maintain that the injury thereby occasioned was new and not within the protection of the prescription. There is some conflict in the authorities as to the rule applicable in such a case. The majority •of the decisions support the test thus formulated in volume 8 of the American and English Encyclopaedia ■of Law, at page 713:
“The extent of the right to flow the lands of another ■ acquired by prescription is not determined by the height ■of the structure of the dam, but is commensurate with the actual enjoyment, of the easement, as evidenced by the extent to which the land of the owner of the servient tenement was habitually or usually flowed during the period of prescription.”
As stated in a note to this text:
“In several states the rule has been laid down that a prescriptive right to flow lands by a dam is measured 'by the efficient height of the dam, in its ordinary action ■ and operation, during the period of prescription.”
(See, also, 2 Farnham, Waters & Water Rights, § 559c.)
The actual conflict may not be so great as might appear. In some of the cases the right to augment the actual flooding of lands has been denied because the in- ■ crease was occasioned by some change in the character or use of the dam, by which it became a greater obstruction to the flow. To make such a change would •obviously be equivalent to raising the dam — it would add to its efficient height — and would be wrongful on any theory. We need not determine whether, where a dam has been maintained in exactly the same condition for the period of limitation, and, by reason of climatic changes which enlarge the stream, the back~water spreads to land not formerly overflowed, a cause of action accrues to the person thereby injured. This proceeding was not brought to recover damages, but to obtain an injunction. The record shows that in the flood of 1903 the plaintiffs’ lands would have been overflowed to about the same extent had the dam not been in existence. The court did not find and the evidence did not compel the conclusión that the conditions occasioning the overflow of 1904 have become permanent, or that the lands covered for the first time in 1903 are likely to be subject to frequent or even occasional inundation in the future. To establish their right, to an injunction it was necessary for the plaintiffs to satisfy the court that there were reasonable grounds to fear the recurrence of the new injury with such frequency as seriously to affect the value of their lands, or that other considerations rendered their remedy at law inadequate. (See 2 Parnham, Waters & Water Rights, § 582a, and cases there cited.)
The dam was originally employed in the operation of a flour-mill, but its principal purpose at this time is to furnish power for an electric-light plant. The plaintiffs contend that the right acquired by the maintenance of the dam for the period of limitation is restricted by the use to which it is put during that time. Where the right to erect a mill-dam is acquired by condemnation, no change of use is permissible. The power created can only be applied to the purposes stated in the petition by which such proceedings are begun, because the statute (Gen. Stat. 1901, ch. 66) so provides. There is no presumption, however, that the dam in question was erected under the mill-dam act. (Vickery v. City of Providence, 17 R. I. 651.) The right acquired by prescription does not depend upon the use to which a. dam is put, and the riparian owners can make no complaint of a change in that respect, unless of course it is. one which results in an increased obstruction to the flow of the stream, which is not found to be the case here.
“The right to use the water is limited to a use which will not affect the rights of the one against whom the right is claimed, any more-than his rights were affected during the time the right was being acquired. • The extent of the privilege acquired is determined by the actual user while the right was being, acquired. But he is entitled to exercise the prescriptive right to its full extent, although some right had been acquired by grant before the adverse use was made. And, so long as he keeps within the limits of the right which he has acquired, he may make such changes in the manner of using his right as he desires.” (2 Farnham, Waters & Water Rights, § 542.)
Where the law authorizes the building of a dam without the institution of any condemnation proceedings, and leaves to the owners of the lands thereby flooded only the remedy of seeking damages for such injury as they might suffer, a very different situation is presented. In a case arising under such conditions it was held that, the erection of the dam having necessarily been rightful by virtue of the statute, its maintenance could give rise to no presumption of a grant. (Tinkham v. Arnold, 3 Maine, *120.) But even that decision was criticized and disapproved in Williams v. Nelson, 40 Mass. 141.
The plaintiffs seek to invoke the principle that a right can not be acquired by prescription to maintain a dam which creates a public nuisance, but if there is anything in the evidence tending to bring them within the protection of that rule it is not covered by the pleadings and findings.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by the New Era Milling Company to recover $303U3 from the Missouri, Kansas & Texas Railway Company for alleged unreasonable, unjust and excessive freight charges on the transportation of thirty-one cars of flour. During the period of about two years the flour- was. shipped by the milling company from Arkansas City, Kan., to points in Oklahoma and Indian Territory. The shipments were started over the Atchison, Topeka & Santa Fe and the St. Louis & San Francisco railroads and delivered to the defendant company at junction points, and carried- by that company from these places to points of destination. While there were no-agreements or arrangements of any kind made between the initial companies and the defendant company for the transportation of the flour, the cars delivered to the initial companies were carried through to destination and the flour shipped on a single bill of lading. There were no joint rates for such shipments, but the rates charged were composed of the local rates of the initial carrier from the starting point to the junction point and local rates from the junction point to the destination. The shipments went through from origin to destination without any further direction or control of the plaintiff, and the charges for transportation for the through trip were included, -as we have seen, in one bill bf lading, which was presented by the defendant company to the consignee at destination upon the delivery of the flour and upon which that company collected the charges for the whole carriage.
In making a charge for its proportion of the through shipment the defendant required the plaintiff to pay five cents more per hundred pounds on the shipments coming to it over the Atchison, Topeka & Santa Fe and the St. Louis & San Francisco railroads than was charged for shipments originating on its own line and those of the Denver, Enid &-Gulf and the St. Louis, El Reno & Western railroad companies. These charges, it was alleged, are unreasonable, unjust and illegal, and for the sum of the charges a judgment was asked.
The defendant company answered that the shipments from Arkansas City, Kan., to points in Oklahoma and Indian Territory were interstate, and that defendant’s carriage of the cars of flour in question were parts of interstate shipments; that the charges for its share of the transportation were made under schedules of rates duly adopted, published and filed with the interstate commerce commission, and were therefore subject to the interstate commerce act; and that claims that charges under these schedules are excessive and unreasonable are beyond the jurisdiction of the state courts. It was alleged that the charges complained of, except for one shipment, weré made under the terms and conditions of tariff No. 2855 and a supplement of the same, which were in existence when the shipments were made, and that the tariff and supplement were duly adopted, published and filed with the interstate commerce commission. The remaining shipment was made under tariff No. 3025, which was filed with the interstate commerce commission. It was in force at the time the shipment was made, and it stated separately the terminal charges and all rules and regulations which changed or' affected the rates, and was posted in the depots and stations and was therefore accessible to the public.
The objection that a state court has no jurisdiction in cases of this kind was overruled, and upon the facts of the case judgment for the amount of the claim was awarded to the plaintiff. Only one contention is made here, and that is that the question whether the freight charges were unreasonable and unjust is for the determination of the interstate commerce commission and is entirely outside the authority of a state court. It must be held that the district court was without jurisdiction to adjudicate the claim of plaintiff. The transportation of flour, received by the railroad companies in Kansas to be shipped over their own and connecting lines, on through bills of lading and by continuous trips, to points beyond the state, is to be regarded as interstate commerce, and each of the companies as en gaged in such commerce. Do the facts in this case bring it within the operation of the interstate commerce act? In a former case between the same parties the same contention was made, but how the rates applied in that case were arrived at the record did not show. They were not fixed by any tariff that was introduced in evidence and there was nothing to show that the rates had been established under the interstate commerce act, and hence the claim for the excessive charges was held to be enforceable in any court of general jurisdiction. (Railway Co. v. Milling Co., 79 Kan. 435.) Here the defendant had adopted, published and filed schedules of rates with the interstate commerce commission, under which the freight charges in .controversy were exacted. Having filed these schedules with the commission they became the established rates, and the railway company filing them was required to charge these rates so long, as they were in force. The determination of the question whether, the charges of which plaintiff complains were unreasonable and illegal necessarily involved the rates promulgated under the interstate commerce act. The supreme court of the United States has decided that when a rate is so established, and there is a claim by a shipper that a freight charge under it is unreasonable and unjust, his redress must be through the interstate commerce commission. (Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204 U. S. 426; Texas & Pac. Ry. v. Cisco Oil Mill, 204 U. S. 449; Southern Railway Co. v. Tift, 206 U. S. 428; Illinois Cent. &c. R. R. v. Inter. Com. Comm., 206 U. S. 441; Swift v. Philadelphia & R. R. Co., 64 Fed. 59; Kinnavey v. Terminal R. Ass’n, 81 Fed. 802; Van Patten v. Chicago, M. & St. P. Ry. Co., 81 Fed. 544.)
It is suggested that one of the tariffs was invalid because it did not contain a proper classification, and did not state the terminal charges separately, and, further, that it was not duly posted. There is nothing substantial in the objection to classification, and as far as the terminal charges are concerned it may be that there are no such charges to be stated. The tariff filed will be presumed to contain all charges which are to be made. The failure properly to post the tariff filed with the interstate commerce commission in railway depots and stations does not destroy its validity nor would it relieve the railway company from observing and enforcing such tariff. It has been held that “such posting is not a condition precedent to the establishment of the rates but a provision for affording facilities to the public for ascertaining the rates actually in force.” (Texas & Pac. Ry. v. Cisco Oil Mill, 204 U. S. 449, syllabus.)
The judgment of the district court is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Mason, J.:
The Chicago Lumber & Coal Company prosecutes error from a ruling sustaining a demurrer to its petition seeking the enforcement of a mechanic’s lien. It contends that the petition states a cause of action against the owner of the property, Mrs. J. H. Washington, upon the theory that material for her building had been sold by the plaintiff directly to her. This theory, however, is inconsistent with the petition, which alleges that she entered into a contract with Moore, Robison & Co. to construct the building, and that this firm bought of the plaintiff the material for which the lien is claimed, and used it for that purpose. The pleading also avers in substance that the material was so bought and used with th'e knowledge and consent of Mrs. Washington; that the account for it, which had been opened against Moore, Robison & Co., was afterward transferred, for the plaintiff’s convenience, to an account against her husband, who acted as her agent; and that the material was furnished'4 by the plaintiff to her through such firm in the manner and for the purpose aforesaid. These averments, however, do not amount to a statement that the material was actually sold to Mrs. Washington, and are therefore insufficient either to charge her -personally with the indebtedness or to form the basis for establishing a lien on the theory suggested. No liability against the owner arose from the fact that she consented to the contractor’s buying the material from the plaintiff and using it in constructing her house. The transfer of the account to the name of her husband, for the convenience of the plaintiff, was a mere matter of bookkeeping, and could not change the real nature of the transaction. The statement that the material was furnished to the owner, through the contractor, “in the manner and for the purpose aforesaid,” must be con strued to mean merely that it was sold to the contractor, who used it in building the owner’s house, and in that way “furnished” it to her.
The remaining question is whether the statement filed is sufficient to support a subcontractor’s lien. The statute requires such a statement to set forth “the amount due from the contractor to the claimant, and the items thereof as nearly as practicable, the name of the owner, the name of the contractor, the name of the claimant, and a description of the property upon which a lien is claimed.” (Civ. Code, § 632.) All these requirements, excepting that relating to the name of the contractor, are sufficiently met. The portion of the statement material to the present inquiry reads as follows:
“That . . . J. H. Washington was the owner of the following real estate . . . ; that . . . J. H. Washington and Moore & Robison did purchase of the said Chicago Lumber & Coal Company certain building material, according to schedule hereto annexed, to be used in the construction of a certain dwelling-house on the above-described real estate; that the said Chicago Lumber & Coal Company did furnish the material applied in, about and upon the buildings and improvements aforesaid, an -itemized statement of which is attached hereto and made a part hereof, marked ‘Exhibit A’; that said material was actually used in the construction of and erection of said buildings and improvements . . . ; that there is due and owing the said Chicago Lumber & Coal Company from the said J. H. Washington and Moore & Robison, for said materials, the sum of $1400.85.”
The allegations charging the owner with direct personal liability for the debt are not appropriate to a statement for a subcontractor’s lien; they add nothing to it, but they do not vitiate if it is otherwise sufficient. (Cunningham v. Barr, 45 Kan. 158; Hydraulic Press Co. v. McTaggart, 76 Mo. App. 347, 352.) The name of the contractor, however, is an essential part of the statement, the omission of which is fatal. (27 Cyc. 179.) And it is not enough that the name of the person who is in fact the contractor shall appear somewhere, in the statement; in addition to this the statement itself must indicate, either expressly or by reasonable implication, that the name in question is that of the contractor. (Sash Co. v. Heiman, 71 Kan. 43.) In the case just cited the lien statement read:
“The amount claimed . . . is . . . for material furnished as aforesaid under contract made by and between this claimant on the one part and the owner of said premises and a contractor, J. L. Buckner, between whom and the owner of said premises some arrangement had been made by which said Buckner was to assist in the purchase of the material, aforesaid, the exact nature of which arrangement is unknown to this claimant.” (Page 45.)
The court said:
“The statute provides that ‘the risk of all payments made to the original contractor shall be upon such owner until the expiration of the sixty days herein-before specified’ — that is, from the date when the material was last furnished. No risk was incurred by payment to Buckner by the church trustees [the owners], because plaintiff does not assert in the lien or notice that Buckner was the ‘original contractor.’ There seems to have been a studied purpose of the lien claimant not to place itself in the attitude of a subcontractor dealing alone with Buckner. It so phrased the lien statement that it might be available' if the evidence showed it to be either the original contractor or a subcontractor.” (Page 48.)
The statement in the present case, considered as one for a subcontractor’s lien, is defective in this; that while it recites that the claimant sold to Moore & Eobison certain material which was intended to be used in building a house on Mrs. Washington’s land, and was in fact so used, it does not say that Moore & Eobison sustained any contractual relations with Mrs. Washington. Nor can that fact be inferred from the mere circumstance of their incurring an obligation for the betterment of her property. They may have been tenants, or occupants under adverse title, or for various reasons may have had motives of their own for desiring the improvement made. Like any other non-penal statute, that relating to mechanics’ liens is to be construed with reasonable liberality to promote its object, but its requirements must be substantially complied with. Omitted matters of substance can. not be imported into the lien statement upon a mere weighing of probabilities. Where the claimant is a subcontractor it is especially appropriate that a substantial compliance with the forms of the law be insisted upon, for in that case the debt the owner is called upon to pay is not his own but that of the contractor.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The facts in the two cases being the same; the opinion in The State v. Harsha, ante, p. 72, is adopted and followed in this case'. Two additional questions are presented herein:
First, the preparation of the ballots: Following the reasoning in The State v. Harsha, supra, it appearing that the plaintiffs have been nominated by petition for the several offices for which they respectively desire to be candidates at the ensuing city election, the petitions should be filed and the ballots be prepared with their names printed thereon as candidates for the respective offices in accordance with the statutes in existence prior to the enactment of chapter 82 of the Laws of 1909, and a blank column should be left on the ballot to enable an elector to write in the name of any candidate" he may desire to vote for whose name does not appear upon the printed ballot. There is nothing in chapter 82 of the Laws of 1909 to prevent the leaving of such a blank column on the ballot, and, while the question is not involved in this case, it is suggested, as the freedom of electors to vote as they choose is a basic principle in our form of government, that such a column should be left in future elections in cities that have adopted the commission form of government.
Second, the defendants contend that plaintiff G. W. Winans is not now, and has not been for the last two years, a bona fide owner of real estate in the city of Hutchinson, and for that reason does not possess the qualifications to hold the office to which he seeks to be elected. Relating to the qualifications of the elective officers of a city under the commission form of government, section 7 of chapter 123 of the Laws of 1907 provides:
“The mayor and each of said commissioners shall be not less than twenty-five years of age, a citizen of the United States, and for .three year.s immediately preceding his election a resident of such city, and for two years prior to his election a bona fide owner of real estate in said city.”
On the same subject section 10 of chapter 82 of the Laws of 1909 reads:
“The mayor and each of said commissioners shall be not less than twenty-five years of age, a citizen of the United States, and for two years immediately preceding his election a resident of such city.”
It will be observed that the latter act omits the requirement that any of these officers shall have been, for two years prior to his election, a bona fide owner of real estate in the city. The other required qualifications are the same, and it can not be presumed that the omission of this one was ah oversight of the legislature, but it must be presumed that the legislature intended by the reenactment of the section with this requirement omitted to amend the former statute in this respect.' It is therefore held that the objection assigned to the qualification of Mr. Winans to hold the office for which he is a candidate is not well taken.
A peremptory writ of mandamus is allowed as prayed for. | [
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Per Curiam:
This is an action of ejectment involving the question whether a certain tax deed more than, five years old is void on its face. The objection to the deed is that it fails to state the amount of the delinquent taxes or the amount for which the land was sold. It recites that in September, 1897, it was bid.in for the-county, and that on February 1, 1902, an assignment, was made to G. L. Finn for $9.2.6, being a sum equal to the cost of redemption at that time. It then recites that the subsequent taxes of the year 1897, amounting-to $7.87, and of the year 1898, amounting to $7.70, and of the year 1899, amounting to $6.41, and of the year-1900, amounting to $5.74, amounting in the aggregate to $36.98, had been paid by thé purchaser. In the-granting clause of the deed, which was executed on the same day the assignment was made, February 1, 1902, it is recited that in consideration of $51.65, taxes, costs, and interest due on said land for the years 1896, 1897, 1898, 1899 and 1900, paid to the treasurer, the land was conveyed to Finn.
It is impossible to determine from the face of the-deed the amount for which the land was sold or the-amount of the subsequent taxes. From one statement-it would seem that when the certificate was assigned,. on February 1, 1902, the full amount of the taxes for 1896 as well as all subsequent taxes amounted to $9.26, but later recitals show that the- subsequent taxes could not have been included in that sum. The subsequent taxes specified in.the deed as paid amount to $27.72, whereas the deed recites that the aggregate was $36.98. That aggregate appears to equal the amount of the taxes for 1896 and the four items mentioned as subsequent taxes. This, however, does not correspond with the express consideration of $51.65, said to be the total amount due on the land. If this is the correct amount, and if from it are taken the itéms named in the deed as subsequent taxes, it would make the taxes of 1896 $23.93 instead of $9.26. Treating the $36.98 item as the amount of subsequent taxes, that would leave $14.67 as the taxes of 1896, instead of $9.26, and if the $36.98 includes the taxes of 1896 there is still the amount of $14.67 to be accounted for. The items set forth in the deed can not by any computation be harmonized, nor can the amount of subsequent taxes or the consideration for which the sale was made be learned from the recitals of the deed. The court rightly held the instrument to be void on its face. (Robidoux v. Munson, 75 Kan. 207.)
Neither the lapse of time nor the facts in the case furnish any basis for applying the doctrine of estoppel invoked by plaintiffs.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The decision of this case turns upon the validity of the tax deed under which defendants in error claim ownership of the land. Two objections are urged against the deed, which had been recorded for more than five years: First, that' on its face it shows that three separate and disconnected lots were sold together at a single sale; and, second, that it is based upon a tax-sale certificate which included and required the payment of taxes which were not at the time a lien or proper charge against the land.
The first objection rests upon the recital that three pieces of land, “tó wit, lots 15, 16 and 17, block 35,” etc., were subject to sale and sold for the single sum of $3.93. Other recitals speak of “each tract” and “said tracts” as if there were more than one. However, several tracts or lots of land which adjoin may be legally taxed and sold together. From the fact that these lots are in one block and consecutively numbered it is a fair inference that they are contiguous. The action of the officers in bidding in the lots for a gross sum, in making a single charge on all the lots when entering the taxes, interest and penalties for all subsequent years, and in assigning the certificate, tends to show that the lots were treated as one tract and that they are contiguous. The age of the deed justifies'the indulgence of every fair inference of regularity and validity. (Penrose v. Cooper, 71 Kan. 720; Cross v. Herman, 74 Kan. 554; Carson v. Platt, 76 Kan. 636.)
On the second objection it is contended that on its face the deed shows that subsequent taxes which were not delinquent and which could not have been a legitimate charge were included in the compromise and transfer.' It contains the following recital:
“Whereas the subsequent taxes for the following-named years were charged up to said sale as provided by law, amounting to $10.26, as shown by the following statement:
This is followed by a recital that the county commissioners, by resolution passed on the 12th of April, 1898, authorized the assignment of a tax-sale certificate to E. T. Guymon for the sum of $15, “for the taxes for the years 1892, 1893, 1894, 1895, 1896 and 1897,” and then it is recited that on July 21, 1898, Guymon paid the treasurer the $15 and on the same day the tax-sale certificate was executed and assigned to him. A liberal interpretation of the recitals of the deed overcomes the objection made. It appears that.the lots were bid off for the county in September, 1893, that the subsequent taxes for 1893 were entered in the book of tax sales for the year 1893 in September, 1894, and that on each September thereafter, including 1897, the taxes of the preceding year were likewise entered. The compromise was effected on July 21, 1898, when the certificate was assigned to Guymon in pursuance of the order of the, board of county commissioners. The delinquent taxes for the year 1897 had not then been charged upon the book of tax sales, and could not be so charged, under the general provisions of the tax law, until September, 1898. The assignment in this instance was not taken under the general tax law, but was made in accordance with the compromise provision, which is an exception to the general rule. Under it the commissioners may order a compromise of the taxes due on lands bid in for the county and remaining unredeemed for three years, where no one has offered to purchase the land for taxes as the general law provides, and this may be done for any sum less than the amount due thereon, as the best interests of the county may require. (Laws 1893, ch. 110, §§ 4, 5.) By it the commissioners are authorized to compromise and settle for all taxes due at the time on the land, and are not restricted to taxes which have been charged upon the book of tax sales at the September following the time they become due.’ It will be observed, too, that any one desiring to redeem the land between the assignment of the certificate and the execution of the deed is required to pay to the holder of. the tax certificate the amount actually paid on the compromise. The manifest purpose of the legislature was that before the compromise should be made at a reduced cost the purchaser should pay all taxes and clear up' all liens then due upon the land. Now, on July 21, 1898, the taxes of 1897 were due and were a lien upon the lots in question, and hence the commissioners were justified in requiring their payment.
The cited case of Lanning v. Brown, 79 Kan. 103, is not against this view. In that case there were included in the deed the taxes of the year in which the compromise was made, which were not then due, and, of course, were not a lien upon the land. Here all the taxes named as a consideration for the deed were actually due, and were therefore properly included in the compromise.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
JOHNSTON, C. J.:
A j udgment for money was recovered against D. H, Painter and Bettie C. Painter in 1893, on which executions were issued from time to time and returned unsatisfied. D. H. Painter died in 1904, and on December 2, 1907, a motion to revive the judgment as to Bettie C. Painter was made and denied. It was admitted that the judgment had never been revived against the estate of D. Hi. Painter, and it is contended here, as it was in the district court, that the failure to revive the judgment as against the administratrix of the estate of D. H. Painter within one year' after he died absolutely ended its life. On the other hand it is contended that a judgment is a joint and several obligation, and that as a judgment creditor may proceed against each judgment debtor separately the dormancy of the judgment as against the one does not affect the status or liability of the other.
The rules of the common law invoked by the defendant in error have been greatly modified by our statutes. Contracts which were joint have been made joint and several, and specific authority has been given to proceed against one or more of those liable on a joint obligation. (Gen. Stat. 1901, §§ 1190, 1193.) It has therefore been determined that a j udgment against two or more defendants is a several obligation, and that the property of each is liable to execution for the whole judgment debt. In Read v. Jeffries, 16 Kan. 534, it was expressly determined that “a personal judgment against two parties is a joint and several obligation,' and an action can be maintained upon it against either of the judgment debtors separately, and it can in like manner be used as a set-off against either.” (See, also, Stout v. Baker, Sheriff, 32 Kan. 113.) There is nothing in the code provisions relating to revivor indicating that judgment defendants individually liable may not be proceeded against separately or that the failure to revive the judgment as to one will bar a proceeding to keep the judgment alive as to others. It is argued that revivor proceedings are designed to protect the relationships and rights of parties to actions and judgments; that a joint debtor is entitled to contribution if he pays the debt, and likewise a surety has a right to indemnity if he pays the obligation of his principal; and that if a judgment creditor is allowed to ignore revivor proceedings and by his non-action permit a judgment to become dormant as to one he practically defeats contribution and indemnity. In the absence of a statutory provision the rights and relations of judgment debtors is not a matter of concern to the judgment creditor. Having a judgment upon which each is severally liable for the whole, he is entitled to enforce it against either at his option. To require him to institute legal proceedings and become liable for costs and expenses for the protection of judgment debtors as against each other would take away a valuable element of the judgment and greatly impair his rights under it. (Palmer v. Stacy, 44 Iowa, 340.)
The question we have now was. directly involved in Ray v. Brenner, 12 Kan. 105, where a motion was made to revive a judgment rendered against two parties, one as principal and the other as surety. The principal had died and no steps had been taken to keep the judgment alive or enforce it against his estate. It was contended that as the judgment was not enforceable against the deceased principal it could not be revived or enforced against the surety. In deciding the case attention was mainly given to the relations of principal and surety, but it was held that the judgment might be enforced against the surety notwithstanding the death of the principal, and the order of the trial court refusing to revive the judgment as against the surety was reversed. In a proceeding in the federal court for the district of Kansas our statutory provisions relating to joint obligations and the revivor of them were considered, and it was held that •a Kansas judgment might be revived and enforced as against one of two judgment debtors without bringing in or giving any attention to the other. (United States v. Houston, 48 Fed. 206.)
The cases of Ballinger v. Redhead, 1 Kan. App. 434, 440, and Newhouse v. Heilbrun, 74 Kan. 282, have been •cited as opposing the theory of proceeding separately as against judgment debtors. In each of these cases, however, one of the joint plaintiffs had died, and it was held that, the judgment being dormant as to one, it could not be enforced at the instance of tjhe other plaintiff. The distinction between joint judgment plaintiffs and joint judgment defendants is manifest. There the interest and rights of the plaintiffs were joint, not several. No one of them was entitled to the entire demand or right. Each held jointly with his coplaintiffs and had no right which he could separately assert or enforce. Joint judgment debtors, on the other hand, are severally liable for the entire demand, and the property of each is subject to execution for the whole. For instance, two persons hold a promissory note, executed jointly by two makers. Neither of the holders could separately maintain an action against the makers on the note, but both together might maintain an action against either of the makers alone and enforce the collection of the judgment obtained from his property. As the liability of .Bettie C. Painter was distinctly several, and enforceable against her at the option of plaintiff, the judgment may be revived against her although there can be no revivor as against her codefendant.
The order denying the motion to revive is reversed, •and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Mason, J.:
Eva G. Scott obtained a divorce from Chasteen F. Scott. In her petition she had asked to be allowed as alimony a tract of land situated in the county. The parties stipulated, however, that the husband should pay the wife $250, which he did, and that she should also be allowed $20 a month for the maintenance of their two children, if she should be awarded their custody. The decree so far as here important read:
“That the property rights of said parties be settled as per the terms of said stipulation; that plaintiff be "barred from any further alimony in or to defendant’s real or personal property; that she have no right in the real estate set out in the petition; that plaintiff shall have the care and custody and education of the two children, Esther Scott and Fay F. Scott; that the defendant be required to pay plaintiff as a part of the permanent alimony provided in the said stipulation, for plaintiff the sum of twenty dollars per month, on the first day of each month, for maintenance of said children, and that defendant pay the costs of this suit, herein taxed at $12.31, and hereof let execution issue.”
After several years Scott ceased to pay the instalments of alimony. Mrs. Scott then caused execution to be levied upon the land referred to, which he had owned when the decree was rendered, but which he had in the meantime deeded to his brother, Louis Scott. The land was sold under the execution and bid in by Mrs. Scott. Louis Scott then brought suit against her to quiet his title — in effect, to determine the validity of the execution sale — and, being denied relief, prosecutes error. The sole question involved is whether the decree created a lien on the real estate for the payment of the alimony.
.Cases relating to similar questions are collected in volume 2 of the American and English Encyclopaedia of Law, at page 133, and volume 14 of the Cyclopedia of Law and Procedure, at page 783, but for the most part they are so affected by local statutes as to be of little value as precedents here. In Kansas the law (Civ. Code, § 419) makes judgments of courts of record liens on the' real estate of the debtor within the county, and a judgment is defined to be the final determination of the rights of the parties in an action (Civ. Code, § 395). A decree for alimony fits this definition and is within the letter of the statute. Its precise character and effect, however, must be decided in view of this language of the section of the code which authorizes it:
“When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall . . . be allowed such alimony out of the husband’s real and personal property as the court shall think reasonable, . . . which alimony may be allowed to her in real .or personal property, or both, or by decreeing to her such sum of money, payable either in gross or in instalments, as the court may deem just and equitable.” (Civ. Code, § 646.)
The court is thus given absolute control of the matter. It may, within reasonable limits, dispose'of the husband’s property as it sees fit. It may take from him anything he has and give it to the wife. And this necessarily implies that it may create a lien for her benefit upon any real estate he possesses. (Blankenship v. Blankenship, 19 Kan. 159.) Obviously it also has the power to free any particular tract from qll lien, so as to enable the husband to pass a title clear of any claim on the part of the wife. Probably by the use of language indicating such purpose it may give its decree awarding a fixed sum as alimony the precise effect of -an ordinary money judgment, collectable by execution ■and operating as a lien on the husband’s real estate. Rut the question of present moment is, What was the intention of the court in this case? Where alimony is ordered to be paid in instalments, and nothing is said as to the manner of its collection, we think the fair inference is that the court intends the order to be enforced, not by lien and execution — a remedy manifestly ill adapted to the purpose, but by attachment for contempt if payment is not made — a remedy always available (14 Cyc. 799) and ordinarily efficacious. In the language of the decree above quoted there is nothing to indicate an intention to give the wife a lien upon the husband’s land. The words “that she have no right in the real estate set out in the petition” have a contrary tendency. Although the phrase “and hereof let execution issue” may consistently with good usage be deemed to relate to the allowance of alimony, it may with equal propriety be regarded as having reference solely to the judgment for costs. It results from these considerations that the decree for alimony did not create a lien ■on the land, and Louis Scott was entitled to have his title quieted.
In Conrad v. Everich et al., 50 Ohio St. 476, under substantially the same statutory provisions, it was held that a decree for alimony in money payable in gross ■operated as a lien on the husband’s lands within, the county. There, however, the trial court expressly authorized the collection of the alimony by execution, thus indicating a purpose to give the decree the qualities of an ordinary judgment. That case was followed in Goff v. Goff, 60 W. Va. 9 where the same rule was applied-to a decree requiring the payment of alimony in instalments, but the .decision was affected by the fact that ■ the decree itself declared the alimony a lien.
The judgment is reversed, and the cause remanded for further proceedings in accordance herewith.
Graves, J., not sitting. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an action-by the city of Topeka on a bond which was given to it by the First National Bank' of Topeka, Kansas, as a depositary of city funds, and which was executed by M. Snattinger as surety. The bond was given on May 22, 1897, in pursuance of chapter • 37 of the Laws of 1881, as amended by chapter 34 of the Laws of 1883. Under the statute as it existed in 1897 the city of Topeka passed an ordinance declaring that “the Bank of Topeka, the First National Bank, the Central National Bank and the Merchants’ National Bank are hereby designated as the official depositaries of the city of Topeka and that all public moneys of the city of Topeka shall be deposited in said banks.” A few days later the First National Bank tendered the bond in question, signed by the defendant, Snattinger, reciting that the bank had been duly designated by the mayor and council of the city of Topeka as one of the banks in which it was the duty of the treasurer of the city of Topeka to deposit daily all public money coming into his hands. It contained a condition that the bank should safely keep and account for all money coming into its hands belonging to the city of Topeka, and should promptly pay over all deposits of the city on the checks and drafts of the city treasurer. The bond was approved by the city, and under this contract relation the city deposited funds with the bank from day to day from May, 1897, until June, 1905, when the bank became insolvent. During this period of time, and without any other designation or renewal of the bond, the city deposited funds with the bank amounting to hundreds of thousands of dollars, and when the bank suspended payment it held of the city’s funds the sum of $26,241.80. A great part of this amount has been paid by the receiver out of the assets of the bank, and it is to recover'the balance of these funds that the present action is brought against Snattinger. It may be added that Snattinger was a stockholder of the bank during all of the time the bank acted as depositary and he was a director of the bank until 1901. A petition setting up the foregoing facts, including a copy of the bond, was attacked ,by a demurrer, which the court overruled, and upon that ruling error is assigned.
It is insisted that the bond is not a binding obligation because the First National Bank was not named as a depositary in conformity with law. It is first said that the bond recites that it was given under the law of 1881 when as a matter of fact that provision had been repealed. The act of 1881, it will be observed, is a general charter act providing for the government of cities of the first class. In 1883 a few of the sections of the act of 1881 were amended and the old sections declared to be repealed. Among them was the section relating to the care of city funds, including the designation of banks in which to deposit city funds. The new sections enacted in 1883 were substituted for the old, and in effect became parts of the city charter act of 1881. 'Aside from that, the provision relating to city depositaries was reenacted in 1883 in almost the language of the earlier act. It should therefore be construed' as a continuation of the act of 1881 and not as a new enactment, and fully warranted the ordinance enacted in 1897. In Carney v. Neeley, 60 Kan. 672, it was contended that the reenactment of a statute operated to abrogate a city ordinance, and it was said:
“It is true that there have been revisions of the statutes relating to cities, but in these the provision in question has been reenacted substantially in the same language, and in this way it has. been con tinued uninterruptedly in force. Such reenactment, although one statute was substituted for another, did not abrogate the ordinance authorized by the statute, for the reason that the statutory authority for the ordinance was never withdrawn. Such cases are likened to the adoption of a new constitution, with respect to which it has been held that the laws passed under the old constitution, and which are in harmony with the provisions of the new, remain in force the same as though no new constitution had been adopted.” (Page 675.)
(See, also, Jockers v. Borgman, 29 Kan. 109; Gen Stat. 1901, § 7342, subdiv. 1.)
There is a contention that the act of 1883, which was in force when the ordinance was enacted and the bond given, only authorized the designation of a single bank, and that as the Bank of Topeka was the first named no other bank could be named, and therefore the designation of the First National Bank, which was second in the list, was unauthorized. It is not easy to say that one of the banks should have preference over another, as the four banks were designated at the same time and by the same ordinance. While the act, of 1883 authorized deposits “in some responsible bank” (§7), it is not clear that the legislature intended that only one bank could be designated, nor that the power of the city in that respect was exhausted when one bank had been chosen. However that may be, neither the bank nor the surety can be heard to question the sufficiency of the designation. In the bond which defendant signed and the city accepted it is stated that “the First National Bank has been duly designated by the mayor and council of the said city of Topeka by Ordinance No. 1908 as one of the banks in which it is and shall be the duty of the city treasurer of Topeka, Kan., to deposit daily all public money coming into his hands” etc. The bond containing this recital was accepted, and under the bond and recited designation the moneys of the city were deposited with the bank for a period of more than eight years. Depositaries are official agents of municipalities and are quasi-public officials. If a depositary, although not regularly appointed, assumes to act as a depositary, and is recognized as such and receives and holds the public funds under a designation and bond, it is at least a de facto depositary.
In County of Meeker v. Butler, 25 Minn. 363, it was contended that an appointment as depositary had not been made in accordance with the requirements of law, and further that there was no liability on the bond given under the illegal designation. In the bond was a recital that it had been “duly taken and received,” and the court held as follows:
“A bond having been executed and approved, and containing the recital of Butler’s designation as depositary of the county’s moneys, and thereupon the money of the county having been deposited by the county treasurer with Butler, and received by him presumably under the bond, and the county treasurer having no authority to deposit, or Butler to receive, such moneys, except upon the basis that Butler is the legal depositary thereof, under chapter 38, if Butler has been duly designated as depositary in the manner provided by law, his sureties are clearly liable for any breach in the condition of the bond; and if he has not been so duly designated, they are equally liable because they are, as against the public, i. e., the county, es-topped to deny such designation, by the consideration that to permit such denial would be to allow them to take advantage of their own wrong in unlawfully getting possession of the county moneys. In any event, then, the objection taken is untenable.” (Page 364.)
In Board of County Commissioners v. Gray, 61 Minn. 242, the supreme court of Minnesota held on a bond like the one in question that the provisions of the statute relating to the designátion of county depositaries were for the benefit of the public and not for the sureties, and that, where the depositary was actually designated by the board of auditors, a failure to comply with the re quirements of the statute in making such designation would not affect the liability of the sureties; or, in other words, if the principal in the bond was a de facto depositary of the county funds, recognized as such by the county treasurer and other officers, and the county funds were actually deposited with the principal as such depositary in reliance on the bond, the sureties were liable in case of default in the conditions of the bond, although in law the principal was never designated as a depositary. (See, also, Board of County Commrs. v. State Bank, 64 Minn. 180; Board of Co. Commrs. v. American L. & T. Co., 75 Minn. 489; Buhrer v. Baldwin, 137 Mich. 263.)
It is argued that as the legislature of 1903 enacted a complete city charter act and repealed all prior acts relating to cities of the first class it became the duty of the city to designate new depositaries under the new act, and in no event could defendant be held liable for deposits made after the passage of that act. In the act of 1903 the places of deposit are spoken of as “bank or banks” instead of “bank,” as in the earlier acts, but in all essential features the provisions of the new act are substantially the same as the old. While the new act contains a general repealing clause, there is also an express provision that “all existing laws and ordinances not inconsistent with the provisions of this act shall remain in full force and effect, . . . and all contracts heretofore entered into by any city shall remain in full force and can be completed under existing laws.” (Laws 1903, ch. 122, § 198.) It is manifest that the provisions of the act relating to .depositaries were only a continuation of the prior ones, and, as we have seen, the new act did not abrogate the ordinance making the designation nor annul the bond given in pursuance of it. (Carney v. Neeley, 60 Kan. 672.)
It is further argued that the bond should not be regarded as a continuing obligation; that the defendant could not have understood or intended that his liability should continue indefinitely, and that it must be limited ■to the term of the city treasurer when the bond was given. The statute authorizing the designation of a -depositary does not undertake to prescribe how long the bank shall act as depositary, nor did the ordinance -or bond purport to fix the duration of the contract relation. The act as well as the bond proceeds upon the theory that the duration of the contract shall continue as long as deposits are made and received. In the .absence of a provision authorizing the mayor and council to designate a bank as a depositary of city funds for a' definite period of time a designation will be effectual so long as the city may place its funds in the bank. Of course, the mayor and council are at liberty to change -depositaries whenever the public safety requires it. In •a somewhat similar case it was said:
“The prime consideration is the safety of the public ■funds, and the manifest purpose of the law-makers was ’that the board should be wholly free to change the depositary whenever it had reason to believe that the public interest would be best subserved by such a course.” (National Bank v. Peck, 43 Kan. 643, 648.)
(See, also, Bank v. Honey, 58 Kan. 603; Manitowoc County v. Trueman and others, 91 Wis. 1; Commonwealth v. Reading Savings Bank, 129 Mass. 73; Cambridge v. Fifield, 126 Mass. 428; Elam v. Commercial Bank, 86 Va. 92.)
To hold the bond to be a continuing'obligation does .not tie the hands of the mayor and council, nor does it mean, as defendant contends, that there is no limit to the liability of a surety on such a bond. Ordinarily a •surety may terminate his liability on a bond where it has no definite time to run and where the principal has broken the condition of the obligation. (Emery v. Baltz et al., 94 N. Y. 408; Reilly et al. v. Dodge et al., 131 N. Y. 153; Manitowoc County v. Trueman and others, 91 Wis. 1; Hyland v. Habich, 150 Mass. 112.) Since the defendant might have terminated his liaTbility on the bond by a proper notice he can hardly com plain of the failure of the city to make a new designation or to demand a new bond. Throughout the period in which the bank acted as a depositary for the city the defendant was one of the owners of the bank, and for a share of the time he was a director of the bank. He had an excellent opportunity to know that the bank was receiving deposits from the city from day to day under the bond which he had signed.
The decision of the trial court overruling the demurrer to plaintiff’s petition is affirmed. | [
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The opinion of the court was delivered by
GRAVES, J.:
It is claimed by the defendant that the ■ district court erred in refusing to sustain the demurrer to the petition, in overruling the demurrer to plaintiff’s evidence, and in refusing the instructions requested. These claims of error are founded upon the theory that neither the facts alleged in the petition nor those shown by the evidence are sufficient to constitute a cause of action in favor of the plaintiff and against the defendant. They may, therefore, all be considered together.
The plaintiff was seriously injured. The amount of the verdict is reasonable, if the defendant is liable for anything. The railroad. company denies being negligent in any particular, and insists that, even if it were negligent, as alleged in the petition, such negligence was too remote to create a liability for the injury received by the plaintiff.
Defendant further contends that the proximate cause of such injury was the slippery condition of the ground, for which it was not responsible. In the view we have taken, this is the paramount question in the case. It was said in the case of Light Co. v. Koepp, 64 Kan. 735:
“It is too well known to need illustration that negligence or other unintentional wrong will not furnish the foundation for a cause of action for damages unless it was the proximate cause of the injury sustained.”’ (Page 736.)
In the case of Railway Co. v. Columbia, 65 Kan. 390, it was said:
“In cases of this character where two distinct, successive causes, unrelated in operation', to some extent contribute to an injury, it is settled that where there is. an intervening and direct cause, a prior and remote-cause can not be made the basis for recovery of damages, if such prior cause did no more than furnish the-condition, or give rise to the occasion, by which the in-jury was made possible. It seems to be sound in principle and well settled by authority that where it is admitted or found that two distinct, successive causes,, unrelated in their operation, conj oin to produce a given injury, one of them must be the proximate, and the-other the remote, cause of the injury, and the court, in passing on the facts as found or admitted to exist, must regard the proximate as the efficient and consequent cause, and disregard the remote cause.” (Page 399.)
(See, also, Gas Co. v. Dabney, 79 Kan. 820.)
In the case of Herr v. City of Lebanon, Appellant, 149 Pa. St. 222, it was held:
“If. two distinct causes are successive and unrelated in their operation, one of them must be the proximate and the other the remote cause. In such case, the law regards the proximate as the efficient and responsible cause, and disregards the remote.” (Syllabus.)
In Goodlander Mill Co. v. Standard Oil Co., 11 C. C. A. 253, 63 Fed. 400, it was said:
“The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” (Page 258.)
Applying these principles to the facts of this case it will not be difficult to determine what was the direct and proximate cause of plaintiff’s injuries. The injury was received after the hand-car was safely off the track and the road clear for the passage of the train. After the wheels of the hand-car were off the rails it could not be managed by the plaintiff and his helper, because of the icy and slippery condition of the ground. Except for this condition the car could have been easily managed and no injury would have been sustained. This, in substance, is alleged ih the petition, and is clearly shown by the evidence. If the necessity to derail the hand-car were a part of the business of the railroad company, and constituted a link in the chain of causation which led up to the accident, it was a remote and minor factor, and in no sense the direct and efficient cause which produced the injury. The defendant was not responsible for this condition of the ground, and had no control over it.. Its duty to clear the track for the approaching train was fully and safely accomplished. These icy and slippery conditions were wholly disconnected with, and had no relation to, the business of the railroad company or with the operation of its road. They intervened after, and independent of, all the acts of the defendant mentioned in the petition.
It seems difficult, in view of these facts, to avoid the conclusion that the slippery condition of the ground was the proximate cause of the injury. In this view the defendant would escape liability, perhaps, even if it were negligent in its prior handling of the handcars. We are inclined to the conclusion, however, that no negligence in this respect has been shown. Handcars and trains of all kinds must of necessity be operated upon the main line of every railroad at the same time, and negligence is not committed thereby if due care is taken to avoid collisions. In this case the coming passenger-train was discovered in ample time to remove the hand-cars from the track, and this was done before the train reached the point where the derailment occurred. Under ordinary circumstances the hand-car would have been under the control of the plaintiff, the injury would not have occurred, and the passing of the train would have been forgotten like any other incident of daily occurrence in the operation of a railroad. The condition of the ground was as well known to the plaintiff and the other-members of the crew as to the foreman. It was equally open to the observation of all. The plaintiff and Hill were not directed to remove the car alone; they expected assistance, but did not deem it necessary to wait, and voluntarily undertook to remove the car themselves.
In any view we do not think the plaintiff has either pleaded or proved a cause of action against the defendant. The demurrer to the petition and to the evidence should both have been sustained.
The facts are not so that we can order a judgment for the defendant, and therefore the judgment of the district court is reversed with direction to proceed in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Benson, J.:
The Hays Land & Investment Company commenced this suit July 7, 1906, to foreclose a mortgage made by William U. Miller on March 30, 1887. Joseph F. Doyle was made a defendant. The prayer was for personal judgment against Miller on the promissory note given with the mortgage, and for foreclosure against all the defendants. The mortgage was made to the Equitable Trust & Investment Company, and was assigned May 26, 1887, to Jessie L. Williams, wife of Edward H. Williams, and the assignment was recorded in Hamilton county at a time when Kearny county was attached to it for judicial purposes. On June 12, 1903, Jessie L. Williams assigned the mortgage to Edward E. Parker, which assignment was recorded October 17, 1904, and Edward E. Parker assigned the mortgage to the plaintiff June 6, 1905.
Defendant Miller answered pleading the statute of limitations. Defendant Doyle in his answer alleged that he was the owner of the land in fee simple and in peaceable possession thereof, denied the plaintiff’s title, and pleaded a judgment of the district court of Kearny county in a suit brought therein by F. C. Puckett against the Equitable Trust & Investment Company, Mrs. Edward H. Williams, and others, wherein it was adjudged that the title of F. C. Puckett in the real estate which is the subject of this suit should be quieted and all the defendants named in the action should be barred frpm any right', title, estate er equity of redemption in or to the land. The answer further alleged that defendant Doyle held the property through mesne conveyances from Puckett, relying upon that judgment, and further alleged that the mortgage had not been recorded in Kearny county, as required by chapter 107 of the Laws of 1899.
On the trial the plaintiff dismissed its suit against William U. Miller, and the suit proceeded for foreclosure only. Defendant Doyle offered in evidence the tax deed to the land in question, dated October 31, 1902, recorded November 31, 1902, in Kearny county, and the judgment entered June 23, 1903, pleaded in his answer. It was admitted that Puckett conveyed the land after this judgment had been rendered, that Doyle held under Puckett’s grantee by warranty deed fop a valuable consideration, and that the land was unoccupied at the time the judgment was rendered.
The petition in the suit brought by Puckett was in the usual form to quiet title. Service was made by publication, and the notice was directed, among others, to Edward H. Williams and Mrs. Edward H. Williams, his wife, and was in the usual form. The court allowed the judgment in the Puckett case to be read in evidence, reserving its ruling upon an objection made thereto, which it afterward sustained. Thereupon defendant Doyle offered in evidence the petition, affidavit for'publication and publication notice in that case, to which the plaintiff objected, and the objection was sustained. Judgment was rendered finding the amount due on the Miller mortgage to be $608, that Doyle had the. first lien for taxes by virtue of the-tax deed for $70.90, and barring and foreclosing him from any other estate, title or interest in the land.
Defendant Doyle contends that his title to the land was perfect and should have been sustained, because the mortgage made by Miller was never recorded in Kearny county, as required by the act of 1899, and because the title of Puckett, under whom he held through mesne conveyances, had been adjudged valid and his title quieted against the Equitable Trust & Investment Company and Mrs. Edward H. Williams, under whom the plaintiff claimed by assignment of the mortgage.
The suit of Puckett was commenced April 18, 1903. Before that time the Equitable Trust & Investment Company had assigned the mortgage, which assignment was recorded October 25, 1890. Thus it appears that the Equitable Trust & Investment Company had no interest in the mortgage when the Puckett suit was brought. To avoid this result defendant Doyle insists that the record of the assignment was insufficient to impart notice, and hence the owner was barred. The objection made to the assignment is that it does not sufficiently describe the mortgage, the description being that of a mortgage made by William U. Miller to the Equitable Trust & Investment Company, and referring to the book and page of the record. This was sufficient to impart notice.
A more important question is the effect of the judgment quieting title against Mrs. Edfrard H. Williams. While the assignment by Jessie L. Williams was made before the judgment in the Puckett suit, it was not recorded until more than a year afterward. It was held in Utley v. Fee, 33 Kan. 683, in a suit brought by the holder of a tax title to quiet title, where he had no knowledge or notice of any other claim and no one was in the possession of the property holding adversely to him, that the decree in his favor quieted his title against all persons holding under the original owners by deeds previously executed but -not recorded. Following this rule, if the publication was sufficient it bound the plaintiff, who held under assignments made before, but not recorded until after, the decree was entered. It is true that in the assignment made by her she is described as Jessie L. Williams, and signed the instrument by that name, but the assignment had not been recorded when the suit was brought nor when the decree was entered, and in the assignment made to her, which was on record at these, dates, she was described as “Jessie L. Williams, wife of Edward H. Williams.” The mortgage then appeared of record to be owned by Jessie L. Williams, wife of Edward H. Williams. In all the proceedings, including the publication notice in the Puckett suit, she was designated only as “Mrs. Edward H. Williams.” The vital question here is whether the notice was sufficient to bind the plaintiff, holding under Jessie L. Williams by an assignment recorded after the decree. It was admitted that Edward H. Williams died in 1899. Although Mrs. Williams was described as the wife of Edward H. Williams, she was in fact his widow.
Notice to non-residents is required to be published in the county where the land is situated.' This gives notoriety to the proceedings, from which it may be presumed that a party, if he do not in fact see the notice, will learn of it, because of his interests in the locality. It may be presumed that the plaintiff in the suit to quiet title, claiming to own this land under the tax deed, consulted the records to ascertain who were necessary parties to be made defendants in the suit, and finding, among others, that Jessie L. Williams, wife of Edward H. Williams, appeared by the record to own this mortgage, he made her a party by the name “Mrs. Edward H. Williams.” The notice contained a description of the land and named the party with sufficient precision fairly to indicate her identity and challenged her attention and inquiry. It can not be said that Mrs. Williams and the parties holding under' her or otherwise interested in the land would be misled by the name by which she was designated.
“Notice is all that is required to confer jurisdiction. To obtain complete and definite information the parties served must follow up the suggestions contained in the notice by due investigation and inquiry.” (Sharp v. McColm, 79 Kan. 772, 776.)
In Fanning v. Krapfl, 61 Iowa, 417, it was held upon a demurrer to a petition that service by publication of a notice directed to P. T. B. Hopkins, wife of John C. Hopkins, did not give the court jurisdiction of T. Phelia Boyd Hopkins or T. P. B. Hopkins. After the cause was remanded to the district court a pleading was filed in which it was alleged that T. P. B. Hopkins was in fact the wife of John C. Hopkins when the notice was published and when the judgment was rendered,' and that she was better known in the county as the wife of John C. Hopkins than by her Christian name or by the initial letters of that name. The district court struck out this averment, holding that the publication of the notice as it had been made’did not give the court jurisdiction of T. P. B. Hopkins. In,a review of this second judgment the apparent effect of the former opinion was very greatly changed. The court said:
“ ‘The office of the notice is in part to give the pendency of the action notoriety. It should be such that others than the defendant, seeing it, and knowing the defendant, or knowing of him, would not probably be misled by it as to the person for whom it was intended.’ . . . The notice should describe the party to whom it is directed with such certainty as that neither he, nor other persons acquainted with or knowing him, could reasonably be misled by it as to the person for whom it was intended; and it seems to us that, conceding the truth of the allegations stricken from the answer, the notice in question was sufficient to give the court jurisdiction of T. P. B. Hopkins. ... If the same notice had been served personally upon her, there could be no question, we think, but that the court would have acquired jurisdiction of her by the service, and any notice which would give jurisdiction if personally served upon the party is good when served by publication, if that publicity of the pendency of the action which the law intends is thereby given. That is, a description in the notice of the person intended, which would be sufficient if the service was personal, is also sufficient when the service is by publication, if those who know the person intended would naturally recognize him by that description.” (Fanning v. Krapfl, 68 Iowa, 244, 246, 247.)
In Schee v. La Grange, 78 Iowa, 101, the effect of a decree quieting title entered by default upon a publication notice was considered. One of the defendants had been designated as Charles A. Lnckenbough, assignee of Benjamin G. Unangst. His name in fact was Charles A. Luckenbach. An objection being made to this decree, the court said:
“Absolute accuracy in names in such cases is not required. The proceeding as against Luckenbach and Chapman is in their representative capacity, and they are thus described in both notice and petition. Where parties are thus relatively designated, there is less reason for a technical adherence or exactness as to names than in other cases. In Fanning v. Krapfl, 68 Iowa, 244, this court gave a rule which we. think is authorized by precedent and reason, and guides to a proper conclusion in this case.” (Page 106.)
In Cruzen v. Stephens, 123 Mo. 337, it was held that a service by publication of notice addressed to “Etta R. Fisher and-Fisher, her husband,” (p. 344) was valid as against a collateral attack. The action was in ejectment. The defendants claimed title under a sheriff’s sale in a tax suit, wherein judgment had been rendered by publication. The court said:
“The object of giving notice by publication is to advise the parties, to whom the notice is directed, of the proceedings mentioned.
“If the notice effectively does that, it should be held sufficient against any collateral attack.
“Judge Vanfleet thus summarizes the rule deducible from principle and well-considered cases: ‘That the omission of the name of a defendant from the process makes the judgment void in respect to him, is plain; but, where he is so described that he would not be misled, it is not void.’ (Vanfleet’s Collateral Attack, §§ 356, 361.)
“It certainly seems to accord with just principles of law and of common sense that where the notice names the parties defendant with sufficient definiteness to plainly indicáte their identity, it should be held good and not void, when questioned in this collateral way.
“Here the notice in effect was directed to Etta R. Fisher and Mr. Fisher, her husband. It would have been practically no more informative of the identity of John Fisher, her husband, had the blank in the order and in the petition in that case been filled with his first name.” (Page 345.)
In the assignment' of the mortgage under which the plaintiff in this suit claims title, the descriptive words “wife of Edward H. Williams” were added to the .name “Jessie L. Williams.” This designation, by the registry of the assignment, became a part of the recorded title, imparting notice not only to third persons but.to the assignee, Parker, and the plaintiff holding under him, of the fact that Jessie L. Williams was the wife of Edward H. Williams. They would have been bound by notice duly published against Jessie L. Williams; ought they not to be equally bound by notice to Mrs. Edward H. Williams, which is only another way of designating the wife of Edward H. Williams, the very person named,in the assignment through which they derive title?
In Blinn v. Chessman, 49 Minn. 140, it appeared that a conveyance had been made to the defendant and recorded under the name “George Cheeseman.” Chessman left the state and became a non-resident. An action was commenced by one Leonard, who claimed to own the property, against Chessman to determine adverse claims. The service was by publication against “George Cheeseman,” and judgment was rendered by default excluding him from any interest in the land. In another action to recover the land this judgment was offered in evidence. The trial court held the judgment valid. On review it was said:
“The court was right in treating the judgment as binding upon this defendant, so far as concerned his interest in this land. This conclusion is not based upon the ground of the likeness of the two names, either in spelling or in sound; but upon the ground — upon which also the decision of the court below was placed — that the defendant is to be deemed to have adopted the name of Cheeseman for the purpose of acquiring and holding the title to this land, and he can have no reason to complain that he is so designated in legal proceedings calling in question the validity of the title so acquired and held. From the fact that this was not his true name it does not follow, that the court did not acquire jurisdiction. If he had assumed this name, or any other, generally, and for all purposes, and especially if he had come to be known by the name assumed, there would be no doubt that legal proceedings against him in such name would, in general, be sustained. The name is not the person, but only a means of designating the person intended; and where one assumes and comes to be known by another name than that which he properly bears, that name may be effectually employed for the purpose of designating him. If such a name is employed in legal process or notices, whether served personally or by publication — where such service is authorized, the notice is effectual; the person who has assumed the name is presumed to understand that the process or notice addressed in that name is addressed to- him. ... He not only accepted the conveyance made to himself by that name, but he placed it on record, for the purpose, and with the effect, presumably, of giving notice to the world that the title had been so conveyed and was so held. He must be deemed to have understood that thereafter persons becoming interested in the land would consult the record, and might be expected to act upon the notice thus communicated to them.” (Pages 145, 146.)
In Thompson v. McCorkle, 136 Ind. 484, the publication against “John McCorkle, and-McCorkle, his wife,” was held to be insufficient, and in the opinion the court used the language quoted by Mr. Justice Greene in Whitney v. Masemore, 75 Kan. 522, to the effect that in a suit to quiet title after the death of John McCorkle the notice was not sufficient to bring his widow within the jurisdiction of the court. The Indiana case was an action to set aside a judgment entered upon publication notice for fraud in obtaining it. In the opinion that court said:
“The complaint shows that plaintiff resided in Shelby, county, Indiana, for seventy years continuously, and that the only service, as to her, was by publication addressed to-McCorkle, wife of John McCorkle; that the husband had died May 20, 1880.
“We recognize the rule that. even on constructive service the question of the jurisdiction of a court of record over the parties to any domestic judgment must, in all collateral proceedings where fraud' is not shown, be determined by the record, where the jurisdiction affirmatively appears from the record. In such case it would import absolute credit and verity and parties could not be heard to impeach it. In other words, it will be conclusively presumed that the court acted upon ample evidence and with due deliberation before making such statement; and the judgment will be impregnable to any collateral assault by proof aliunde.
“In Muncie v. Joest, Treas., 74 Ind. 409, the court says: ‘There is a clear distinction between cases in which there is no notice whatever, and those in which there is a mere defective or irregular notice. The general rule upon the subject, deducible from the authorities, may be thus stated: If there is no notice whatever, and this affirmatively appears upon the face of the proceedings, the judgment will be void, iand may be overthrown by a collateral attack. If a court, having jurisdiction, . . . and required to determine all jurisdictional questions, either expressly or impliedly, adjudges that notice was given,' its decision will repel a collateral attack, unless the record of the court affirmatively show that no notice was given; and this is so although the record show a defective and irregular notice.’ ” (Page 490.)
Thus it appears that the statement in the opinion that the judgment against Mrs. McCorkle was void was made concerning a direct proceeding to set aside that judgment, and not in a collateral action, as in this case. The distinction between the effect of judgments when directly assailed and when attacked in a collateral action is well known, and is stated in Sharp v. McColm, 79 Kan. 772, and in the cases cited.
It is urged that the designation of the party as the wife of Edward H. Williams was incorrect because she was at that time a widow. It must be remembered, however, that this designation was taken from the record. It appears that she was a resident of Massachusetts, and it can not be presumed that Puckett, when he commenced his suit, had knowledge of the death of her husband.
In Jones v. Kohler et al., 137 Ind. 528, it was held that where a married woman interested in land shifted about from place to place, and her whereabouts had been unknown for many years, notice by publication in a suit to quiet title against her by her former name was sufficient, although her husband had died and she had since married. The court said:
“In this instance the notice was given to the interested party in the only name by which she was known within the jurisdiction of this state, the only name by which, as she well knew, she would be dealt with in this state, that name in which she would necessarily be notified of the pendency of legal proceedings, and that name which, when reading the notice, she would, of course, understand to apply to herself.” (Page 531.)
The decisions upon this subject are numerous and not harmonious. Many of them are reviewed in Van-fleet’s Collateral Attack, sections '355 to 367, inclusive, and later decisions are cited in volume 40’ of the American Digest, Century edition, columns 2673, 2674. Vanfleet, at section 367, calls attention to the fact that the distinction between direct and collateral proceedings has not always been kept in view, which fact may account for some of the apparent conflict. The author concludes that the notice is sufficient as against collateral attack if the defendant is so designated or described that after reading it he could not be misled.
In Whitney v. Masemore, 75 Kan. 522, the publication was against “-Whitney, and-— Whitney, his wife.” The Christian name of neither was given, and there was.nothing to distinguish the Whitneys so sued from other persons bearing that surname. The case is easily distinguishable from the one now under consideration. The name used in this publication would attract the attention of the widow, and this designation, appearing in the record, would give notice to the assignees. The important question is the effect of this notice upon them, for Mrs. Williams had parted with her interest before the publication was made. The notice must be held sufficient as against a collateral attack.
The judgment in the Puckett suit should have been received in evidence, together with the papers offered in connection therewith. Defendant Doyle being a purchaser for value, after that judgment had been rendered, appeared to hold the land free from the claims of the plaintiff under the mortgage. (Howard, Adm’r, v. Entreken, Adm’r, 24 Kan. 428.)
The case-made does not contain copies of the petition, publication notice and printer’s affidavit, but does contain a statement that these papers were offered in evidence, and that the petition was in the usual and regular form, praying that title to the lands in question be quieted and that the defendants, whose names were stated, be barred of any right, title, interest or equity in the land. The case-made also states that the affidavit for publication was in the usual form to obtain service on non-resident defendants, and that it named the same defendants as the petition. It is also stated that the notice of publication was in the usual, regular form, and included the names of the same defendants and described the land as in the petition. The case-made also states that the printer’s affidavit of publication was in the usual, regular form, showing that the publication had been made as required by law. The plaintiff contends that as the case-made does not contain copies of these papers this court can not determine whether the petition stated a cause of action, whether the affidavit for publication was a sufficient basis therefor, whether the publication imparted notice, or whether the printer’s affidavit proved tite publication; and that, in the absence of such proof, it must be presumed that the district court decided correctly in rejecting the judgment. The statute requires that the case-made shall contain:
“A statement of so much of the proceedings and evidence, or other matters in the action, as may be necessary to present the errors complained of to the supreme court.” (Civ. Code, § 547.) '
The case-made may be very brief, and was devised mainly for the purpose of abridging the record and lessening the expenses of review. (Neiswender v. James, 41 Kan. 463.) This beneficent purpose has not always been kept in view. It is not necessary to set out copies of lengthy documents; a brief summary of their contents, including all that is material, is sufficient. If upon the service of the case this summary is deemed insufficient, amendments may be suggested. Proof of the proper publication must be presumed from the fact that a judgment was rendered upon it. The record appears to be sufficient fairly, to present the errors complained of for the consideration of this court.
After defendant Doyle had rested the plaintiff in rebuttal offered in evidence the record of a conveyance of the land in question from Doyle to John F. Walthel, dated June 18, 190.6, and recorded July 18, 1906, and it is now insisted that Doyie has no right to a review here. The plaintiff alleged in its petition that Doyle claimed an estate or interest in the land which was inferior to the lien of the plaintiff’s mortgage, and prayed that Doyle, with the other defendants, be foreclosed. Issues were made and the trial proceeded throughout upon the theory that Doyle did claim such interest, and that interest was adjudicated. The judgment being against Doyle, he instituted proceedings in error to this court as any other litigant. Section 40 of the civil code provides that upon the transfer of an interest during the pendency of an action it may be continued in.the name of the original party or the court may allow substitution to be made. The conveyance was not recorded until after this suit had been commenced, hence the defendant Doyle was a proper party, and, if he and his grantee were content to have it proceed to judgment against him, it is hot perceived why the plaintiff should complain.
It is not necessary to consider the effect of the statute of 1899, relative to the recording of mortgages in Kearny county.
The effect of the tax deed as a muniment of title was not open to consideration in this case. (Brenholts v. Miller, ante, p. 185.)
The judgment is reversed, and the cause remanded for a. new trial. | [
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Per Curiam:
The judgments of which A. T. Bennett, as trustee, complains were rendered upon findings made by the court upon the evidence given and admissions made upon the trials.
Motions for new trials were filed and denied, but these rulings are not assigned as error in the petition in error; therefore no question arising upon the trial of the causes can be considered by this court. (Binns v. Adams, 54 Kan. 615; Gas Co. v. Dooley, 73 Kan. 758.)
In the brief the errors complained of are thus specified: (1) The finding against A. T. Bennett, trustee, and rendering judgment thereon; (2) the absence of evidence to support the finding; (3) the refusal to set aside garnishment of the funds belonging to A. T. Bennett, trustee; (4) overruling the motions for a new trial.
All these except the fourth are errors of law occurring on the trial. (Struthers v. Fuller, 45 Kan. 735; Cogshall v. Spurry, 47 Kan. 448; Giles v. Austin, 54 Kan. 616.)
The fourth specification can not be treated as an amendment of the petition in error, nor can such an amendment be allowed, because the specification was not filed in this court until after the expiration of one year from the date of the judgment. (Crawford v. K. C. Ft. S. & G. Rld. Co., 45 Kan. 474; Cogshall v. Spurry, supra.)
The right to the fund garnisheed depended upon facts found by the court, upon the. trial, and can not be reviewed here for the reasons already stated — it was a question arising upon the trial.
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'The opinion of the court was delivered by
Smith, J.:
The petition, after reciting substantially the facts stated, avers that the plaintiffs had objected 'to the defendant’s maintaining the switch and notified him to remove the same; that upon his refusal so to ■do they had disconnected his line from the line of the Blue Mound company, and that he had thereafter reattached the same. Their ground for injunction is embraced substantially in the following paragraph:
“Plaintiffs further aver that they have no adequate remedy at law, and that, they suffer great annoyance and inconvenience by reason of the said defendant’s ■connecting his individual telephone with another telephone company’s line, switch-board and exchange, while being connected with the line, switch-board and ■exchange of the Farmers’ Mutual Telephone Company, ■and that said plaintiffs will suffer irreparable injury if said defendant is permitted to keep his said individual telephone so connected with the two said telephone companies as hereinbefore alleged.”
The defendant contends that the petition does not 'state facts sufficient to sustain a cause of action. Section 87 of the civil code provides:
“The petition must contain, . . . second, a statement of the facts constituting the cause of action, in ■ordinary and concise language, and without repetition.”
Injunction is an extraordinary remedy, and is .granted only where it appears that the 'plaintiff has 'no adequate remedy at law and if the defendant be not restrained from committing the wrong the plaintiff Will suffer irreparable injury. Applying the requirements of the code to this special requirement, a petition to be sufficient must state facts which show that the plaintiff has no adequate remedy at law and if the injunction be denied he will suffer irreparable injury. 'This petition merely pleads the bald conclusions, unless it be that* the allegation that they'will suffer great annoyance and inconvenience be an allegation of spe cific facts; but this allegation seems to be almost equally a conclusion. These allegations are formal, and are properly used when pleaded in connection with facts which, taken as true, would constitute annoyance, inconvenience or irreparable injury. There is no allegation in this petition, however, that the line of the Blue Mound company was by the defendant at any time connected with the line of the Independent company. We think the petition fails to state a cause of action in injunction, and the demurrer thereto should have been sustained.
It is also contended that the evidence was insufficient to sustain the judgment in favor of the-plaintiffs, but we need not discuss this if, as we have concluded, the petition was insufficient and error was committed in denying the motion for judgment on the pleadings.
We have not been favored with any brief on the part, of the defendants in error, and heard only a brief oral argument on their behalf. Such an argument, disconnected with any brief, is, to a court unfamiliar with the facts and after days spent in hearing other cases, cohsultating thereon, and deciding the same, of little assistance.
The c.ase is remanded, with instructions to set aside the judgment and to proceed in accordance with the-views herein expressed. | [
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The opinion of the court was delivered by
Porter, J.:
The appellant was charged with murder in the first degree. He was found guilty of murder in the second degree and sentenced to a term in the penitentiary of not less than ten nor more than twelve years.
At the time of the homicide the appellant and one Mary Wilson had been living together in a house at the foot of State street, on the river bank, in Kansas City. About 'thirty feet distant was a house occupied by' Frank Doyle, the deceased. On the 31'st day of May, 1908, at about dusk, the appellant returned from his work. At this time Mary Wilson was at the house of Frank Doyle. She had the key to her house with her. The appellant, being unable to enter the house where he lived, went to the house where the deceased lived to inquire for her. In the house at this time were Frank Doyle, William Poynter, Mary Wilson, Ida Pierce, and Julia Duffy. It was a one-story house, with the door opening to the west. The appellant knocked at this door and it'was opened by Mary Wilson. The evidence of the state is, in substance, that at this time Frank Doyle was sitting in a chair on the east side of the room, at a distance of about twelve feet from the door. In the northwest corner of the' room, about ten feet from where he was sitting, was a table, upon which the supper dishes were standing. Doyle was sitting in a peaceful and contented attitude, his legs crossed, and smoking a pipe. When the door was opened the appellant requested that Mary Wilson come home or give him the key to the house. She replied: “I ’ll come after while, but I am not ready just yet.” Appellant stepped inside of the door, said “I am tired of being bulldozed,” and produced a pistol and at once commenced shooting at Doyle. He shot five times. When the first shot was fired Doyle was sitting in the chair and had made no movement and had not spoken. The shots were fired in quick succession. After the second shot the deceased rose and fell to the floor, where he died without speaking. The post-mortem examination showed that a bullet passed through his body from left to right, producing the wound that caused his death, and that there were two bullet-wounds in his arm.
The appellant testified for himself, and there was testimony given by Mary Wilson which tended to corroborate it, that at the time appellant asked for the key Doyle said “What the hell do you care whether she goes home or not?” and that he started toward the kitchen table, picking up a large butcher-knife, and assumed a threatening attitude toward the appellant.
It is ufged that the evidence is not sufficient to sustain the verdict, but the testimony of Ida Pierce, Julia Duffy and William Poynter was sufficient to support every contention made by the state.
It is claimed that the court erred in overruling an obj ection to a question put to appellant on cross-examination as tó whether Mary Wilson, who had been living with him for several years as his wife, was white or colored, or partly colored. It is claimed that the ruling was prejudicial. The record shows that in appearance Mary Wilson is a white woman, and that Ida Pierce and William Poynter are both white persons. All were witnesses before the jury. Doyle, the deceased, was a negro, and the appellant is a negro. It seems impossible that the question and answer could have prejudiced him.
Complaint is made that the trial court failed to instruct the jury fully upon the law of self-defense; that the jury should have been instructed whether or not the appellant was bound to prove his plea of self-defense. The court instructed the jury as to the burden of proof, and stated fairly though in general terms the law as to self-defense. It was not reversible error to fail to expand the instructions or to apply them to the peculiar facts in the case, inasmuch as no instructions were asked by th'e appellant. (The State v. Pfefferle, 36 Kan. 90, 96; The State v. Peterson, 38 Kan. 204; The State v. Rook, 42 Kan. 419; The State v. Sorter, 52 Kan. 531, 545.)
The same may be said of the failure to instruct particularly with reference to previous threats made by deceased. In one instruction the jury were told that if the circumstances were sufficient to raise in the mind of the appellant a belief that the supposed assailant intended to do him bodily harm he had a right to stand his ground and use such- force or means within his power as reasonably seemed to him at that moment to be necessary for his protection, and in another they were instructed that if the affray was brought on by the deliberate, wrongful act of the appellant the plea of self-defense was futile. It is argued in this connection that there was no evidence on the part of the state which tended to show that the appellant at the time he went to the house knew that Doyle was there. But the evidence is that Doyle had been living there for a long time, claiming it as his home. There was some evidence offered by the state tending to show that appellant was jealous of attentions paid to Mary Wilson by the deceased. His own testimony showed that they were not on good terms, and that deceased had threatened him with violence on different occasions.
We have been unable to discover any error in the record affecting the substantial rights of the appellant, and therefore the judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
The plaintiff freely admits that the defendants own the land in controversy, subject only to its rights as lessee to mine and remove coal and mineral therefrom. It merely claims an easement in the surface, such as will enable it to exercise fully its rights as-lessee, and does not wish to disturb the defendants in the enjoyment of the possession and use of the surface further than is reasonably necessary to the enjoyment of its own rights under its lease. It therefore insists that ejectment is neither an adequate nor an appropriate remedy under the facts of this case, and that injunction is both appropriate and adequate, and the only proper remedy.
The defendants urge that the coal which the plaintiff claims to own is a part of the land which they occupy and of which they have exclusive, actual, peaceable possession — peaceable even against the plaintiff; that they claim, to be the owners of the entire estate ■in the land, including the coal and mineral, and the only contention between them .and the plaintiff is as to the owhership of the coal; that an injunction would deprive them of their title to, and possession of, the coal' as completely and effectually as could be done by an action of ejectment, and therefore they are entitled to-have the issue tried by a jury as matter of right.
Attention has been called to section 5 of the bill', of rights, which reads: “The right of trial by jury shall be inviolate.” Attention has also been called to- section 4713 of the General Statutes of 1901, which reads:
“Issues of fact arising in actions for the recovery of money, or specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or a reference be ordered as hereinafter provided.”
It is everywhere held that this constitutional provision preserves whatever rights of trial by jury existed at common law when the provision was adopted. We are inclined to agree with the view of the defendants. It is apparent that the real contention of the parties involves the ownership of the coal in question. If the plaintiff has an easement in the surface of the land, it is because of, and incident to, its ownership of the coal. Before a court can enjoin the defendants from interfering with the plaintiff in the use of the surface of the land for the purpose of mining coal it must determine that the plaintiff is the owner of the coal. The defendants being in the actual possession of the coal as nearly as such possession is possible, the granting of such an injunction would be the same in effect as a judgment in ejectment, as it would determine both the title and possession of the real estate in controversy. The plaintiff has never been in the possession and enjoyment of the so-called easement, and its right thereto is now being asserted for the first time. It may be conceded that injunction is a proper and ordinary remedy for the protection of owners in the enjoyment of their rights in real estate, but here this remedy is invoked for a very different purpose; its object is not to protect a right which the plaintiff has in real estate, but its purpose is to obtain thereby a title to real estate from others who are already in possession and claiming to be the owners thereof. It is true, as has been suggested, that courts of equity often examine into questions of title, not for the mere purpose of determining the question of ownership between the parties, but for the purpose of administering equitable relief concerning the use or occupancy of the land. Upon this point Chancellor Kent, in the case of Abbott v. Allen, 2 Johns. Ch. [N. Y.] 519, said:
“This court may, perhaps, try title to land when it arises incidentally; but it is understood not to be within its province, when the case depends on a single legal title, and is brought up directly by the bill. The power is only to be exercised in difficult and complicated cases, affording peculiar ground for equitable interference.” (Page 524.)
In volume 24 of the Cyclopedia of Law and Procedure, at page 109, it is said:
“While courts of equity have jurisdiction to protect and enforce equitable titles, and may in certain cases try suits to quiet title or remove cloud without the intervention of a jury, questions as to the legal title to land are of right triable by jury, and this right can not be abrogated by statute-or avoided by bringing an action which is in effect an action of ejectment in the form of a suit in equity.”
The rule that actions for the trial of title to real estate shall be tried to a. jury has always been favored and with practical unanimity has been upheld by the courts.. The difficulty encountered in the enforcement of this rule consists chiefly in determining whether or not the action under consideration comes within the rule. The test upon this question which has been generally followed is that, where the real object of the action, whatever its form, appears to be to settle a disputed question of title, then either party may demand a jury as matter of right; if, on the other hand, the purpose is to obtain proper equitable relief, then the chancellor may administer it, even though it involves-an examination of title. In the case of Martin v. Martin et al., 118 Ind. 227, it was said:
“It is not every cause of action which the pleader styles an action of ejectment or to quiet title that entitles the parties to a trial by jury; nor will the prayer for relief have any controlling influence in determining whether or not a jury may be called. The court will look to the substantial averments of the.complaint or cross-complaint, as the case may be, and from the facts so averred determine whether the action is one of equitable or common-law jurisdiction, and, if the former, refuse a trial by jury.” (Page 236.)
In the case of Spencer et al. v. Robbins et al., 106 Ind. 580, it was said:
“Where the purpose of the action is primarily to establish an equitable right to land and acquire a legal title through such right by the decree of a court, as by the specific enforcement of an agreement, the reformation of a deed, or the establishment of a trust, etc., the case is of equitable cognizance.” (Page 588.)
In the case of Angus v. Craven, 132 Cal. 691, it was said:
“Courts, however, in guarding the constitutional rights to a jury trial, have repeatedly held that where the suit should have been, and in substance is, an action for the recovery of the possession of land, the right of a defendant to a jury can not be defeated by the mere device of bringing the action in an equitable form. And so it has been held that the right to a jury is not defeated where, at the commencement of the action, the defendant, and hot the plaintiff, was in the actual possession of the premises involved; and it has also been held that where the defendant had been for a long time in the actual possession, and the plaintiff had ousted him, the plaintiff, by first bringing his action to quiet title, could not, by such inversion of parties, avoid the defendant’s right to a jury, but that the action should be treated as substantially an action to recover possession.” (Page 696.)
(See, also, Newman v. Duane, 89 Cal. 597. For other cases on this subject generally, see 3 A. & E. Ann. Cas. 248, where they are collected' in .a note.)
The petition in this case is full and complete in its statement of facts. It is not difficult to ascertain from it what the plaintiff wants. It wants the coal. Its right to take the coal depends upon ownership: The ownership is strenuously denied; indeed the denial is asserted by force and arms. The defendants are in the actual possession of the land and claim to have full title thereto. They are in a position to protect the coal by preventing the plaintiff from removing it. The important question, as it seems to us, is, Who owns the coal? If this question is answered, then the whole controversy will be settled; but nothing can be settled until it is answered. The coal is specific real property as much as the surface. Together they constitute the entire estate in the land. The plaintiff wants to try out the question of title'to the coal without a jury, and then take possession of it under the protection of an injunction which will prevent the opposition of the defendants. This avoids the real merits of the controversy. It gives un.-due prominence to the question whether or not the plaintiff has an easement under which it may mine coal, and treats the ownership of the coal as a minor and comparatively unimportant inquiry. By such a proceeding the defendants are deprived of a right given to them both by the constitution and the statute. This can not be' sustained.
The judgment of the district court is reversed, with direction to proceed in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Graves, J.:
Several questions. have been presented' by the plaintiffs in error, but in the view we have taken. one only need be considered. It is insisted that the special findings of fact returned by the jury relating to the amount of damages awarded to the plaintiff are inconsistent with each other and irreconcilable with the general verdict, and therefore will not sustain a .judgment for any amount. In our view, this objection is well taken. By the special questions presented to the jury the injuries sustained by the plaintiff were classified as those which were “permanent” and those “not permanent.” This classification of course includes all the injuries which she received and all for which she could recover damages. In answer to these ■questions the jury allowed the plaintiff the sum of $2000 for “permanent” injuries, and the further sum •of $100 for injuries “not permanent”; the sum of $2100 was, therefore, the limit of her recovery for all the injuries sustained. The jury, however, returned a general verdict for $5000, being $2900 in excess of the aggregate awarded for injuries “permanent” and those “not permanent.” This additional .sum of $2900 is ; shown by the special findings to have been-awarded for items of injury which were necessarily included in the ■ amount of $2100 before mentioned. The two amounts, $2100 and $2900, aggregate the amount of the general verdict. It is apparent, therefore, that the damages awarded in the special findings of fact must be duplicated in the amount found by the general verdict.
The injuries to the plaintiff’s head, neck, back, leg, -and those received internally, while serious enough, perhaps, to merit the award of damages given, were probably not permanent; and had the jury allowed the sum of $3000 for injuries “not permanent” the findings of fact and the general verdict would have been more nearly harmonious. It is impossible to make the findings harmonize or to ascertain from them with certainty what the jury intended. It seems probable, however, that the intention was to award the plaintiff the sum of $5000 in- the aggregate, and iri distributing that amount among the various items included in the special questions the importance of the words “permanent” and “not permanent,” as applied to the char-acter of the injuries, was overlooked. We can not, however, act upon surmises or probabilities as to what the jury intended. They have spoken, and we are bound by their language.
The purpose of special findings of fact is to ascertain the considerations in detail upon which 'the general verdict rests, and unless they are consistent and intelligible the verdict can not stand. (Railway Co. v. Bricker, 61 Kan. 224; Kansas City v. Brady, 53 Kan. 512; A. T. & S. F. Rld. Co. v. Woodcock, 42 Kan. 344; Aultman v. Mickey, 41 Kan. 348; A. T. & S. F. Rld. Co. v. Brown, 33 Kan. 757, 760; Bank v. Miller, 59 Kan. 743, 750; Shoemaker v. St. L. & S. F. Rly. Co., 30 Kan. 359.)
It is not surprising that the jury should be misled by the special questions here given; they are well calculated to produce such a result. A jury should not be required to answer questions so formulated that finely drawn distinctions or technical constructions are neces■sary to a clear understanding of them. Courts should be careful to see that no questions are submitted which ■can not be easily understood and the purport of the answers to which may not readily be perceived. When necessary, instructions should be given which will fully ■explain the questions submitted, so that errors and misconceptions may be avoided. We can not criticize ‘the court in this case, as no change or modification of the questions was suggested, nor were explanatory instructions requested. Indeed, there is nothing in the record to indicate that any of the parties connected with the trial anticipated the result which followed. Special questions, when numerous and not carefully prepared, are liable to confuse and mislead a jury, and therefore when they are submitted they should be as •direct and clear as possible.
The jury in'this case considered the various elements of damages sustained by the plaintiff, and fixed the amount as to each item separately. Perhaps no jury would materially change the aggregate of these amounts. Apparently they were fixed after a fair and dispassionate consideration of the inj uries' sustained, without regard to their effect upon the final result. While in cases of this character the court will not, upon review, determine the amount of the judgment which ought to be entered, it may, when the several awards named in the special findings show that a fairly reasonable amount has been allowed for all damages sustained, tender to the plaintiff an option to accept judgment for such amount or a new trial. (Broquet v. Tripp, 36 Kan. 700.) We have, therefore, concluded to give an opportunity to adjust the controversy in this manner without awarding a new trial absolutely. The jury allowed $2000 damages for the injuries sustained which were permanent, the sum of $100 for those that were not permanent, and for the mental and physical pain the sum of $500; making an aggregate of $2600. We assume that the jury did not regard pain, either mental or physical, the same as an injury like a contusion, sprained ankle or other visible hurt, and, therefore, add the amount allowed for these to the sum of' $2100, which amounts, aggregating $2600, constitute the sum to which under the findings of fact the plaintiff is probably entitled. If the plaintiff will consent, to accept a judgment for this amount, the court will set aside the present judgment and enter one for that amount upon such consent; otherwise, a new trial will be granted. | [
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The opinion of the court was delivered by
Smith, J.:
The city of Goodland is a city of the second class and as such for some time previous to the commencement of this suit had owned, operated and maintained a system of water-works and had thereby supplied the inhabitants of the city with water. It seems that the city had been supplying water to the users thereof without any means of measuring the amounts used, and in January, 1908, the mayor and council of the city duly passed and published an ordinance pro viding, among other thing’s, that on and after April 1, 1908, no consumer of water from the city water-works should take from the mains thereof any water except such as should be measured by means of a water-meter connected with' the pipe of the consumer and of the kind and make ordered by the mayor and council of the city for the purpose; that all the expense of connecting and establishing the meter, with a box or other receptacle for the same, should be' borne by the consumer, and when the same was done and furnished by the city the price thereof would be seventeen dollars. By the ordinance the city reserved the right to shut off the supply of water to a consumer for any violation of the rules governing the use of water in the city.
Shortly prior to April 1, 1908, Lewis F. Cooper filed in the district court of the county his verified petition, setting forth the facts, with a copy of the ordinance attached as an exhibit, in which petition he prayed for an injunction against the city to restrain it from installing a water-meter upon his premises at his expense, and also from shutting off the water and excluding him from the use thereof, and praying that the ordinance be declared unconstitutional, null and void.
Thereafter the plaintiff also filed his motion for a temporary injunction, supported by affidavits, stating that the city was installing water-meters on the premises of consumers and threatening to shut off the water from consumers that had no meters.
Notice of the hearing of the motion, and that the same would be heard upon the petition and affidavits filed, was duly served upon the attorney of record for the city, and the application for a temporary injunction was heard in accordance with such notice' and was by the court refused. The plaintiff prosecutes error.
The attorney for the city moves to dismiss the case on the ground that the evidence heard on the application for a .temporary injunction was not made a part of the record by a bill of exceptions, and hence has no place in the transcript of the record upon which the •case is brought here. .Technically, under the common law, depositions or affidavits used in evidence did not become a part of the record until made so in a bill of exceptions. It was, in substance, said in Miller v. Tobin, 18 Fed. 609, that while at common law depositions, were not included in the record unless made a part 'thereof by a bill of exceptions, yet depositions which were used in evidence and filed in the case should be ■considered as a part of the record and taken up as a part of the transcript of the record upon the removal of -a cause from a state court to the federal court. We have a statute providing for the identification and correction of evidence taken by stenographers in court and making the same a part of the record without including 'the same in a bill of exceptions. And where evidence is reduced to the form of an affidavit, and notice of the filing thereof is given and acknowledged before the hearing, and the same is used as evidence on the hearing, it would seem that no good purpose is subserved by requiring a bill of exceptions, but the evidence, being in writing and filed and thus fully identified, may be included in a transcript of the record.
However this may be, the affidavits appear to be only ■cumulative evidence of the facts alleged in the verified petition, and if they were excluded from consideration it would not necessitate the dismissal of the case. It would not then appear that the motion of the plaintiff was entirely unsupported by evidence. The verified petition is evidence of equal standing with the affidavit upon such hearing. The motion to dismiss is ■denied.
It is contended by the plaintiff that a water-meter used in connection with a water-works system is for the benefit of the owner of the water-works, and is a part -of the system, ,an instrumentality for measuring and delivering the water,' and should be installed and paid for by the owner of the system.
Chapter 135 of the Laws of 1907 provides for the acquirement and ownership of water-works by cities of the first and second class, and authorizes the mayor and council of such cities to enact ordinances necessary for the control, operation and maintenance of such waterworks located in such cities. It is conceded that the only restriction upon the power to pass such ordinances is that they must conform to the laws of the state and be reasonable.
Provisions are made in the ordinance in question making the charges for furnishing water and incidentals a lien upon the real estate and for the collection thereof as other taxes are collected. These provisions may be invalid, but the question is not involved herein. Practically the only question we have to determine is whether or not the ordinance is reasonable in that it requires the consumer to furnish a meter and meter-box of the kind and description ordered by the mayor and council of the city.
It was said in Water Works v. San Francisco, 82 Cal. 286, that the expense of such meters can not be imposed upon the consumer. In that case the question arose between a water-works company, presumably organized and conducted for profit, and the city and the board of supervisors, under an ordinance requiring the water company to furnish meters to consumers who made request therefor. The ordinance also provided that the company should collect only for the water furnished at meter rates, which were different from the house rates. One of the questions involved in the case was whether this provision of the ordinance was valid. It was held valid, and that the expense of the meters could not be imposed upon the consumers.
Other cases are cited in which it is held, as between water companies organized and conducted for profit, and consumers of the water furnished by them, that a meter for the measurement of water is for the benefit, of the water company and an instrumentality for de livering the water, and that the cost of such meters should be borne by such companies.
The case most nearly in point, however, is Albert v. Davis, 49 Neb. 579. By the statute of Nebraska the city was authorized to construct or acquire water-works and appoint a water commissioner, and it further provided that “it shall be the duty of such water commissioner, subject to the supervision of the mayor and council or board of trustees, to have the general management and control of the system of water-works in the city or village, fixing the rates to be paid by the inhabitants thereof within such limits as may be prescribed by ordinance for the use of water, water-meters, and hydrants.” (Page 581.) The court held that inasmuch as the franchise authorized the city neither to sell meters nor to compel consumers to supply themselves with meters, but did authorize the city to collect rent for meters, it was implied that the city should furnish the meters and collect rent therefor but could not compel consumers to furnish their own meters. The court in that case expressly declined to express an opinion as to whether, in the absence of authority to rent water-meters, the city would be authorized by ordinance to réquire that meters should be furnished by consumers, but based its decision solely upon the provision authorizing the city to rent meters.
The statute of Kansas, swpra, makes no provision for the renting of water-meters or the supplying or ownership thereof, but in the broadest terms authorizes the mayor and council of cities to which the act applies to enact ordinances necessary for the control, operation and maintenance of such water-works located in such cities.
The inhabitants of the city of Goodland have, through their mayor and council, and under the statutory franchise, acquired a system of water-works and are supplying themselves with water. It is evident that the only fair basis of fixing the amount which the individual consumer should contribute for the benefit individually received is by measuring the water he gets. The water-meter is the instrument for this purpose, and the question is whether it is reasonable to require each ’consumer of water to pay for his individual meter instead of all t'he taxpayers of the city paying for all the meters, used. As is commonly the case, it may be that in Good-land some of the taxpayers of the city are not so located that they can, and do not in fact, use water from the public water-works. If this be true, it seems very reasonable that they should be relieved of any contribution to pay for the meters of those who do use the water,, and that the consumers of water should pay for the meters of which they alone as individuals get the benefit.
The only question remaining, then, is whether the grant of power from the legislature to the city is sufficiently broad to authorize this provision of the ordinance. The court found, and we believe correctly, that the provision made by the ordinance is reasonable and fairly included in the grant of power. No inhabitant of the city is required to use water furnished by the city, or to buy of the city or otherwise to furnish a water-meter. But if one desires to use the city water he must furnish or pay for a meter to measure the quantity he may receive. The city has the right to have the measurement uniform, and for this reason and to avoid mistakes of its employees may require all meters to be of one kind and make. Whether the city is authorized to buy and sell meters is not involved in this case. Presumably a large number could be bought at a less price for each meter than one could be had singly, and perhaps for this reason the plaintiff did not ask to have the city enjoined from doing the business.
The order of the court refusing the temporary injunction is therefore affirmed. | [
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’The opinion of the court was delivered by
Benson, J.:
The tax deed to lots 5 and 6 had been •of record more than five years when Mrs. Thompson, then in possession and claiming title under it, made the ■oil lease to Lockwood, which was assigned to Millikin and under which Millikin took and held possession — a possession which he afterward yielded to Rathbun. If Mrs. Thompson had conveyed the premises instead of leasing an interest in them her grantee would have •succeeded to all her rights, and if Millikin had taken as .grantee under a conveyance from Lockwood instead •of taking as assignee of a lease he would have succeeded to the same rights. This is true with respect fio ¿he interest carved out of the estate and transferred by the lease, for the lessee and assignee respectively 'took the same rights in the interest so transferred that they woufd have taken in the whole estate had it been •conveyed instead of the leasehold. It must be conceded, therefore, that if Millikin had refused to yield to Rathbun and had remained in possession he could have successfully claimed the protection of section 141 •of the tax law (Gen. Stat. 1901, § 7680), the tax deed being valid upon its face and having been of record ■more than five years, unless it should be held that the tax title had been redeemed or otherwise made in«effectual.
It is claimed that the tax title was avoided by the acceptance by Goss of the money paid for redemp tion, although the minors had no right of redemption. It is true that Goss, grantee of the tax title under Mrs. Thompson, who held it when the lease was made, could not hold the title and the money too; and it may be conceded that by accepting the money he in effect-relinquished his right to retain the title; but he could relinquish no-greater interest than he owned. The lessee, Lockwood, received nothing and relinquished nothing, and his rights could not be destroyed by the lessor or the grantee of the lessor after the lease became effective and the rights of the lessee under it had become vested.
The tax title and the outstanding original title were-united by the conveyance from Goss to the Castle heirs. If this should be treated as a merger of the-tax title, which is probably not true, it still would be only a merger of whatever estate remained in Goss to-be merged, and could not include the outstanding leasehold.. The merger, if any, would only be eoextensivewith the interest to be merged. (16 Cyc. 665; Loan Association v. Insurance Co., 74 Kan. 272.)
The principál controversy in this action is whether Millikin, 'having taken a lease under the Thompson title immediately from Lockwood and being in possession under it, should be allowed to repudiate that relation, set up an adverse title under a lease from another party, and thereby defeat the action for rents. He-claims that “although a tenant can not dispute the-title of his landlord so long as it remains as it was at the time the tenancy commenced, yet he may show that the title under which he entered has expired, or has been extinguished.” (Weichselbaum v. Curlett, 20 Kan. 709, syllabus.) The application of this principle fails because the title under which he originally entered had not been extinguished.
It is also contended that as the limitation contained' in section 141 of the tax law is only available as a defense, the plaintiff, Lockwood, can have no benefit from: its operation, since he is now seeking affirmative relief. (Walker v. Boh, 32 Kan. 354.) On the other hand, it is urged that, as the tax deed would have been a sufficient defense for Mrs. Thompson in an action of ejectment against her while she was ih possession under it, the same defense was available to Millikin had he seen fit to resist Rathbun’s. claim, and so the right of Lockwood to collect his rents remained unimpaired. It was said in Nicholson v. Hale, 73 Kan. 599, construing section 141 of the tax law:
“An exception to the rule that a statute of limitations can only be used as a shield of defense and not as a weapon of attack is recognized where the person claiming under the statute has been wrongfully dispossessed after the prescribed period has run.” (Page 602.)
It was held in that case that a party holding under a tax deed valid upon its face and of record for five years, when dispossessed by force, fraud or stealth, does not, in maintaining ejectment, enlarge the scope of his original claim, but only regains what was wrongfully taken from him. The plaintiff herb seeks no enlargement of his interest in the lease; he only seeks to recover rents which are due unless his right has been lost by the settlement between Rathbun and Millikin and the interposition of a superior title. When the action by the holders of the original title was commenced, Millikin promised Lockwood that he would attend to it and have it “fixed up”; that if Lockwood would “be patient ... he [Millikin] would get that fixed up and drill the premises.” Lockwood was not a party to the action, but Millikin was, and did not request Lockwood to defend it. The manner in which it was fixed up, or adjusted, was that Rathbun, who was Millikin’s attorney in that action, procured conveyances from the hostile claimants to himself and then set up an adverse title, to which Millikin at-once surrendered; then Millikin took a lease from Rathbun and proceeded vigorously with work upon the same premises. No notice of this important adjustment, was given to Lockwood until the latter, finding that oil was being marketed from the premises, asked for his. share under the Thompson lease, when his claim was. rejected and he was informed of the lease from Rathbun. It is true that some of the facts stated in this, paragraph were denied by the defendant, but, having* been testified to, they must be accepted as true under the general finding for the plaintiff. The defendant,, being in possession under an apparently valid tax deed, yielded to an inferior title. This voluntary relinquishment of his rights under the lease is not a valid reason for refusing to pay rent or perform the conditions of the assignment. (1 Taylor, Landlord & Tenant, 9th. ed., § 373.)
The only errors assigned are that plaintiff was not entitled to judgment upon the evidence, and the holding that the tax deed was not open to attack. For the reasons stated we hold that the evidence supports the judgment, and that the effect given to the tax deed was proper.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
In the district court the Krhuts were plaintiffs and Phares was defendant. The plaintiffs alleged they were the equitable owners of a tract of land which they listed for sale with the defendant, a real-estate agent, at a given price, agreeing to pay a percentage of the price as a commission, in consideration whereof the defendant undertook to -find a purchaser. The defendant found a purchaser at the stated price, but fraudulently represented he had a purchaser at a smaller sum, which was all he could obtain. The plaintiffs were induced to relinquish their interest in the land for the benefit of the purchaser, and the defendant closed the sale in a way to net the sum of $1970, which he kept. The answer denied the allegations of the petition and gave a version of the trans-' .action supposedly exculpatory of the defendant. The new matter in the answer was denied by the reply. On the trial the jury found a general verdict for the plaintiffs for the sum claimed, less the defendant’s commission, but returned special findings of fact showing unfaithfulness in the conduct of the agency. A motion for judgment on the special findings was denied, judgment was rendered on the general verdict, and each party prosecuted proceedings in error. In this court the two proceedings were consolidated, and may be disposed of together.
The land was owned by Christ Wolf, who contracted with the plaintiffs as follows:
“April 27, 1905.
“This contract, made this day by and between Christ Wolf, esq., and C. M. and Stephen Krhut, all of Trego county, Kansas, whereby said Wolf agrees to sell to said Krhuts all of section No. 33, thirty-three, in town ship 11, eleven, range 24, twenty-four, Trego county, Kansas, for the sum of twelve ($12) dollars per acre, in the following manner: Fifty dollars cash, receipt of which is hereby acknowledged, and nineteen- hundred and fifty dollars on or before September 1, 1905, and the balance, to be made in six equal notes, falling due in one, two, three, four, five and six years, respectively and each drawing six per cent, interest, and said interest to be paid annually, and said notes to be secured by a mortgage on said land.
“The essence of this contract is time, and it is .hereby agreed that if said Krhuts fail to make payment of ($1950) nineteen hundred and fifty dollars by September 1, 1905, then this contract is void and said Krhuts agree that they forfeit all their claims on it by rights of this contract. If said Krhuts make payment on or before September 1, 1905, then said Wolf agrees to give them deed for said place and take notes as above mentioned, to fall due on September 1 of each year and to draw interest from September 1, 1905, at six per cent. This contract to be deposited in the Wa Keeney State Bank, and to be held by them, and in case of failure on part of said Krhuts to comply, to be delivered to said Wolf after September 1, 1905.”
This contract supplied the only support for the allegation in the petition that the plaintiffs were the equitable owners of the land. The defendant claims it was insufficient for that purpose, and hence that there is a variance between the petition and the proof, and further contends the contract was insufficient in any event to afford a basis for recovery by the plaintiffs. •
It may be conceded the contract did not bind the plaintiffs to purchase, that it gave them mérely an option to buy, that it conveyed no estate in the land itself, and consequently that the plaintiffs were not equitable owners, as the petition alleged. It did, however, confer upon the plaintiffs the right to purchase, and bound the owner to convey to them. It gave the plaintiffs control of the title so that they could demand and compel a conveyance and so secure title to themselves, and thereby, if they desired, secure title to another. Being in a situation to enforce a conveyance by the owner, they were in a position to make a binding contract themselves to convey. They could rightfully contract to sell the land as if they had perfected their right to obtain title. Ample authority for these propositions is found in the case of Trust Co. v. McIntosh, 68 Kan. 452, 462, and they need not be debated further. What the plaintiffs c.ould do they could employ an agent .to do for them, and a subj ect of agency existed just as lawful and just as tangible as if the plaintiffs had been equitable owners, as they described themselves. '
It is a very old rule of civil procedure that only those matters which are essential to the cause of action need be proved. In this case it was of no consequence whatever whether the plaintiffs were legal owners, equitable owners, contract holders obligated to buy, option-holders, agents for the owner, or mere volunteers. Whatever their delation to the land, if the defendant undertook to act for them in selling it, did act, and fraudulently secured to himself the fruits which the agency was created to obtain, he was bound to account 'to his principals. These were the essential matters. No technical definition of the right which the plaintiffs possessed respecting the land was necessary, the mistake in characterizing the right was immaterial, and the allegation of equitable ownership in the plaintiffs did not need to be proved to establish the defendant’s liability to them.
Suppose, however, some specific right of the plaintiffs in reference to the land were necessary to recovery : the. interest of an option-holder is sufficient, and the variance between proof of such an interest and an allegation of equitable ownership would not be material unless the defendant were actually misled to his prejudice in maintaining his defense on the merits, which fact he would be obliged to prove to the satisfaction of the court. (Civ. Code, § 133.) The defendant was not only not misled, but he actually pleaded .the option contract in his answer as the true foundation of the plaintiffs’ claim, and the trial proceeded throughout upon that basis.
The defendant testified he was not engaged in the business of selling real estate, as the petition alleged, and so he says the plaintiffs failed to make out a case against him. The chief assignments of error on the part of the defendant all involve one or more of the points referred to, if the one just stated be dignified as a point. The various forms under which they are presented and- the various .ramifications of the argument need not be considered. A number of subsidiary questions are discussed, but none of them requires 'special notice.
The jury found specially the existence of the agency and a disregard of the principles of common honesty in the conduct of it. The findings are abundantly sustained. The purchaser was found and placed under contract, and the plaintiffs were fraudulently induced to relinquish their rights before the option expired. The owner performed without objection, and it makes no difference that the sale was finally consummated after September 1. . Because of his unfaithfulness the defendant forfeited his commission. (Jeffries v. Robbins, 66 Kan. 427.)
The defendant admits a demand upon him and a refusal to settle at some time between September 19 and September 30, 1905. The amount withheld is fixed by the findings. The district court is directed to modify the judgment to include the entire sum.claimed, $1970, and interest from September 30, 1905. | [
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Per Curiam:
These cases were submitted together. The judgments are affirmed upon the authority of Jones v. Hickey, ante, p. 109, Jones v. Gibbons, ante, p. 109, Petersilie v. McLachlin, ante, p. 176, and Reitler v. Harris, ante, p. 148. | [
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The opinion of the court was' delivered by
Benson, J.:
This was a suit1 to compel the specific performance of‘an oral contract to convey real ¡estate. The parties agree that such a contract was made, but disagree as to the estate to be conveyed. The plaintiff, Allbrecht, alleged that he was to have the land in fee simple for $20 per acre, while the defendants, Wooddell and wife, assert that an estate for the life of the vendee ■only was sold. The plaintiff took immediate possession of the land, made lasting and valuable improvements upon it, and paid the taxes. After holding and ■cultivating the land under the agreement for dver five years, and after paying the consideration in full, the plaintiff demanded a conveyance. The defendants refused to convey the fee, but offered to convey a life-estate, which the plaintiff refused to accept. The court found for the plaintiff. The defendants. allege error in the principal finding — that the agreement was to ■convey the land in fee instead of a life-estate.
The contract arose out of conversations between the plaintiff and defendant Charles N. Wooddell. According to the plaintiff’s version of these conversations he purchased the land in fee and not a life-estate in it. His testimony was corroborated by witnesses who related statements made afterward by Mr. Wooddell tending to prove that he had > made such sale. A mortgage which was afterward made by the defendants upon the same land, and which was read in evidence, contained a recital that it was “subject to a contract or bond for a deed to Gus Allbrecht.” A real-estate agent testified that he had been authorized to sell the land at the price afterward paid by the plaintiff, and that at the request of Mr. Wooddell he assisted in this sale. On the other hand the defendants’ version of the conversations out of which the contract arose, and of a conversation with Mrs. Wooddell afterward, tended to prove that the contract was for the sale of a life-estate only, the remainder to vest in their son. Witr nesses for the defendants testified to statements made by the plaintiff tending to corroborate the defendants’ testimony. Other circumstances were shown proper to be considered in finding the facts.
It is .contended that specific performance can not be decreed unless it is shown by clear and satisfactory evidence that the possession was taken and that the improvements were made under the contract alleged by the plaintiff; that in this case' these acts were as consistent with the contract testified to by the defendants as that claimed by the plaintiff; and that the evidence was therefore insufficient. The measure of proof required in this general class of cases is stated and the terms used in defining it are commented upon iff Winston v. Burnell, 44 Kan. 367. Clear and satisfactory evidence should, be required to take the case of a parol contract for the conveyance of land out of the operation of the statute of frauds (Long v. Duncan, 10 Kan. 294; Baldwin v. Baldwin, 73 Kan. 39, 46), but, where the findings are supported by competent and substantial testimony, it will be presumed that the district court, applied the proper test in weighing the evidence and finding the facts. (Leverton v. Rork, 74 Kan. 832; Anderson v. Anderson, 75 Kan. 117; Bichel v. Oliver, 77 Kan. 696.)
Error is predicated upon testimony given in support, of a finding of the court that the defendants had offered to sell this land to others at the same price for which it was sold to the plaintiff. This finding is not necessary to support the judgment. The fact, however, is. corroborative of the principal finding, and the evidence supporting it was the testimony of the agent before referred to that he was authorized in the spring of 1901 to sell the land at $20 per acre; that in September following Mr. Wooddell told him that he had offered it. to Allbreeht and could give a bond for a deed at that, price, and asked him to “get after” Allbreeht and see if the sale could be made; and that soon afterward Mr. Wooddell said that he had made the sale. This evidence was competent and material. In the absence of restrictions the authorization of an agent to sell lands indicates an intention to transfer the full title of the prin cipal.
.Error is also assigned upon the refusal to grant a new trial upon newly discovered evidence. As this alleged error is not referred to in the brief it may be inferred that it is not relied upon. We have read the affidavits, however, and find no error in the denial of the motion or in other proceedings.
The judgment is affirmed. | [
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Per Curiam:
The chief law question argued in this case was determined adversely to the defendant in the case of The State v. Rose, 74 Kan. 262. The question was squarely presented, fully considered, and clearly decided. The case of The State, ex rel., v. Wilson, 30 Kan. 661, was distinguished and the conclusion reached that the statute in controversy contemplates that the forfeiture may be ascertained and declared in the quo warranto proceedings provided for. Notwithstanding the able argument of counsel for the defendant the court is satisfied with the decision in the Rose case, and declines to disturb it.
The commissioner’s findings having been attacked as unsupported by the evidence, the court has gone directly to the evidence taken by the commissioner, and upon the evidence finds that the defendant had full actual notice, aside from the matter of general reputation, of violations of the liquor law in specific bawdy-houses, and that he failed to notify the county attorney of the facts of'such violations, as the statute requires. Therefore he has forfeited his office, and the judgment of the court is that he be ousted.
The costs incident to the proceedings of the commissioner are divided between the defendant and the city of Hutchinson, the defendant in The State v. Hutchinson, post. The other costs follow the judgment. | [
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Per Curiam:
Only one question is involved in this case, viz., the validity of section 1 of chapter 373 of the Laws of 1907, which provides that certain notations on the records of school-land sales by the county clerk shall be prima fade evidence that proper notice of the purchaser’s default had been issued and legal service thereof made.
The court decided this question in accordance with the views expressed by this court in Jones v. Hickey, ante, p. 109, Reitler v. Harris, ante, p. 148, and Petersilie v. McLachlin, ante, p. 176.
The judgment is affirmed. | [
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The opinion of the court was delivered by
BURCH, J.:
In October, 1892' the New England Loan and Trust Company instituted a foreclosure suit against Sexsmith, Brown and others, upon a note and mortgage given by Sexsmith, who was served personally and who made default. Brown demurred, afterward answered, and the plaintiff replied to his answer. The cause came on for hearing on April 28, 1893, when a personal judgment was rendered for the plaintiff against Sexsmith, the plaintiff’s mortgage was foreclosed, and the land was ordered sold for its satisfaction. At the same time and as a part of the same decree the following order was entered:
“It appearing .upon the trial that one. G. G. Shellabarger claims to have some interest in and to the above-mentioned land and premises, the plaintiff is allowed by the court to make the said G. G. Shellabarger a party defendant, and it is ordered that this cause stand continued for service as to such defendant.”
The plaintiff amended the petition instanter. Shellabarger was served with summons on July 27, 1893„ and by leave of court he filed an answer on September-21, 1893. Shellabarger set up a note and mortgage given by Sexsmith to Brown, which had been duly-transferred, and asked for .a personal judgment against Sexsmith and a second lien on the land. Sexsmith still being in default, Shellabarger took a personal judgment against him on January 12, 1894. In May, 1907, Sexsmith moved to vacate this judgment as void for want of jurisdiction, the motion was sustained, and Shellabarger prosecutes error.
In support of the ruling on the motion Gruble v. Wood, 27 Kan. 535, and Clay v. Hildebrand, 44 Kan. 481, are cited. In Gruble v. Wood an ordinary money judgment was rendered against Gruble and then allowed to become dormant. Afterward an effort was made to revive the judgment without consent. Instead of the statutory notice essential to such a proceeding an ordinary summons was served commanding Gruble to appear and answer the petition. An order of revivor was based on this process, execution was issued on the judgment, and Gruble’s land was sold to Hadley, who conveyed to Wood. Wood brought ejectment, and Gruble contended that the order of revivor was void, that the judgment was lifeless, and that the execution proceedings were without legal effect. This contention the court sustained because the revivor statute had not been followed. The court said:
' “The summons does not meet the requirements of the notice prescribed to be served before an order of revivor of a dormant judgment can be made, and as the judgment of March 13, 1872, was final in its character the defendants therein were acquit and dismissed without day at the close of the term at which it was rendered. No further action could be taken in the case prejudicial to their interests without notice to them. If the plaintiff in that judgment desired to revive it, he must have pursued the course pointed out by the statute. The terms of a notice for the application of an order of revivor to be served before the order -shall be made are clearly set forth in the statute, and although such notice is to be served in the same manner and returned within the same time as an ordinary summons, yet, to give the court jurisdiction, the notice must be in substantial compliance with the statute. As the summons issued in no way complied with the statute, it can not be said that the notice was merely defective. A summons was issued, but no notice.” (Page 537.)
In this case the judgment was not final in its character. The court found that Shellabarger claimed an interest in the land, and held the litigation open for the purpose of bringing him into it and settling all issues he might present legally determinable in the action. What the final determination of the rights of the parties would be was contingent upon the character of his answer. True, the plaintiff took a judgment binding upon Sexsmith unless duly opened, but the determination of all issues which Shellabarger might raise affecting the rights of the parties to the, action, including Sexsmith, necessarily remained in abeyance.
In Clay v. Hildebrand, supra, an action was brought to foreclose several mortgages. The defendants were numerous. One of them sought to have a deed reformed and declared to be a mortgage, and another sought to have a mortgage foreclosed. Separate tracts of real estate were involved, several of which were owned by different persons. ■ Clay was made a party but was not served. A comprehensive judgment was rendered on June 23, 1884, and afterward portions of the property were sold pursuant to the judgment and the sales were confirmed. With affairs in this situation Clay came in, on December 8, 1885, moved that the judgment be set aside as to him for want of service, and asked permission to answer. The motion was allowed and leave to answer was granted. On January 16, 1886, he filed an answer and asked affirmative relief which, if awarded, would have disturbed the entire judgment and would have affected the rights of almost all the parties to the action. Nobody but the plaintiff had any notice of the leave to answer or of'the answer itself. The court permitted issues between Clay and the plaintiff to be framed and adjudicated, but declined to overturn the proceedings further, and except as stated virtually dismissed Clay's cross-petition without prejudice to an independent action for the same relief. This court held the conduct of the district court was not erroneous. The syllabus of the case reads:
“Where a person whom the plaintiff intended to make one of various defendants in an action procures the judgment rendered in the case to be set aside as to him upon the ground that no sufficient service of summons was ever made upon him, and afterward he files an answer in the action setting up new matter and grounds for affirmative relief, which would affect' the rights and interests of several of the other parties and other persons without giving such other parties or persons any notice or any opportunity to appear and defend, the court may, upon the hearing on such answer, without committing material error, refuse to grant the relief prayed for in such answer, and in effect dismiss this new proceeding without prejudice.” (44 Kan. 481.)
It is very obvious that this decision sheds no light on the present controversy. If on June 23, 1884, while all parties were in court for all purposes, it had been found necessary to a full and complete adjudication that Clay should be brought into the case, and the court had so ordered, at the same time entering up such judgments as were then warranted, a situation similar to the one now presented would have existed. Instead of this Clay stood substantially in the position of a stranger voluntarily seeking to intervene after judgment had been entered and largely executed, and seeking by the institution of essentially original proceedings to overthrow, without notice, all that had been accomplished by the litigation. It will be observed, also, that the court did not hold that jurisdiction to entertain Clay’s answer was lost on the rendition of judgment, or that original process was necessary to bring it to the attention of the defendants affected by it. But the decision is that because of the radical character and effect of the answer, the state of the case at the time it was filed, and the lack of notice to the parties interested, it was not improper to relegate Clay to an independent suit for the relief he desired.
In Kimball and others v. Connor, Starks and others, 3 Kan. 414, it was decided that a defendant duly served with summons is in court for every purpose connected with the action and is bound to take notice of every step taken therein. In Curry v. Janicke, 48 Kan. 168, it was held that a defendant in default was bound to take notice of a cross-petition filed against him by a party admitted as a defendant after the answer-day named in the summons. In Jones v. Standiferd, 69 Kan. 513, an action was brought to foreclose a mechanic’s lien on two quarter-sections of land. The landowners made default'in September. In the following January the court ordered other lien-holders to be made parties, one of whom answered setting up a mortgage covering other land, which was duly foreclosed. It was held that the landowner was bound to take notice of this answer, the court remarking that he ought reasonably to have expected that his mortgagee would come in and assert his rights. So here, Sexsmith ought reasonably to have expected that the holder of the second mortgage would come in, or be brought in, and assert his rights, which included the right to a personal judgment against him. Even under the doctrine of Gruble v. Wood, supra, he could not be acquit and discharged from further note of the proceedings until the end of the term at which final judgment was rendered. Until then he was bound to give heed to every order affecting his interests. The order to make Shellabarger a party was made while he was in court for all purposes, and the order of itself kept the proceedings open for any attack which Shellabarger might make upon him in the cause.
The fact that Shellabarger was not served for more than sixty days after the order and the amendment to the petition making him a party might have some bearing on the case if the statute of limitations were involved, but it is not. This is the common case of bringing into an ordinary foreclosure suit for all pur poses an omitted party claiming a lien, and the doctrine of severance has no application whatever.
The judgment is reversed, and the case remanded with instructions to deny the motion. | [
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The opinion of the court was delivered by
Porter, J.:
The case comes here upon a transcript showing the pleadings, instructions, verdict, special findings, judgment and ruling on the motion for judgment on the special findings, without the evidence; and the single question to be determined is whether on the findings the defendant is entitled to a judgment in its favor. The findings show a case in many respects remarkable. The plaintiff claims to have received permanent injuries of a very serious nature, which have' affected her brain and nervous system, impaired her memory, and disordered and crippled her for'life, rendering her unable to follow her usual occupation as a teacher. Her action was not begun until a few days before the statute of limitations had run against the claim. It is shown by the findings that the plaintiff is a woman of education, a graduate of the Kansas University, and that she was engaged for a number of years in teaching school; that after the accident and before she signed the release she was pursuing her usual vocation as a teacher, in regular attendance at - a teachers’ institute, riding to and from her home on a bicycle. It is apparent that the release was not obtained when- she was suffering pain or in distress by reason of her injuries and' therefore in a condition to be -easily duped into signing away her rights. The findings are that she wrote on each of the vouchers in her own handwriting, “I have read the above voucher and fully understand the same”; that by the exercise of ordinary care she could have informed herself of the contents of the papers; that as a part of the same transaction she indorsed the cheek given to her by writing her name on the back thereof before it was paid; that she was able to read the release; that her eyesight was good at the time, and she was in possession of her faculties; that she had an opportunity to read it before she signed it if she wished or desired to do so; that there was sufficient light in the room for her to see and read it, and that the agent was not urging her to use haste in signing. The release plainly states that it is in settlement of all claims or causes of action and demands whatsoever against the defendant growing out of injuries sustained by her while a passenger and caused by the rough handling of a train at Williams, Ariz. The claim is described as that of Ella D. Coltrane against the Atchison, Topeka & Santa Fe Railway Company. The receipt is the acknowledgment of the payment of the money by the company in settlement for injuries, and there is nowhere in it a word to indicate that it is in payment of Pullman fare.
There are two findings of the jury (Nos. 20 and 21) which say she was prevented from reading the release by the statements of Mr. Zimmerman, but none of the findings discloses what those statements were. In the absence of any testimony we can only construe these findings by the averments of the reply, which are to the effect that he stated that the paper or receipt was merely a voucher showing that plaintiff had received back her Pullman fare. The jury", however, in answer to question No. 8, found that when he delivered to her the draft or'check for $10.50 he made no statement that the same was given in payment of her Pullman fare. We are asked by the plaintiff to construe this finding to mean merely that the agent made no such statement at the exact instant when he handed her the draft, and to hold that the jury intended so to limit their answer; and it is argued that the general verdict carries with it a presumption that the jury further found the fact to be that at some other time during the transaction he .said to her that the draft was inténded to pay the amount of her Pullman fare. Obviously the jury could not have intended to draw such hair-splitting distinctions and separate the occurrence of matters which all took place during the three or four minutes occupied by the transaction. The language of the reply itself is that “at said time, with intent to deceive,” etc., he “stated, represented and pretended that the said paper, or receipt, was merely a voucher,”' etc. The reply further states that she signed the draft “as a part of the same transaction.”
A written contract can always be explained or impeached by parol testimony, and should not be permitted to stand, where it is shown to have been obtained by fraud. (Shook v. Manufacturing Co,, 75 Kan. 301; Disney v. Jewelry Co., 76 Kan. 145; Railway Co. v. Peck, 79 Kan. 413.) But courts will not, upon conflicting or uncertain evidence of fraud or mistake, lightly disturb agreements made in settlement of claims of this nature. In our opinion a release executed by an intelligent, educated person, Under all the circumstances disclosed by the findings, should require a substantial finding of some fact showing fraud or undue advantage before it should be set aside.
In Deming v. Wallace, 73 Kan. 291, it was charged that the fraud consisted in inducing Wallace to sign notes and a mortgage. The evidence showed that the agents of the investment company urged him to be quick about signing, and that he was not given time to read the papers. There were other circumstances in that case which excused his failure to read and know the contents of the papers signed and which are wholly absent from the case at bar.
In the case of Jewelry Co. v. Bennett, 75 Kan. 743, it appeared that Bennett’s eyesight was so defective that he was not able to read writing, and there were circumstances there which'in the opinion of the court justified his relying upon the statements of the agent as to the contents of the papers.
In Chicago & N. W. Ry. Co. v. Wilcox, 116 Fed. 913, where it was sought to set aside a written agreement of settlement and release, it was said:
“The burden is always upon the assailant of the contract to establish the vice which he alleges induced it, and a b.are preponderance of evidence will not sustain the burden. A written agreement of settlement and release may not be rescinded for fraud or mistake, unless the evidence of the fraud or mistake is clear, unequivocal, and convincing.” (Page 914.)
No fact was found by the jury indicating that any confidential relation existed between the agent and the plaintiff which justified her in relying upon his statements as to what the contents of the paper were. According to her own theory she knew when she signed the paper that it was contractual and in settlement of some kind of a claim or that it was a receipt of some nature. Where the relations between the parties are contractual, and not confidential, it is generally the duty of the party to whom the statement is made to ascertain the truth, if he has available means of knowing the truth by the exercise of ordinary prudence and intelligence. The jury said, in substance, that the plaintiff had available means of ascertaining the truth by the exercise of ordinary prudence. She had every opportunity to read the paper before signing it, and it was her duty to do so; she wrote an express statement above her signature to the effect that she had read it, and in our opinion she ought to be bound by its terms, unless some fact is shown or found clearly indicating that her signature to it was obtained by fraud or mistake.
It follows that the judgment must be reversed and the cause remanded, with directions to enter judgment in favor of the defendant. | [
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Per Curiam:
The foreclosure judgment interposed as a defense to the action is good against the collateral attack here made upon it. The affidavit for publication service did not need to describe the land. (Sharpe v. McColm, 79 Kan. 772.) Inferentially, at least, non-residence negatived a usual place of residence in this state where summons might be served, and personal absence from the state precluded personal delivery of summons. This is sufficient against collateral attack. (Harris v. Claflin, 36 Kan. 543; Morris v. Sadler, 74 Kan. 892.) The publication notice contained everything specified in the statute. The matter which it is claimed was omitted from the notice is not one of the statutory specifications. The objections made to the petition would not have furnished serious ground for a motion to make more definite and certain. Very clearly the petition was not a complete nullity, as it must be to render the judgment a nullity. It is not necessary to consider other defenses.
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The opinion of the court was delivered by •
West, J.:
The plaintiff procured a temporary injunction against the defendants, restraining them from levying a certain tax warrant, and from a judgment vacating such injunction and for costs this appeal is taken. ’ The plaintiff is a piano company, an Illinois corporation with its office and head ■quarters at Chicago, and had a branch of its selling business at Topeka in charge of a manager, a portion of its instruments being sold on credit by installments, the purchaser executing a conditional sale contract in which he promises to make payment at the Chicago office, the seller to retain title until the payments, are made. The usual course of business was to forward the originals to the home office where they were retained, copies being returned to the register of deeds for filing. Some of the customers sent their payments to Chicago, but it was admitted that practically all made them at the local office where credit was given on the books, the cash being sent to Chicago. It was testified that neither the sale contracts nor the payments made on them were permitted to be used in the business at Topeka and that the proceeds of local cash sales were kept distinct and separate from those received on these contracts. The taxation of $1500 worth of these contracts gave rise to this controversy, the plaintiff claiming that they had ho taxable situs in Shawnee county. The court made no findings of fact, but there was testihiony in support of the plaintiff’s claims, as already indicated. It was also brought out that as each payment matures a notice is mailed to the customer from the Chicago office with a notation that the payments may be made if desired at the Topeka store, to which the note is sent, thus giving the customer the option to pay here, although the ■contracts are, by their terms, payable at Chicago; that all the. proceeds are sent to Chicago and no part thereof retained for use here; that whenever money is needed it is remitted from the Chicago office, although usually the local offices are supposed to be self-supporting. In a large number of cases the instruments were bought on monthly payments which were made at the local office and by those in charge remitted to the home office.
The defendants contend that the plaintiff maintained a store ■and 'stock of goods in Topeka; that notes for deferred payments on pianos sold, while on their faces payable in Chicago, were almost invariably paid here, and that the important question is whether or not a foreign corporation may establish a store here, carry a stock and avoid taxation upon its credits arising out of its business, thus gaining a preference over local enterprises. Admitting that only property in its jurisdiction may be taxed by the state, they argue that the business situs of the notes was in Topeka, where they had for the purposes of collection the protection of Kansas laws. The general provision of the corporation act (Gen. Stat. 1909, § 1724), that foreign corporations doing business here are under like restrictions and obligations as domestic corporations, is invoked, and also section 9223 of the General Statutes of 1909 which requires property of merchants to be listed where their business is usually done, which counsel concede means only property employed in such business and not all the property owned by such merchants.
Returns for taxation were voluntarily made on the local bank account and average stock on hand, so that, as suggested by plaintiff, the pianos for which the contracts -in question were given were taxed in this jurisdiction.
It can not be said and.it is not claimed that these notes were ' in Kansas on the first of March or that they ever remained here for any length of time. There is no showing that they were used in business here or otherwise than for collection and remittance to the home office. Counsel for the defendants put the matter thus:
“Do the statutes authorize their taxation; and, Are they subject to the taxing jurisdiction of the state? This last question means: Is it equitable that the credits should be taxed here and not elsewhere?”
Section 9214 of the General Statutes of 1909 reads:
“That all property in this state, real and personal, not expressly exempt therefrom, shall be subject to taxation in the manner prescribed by this act.”
Section 9215 provides:
“The term ‘personal property’ shall include 1 . . all other assets of every company, incorporated or unincorporated, and every share or -interest in such . . . assets, by whatever name the same may be designated.”
Section 9221:
“Money collected by any agent for any . . . corporation which is to be transmitted immediately' to such . . . corporation shall not be listed by such agent; but such agent shall be required by the assessor [to] state under oath the .amount of money in his hands and to whom the same is to be transmitted.”
In Wilcox v. Ellis, Treasurer, 14 Kan. 588, a resident of Butler county who had contracted to sell certain land in Illinois had taken notes therefor which were deposited with certain bankers in that state and it was held that he was not taxable here upon these notes. In the opinion it was said:
“Then, what is there in Kansas to be taxed? Certainly no tangib’e property, and not even any intangible property that needs any protection from our laws. Everything is and has been in Illinois. . . . Nothing pertaining to the notes, or to the debt which they evidence, has ever been in Kansas except that the owner of the notes resides in Kansas.” (p. 602.)
Prominence was given to the fact that the owner of the notes still owned the land and was liable for the taxes thereon, and the injustice of requiring him to pay the additional tax on the notes whenever within the jurisdiction of this staté was considered. In Fisher v. Comm’rs of Rush Co., 19 Kan. 414, a citizen of Rush county, who had sold certain real estate in Iowa and received promissory notes in part consideration secured by mortgage thereon, both made payable in Iowa and left there for collection, and had never been in Kansas, was held not liable here for taxes thereon. The correlative terms of taxation and protection were given force in the decision and it was pointed out that personalty does not always follow the owner if the business transacted, or the situs of the notes, be not in the state where the owner resides. In Gibbins v. Adamson, 5 Kan. App. 90, 48 Pac. 871, it was found that the plaintiff was the owner of a mortgage on lands in Jackson county securing a note for $6000, but having given his own note for $2800 to a resident of Missouri, had indorsed the $6000 note and assigned the mortgage to him as collateral security and they were thereafter continuously held in Missouri until after March 1, 1887; that March 24, 1887, the mortgage note having been paid to the plaintiff the mortgage was released by the Missouri holder and it was held that the plaintiff was properly chargeable with taxes thereon, his domicile being deemed the taxable situs. This was affirmed by this court (Gibbins v. Adamson, post, p. 308, 51 Pac. 1101.) It was held in Kingman Co. v. Leonard, 57 Kan. 531, 46 Pac. 960, that judgments rendered by the courts of this state in favor of and owned by citizens of other states are not taxable here. It was said to be quite well settled that choses in action belonging to a nonresident in the hands of a managing agent within the state are taxable. Also that “some weight at least should be given to the rule, that credits are generally regarded as residing with the creditor. The case of Fisher v. Comm’rs of Rusk Co., 19 Kan. 414, is an extreme one, and has been criticised.” (p. 535.) In Mecartney v. Caskey, 66 Kan. 412, 71 Pac. 832, tax-sale certificates issued by a county treasurer of this state on sales of real estate for delinquent taxes, owned by a nonresident,' were held not subject to taxation in this state. The plaintiff, a resident of California, employed an agent to bid for real estate at tax sales and the certificates were sometimes kept in California and sometimes at the agent’s office in Kansas. It was there said: “If the owner be a nonresident the certificate has no situs in this state.” (p. 414.) Kingman Co. v. Leonard, supra, was followed as controlling authority, and attention was called (p. 415) to the criticism therein of Fisher v. Comm’rs of Rush Co., supra. In Johnson County v. Hewitt, 76 Kan. 816, 93 Pac. 181, promissory notes belonging to a nonresident of Kansas given by a resident of Missouri and secured by trust deeds of real estate in Missouri, which had never been brought into this state but which were left for safekeeping only in a bank vault in Missouri, were held to constitute personal property with its location at the residence of the owner. It was pointed out (p. 821) that the statute places tax-sale certificates, judgments, notes, bonds, and mortgages, and all evidences of debt secured by a lien on real estate in the same category and distinguishes them from tangible personal property. Kingman County v. Leonard, 57 Kan. 531, 46 Pac. 960, and Mecartney v. Caskey, supra, were cited (pp. 821, 822.) It was said that the doctrine that the note is only the evidence of the debt constituting the owner’s tangible property is thoroughly established. As to the intimation that such property might acquire a situs here for the purpose of taxation, it was declared:
“Notes, mortgages, tax-sale certificates and the like might be brought into the state for something more than a temporary purpose, be devoted to some business use here and thus become incorporated with the property of this state for revenue purposes. Such a situs has aptly been termed a ‘business situs’” (Citing authorities). (p. 822.)
That to establish an independent business situs generally the element of the separation from the domicile of the owner and fairly permanent attachment to some foreign locality should appear, together with some business use of them o.r some power of managing, controlling or dealing with them in a busi-. ness way. “A merely transitory presence in a foreign state or a naked custody for safe-keeping is not enough.” (p. 823.) Also that probably the weight of authority would not now sustain the holding in Fisher v. Comm’rs of Rush Co., 19 Kan. 414, that the property had a business situs in Iowa because it was left there for collection. It was said:
“Although much confusion still exists, legal thought upon the subject of the taxation of intangible property has been considerably clarified since the opinions in the Wilcox and Fisher cases were written, and many of the arguments there advanced would now be regarded as unsatisfactory.” (p. 825.)
In the recent case of Freedom Township v. Douglas, ante, p. 176, 160 Pac. 1147, holding valid chapter 276 of the Laws of 1905, prescribing where the property of certain insurance companies shall be listed for taxation, it was stated: •
“It is entirely competent for the legislature,, except as limited by the constitution, to fix the situs of property, tangible and intangible for the purposes of taxation. (87 Cyc. 947.) In the absence of specific legislation, debts evidenced by notes and mortgages are ordinarily taxed at the domicile of the owner.” (p. 177.)
If the equities of the correlative doctrine of taxation and protection are to be considered, then so long as the notes in controversy remained in Illinois, the residence of the owner, they were' under the protection of the Illinois laws. Their transmission here for payment and remittance can not reasonably be said as a matter of law to localize them for taxation, the legislature never having evinced such a purpose.
Attention is called to the case of Liverpool & L. & G. Ins. Co. v. Board of Assessors, 221 U. S. 346, holding certain. choses in action owned by an insurance company doing business in Louisiana taxable there. But in that case the legislature had enacted, among other things, that “ ‘no nonresident, either by himself or through any agent, shall transact business here without paying to the state a corresponding tax with that exacted of its own citizens; and all bills receivable, obligations, or credits arising from the business done in this state are hereby declared assessable within this state, and at the business domicile of said nonresident, his agent or representative.’ ” (p. 350.) The effect of the decision was that the legislature had power thus to localize for the purpose of taxation the situs of the credits there involved. But here we find no expression of legislative intention to fix a local situs, and, whether important or not, no equitable pressure requiring such localization.
The situation presented is one which under the general rule permits and calls for the operation of the maxim that personal property follows the domicile of the owner.
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The opinion of the court was delivered by
Porter, J.:
This is an appeal from an order of the district court overruling defendant’s demurrer to plaintiff’s petition. The action was to, recover damages in the sum of $22,460 for the death of plaintiff’s husband, Charles Roebuck, a section foreman in its employ, who was killed by Jose Negreta, a Mexican, employed in Roebuck’s section gang.
The petition alleges that Charles Roebuck died as a result of being stabbed on the 24th day of June, 1915, by one Jose Negreta; that both men were at that time in the employ of the defendant within the scope of their employment; that the assault which caused the death of the decedent was without warning, and without provocation or fault on his part. It alleges that the decedent was straw boss, or extra gang foreman, and took his orders from J. Carlson, roadmaster, and J. F. McNally, assistant division superintendent of the defendant company; that on the 7th day of March, 1915, he notified Carlson, in . writing, that he could not get along with Negreta, that the latter had cursed him, and that he had told Negreta to go home, that he could not use him any longer. It alleges that the next day Carlson telegraphed him to put Negreta back to work, by order of McNally, assistant division superintendent; that on the 9th day of March the decedent notified McNally that it would be impossible for him to work Negreta, owing to his quarrelsome disposition, that Negreta was a dangerous man and bore such a reputation; that he had • "killed one or two men, and he (the decedent) did not care ■about his taking a shot at him; that thereafter the roadmaster advised him verbally that he had no reason to fear a personal ■attack or encounter from Negreta, and ordered him to keep 'Negreta at work, and stated that the company would see that no harm came to decedent, and would protect him; that relying upon the assurances, the decedent, under the ordex*s of Carlson and McNally, continued in defendant’s employ as foreman of the extra gang while Negreta remained a member thereof.
The negligence charged is that the defendant did not furnish Roebuck a safe place in which to work, in that it did not furnish him safe instrumentalities, means and help with which he was to perform his work, and in retaining Negreta in its employ in the gang which Roebuck was employed to boss, after defendant had been notified of the violent, dangerous, vicious and malicious habits and reputation of Negreta, all of which the petition' alleges the defendant knew or might have known, but failed to make any investigation thereof after being notified. The petition alleges that the' decedent had no authority to finally discharge any member of the extra gang without the consent of Carlson or McNally, and that Negreta well knew this fact and knew that the decedent was compelled, by the direction of Carlson and McNally, to keep Negreta at work under him.
The defendant is a common carrier doing both an intrastate and interstate business, and the petition alleges that the track on which the decedent and Jose Negreta were laboring at the time of the assault was then being used by the defendant for such business.
The action is brought under the federal employers’ liability law, which provides that every common carrier by railroad, while engaged in interstate commerce, shall be liable in damages for the injury or death of any person while he is employed by such carrier in such commerce, “resulting in whole or in part from- the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track/ roadbed, works, boats, wharves or other equipment.” (Part 1, 35 U. S. Stat. at Large, ch. 149, § 1, p. 65.)
Although the petition alleges that at the time the act was committed both Roebuck and Negreta were engaged in work within the scope of their employment, it is not contended that Negreta’s act in stabbing Roebuck was done in the scope of his duty as an employee of the defendant. This, it is conceded, was an independent act of Negreta’s outside the scope of his duties to the railway company. The plaintiff’s contention that the case falls squarely within the provisions of the federal employers’ liability law is based on the claim that defendant failed to furnish Roebuck a safe place to work, “in that it did not furnish him with safe instrumentalities, means and help” with which to perform his work. In this connec tion it is said, too, that Carlson and McNally had authority to discharge both Roebuck and Negreta, and that the former had a right to rely upon the- assurances given him by his superior officers that they would protect him and that no harm would come to him by reason of Negreta being kept at work under him.
As we construe the petition, the negligence upon which the plaintiff seeks to rely is not Negreta’s act in stabbing Roebuck, but the the negligence of the defendant in continuing Negreta in its employ in Roebuck’s gang after being notified of the violent, vicious and dangerous disposition of Negreta. The plaintiff’s brief assumes, and it is doubtless true, that defendant’s liability would be no greater because Roebuck notified defendant of Negreta’s vicious and dangerous disposition, provided defendant had actual or constructive notice thereof.
The defendant’s main contention, briefly'stated, is that the federal employers’ liability act provides a remedy only in cases where the employee is killed or injured from a cause incidental to or arising out of railway employment, and that therefore the ordinary rules governing the relation of master and servant necessarily apply, and the master is liable only where he has been negligent in the performance of some duty imposed upon him as master.
Counsel for plaintiff objects to what is termed the “sweeping theory” advanced by the defendant that the ordinary rules governing master and servant must apply in this case, and in-, sists that under the common-law rule of master and servant the master is liable only where he has been negligent, while in an action brought under the federal employers’ liability law the carrier is liable for death or injury which results not only from the negligence of the master, but also by that of its officers, agents or employees.
But the common law of master and servant as administered in this country and England for more than half a century has held the master liable not only for his own acts of negligence, but for those committed by his agents or. servants in the course of their employment, upon the well-settled maxim qui facit per alium, facit per se. When the principle, respondeat superior, was first adopted, it applied only to the negligent acts of the master, and this continued to be the law for many years, the decisions following the leading English case of M’Manus v. Crickett (1800) 1 East, 106, 5 Revised Rep. 518. In the past fifty years the authority of that case has gradually been repudiated by courts everywhere. (Mott v. Consumers’ Ice Company, [1878] 73 N. Y. 543.)
In Barlow v. Emmert, (1872) 10 Kan. 358, it was intimated in the opinion, or at least taken for granted, that the master would not be liable for a willful trespass committed by his servants, and that case has been cited as the law of Kansas. However, in Hudson v. M. K. & T. Rly. Co., (1876) 16 Kan. 470, the maxims, respondeat superior, and qui facit per alium, facit per se were recognized as applying to the tortious or wrongful acts of the servant, provided they were done in the course of or within the scope of such servant’s, employment. Moreover, even in those jurisdictions where the fellow-servant doctrine has been maintained in all its strictness, the courts have uniformly recognized an exception to that doctrine and have held the master liable for injuries to servants arising from such negligence of fellow servants as are due to their incompetency, if the master himself has been negligent in the selection of incompetent servants or has kept incompetent servants after notice of their unfitness, or where by using ordinary care and diligence he might have known of such unfitness. (Hilts v. Chic. & G. T. Ry., 55 Mich. 437; Gilman v. Eastern Railroad Corporation, [1865] 92 Mass. 233. In th§ last cited case it was said:
“But it is quite as well settled, both in England and America, that a master is bound to use ordinary care in providing his structures and engines, and in selecting his servants, and is liable to any of their fellow-servants for.his negligence in this regard (Citing cases).” (p. 238.)
The federal act takes away from the carrier defenses formerly available to it by eliminating the doctrine of fellow servant and by the modification of the doctrines of contributory negligence and assumption of risk. Aside from these exceptions, it is conceded by counsel for plaintiff that the ordinary rules of master and servant control and govern the present case.
The present case is not free from difficulty. It is one of first impression in this court; and with the exception of one case, to be presently noticed, and which did not arise under the fed eral act, we have been cited to no similar case where it has been held that such an action would lie. The federal employers’ liability law gives a right to recover for injury or death of an employee of an interstate carrier “resulting in whole or in part from the carrier’s negligence,” and the present action is predicated solely upon the negligence of the defendant carrier in retaining in its employ a vicious, turbulent and dangerous fellow servant of plaintiff’s intestate, with actual notice of the dangerous character of such fellow servant.
The difficulties which present themselves are these: It is conceded, indeed it could not be seriously contended otherwise, that Negreta, when he stabbed plaintiff’s intestate, was not engaged in carrying on the work which.he had been employed to do, nor in the furtherance of that work. His criminal act was outside and beyond the scope of his employment. The duty which the law imposes on the master to exercise ordinary care in the selection of competent and suitable fellow servants has uniformly been applied, so far as we have been able to discover, only where the alleged incompetency had reference to the duties which the servant was employed to perform. As a rule the cases where the master has been held liable for the failure to perform this duty have been those where he has negligently retained in his employ a servant addicted to drunkenness, which rendered the servant unfit and thereby caused some accident resulting in injury to another servant,* or where the master retained in his employ inexperienced or unskillful servants whose blunders and mistakes have caused injury to another servant; or where the injury was occasioned by the master’s failure to have a sufficient number of servants to perform the work. The master’s negligence, in other words, has always been predicated on his failure to perform some duty which the law imposes, upon him. as master and which he owes to the servant.
In the cases heretofore decided by this court, where it has been sought to hold the master liable for the tortious act of the servant, the principal inquiry has always been whether the servant was acting in the course or scope of his employment. (Sipult v. Land and Grain Co., 94 Kan. 224, 146 Pac. 329, and cases cited in the opinion.)
“The difficult question in all eases is whether the particular act was really within the scope of the servant’s employment.” (26 Cyc. 1526.)
In the Crelly case, the local manager of a telephone company demanded of an operator of the company, who was about to quit the service, that she sign a voucher for compensation due her, and when she refused to sign the same he violently assaulted and beat her. It was held that the plaintiff could not recover against the company because the act complained of was not done by the servant as a means or for the purpose of performing the duties assigned him by the master. It was said in the opinion:
“No circumstances indicate that the company contemplated the use of force to obtain signatures to vouchers, nor was there anything to show any connection between the assault and any duty which devolved on Casen [the manager].” (p. 22.)
It was also said in the opinion, quoting from 26 Cyc. 1526:
“ ‘The test is not the character of the act, nor whether it was done during the existence of the servant’s employment; but whether the injury complained of was committed by the authority of the master expressly conferred or fairly implied in the nature of the employment and the duties incident to it.’ ” (Crelly v. Telephone Co., 84 Kan. 19, 23, 113 Pac. 386.)
In Kemp v. Railway Co., 91 Kan. 477, 138 Pac. 621, a brakeman on a freight train of defendant, after ejecting trespassers from the train, left the train, ran after them and fired a shot which caused the death of one of them. It was held, the facts being undisputed, to be a question of law for the court to determine whether the brakeman was acting within the scope of his employment; and this question the court answered in the negative. It was said in the opinion with reference to the exact meaning of the phrase “scope of the employment” that “thé act must not only be done in the t’ime, but in pursuance of the objects of the employment, in furtherance of duty. If done solely to accomplish the employee’s • own purpose or device, although in an interval of his regular service, the employer is not liable.” (p. 481.) The opinion distinguishes “between acts done by the servant in pursuing his own ends, although done in the time covered by his employment, and those done in pursuance of his duty in the course of his employment” (p. 481), quoting from the opinion in Morier v. St, Paul, Minneapolis & Manitoba Ry. Co., 31 Minn. 351, as follows:
“ ‘If the servant step aside from his master’s business, for however short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended. Such, variously expressed, is the uniform doctrine laid down by all authorities, (p.353.)’. (1 Thompson’s Commentaries on the Law of Negligence, § 526.)” (p. 481.)
One of the cases cited and relied upon by the plaintiff is Lamb v. Littman, 128 N. Car. 361. There an employer was held liable for an assault committed upon a child in his employ by his overseer who was in command of the department in which the plaintiff was a floor sweeper. The opinion contains but a meager statement of the facts. It was said in the opinion, however, “but it appears that the injury received was caused by the violent handling of plaintiff by defendant’s alter ego in urging him to the proper performance of his work.” (p. 365.) It was distinctly held, therefore, that the overseer was representing the master at the time the assault was committed, and where this is- true there can be no manner of doubt but that the master is liable. The case is not one which throws any light on the question we have under consideration.
The principal case relied upon by the plaintiff is Missouri, K. & T. Rly. Co. of Texas v. Day, 104 Tex. 237. Paragraph 2 of the syllabus in that case reads:
“The master may be held liable for negligence in the selection of an unfit servant — intemperate in habits and violent in disposition where injury in consequence thereof results from his assault on another employee in an altercation over the performance of the master’s work, as well as in the case of injury by negligence of such unfit servant.”
The servant who committed the assault was “straw boss,” and in the .absence of the foreman of the bridge gang in which the plaintiff was employed, acted as assistant foreman. The foreman, when present, controlled the gang, but the straw boss was expected to lead in the work and tell the men what to do when he received his orders from the foreman. The plaintiff testified that he was at work with the bridge gang, and that the foreman was present directing the work; the straw boss kept calling on the men to load the material and swore at them. The foreman himself had given another order, but the straw boss kept calling on them to load. “We were confused by the orders. Mr. Irby had told us to do one thing, and Mr. Milan was telling us to let them go” (p. 239) ; that plaintiff made the remark “we will have to get somebody to tell us what to do” (p. 240) ; that the straw boss then ran toward him with a knife and assaulted plaintiff, cutting and slashing him. No cases or authorities are cited, except those which adhere to the common-law rule holding the master liable for negligence in retaining in his employ incompetent and unfit servants with notice of their unfitness. An examination of the cases cited discloses that in almost every instance the unfitness was caused by habitual drunkenness which rendered the servant incompetent to perform with safety to his fellow servants the duties he was employed to perform. Most of the comment in the opinion relates to what facts are sufficient to establish the master’s notice or knowledge of the servant’s unfitness. The/ opinion then proceeds:
“And we think there could be no difference whether the injury result from negligence in doing the master’s work, or from an assault made by a dangerous, drunken, and desperate employee, if his reputation was such that the master might reasonably have foreseen such consequences.” (p. 246.)
The opinion would be more persuasive if it were supported by the citation of some decided cases or authorities, or if it were stated in the opinion upon what ground the court ignored, without comment, the general rule that in order to hold the master liable for the willful assault of a servant the act must appear to have been committed in the course or scope of the servant’s employment. “Scope or course of employment” is not mentioned or referred to in the opinion; although stress is laid upon the fact that the assault, was committed in the presence of the foreman who was in charge of the work, and the section of the syllabus we have quoted, supra, contains expressions suggesting that the court intended to limit its declaration of law to a case.where the assault occurs in “an altercation over the performance of the master’s work.” (Syl. ¶ 2.) A careful reading of the opinion, however, shows no attempt to limit the application of the rule adopted as decisive of the case.
If this were a common-law action, wholly independent of the federal employers’ liability act, the case decided by the Texas court would be very much in point as to the facts. We should then have squarely before us the question whether the express notice given to defendant by plaintiff’s intestate touching the reputation of Negreta as a turbulent,' vicious and dangerous person; the fear Roebuck expressed to defendant that Negreta, if retained as a workman under him, would seek a quarrel and do the very thing it subsequently turned out Negreta did; the refusal of the defendant, when notified of Negreta’s dangerous proclivities, to discharge him or find employment for him elsewhere; whether or not all these facts and circumstances are sufficient to entitle plaintiff to recover.
Plaintiff’s intestate, however, was an employee, and the action is brought against the employer to recover for death alleged to’have been caused by the employer’s negligence; and since it is brought under the federal employers’ liability act, it can be maintained only upon the ground that the negligence consisted of the employer’s failure to perform some duty or obligation owing to the employee under the law which , applies to master and servant; not necessarily as this court would determine that question in a common-law action here, but as the federal courts would determine it. While the federal employers’ liability act does not define the term “negligence” of the carrier, it has been determined that the expression as used in the act is the common-law negligence of master and servant as defined by the federal courts, and that the common law as interpreted and applied in the federal courts determines what constitutes negligence; and if a state court differs with the federal courts as to what will or will not constitue negligence, the interpretation of the federal courts necessarily controls. In Richey’s Federal Employers’ Liability, 2d ed., § 52, it is said:
“The act does not undertake to define negligence or in any way limit the application of the common-law rule upon that subject, therefore what constitutes negligence in the employees or instrumentalities is determined by the common law, as interpreted and applied in the federal courts. . . . Speaking accurately there is no common law of negligence of the federal courts as distinguished from the common law of negligence of the state courts. The law of negligence is the same in both, and apparent differences of opinion arise because of the application of the law to different combinations of facts, and frequently on account of confusing negligence which may or may not be the cause of an injury and actionable negligence which unites cause and effect. . . . Should there be any difference under the state doctrine, as to what constitutes negligence at common law, and the rule in the federal courts, there is no doubt that the federal rule must control, the same as it does in contributory negligence and assumption of risk. And certain it is that in trials under the act to determine negligence, the original common-law rule is to be applied, and not the rule as restricted or enlarged by any local statutory provision.” • '
In a recent case, Seaboard Air Line v. Horton, 233 U. S. 492, it was held that the common law rule with respect to the employee’s assumption of risk of injury governs to the exclusion of any state statute abolishing the assumption of risk as a bar to an action, and it was álso held that the elimination of the defense of assumption of risk by the act itself is evidence of the intention 'of congress that in all other cases such assump-' tion of risk shall have its former effect as a complete bar to an action. In the opinion Mr. Justice Pitney, referring to the clause of the act quoted, supra, which makes the carrier liable. for injury or death of an employee, mentions the fact that the clause has two branches; “one covering the negligence of any of the officers, agents, or employees of the carrier, which has the effect of abolishing in this class of cases the common-law rule” as to fellow servants; “and the other relating to defects and insufficiencies in the cars, engines, appliances, etc.” (p. 501.) The opinion then proceeds:
“But, plainly, with respect to the latter as well as the former ground of liability, it was the intention of Congress to base the action upon negligence only, and to exclude responsibility of the carrier to its employees for defects and insufficiencies not attributable to negligence. The common-law rule is .that an employer is not a guarantor of the safety of the place of work or of the machinery and appliances of the work; the extent of its duty to its employees is to see that ordinary care and prudence are exercised, to the end that the place in which the work is to be performed and the tools and appliances of the work may be safe for the workmen. (Citing cases.)” (p. 501.)
Futher in the opinion it was said: »
“The plain effect of these words is to condition the liability upon negligence; and had there been doubt before as to the common-law rule, certainly the act now limits the responsibility of the company as indicated.” (p. 502.)
It was further said in the opinion, with reference to the modification in the statute of the defense of assumption of risk, that “eliminating the defense of assumption of risk in the cases indicated, quite plainly evidences the legislative intent that in all other cases such assumption shall have its former effect as a complete bar to the action.” (Italics ours, p. 503.)
It is a common thing in these days for statutes to be enacted abrogating some of the common-law defenses of the master to actions by an employee for injuries sustained in his employment; and very frequently statutes, such as mining acts and factory acts, compensation acts and employer’s liability acts impose upon the employer duties and liabilities which were unknown to the common law. Except .where some such statutory provision governs, we are aware of no rule of law adopted by the courts which goes to the extent of holding the master liable for the willful and criminal assault by one employee upon another,'where the assault was not expressly or impliedly authorized or within the scope of the employment. As was said in Crelly v. Telephone Co., 84 Kan. 19, 113 Pac. 386:
“The act, as in .this instance, may have been done while the servant was in the master’s service; but, unless it was expressly or impliedly authorized, or within the scope of the employment, the servant alone is responsible.” (p. 21.)
In the same volume of the Texas reports in which the decision we have quoted from, supra, is published, there appears the case of Medlin Milling Co. v. Boutwell, 104 Tex. 87. In that case the syllabus reads:
“1. The master is not liable to a servant for an assault upon him by other servants in no way connected with their duties to the employer— as where employees of a milling company, in pursuance of a custom before practiced, undertook to ‘initiate’ a. new employee into the service by stretching him across a barrel and ‘paddling’ .him, and he was injured in resisting such violence.
“2. The knowledge and acquiescence of officers or managers of a company in a custom of rude frolic by employees in receiving a new one into the service, amounting to assault and inflicting injury, was not within the scope of their authority or in the company’s service, and it was not rendered liable to the injured party by such acquiescence.”
In the opinion it was said:
“It is not the legal duty of the master to protect the servant from unlawful assaults by strangers, and another servant committing such an ■assault, not in the scope of his employment, must be regarded as a stranger.” (p. 90.)
It is plain that it could not have been the intention of con gress to make the carrier liable for injury or death to an employee occasioned by the act of a stranger. We are fully in harmony with the liberal interpretation of the federal employers’ liability act by the federal courts generally; but we can not conceive it to have been the intention of congress to impose upon the carrier duties and obligations save those of an employer; nor that it was the purpose to impose new obligations not usually imposed upon employers, except as the law of master and servant is by the express terms of the act itself limited or restricted.
The defendant interposes the doctrine of assumption of risk as a further defense to the action. The federal employers’ liability act leaves that as much a defense to the carrier as it was before the act was adopted, except “in any case where the violation by such common carrier of any statute enacted for the safety of employées contributed to the injury or death of such employee.” (Part 1, 85 U. S. Stat. at Large, ch. 149, § 3, p. 66.) Assumption of risk,, therefore, is a proper defense to be urged in the present case. The plaintiff seeks to avoid it by the doctrine of a complaint and promise. The plaintiff’s intestate complained to his immediate superiors of the dangerous proclivities of Negreta and they told him, in substance, that he was in no danger of assault or injury; and to keep Negreta at work, and said the company would protect him. The defendant insists that this falls far short of a promise to repair a dangerous situation, and further that neither Carlson nor Mc-Nally had any authority to make a promise to protect Roebuck which could bind the defendant. There is some room for argument that nothing said by Roebuck’s superiors was relied upon by him as a promise to change conditions. It appears that there was no promise to move Negreta from daily association with him, and there is some ground also for argument that all that was said to him by McNally and Carlson merely persuaded him that the danger was not so great as he had believed, and that it induced him to assume the risk. . Having reached the conclusion that the action can not be maintained for the other reasons stated, we deem it unnecessary to decide the question of assumption of risk.
It follows that the judgment will be reversed and the cause remanded with directions to sustain the demurrer.
Johnston, C. J., and West, J., dissenting.' | [
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Tl.e opinion of the court was delivered by
Mason, J.:
An action was brought in the name of the state, on the relation of the county attorney, to enjoin A. D. Manny’ and another from maintaining fences in a highway. Judgment -was rendered for the plaintiff, and the defendant Manny appeals.
1. The county commissioners undertook to establish the road in question in 1881. The steps taken were characterized by irregularities, but a validating act was passed in 1889. (Laws 1889, ch. 20.) Nothing to the contrary having been specified, the width of the road resulting from these proceedings was limited to forty feet. (Willis v. Sproule, 13 Kan. 257.) In 1887, however, the legislature declared the section line, which this road undertook to follow, to be a public highway, fixing the width at sixty feet, and allowing claims for damages to be presented within one year from the time it should be actually opened to public use. (Laws 1887, ch. 215.) No formal order was shown for the opening of the road after the enactment of this statute, but the court found that it had been continuously in use for more than thirty years, the travel covering a width of approximately sixty feet; therefore, the further finding of the existence of a public highway of that width was justified, although ordinarily an order for its opening would be necessary for the creation of a road by such a statute. (Hanselman v. Born, 71 Kan. 573, 81 Pac. 192.)
2. The persons using the road undertook to follow the section line, and any departure from that course was inadvertent, so that the problem of determining the real location of the highway is that of finding the true section line. (Shanline v. Wiltsie, 70 Kan. 177, 78 Pac. 436.) The road follows the west line of Manny’s land. The trial court decided that the section line, as established by the government survey, lies east of its position as determined by a survey made in 1906, to which the adjoining owners were parties, the difference being twenty-five links at the south boundary of the tract, and eighty-three at the north. Manny contends that the survey is conclusive upon the public, or the state, as well as upon the adjoining owners. Although a statutory survey is made by a public officer, it is essentially an adversary proceeding between individuals. No one who is not a party is bound by it. No specific provision is made for notice to any one as representing the public with respect to its interest in a highway, the statute merely requiring the surveyor to notify interested parties. (Gen. Stat. 1909, § 2254.) Possibly a notice to the board of county commissioners might enable the public’s interest to be litigated in such a proceeding. But in the absence of special circumstances, making the public in effect a party, the matter must be governed by the rule that the state is not bound by a judgment rendered in litigation between private persons, nor by a judgment against a public officer except with respect to a matter concerning which he is authorized to represent the government. (23 Cyc. 1279.) This rule has been applied to prevent the result of a statutory action, to determine the location of the county seat from precluding an independent examination of the question at the instigation of the state. (The State, ex rel., v. Stock, 38 Kan. 154, 16 Pac. 106. See, also, Note, 105 Am. St. Rep. 210; Maine and New Hampshire cases cited in Note, 3 Ann. Cas. 1065.) Some practical inconveniences may result from the location of a section line at one place as a boundary between adjoining owners, and at another as controlling the position of a highway, but a different holding might compel a change of a highly-improved road, upon which public funds had been freely expended, by reason of the result of a survey conducted to settle a private controversy.
3. The final contention of the appellant is that there was no evidence to support the finding that the section line as determined by the court coincided with that established by the government survey. Evidence was introduced tending to show its recognition for many years as the original line, by the course of the road, and by furrows plowed and trees and fences set with regard to it. The most important single item of evidence related to a stone in the middle of the road, which according to some of the witnesses had been regarded from early, times as that set by the government surveyors .to mark a section corner, and which had been in practically the same place for twenty-eight years. The county surveyor testified that the field notes describe a limestone seventeen by four inches in size. (The dimensions actually given by the field notes are 17 x 10 x 4.) He also described the stone in question as being • soft sandstone, about seventeen and one-half inches by sixteen by six. The discrepancy as to the size of the stone is more difficult of reconcilement than that relating to its character. But in any event the evidence presented a fair question of fact for the trial court, and its decision must be regarded as final. Recognition and acquiescence, as well as the monuments set by the government surveyors, may be sufficient to prevail over the field notes of the original survey. (Tarpenning v. Cannon, 28 Kan. 665.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendants appeal from a judgment annulling the marriage entered into between A. L. Entsminger and Emma Entsminger. The action was commenced by A. L. Entsminger, and in his petition he alleged, in substance:
“That on the 22d day of October, 1914, appellee and appellant were married; that appellee was past eighty years of age at the time of said marriage arid was very infirm; that because of his physical infirmities his mind had become weakened and he could not grasp situations as he did in his younger days; that on account of his physical condition he was in great need of some one to take care of him; thai on account of his condition he readily yielded to flattery and importuning; that he became acquainted with appellant shortly before the marriage, and that 'for the purpose of inducing appellee to marry appellant, she stated and represented to him that she had lived in the city of Topeka for' many years, was well known, was a good and virtuous woman, had a good character and had never had any trouble; that appellee believed in and relied upon the representations so made by appellant and by reason thereof was induced to marry her; that in fact appellant was not a good or virtuous woman, was not a woman of good character, and that she had run what was known as a bawdy house and had been arrested several times; that appellee was induced to marry appellant because of her false and fraudulent representations so made.”
To this petition Emma Entsminger filed a demurrer, which was overruled. She then filed an answer which consisted of a general denial and a prayer for divorce.
On the trial special findings of fact were made as follows:
“First. On October 22nd, 1914, plaintiff and defendant were married in the City of Topeka, Shawnee County, Kansas. At the time of their marriage plaintiff had lived in Shawnee County for more than fifty years, and had been married three times prior to the present marriage; his two first wives were dead and the. third had been divorced. At the time of their marriage plaintiff was eighty-two years of age and was and had been a confirmed cripple for more than twenty years in such a way that he could only go from .place to place with great difficulty and by the use of a crutch and cane; that it required considerable effort on his part to dress himself and was unable to properly care for himself. Plaintiff had lived at Silver Lake, Kansas, for a great many years prior to his moving to Topeka; he moved to Topeka about four years prior to his marriage with defendant. On account of his physical ailments and the difficulty with which he was able to go from place to place he came in contact with but few people. On account of his extreme age and his physical infirmities his mind had become greatly impaired and weakened. He belonged to the Odd Fellows Lodge at Silver Lake and shortly prior to his marriage with defendant the lodge appointed one Morton Hutchinson, who was well acquainted with him, a committee to investigate and report his then mental condition. In pursuance to this appointment Morton Hutchinson came to Topeka, called upon and talked with plaintiff and from his investigation was of the opinion that his mind was greatly weakened and impaired.
“Second. Defendant had lived in the City of Topeka for more than twenty years, and while there was no testimony as to her age, yet from appearance she was probably sixty years of age. For a great many years she and her daughter had conducted a house on Tenth Street in the City of Topeka between Jackson and Kansas-Avenue, commonly known and understood to be a house of prostitution; that the house that she was conducting there had a bad reputation; that after living on Tenth Street for many years she moved to 826 Monroe Street; that she conducted the same kind of a house on Monroe Street that she conducted on Tenth Street; that cab men frequently hauled men and women both day and night to her house, but in doing so they usually drove to Ninth Street before allowing passengers to alight and such passengers would walk back to defendant’s house at 826 Monroe Street.
“Third. The acquaintance betweén plaintiff and defendant prior to their marriage was brief. Occasionally plaintiff passed the house where defendant was living on Monroe Street and defendant stopped him and entered into conversation with him, making certain suggestions with reference to treatment for his physical condition; that she frequently went to the sidewalk when she saw him coming and stopped him and conversed with him, and finally invited him into her house; that thereafter she invited him to come and take supper with her, which he did, and following this occasionally then went out buggy riding. That the question of marriage was suggested and defendant stated that she had lived in Topeka for a long time; that her reputation was good and that she was ' a virtuous woman; that plaintiff believed these statements and on account of his physical condition and desiring a home agreed to marry her; that defendant believed at the time of the marriage, that plaintiff possessed considerable property, but the only property he had was a house on Jefferson Street of the value of probably $2500, upon which there was a mortgage of $1400; that this house was renting for $20 per month. Shortly before the marriage plaintiff purchased a house on Monroe Street in the City of Topeka for which he agreed to pay $4500; that he paid $1500 cash and assumed the payment of a mortgage upon this property of $3000. , Plaintiff has no property other than the above-described real estate and has no money and a -very limited amount of personal property. The taxes and interest on the Monroe Street property are in default and a suit is now pending for the foreclosure of this $3000 mortgage. Plaintiff has no money with which to pay the taxes nor the interest either upon this Monroe Street property or upon his Jefferson Street property. Plaintiff believed at the time of his marriage to defendant that she was a good reputable woman and of good character and stood well in the. City of Topeka, and would make him a good home and he was caused to so believe by her representations, statements and «¿induct.
“Fourth. Soon after the purchase of the Monroe Street property plaintiff and defendant moved into this property and at the time of the bringing of this suit defendant was occupying the same, plaintiff having left the house on account of the conduct of the defendant and was living in the garage on the rear end of said property. After the marriage of plaintiff and defendant and after they had moved into the Monroe Street property defendant attempted to conduct the same kind of a house there that she had conducted on Tenth Street and at 826 Monroe Street. Plaintiff objected to the conducting of such a house and defendant said to him that there could be no money made by renting rooms, but that by allowing men and women to come and occupy rooms she could make some days as high as from five to ten dollars.
“Fifth. Defendant used the parlor of their house on Monrbe Street as her bedroom and plaintiff occupied a different room of the house as a bedroom; that on one evening and after dark, while plaintiff and defendant yere sitting in the dining room, the door bell rang and defendant went to the door, allowed a ms? to enter and to occupy a seat in her bedroom. After he had been there a considerable time and about nine o’clock defendant suggested that it was time to retire, but plaintiff knew there was some person in defendant’s bedroom and he then entered the room, turned on a light and found a man sitting in a chair close to her bed; that plaintiff ordered him out and he declined to go, and he then struck him with his cane, and the man left the house. At another time plaintiff had arranged for a carpenter to come to the house to make some repairs; that when the carpenter came he started with plaintiff upstairs when they were stopped by defendant and told that they could not go upstairs; that they then went out on the porch and in a.very short time a, man came downstairs and left the house, and a few minutes thereafter a woman came downstairs and also left the house; that on another occasion plaintiff found a man and a woman in one of the rooms upstairs during the daytime in their night clothes. Plaintiff protested and objected to the conducting of this kind of a house and finally left the house and a long time thereafter .lived in the garage, and since that time has been occupying a room in another residence and getting his meals wherever he could do so.
“Sixth. That at the time of the marriage of/plaintiff and defendant and for a long time prior thereto defendant was an immoral woman and the house that she. kept was that of a house of prostitution, and that she had been engaged in this immoral practice for a great many years, and that while her reputation was notorious, yet plaintiff believed that she was a good virtuous and reputable woman and would not have married her if he had known her true character.
“Seventh. Defendant has no property except her household goods.
“Eighth. That the defendant had been a resident of the City of Topeka and Shawnee County, Kansas, for more than twenty years prior to the marriage.
“9. That during the time that plaintiff and defendant were acquainted prior to their marriage, plaintiff frequently called on her, took her out buggy riding a number of times; that they discussed the matter of their. marriage; that on one occasion she voluntarily stated she was a virtuous woman and that she would make it warm for any one who said she did not have a good reputation.
“10. That at the time of the marriage of plaintiff and defendant she had no means or property; that plaintiff had a residence on Jefferson Street from which he was receiving $20 a month; that he placed a mortgage on this property for $1400 and with this sum and $100 in cash he had on hand, he purchased the property at 829 Monroe Street for $4500, assuming a mortgage thereon for the sum of $3000; that .the plaintiff knew when he married defendant she was going to keep roomers and consented thereto; that plaintiff’s income being insuificient, it was necessary for them to keep roomers to pay family expenses.
“11. That plaintiff at the time he married the defendant understood and appreciated that he was entering into a marriage contract.”
The court declared a conclusion of law as follows:
“That the marriage contract entered into between plaintiff and defendant was induced through fraud and deception on behalf of defendant, and should, therefore, be set aside and held for naught.”
Notice of appeal was served on the 20th day of December, 1915. A. L. Entsminger died on the 21st day of January, 1916, and Emma Ensminger died on the 9th day of February following. The action was revived, as to A. L. Entsminger, in the name of his heirs at' law, and of his administrator, and was revived, as to Emma Entsminger, in the name of her heirs at law. The heirs of Emma Entsminger prosecute this appeal. The title to the property owned by A. L. Entsminger at the time of his death is involved in this 'action. The plaintiffs have filed a motion asking that the appeal be dismissed on the ground that this action is not one that can be revived, and that there is nothing for this court to decide. It is not necessary to pass on this motion for the reason that the judgment will be affirmed in disposing of the case on its merits.
1. The defendants ask that the judgment be reversed for the following reasons: First, that A. L. Entsminger, at the time he married Emma Entsminger, understood and appreciated that he was entering into a marriage contract; and, second, that false representations and concealments as to prior character and reputation are not grounds for annulling a marriage. These two propositions must be considered together, because A. L. Entsminger was an infirm old man with a weakened and impaired mind, and this condition made him easily subject to the influence of Emma Entsminger. She had conducted a house of prostitution for many years prior to her marriage to the plaintiff. She concealed this fact from the plaintiff and made false statements to him concerning her character. The defendant, by her arts, brought about the marriage. After the marriage she attempted to conduct the same kind of a house as she had conducted previously. To this the plaintiff objected. Because of the defendant’s persistence in attempting to conduct a house of prostitution at their home the plaintiff left the house and lived in the garage.
The surrounding circumstances place this case within the rule of Browning v. Browning, 89 Kan. 98, 130 Pac. 852. In that case a young man in his nonage sought to have his marriage annulled. He had been inveigled into the marriage by an immoral woman who made false representations to him concerning her previous marriage relations. In the present case an old man in his dotage sought to have his marriage annulled. He was inveigled into the marriage relation through the false representations of an immoral woman. The conduct of the defendant in the present case was more reprehensible than that of the defendant in the Browning case. The condition of the plaintiff in the present case rendered him-more susceptible to the wiles of an immoral woman than did the condition of the plaintiff in the Browning case.
The defendants cite Varney v. Varney, 52 Wis. 120, to support their contention that a marriage can not be annulled because of false representations made before the marriage as to previous chastity. There is nothing in the Varney case to show that the party there defrauded was weakened by age or by' mental or physical disability. That case states and follows the general rule. This rule is stated in Browning v Browning, supra, on page 102, in a quotation taken from 26 Cyc. 905. The remainder of the paragraph in Cyc., from which the quotation in the Browning case is taken, is as follows:
“But some courts are disposed to relax the severity of this rule, especially where the fraud or deceit has been accompanied by some measure of coercion or imposition, in the ease of very young girls duped or decoyed into an unsuitable marriage, and in the case of aged persons of feeble intelligence who have been tricked or deluded. In every case, however, the fraud must have been an effective cause, and one can not complain of a false representation where he knew the truth at the time, where it was rendered possible only by his own previous immoral conduct, or where thfe fraud only affects third persons. Imposition in the nature of a fraud may also be ground for annulling the marriage, especially where it was exerted by playing upon the party’s superstitions or religious delusions.” (p. 906.)
2. The defendants insist that A. L. Entsminger, by his subsequent cohabitation with Emma Entsminger, condoned her misconduct and false representations, and ratified the marriage contract. Emma Entsminger did not plead condonement as a defense to the action, but the question of condonement will be considered. The evidence shows that on the day after his marriage A. L. Entsminger was told of his wife’s previous reputation and conduct, and shows that he thereafter continued to live with her. It does not appear that A. L. Ents minger believed what he was told. He was not , under any obligation to do so. Even if he did receive knowledge of his wife’s previous misconduct and condoned that misconduct it was with the understanding that her conduct in the future would be right and proper. She was guilty of the same kind of misconduct after the marriage. If the law of condonation has any place in this controversy that misconduct revived the previous offenses. (9 R. C. L. 384; 14 Cyc. 637.) The conduct of A. L. Entsminger might have amounted to condonation if he had been a vigorous man in full possession of his mental faculties. When his physical and mental condition are taken into consideration the evidence is not sufficient to show a condonement of the fraud committed against him.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to partition real estate. The decision turned on whether or not a deed had been delivered. Judgment was rendered for the defendants, and the plaintiffs appeal.
The land in controversy is a farm which at one time belonged to the wife of Daniel Beckley. Before her death she conveyed to her husband, she and her husband believing that this was a better way to dispose of property than by will. The conveyance was made with the understanding that the farm should become the property of a son, Fred Beckley, one of the defendants, at Daniel Beckley’s death. After the death of his wife, Daniel Beckley expressed-a purpose to carry out his wife’s wishes. During an illness which proved to be his last, Daniel Beckley called a conveyancer to his house and caused two deeds to be prepared which he executed and acknowledged on May 14, 1914. One conveyed the farm to Fred Beckley and the other conveyed other real estate to his son, Clint Beckley, and to the children of a deceased son. After the deeds were executed Daniel Beckley gave them to the conveyancer and told him to keep them for the grantees, and when he got worse to record them. The following are some of the questions propounded to the conveyancer at the trial, and his answers:
“Q. And you say he told you to keep the deeds for these parties and to record them when he got worse? A. Yes, sir.
“Q. And you did it? A. I done so.
“Q. At the time that the deed was executed, you say that Daniel Beckley gave them to you, gave this deed to Frederick Beckley and told you to record it if he got worse? A. Yes, sir, the two deeds.
“Q. Now, Mr. Campbell, at the time that this deed was executed, the one of Daniel Beckley to Fred Beckley, did Mr. Beckley make any explanation to you as to why he didn’t; want the deed recorded until■ he should become worse? A. All he told me was to hold those deeds and when he got worse, record them for him.
“Q. That is, to hold them for who, — did he say who to hold them for? A. For Mr. Fred and Mr. Clint and James’ heirs; those two deeds.
“Q. I wish you would tell this court what Daniel Beckley said to you at that time with reference to that part of it. A. Mr. Beckley told me the reason why he had made the deed out to Mr. Fred Beckley was from the fact that he had paid'two mortgages off for Mr. Clint Beckley and had paid him some money and he said he wanted this deed made to Fred for it was rightly due him and that home place.
“Q. When you say the home place, do you mean the farm? A. Yes, sir.
“Q. In his talk did he say anything why he didn’t want the record made of them earlier than that? A. He said he did n’t want any trouble and he would prefer not to have them recorded until he got worse.
The Court : I would like to have Mr. Campbell state as near as he can the language used when these deeds were delivered to you by Mr. Beckley.
“A. Mr. Beckley told me to take those deeds and keep them until he got worse and when he got worse he told me to have those deeds recorded. Those are the words of Mr. Beckley as near as I can remember, at the present time.
By Mr. Sheridan :
“Q. And you did that? A. Yes, sir.”
The conveyancer also testified that Daniel Beckley said nothing about the deeds being returned to him if he got better. The conveyancer inquired concerning Daniel Beckley’s physical condition of a physician who saw him sometimes several times a day, and on July 17, 1914, he recorded the deeds. Daniel Beckley died on July 29, 1914.
The court made the following finding of fact:
“I find that it was the intention of Daniel Beckley to make delivery of the deed to Fred Beckley in his lifetime hy having the same recorded, and that said deed was filed for record by William Campbell according to the directions of Daniel Beckley in his lifetime.”
'The conclusion was that the deed to Fred Beckley was legally delivered.
The court does not regard it as open to serious dispute that the finding of fact is sustained by the evidence, that the conclusion of law is correct, and that the deeds were not testamentary in character.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action in the district court was one of ejectment, brought by the brother and sister, heirs of George Haywood, deceased, against Melinda Nichols, who claimed to have taken title by virtue of being the surviving spouse of George Haywood. The decision turned on whether or not the defendant was married to George Haywood at the time of his death. Judgment was rendered against the plaintiffs, arid they appeal.
In 1881 the defendant married Richard Pool, at Fort Madison, Iowa. Afterwards Richard Pool was incarcerated in the Iowa state penitentiary, from which he wás released in the year 1885. Directly following his release he commenced an action for divorce in the district court of Lee county, Iowa, against the defendant, who was then residing in Burlington, Iowa. She signed some papers which she supposed entitled him to a divorce. The action was dismissed on January 5, 1886. The records of Lee county, Iowa, disclose no other divorce suit between the parties. Pool died in Lee county, Iowa, on October 31, 1904. The defendant did not see Pool after he was taken to the penitentiary and had no correspondence with him. She was told that Pool had a divorce, that he married again, and that he died in 1889. In 1890 she was married to George Haywood, in Lafayette county, Missouri, according to the formalities prescribed by the laws of that state. She and Haywood lived and worked together as husband and wife until Haywood’s death in 1906, and by their joint efforts acquired the property in controversy. They had no children. There was some conflict in portions of the evidence. The court found that the defendant was the true and lawful wife of George Haywood at the time of his death.
There was a presumption in favor of the validity of the defendant’s second marriage which has been described as the strongest known to the law. (Shepard v. Carter, 86 Kan. 125, 119 Pac. 533.) Although it involved proving a negative, the plaintiffs were required to establish the fact that the marriage with Pool had not been legally dissolved. The proof tended somewhat in that direction. Pool lived in Lee county, Iowa, in 1885, died there in 1904, and the only divorce action- appearing on the court records of that county was dismissed. There was no proof, however, that Pool continued to reside in Lee county, from 1885 to 1904, and it will not be presumed that he did so, against the presumption that the defendant’s second marriage was legal. The bringing of the action which Pool instituted when he walked out of the penitentiary into the divorce court shows a purpose to dissolve his relation to the defendant, who had moved away. The dismissal of the action merely showed that that action failed. Therefore, within the principles stated in the case of Shepard v. Carter, supra, the presumption that no legal impediment to the defendant’s second marriage existed, was not overcome.
It was not necessary that the district court should rely on the presumption which the law, out of considerations of morality and public policy, raises. The defendant’s union with Haywood appears to have been entered into in good faith, and continued to be genuinely matrimonial in every sense of the term. Persistence of the relation after the defendant’s disability was removed made them husband and wife under the common law. (Sehuchart v. Schuchart, 61 Kan. 597, 60 Pac. 311.)
The plaintiffs say no question of a common law marriage was involved. The question was, whether or not the defendant was the wife of George Haywood at the time of his death, and any form of marriage which the law recognizes would defeat the plaintiffs’ claim.
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The opinion of the court was delivered by
West, J.:
The plaintiff sued the executor of the will and estate, and certain devisees of her deceased husband, to enforce an alleged contract by which she was to have his property at his death. The second cause of action related to his testamentary capacity, but was taken out of the case by the trial court and need not be considered.
Michael Breen, a widower fifty-nine years of age, without children, having several thousand dollars’ worth of property in Clay county, married in Clay Center in March, 1902, the plain tiff, a maiden lady thirty-seven years of age, owning 160 acres of land which she had preempted in Wichita county. With the exception of a few weeks’ separation incident to a divorce action begun by the husband and afterwards dismissed, the parties lived together until his death in August, 1913. After their marriage he destroyed a will giving his property to his relatives in Ireland, and later made another, giving one-half to them and one-half to his wife. The petition alleged, after reciting his physical condition, “That while he was in such condition he proposed to plaintiff, who was many years his junior, that if she would marry him and care for him during the remainder of his life, he would, at his death, give to her by will all of the estate, both real and personal, of which he might die seized. It was also a part of said proposition that if plaintiff, in the event of their marriage, should die without issue before the death of said Michael L. Breen, she would leave to him her estate, save and except such inheritance as she might obtain from her father’s estate. That in consideration of the said promises and of her love and affection for said Michael L. Breen plaintiff accepted said proposition, and pursuant thereto entered into said marriage relation, and during the remaining eleven years and more of the life of said Michael L. Breen lived with and cared for him in such manner as his age and enfeebled condition of health required.” The pleading further set forth her assiduous care for him, the failure of both to make a will, her reliance upon his agreement to leave his property to her and the fact of his making the will giving but one-half to her, without her knowledge or consent, and .prayed the “specific enforcement of said agreement in such terms of equity as may be effective to set over said estate to her.”
After an extended trial the court made findings of fact covering all the material matters shown by the evidence, including the following:
“22. Prior to the marriage of plaintiff and Michael Breen, there was no written agreement of any kind entered into between them concerning their property rights.
“23. There is some evidence in this case to show that preceding the marriage of plaintiff to Michael Breen,, that there were some oral negotiations between them respecting their property, but the testimony in relation thereto as to the exact nature of their agreement is unsatisfactory, uncertain and indefinite.
“24. There is no testimony in this case to support the allegation contained in the plaintiff’s petition that it was • a part of the oral negotiations of plaintiff and Michael Breen preceding their marriage, that in addition to marrying him she should ‘care for him during the remainder of his life.’
“25. That neither plaintiff nor Michael Breen at any time subsequent to their marriage and preceding the death of said Michael Breen 'made a will, except the will in controversy, deed or conveyance of any kind whatsoever, of their respective properties one to the other.
“26. No antenuptial agreement of any kind was made by the plaintiff and Michael Breen, the terms of which have been performed either wholly or in part by the plaintiff, except the agreement to marry.”
The conclusion of law was in favor of the defendants.
It is insisted that by the very fact and act of marriage the plaintiff contracted to care for her husband during his natural life, and hence a separate agreement to that effect was not essential. Plainly the pleader did not rely upon the mere promise to marry, but upon the additional promise to care for the husband during the remainder of his life, and so alleged and also set forth special reasons why such burden would be more than ordinarily onerous to the' plaintiff because of the health and condition of the husband.
We have carefully examined the entire record. There was testimony of conversations and statements before the marriage to the effect that she was to have his property-if she outlived him and he was to have her’s, save her patrimony, if he survived her; also statements after the marriage indicating an intention on his part that she should have his property at his death. But the trial court was unable to find testimony establishing the contract and' consideration as alleged, and while we are urged to find independently in favor of the plaintiff, we discover no evidence sufficient to substantiate error in the findings of fact or conclusion of law complained of.
Whether or not marriage can ever constitute part performance of an oral antenuptial agreement so as to remove the operation of the statute of frauds, it could not be said to have had that effect in this case for the reason that the other principal element and consideration pleaded was not established by the proof.
This renders needless any consideration of other questions presented including those arising on the cross-appeal.
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The opinion of the court was delivered by
Dawson, J.:
This was a lawsuit between father and son. The father, L. C. White, now deceased, was the owner of certain lands in Butler county. In 1890 he executed a written lease of eighty acres to his son, C. L. White, the rent to be one-third of the crop delivered at the father's residence, and the duration of the lease was to be for the lifetime of the father. Among other terms of the lease was one which provided that at the death of both parents the son was to receive a warranty deed to the premises as his full share of his parents’ estate. For many years the terms of this lease were observed, but in 1914 the son withheld the rent, and this default is the basis of the plaintiff father’s .first cause of action.
As a second cause of action, it was alleged that in 1912 the father executed a deed conveying another eighty acres of land to his son, the defendant—
“Which deed was delivered by plaintiff to the defendant to be held by the defendant in escrow until after the death of the plaintiff; that said deed was not to be recorded by defendant until after the death of plaintiff, that as a part of the consideration . . . defendant agreed [in writing] to deliver to plaintiff . . . one-third of all the grain and hay grown on said real estate each year during the lifetime of plaintiff.”
It was also alleged that both parties complied with this contract during the season of 1912; but in 1913 the defendant withheld part of the rent due, and in 1914 withheld it all. Hence this lawsuit.
The gist of defendant’s answer to the first cause of action was that in 1912 his- father had voluntarily executed and delivered to him a deed to the land covered by the first lease and that his father at that time told him that he would not require the payment of rent thereon after that year. A copy of this deed is shown and contains the usual recitals, stating the consideration to be $3000 duly received, with this addition:
“This deed not to be recorded until after the death of the grantee [grantor?].”
To the second cause of action the defendant pleaded the deed of 1912 mentioned in plaintiff’s petition, and alleged that at the time the defendant paid plaintiff $2000 in cash and gave him two notes for $500 each; and that some time afterwards his father (orally) offered, for an additional consideration of $500, to release him from any further rental payments for the land covered by the second lease, and that he, the defendant, agreed thereto and in July of the same year paid his father that sum.
In reply, the plaintiff admitted that he signed the deed covering the land involved in the first lease, but that at the time he was eighty years old, feeble and in ill health, and that his sight was much impaired; that as defendant was his son he relied upon and trusted in him and depended upon his advice and counsel in business affairs — •
“That defendant, knowing of the enfeebled condition of the plaintiff and his extreme old age, and knowing that the plaintiff relied upon him for counsel and advice and trusted him and taking advantage of said conditions of trust and confidence said defendant requested and importuned plaintiff to sign a deed for the real estate described in said deed, and said defendant orally stated and represented to said plaintiff in substance that if he signed said deed that its only effect and purpose would be to convey to defendant the title to said real estate upon the death of plaintiff in accordance with the terms of the lease, a copy of which is attached to plaintiff’s petition and marked Exhibit ‘A’; and that it would save expense to' defendant, and trouble and legal proceedings after the death of plaintiff, and that said lease would be carried out in full by defendant and that said deed should not be delivered during the lifetime of plaintiff, but during the lifetime of the plaintiff should be held in escrow by the defendant until the death of plaintiff, and that said deed should not be recorded until after the death of the plaintiff, and that this plaintiff relied upon the statements and representations made by this defendant, and trusting to his judgment and advice, signed and acknowledged said deed, and the same was taken possession of by the defendant to be held in escrow in accordance with such statements and agreements of the defendant.”
On these issues the case was tried, and the jury rendered a general verdict for the defendant on the first cause of action and for the plaintiff on the second. Both parties appeal.
Defendant complains of the admission of incompetent testimony. It was incumbent on the plaintiff to prove the amount of the grain rent due on the land covered by the second lease. To that end he called certain witnesses more or less acquainted with the facts, and among these was a man who had threshed the grain. By skillful cross-examination this witness was made to admit that he was not sure that all the grain was raised on that particular tract of land. But the testimony of this witness was not the only evidence offered by the plaintiff, and even if it was somewhat uncertain, it was not incompetent ; and furthermore, the exact amount of grain raised was a fact peculiarly and accurately within the knowledge of the defendant, and he offered no evidence which contradicted plaintiff’s showing thereon.
Another error urged was the admission of testimony to the effect that when the father came to demand, his rent the son told his father to get off the land, that he “took him by the arm and ordered him off or that he would kick him off.” The plaintiff was entitled to show the conversation between the parties at the time the father came to demand the rent, and it was competent to show that he was still insisting on his rights as the owner of the property. Elsewhere similar testimony, showing in a more aggravated form the language and conduct of the son, was stricken out. It might have been better if the court had uniformly ruled out all the testimony touching the son’s 'threats, but it was not serious, and cases are not reversed nowadays on such trivial matters as these. (Civ. Code, § 581.)
Another error assigned was the admission of evidence showing that the father usually paid his taxes to his local banker. Of course that is not the place where taxes are due, but it is a very common custom for people to entrust their funds to their local bankers, and to depend on their bankers to pay the county treasurer. It was competent and probative to show whether the father still claimed the ownership of the property.
Error is assigned because of the court’s ruling that the plaintiff was entitled to open and close the argument, when the second cause of action had “more involved,” and the court had ruled that “the burden” of it “was on the defendant.” We perceive no error here. The order of the argument is not very important if counsel have a fair opportunity to present and argue their side of the controversy, and no showing is made here that they did not. (Civ. Code, § 285.)
Turning next to plaintiffs appeal: He contends that it was error to permit the jury to know that the father had other lands besides those involved in this lawsuit, and that it was likewise error to permit evidence showing improvements made on the land by the defendant. These errors are inconsequential. He also complains because the scrivener, who wrote the deed from father to son, testified to the “ultimate fact” of the father’s capacity to understand the transaction. This last complaint, technically, but only technically, does make a point for plaintiff. We do not think it of any consequence here. No showing was made that the father did not understand what transpired at the scrivener’s. There is no dispute about the fact that the son was to have a deed to the property some time, and even if the father had not understood the transaction, and had never made a deed at all, the son would be entitled to a conveyance of some sort, some time, from somebody, of this property. Such was the father’s written agreement made twenty years before. Counsellor plaintiff apparently did not think their client’s age and infirmities were too great for him to appear and testify in his own behalf. The scrivener’s evidence as to the “ultimate fact” of the father’s understanding would be more questionable if the jury had not seen the father and heard his statement of the transaction from his own lips.
The plaintiff also objects to the instructions. These we have carefully examined, and when they are all read and construed together we find them fair, precise and comprehensive, and not subject to any serious criticism.
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The opinion of the-court was delivered by
Marshall, J.:
The plaintiff recovered judgment under the workmen’s compensation law, and the defendant appeals.
Two weeks after the plaintiff was injured, he went on crutches to the office of the defendant and there had a conversation with Howard Treadway, the vice-president and general manager of the defendant company. This conversation can be best shown by quoting from the abstract of the evidence as follows:
'“Q. What did you say there? A. I went in and introduced myself and he says, ‘Just a minute.’ He says, ‘Step in that office.’ I went in a little office at one side and sat down about five minutes and Mr. Tread-way came in and said ‘It is too bad for a man to be knocked out right at Christmas times,” and I says, ‘Yes; pretty bad, but it can’t be helped, I suppose.’ And we talked there and talked about work and he asked me all the places I had worked for the last 15 years back and the salary I had drawrf and why I was working for $2.00 a day when I had worked for more money. EPe says, ‘I wish to the Lord you could go to White Rock, Missouri; I have a job there as water compressor in the boiler,’ and I says, ‘It would n’t look good for me to go on crutches,’ and he says, ‘No.’ And then we talked on other things and he says, ‘I do n’t want to beat you out of anything, you are right up against it,’ and I says, ‘Yes; I am strictly up against it.’ He says, ‘I know you are; Mr. Ryan told me you was;’ and he says, ‘I think you will be all right to go to work in ten days,’ and I says, ‘I think so.’ And he says, ‘I will pay you for your wages for four weeks and by that time I think you will be all ready to go to work,’ and I says, ‘I hope so because it is very little money.’ He says, ‘Sure it is little; six dollars a week is not much. That Compensation Act don’t bring very much to a man that don’t get any more than you get.’ He says, ‘You won’t have to pay the doctor, if you have to you won’t have anything left out of six dollars a week,’ and he said, ‘I am going to make this check' out for you for four weeks,’ and he started to make the check out for $28.00 and he changed it and made it for $24 and he says, “That is right, we don’t pay for Sundays.’ And he says, ‘Now, in case you get along all right what about that?’ I says, ‘If I get along all right, if I have beaten you out of anything I will give it back to you.’ I says, ‘Furthermore, I want a job.’ He says, ‘Oh, sure; I am going to take care of you.’ .And after he got through he gave me a newspaper laying there on a chair and says, ‘You can read that going home.’ I says, ‘What about that job when I get ready to go to work?’ He says, ‘I am not going to promise you a job because I may not have any.’ He says, ‘This is machinery and stuff you know, you can hire with me uptown and nobody else would want to take somebody else’s cripple,’ and he says, ‘I would like to have you get acquainted with my chief foreman; we might be able to use you the year around.’
“Q. He said he would take care of you? A. Yes, sir. I says ‘You have my address,’ and he says, ‘Yes; if anything shows up I will see about it.’ I says, “Now I can about half depend on a job, do I understand you that way,’ and he says, ‘Well, I am not going to promise you a job because I might not have any.’
“Q. Well, you finally agreed upon accepting $24 as your compensation and you agreed to execute that release? A. Mr. Treadway said to me, he says, ‘Now, here, we called up the doctor and the doctor thinks you will be able to go to work in nine or ten days,’ and he says, ‘It has been two weeks now’ and he says ‘I think you will be all right.’ Well, I says, ‘I am not sure that I will, but I hope that I will.’ ‘Well,’ he says ‘in case of a doubt I will just pay you for four weeks, that is at six dollars a week,’ and I says ‘Well, if I get well before that time I will refund what difference there is,’ and he says ‘If you don’t get well we will take care of you.’ And he went on and asked me about the different positions I had held and he says ‘You are just the kind of a man I want to get hold of, and I can use you down at this place’ — I think it 'was White Rock, Missouri, — anyway, it was in Missouri- — -‘on a water compressor in a boiler job,’ and he says ‘I want you to get'acquainted with my chief foreman. We do work all over the country and a man that can go ahead and handle an engine or bunch- of men or concrete mixer or do any other of this construction work I want to keep him and I will take care of you.’ I says ‘All right; I want a job, that is what I want and I have got to have it,’ and he says ‘I will take care of you.’ And he started to write out a check for $28.00 and he says ‘Well, I.only pay for six days; I am not paying for Sundays,’ and he changed it to $24.00. And he says ‘I don’t see how you fellows live working for two dollars a day.’ And he says ‘You haven’t always done that,’ and .1 says ‘No, sir; I haven’t. I worked for C. C. Smith and Walter Diggs, foreman,’ and he says ‘I will try and keep you in mind.’ ‘You have my address’ I says, and he says ‘Yes,’ and I says ‘I will see Mr. Ryan,’ and he says ‘you see me, you don’t need to see Mr. Ryan, you see Treadway; I am the man to see,’ and I says ‘All right.’ And we talked there and he wondered how I could live and work for $2.00 a day. He says ‘If you had gone to see’, — he says ‘If the doctor came to see you three times you are out $ix dollars at the best, if you don’t have to have a prescription.’ He says ‘A man that makes the money I make, a good salary, I can kinda stand it,’ and he handed me this check for $24.00 and I put it in my pocket. I signed it, I think in the presence of the stenographer. The stenographer came in and he asked him to make a typewritten one, I think he made two or three copies. That was the first time I saw him and no one had been in the office but Treadway and myself, so when he handed me the check and I signed up and he says T will see you again,’ and handed me the newspaper.”
The release signed by the plaintiff is as follows:
“FINAL RECEIPT
“For Compensation Paid Under the Workmen’s Compensation Law State of Kansas.
Kansas City, Mo., Dec. 14,1915.
“Received of Kansas City Bridge Company the sum of Twenty-four & no/100 Dollars ($24.00) said amount being such part of my weekly wages for the period of four weeks from the 30th day of November, 1915, to the 28th day of December, 1915 (both days included) as I am entitled to and making in all, with the weekly payments already received by me, the total sum of Twenty-four & no/100 Dollars ($24.00) such payment being the final payment of Compensation under the WORKMEN’S COMPENSATION LAW of Kansas and in consideration of which I hereby release and forever discharge the said Kansas City Bridge Company heirs, successors and assigns, from any and all actions, causes of actions, claims and demands, for, upon, or by reason of any damage, loss, injury, suffering and disfigurement which heretofore has been or which hereafter may be sustained by me in consequence of an accident suffered by me on or about the 30th day of November, 1915, while in the employ of Kansas City Bridge Company.
“Witness my hand and seal, this 14 day of December, 1915.
Wm. P. Weathers.”
The plaintiff was injured November 30, 1915. He walked on crutches until December 24, 1915, and walked with a cane until the 17th of the following April. The petition alleges that the parties were operating under the workmen’s compensation law, and alleges the plaintiff’s employment and his injury. The answer sets up the release. In his reply the plaintiff alleges that the consideration for the release was grossly inadequate. At the close of the evidence the plaintiff requested permission to amend his reply 'so as to show that the release was signed by the plaintiff through a mistake of both parties as to the seriousness of the plaintiff’s injuries. Permission to amend was granted and in the amendment the plaintiff alleges that at the time he executed the release he did not know his physical condition and the extent of his injuries, and that he did not believe his injuries were serious and permanent. The plaintiff does not allege a mutual mistake as to the extent of his injuries. He alleges his mistake but does not the mistake of the defendant. The pleadings should and will be considered as though a mutual mistake were alleged. *
1. The defendant demurred to the plaintiff’s evidence and at the close of all the evidence asked the court to instruct the jury to return a verdict for the defendant. There was evidence other than that above set out, which tended to show that the defendant’s vice president and general manager, and the physician called by the defendant to treat the plaintiff at the time of his injury, were mistaken as to the nature and extent of those injuries. That physician, E. D. Williams, who reached the plaintiff a few minutes after the accident, testified, in substance, that he examined the plaintiff’s, foot that it was swollen and quite tender to the touch and had a small abrasion or roughening of the skin on the outside of the ankle; and that he found no fracture of any bone or torn ligaments of any kind. Doctor. Williams examined the plaintiff’s foot and treated it again on the next day, and once afterwards, on December 3. At the trial Doctor Palmer examined the plaintiff’s foot and testified that one of the bones of the foot had been broken, and also testified that some of the ligaments attached to this bone were ruptured or torn. There was evidence that tended to show a mutual mistake as to the nature and extent of the plaintiff’s injuries; that on this mistake the release was based; and that the consideration for the release was grossly inadequate. A mutual mistake as to the extent of existing injuries is such a mistake as will justify setting aside a release of liability on account of those injuries. (Dominicis v. United States Casualty Co., 132 App. Div. 553; Nelson v. Chicago & Ñ. W. Ry. Co., 111 Minn. 193; St. Louis, I. M. & S. Ry. Co. v. Hambright, 87 Ark. 614; Great Northern Ry. Co. v. Fowler, 136 Fed. 118; Johnson v. Chicago, M. & St. P. Ry. Co., 224 Fed. 196; 2 Black on Rescission and Cancellation, § 391, p. 978.)
The release was based on the defendant’s agreement to pay the plaintiff twenty-four dollars compensation because of the injuries he had sustained. The release followed the defendant’s performance of that agreement. A release following an agreement as to compensation is no defense to an action under the workmen’s compensation law, where that agreement is based on a mutual mistake of fact and provides for a grossly inadequate compensation.
2. Complaint is made of the following instructions given to the jury:
“10. The release introduced in evidence, on its face, appears to be valid and binding upon the plaintiff and defendant; and therefore before you can find for the plaintiff he must prove, by the preponderance of the evidence, substantially as alleged in his reply that the consideration of said release was grossly inadequate; or that he signed said release under a mistaken belief as to the extent of his injuries, that he did not believe his injuries serious and permanent and that defendant’s doctor and vice-president told plaintiff his injuries were hot permanent in their character.
“12. If you find from the preponderance of the evidence that said release was obtained under either one of the conditions stated in instruction number 10, that is, that it was grossly inadequate in consideration or was executed by plaintiff under a mistake as to the character of his injuries, then it will be for you to determine whether or not the plaintiff was wholly or partially incapacitated from work as the result of the injury, if any, he received at the time in question, while in defendant’s employ.” •
The tenth instruction tells the jury, in substance, that they may find for the plaintiff if the consideration for the release .was grossly inadequate. This compels further consideration of the release. By that instrument the plaintiff and the defendant agreed on twenty-four dollars as the total compensation-to be paid to the plaintiff on account of the injuries received by. him. Section 23 of the act (Laws 1911, ch. 218) provides that: “Compensation due under this act may be settled by agreement.” The agreement contained in the release is such an agreement as is contemplated by this section. Section 29 of the act prescribes the conditions under which an agreement may be canceled. An agreement may be canceled if it is shown to the satisfaction of the court that the workman has returned to work and is receiving approximately 'the same or higher wages as or than he did before the accident, or that the agreement has been obtained by fraud or undue influence. The statute does not provide that an agreement may be canceled if it is shown that the .compensation fixed is grossly inadequate or grossly excessive. An award of arbitrators may be set aside if it is grossly inadequate or grossly excessive. The statute contemplates that when parties agree concerning- compensation they will do so intelligently, as the law directs, with knowledge of all the facts, neither taking any undue advantage of the other, and each undertaking to ascertain the amount of compensation that should be paid under the statute. Sections 23 and 28 of the act mention a release. A release, as contemplated in this statute, is a discharge of the defendant by the plaintiff from further liability under an agreement of the parties, under an award of arbitrators, or under a judgment of a court which has fixed the amount of compensation that should be paid. The release now in controversy is such an agreement as is contemplated by the statute; it is a receipt for the amount agreed to be paid, and is a release from all further liability for compensation. This instrument, being an agreement, may be set aside for either of the reasons named in the statute concerning agreements, and it may be set aside for any other reason known to the common law. When the agreement for compensation is set aside the release based on the agreement will also be set aside. Grossly inadequate consideration alone is not sufficient reason for setting aside either the agreement or the release (Odrowski v. Swift & Co., ante, p. 163) ; but grossly inadequate consideration and mutual mistake of fact as to the extent of the injuries are sufficient to avoid the effect of the agreement and of the release..
That part of the instruction which says, in substance, that the plaintiff can recover if he signed the release under a mistaken belief as to the extent of his injuries, is not correct. He can recover when he proves that the agreement and release were executed under a mistake of both the plaintiff and the defendant as to the extent of the plaintiff’s injuries, if he also proves that the amount already paid him is not adequate compensation under the law.'
On account of these errors in the instructions the judgment must be reversed.
3. The defendant complains of the following language contained in one of the instructions:
“If you find from the evidence that the plaintiff was totally or partially disabled from work as the result of the injury complained of in his petition for a period exceeding two weeks after such injury, it will be your dirty to return a verdict in favor of the plaintiff.”
Defendant argues that this left nothing for the jury to consider. The language quoted is a very small part of the instructions given and must be construed with the remainder of the instructions and be modified thereby. When so construed and modified the instruction is not erroneous.
The judgment is reversed and the trial court is directed to permit the plaintiff to amend- his reply so as to show a mutual mistake of fact as to the extent of the plaintiff’s injuries, and then to proceed with the trial of the cause. | [
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The opinion of the court was delivered by
Porter, J.:
The defendant appeals from a conviction of the charge of an attempt to commit rape.
The complaining witness, a woman twenty-six years old, is the wife of C. C. Lewis, the depot agent at the village of Cedar. Defendant is a single man forty years old. The Lewis home is north of the railroad track and two or three blocks from the station. Defendant’s home was about thirty yards distant from that of the complaining witness and he was in the habit of getting water from a well at the Lewis house. Other houses in the immediate neighborhood were two blocks distant, the view from them being to some extent obscured by growing crops. Complaining witness testified that she was out in the yard about one o’clock in the afternoon looking for her three-year-old. child, who was down-near the premises of the defendant ; that defendant came over to her yard and had some ■conversation with her and tried to induce her not to go to look for her child; that he kept following close to her and that she backed away from him but he continued following her; that she told him not to lay his hands on her and gave him a push. She said that she ran into the house and tried to shut the screen door, but he prevented her from doing so and followed her into the house and into her bed room where he grabbed her and forcibly threw her on the bed. Her testimony is that she scuffled with him and made all the resistance possible, and told him that she had sent her little girl to the depot for her husband, although the little girl was at school, and that her husband would soon be there and would kill him and that she would kill him when she got up. About this time her husband appeared at the house.
C. L. Draper, who had been driving along the road, testified that he saw the defendant following Mrs. Lewis up; saw her dodge to get away from him in the yard; saw him intercept her, and saw her strike several times at the defendant. Draper drove to the depot where the husband was and told him to go down to his house, that there was something wrong and that Covington and his wife were having trouble. Lewis got on a horse and rode home immediately. Lewis testified that when he came to the door he saw his wife struggling with the defendant on the bed, and he went upstairs to get a revolver, because he was a cripple, and did not feel equal to a physical encounter with the defendant. Immediately thereafter the defendant ran out of the house, leaving his hat on the floor, and Lewis shot at him from an upstairs window. Mrs. Lewis went upstairs and told him not to kill defendant, as Covington had not accomplished his purpose. He ordered his wife to go to the depot, and shortly thereafter followed her there. The defendant went to a mill a few blocks distant and sent word to the miller that he wanted to see him, and when the miller came endeavored to sell his hogs to him in order to get money to leave town. He was shortly thereafter arrested.
It is urged that the verdict and judgment are not supported by the evidence. This claim is based to some extent upon the fact that the complaining witness admitted she did not scream or call out, but she said that she did not think of that. It is insisted that since there is no evidence that she made an outcry the jury were not justified in finding that there was an attempt to commit a rape. She explained to the satisfaction of the jury her efforts to prevent the accomplishment of the crime of rape, and the character and extent of her resistance were questions for the jury to determine.
It is argued that the evidence did not sustain the charge that there was an attempt to commit a rape because it goes no further than to show acts which were merely preparatory to the commission of a crime and not such as would lead to its commission. Authorities are cited to the effect that “to constitute an attempt to rape there must be something more than mere preparation; there must be some overt act with intent to commit the crimé, coupled with an actual or apparent present ability to complete the crime.” (33 Cyc. 1431.)
In In re Lloyd, Petitioner, 51 Kan. 501, 33 Pac. 307, it was said:
“Before there can be a conviction in such a case, there must be not only the criminal intent, but overt acts toward the commission of the offense must be proven; and the attempt must progress sufficiently toward execution to clearly show the criminal intent of the defendant.” (Syl.1T 8.)
We think there was sufficient evidence of overt acts which showed an intent coupled with an actual or apparent present ability to complete the offense. There was some evidence that an attempt to commit rape was prevented by the appearance of the husband. How long the woman’s resistance might have prevented it, of course, is mere speculation. We are not impressed with the argument advanced that the evidence shows defendant did nothing more than a woman might have done toward the complaining witness.
The objection to some of the testimony on the ground that the questions called for the conclusion of the witness is without merit. Another contention of the defendant is that after his counsel had asked the complaining witness whether the defendant had not been there at her house another time, the court permitted her to testify on redirect examination that he had been there about three weeks before and that he came for the same purpose. On recross-examination the same question was asked her and she testified to the same effect. We think the evidence was competent as some' evidence of defendant’s intent in following the complaining witness into the house at the time charged in the information. The defendant first brought out the fact that he had been at the house before, and it was proper to permit the complaining witness to explain the circumstances of his former visit. The court instructed the jury to disregard the answer of the witness where she stated what she supposed his purpose was in coming to the house.
It is contended that there was prejudicial error in permitting the complaining witness to testify to a conversation between herself and her husband which occurred some time before the alleged assault. In cross-examining Mrs. Lewis she was asked:
“Q. Why was it you did n’t tell your husband the first time? A. It was this: We had talked about him attempting to rape Mrs.-.”
Here an objection was interposed to any conversation with her husband for the reason that the question asked her did n’t call for any such answer. The objection was overruled, and counsel for defendant again asked her:
“Q. Tell why you did n’t want to tell him the first time. A. The reason I did n’t tell my husband; we had talked about him attempting to rape Mrs.-. He said if he tried that on a woman of his he would kill him, and for that reason I did n’t tell him. I was afraid my husband would be punished. He had n’t any money to get out of it and I had no way to support myself and children, and knew he would kill him. I don’t know that anyone ever told me he tried to rape Mrs.-. Mrs.-:— never did.
“Q. So nobody up to that time had told you and nobody has told you since that time that he ever attempted to rape anybody? A. I don’t know that they have, not in plain words.”
. The defendant asked the court to instruct the jury to disregard the statements of the witness as to the alleged attempt to rape the other woman, but the request was denied. At the conclusion of the testimony, however, the court charged the jury not to consider any statements of Mrs. Lewis in reference to an assault on the other woman as any evidence tending to show that such assault was in fact made. We think there was no error within the rule declared in The State v. Marsee, 93 Kan. 600, 144 Pac. 833. In that case a conviction was set aside because the state was permitted to introduce evidence of a collateral issue strongly tending to arouse passion against the defendant, the evidence admitted being to the effect that the defendant had been accused by his own daughter of attempting improper liberties with her. In the present case, the defendant, after having discovered how the witness proposed to answer the question, insisted upon having her state why it was that she had not informed her husband of what occurred at defendant’s previous visit. Having insisted upon getting in the evidence as to the collateral issue, the defendant ought not now to have the right to claim that he was prejudiced by the answer. Besides, the court instructed the jury not to regard it as any evidence of the former offense. For the same reasons we think there was no error in refusing instructions asked by the defendant withdrawing from the consideration of the jury for any purpose statements with reference to an assault upon the other woman.
The defendant was a witness, and while he admitted that he had been present at the house, he denied any attempt to commit the. offense charged. He admitted having the conversation with the miller at the time he tried to sell his hogs, but denied any intention of having intercourse with the complaining witness. His explanation of what occurred in the yard was that he and Mrs. Lewis were both in fun. He testified that he did not know of any reason why he followed her into the house. It is to his credit that he made no attempt to blacken the character of the complaining witness, although tho inference was attempted to be left with the jury that his presence at the house was not in any way resented by her, and that their relations were entirely friendly. Mrs. Lewis admitted she made no attempt to explain to her husband at the house how the defendant came to be there; and there was some evidence that afterwards, when her husband came to the depot, he was angry with his wife and swore at her. She testified, however, that he was angry became she had not informed him of the fact that the defendant had been at the house the first time. All these matters, however, were questions for the jury. They have passed upon the evidence and found the defendant guilty. There was no error in refusing the requested instructions. Some of them were wholly inapplicable. There was direct evidence of two others besides the complaining witness, tending to support her version of the affair, and some of the instructions requested would be applicable only in a case where the corroborating testimony was purely circumstantial. Some of the requested instructions were fully covered by those given. The court properly refused to. give requested instruction No. 7, that if the complaining witness failed to make any outcry at the time, or concealed the attempt for any length of time after she had an opportunity to complain, these and like circumsances would carry a strong presumption that her testimony was false. There was no concealment in this case of the attempt. Her husband testified that he discovered the attempt while it was being made. It would not be proper for the court, under the circumstances, to charge that her failure to make an outcry that could have been heard by others carried any such presumption.
We find no error in the record and the judgment will be affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The state appeals from a judgment sustaining Ml demurrer to the evidence adduced in support of its right to ^Éteiin inheritance taxes. The petition alleged that one Christ Baclras died on April 22, 1909, leaving the defendants, Christopher and Susie Gerhards as his heirs; and that his will devising all his property to the defendants was duly probated; that defendant Christopher was appointed administrator of the estate with the will annexed; that he gave bond as such; that the will gave each of defendants an undivided half of the es tate; that the tax commission found the estate to be worth $15,000, and the expenses of administration to be $271.50, leaving the net value to be $14,728.50; that Christopher was a nephew of the testator and therefore a member of “Class B” under the inheritance tax act of 1909 (Laws 1909, ch. 248, Gen. Stat. 1909, §§ 9265-9291), and that the value of his share of the estate, $7364.25 was liable to a tax of three per cent, or $220.72; that the defendant Susie Gerhards was not a blood •relation and did not belong to either “Class A” or “B”, and that she was liable to an inheritance tax of five per cent, or $368.21, on her share of the estate.
For these sums and interest thereon the state prayed judgment.
The findings of the tax commission were attached to the petition. The action was filed December 24, 1913.
Defendants’ demurrer to the petition was overruled, and they answered;
“2. Said defendants further answering the petition of plaintiff filed herein allege that the property described in plaintiff’s petition which the will of Chris Backus purports to devise to defendants herein, belonged to and was the property of defendants herein at the time of the death of said Chris Backus and had been for many years prior thereto and is now the property of said defendants; that for many years prior to the death of Chris Backus the said Chris Backus had lived with these defendants and at the time of the purchase of the property aforesaid the money used to purchase same was the property of these defendants; that defendants purchased said property and as a matter of sentiment placed title thereto in the name of said Chris Backus- although the money used for said purpose belonged to defendants as aforesaid and that said Chris Backus was at all times holder of the legal title to said property as trustee for these defendants and had no substantial interest or ownership therein; that at the time said title was placed in said Chris Backus it was understood and agreed between the defendants herein and said Chris Backus that said property was the property of these defendants and that at the death of said Chris Backus same should be devised to these defendants or title thereof placed in the name of these defendants.
“That the above-entitled action, if any ever existed, is barred by the statute of limitations of the state of Kansas.”
The state introduced its evidence in support of its petition. It produced as its witness defendant Christopher Gerhards, whose testimony was consistent both with the allegations in the petition and with the recitals in his answer. The probate judge also testified as to his performance of his official duties under the inheritance-tax act. The inventory of defendant Christopher Gerhards, as administrator, listing the property of the testator, the tax commission’s schedule, classification, findings and assessment of the inheritance taxes were also introduced, and Christopher testified that neither he nor his wife had paid the inheritance taxes.
The court sustained a demurrer to the evidence, and the state asks that this judgment be now corrected. We do not discover any gap in the state’s evidence to maintain its cause. It fully covered all the allegations of its petition and the petition stated a cause of action. Tested by demurrer, the evidence was entitled to full credence and to be considered in its most favorable and propitious light towards the party which adduced it. (Bequillard v. Bartlett, 19 Kan. 382; Christie v. Barnes, 33 Kan. 317, 6 Pac. 599; K. C. Ft. S. & G. Rid. Co. v. Cravens, 43 Kan. 650, 23 Pac. 1044; Rogers v. Hodgson, 46 Kan. 276, 26 Pac. 732; City of Syracuse v. Reed, 46 Kan. 520, 26 Pac. 1043; Buoy v. Milling Co., 68 Kan. 436, 75 Pac. 466; Hoffmeier v. Railroad Co., 68 Kan. 831, 75 Pac. 1117; Can Co. v. Ross, 72 Kan. 669, 83 Pac. 616; Coon v. Railway Co., 75 Kan., 282, 80 Pac. 682; Jones v. Adair, 76 Kan. 343, 91 Pac. 78; Fuller v. Torson, 8 Kan. App. 652, 56 Pac. 512.)
It is true that defendant Christopher Gerhards, while on the stand as a witness for plaintiff, was permitted on cross-examination by his own counsel to give testimony tending to support the defense set up in his answer. He told of his marriage in 1891, and that his uncle, Christ Backus the testator, came to reside with him, and that Backus gave him $2000 upon condition that he should always have a home with defendants; that Backus and the defendants kept only one pocketbook; that Backus worked and earned money for about four years and contributed his earnings to the.common fund; that both defendants did likewise; that they made investments in land in Russell county and later in Sedgwick county, and that these lands, or most of them, were taken in the name of Christ Backus:
“We first bought 160 acres in Russell county. We bought 80 acres that we paid $.1200 for. That was the money that we all saved working in Missouri. That was put in my name. We bought 160 acres in Russell county that was put in deceased’s name. That made 400 acres, which we sold for $6500 in 1897. The same year we purchased the place in Sedgwick county with the $6500, and paid $8000 for it. We borrowed the rest of the money, $1500. There are 200 acres in that place. I testified that deceased had 200 acres of land at the time of his death because it was in his name. . . . The $60 a month that deceased earned for four years he gave to my wife. We got the interest on the property. I put the place in Sedgwick county in the name of deceased because I wanted to be on the safe side. He told me he had the will made. The will was made in 1893. He said the will was all made, and I had the will, And he said, for him to be on the safe side, to make it in his name, and I said all right. From 1891 to deceased’s death he did not spend any money. My wife and I purchased his clothing and paid the expense of keeping him.”
Altogether the defendant’s evidence clearly showed that he and his wife had fully complied with their contract — if that were of any consequence. .
But this situation brings the case squarely within the rule laid down in The State v. Mollier, 96 Kan. 514, 152 Pac. 771, decided by this court after the case at bar was disposed of below; and we doubt not that the trial court would have so held if it could have had the light afforded by the Mollier case. Counsel here, as in the Mollier case, argue that the case at'bar should follow the decision in Nelson v. Schoonover, 89 "Kan. 779, 132 Pac. 1183, but we think not.' The defendants have seen fit to take this property under the will, not under a contract nor as cestuis que trust. ' The state has the power to tax the right of succession — the right to take by will or by the statute of descents and distributions (The State v. Mollier, supra, p. 519) ; and since the defendants have chosen to take title by the will of Christ Backus it is of no consequence that they might have secured it through some other mode of acquisition, or through some altogether different legal right thereto.
A faint suggestion is intruded that the action is barred by the statute of limitations. Neither statute, decision nor rule of substantive law is quoted in support of that contention, and we will not do counsel the injustice of assuming that they do not know and understand quite as well as ourselves that the familiar statutes of limitations never run against the state, and that the state is never included in such statutes by inference or mere interpretation, and that only by clear and spe cific language in such a statute will the doctrine be countenanced that the state can not collect its due or vindicate its rights regardless of the lapse of time.
Since there is nothing further to determine in this controversy, the judgment will be reversed and the cause remanded with instructions to enter judgment in favor of the state for the inheritance taxes assessed against the defendants. | [
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The opinion of the court was delivered by
Mason, J.:
The parents of several children who had successfully completed the work in the eighth grade of a parochial school in Parsons applied for their admission to the city high school. The board of education refused to admit them without their taking an examination in accordance with its rules. The parents obtained from this court an alterative writ of mandamus requiring such action, unless reason to the contrary should be shown. The board filed an answer in which a part of the allegations of the writ are admitted. The plaintiffs ask for a judgment upon these admissions, and the case'has been heard and submitted upon that motion.
1. The rule and.practice of the board is to admit to the high school, without examination, applicants having a county superintendent’s diploma or a certificate of graduation from the eighth grade of the Parsons city schools, “or any other public school of equal rank,” and to require examinations of all other applicants. In August, 1916, notice was given by publication in local newspapers that opportunity for such an examination would be given on September 6, and that applicants were required to furnish certain information by August 28. In the course of the plaintiffs’ argument some criticism is made of these details, but no question of their reasonableness is involved in this proceeding. It does not appear that any especial inconvenience would have resulted therefrom, if the applicants had been willing to submit to any examination at all. But however that may be, the court is not asked to require that the applicants be given an opportunity to be examined at another time or under other conditions, but to order their admission without that preliminary, and the manifest purpose of the action is to test their right in that regard.
2. The principal contention of the plaintiffs is that the board has no power to make or enforce a rule which, while allowing the graduates of the city schools, or other public schools of equal rank, to enter the high school at once, denies • admission to the graduates of parochial and other private schools of whatever rank until they have passed an examination, thereby arbitrarily discriminating against the pupils of the private schools, and denying to them and to their'parents the equal protection of the law. We can not regard the contention as well founded. That children of suitable age are entitled to attend the public schools at the place of their residence is not doubted, but the department to which they are to be assigned is a matter to be determined under appropriate regulations adopted by the governing body. The board of education is charged with the duty of making rules for the government of the city schools. (Gen. Stat. 1915, § 9108.) , It is proper if not absolutely necessary that some provision should be made for. determining whether an applicant who presents himself for admission to a particular department has had the preliminary training to justify his assignment thereto. Two obvious methods for accomplishing this result present themselves. One is to test the prospectivé pupil’s actual qualifications by an examination; the other is to act upon the presumption in his favor arising from the character of the schools he has attended. There is room for the exercise of individual judgment as to the manner and extent to which the latter method should be applied. There is a fair basis for the classification of schools in this respect, and making a certificate of graduation from schools of one class a substitute for an examination of a pupil, while denying that effect to such a certificate from schools of another class. For instance, if the board had seen fit to dispense with an examination in the case of graduates of schools in the city, while requiring it of the graduates of outside schools of a similar kind, a just basis for the distinction could be found in the fact that the board could more conveniently determine the quality of work done by a school that was near at hand than by one at a distance. And such a distinction might reasonably be made between the public schools of the city and other schools located therein, because the board of education, having full control of the management of the public schools, would necessarily be fully advised of the character of work they were doing, so that further examination of their graduates would be superfluous. The same character of difference, though of less degree, exists between public and private schools, in whatever part of the state they may be situated. While the board of education of Parsons, has no control over public schools outside of the city, its schools are a part of the same general system, all portions of which are subject to official visitation and regulation. The board has means for investigating and determining the evidential value of a certificate of graduation from a public school anywhere in Kansas that are not available with respect to any school not under public management. The courses ofi study, the general methods pursued, the establishment of standards, are subject to legal regulation. How far in a particular instance they are conformed to may always be determined by investigation conducted as a matter of right. However efficient a private school may actually be, the board does not have and can not have the same facilities for satisfying itself on the point. Any opportunity afforded it for investigating the question would depend upon courtesy and not upon law — would be a privilege and not a right. And while it might well avail itself of such an opportunity and treat the diploma of such a school as a substitute for an examination if in its judgment the information acquired justified that course, a court can not control its action in that regard.
Reported cases which aré cited seem to have but little direct bearing upon the question just considered. For illustration, our attention is called to two decisions, seemingly to the effect that a rule is unreasonable which prescribés the branches a pupil in a public school shall study. (School Dist. No. 18 Garvin Co. v. Thompson et al., 24 Okla. 1; Trustees of Schools v. The People, 87 Ill. 303.) It is doubtless competent for the legislature to authorize those in the control of the public schools to regulate that matter, and whether it has done so would seem to be a question of statutory construction. In any event a solution of that problem would throw little light upon that now under discussion.
3. The purpose of the examination of an applicant for admission to the high school is to determine whether he has received sufficient preparatory training to warrant accepting him. But he can not dispense with the occasion for an examination by establishing the existence of that fact to the satisfaction of a court. The determination of the matter is a function of the school authorities, and its correctness, if arrived at by the exercise of their'fair and candid judgment, is not open to judicial review. (Williams v. Parsons, 81 Kan. 593, 106 Pac. 36.)
4. However, the general principles already announced are not decisive of this case, by reason of certain admissions made by the defendant. In the answer it is said:
“Defendant for the purpose of this action admits, as averred in said writ, that ‘the teachers of said parochial school are holders of public diplomas and certificates entitling them to teach in the public or common schools of the State of Kansas,’ and that ‘the educational advantages of the pupils in all the grades’ of the parochial school ‘are equal to those in the public or common schools of the city of Parsons.’
“Defendant admits, as averred in said writ, that ‘in said parochial school up to and including the eighth grade the pupils have been classified the same as in the public or common schools of fhe city of Parsons, the same curriculum has been adopted, the textbooks adopted by the state are used, and that the same tests and examinations are required and made,’ but defendant avers, that the said tests and examinations are made by the teachers in said parochial school only.
“Defendant admits, as averred in said writ, that ‘the plaintiffs herein are the parents of children, to-wit, James Creyhon, Mary Moffat, Frank Tipton and Mary Doherty, pupils who have finished successfully the work in the eighth grade of said Parochial school, have studied the same textbooks, have been given the same tests and examinations, in the same manner and to the same extent as the pupils who have successfully completed the work in the eighth grade of the public or common schools of the City of Parsons,’ but defendant avers, that said tests and examinations have been given and made by the teachers of said parochial schools only.”
That these admissions were not intended as mere disclaimers of knowledge as to the matters to which they refer is made clear by the difference in the lánguage used with regard to other allegations of the alternative writ. Two other paragraphs of the answer read:
“Defendant avers, it is not informed as to whether, as averred in said writ, that ‘upon the completion of the eighth grade in said parochial school the pupils are equal in educational qualifications to the pupils in the public or common schools of the city of Parsons, and are fitted to enter the high school of said city on an equality with the pupils of the public or common schools who have passed through the eighth grade’; but defendant avers that fact should be determined by an examination provided therefor by rule of defendant board, as hereinafter more spe cifieally stated, or as provided by chapter 271, Laws of Kansas 1913, as amended by chapter 300, Laws of Kansas 1915.
“Defendant avers, it is not informed as to whether, as averred in said writ, that ‘said pupils are entitled to the same right and stand upon the same equal footing in the way of educational advantages as the pupils who have finished the eighth grade .in the public or common schools and are entitled without further examination to be admitted to the high school of said city,’ and defendant avers that fact should be determined by an examination therefor, by rule of defendant board, as hereinafter more specifically stated, or as provided by chapter 271, Laws of Kansas 1913, as amended by chapter 300, Laws of Kansas 1915.”
In view of the distinction in phraseology noted, the specific admissions must be treated not only, as affirmatively establishing the facts to which they relate, so far as this litigation is concerned, but as indicating that these facts are known to the board as a body. As already stated, an examination of an applicant for admission to the high school is designed to enable the board to determine whether he has received sufficient preparatory training to warrant his acceptance. It is a means to that end, and not an ultimate object in itself. If the fact exists, and the board has definite and official knowledge of it, the purpose of the examination is fulfilled, and the admission of a- pupil to the privileges of the school should not be denied or delayed merely in order that a barren formality may be gone through with. The board formally admits, thereby implying its definite and official knowledge, that the children of the plaintiffs have finished successfully the eighth grade of a school whose teachers are qualified for publie-schodl work, whose educational advantages are equal to those of the public schools, whose pupils are classified in the same manner as in the public schools, and where the same curriculum has been adopted, the same textbooks used, and the same tests and examinations required and made; that these applicants “have been given the same tests and examinations, in the same manner and to the same extent as the pupils who have successfully completed the work in the eighth grade” of the city schools. To say that these pupils have been given the same tests and examinations as those of the public schools fairly means, not merely that substantially the same ques tions have been asked of them, but that their answers have been graded according to substantially the same standards. The circumstance that the tests and examinations were made by teachers in the parochial schools, which seems to be relied upon as a basis for a distinction, is therefore without practical effect. An applicant for admission to the high school who presents a certificate of graduation from the eighth grade of the city school is admitted upon the strength of that document, which is simply evidence that he has successfully sustained certain tests and examinations. When it is conclusively established by other evidence that an applicant has successfully sustained exactly the same tests and examinations, the mere fact that the individuals who conducted them were not employed by the public is not a sufficient basis for requiring further proof to the same effect as a basis for official action. It is true that one who has been graduated from the parochial school may in fact not have received sufficient preliminary training to qualify him for entrance to the high school. But the same is true of one who has been graduated from the city school. The tests and examinations are not infallible, by whomsoever made. But where certain tests and examinations are accepted as prima facie evidence of qualification if they have been made by the teachers of one school, they ought not to be denied the same effect when made by the teachers of another school. The theory that a discrimination might be warranted by the possibility that the results of the tests might vary in probative force according to the personality of the individuals by whom they were made is precluded by the condition that the tests are the same. As already suggested, if the questions asked were the same but the bases of marking were not, the tests would not be identical or equivalent, but substantially different.
5. The controversy is not affected by the statute referred to in the answer (Gen. Stat. 1915, §§ 9436-9440). That relates to examinations to be given those who have completed the course of study prescribed by the state board of education for rural schools,- and the grades in schools having two or more teachers, and provides that such persons upon meeting the requirements of the act shall be given diplomas admitting them to any high school in the state.
For the reasons stated the plaintiffs are adjudged to have the right to enter their children in the high school without examination, but as the judgment is based upon admissions which were made for the purposes of this proceeding it does not constitute an adjudication that future graduates of the parochial school are entitled to that privilege. | [
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The opinion of the court was delivered by
Burch, J.:
The question presented by this appeal is whether or not the district court took up the case and overruled a motion to dismiss after having sustained the motion and dismissed the case at a previous term.
The case originated before a justice of the peace, and was taken to the district court by appeal. A motion was there made to quash the original service and to dismiss the appeal for want of jurisdiction. The motion was heard on May 19, 1914, oral and documentary evidence being produced. No journal entry of this proceeding or of any ruling on the motion made at that time is abstracted. On May 19, 1915, the court took up the question of jurisdiction presented by the motion to dismiss, found that a general appeal had been taken from the judgment of the justice of the peace, and held that such general appeal gave the district court jurisdiction. On the face of the record, which is conclusive on this court, the district court had not lost whatever jurisdiction it had in May, 1914, and had j urisdiction to make the order which was made at the term occurring a year later.
There is a dispute about what actually occurred. On one side it is said that the motion to dismiss was sustained in May, 1914, and that nothing further was done in the case until the court of its own motion entered the order of May, 1915. On the other side it is said that the motion to dismiss was sustained at the close of the hearing on May 19, 1914, but that on the same day the order of dismissal was vacated and leave was given to brief the question of jurisdiction. At the November, 1914, term, no briefs having been filed, the case was again passed until the term occurring in May, 1915. This explanation is supported by the following entry made by the judge of the district court on the trial docket on the day the motion to dismiss was heard:
“6:30 p. m. Vacate ruling sustained; motion and leave given at plaintiff’s request to brief question -whether appeal waives lack of jurisdiction below.”
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for breach of the covenants contained in a warranty deed. A demurrer was sustained to the petition on January 15,1915. Leave was given to amend and the cause was continued to the next term. At the next term and on April 23, 1915, the action was dismissed, no amendment having been filed. On September 7, 1915, the plaintiff appealed from the judgment of April 23, 1915. Error is assigned on the ruling sustaining the demurrer.
The assignment of error can not be considered, because the appeal was not perfected within six months from the date of the rendition of the order sustaining the demurrer. Section 565 of the code provides that this court may reverse an order of the district court which sustains or overrules a demurrer. Therefore such an order is independently appealable. The code also provides that the appeal shall be perfected within six months from the date of the rendition of the order appealed from. (Civ. Code, § 572, as amended by Laws 1913, ch. 241.) The amendment of 1913 merely reduced the time within which an appeal may be taken from one year to six months. In the case of White v. Railway Co., 74 Kan. 778, 88 Pac. 54, it was said:
“This court is committed to the proposition that whenever a year elapses after the making of an intermediate appealable order without a petition in error being filed, the right is lost to review such order, either by a separate proceeding directed against that very ruling or in the course of an effort to procure the reversal of the final judgment.” (p. 782.)
That case involved a ruling on a demurrer to evidence. The following cases, involving rulings on demurrers to pleadings, support the quoted statement: Blackwood v. Shaffer, 44 Kan. 273, 24 Pac. 423; Corum v. Hubbard, 69 Kan. 608, 77 Pac. 530; Railway Co. v. Murphy, 75 Kan. 707, 90 Pac. 290; Hawkins v. Brown, 78 Kan. 284, 97 Pac. 479. Those decisions were rendered under the statute as it stood before the amendment to section 572 took effect. The change in the length of time within which an appeal may be taken does not, of course, affect the principle. No error in the judgment of dismissal, considered alone, is urged.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Mason, J.:
Frank Lake and Walter Jones were convicted of burglary in the third degree, and the latter appeals.
A general objection is made to the information, but we find it to be sufficient. The instructions are also criticised, but we think they fairly presented the issues. The jury were told that the penalty was imprisonment in the penitentiary for not less than one nor more than five years. It is contended that this statement was inaccurate because the statute (Gen. Stat. 1909, § 2559) fixes no minimum. A minimum of one year, however, is provided elsewhere. (Gen. Stat. 1909, § 2791.)
A reversal is asked on the ground that the defendants were allowed but six peremptory challenges between them, while each was entitled to that number individually. The statute which provides that the'defendant in an ordinary felony case shall be entitled to six peremptory challenges and the state to half that number, has been held to mean that where two defendants are tried together each may exercise six challenges, the state having but three altogether. (The State v. Stokley, 88 Kan. 381, 128 Pac. 189.) The opinion in the case cited contains an intimation that if several defendants join in a challenge this may operate to reduce by one the number of challenges remaining to each. The question whether a challenge jointly exercised has that effect is definitely presented here. The record shows that after twelve jurors had been passed for cause the judge called upon the state to exercise its first peremptory challenge. It waived it. The judge then said “First for the defendants,” and an attorney, who represented both defendants, challenged a juror. The vacancy thus created having been filled, the judge continued: “Second for the defendants.” The defendants’ attorney excused another juror. The state was then called upon for its second challenge, which was waived, and this course was followed until six challenges had been made by the attorney- for the defendants, who consulted with each of them several times during the process. The court then ordered the jury to be sworn to try the case. The defendants’ attorney then demanded the right, to excuse additional jurors, which was denied:
While each of several defendants on trial together is entitled to select six jurors to be peremptorily excused, there is no reason why they should not unite in the selection of any one or more of them if they should choose to do so. And from the proceedings already narrated the defendants in this case-must be deemed to have pursued that course. They were in each instance called upon to exercise a challenge collectively, and did so. If they had asked to make their challenges individually they would have been within their legal rights, and their request would doubtless have been granted. Their failure to do so fairly implied an acquiescence in the treatment of each challenge as jointly made. The rule thus enforced against the defendants is not a merely technical one, but is supported by a sound reason. The civil code requires peremptory challenges to be exercised by the plaintiff and defendant alternately, each having an equal number, the former challenging first. (Civ. Code, § 283.) The criminal code follows the same rule, in the absence of a different provision (Crim. Code, § 208), but-the fact that the prosecution has but half the number of challenges allowed the defendant-requires the latter to exercise two challenges after each one exercised by the state. It was, therefore, incumbent upon the defendants in this case, if they desired to excuse twelve jurors altogether, to prefer two challenges each, immediately after the state had exercised (or waived) one of its challenges. If the defendants were to be allowed to exercise six challenges while the state was using up its entire allotment, and could then excuse six more jurymen, six new men would be added to the panel, no one of whom could be challenged by the state otherwise than for cause. Such a disadvantage to the prosecution is not required by the statute.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
Malinda C. Gideon.executed eight deeds covering eighty acres of land each to six of her daughters and two tracts of forty acres each to her two sons, Oliver and Peter. She left these deeds with her attorney with this writing:
“Eight deeds to my children of all my real estate have been this day executed by me and turned over and placed in the possession of W. T. McBride of Wellington, Kansas, to be by him turned over to the children whose names appear as grantees in the deeds respectively. The delivery of the deeds to Mr. McBride is for the said grantees respectively, but I desire to retain possession and control of the land and to receive the income and profits thereof during my life and the deeds are not to be turned over to the children until after my death.”
The deeds were placed in an envelope and left with Judge McBride, the envelope being marked:
“Deeds of Malinda C. Gideon to her children left with Mr. W. T. McBride to be turned over to the children at her death. Deeds placed in this envelope and sealed in her presence this 18th June, 1910. W. T. McBride.”
The daughters at different times secured the actual delivery and possession of their deeds, and Mrs. Gideon took back the deeds to the sons from Judge McBride and made a new one to defendant Peter Gideon for .the entir,e eighty acres, which she delivered in person and which was recorded, the defendant giving back a life lease. At this time the plaintiff did not know that any deed to him had been made.
The plaintiff claims under the original deed to the forty acres, his theory being that the delivery to Judge McBride was a delivery to him and that the grantor had no right thereafter to withdraw the conveyance and disregard it. It is suggested that as the plaintiff 'did not know of the deed he can not be held to have accepted it, but the rule that one is presumed to accept a conveyance for his benefit so strongly announced in Wuester v. Folin, 60 Kan. 334, 56 Pac. 490, is sufficient on this point. It is the' rule in this state that when a grantor executes a deed and unconditionally delivers it to a third party for the benefit of the grantee, intending to divest the title and to part with all control over the instrument, such deed-passes title. (Syl. ¶ 2.) In Nolan v. Otney, 75 Kan. 311, 89 Pac. 690, it was held that when the instrument provides that it shall not take effect until’ the death of the grantor this will ordinarily be construed to mean that the title vests at once, its enjoyment only to await the grantor’s death, and that this result is not avoided by prescribing that the custodian hold the instrument until certain conditions are complied with by the grantee. Various applications of these principles are found in the following decisions and cases cited therein: Brady v. Fuller, 78 Kan. 448, 96 Pac. 854; Doty v. Barker, 78 Kan. 636, 97 Pac. 964; Zeitlow v. Zeitlow, 84 Kan. 713, 115 Pac. 573; Ross v. Perkins, 93 Kan. 579, 144 Pac. 1004; Stumpff v. Kaechler, 95 Kan. 106, 147 Pac. 821; Rust v. Rutherford, 95 Kan. 152, 147 Pac. 805; Withers v. Barnes, 95 Kan. 798, 149 Pac. 691; Elliott v. Hoffhine, 97 Kan. 26, 154 Pac. 225; Bruce v. Mathewson, 97 Kan. 466, 155 Pac. 787.
While it appears that the grantor did take back the deeds from the custodian, and while she testified: “When I gave the deeds to McBride I still thought it was my land,” she also testified that she did not intend to change the conveyance to Oliver.
“I intended when I gave the deeds to Judge McBride that he take care of them and that Oliver was to have the land. ... I intended that Judge McBride would hold them until my death. I intended that Judge McBride would deliver the deeds any time most.
“Why did you take out the Oliver deed when you deeded to Peter? A. It was a mistake. .1 don’t remember about it.
“Did you ever intend to make such a transaction? A. No, sir, I did n’t.”
The trial court, from all the evidence, found in favor of the plaintiff, and such conclusion finds fair support in the record and is in accord with the authorities.
Other matters are discussed which need not be considered, no material error being found therein, the pivotal point of the case being the question of delivery.
The judgment is affirmed. | [
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Pierron, J.:
Michael Blackmore appeals the trial court’s determination that he is a sexually violent predator in violation of K.S.A. 59-29a01 et seq. Blackmore challenges the jurisdiction of the trial court and the sufficiency of the ruling.
The facts are not in dispute. On April 13, 2000, the attorney general filed a petition seeking to have Blackmore declared a sexually violent predator. On April 28, 2000, the trial court held a hearing pursuant to K.S.A. 2000 Supp. 59-29a05 and found there was probable cause to believe Blackmore was a sexually violent predator. A journal entry was filed which ordered the matter to be “scheduled for jury trial within sixty (60) days or whenever the parties advise the Court that they are prepared to proceed to trial.” This was apparently done without a clear waiver of the 60-day rule pursuant to K.S.A. 2000 Supp. 59-29a06 being obtained from Blackmore. The record is unclear, but it appears Blackmore’s case was set for a trial on August 14, 2000, after he filed a motion requesting a jury trial on August 2, 2000 (the jury trial, request was later waived). The trial court granted Blackmore’s motion that same day. By this time, the 60 days had already run.
On August 8, 2000, Blackmore filed a motion for continuance of the trial based on the the following reasons: (1) defense counsel learned that an essential witness was unavailable on August 14, 2000; (2) the State did not oppose the continuance; and (3) Black-more would suffer undue prejudice and harm if compelled to be tried without the attendance of the witness. The trial court granted the motion for continuance.
Blackmore’s trial was held on October 5, 2000. After taking evidence, the trial court found beyond a reasonable doubt that Black-more was a sexually violent predator. At no time while the case was in the district court did Blackmore challenge his trial as being outside the 60-day rule in 59-29a06. The court committed Blackmore to the custody of the Secretary of Social and Rehabilitation Services for control, care, and treatment at an appropriate facility until such time as his mental abnormality had so changed that he was safe to be at large.
Blackmore first states that more than 60 days elapsed between the probable cause determination and his original trial date. Therefore, he argues, the trial court did not have jurisdiction under 59-29a06 to find he was a sexually violent predator.
Under 59-29a06, a court is required to conduct a trial within 60 days after completion of the probable cause hearing in 59-29a05 to determine whether the person is a sexually violent predator. However, the trial may be continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice and when the respondent will not be substantially prejudiced. K.S.A. 2000 Supp. 59-29a06. Two cases have addressed this 60-day time limitation — In re Care & Treatment of Brown, 26 Kan. App. 2d 117, 978 P.2d 300 (1999), and In re Care & Treatment of Goracke, 27 Kan. App. 2d 837, 9 P.3d 595 (2000).
In Brown, the respondent’s trial was held over 600 days after the probable cause determination. Brown moved to dismiss the proceedings in the lower court based on 59-29a06. In denying Brown’s motion to dismiss, the trial court stated the cause of the delay was that the court was waiting for the United States Supreme Court’s decision on the constitutionality of the Kansas Sexually Violent Predator Act. The trial court also held the 60-day limit was directory and Brown was not prejudiced by the delay. 26 Kan. App. 2d at 118.
This court in Brown reversed the trial court and found error in the denial of Brown’s motion to dismiss. 26 Kan. App. 2d at 120. The Brown court made two main holdings. First, the court stated the criminal speedy trial protections do not apply in these types of proceedings: “The Kansas Sexually Violent Predator Act is civil in nature; therefore, speedy trial protections afforded criminal defendants, whether constitutional or statutory, do not apply. Kansas v. Hendricks, 521 U.S. 346, 369-70, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997). Brown’s speedy trial challenge fails.” 26 Kan. App. 2d at 119.
Second, the Brown court ruled the 60-day limit language in 59-29a06 was mandatory, not directory.
“The language of K.S.A. 1995 Supp. 59-26a06 is clear. The use of the term ‘shall’ indicates the legislature mandated that the commitment trial be held within 60 days after the probable cause hearing. The inclusion of the language ‘[t]he trial may be continued’ does not render the term ‘shall’ discretionary. Additionally, continuance is conditional. A continuance (1) must be considered upon a motion; (2) must be granted for the purpose of due administration; and (3) cannot substantially prejudice the defendant. Neither the court nor the parties in this case filed a motion for continuance of trial. We hold that the 60-day requirement specified in K.S.A. 1995 Supp. 59-29a06 is mandatory and jurisdictional." (Emphasis added.) 26 Kan. App. 2d at 26.
In Goracke, the trial was also held outside the 60-day time period following the probable cause hearing. However, in Goracke, the reasons for the delay were different tiran in Brown. In Goracke, a month after the probable cause hearing, the trial court granted the State’s motion for a continuance and continued the proceedings until a trial setting after receipt of an evaluation. There were also delays for several months associated with the withdrawal of two of Goracke’s attorneys. Additionally, the trial court then granted Goracke’s motion for an independent psychological evaluation.
At Goracke’s trial, he objected to the proceedings as not being scheduled in a timely fashion under the 60-day rule in 59-29a06. The trial court overruled Goracke’s objection, stating the court had found, on its own motion, that there was good cause. The court also stated that for the due administration of justice, it set the trial in as timely fashion as possible in light of the psychiatric evaluations and the ability of counsel to proceed in the best interests of their clients. The court noted there had been no prejudice to Goracke due to the delay.
The Goracke court upheld the trial court’s ruling and the finding that he was a sexually violent predator. The court found the case distinguishable from the facts in Brown, since the latter involved no contemporaneous act to continue by the trial court, no statement about the due administration of justice, and no statement about whether the defendant was prejudiced. 27 Kan. App. 2d at 840.
The situation in the case at bar was not directly addressed in either Brown or Goracke. In both of those cases, the issue of the 60-day rule was addressed by the trial court. Here, the issue is raised for the first time on appeal. Blackmore argues his case raises jurisdictional issues based on the language in the Brown decision that “the 60-day requirement specified in K.S.A. 1995 Supp. 59-29a06 is mandatory and jurisdictional.” 26 Kan. App. 2d at 120. As a jurisdictional issue, we have an unlimited review regardless of whether the issue is raised in the district court. “The appellate courts may raise the issue of jurisdiction at any time if it appears there is a question as to jurisdiction. Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited.” Maggard v. State, 27 Kan. App. 2d 1060, Syl. ¶ 1, 11 P.3d 89 (2000). We will, therefore, address the issue on appeal.
The State distinguishes both Brown and Goracke in that the issue was addressed in the trial court either by a motion to dismiss or an objection. The State argues the issue of the 60-day rule is not properly before our court since it was not raised in the district court. The State relies on State v. Henry, 219 Kan. 310, 312, 548 P.2d. 808 (1976), for the argument that the Henry court “noted that a question as to whether defendant was denied a speedy trial was not raised in district court and could not be considered initially on review.”
The speedy trial issue in Henry was not jurisdictional, nor did the facts indicate a statutory violation of Henry’s right to a speedy trial. Instead, Henry challenged the 180-day rule for bringing a defendant to trial as unconscionably long as applied to the period after the court declares a mistrial due to a hung jury. It has long been the rule of the appellate courts that where constitutional issues are not presented to the trial court, they will not be considered for the first time on appeal. See State v. Smith, 268 Kan. 222, 243, 993 P.2d 1213 (1999). We are not dealing with a constitutional matter in the present case, but one of statutory construction.
The fact of the matter is that Brown states that the 60-day requirement specified in 59-29a06 is mandatory and jurisdictional. The Brown court compared the 60-day rule in 59-29a06 to the 75-day rule for filing a petition alleging a sexually violent predator in K.S.A. 1997 Supp. 59-29a04. The Brown court based its rating on the holding in In re Care & Treatment of Ingram, 266 Kan. 46, 49, 965 P.2d 831 (1998), where the court held the “75-day provision is jurisdictional, and a district court has no jurisdiction to entertain a petition filed beyond the time provided.” The Ingram court made this finding even though the word “shall” was not used in 59-29a04.
Ingram, was filed on October 30,1998. 266 Kan. at 46. It appears Ingram prompted the legislature to amend 59-29a04 effective July 1, 1999, to add the language now found in subsection (b): “The provisions of this section are not jurisdictional, and failure to comply with such provisions in no way prevents the attorney general from proceeding against a person otherwise subject to the provision of K.S.A. 59-29a01 et seq., and amendments thereto.” L. 1999, ch. 140, sec. 4.
The district courts of Kansas are expressly created by the Kansas Constitution and are given only such jurisdiction as may be provided by the legislature. Kan. Const. Art. 3, § 6; Thompson v. Amis, 208 Kan. 658, 661, 493 P.2d 1259, cert. denied 409 U.S. 847 (1972); State v. Adams, 2 Kan. App. 2d 135, 136-37, 576 P.2d 242, rev. denied 225 Kan. 845 (1978). Clearly, the Court of Appeals found there was no jurisdiction outside the 75-day rule in 59-29a04 and the legislature promptly amended the statute to provide the necessary jurisdiction. Arguably, the statute at issue in the present case, 59-29a06, is virtually an identical timing statute and absent language to the contrary, the statute is jurisdictional.
We must also note the legislature obviously knew how to cure the jurisdictional problem of filing outside the 60-day period in 59-29a06. While it remedied the problem pointed out by Ingram quickly, it has not modified the 60-day requirement for jurisdiction in Brown in the 2Vz years since it was decided.
The State had 60 days under 59-29a06 to bring Blackmore to trial for a determination of his status as a sexually violent predator. Blackmore would have no obligation to help the State bring him to trial on the claim that he is a sexually violent predator. Similar to the right to a speedy trial, because the State is empowered to bring a sexually violent offender to trial, it is the State’s obligation to ensure that the accused is provided a speedy trial within the Kansas Sexually Violent Predator Act. See State v. Prewett, 246 Kan. 39, 42, 785 P.2d 956 (1990)(speedy trial). The State failed to do so.
If the district court did not have jurisdiction to enter a judgment finding Blackmore to be a sexually violent predator, an appellate court does not acquire jurisdiction over the subject matter on ap peal. Board of Sedgwick County Comm'rs v. Action Rent to Own, Inc., 266 Kan. 293, 296, 969 P.2d 844 (1998). The district court lost jurisdiction under 59-29a06 by allowing the 60-day period to run without either party filing a continuance. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should be. In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998). Additionally, since 60 days had passed, the trial court did not have jurisdiction to even consider Blackmore’s motion for continuance either. See e.g., Kansas Bd. of Regents v. Skinner, 267 Kan. 808, 814, 987 P.2d 1096 (1999) (parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel).
The other argument presented by the State is that Blackmore waived the statutory time for his trial in two different ways: by requesting a continuance, despite the fact that it was outside the allotted time, and by not objecting to the journal entry which set the trial for “within sixty (60) days or whenever the parties advise the Court that they are prepared to proceed to trial.” K.S.A. 2000 Supp. 59-29a06 provides for continuances of a sexually violent predator trial as long as the respondent will not be substantially prejudiced. Again, using the speedy trial right as an example, a defendant may waive the statutory right to a speedy trial by requesting or even acquiescing in the grant of a continuance. State v. Southard, 261 Kan. 744, 748, 933 P.2d 730 (1997). Blackmore requested a continuance because the unavailability of a necessary witness would cause him undue prejudice. However, this position is inherently flawed because Blackmore had no hand in causing any delay until after the statutory time period had already passed. Compare State v. Warren, 224 Kan. 454, 456, 580 P.2d 1336 (1978) (delays which result from defendant’s application or fault are not to be counted in computing the statutoiy period).
As to whether the scheduling journal entry waived Blackmore’s right to a hearing in 60 days, there is no record of a waiver being made in court of which Blackmore was aware. There must be a clear waiver for it to abrogate the time frames required by the statute.
Blackmore also challenges the sufficiency of the evidence supporting the court’s finding that he was a sexually violent predator. While our previous ruling disposes of this matter in Blackmore’s favor, we will address his other argument since further review is possible.
“ When findings of fact are attacked for insufficiency of evidence or as being contrary to the evidence, the duty of the appellate court extends only to a search of the record to determine whether substantial competent evidence exists to support the findings. An appellate court will not weigh the evidence or pass upon the credibility of the witnesses. Under these circumstances the reviewing court must review the evidence in the light most favorable to the party prevailing below. [Citations omitted.]' ” In re Adoption of R.W.B., 27 Kan. App. 2d 549, 550,7 P.3d 306, rev. denied 270 Kan. 898 (2000).
A sexually violent person is any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence. K.S.A. 2000 Supp. 59-29a02(a).
Blackmore does not challenge the first prong of the two-part test in K.S.A. 2000 Supp. 59-29a02(a), namely his previous convictions. This prong is clearly satisfied. In 1987, Blackmore pled no contest to a charge of aggravated indecent solicitation of a child. In 1990, Blackmore was convicted of indecent liberties with a child.
Rather, Blackmore challenges the evidence supporting the court’s finding under the second prong of 59-29a02. He argues the court’s diagnosis that he suffered from pedophilia was premised upon speculative and tenuous evidence. He states both of the State’s witnesses, Jan Kolb and Dr. Jean Policard, spent approximately 15 and 30 minutes, respectively, evaluating him. Blackmore states he has continuously denied the allegations in one of his convictions. He contends tire diagnosis by both of the expert witnesses is flawed since it is based on convictions that occurred 12 years ago. Additionally, he says the diagnosis of pedophilia was not diagnosed at the time of his convictions, but only after the petition alleging him to be a sexually violent predator was filed.
The State correctly points out that Blackmore’s challenge to Kolb and Dr. Policard’s diagnosis is akin to invited error. See NEA- Topeka v. U.S.D. No. 501, 269 Kan. 534, 547, 7 P.3d 1174 (2000)(a party may not invite error and then complain of that error on appeal). Kolb and Dr. Policard rendered their opinion that Black-more was a pedophile based on all the available information. Both experts testified that Blackmore refused to cooperate in either a clinical interview or in testing sexual arousal patterns during the evaluation process and they were forced to rely on the written reports. At the trial, defense counsel informed the court that Black-more was even noncommunicative with the defense’s expert witness.
We agree with Blackmore that using convictions that occurred nearly 12 years ago is suspect. However, Blackmore has not given the experts any help in determining if his current behavioral status has changed. Due to his belief in a conspiracy involving at least one of his previous convictions, Blackmore has refused to participate in and/or complete any sexual offender treatment. What we have in this case is testimony from Kolb and Dr. Policard that Blackmore is a sexually violent predator. Kolb testified that Black-more had been convicted of sexually violent offenses and that the information collected from Blackmore’s previous convictions indicated a pattern of attraction to children that would substantiate a diagnosis of pedophilia. Kolb stated Blackmore’s pedophilia was a mental abnormality that affected the volitional control of Black-more’s behavior. Koíb also testified several factors indicated a high risk that Blackmore would reoffend. Kolb stated those factors were that Blackmore was on probation at the time he committed the second offense, the victims were young children, one of the victims was a male, he had a predatory pattern of finding women with children, one of the child victims tested positive for consumption of alcohol, and Blackmore refused to participate in sexual offender treatment and substance abuse treatment while incarcerated.
Dr. Policard diagnosed Blackmore as suffering from pedophilia and also diagnosed him with a schizotypal personality disorder with narcissistic traits. Dr. Policard testified Blackmore has some odd beliefs or magical thinking and inappropriate constricted affect. Dr. Policard also testified Blackmore demonstrated a lack of ability to confide in others, evidence of social anxiety, and suspiciousness or paranoia concerning an alleged conspiracy against him. Dr. Policard said the staff at Lamed saw some of the isolated behavioral patterns while he was incarcerated.
We find the trial court’s decision that Blackmore is a sexually violent predator under 59-29a02(a) is supported by substantial competent evidence.
We reverse due to the trial court’s lack of jurisdiction to hear the proceeding due to a failure to bring it in a timely fashion.
Reversed. | [
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