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Elliott, J.: John McKissick appeals the trial court’s imposition of “costs” as a condition of granting a continuance and the subsequent dismissal with prejudice of his personal injury suit (K.S.A. 60-241). Finding no reversible error, we affirm. The facts are mostly undisputed. Plaintiff, in 1987, filed suit for injuries allegedly suffered in ah automobile accident. Eventually, the case was set for trial. The day before trial, plaintiff was treated for chest pains and his doctor stated he could not appear at trial. On the day trial was to commence, the trial court heard plaintiffs motion for continuance and granted that motion with conditions: Plaintiff was to pay costs for subpoenaed witnesses, pay defense attorney fees for the cost of preparation for seven days, arrange for plaintiffs videotape deposition within 90 days, and reimburse the county for the cost of the jury panel called for trial. Plaintiff was given 10 days after receiving defendant’s attorney fee statement to object and request a hearing. Barring an objection to the fee statement, plaintiff had an additional ten days to pay. Should the “costs” not be paid according to schedule, the case was to be dismissed with prejudice. Plaintiff failed to meet the conditions of the continuance and the case was then dismissed with prejudice. Plaintiff appeals that dismissal. Plaintiff first argues the trial court erred in imposing conditions on the granting of his motion for continuance. K.S.A. 60-240 provides that a court may, for good cause shown, continue an action upon such terms/conditions as may be just. A ruling on a motion to continue is discretionary, and absent a clear showing that no reasonable person would take the view adopted by the trial court, we must affirm. See Wilson v. American Fidelity Ins. Co., 229 Kan. 416, 422, 625 P.2d 1117 (1981). Most jurisdictions allow costs and other expenses incurred in preparation for trial as conditions for a continuance. See Annot., 9 A.L.R.4th 1144 § 3[c]. Awarding expenses in preparing for trial is a reasonable condition for a continuance. E.g., Flea Market, USA, Inc. v. Cohen, 490 So. 2d 210 (Fla. Dist. App. 1986); Olesen v. Snyder, 277 N.W.2d 729 (S.D. 1979). Kansas has not specifically addressed the question of conditions for granting a continuance, but has addressed the question of conditions for granting a dismissal without prejudice. For example, an award of attorney fees as a condition for a dismissal without prejudice has been found reasonable. See Peterson v. Garney Constr. Co., 2 Kan. App. 2d 587, 588, 590, 584 P.2d 1269 (1978). In the present case, the trial court noted plaintiff had serious medical problems for years, of which plaintiff s counsel was aware. Plaintiffs counsel acknowledged he had not taken steps to preserve his client’s testimony prior to trial. He also acknowledged the trial court could continue trial on such conditions as it deemed just. After the trial court imposed conditions, plaintiffs counsel did not inform the court those terms would effectively preclude plain tiff from pursuing his claim. Further, counsel did not request a hearing on the reasonableness of the fees requested by defendant. The only comment made about plaintiff s ability to pay the fees imposed was, “Your Honor, with regard to — if the Court allows the attorney’s fees and plaintiff is unable to pay it, then am I to understand the case will be dismissed with prejudice at that point?” We find nothing in the record to indicate the trial court was made aware of any difficulties in meeting the conditions for the continuance. The trial court did not abuse its discretion. Plaintiff also contends the trial court erred in not granting a dismissal without prejudice. As discussed in Peterson, the trial court could impose the same conditions in dismissing without prejudice as it did in granting the continuance. The trial court was concerned that, knowing plaintiff s medical condition, counsel took no steps to preserve plaintiffs testimony for trial. We are unable to state the trial court abused its discretion in granting a continuance on conditions rather than a dismissal without prejudice — also on conditions — where the same conditions could have been imposed. Affirmed.	[ -48, -23, -67, -3, -119, 33, 43, -104, 65, -93, 38, 83, 127, -58, 5, 111, -70, 13, 69, 98, -49, -93, 6, 64, -13, -78, 83, 70, -7, -49, -26, -65, 76, 120, -30, -43, 102, -53, -47, 16, 14, -122, -87, -52, -47, 2, 48, 121, 82, 3, 49, 86, -85, 42, 16, 71, -86, 40, 95, 41, -62, 48, -125, 13, 127, 20, -95, 54, 28, -58, 88, 28, -100, 61, 2, -64, 114, -74, -106, 84, 1, -103, -88, 106, 98, 32, 9, -18, -36, -68, 54, 16, -113, -90, -101, 88, 75, 15, -74, 31, 103, 4, 15, 120, -4, 29, 25, 44, 2, -114, -112, -69, -49, 36, -84, -117, -2, 7, 52, 113, -114, -14, 92, -122, 57, -37, -66, -98 ]
Elliott, J.: In this utility rate case, Greeley Gas Company (Greeley) seeks judicial review of the Kansas Corporation Commission’s (KCC) order disallowing the inclusion of state and federal income tax in Greeley’s cost of service and requiring Greeley to change its purchase gas adjustment (PGA) tariffs to 80/20 incentive tariffs. Additionally, the Citizens’ Utility Ratepayers Board (CURB) has intervened in Greeley’s appeal and also filed its own application for judicial review, seeking reversal of the KCC’s allowance of social and athletic club dues in Greeley’s cost of service. We affirm in part and reverse in part. The Income Tax Issue Because Greeley has elected subchapter S corporate status, income tax is paid by the shareholders rather than by the corporation itself, which would be the case if Greeley were a C corporation. See 26 U.S.C. §§ 1361-78 (1988). The KCC and CURB urge that, because Greeley’s shareholders pay the taxes on the earnings of the corporation based on a proportionate share of their ownership, Greeley itself had no tax liability. KCC and CURB argue that ratepayers should not be required to pay the shareholders’ tax liabilities. See Monarch Gas Co. v. Commerce Com., 51 Ill. App. 3d 892, 366 N.E.2d 945 (1977); FPC v. United Gas Pipe Line Co., 386 U.S. 237, 243-44, 18 L. Ed. 2d 18, 87 S. Ct. 1003 (1967). Greeley argues that income taxes paid on behalf of the corporation (which apparently was at a rate lower than that for corporate taxpayers) should be recognized as part of corporate Greeley’s cost of service. See K.A.R. 82-1-231(c)(11)(A). A strong argument can be made favoring Greeley’s position. In Suburban Util. Corp. v. Public Util. Com'n., 652 S.W.2d 358 (Tex. 1983), the Texas Supreme Court allowed the taxes paid by shareholders of a subchapter S corporation to be recovered from ratepayers. The Texas court reasoned that the utility is entitled to a reasonable cost of service allowance for income taxes actually paid by the shareholders on the corporate utility’s taxable income or for the taxes it would be required to pay as a C corporation, whichever is less. 652 S.W.2d at 364. The court simply recognized the realities of the situation: (1) regardless of who paid, the taxes were on the income of the utility and were “inescapable business outlays.” 652 S.W.2d at 364; and (2) including taxes in cost of service expenses was well established. 652 S.W.2d at 363. And cf. Moyston v. New Mexico Public Service Commission, 76 N.M. 146, 412 P.2d 840 (1966) (sole proprietor utility). The KCC and CURE argue the Texas courts in two later cases have abandoned the position taken in Suburban. We disagree. Although the later cases disallowed tax expenses not actually incurred by the utility, neither involved a subchapter S corporation or the precise issue presented in the instant case. As we read the cases, Suburban is still good law in Texas. See Public Utility Comn. v. Houston Lighting, 748 S.W.2d 439 (Tex. 1987); Southern Union Gas v. Railroad Com'n of Tex., 701 S.W.2d 277 (Tex. App. 1985). On the other hand, evidence was presented in the present case that to allow Greeley’s shareholders’ full tax expense in cost of service would result in an after-tax return on equity of 17 to 18%. (The KCC allowed Greeley a rate of return of 14.15%.) Obviously, the KCC must have the discretion to make adjustments, in a proper case, to prevent excess rates of return. In the instant case, however, Greeley simply did not provide the KCC with substantial competent evidence of what the shareholders’ actual income tax liability on Greeley’s earnings was. Greeley’s expert Richard Treich merely testified that typically the net earnings of a subchapter S corporation are taxed at the shareholders’ tax rate of 28%. He admitted, however, that the indi vidual tax rate could range from 15 to 33% and further admitted that the 28% rate used in the rate application was just an estimate and that none of the taxpayers’ income tax returns had been examined to ascertain what rate was actually paid. In addition, seven of Greeley’s shareholders are minors and three shareholders are trusts, facts not considered in the 28% estimate. Even under the reasoning of Suburban, it was Greeley’s burden to establish the income taxes actually paid by its shareholders on its behalf. In the present case, had the KCC recognized the reasoning of Suburban and allowed the estimated income tax expense in Greeley’s cost of service, it would have, in our opinion, been allowing an expense unsupported by substantial competent evidence. Based on Greeley’s lack of competent evidence to support its position, the KCC’s disallowance of the income tax expense is affirmed. The PGA 80/20 Incentive Tariffs Issue The KCC, by imposing the PGA 80/20 incentive tariff, ordered that Greeley can pass through to the ratepayer only 80% of any increase in its gas costs and, likewise, only 80% of any decrease in gas costs. On this issue, Greeley’s primary argument is that the PGA incentive tariff violates the filed rate doctrine: “The filed rate doctrine ensures that sellers of wholesale power governed by FERC can recover the costs incurred by their payment of just and reasonable FERC-set rates. When FERC sets a rate between a seller of power and a wholesaler-as-buyer, a State may not exercise its undoubted jurisdiction over retail sales to prevent the wholesaler-as-seller from recovering the costs of paying the FERC-approved rate.” Nantahala Power & Light v. Thornburg, 476 U.S. 953, 970, 90 L. Ed. 2d 943, 106 S. Ct. 2349 (1986). See Mississippi Power v. Miss. ex rel. Moore, 487 U.S. 354, 371-72, 101 L. Ed. 2d 322, 108 S. Ct. 2428 (1988) (FERC has exclusive authority to determine reasonableness of wholesale rates; states cannot bar regulated utilities from passing through to customers the FERC-mandated wholesale rates). On the other hand, while FERC determines whether a rate is reasonable, state public utility commissions do have the power to determine whether that rate is reasonably incurred in view of alternative available sources. Thus, in a proper case, the state commission may deem the expense imprudently incurred, even though the utility pays the FERC-mandated rate, without overlapping the regulatory functions of FERC. Pike Co. Light & Power Co. v. Pa. Puc., 77 Pa. Commw. 268, 274-75, 465 A.2d 735 (1983). Further, since the question of whether the retailer is acting with economic prudence in purcha sing at wholesale is never before FERC, the state commission would not be guilty of regulating the same activity as FERC. Kentucky West Virginia Gas v. Pa. Public Utility, 837 F.2d 600, 609 (3d Cir.), cert. denied 488 U.S. 941 (1988). The court cautioned, however, that a state could not apply its own laws in such a way as to interfere with the federal regulatory scheme. 837 F.2d at 609. KCC’s reliance on Kentucky West Virginia and Pike is misplaced. In both of those cases, there was a finding of imprudence for specific purchases of power. In the present case, Laurie Kelly, a managing rate economist employed by the KCC, testified that Greeley’s prices on existing purchase contracts were, in fact, reasonable. The result of the KCC’s PGA incentive tariff is that, regardless of whether alternative sources are available, and regardless of the prudence or lack of prudence on Greeley’s part, and without any finding of imprudence by the KCC, Greeley can never recover the FERC-filed rate. In light of the factors presented in this record, we hold the KCC’s PGA incentive tariff is violative of the filed rate doctrine. We need not decide whether an incentive tariff can ever be compatible with the filed rate doctrine. Compare Re Energy Cost Adjustment Clauses, 41 Pub. Util. Rep. 4th (PUR) 81, 85-86 (1980) (California rejected a 90/10 clause but approved a 98/2 clause); Re Standard Purchased Gas Adjustment, 40 Pub. Util. Rep. 4th (PUR) 619, 622 (N.M. 1980) (New Mexico: 90/10 clause is punitive); Re Consumers Power Co., 14 Pub. Util. Rep. 4th (PUR) 370, 410 (Mich. 1976) (Michigan approved a 90/10 adjustment). We are only holding that under the facts of this case, absent a specific KCC finding of imprudence, the PGA 80/20 incentive tariff violates the filed rate doctrine and must be reversed. The Social and Athletic Club Dues Issue In its application for judicial review, CURB argues the KCC should not have allowed Greeley to pass through to ratepayers social and athletic club dues totaling $1,799. Greeley included in its cost of service dues paid to such organizations as the Denver Country Club, Garden of the Gods Club, and the Ulysses Country Club. The only testimony presented on this issue was by CURB’s witness Ellen Blumenthal, who recommended against the allowance, stating that Greeley had made no showing that those social club dues were reasonable or provided any benefit to Kansas ratepayers. No rebuttal testimony nor cross-examination was presented on the issue. The KCC order mentions the testimony but makes no specific finding or conclusion with respect to CURB’s proposed adjustment. By that omission, the dues were included in Greeley’s rates. On review, neither the KCC nor Greeley has briefed this issue. In Gas Service Co. v. Kansas Corporation Commission, 8 Kan. App. 2d 545, 662 P.2d 264, rev. denied 233 Kan. 1091 (1983), the issue was the propriety of recognizing charitable contributions; the KCC must make findings of unreasonableness for those dues it disallows. 8 Kan. App. 2d at 551. We need not decide the public policy question of whether a utility may ever recover dues to social and athletic clubs. Because the only evidence before the KCC was contrary to the inclusion of the dues, there cannot be substantial competent evidence to support the KCC’s inclusion of the dues in Greeley’s cost of service. Accordingly, the KCC’s inclusion of those dues must be reversed as unreasonable. K.S.A. 77-621(c)(8). The KCC order is affirmed as to the income tax adjustment, reversed as to the PGA incentive tariff issue, and reversed as to the membership dues issue.	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Brazil, J.: Provident Life & Accident Insurance Company (Provident) appeals a jury verdict awarding Arlene Evans the proceeds of an accidental death insurance policy issued by Provident and an award of attorney fees for Evans in the case. Evans cross-appeals the amount of attorney fees awarded, the interest rate applied to the award, and the question of whether Evans should have been allowed to discover Provident’s attorney fee costs. Dr. Grant Evans was insured under a group policy of accidental death and dismemberment insurance issued by Provident. Dr. Evans worked for many years as an obstetrician/gynecologist but was forced to retire in 1986 because of his numerous health problems. In March 1987, he was admitted into the hospital with a diagnosis of major depression with melancholy. On April 11, 1987, a nurse found Dr. Evans in his bathroom lying in the bathtub with all his clothing in flames. He died several hours later. After an investigation, Provident denied Dr. Evans’ widow’s claim based on an exclusion in the policy for suicide or inten tionally self-inflicted injuries. Subsequently, a jury returned a special verdict finding that the death of Dr. Evans was accidental. 1. Jurisdiction. Evans argues that this court does not have jurisdiction to hear this appeal because Provident’s notice of appeal was not timely. The journal entry of judgment in the case was entered on April 21, 1989, corrected by an order nunc pro tunc entered on May 8, 1989, and the order denying Provident’s motion for judgment notwithstanding the verdict was entered on July 7, 1989. The journal entry determining the award of attorney fees to Evans was not entered until November 28, 1989. Provident filed its notice of appeal on December 27, 1989. The notice of appeal was within the thirty-day limit set forth by K.S.A. 1989 Supp. 60-2103(a) if the “entry of the judgment” is determined to be November 28, 1989. On March 23, 1990, the Kansas Supreme Court filed its opinion in the case of Snodgrass v. State Farm Mut. Auto. Ins. Co., 246 Kan. 371, 789 P.2d 211 (1990). In Snodgrass, the court said: “We adopt the rationale of Budinich v. Becton Dickinson & Co., 486 U.S. 196, 100 L. Ed. 2d 178, 108 S. Ct. 1717 (1988). A decision on the merits is final for purposes of appeal even if a request or motion for attorney fees attributable to the case has not yet been determined.” 246 Kan. at 374. “We find the reasoning of Budinich persuasive. We believe a bright-line rule that a decision on the merits is a final judgment for appeal purposes despite any remaining question as to attorney fees is necessary and appropriate.” 246 Kan. at 377. Under the Snodgrass decision, Provident’s notice of appeal would not be timely. However, Snodgrass was not filed until nine months after the final order from which Provident arguably should have appealed. The unfairness of applying new procedural rules retroactively so as to strip this court of jurisdiction, when the parties proceeded properly under the old rule, is obvious. Evans cites no authority for such a retroactive application of new procedural rules and, indeed, such an application would seem to be at odds with the spirit of K.S.A. 60-102, which states that the provisions of the civil procedure code “shall be liberally construed to secure the just, speedy and inexpensive determination of every action.” The ruling in Snodgrass allowed the court to retain ju risdiction in that appeal. Retroactive application of the new rule in Snodgrass would deny us jurisdiction in this appeal. We conclude that Provident’s notice of appeal was timely under the rules then existing and that this court has jurisdiction over this appeal. 2. Provident’s motions for directed verdict and for judgment notwithstanding the verdict. Provident argues that its motions for directed verdict and for judgment notwithstanding the verdict should have been granted by the trial judge. “In ruling on a motion for a directed verdict, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought and where reasonable minds could reach different conclusions based on the evidence the motion must be denied and the matter submitted to the jury. This rule is also applicable when appellate review is sought on a motion for directed verdict. Further, the same test is applicable to a motion for judgment notwithstanding the verdict.” Holley v. Allen Drilling Co., 241 Kan. 707, 710, 740 P.2d 1077 (1987). Evans was required to prove that “the insured, Grant E. Evans, suffered accidental bodily injury resulting in the loss of his life as provided in the group policy issued by the defendant.” There was clearly enough evidence to sustain Evans’ case against the motions for direct verdict and judgment notwithstanding the verdict. Evans provided testimony by the chief investigator for the Wichita Fire Department that Dr. Evans’ death was accidental. She further presented evidence that Dr. Evans was a heavy smoker, that he was careless in his smoking habits, that he had repeatedly burned clothing and objects with his smoking, and that he had access to cigarettes and matches in his room. Evans further presented evidence that Dr. Evans also used matches to dispel odoriferous body gases, that a pack of matches was found among the debris from the fire, and that the fire started in Dr. Evans’ crotch area while he was sitting on the toilet. Resolving all inferences in favor of Evans, the trial judge was correct in denying the motions and submitting the case to the jury. 3. Burden of proof. Provident claims that the trial court’s instructions erroneously placed the burden of proof on it. Instruction No. 9 set forth the burden of proof: “Plaintiff claims that on April H, 1987, the insured, Grant E. Evans, suffered accidental bodily injury resulting in the loss of his life as provided in the group policy issued by defendant. “Plaintiff has the burden to prove that her claim is more probably true than not true. “Defendant claims that Grant E. Evans died as the result of suicide or intentionally self-inflicted injury. “Defendant has the burden to prove that its claims are more probably true than not true.” Provident notes in its brief that one of the “limitations and exclusions” included in the policy denies coverage for suicide or intentionally self-inflicted injuries. Provident argues at some length in its brief, using quotations from treatises on insurance, a Tenth Circuit case from 1963, and a line of cases from New York decided in the 1930’s, that Evans was required to prove that Dr. Evans’ death was not suicide. Provident overlooks more recent Kansas case law that is clearly applicable. “When an insurer seeks to avoid liability on the ground that the accident or injury for which compensation is demanded is covered by some specific exception to the general terms of the policy, the burden of proof rests upon the insurer to prove the facts which bring the case within such specified exception.” Baugher v. Hartford Fire Ins. Co., 214 Kan. 891, Syl. ¶ 4, 522 P.2d 401 (1974). In Alliance Life Ins. Co. v. Ulysses Volunteer Fireman's Relief Assn., 215 Kan. 937, 529 P.2d 171 (1974), the court considered a case in which a decedent was killed in an aircraft owned by a flying club of which he was a member. The decedent was covered by an insurance policy which excluded “ ‘[ijnjuries sustained by the Insured while piloting or serving as a crew member of an airplane.’ ” 215 Kan. at 943. Both men aboard the plane were killed and there was no way to tell who was piloting the plane at the time it crashed. 215 Kan. at 943. In reversing the trial court’s judgment for the defendant insurance company, the appellate court said: “An insurance company seeking to avoid liability under an exclusionary clause in its policy for a loss which is otherwise covered has the burden of proving that the loss falls within the exclusion.” 215 Kan. 937, Syl. ¶ 10. Evans also relies on Broyles v. Order of United Commercial Travelers, 155 Kan. 74, 122 P.2d 763 (1942), in which the decedent was found on the floor with a fractured skull and the accidental death policy excluded death due to injuries intentionally inflicted by the insured or others. In reversing judgment for the insurance company, the court said: “In such a case as described, where the proof shows death of the insured by unexplained, violent and external means, a prima facie showing is made that the injuries were accidental.” 155 Kan. 74, Syl. ¶ 4. The trial court correctly instructed the jury on the burdens of proof to be carried by Provident and by Evans. Evans had to prove that there was an accidental bodily injury resulting in death if she were to recover, and Provident was required to prove suicide or self-inflicted injury if it were to prevail. 4. The presumption against suicide. Provident argues that the trial court improperly instructed the jury on the presumption against suicide. The presumption against suicide was embodied in Instruction No. 14: “If you are unable to decide whether the cause of death was accident or suicide, your verdict must be that the cause of death was by accident.” PIK Civ. 2d 2.72 states: “Because of the instincts of self-preservation and love of life which are characteristic of the normal person, it is presumed that [decedent] died as a result of accidental causes (natural causes) rather than as a result of attempted suicide. This presumption may be overcome if you are persuaded by the evidence that [decedent] intended to take his own life,” Provident makes no suggestion that it wgs prejudiced by the giving of instruction No. 14, rather than the PIK instruction, other than to make an unsupported assertion that the instruction is prejudicial as contrary to the burden of proof. Because the court did correctly state the respective burdens of proof, and the effect of the presumption against suicide is to tip the balance to a finding of accidental death where the evidence is even, instruction No. 14 was proper, although the PIK instruction might have been preferable. Provident’s other line of argument with respect to the presumption against suicide is that no instruction should have been given since Dr. Evans was not a sane and normal person. The comment to PIK Civ, 2d 2,72 states: “It would appear this instruction would only be proper when the deceased was sane at the time of death.” The record is devoid of any evidence that Dr. Evans was insane at the time of his death. He was clearly suffering from depression, but he had not been adjudicated insane, and there was no testimony to the effect that his condition warranted such a finding of insanity. In order for Provident to prevail on this point, the trial court would have to find as a matter of law that Dr. Evans was insane for the purposes of the presumption against suicide merely because he was being treated for severe depression. Provident cites no case law which would support such a finding nor is any apparent. Instruction No. 14 on the presumption against suicide was proper. 5. Provident’s mental infirmity theory. The accidental death policy under which Dr. Evans was insured has an exclusion for losses caused by mental infirmity. Provident contends that the trial court erred in refusing to give an instruction requiring the jury to find for Provident if it found that Dr. Evans’ death was due to his mental infirmity. A party is entitled to a jury instruction in explaining its theory of the case when there is sufficient evidence to support such a theory. McGraw v. Sanders Co. Plumbing & Heating, Inc., 233 Kan. 766, Syl. ¶ 3, 667 P.2d 289 (1983). Provident argues that there must have been sufficient evidence to support its mental infirmity theory because Evans’ motion for directed verdict on the question of mental infirmity was overruled. Arguably, the evidence established that Dr. Evans had a mental infirmity; he was severely depressed. However, there was no evidence adduced at trial as to how this mental infirmity would have resulted in his death other than by an intentional suicidal act. Indeed, Provident’s entire theory of the case seems to have been that Dr. Evans committed suicide. All of the evidence adduced by Provident was directed toward a showing that Dr. Evans knew exactly what he was doing, formed an intent to take his own life, and carried out his plan. The trial court did not err in refusing to give an instruction on Provident’s mental infirmity theory. 6. Dr. Modlin’s testimony. Provident contends that the trial court erred in granting Evans’ motion in limine limiting the testimony of Dr. Herbert Modlin. Dr. Modlin is a board certified psychiatrist associated with the Menninger Clinic in Topeka, Kansas, who has studied the topic of suicide and published at least one book or article on it. Provident sought to introduce Dr. Modlin’s opinion that Dr. Evans committed suicide and did not die by accident. Dr. Modlin’s opinion was based on a procedure called a “psychological autopsy” that he conducted by reviewing medical records, hospital records, deposition testimony, and other evidence. “The qualificationis of an expert witness and the admissibility of his testimony are within the sound discretion of the trial judge.” Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 21, 578 P.2d 1095 (1978). As a preliminary matter, Evans contends that the issue is not properly before this court because there was no proffer of evidence before the trial judge. A pretrial hearing was conducted on Evans’ motion in limine before a different judge. The pretrial judge ruled that Dr. Modlin could testify only as to Dr. Evans’ state of mind at the time of his death and not to the ultimate question of whether he in fact committed suicide. Later, the trial judge noted that the pretrial judge’s ruling on the motion in limine was binding on the trial court. Provident contends that under these circumstances a formal proffer was not required. McGraw v. Sanders Co. Plumbing & Heating, Inc., 233 Kan. at 770, supports Provident’s position: “Even though appellant made no formal proffer of evidence to show the expected answer of the witnesses questioned, the argument on the motion in limine coupled with the in-court colloquy fully set out appellant’s position. Given the liberal construction to be accorded our rulés of civil procedure, (K.S.A. 60-102), this was sufficient to satisfy the statutes.” We conclude that the issue is properly before this court on appeal. The judge who ruled on the motion in limine did not abuse her discretion in limiting Dr. Modlin’s testimony. Before expert scientific opinion may be received into evidence at trial, the basis of that opinion must be shown to be generally accepted within the expert’s particular scientific field. State v. Miller, 240 Kan. 733, 736-37, 732 P.2d 756 (1987). Furthermore, an expert’s opinion must be based on reasonably accurate data and not simply on assumption and speculation. Lollis v. Superior Sales Co., 224 Kan. 251, 258, 580 P.2d 423 (1978). In the present case, testimony by Dr. Modlin as to whether Dr. Evans actually committed suicide would be purely conjectural. Dr. Modlin was clearly qualified to testify that he believed Dr. Evans was suicidal on the day of his death, and Dr. Modlin so testified. However, Provident offered no evidence, either in the hearing on the motion in limine or on appeal, to indicate that a psychiatrist such as Dr. Modlin is qualified to render an opinion on whether a particular individual carried out his suicidal intent. Provident relies on Harvey v. Raleigh Police Dept., 85 N.C. App. 540, 355 S.E.2d 147 (1987), in which a psychological autopsy was admitted for the purpose of determining a worker’s mental state at the time of his suicide. The Harvey court stated: “We hold that [the expert witness’] testimony would assist the Commission in determining whether [decedent] had a dysthymic disorder. ... In addition, we note that other jurisdictions have held psychological autopsies to be admissible as competent evidence for the determination of the decedent’s state of mind at his death.” (Emphasis added.) 85 N.C. App. at 548. The Harvey case does not advance Provident’s argument because Dr. Modlin was, in fact, allowed to testify as to Dr. Evans’ mental state at the time of his death. Neither Harvey, nor any of the cases cited therein, show that a court has allowed an expert to testify, based upon a psychological autopsy, that he or she believes that the decedent did actually commit suicide. Provident also cites Farmers Ins. Co. v. Smith, 219 Kan. 680, 549 P.2d 1026 (1976), for support. In Smith, the court considered the expert testimony of a fire investigator where his testimony corroborated that of other witnesses: “We do not find the evidence in this case to be so uncertain or speculative as to justify the action of the trial court in excluding Sevart’s opinion as to the source of the fire. By his elimination of other possible causes for the fire it would appear that his conclusion was reasonable that the fire was the result of some defect in the mobile home’s electrical system.” 219 Kan. at 690. Unlike Smith, Dr. Modlin’s opinion in the present case is simply an inference based on another inference. While a psychiatrist might be able to infer from the medical records available to him that Dr. Evans was suicidal at the time of his death, Dr. Modlin takes the chain of speculation one step further and infers that Dr. Evans in fact acted on his suicidal thoughts. The trial court acted properly in limiting the testimony of Dr. Modlin. 7. Attorney fees. Provident argues that the trial court erred in awarding attorney fees to Evans. K.S.A. 40-256, which governs the award of attorney fees when one party is an insurance company, provides: “That in all actions hereafter commenced, in which judgment is rendered against any insurance company ... on any policy or certificate of any type or kind of insurance, if it appear from the evidence that such company . . . has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action.” The question of whether an insurer has refused to pay without just cause or excuse is one of fact for the trial court. Farm Bureau Mutual Ins. Co. v. Carr, 215 Kan. 591, 598, 528 P.2d 134 (1974). In refusing to pay a claim, an insurance company has a duty to make a good faith investigation of the facts surrounding the claim. Brown v. Combined Ins. Co. of America, 226 Kan. 223, 227, 597 P.2d 1080 (1979). “[I]f there is a bona fide and reasonable factual ground for contesting the insured’s claim, there is no failure to pay ‘without just cause or excuse.’ ” Koch, Administratrix v. Prudential Ins. Co., 205 Kan. 561, 565, 470 P.2d 756 (1970). “Whether an insurance company’s refusal to pay is without just cause or excuse is determined on the facts and circumstances in each case.” Smith v. Blackwell, 14 Kan. App. 2d 158, 165, 791 P.2d 1343 (1989). “Whether there was just cause to refuse payment, and therefore justification for denial of attorney fees, is in the trial court’s sound discretion.” DiBassie v. American Standard Ins. Co. of Wisconsin, 8 Kan. App. 2d 515, Syl. ¶ 8, 661 P.2d 812 (1983). “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the trial court.” Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973). Under the facts of the present case, it cannot be said that the trial judge abused his discretion in awarding attorney fees to Evans. Evans’ claim was ultimately denied by Joe Roberts, Jr., manager of the life claims department for Provident. Roberts testified that he denied the claim based upon his review of all the information which Provident had acquired. However, he also testified that the hospital notes indicated some improvements in Dr. Evans’ condition prior to the fatal incident and that neither the Wichita Fire Department nor the county coroner’s office had ruled Dr. Evans’ death a suicide. Evidence upon which Roberts says he relied in denying the claim, such as the short period of time between the fire and the time Nurse Boykins last saw Dr. Evans, and the presence of matches in the bathroom, are equally consistent with accident as with suicide. On the whole, we cannot conclude the award of attorney fees was an abuse of discretion. 8. The amount of attorney fees due Evans Evans argues that the trial court should have awarded her more attorney fees because the higher amount she requested was reasonable. Evans was awarded attorney fees pursuant to K.S.A. 40-256, which reads: “[T]he court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action.” (Emphasis added.) This court discussed the operation of K.S.A. 40-256 in Hochman v. American Family Ins. Co., 9 Kan. App. 2d 151, 154-55, 673 P.2d 1200 (1984): “These statutes allow ‘reasonable’ fees to parties who have prevailed against an insurance company in certain cases. ... In discussing the purpose of attorney fee statutes, the Kansas Supreme Court has stated the purpose of the award of fees is not to punish the insurance company but ‘to permit the allowance of a fair and reasonable compensation to the assured’s attorney . . . .’ Lattner v. Federal Union Ins. Co., 160 Kan. 472, 481, 163 P.2d 389 (1945). The amount of attorney fees to be awarded is a matter largely within the trial court’s discretion. Buchanan v. Employers Mutual Liability Ins. Co., 201 Kan. 666, 443 P.2d 681 (1968). An abuse of discretion arises only if no reasonable person would have taken the same position as the district court. See Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973).” There is nothing in the record to indicate that the $71,645.65 the trial judge allowed to Evans is not a “reasonable” fee. The record does disclose that Evans originally claimed $91,541.75. A hearing was held on the subject of attorney fees, and Richard C. Hite appeared on behalf of Evans as an expert witness. Hite testified that the $91,541.75 would have been a reasonable fee for the work done on the case. Hite gave no testimony that anything less than that amount would be unreasonable or that the $71,645.65 ultimately settled on by the judge would not be a reasonable fee. The trial court itself is an expert in the area of attorneys’ fees and can draw on and apply its own knowledge and expertise in evaluating their reasonableness. Buchanan v. Employers Mutual Liability Ins. Co., 201 Kan. 666, 676, 443 P.2d 681 (1968). In the present case, the trial judge awarded Evans attorney fees at a rate of $85 per hour for 842.89 hours. There has been no showing that the trial judge abused his discretion. Provident argues that the amount of attorney fees awarded was improper because K.S.A. 40-256 allows the award of fees for only one attorney or firm. It cites for support Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 713, 366 P.2d 219 (1961), which states: “The statute [K.S.A. 40-256] provides for the allowance of a reasonable sum as an attorney fee to be recovered and collected as a part of the costs. It does not contemplate an amount in the nature of a speculative or contingent fee conditioned on winning the case, but only a reasonable fee for the appellee to pay his attorney for prosecuting the case, and the statute does not contemplate a fee for more than one attorney or firm of attorneys.” Evans correctly points out, and Provident admits in its reply brief, that Wolf did not involve a situation in which a claim was being made for fees based on the services of more than one attorney. Provident also cites Akins v. Illinois Bankers Life Assurance Co., 166 Kan. 648, 203 P.2d 180 (1949), in support of its argument. The only relevant language in the opinion is as follows: “Appellant’s contention the fee of $500 allowed was excessive has some merit. . . . Appellee seeks to justify the allowance as not excessive because two attorneys were employed by her. That is not the test. In the determination of what constitutes a reasonable sum under the statute the amount involved must always be one of the controlling factors. When that is given consideration, along with the fact there was no spirited trial but a submission of the cause solely on testimony given by appellee at a former trial, we feel impelled to hold the fee was excessive and should be reduced to $400.” 166 Kan. at 656-57. The Tenth Circuit has cited both Akins and Wolf in a case in which it refused to increase the amount of attorney fees awarded: “Here the recovery was substantially less than the fees and expenses claimed. The total claim was based upon the services of two attorneys who were not members of the same firm and who included time and expenses in state court litigation prosecuted by the elevator company concerning the same subject matter but which was of questionable necessity or benefit in relation to the instant case. The statute warrants the allowance of an attorney’s fee based upon representation of a single attorney or firm. Wolf v. Mutual Benefit Health and Accident Assn., 188 Kan. 694, 366 P.2d 219 (1961). See also Akins v. Illinois Bankers Life Assur. Co., 166 Kan. 648, 203 P.2d 180 (1949). We are not impressed with the elevator company’s argument that since its attorneys were associated on this particular case they represented a firm within the contemplation of Wolf. Nor do we think the court was required to compensate for all of the time devoted by these attorneys to extensive proceedings collateral to the present case, a substantial portion of which was abortive or for the unsuccessful purpose of avoiding federal jurisdiction. We think there could be properly weighed the necessity and productivity of the hours claimed in relationship to the circumstances of the litigation before it.” Grain Dealers Mut. Ins. Co. v. Farmers U. Coop. E. & S. Ass’n, 377 F.2d 672, 682-83 (10th Cir. 1967). In our opinion, Akins and Grain Dealers stand for the proposition that the employment of two attorneys may not be used to justify an otherwise excessive fee. The language in Wolf may be read as an admonition that it is not reasonable to hire two attorneys to do the work of one. However, K.S.A. 40-256 simply requires that the total fee charged be “reasonable.” We hold that a plaintiff may employ more than one attorney as long as the total fee is reasonable for the work required. Conversely, an unreasonable fee is not rendered reasonable for the purpose of K.S.A. 40-256 simply because a plaintiff hires more than one attorney. There is nothing in the record to indicate that the amount of attorney fees awarded by the trial judge was not reasonable; indeed, it was $20,000 less than the figure which Evans’ expert testified was reasonable. Provident does not argue that the fees were in any way excessive but that only one of Evans’ lawyers should be awarded fees. That argument is not supported by the plain wording of K.S.A. 40-256 or the questionable line of case law cited by Prov ident. The trial judge did not abuse his discretion in the amount of attorney fees awarded. 9. Réfusal to compel discovery of attorney fees. Evans contends it was error for the trial judge to deny her motion to compel discovery of the time spent and amount charged by Provident’s attorneys in defending its case. K.S.A. 1989 Supp. 60-226(b)(1) provides: “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” Evans makes the following assertion: “The information was relevant to the issue of what would constitute a reasonable fee to be awarded Mrs. Evans. No better evidence could be submitted than what time was expended by Provident’s attorneys and their charge for that time.” It is difficult to see how the amount of time and money expended in defending a case in any way determines the amount of time and money that is necessary to properly prosecute it. In fact, the easiest cases to prosecute may well require the most time and money to defend. Evans’ assertion of relevancy is unsupported and not persuasive. “The control of discovery is entrusted to the sound discretion of the trial court and orders concerning discovery will not be disturbed on appeal in the absence of a clear abuse of discretion.” In re Marriage of Adams, 240 Kan. 315, Syl. ¶ 4, 729 P.2d 1151 (1986). Evans makes no attempt to show how she was prejudiced by the trial court’s ruling and, in fact, brought in her own expert witness to testify with regard to attorney fees. No abuse of discretion by the trial judge is shown. 10. Prejudgment and postjudgment interest. Evans contends that the trial court erred in setting the rates of prejudgment and postjudgment interest at seven percent, pursuant to K.S.A. 1989 Supp. 40-447, rather than at ten percent, pursuant to K.S.A. 16-204. We note that on July 1, 1989, the judgment interest rate under K.S.A. 16-204 rose from ten percent to eleven percent. Refore reaching the merits of Evans’ argument, this court should note that Evans is precluded from raising any appeal as to prejudgment interest because no argument was ever made to the trial judge that the prejudgment interest rate should be any- tiling other than that mandated by K.S.A. 1989 Supp. 40-447. In fact, at the hearing on the interest rate, Evans’ counsel stated: “Your Honor, it is the plaintiffs contention that 40-447 clearly applies to prejudgment interest because without this there wouldn’t be any strength for a plaintiff to obtain prejudgment interest, but following the entry of a judgment, there is no longer monies payable and unpaid, as the lack of 40-477 [sic] suggests there, it is due. It accrues interest at the judgment rate.” “A point not raised before or presented to the trial court cannot be raised for the first time on appeal.” Kansas Dept. of Revenue v. Coca Cola Co., 240 Kan. 548, 552, 731 P.2d 273 (1987). Evans is precluded from making any argument to this court on appeal about the prejudgment rate of interest. Turning to the question of postjudgment interest, Evans’ first argument is that K.S.A. 1989 Supp. 40-447(a), which sets the rate of interest on death proceeds left on deposit with the insurance company, is not applicable. Rather, she argues that K.S.A. 16-204, the general statute which set the rate of judgment interest, should be applied. One argument that Evans advances for avoiding the interest rate under K.S.A. 1989 Supp. 40-447(a) is that this section became inapplicable because Provident failed to comply with K.S.A. 1989 Supp. 40-447(b). Subsection (b) provides that: “Nothing in this section shall be construed to allow any insurer admitted to transact life insurance in this state to withhold payment of money payable under a life insurance policy to any beneficiary for a period longer than reasonably necessary to transmit such payment.” Evans argues that, because Provident withheld payment under the policy longer than reasonably necessary, Provident may no longer have the benefit of the interest rate spelled out in subsection (a). However, Evans has no authority to support this argument, nor is there any apparent in the Kansas case law, the Kansas statutes, or the legislative history associated with K.S.A. 1989 Supp. 40-447. The plain language of subsection (b) in no way indicates that it includes a penalty for violation that would make subsection (a) inoperable. Rather, it appears that it is simply an admonition to insurance companies not to use K.S.A. 1989 Supp. 40-447 as an excuse to unreasonably withhold payment. “The fundamental rule of statutory construction is that the intent of the legislature governs. [Citation omitted.] When con struing a statute, a court should give words in common usage their natural and ordinary meaning.” Hill v. Hill, 13 Kan. App. 2d 107, 108, 763 P.2d 640 (1988). There is no support, within the statute or elsewhere, for Evans’ reading of K.S.A. 1989 Supp. 40-447(b). Evans makes an analogous argument with regard to subsection (c) of K.S.A. 1989 Supp. 40-447. Subsection (c) provides: “[T]he insurer shall notify the named beneficiary or beneficiaries at their last known address that interest will be paid on the proceeds of, or payments under, such policy from the date of receipt of due proof of death of the named insured.” Evans claims that this section was not complied with and renews her argument that failure to comply with this section makes the interest rate in subsection (a) inapplicable. Her argument must fail for two reasons: there is nothing in the record on appeal to indicate that Provident failed to comply with subsection (c), and there is nothing in the case law, statutes, or legislative history to suggest that failure to comply with subsection (c) strips an insurance company of the benefits of subsection (a). Evans also notes that K.S.A. 1989 Supp. 40-447(a) provides that insurance companies, “shall pay interest on any moneys payable and unpaid after the expiration of such 10-day period at an annual rate of not less than the current rate of interest on death proceeds left on deposit with the insurer plus 1% computed from the date of said receipt.” (Emphasis added.) Evans argues that this section sets the minimum interest and not the maximum interest and that the trial court could have awarded a higher rate of interest even if K.S.A. 1989 Supp. 40-447(a) controls. In a similar argument, she analogizes to K.S.A. 26-511, which sets the interest rate to be paid on condemnation awards. That statute has since been amended, but at one time it did not specifically apply to postjudgment interest. See L. 1982, ch. 88, § 2. This court held in Meinhardt v. Kansas Power & Light Co., 8 Kan. App. 2d 471, 473, 661 P.2d 820 (1983), that the postjudgment interest rate set out in K.S.A. 16-204 was controlling, in the absence of specific language in K.S.A. 26-511, making it applicable to the postjudgment period. We agree with Evans that K.S.A. 1989 Supp. 40-447 sets a minimum interest rate and, because that statute does not specifically set postjudgment interest rates, K.S.A. 16-204 controls. The case is remanded with directions to award postjudgment interest pursuant to K.S.A. 16-204 and attorney fees the trial court finds are reasonable for appellate work pursuant to K.S.A. 40-256. Affirmed as to all other issues.	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Elliott, J.: C.L. Fairley Construction Company, Inc., (Fairley) appeals from a district court order vacating an arbitration award in Fairley’s favor. We reverse. In June 1984, Fairley entered into a construction contract with the City of Lenexa. The contract contained three provisions relevant to this appeal. First, under paragraph 9.9 of the contract, an independent project engineer was the interpreter of contract requirements and the judge of performance. All claims, disputes, or other matters relating to the performance of the contract were to be referred to the project engineer for decision. Second, paragraph 9.10 stated that either Lenexa or Fairley could demand arbitration of any claim or dispute that had been submitted to the project engineer. The demand had to be made within 30 days of the project engineer’s written decision on the dispute or claim, and the failure to demand arbitration within this 30-day period resulted in the project engineer’s decision being final and binding on Fairley and Lenexa. Third, paragraph 14.16 of the contract stated that acceptance of final payment by Fairley would constitute a waiver of all claims by Fairley against Lenexa “other than those previously made in writing and still unsettled.” During the course of the project, a dispute arose concerning $9,000 in liquidated damages and $4,268.16 in back charges. Fairley, Lenexa, and the project engineer exchanged a series of letters concerning the correct amount of Fairley’s final payment. Fairley and Lenexa disagree over which of these letters properly submitted the dispute to the project engineer and which represented the project engineer’s final decision. Lenexa also contends that Fairley waived all claims except the $13,268.16 originally in dispute by acceptance of final payment. Fairley filed a demand for arbitration with the American Arbitration Association, seeking recovery of liquidated damages, improper back charges, and increased costs due to delays. The day after arbitration began, Lenexa filed a petition to stay the proceedings pursuant to K.S.A. 5-402. Lenexa alleged that the claims were not the subject of an arbitration agreement between the parties, were not timely filed, and were not previously decided by the project engineer as required by the contract. The district court denied the petition, but preserved Lenexa’s right to appeal those issues Lenexa claimed were not subject to arbitration and directed the arbitrator to “consider the liquidated damages issues separately from the non-liquidated damage issues.” The arbitrator awarded Fairley $21,434.53 in damages, ordered Lenexa to pay all costs and fees, and stated simply that “[t]his award is in full settlement of all claims and counterclaims submitted to this arbitration.” Lenexa filed a motion for clarification of the award, which the arbitrator denied. Fairley filed a motion for confirmation of the award. The district court denied the motion, finding that the arbitration agreement in the contract was nonbinding. Fairley appealed, and we reversed in case No. 62,002, an unpublished opinion filed October 28, 1988. On review, the Supreme Court affirmed the judgment of the Court of Appeals and remanded the case to the district court. City of Lenexa v. C.L. Fairley Construction Company, Inc., 245 Kan. 316, 777 P.2d 851 (1989). On remand, the district court found that Fairley waived all claims except $13,268.16 for delays and costs when it accepted final payment. The court further found that Fairley’s demand for arbitration was not filed within 30 days of the project engineer’s final decision on the dispute. Accordingly, the court found “it abundantly clear that the arbitrator chose to ignore the contractual provisions agreed upon by the parties, or, in the alternative, the arbitrator construed the contract provisions in a manner totally and absolutely inconsistent with a plain reading of the contract provisions.” Finding these errors were jurisdictional in nature, the court concluded that the “arbitrator exceeded his powers by considering matters not properly submitted to him for determination.” Since the arbitrator made no specific findings, the court found the award could not be modified and thus vacated the entire award pursuant to K.S.A. 5-412. The sole issue before this court is whether the arbitrator exceeded his powers. Arbitration agreements are enforced under the Kansas version of the Uniform Arbitration Act. K.S.A. 5-401 et seq. This act provides that the court may vacate an award in five specific circumstances, including where the arbitrator exceeded his powers. K.S.A. 5-412(a)(3). The district court’s scope of review is quite limited. An award is presumed valid unless one of the specific grounds in K.S.A. 5-412(a) is proven. “Nothing in the award relating to the merits of the controversy, even though incorrectly decided, is grounds for setting aside the award in the absence of fraud, misconduct, or other valid objections.” Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 689, 751 P.2d 122 (1988). The court may not consider evidence presented to the arbitrators, and an award will not be revised unless it is “tainted or based on an irrational interpretation of the contract.” Jackson Trak Group, Inc., 242 Kan. at 689. On remand, the district court reviewed the documentary evidence and found that Fairley did not follow the time and notice procedures set forth in the contract for bringing a claim to arbitration. While the district court’s interpretation of the relevant contract provisions apparently conflicted with that of the arbitrator, this is irrelevant if the subject matter of the decision was properly within the domain of the arbitrator. “ ‘The general rule is that errors of law and fact, or an erroneous decision of matters submitted to the judgment of the arbitrators, are insuflicient to invalidate an award fairly and honestly made.’ ” Rural Water Dist. No. 6 v. Ziegler Corp., 9 Kan. App. 2d 305, 308, 677 P.2d 573, rev. denied 235 Kan. 1042 (1984). Although Kansas case law has not specifically addressed the issue, case law from other jurisdictions indicates that procedural matters such as time and notice provisions are properly before the arbitrator. In Denhardt v. Trailways, Inc., 767 F.2d 687 (10th Cir. 1985), the Tenth Circuit Court of Appeals made a clear distinction between substantive and procedural arbitrability. The court held that whether the parties have agreed to submit a particular claim or dispute to arbitration is a matter for the courts. However, procedural questions, which are “often inextricably bound up with the merits of the dispute,” are matters for the arbitrator. 767 F.2d at 690. Although Denhardt was a labor dispute, which would not be covered by the Kansas version of the Uniform Arbitration Act, this same distinction between substantive and procedural arbitrability has been applied in construction arbitration cases. In Matter of Saranac Lake, Inc., 154 App. Div. 2d 855, 546 N.Y.S.2d 713 (1989), the court construed a statute and contract provision substantially the same as the one at issue here. The court found that whether the demand for arbitration was submitted within 30 days of the engineer’s final decision was a matter for the arbitrator to decide. “Questions of compliance with contractual limitations, expressly made conditions precedent to arbitration by a contract, are for the courts to resolve. [Citation omitted.] However, ‘[s]harply to be distinguished from conditions precedent to arbitration are procedural stipulations that the parties may have laid down to be observed in the conduct of the arbitration proceeding itself — conditions in arbitration, e.g., limitations of time within which the demand for arbitration must be made.’ [Citation omitted.]” 154 App. Div. 2d at 855-56. The New York courts have also distinguished between broad and narrow arbitration clauses. See United Nations v. Norkin, 45 N.Y.2d 358, 408 N.Y.S.2d 424, 380 N.E.2d 253 (1978). Where arbitration clauses are limited, compliance with conditions precedent to arbitration is a threshold judicial question. However, where the agreement contains a broad arbitration clause, compliance with contractual notice and time provisions are issues for the arbitrator. 45 N.Y.2d at 363. The agreement between Fairley and Lenexa contained a broad arbitration clause, which covered all claims, disputes, or other matters relating to the performance of the contract. Fairley’s claims for liquidated damages withheld, back charges, and increased overhead due to delays would be included in this broad arbitration clause. Whether Fairley timely filed its demand for arbitration or complied with the notice provisions of the contract are procedural matters which should have been left to the arbitrator. Furthermore, the arbitrator did not err by refusing to itemize or clarify his award. K.S.A. 5-408 merely requires that an award be in writing and signed by the arbitrators. In Zeigler, this court stated that an award is valid if it is a full and final disposition of all issues, “leaving nothing to be done but to execute and carry out the terms of the award.” Rural Water Dist. No. 6 v. Ziegler Corp., 9 Kan. App. 2d 305, Syl. §§ 5, 6. The arbitrator clearly stated that the award was in full settlement of all claims submitted by Fairley. While the award does not specifically address each of the issues before the arbitrator, it is not vague, and thus, is valid. Finally, we note that some jurisdictions following the Uniform Arbitration Act hold that the district court may, at its discretion, compel clarification of an award. See, e.g., Hilltop Const., Inc. v. Lou Park Apts., 324 N.W.2d 236, 240 (Minn. 1982). Although Judge Walton initially directéd the arbitrator to consider liquidated and unliquidated damages separately, Judge McClain chose not to compel clarification of the arbitrator’s ultimate award. We hold the subject matter of the issues before the arbitrator was within the arbitration agreement entered into by the parties, and the district court exceeded its authority by considering whether the claims were procedurally correct. It is not the function of the court to substitute its judgment for that of the arbitrator. “ ‘The courts must respect an arbitrator’s determinations; otherwise, those determinations will merely add another expensive and time consuming layer to the already complex litigation process.’ [Citation omitted.]” Foley Co. v. Grindsted Products, Inc., 233 Kan. 339, 349, 662 P.2d 1254 (1983). We reverse the order of the district court vacating the arbitrator’s award.	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Lewis, J.: Bank IV Topeka, N.A., in its capacity as executor of the estate of Florene E. Lauver, deceased, (hereinafter referred to as the executor) instituted this action to recover the proceeds of a certificate of deposit (CD) issued in the name of the deceased. The defendant, Topeka Bank & Trust Company, (Bank) claimed a lien on the CD. Appellee, Capitol Federal Savings & Loan Association, (Capitol Federal) was the institution which issued the CD and is merely awaiting directions to whom to pay the pro ceeds of the CD. Capitol Federal did not participate in this appeal. The trial court granted the Bank’s motion for summary judgment, holding that it had a proper security interest in the CD. After careful review, we affirm, but for different reasons than the trial court. A note of explanation is appropriate. Throughout this opinion, we will refer to the document in question as a CD. We do so primarily for purposes of convenience and do not use the term “CD” as it is employed and defined in the Uniform Commercial Code (UCC). The decedent, Florene E. Lauver, was the owner of a CD in the amount of $100,000. This CD was issued by Capitol Federal and was payable to Mrs. Florene E. Lauver. On the face of the CD, under section II, General Section, it is stated: “This certifies that the Account Holder holds a savings account with the Opening Balance and for the initial term expiring on the Initial Maturity Date shown hereon in Capitol Federal Savings and Loan Association, Topeka, Kansas. This certificate is nontransferable.” (Emphasis added.) On July 3, 1984, the decedent executed a “hypothecation agreement” in favor of the Bank. The hypothecation agreement authorized Richard Cummins to pledge the CD as security for any indebtedness he owed to the Bank. The hypothecation agreement is not complicated and reads as follows: “HYPOTHECATION AGREEMENT “The undersigned hereby authorizes Richard Cummins (herein called debtor) to hypothecate, pledge and/or deliver the securities described below and issued Florene E. Lauver and_ and the undersigned agrees that when so hypothecated, pledged and/or delivered said securities shall be collateral to secure any present or future indebtedness, obligation or liability howsoever evidenced, owing by debtor to Topeka Bank and Trust, Topeka, Kansas, or any extension or renewal thereof, hereby consenting to the extension or renewal from time to time of any such indebtedness, obligation or liability, and waiving any notice of any such indebtedness, obligation, liability, extension or renewal. “Description of Securities “Capitol Federal Savings & Loan Association Certificate of Deposit No. 812815 in the amount of $100,000.00 dated 2-10-84 to mature 2-9-87 in the name of Florene E. Lauver. 7/3/84 BY: /s/ Florene E. Lauver Date /si K. E. Fox_ witness 7-3-84”_ The facts show that Cummins pledged the CD as security for a note he executed in favor of the Bank on the same day the hypothecation agreement was signed and delivered to the Bank. The CD itself was delivered to, and is retained by, the Bank. The Bank sent a letter to Capitol Federal, advising it of its claimed security interest in the CD. In that letter, the Bank advised Capitol Federal as follows: “Mrs. Florene E. Lauver has pledged the above described Certificate of Deposit as collateral for a loan with this bank. We will appreciate your marking your records of this fact and this assignment is to be effective until released in writing by an officer of this bank. The amount pledged is $100,000.00. We are holding the Certificate.” At the top of the letter the number of the CD is listed. Capitol Federal signed a receipt in writing acknowledging receipt of the Bank’s letter. Mrs. Lauver died December 30, 1988. Richard Cummins died July 4, 1989. At the time of his death, the promissory note secured by the CD in question was in default. The executor filed this action, seeking to void any lien on the CD claimed by the Bank and to. recover the CD as an asset of the estate. The trial court held that the CD was an “instrument” under the UCC and that the Bank had perfected its security interest in the CD by taking possession of it. Accordingly, summary judgment was granted to the Bank. We believe that the trial court reached the correct result but for the wrong reason. Our appellate courts have said, on numerous occasions, that “where the trial court reaches the correct result based upon the wrong reason, this court will affirm the trial court.” State v. Shehan, 242 Kan. 127, 131, 744 P.2d 824 (1987). See Collins v. Heavener Properties, Inc., 245 Kan. 623, 633, 783 P.2d 883 (1989); Sutter Bros. Constr. Co. v. City of Leavenworth, 238 Kan. 85, 93, 708 P.2d 190 (1985); Vap v. Diamond Oil Producers, Inc., 9 Kan. App. 2d 58, Syl. ¶ 6, 671 P.2d 1126 (1983). Indeed, it has been held that “[t]he reasons given by the district court for its decision are immaterial so long as its ruling was correct for any reason.” Prairie State Bank v. Hoefgen, 245 Kan. 236, 245, 777 P.2d 811 (1989). Pursuant to those authorities, we affirm the trial court. We agree with the trial court’s conclusion that the Bank had a valid lien on the CD. We do not agree with the conclusion that the CD was an “instrument” under the UCC. It is, perhaps, important to note what is not involved in our decision. Although most of the opinions on this particular question seem to turn on whether a lien is properly “perfected,” that is not an issue in this case. This case does not involve claims of innocent third parties, competing creditors, or holders in due course. This case involves a dispute between the executor of the estate of the individual who pledged the CD and the Bank who relied on that pledge and extended credit. In essence, this is an action between the original parties to the transaction. In that sense, this case is similar to Kansas State Bank v. Overseas Motosport, Inc., 222 Kan. 26, 563 P.2d 414 (1977). That case dealt with the validity of a lien between a bank and the party which granted the lien. In pointing out that a valid security interest, though not perfected, was still enforceable between the original parties, the court said: “We should emphasize that we are concerned here with the rights of only the original parties to a secured transaction — Hunter and the bank. So far as the record discloses, Hunter remained the owner of the vehicle. He did not sell it; he did not transfer the title; he did not mortgage, pledge, or otherwise encumber the vehicle to third parties; nor did he cause the cycle to become subject to the lien of a repairman. “The bank acquired its security interest — its lien on the vehicle — pursuant to the terms of its security agreement and the provisions of the Uniform Commercial Code. A security interest is created by a security agreement, and attaches as provided by sec. 9-204. Priority is established and protected by recording the lien on the title; but we are not here concerned with priorities or the rights of third parties. No third party is claiming an interest superior to that of the bank.” 222 Kan. at 30. In the case at bar, we are equally not concerned with priority. Therefore, although the issue is discussed, perfection of a security interest is simply not an issue crucial to our decision. The trial court concluded that the CD in question was an “instrument” under the UCC and that the Bank had a valid security interest in the CD through possession. Before turning to the resolution of that question, we first note a procedural argument made by the Bank. It appears that, in the district court, the executor argued that the CD was a negotiable instrument that needed to be endorsed and delivered to the secured party in order to transfer an interest. On appeal, however, the executor argues that the CD in question is not a negotiable instrument. The Bank argues that the executor has raised a new issue on appeal and that this should not be permitted. In State v. Anderson, 12 Kan. App. 2d 342, Syl. ¶ 1, 744 P.2d 143 (1987), we held: “Issues not presented to the trial court will not be considered for the first time on appeal. However, if a newly asserted issue involves only a legal question arising on proved or admitted facts which will be finally determinative of the case, or if consideration is necessary to serve the ends of justice or to prevent a denial of fundamental rights, an appellate court may consider the issue even though not considered by the trial court.” We conclude that we will permit the executor’s argument on this appeal. That argument does raise a new issue. However, since the facts of this case have been agreed upon and the question of whether the CD is an instrument under Article 9 of the UCC is a question of law, we feel that the argument should be allowed. Our scope of review in this particular instance is unlimited; see Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988) (“This court’s review of conclusions of law is unlimited.”). We now turn to the question of whether the CD was an instrument under the UCC. K.S.A. 1990 Supp. 84-9-105(1)(i) defines the term “instrument” as follows: “ ‘Instrument’ means a negotiable instrument (defined in K.S.A. 84-3-104 and amendments thereto), or a certificated security (defined in K.S.A. 84-8-102 and amendments thereto) or any other writing which evidences a right to the payment of money and is not itself a security agreement or lease and is of a type which is in ordinary course of business transferred by delivery with any necessary indorsement or assignment.” First, it is clear that, whatever the instrument is, it is not a negotiable instrument. K.S.A. 84-3-104(1) states: “Any writing to be a negotiable instrument within this article must “(a) be signed by the maker or drawer; and “(b) contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer except as authorized by this article; and “(c) be payable on demand or at a definite time; and “(d) be payable to order or to bearer.” We have examined the instrument in question and conclude that it is clearly not payable to order or to bearer. Therefore, it is not a negotiable instrument within the meaning of the UCC. The next question is whether the instrument can be defined as a “certificated security.” The term “certificated security” is defined in K.S.A. 1990 Supp. 84-8-102(1)(a) as follows: “A ‘certificated security’ is a share, participation or other interest in property of or an enterprise of the issuer or an obligation of the issuer which is (i) represented by an instrument issued in bearer or registered form; (ii) of a type commonly dealt in on securities exchanges or markets or commonly recognized in any area in which it is issued or dealt in as a medium for investment; and (iii) either one of a class or series or by its terms divisible into a class or series of shares, participations, interests or obligations.” Neither party to this litigation argues that the CD is a “certificated security.” Our research reveals that the Oklahoma Supreme Court, in Victory Nat. Bk., Nowata v. Oklahoma St. Bk., Vinita, 520 P.2d 675 (Okla. 1973), held that a certificate of deposit involved in that case was an “investment security” within the meaning of the UCC. We decline to adopt that decision. In our opinion, the fact that this instrument is marked on its face as “nontransferable” prevents it from becoming a certificated security. It is impossible for this court to conclude that a “nontransferable” CD is of a type “commonly dealt in on securities exchanges or markets or commonly recognized in any area in which it is issued or dealt in as a medium for investment.” We cannot imagine that persons involved in the securities exchanges or dealing in investments would consider that a CD marked on its face to be “nontransferable” could be used as a medium for investment. The UCC goes on to define certain documents, which we will refer to as “any other writings,” as being instruments under the UCC under the proper circumstances. Such a document must be a writing which: (1) evidences the right to the payment of money; (2) is not of itself a security agreement or lease; (3) is of a type which is in the ordinary course of business transferred by delivery with any necessary endorsement or assignment. It is apparent that the CD in question is not a security agreement or lease. That means it can be an instrument under the UCC if it meets the requirements for “any other writings.” There are some decisions on the question at hand. In Prudential-Bache Securities, Inc. v. Bartow County Bank, 187 Ga. App. 530; 530-31, 370 S.E.2d 751, cert. denied 187 Ga. App. 908 (1988), the Georgia court had before it issues nearly identical to those in the instant matter. The Georgia court held that the document in question was not an instrument and stated: “The appellant contends that the written documents pursuant to which the defendant-in-gamishment had assigned the certificate of deposit to the bank as collateral for the corporate indebtedness did not give the bank a perfected security interest in the certificate pursuant to Article 9 of the Uniform Commercial Code. We agree. The certificate specified on its face that it was ‘non-transferable,’ with the result that it can be considered neither a ‘negotiable document’ nor an ‘instrument’ within the contemplation of the UCC, . . . Moreover, it has previously been observed by this court that ‘the secured transactions article of the Uniform Commercial Code does not apply to transfers of bank deposits or savings accounts.’ [Citation omitted.] However, it does not follow that the assignment documents were ineffective to give the bank a superior claim to the deposits represented by the certificate, for it has been held that an agreement which purports to transfer a security interest in bank deposits but is ineffective to dó so may nevertheless be effective to create a contractual lien on such deposits. [Citation omitted.] We have been offered no reason why the defendant-in-gamishment’s clear intention to create such a lien in favor of the bank should not be honored.” The Arkansas Supreme Court reached a totally contrary decision in the case of General Electric Co. v. M & C Mfg., Inc., 283 Ark. 110, 112, 671 S.W.2d 189 (1984). In that case, the question was whether a security interest in a CD perfected by possession was superior to a judgment against the owner of a CD. The facts indicate that the CD before the Arkansas court was nonnegotiable and nontransferable. The court held that the CD was, in fact, an “instrument” under the U.CC. We are not persuaded by the reasoning of the Arkansas court in the General Electric case. That court simply stated that the fact that the certificates were nonnegotiable and nontransferable does not prevent them from being instruments. The court does hot explain the rationale behind that conclusion. The question of whether a certificate of deposit worded in the manner of the one in the case at bar is an instrument is a matter of first impression in Kansas. In Army Nat’l Bank v. Equity Developers, Inc., 245 Kan. 3, 774 P.2d 919 (1989), the Kansas Supreme Court dealt with the question of whether a “note” was an instrument under the Code. Our Supreme Court, in Syl. ¶ 3, stated: “K.S.A. 1988 Supp. 84-9-105(1)(i) defines an instrument under the Uniform Commercial Code. The definition of ‘instrument’ in the UCC is broad and intentionally incorporates standard banking practice. The fact that a note is nonnegotiable and of limited transferability does not prevent it from being an instrument that can be pledged as collateral and for which possession is the only proper method of perfection.” The court went on to hold that the notes before it were, indeed, “instruments” under the UCC. The important distinction is that, in Army Nat’l Bank, the notes were of “limited transferability.” In the instant matter, the certificates are “nontransferable.” In Army Nat’l Bank, our Supreme Court seemingly adopted the views of Barkley Clark. See Clark, The Law of Secured Transactions Under the Uniform Commercial Code ¶ 7.03 (2d ed. 1988). In ¶ 7.03 of his work, Clark discusses the rationale of In re Coral Petroleum, Inc., 50 Bankr. 830 (Bankr. S. D. Tex. 1985). In that case, the court held that notes of limited transferability were instruments under the UCC. The emphasis of that decision, with which Clark agrees, appears to make the question one dependent upon the “current usage of the marketplace.” In re Coral Petroleum, Inc., 50 Bankr. at 838. The decision seems to turn on whether professionals who deal with the writing attach importance to its possession. We have no indication in this record that would aid us in concluding what professionals in the marketplace might make of the document before us. However, it is our opinion that, given careful thought, most professionals would not desire to trade in an instrument that is marked “nontransferable.” Although there are cases holding both ways, we are convinced that the CD in question is not an “instrument” under the UCC. In this regard, we follow Prudential-Bache, 187 Ga. App. 530, and the rationale of Clark, ¶ 7.09[2], who has this to say about the nontransferable CD: “Given the uncertainty of the UCC in this area, what is the best rule for the courts to follow? A nontransferable CD should be considered a type of deposit account excluded from the scope of Article 9 by § 9-104(1). In spite of the broad Article 3 definition, it should not be considered a certificate of deposit for purposes of Article 9. Perfection should be based on common-law principles, and the issuing bank’s own internal evidence of the CD should be sufficient. Filing or taking possession under Article 9 serves no commercial purpose, since no reasonable third party should rely on a property interest that is nontransferable. Upon the borrower’s default, the issuing bank should be able to enforce its common-law security interest by the simple exercise of set-off, as with uncertificated bank accounts. . . . Possession of a nontransferable CD should not be necessary.” We adopt the rationales of Clark and of the Prudential-Bache decision. We conclude that this document is best classified as a type of deposit account under K.S.A. 1990 Supp. 84-9-105(e). As a result of this conclusion, Article 9 of the UCC does not apply. K.S.A. 84-9-104(1) specifically excludes a lien on a “deposit account” from its provisions. Despite our conclusion that the document in question is not an Article 9 “instrument,” we still hold that the Bank has a valid lien on the proceeds in Mrs. Lauver’s account. We adopt the conclusion of the Prudential-Bache decision that the lien is a “contractual lien” and it is valid as against the executor of Mrs. Lauver’s estate. We have found no Kansas cases which specifically deal with a contractual lien. Despite that fact, we see no reason why a contractual lien is not a perfectly valid concept in this state. The general theory of a contractual lien is set forth in 53 C.J.S., Liens § 4(c): “In order that a lien may be created by a contract, express or implied, it is generally necessary that the language of the contract or the attendant circumstances should clearly indicate an intention of the parties to create a lien on the specific property, and should show a specific charge on, or appropriation of, that property. “A mere promise to pay a debt or obligation does not create a lien; and, unless an intention to create a lien is clearly apparent from the language of the instrument, a mere promise or undertaking to pay out of a particular fund when received, the promisor retaining control of the fund, creates no lien on the fund. Also, a void contract cannot give rise to a valid lien. “Subject to the foregoing requirements, no particular form is required for an agreement to effect a lien; an agreement is sufficient for this purpose if it clearly indicates the intention to create a lien, the debt to secure which it is given, and the property on which it is to take effect.” In Citizens Bank v. Elks Bldg., N.V., 663 P.2d 56, 59 (Utah 1983), the Utah court held that “a contractually created lien must (1) identify the property to be charged, and (2) make clear that the lien is to secure payment of the debt in question.” We hold that the hypothecation agreement signed by Mrs. Lauver was sufficient to prove that the Bank held a contractual lien on the account represented by the CD. The hypothecation agreement clearly indicates that it is to secure an indebtedness from Mr. Cummins to the Bank and the specific security is described. We are given no indication that Mrs. Lauver was incompetent, misled, or under an improper influence in signing the hypothecation agreement. We think that her intent is indicated by the hypothecation agreement, in which she has clearly granted a contractual lien to the Bank on the proceeds of her bank account at Capitol Federal. The lien that she created is certainly valid and prior to any interest her executor may have acquired in the proceeds of the bank account. The executor argues that it is significant that the decedent did not endorse the document or otherwise transfer it to the Bank. We do not agree. The document in this case was “nontransferable,” and it was never intended that it be negotiated or transferred by indorsement or otherwise. Mrs. Lauver was free, however, to create a valid lien on her bank account, and we conclude that she did. As stated above, we affirm the trial court’s decision, but not its reasoning in reaching that decision. The decision of the trial court was correct and it must be affirmed. Affirmed.	[ -78, 108, -55, -52, 26, -32, 42, 58, 83, -94, 37, -13, -23, -50, 20, 105, -25, 109, 117, 113, -77, -77, 47, -55, -42, -14, -15, -43, 51, 93, -12, -41, 77, -112, -118, -43, 98, -54, -41, -36, -122, -128, -88, -64, -35, -64, 48, 51, 18, 15, 117, -122, 51, 50, 25, 74, 73, 14, 105, -83, 96, -112, -86, -123, 125, 23, -79, 6, -112, 11, -56, 46, -102, 113, 9, -23, 50, 54, -122, 116, 107, 57, 37, 102, 102, 2, 17, -17, 20, -116, 14, -2, 15, -122, -110, 89, 110, 43, 54, 30, 124, -121, 39, -4, -6, -123, 29, 108, 25, -50, -42, -111, -81, 94, 24, 3, -1, -125, 32, 113, -50, -30, 92, -41, 56, -109, -98, -9 ]
Rees, J.: This is a direct appeal by the defendant Dwight L. Almond from his conviction of operating a motor vehicle while under the influence of alcohol (K.S.A. 1990 Supp. 8-1567). We are called upon to decide whether the trial court erred in denying Almond’s motion to suppress (1) his statement that he had been drinking the night of the accident and (2) the result of his breathalyzer test. We find no reversible error and affirm. Almond was involved in a one-car accident. Officer Royer arrived to investigate the accident. While they were both sitting in Royer’s police car, Royer took from Almond the information needed for the required accident report. Royer noticed a faint odor of alcohol on Almond’s breath. Almond frequently repeated himself and was slow in answering Royer’s questions. Royer asked Almond if he had been drinking. Almond replied affirmatively; he said he had had his last drink at 9:00 p.m., one and one-half hours before the accident. Royer placed Almond under arrest and took him to the police station. He was given a breathalyzer test. It resulted in a reading greater than .10. Almond was then given the Miranda warning. Almond complains that he was in custody and interrogated by Royer without receiving the Miranda warning and that it was as a result of the interrogation that he admitted he had been drinking; therefore, his admission should have been suppressed. He also complains that the result of the breathalyzer test should have been suppressed because he was not given the Miranda warning prior to the test. Because neither Almond’s statement nor the result of the breathalyzer test was the product of “custodial interrogation” which triggers the need for a Miranda warning, we disagree with Almond’s arguments. In State v. Price, 233 Kan. 706, 712, 664 P.2d 869 (1983), the Supreme Court stated: “The Miranda warning is required where there is a custodial interrogation of the defendant by police officers. Miranda recognized, however, that general on-the-scene questioning of citizens in the factfinding process does not constitute custodial interrogation requiring a Miranda warning.” Almond argues that his situation is different from that in Price because Royer’s questioning was already at the accusatory stage and not routine investigation such as in Price. We are not persuaded. The defendant in Price was questioned in a patrol car to get general information necessary to complete the accident report form. The defendant told the officer that he had been drinking prior to the accident and had fallen asleep while he was driving. Price, 233 Kan. at 707. Almond does not convince us that his case must be distinguished from Price. Cases from other jurisdictions similarly hold that inquiry during the investigation of an accident does not rise to the level of custodial interrogation which requires the Miranda warning. See State v. Seagle, 96 N.C. App. 318, 385 S.E.2d 532 (1989); Stalls v. Penny, 62 N.C. App. 511, 302 S.E.2d 912 (1983). In Berkemer v. McCarty, 468 U.S. 420, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984), a defendant stopped in a traffic stop was asked if he had been drinking; the defendant replied he had been drinking beer and had smoked marijuana. He was placed under arrest after the trooper observed the defendant’s slurred speech and staggering manner. 468 U.S. at 423. The United States Supreme Court stated: “[W]e find nothing in the record that indicates that respondent should have been given Miranda warnings at any time prior to the time [the trooper] placed him under arrest. . . . [No] aspects of the interaction of [the trooper] and respondent support the contention that respondent was exposed to ‘custodial interrogation’ at the scene of the stop. . . . “We conclude, in short, that respondent was not taken into custody for the purposes of Miranda until [the trooper] arrested him. Consequently, the statements respondent made prior to that point were admissible against him.” 468 U.S. at 441-42. Furthermore, in an accident situation such as Almond’s, the driver has a statutory duty to provide information to an officer who also has a duty to investigate and make a report. K.S.A. 1990 Supp. 8-1604; 8-1611; 8-1612. According to the rules of Price, Almond’s inculpatory statement made during Royer’s inquiry for completion of the accident form was admissible. We turn to Almond’s complaint that his breathalyzer test result should have been suppressed because the test was requested and administered before the Miranda warning was given. We disagree. We have held that an officer’s request that a person submit to a breathalyzer test is not custodial interrogation. State v. Leroy, 15 Kan. App. 2d 68, 72, 803 P.2d 577 (1990). As an officer’s request to submit to a blood alcohol test does not solicit the communication of personal beliefs or knowledge of facts, defendant did not have a Fifth Amendment light to counsel. Leroy, 15 Kan. App. 2d at 71. Almond is mistake a in asserting that he had a right to counsel before he submitted to a breathalyzer test. The trial court did not err in denying the motion to suppress Almond’s statement or the result of the breathalyzer test because there was no violation of Miranda rules. Almond’s next complaint is that the State did not provide an adequate foundation for the admission of the result of his breath test. Specifically, he questions (1) whether the Intoxilyzer 5000 was operated correctly; (2) whether Royer properly followed the testing procedure; (3) whether the certification of the Intoxilyzer 5000 was properly authenticated; and (4) whether the State failed to show the breath test met the statutory definition of alcohol concentration. Royer testified that he had not read the manufacturer’s directions for the Intoxilyzer 5000. Therefore, Almond argues, Royer could not know how to operate the machine. “Whether an adequate evidentiary foundation was laid is a question of fact for the trial court and largely rests in its discretion.” State v. Lieurance, 14 Kan. App. 2d 87, 91, 782 P.2d 1246 (1989), rev. denied 246 Kan. 769 (1990). In City of Shawnee v. Gruss, 2 Kan. App. 2d 131, 132, 576 P.2d 239, rev. denied 225 Kan. 843 (1978), we said that “[t]he regulations also require that breath testing machines be operated strictly in accordance with the manufacturer’s operational manual.” K.A.R. 28-32-1(a)(3) provides: “Equipment shall be operated strictly according to the description provided by the manufacturer and approved by the department of health and environment.” Almond interprets the rules too narrowly. In Gruss, 2 Kan. App. 2d at 133-34, we held: “The appellant . . . challenges the qualifications of the operator and the breathalyzer machine. It is sufficient to say that the Kansas Department of Health and Environment has established a program for certifying breath testing machines and operators. Both the operator and apparatus in question were currently certified at the time the appellant was tested. The current certification, in addition to the officer’s testimony that he had passed all of the periodic proficiency tests required . . ., shows the appellant’s argument to be without merit.” Similarly, Royer testified he was certified to run the machine, and Glenda Wilkinson, the Shawnee County operations secretary, who maintains the records on breath testing equipment and operator certification, testified Royer was certified. She produced the original copy of the certification record filed in her office. We see no abuse of discretion by the trial court holding that the breathalyzer machine was operated correctly. Almond further argues that Royer did not follow the proper procedure in testing him because he did not wait for a full 20 minutes after Almond had belched to allow mouth alcohol to dissipate. Royer conceded that he did not wait a full 20 minutes, but he went on to testify that, if Almond’s mouth alcohol content had been high enough to skew the results, the machine’s printout would have so indicated. Royer, as a certified operator, was competent to testify that the Intoxilyzer 5000 has an indicator which records mouth alcohol content and that the indicator did not register when Almond was tested. We do not see that the trial court abused its discretion in admitting Royer’s testimony concerning the testing procedure. Almond additionally argues that the State’s exhibits, which were copies of documents showing Royer was a certified operator of the Intoxilyzer 5000 and that the machine itself was certified, were not properly authenticated because they were not attested to. K.S.A. 60-465 provides in pertinent part: “A writing purporting to be a copy of an official record or of an entry therein, meets the requirements of authentication if ... (2) evidence has been introduced sufficient to warrant a finding that the writing is a correct copy of the record or entry.” In Lieurance, 14 Kan. App. 2d at 92, we accepted the testimony of the sheriffs deputy as to his recognition of an original copy of the Intoxilyzer 5000 certification. Here, Wilkinson was the actual keeper of the records. Her testimony was enough to establish a proper foundation. Finally, Almond argues the State failed to provide testimony equating his breath test result with the statutory definition of alcohol concentration, “number of grams of alcohol per . . . 210 liters of breath.” K.S.A. 1990 Supp. 8-1013. Royer testified that the reading of Almond’s breath alcohol concentration was .172, a concentration exceeding the .10 legal maximum. K.S.A. 1990 Supp. 8-1005(b) provides that, in a criminal prosecution for operating a motor vehicle while under the influence of alcohol, if the alcohol concentration was .10 or more, it shall be prima facie evidence that the defendant was under the influence of alcohol to a degree that rendered the person incapable of driving safely. We see no abuse of discretion by the trial court’s admission of evidence purportedly lacking proper foundation. In sum, we conclude the trial court did not err in denying Almond’s motion to suppress his “admission” or the results of the breathalyzer test. “If the findings of the trial court on a motion to suppress evidence are based on substantial evidence, this court will not substitute its view of the evidence for that of the trial court.” State v. Doile, 244 Kan. 493, 499, 769 P.2d 666 (1989). Affirmed.	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Lewis, J.: This is an appeal by the claimant from the decision of the district court in a workers compensation action. After review, we affirm in part, reverse in part, and remand. The claimant was employed by the respondent, IBP, Inc., as a blade trimmer at its processing plant in Emporia. The claimant’s duties as a blade trimmer required him to work eight hours per day trimming the fat off of the backs of processed cattle. He did so by holding a hook in his left hand and a knife in his right hand. As slabs of meat passed by the claimant’s position, he removed them from the conveyor belt, trimmed the fat from the back, and placed the slab back on the conveyor belt. As can be imagined, a job of this nature requires a considerable amount of bending and flexing of the wrists and gripping with the hands. The claimant began to experience considerable pain and disability in his hands and arms. There is no argument by the respondent that whatever disability exists is, in fact, job related, and the claimant is entitled to compensation. The issues involved in this appeal revolve around the amount of that compensation. The claimant consulted four physicians concerning the problems with his hands, wrists, and arms and the extent of his disability. The claimant and three of the physicians testified at the compensation proceeding and gave varying opinions of the extent and location of the claimant’s disability. The Administrative Law Judge (ALJ) and the Director of Workers Compensation awarded the claimant a 15 percent impairment to each arm. The district court concluded that the claimant had suffered a nine percent impairment to each arm. Another, but totally unrelated, issue is whether the claimant was entitled to be compensated for a five- or six-day work week. The district court concluded that the appropriate award should be based on a five-day work week. The claimant appeals the determination of disability and the decision of the length of the work week on which compensation should be based. THE CLAIMANT’S DISABILITY The district court’s finding as to the extent of the claimant’s impairment and disability differs from the testimony of all four witnesses. The claimant argues that there was simply no evidence presented on which the district court could have based its finding of a nine percent impairment. The respondent argues that this court is not bound by medical testimony but is free to take into account other testimony and to weigh the credibility of the testifying physicians. The respondent argues that there is substantial competent evidence in the record to support the district court’s finding as to the percentage of impairment. Our scope of review in cases of this nature has been stated many times. The standard is one of substantial competent evidence. It is well settled that, in workers compensation cases, the “existence, extent and duration of an injured workman’s incapacity is a question of fact for the trial court to determine.” Boyd v. Yellow Freight Systems, Inc., 214 Kan. 797, 803, 522 P.2d 395 (1974). Under K.S.A. 1990 Supp. 44-556(a), this court’s scope of review is limited to questions of law: “ ‘The question of whether a district court’s judgment is supported by substantial evidence is one of law and if, when viewed in the light most favorable to the party prevailing below, there is substantial evidence to support the district court’s factual findings, this court is bound by those findings and has no power to weigh the evidence or reverse the final order of the court. The term “substantial evidence” when applied to worker’s compensation cases means evidence that possesses something of substance and relevant consequence or evidence that furnishes a substantial basis of fact from which the issues presented can be reasonably resolved.’ ” Crabtree v. Beech Aircraft Corp., 229 Kan. 440, 442, 625 P.2d 453 (1981). Even if this court feels that the weight of the evidence, as a whole, is against the findings of fact made by the district court, it may not disturb those findings if they are supported by substantial competent evidence. 229 Kan. at 442. Further, medical evidence is not essential to the establishment of the existence, nature, and extent of an injured worker’s disability. Chinn v. Gay & Taylor, Inc., 219 Kan. 196, 201, 547 P.2d 751 (1976); Carter v. Koch Engineering, 12 Kan. App. 2d 74, 76, 735 P.2d 247, rev. denied 241 Kan. 838 (1987). Thus, the district court, as the finder of fact, is free to consider all of the evidence and decide for itself the percentage of disability. 12 Kan. App. 2d at 76. In the instant matter, the district court had for its consideration the testimony of four witnesses relative to the claimant’s physical condition. The claimant himself testified, along with Drs. Delgado, Rempel, and Hamilton. We have analyzed the testimony of these four witnesses, and it is our opinion that there is substantial competent evidence to support the district court’s finding of a nine percent disability to both the right and left arms. Dr. Delgado was a board-certified orthopedic surgeon who had examined the claimant. Dr. Delgado expressed his opinion that the claimant had a two percent impairment in his left hand and a three percent impairment in his right hand. Dr. Delgado did not conclude that the claimant had suffered significant disability to his forearms. Dr. Rempel was a board-certified plastic and reconstructive surgeon who specialized in hand injuries. Dr. Rempel examined the claimant on one occasion and concluded that the claimant had an impairment of two percent in each hand. The claimant presented the testimony of Dr. Hamilton in support of his position. Dr. Hamilton is a practicing physician who works in the field of orthopedics but is not a board-certified orthopedic surgeon. The evidence indicates that Dr. Hamilton, frequently performs examinations and gives ratings for workers compensation claimants and that he frequently examines claimants who are clients of the attorney for the claimant. Dr. Hamilton did not have surgical privileges at any hospital in the area. Dr. Hamilton testified that, in his opinion, the claimant had suffered a 15 percent impairment to each side; a side includes the forearm, wrist, and hand. As can be seen, the testimony as to the extent and nature of the claimant’s disability was sharply conflicting. In addition to the medical evidence presented, the claimant testified concerning what he felt to be his disabilities and the location of those disabilities. The claimant argues that, since Dr. Hamilton was the only physician who testified that the claimant had suffered an injury to his wrists and forearms, the trial court had no option but to adopt his rating of a 15 percent impairment. We do not agree. The ultimate decision concerning the extent and nature of the disability is one which must be made by the trial court on the basis of the evidence presented. As we pointed out earlier, the trial court is not bound by the medical evidence presented in the case and has the responsibility of making its own determination. We believe that the decision of the trial court is supported by substantial competent evidence. The trial court has the right and the obligation to weigh the evidence to determine the credibility of the witnesses, including the physicians who testified, and utilize that as a factor in making its decision. Crabtree, 229 Kan. at 442; see Chinn, 219 Kan. at 201. In the instant matter, the physicians for the respondent rated the claimant’s disability at 2 percent, while the physician retained by the claimant rated him at 15 percent. We see nothing in the record which required the district court to adopt, as its finding, the testimony of the physicians for either party. The district court is the exclusive judge of the credibility of the witnesses. It is the function of the district court to decide which testimony is more accurate and/or credible, and to adjust the medical testimony along with the testimony of the claimant and any other testimony which may be relevant to the question of disability. We hold that, based upon our review of the entire record, there is substantial competent evidence in the record to support the district court’s finding of a nine percent disability in each of the claimant’s arms. A FIVE- OR SIX-DAY WORK WEEK The next issue on this appeal concerns the proper interpretation of K.S.A. 1990 Supp. 44-511(b)(4)(B) and the application of that statute to the evidence presented. The question to be determined is whether the claimant’s compensation should be computed on the basis of a five-day work week or a six-day work week. As might be imagined, the claimant contends that the compensation should be calculated on the basis of a six-day work week, while the respondent argues in favor of a five-day work week. Our resolution of this issue depends upon our construction of the statute. In this regard, our scope of review is unlimited. Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988). The applicable statute is K.S.A. 1990 Supp. 44-511(b)(4)(B), which reads in pertinent part: “If at the time of the accident the employee’s money rate was fixed by the hour, the employee’s average gross weekly wage shall be determined as- follows: . . . (B) if the employee is a full-time hourly employee, as defined in this section, the average gross weekly wage shall be determined as follows: (i) A daily money rate shall first be found by multiplying the straight-time hourly rate applicable at the time of the accident, by the customary number of working hours constituting an ordinary day in the character of work involved; (ii) the straight-time weekly rate shall be found by multiplying the daily money rate by the number of days and half days that the employee usually and regularly worked, or was expected to work, but 40 hours shall constitute the minimum hours for computing the wage of a full-time hourly employee; (iii) the average weekly overtime of the employee shall be the total amount earned by the employee in excess of the amount of straight-time money earned by the employee during the 26 calendar weeks immediately preceding the date of the accident, or during the actual number of such weeks the employee was employed if less than 26 weeks, divided by the number of such weeks; and (iv) the average gross weekly wage of a full-time hourly employee shall be the total of the straight-time weekly rate, the average weekly overtime and the weekly average of any additional compensation.” (Emphasis added.) The question is whether the claimant was regularly expected to work five or six days a week. This appears to be a case of first impression, and we find no Kansas appellate court decisions relevant to the question at hand. In construing statutes, the fundamental rule by which we are guided is that “the purpose and intent of the legislature governs when that intent can be ascertained from the statutes.” Nordstrom, v. City of Topeka, 228 Kan. 336, Syl. ¶ 1, 613 P.2d 1371 (1980). In determining the legislative intent of a workers compensation statute, the act is to be liberally construed to permit an award of compensation. 228 Kan. 336, Syl. ¶ 2. Further, when a workers compensation statute is subject to more than one interpretation, it must be construed in favor of the worker if such construction is compatible with legislative intent. 228 Kan. 336, Syl. ¶ 3. The testimony on the question of the number of days per week that the claimant was expected to work was provided exclusively by the claimant. This testimony was as follows: “Q. Mike, when you were hired at IBP to go to work there, how many days a week were you told that you were expected to work? “A. Six if we worked Saturday. “Q. And how does that work as far as whether you work Saturday or not? “A. It’s usually posted on Friday and they let us know on Friday if we have to work on Saturday. “Q. Are you expected to keep every Saturday available to work? “A. Yes. “Q. Do you have any choice in that matter? “A. No. “Q. And a regular day is how many hours? “A. A regular day during the week is eight hours. “Q. And if you get a full day Saturday, is that also eight hours? “A. It’s eight. On occasion we have worked ten. “Q. And as far as your actual experience up to August 7th of 1989, were you working frequently on Saturday? “A. The majority of the time.” On cross-examination, the claimant testified as follows: “Q. When you were first hired by IBP, you were guaranteed so many hours per week, is that right? “A. Correct. “Q. How many hours was that? “A. Guaranteed 40. ”Q. You were not guaranteed 48? “A. No. “Q. Okay. And you don’t — you are not required to show up every Saturday morning, are you? “A. Yes, we are. “Q. Are you told — so right now you know that for the next ten Saturdays you’re going to work Saturday? “A. Oh, if they have it posted on Friday that we have to work Saturday, we have to work Saturday. “Q. Okay. So you won’t find out if you work Saturday until you show up Friday, is that correct? “A. Correct. “Q. And when you work Saturday, you get paid time and a half for your hours, that’s how they pay you, right? “A. If you have worked 40 hours that week. “Q. Okay. So anything over 40 hours is time and a half. “A. Yes. “Q. And that’s by agreement, that’s what you entered into as far as your agreement with IBP when you were hired on with them? “A. Yes.” Based on this testimony, the district court determined that the claimant’s regular work week was five days. We disagree with this conclusion. The brief of the respondent emphasizes that the claimant was guaranteed to work 40 hours per week. We note that the district court seemed to place great emphasis on the fact that the guarantee extended to the claimant by the respondent was for a 40-hour week. We do not believe that this question can be decided based upon what the claimant was guaranteed. The language of the statute, which we have emphasized above, indicates that the weekly rate is to be determined by multiplying the daily money rate by the “number of days and half days that the employee usually and regularly worked, or was expected to work.” The statute says nothing about the number of days an employee is guaranteed, but rather the compensation rate is to be based on the number of days an employee is expected to work or the number of days an employee regularly works. This, in our opinion, is something greatly different from the number of days an employee is guaranteed to work. Factually, the claimant’s testimony establishes that he was expected to work on Saturdays and that he regularly did work on Saturdays. The testimony indicates that the claimant was told to be available and ready to work on Saturday. He did not know, and could not find out until the day before, whether he was going to have to spend his Saturday working for the respondent. As a result, the claimant was expected to hold his Saturdays open and available for the respondent rather than to make plans for himself or his family on that day. It also appears from the testimony that the claimant, in fact, worked most Saturdays or, at the very least, did so “the majority” of the time. If an employee is told that he is to keep Saturdays open and available for work, it appears to us that this is tantamount to a directive that he is expected to work each Saturday. .Whether he does or not is largely irrelevant because the statute bases compensation on the number of days per week an employee is “expected” to work, not the number of days an employee is guaranteed to work or actually does work. The claimant testified that he was expected to keep every Saturday available for work. This testimony was not refuted by the respondent. We can only conclude that, if the claimant, as he testified, was expected to be available on each and every Saturday to work for the respondent, then the claimant was expected to work 'on Saturday within thé meaning of the statute. We hold that the evidence in the record in the matter now before this court establishes that the claimant was expected to work a six-day work week. We further conclude that the evidence shows that the claimant did; in fact, regularly work a six-day work week. Consequently, we conclude that the statute in question requires that the claimant’s compensation be computed on the basis of a six-day work week. The respondent argues that the fact ’that the claimant was paid time-and-a-half for his work on Saturdáys is relevant to this issue. We do not agree. K.S.A. 1990 Supp: 44-511(b)(4)(B)(ii) bases straight-time pay on the number of days a claimant works, not the number of hours. Because the claimant usually and regularly worked, and was expected to work, on Saturdays, the facts fit within the statutory language provided for in subsection (b)(4)(B)(ii), and the claimant’s average weekly wage must be calculated on a six-day work week. Accordingly, we reverse the decision of the district court calculating the claimant’s pay on a five-day work week. We remand this matter with directions to the district court to compute the claimant’s average weekly wage on a six-day work week. Affirmed in part, reversed in part, and remanded with instructions.	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LARSON, J.: This direct appeal of Rico L. Glynn’s jury convictions of aggravated kidnapping, rape, and aggravated criminal sodomy raises a first impression issue in Kansas of whether deoxyribonucleic acid (DNA) testing evidence lawfully obtained in a different case may be utilized in this or a separate case to establish necessary elements of a criminal prosecution. We hold there is no constitutional violation or infringement of any rights of privacy when the police use a DNA profile lawfully obtained in one case to investigate and charge the DNA donor in a subsequent and different case or cases. Glynn raises the above issue by contending the district court erred in denying his motion to suppress in this case. He also claims the trial court abused its discretion in denying his motion for a change of venue, the charges for which he was convicted were multiplicitous, and there was insufficient evidence to support his conviction, which requires we set forth the sordid details of the alleged criminal conduct in considerable detail. FACTUAL AND PROCEDURAL BACKGROUND On the evening of January 30, 2003, while driving home from her chemistry class at Wichita State University, K.F. stopped at a convenience store to buy a few things, leaving her extended cab pickup unlocked when she went inside. After K.F. returned to her truck and started to drive to her nearby home, a man grabbed her from the back seat, held a knife to her throat, and warned her not to move or she would be killed. Continuing his threats, the man directed K.F. to make a U-tum. K.F. complied; she then asked the man if he wanted money and if he was going to hurt her. The man responded that he thought she was somebody else. The man then directed K.F. to turn into a dark alley and turn off the truck. When K.F. turned off her truck, the man became irritated because the dome light came on automatically. He yelled at her to turn it off, ordered her not to look at him, and told her to get in the back seat. When K.F. unsuccessfully attempted to escape, the man grabbed her and pulled her into the back seat. Once K.F. was in the back seat, the man pulled K.F.’s pants and underwear down to her knees. The man then inserted his finger into her vagina, asking her if it felt good. K.F. repeatedly said “no” and begged the man to stop. After he removed his finger from her vagina, the man masturbated, tie then pulled K.F.’s pants to her ankles and performed oral sex on K.F. as she continued begging him to stop. Recognizing that she could not escape with her pants and underwear around her ankles, K.F. removed these items as the man performed oral sex on her. The man then sat up, looked around, and reached through the seats to make sure the doors were locked, becoming frustrated when he could not figure out the locks. K.F. took that opportunity to crawl between the seats to the front, telling the man that she was trying to help him. Once in the front seat, K.F. escaped through the passenger door and ran down the street screaming for help. Tuan Tran heard the screaming, opened his door, and offered K.F. help. Tran then took K.F. into his home, gave her a blanket and clothing, and called 911 and K.F.’s husband on her behalf because she was too scared to talk. When the police questioned K.F., she was visibly shaken but explained in detail what had happened. K.F. did not think she could positively identify her attacker because it was dark and he shielded her attempts to see his face, but she described him as a black male with an unkept mustache and braided hair, wearing light blue sagging blue jeans and a white stocking cap. She had noticed the man near the convenience store and the surveillance tape of the parking lot revealed a man with that description near K.F.’s truck, but the man could not be identified. Eugene Jacobs, a crime scene investigator, processed K.F.’s truck in the dimly lit alley that same night but did not find any fingerprints that could be used to identify a suspect, nor did his attempts to find bodily fluids by the use of an ultraviolet light prove successful, so the truck was released. But, the next day, Jacobs met K.F.’s husband in the city parking garage and at that time, Jacobs was able to see a small amount of bodily fluid on the back seat. After field testing showed it was semen, Jacobs removed the fabric on which it was located for additional laboratory testing. Shelly Steadman, the biology and DNA laboratory manager at the Sedgwick County Regional Forensic Science Center, obtained a genetic profile of the suspect through DNA testing on the bodily fluid found on the seat. That DNA profile did not match any of the profiles the police had given Steadman for comparison to iden tify a suspect. Steadman s lab retained and preserved the fabric and the DNA file. The investigation continued for several months without success. About 3 months after the crimes against K.F. occurred, police began investigating Glynn s possible involvement in a Wichita home invasion during which a man cut a woman’s throat in front of her son and daughter and then stabbed the son. The daughter positively identified Glynn as the assailant, and a cell phone call confirmed Glynn’s involvement. Detective Phil Jacob located Glynn at Lansing Correctional Facility and went there with another officer to attempt to question him. At this point, it was suspected that Glynn might be involved in the crimes against K.F. Glynn would not consent to providing a DNA sample, but Jacob had prepared an affidavit based on all of the facts in the home invasion case for a court-ordered search warrant for two saliva samples by swabbing the inside of each of Glynn’s cheeks. A comparison of Glynn’s DNA profile to the DNA profile derived from the bodily fluid found on K.F.’s truck seat revealed the profiles were consistent, meaning Glynn could not be excluded as its possible source. In terms of statistical probability, chances that a randomly selected, unrelated person (other than Glynn) contributed to the DNA found on the truck seat were 1 in 3.94 septillion for the African-American population, 1 in 30.8 septillion for the Hispanic population, and 1 in 1.28 septillion for the Caucasian population. Glynn was charged with attempted first-degree murder, two counts of aggravated battery, and attempted aggravated battery, in No. 03 CR 1254, the home invasion case. He was later charged with aggravated kidnapping, rape, and aggravated sodomy in No. 03 CR 1459, the case involving the attack on K.F. and the subject of the appeal before us. Senior Judge William F. Lyle, Jr., presided over both cases and kept them together for control purposes only because of the interrelation of motions filed in the cases. The home invasion case was tried first and the jury convicted Glynn of all charges. Glynn appealed those convictions, and a panel of this court affirmed all of the convictions but remanded for consideration of Glynn’s ability to pay the Board of Indigents’ Defense Services attorney fees. State v. Glynn, No. 93,124, unpublished opinion filed April 6, 2007 (Glynn I). Glynn’s petition for review is currently pending before our Supreme Court. On June 10, 2003, the State charged Glynn in our case with aggravated kidnapping, rape, and aggravated sodomy. Prior to trial, Glynn moved for a change of venue, which was denied and renewed, and argued a pro se motion to suppress similar to one that had been denied by the court in the home invasion case, which was likewise denied in our case. After the State presented to a jury the factual and DNA evidence earlier described, the trial court denied Glynn’s motion for acquittal and submitted the case. The next morning the jury returned a guilty verdict on all three counts. The trial court subsequendy sentenced Glynn to concurrent terms of 620 months’ imprisonment for aggravated kidnapping, 155 months for rape, and 117 months for aggravated sodomy, with post-release supervision. The trial court further ordered the sentences to run consecutive to Glynn’s sentences in the home invasion case and any other sentences Glynn was serving at the time. Glynn has timely appealed. DENIAL OF THE SUPPRESSION MOTION We first consider Glynn’s claim that the district court erred in denying his motion to suppress DNA evidence obtained by a search warrant in a separate case. Our standard of review is well known as we review the factual underpinnings of the decision on a suppression motion by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. Appellate courts do not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006). This case is complicated considerably by the lack of finality of Glynn I and the fact that Glynn has reiterated all of the arguments he made below and on appeal in Glynn I (the home invasion case). He raises additional issues in our case, primarily the contention that it was a violation of his constitutional rights to use the DNA evidence obtained in the home invasion case in order to positively identify Glynn as K.F.’s attacker. In arguing the motion to suppress the DNA evidence prior to the trial in our case, Glynn’s counsel noted the issues had been thoroughly discussed in the prior hearings on the same suppression issues during the home invasion trial and he requested the record incorporate the testimony from that hearing which had been held before the same judge. The State joined in that request. That testimony provided, in pertinent part, the following facts. After one of the victims of the home invasion identified Glynn as the attacker and additional investigation suggested Glynn’s involvement in the crime, Detective Jacob located Glynn at tire Lansing Correctional Facility. On June 4, 2003, Jacob and his partner traveled to Lansing to meet with Glynn, who was brought into an interrogation room in shackles and handcuffs. Jacob informed Glynn that they were there to speak to him regarding a residential robbery in Wichita. Glynn voluntarily provided his personal history. However, when Jacob asked if Glynn was willing to talk about the home invasion, Glynn responded by laughing and pointing out that he did not have an attorney with him. Jacob then Mirandized Glynn who reiterated his refusal to speak with Jacob without the presence of an attorney. Jacob then told Glynn he would return to Wichita and contact the district attorney’s office to seek charges against Glynn for attempted first-degree murder and aggravated robbery. Glynn responded by saying he “didn’t agree” with one of those charges and said he wanted to talk. Before speaking to Glynn, Jacob asked him to indicate on the Miranda form that he would answer questions without having counsel present and Glynn did so. Jacob then conducted a tape recorded interview of Glynn concerning the home invasion in which Glynn said he had a crack cocaine addiction. Glynn told Jacob he never demanded money and claimed that he just entered the home and “stood there quietly.” Glynn claimed he did not recall cutting the woman’s throat, but he did remember struggling with her son. At the end of the interview, Jacob asked Glynn to provide a saliva sample, but Glynn refused. Glynn testified in the suppression hearing in our case that he refused because he had spoken to a friend who told him police were trying to link him to a Wichita rape case. After Glynn’s refusal, Jacob presented an application for a search warrant to a Leavenworth County district judge. In the warrant affidavit, Jacob cited as probable cause all the information he had obtained in investigating the home invasion case, including one victim’s positive identification of Glynn and the presence of a knife blade covered with blood at the scene. Jacob sought the warrant to obtain Glynn’s saliva so his DNA profile could be compared to the DNA sample taken from the knife. Jacob testified in the suppression hearing in our case that he was focused on the home invasion case. A Leavenworth District Court Judge issued a search warrant and Jacob returned to Lansing with the warrant and, pursuant to his training, obtained two saliva samples from Glynn by swabbing the inside of his right and left cheeks. As has been earlier stated, Glynn’s DNA profile obtained by the warrant was later found to be consistent and identical to the DNA profile derived from the bodily fluid found on K.F.’s truck seat. Judge Lyle denied the motion to suppress in our case, as he had in the home invasion case. And, in response to Glynn’s argument that it was improper to use the DNA profile, he found no Kansas law on point but held the DNA was like physical evidence in one case being used in another and found no valid reason that Glynn’s DNA profile was not admissible in his prosecution for K.F.’s attack. This obviously led to the conviction and the contention by Glynn on appeal here that the judge’s ruling was erroneous and requires reversal. We will consider each of Glynn’s arguments. SEARCH AND SEIZURE ISSUES Voluntariness of Glynns statements Glynn argues here, as he did in Glynn I, that his statements to Jacob should be suppressed. This argument, although linked to his next contention, relates totally to the home invasion case, did not involve any testimony in our trial, and is without merit as it relates to the issues in our case. Additionally, the same arguments regarding the statement and confession in the home invasion case were rejected in Glynn I, slip op. at 5-7. Exclusion of DNA evidence as fruit of the poisonous tree Glynn contends here the DNA sample was obtained as a part of his involuntary and coerced confession in the home invasion case and that as the result of his refusal to voluntarily provide a saliva sample, Jacobs applied for, obtained, and executed the search warrant to seize the DNA sample. The State convincingly responds that the interview was not mentioned in the affidavit requesting the search warrant and the interview and obtaining of the sample are separate events. In fact, the application for the search warrant had been prepared in Wichita before the interview at Lansing took place. While it is true that if the confession was wrongfully obtained, any evidence obtained as the result thereof would be prohibited as the fruit of a poisonous tree doctrine, see State v. Walker, 283 Kan. 587, 603, 153 P.3d 1257 (2007), there is no wrongfully obtained confession here. The acquiring of the saliva sample was a separate and distinct act from the interrogation. Jacob admitted he was aware that Glynn may have been involved in another incident prior to the home invasion but testified he was “not familiar with what evidence they had in their case. That was not anything that [he] was part of.” It is important to note that Eugene Jacobs, the crime scene investigator who investigated K.F.’s attack, and Detective Phil Jacob, who interviewed Glynn at Lansing and obtained the saliva sample, are different individuals despite the similarity in their names. The search warrant was obtained to compare Glynn’s DNA profile with that found on the knife used in the home invasion. There was not, at the time it was obtained, any known connection to the rape case. There is no poisoned tree here, no fruit of such a tree, and no basis to suppress in our case for acts and actions clearly involving a different and separate case. Scope of the search warrant Glynn next argues that Jacob exceeded the scope of the search warrant in obtaining not one but two saliva samples, which included the taking of skin cells, which was not authorized. Neither of these arguments have any merit but will be briefly discussed. Both the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights protect the rights of the people against unreasonable searches. Both provide that “no [w]arrant[s] shall issue, but upon probable cause, supported by [o]ath or affirmation, [and] particularly describing the place to be searched and the persons or [property] to be seized.” U.S. Const. Amend. IV; Kan. Const. Bill of Rights, § 15. K.S.A. 22-2502(a) likewise requires a person seeking a search warrant to “particularly describe[ ] a person, place, or means of conveyance to be searched and things to be seized.” Such particularity is required to prevent general searches and the seizure of items at the discretion of the officer executing the warrant. State v. LeFort, 248 Kan. 332, Syl. ¶ 1, 806 P.2d 986 (1991). “The test is one of practical accuracy rather than one of technical sufficiency, and absolute precision is not required in identifying the property to be seized. [Citations omitted.]” State v. Ames, 222 Kan. 88, 92, 563 P.2d 1034 (1977). In the home invasion case, the search warrant Usted the item to be obtained as “1. Saliva Sample.” There were several spaces to the right of the numeral “1” and no indication that the State was to be limited to the collection of a single sample. Glynn’s argument here and in Glynn I is obtuse but contends that because only one sample was allowed, the second sample should be suppressed and because it had become so linked with the first sample that both samples had to be suppressed. Detective Jacob had testified that he always took two saliva samples using two swabs from the inside of each cheek “[e]very single time” he had taken DNA saliva swabs in his career in law enforcement. Glynn’s argument was found to be without merit in Glynn I, slip op. at 22-23. There was no limitation to a “one cheek swab,” and the “1” related to the item sought and not the number of swabs that could be utilized to obtain a saliva sample. Glynn argues for the first time in our case that it was improper for skin cells to be obtained, which was not authorized by the search warrant. This argument is rejected for consideration on appeal as it was not raised before the trial court, State v. Rojas, 280 Kan. 931, 932, 127 P.3d 247 (2006); there is no authority given in support of this new argument, which amounts to it being waived and abandoned, State v. Corbett, 281 Kan. 294, 315, 130 P.3d 1179 (2006); and there was a logical nexus between the saliva sample and skin cells, thus the scope of the warrant was not impermissibly exceeded. Finally, Glynn says that a swab would not have been required if Glynn had merely been required to expectorate his saliva into a cup. The test is one of reasonableness under the Fourth Amendment, not least intrusive means. As explained in United States v. Sharpe, 470 U.S. 675, 686-87, 84 L. Ed. 2d 605, 105 S. Ct. 1568 (1985): “A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But ‘[t]he fact that the protection of the public might, in the abstract, have been accomplished by “less intrusive” means does not, by itself, render the search unreasonable.’ [Citations omitted.] The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.” The manner of obtaining a saliva sample from Glynn in this case was not unreasonable. State’s use of Glynn’s DNA profile obtained in the home invasion case in investigating and prosecuting the attack on KF. Because we have no controlling cases in Kansas on the precise question raised and the facts are not disputed, we conduct an unlimited review of this suppression question. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). Glynn makes multiple arguments why the trial court erred in not suppressing his DNA profile because it was obtained for his home invasion case but ultimately used to connect him to the attack on K.F. His first argument is that three separate searches occurred; the first was when his saliva was obtained, the second when his saliva was used to obtain his DNA to compare to the DNA at the home invasion, and the third when his DNA was entered into the COTIS system to identify characteristics that could be compared to the DNA of the material found in K.F.’s truck. He claims the third search violated his Fourth Amendment rights. The State’s response suggests that only one lawful search occurred; when the saliva was obtained as authorized by the search warrant. It argues that law enforcement officers are not prohibited from using evidence obtained in one case in an unrelated case and that there was no additional seizure or invasion of Glynn’s privacy because the initial saliva sample was obtained by the use of a valid search warrant. We agree with the State’s argument. There was only one search. Glynn argues he has an expectation of privacy in his DNA and that it may not be used beyond the specific purpose of the warrant, a comparison in the home invasion case. He would require the State to obtain a separate search warrant to search his saliva and the DNA profile obtained therefrom before making any comparison to the material found in the vehicle where K.F. was attacked. Glynn’s authority for his argument is State v. Rupnick, 280 Kan. 720, 125 P.3d 541 (2005), where it was held that a valid search warrant is necessary for law enforcement to search the hard drive of a suspect’s personal computer. In reaching this conclusion, the majority opinion relied on two Tenth Circuit Court of Appeals cases, United States v. Carey, 172 F.3d 1268, 1273-75 (10th Cir. 1999), and United States v. Walser, 275 F.3d 981 (10th Cir. 2001), cert. denied 535 U.S. 1069 (2002). The two federal cases turned on whether the search exceeded the scope of the warrant; it was held to have done so in Carey, but it did not in Walser, where the search was stopped when what was believed to be child pornography was first seen. In Rupnick, the search warrant in issue was held to be invalid because of jurisdictional limitations. 280 Kan. at 734-35. But these three decisions relate to multiple types of different information that might be found in a computer and do not directly relate to the single question of the utilization of DNA pro file evidence lawfully in the possession of the law enforcement officers. The State argues for an overly broad reading of State v. Goodman, 3 Kan. App. 2d 619, 599 P.2d 327 (1979), which is really a plain view case where a gun lawfully seized after being seen in a vehicle was returned to the vehicle to determine who might attempt to unlawfully obtain its possession. We do not think Goodman or Rupnick are persuasive authority for the question before us. When faced with the identical issue, all the authorities we have located conclude that once law enforcement has lawfully obtained a blood sample and DNA therefrom, a defendant has no additional constitutional protected privacy in that evidence and it may be used in the investigation of other crimes for identification purposes without the necessity of a separate warrant. In discussing a situation where a blood sample had been obtained for purposes of DNA analysis, 3 LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 5.3(c) n.130, p. 176 (4th ed. 2004), broadly states: “Such information about the defendant may already be available, however, obviating the need to obtain a new blood sample for this purpose. The blood sample may have been lawfully obtained in investigating another crime on an earlier occasion, as in State v. Hauge, 103 Haw. 38, 79 P.3d 131 (2003), or may have been obtained incident to a prior conviction of the defendant pursuant to a statute of the land discussed in § 5.4(c). The defendant cannot object to use of that information in the instant case, for, as held in Hauge, ‘once a blood sample and DNA profile is lawfully procured from a defendant, no privacy interest persists in either the sample or die profile.’ Accord: People v. Baylor, 97 Cal.App.4th 504, 118 Cal.Rptr.2d 518 (2002); Washington v. State, 653 So.2d 362 (Fla. 1994); Bickley v. State, 227 Ga.App. 413, 489 S.E.2d 167 (1997); Smith v. State, 744 N.E.2d 437 (Ind. 2001); Wilson v. State, 132 Md.App. 510, 752 A.2d 1250 (2000); People v. King, 232 A.D.2d 111, 663 N.Y.S.2d 610 (App.Div. 1997); State v. Barkley, 144 N.C.App. 514, 551 S.E.2d 131 (2001).’’ The most in-depth and best discussion of our issue is found in State v. Hauge, 103 Hawaii 38, 79 P.3d 131 (2003). The issue there is identical to the one we face. Hauge’s blood was lawfully obtained by a valid search warrant as part of a robbery investigation. The police requested that a lab analyze and compare Hauge’s DNA obtained from his blood sample to DNA from blood recovered in the investigation of a separate burglary investigation. The lab found the DNA profiles matched and defendant was arrested in connection with the burglary. Hauge’s motion to suppress was denied and after his conviction, he argued on appeal that the usage of his DNA exceeded the limited purpose of the search warrant and violated his legitimate expectations of privacy under the Hawaii and United States Constitutions. Hauge also argued that allowing usage of his DNA lawfully obtained undermines probable cause requirements and approving such police actions would allow them to compile a DNA data bank of generic information far more intrusive than fingerprint comparisons. None of Hauge’s arguments were found to be persuasive by the Hawaii Supreme Court. As to the argument that a suspect retained an expectation of privacy in his DNA profile obtained by a valid search warrant, Hauge considered and applied the two-part expectation of privacy analysis set forth in Katz v. United States, 389 U.S. 347, 361, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967) (Harlan, J., concurring), which provides: “ ‘ “First, [the person] must exhibit an actual, subjective expectation of privacy. Second, that expectation must be one that society would recognize as objectively reasonable.” ’ [Citations omitted.]” Hauge, 103 Hawaii at 51. Hauge then adopted the rule already recognized in several other states that expectations of privacy in lawfully obtained blood samples “are not objectively reasonable by ‘society’s standards’ ” so there is no constitutional violation or infringement of privacy. Once a DNA profile is lawfully obtained, a defendant has no privacy interest which persists in either the sample or the profile. 103 Hawaii at 51-52. The Hauge opinion cited as authority all of the other decisions we have previously set forth in the LaFave quotation above and discussed several of those cases. See Hauge, 103 Hawaii at 51. The Hauge opinion adopted the reasoning in Bickley v. State, 227 Ga. App. 413, 489 S.E.2d 167 (1997), stating: “We agree with the trial court that ‘[i]n this respect, DNA results are like finger prints which are maintained on file by law enforcement authorities for use in further investigations.’ Bickley, 489 S.E.2d at 169 (emphasis added).” Hauge, 103 Hawaii at 52. In response to the “parade of horrible” usage argument, the Hawaii Supreme Court limited police usage of the DNA for the purposes for which police could have utilized a fingerprint in such an investigation, i.e., identification. 103 Hawaii at 52-53. The analysis of the Hawaii appellate court and the decisions of the other states cited therein, California, Florida, Georgia, Indiana, Maryland, New York, and North Carolina, are sound and should be joined by Kansas. We so hold. The State malees an inevitable discovery argument contending that because Glynn was convicted of attempted first-degree murder and aggravated robbery in the home invasion trial, pursuant to K.S.A. 2006 Supp. 21-2511, he would be required to submit blood and saliva specimens which would ultimately provide a match. See State v. Maass, 275 Kan. 328, 337, 64 P.3d 382 (2003) (upholding validity of K.S.A. 2001 Supp. 21-2511). Because Glynn 1 is still pending and our record below is insufficient to support this inevitable discovery argument, it will not be considered. For all the reasons we have above stated, the trial court correctly overruled Glynn s motions to suppress and the DNA evidence was legally and lawfully admitted and utilized in the trial of this case. We will briefly consider Glynn’s remaining allegations of error, but none of them have merit. DENIAL OF CHANGE OF VENUE MOTION Glynn claims the trial court erred in not granting his change of venue motion. The determination of whether to change venue is entrusted to the sound discretion of the trial court and such discretion will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant. State v. Higgenbotham, 271 Kan. 582, Syl. ¶ 4, 23 P.3d 874 (2001). Glynn argues he could not obtain a fair and impartial trial in Sedgwick County because of publicity surrounding his home invasion trial and arrest in the rape and attack of K.F. The record does not support Glynn’s allegations. A jury was selected without difficulty or knowledge of the case. The jury was correctly admonished to not consider any outside information. After the jury announced it had reached a verdict on the morning after the case had been submitted, defense counsel expressed concern about possible media prejudice. The trial court apparently did visit with the jurors and stated, “They were all unfamiliar with Rico Glynn and expressed great surprise at his previous record and why it wasn’t a part of the trial.” The record shows no possibility of prejudice. The trial court did not abuse its discretion in denying the change of venue motions. MULTIPLICITY OF CHARGES Glynn next makes a multiplicity argument, which is a question of law subject to unlimited review. State v. Robbins, 272 Kan. 158, 171, 32 P.3d 171 (2001). Glynn’s argument that the crimes of aggravated kidnapping, rape, and aggravated sodomy are multiplicitous is based on his contention that they arise out of a single act of violence. Any such argument has been abrogated by our Supreme Court decisions in State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), and State v. Patten, 280 Kan. 385, 122 P.3d 350 (2005) which have held the test to determine multiplicity is whether each offense requires proof of an element not necessary to prove the other offenses. If this is the case, the charges stemming from a single act are not multiplicitous. Glynn’s counsel candidly admits in his brief that if a strict element test is used, the three convictions are not multiplicitous. When we properly apply the tests of Schoonover and Patten, there is no multiplicity in this case. Glynn’s multiplicity arguments have no merit. SUFFICIENCY OF EVIDENCE “ ‘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.’ [Citation omitted.]” State v. Kesselring, 279 Kan. 671, 679, 112 P.3d 175 (2005). Because the weight to be afforded the evidence and credibility determinations are within the jury’s province, those matters will not be second guessed on appeal. 279 Kan. at 679. Moreover, a conviction of even the gravest offense maybe sustained by circumstantial evidence. State v. Dixon, 279 Kan. 563, 621, 112 P.3d 883 (2005). Glynn attacks the sufficiency of the evidence as to his identity as K.F.’s attacker and his intent to take and confine K.F. by force or threat and to rape and sodomize her. There is no merit to either argument as the first only has validity if the DNA evidence was improperly admitted. We have specifically held that it was correctly considered by the jury and clearly showed Glynn was directly linked to the crime. K.F.’s testimony of the brutal, nonconsensual nature of the force used, the knife at her throat, and sexual actions satisfying the elements of both rape and sodomy clearly provided substantial competent evidence of Glynn’s guilt beyond a reasonable doubt. Affirmed.	[ 48, -17, -4, -68, 61, -31, -70, 48, 99, -93, -12, 83, -83, -56, 4, 122, -5, 109, 85, 97, -37, -73, 47, -63, -14, 115, -16, 83, -77, -49, -18, -4, 77, 112, 74, -35, 102, 74, -95, -48, -114, 3, -87, 96, -48, -64, 36, 59, -46, 14, 49, -98, -29, 42, 28, -61, -87, 44, 75, -67, -64, 60, -71, 23, -33, 18, -77, 38, 56, 45, -8, 55, 24, -71, 32, 104, 58, -92, -126, 116, 79, -119, -88, 98, 98, 4, 8, -65, -19, -127, 47, -1, 63, -121, -40, 65, 73, 108, -98, -71, 100, 20, 15, 122, -11, -36, 29, 108, -114, 95, -76, -103, 77, 116, 10, 56, -21, 37, 16, 113, -60, 96, 76, 71, 120, -37, -114, -9 ]
McAnany, J.; Tysen Hampton appeals his convictions of rape, aggravated kidnapping, and criminal threat. He claims the district court erred in admitting evidence of other bad acts, and his convictions for criminal threat and rape are multiplicitous. Eighteen-year-old M.S.O. met Hampton on an online internet chat room site. She agreed to meet him in Manhattan. Since she was nervous about the meeting she asked two friends to follow her. M.S.O. met Hampton at the appointed time, and they decided to go to Bluemont Hill to sit and talk. They drove separately. Upon arrival M.S.O. got into Hampton’s car. M.S.O.’s friends, who were supposed to follow her, got lost and failed to appear. When the discussion between Hampton and M.S.O. turned to matters of sex, M.S.O. decided to leave. Hampton physically restrained her from leaving, locked the car door, and raped her. He quelled her resistance by referring to a bag on the floor of the car and warning that she would not like it if he reached for the bag. The clear intimation was that the bag contained some sort of weapon. Following Hampton’s attack on M.S.O., he permitted her to leave. She immediately called the police. A hospital examination of M.S.O. disclosed the presence of Hampton’s seminal fluid. Hampton was charged with rape, aggravated kidnapping, and criminal threat. His defense was that the sexual encounter with M.S.O. was consensual. Prior to trial, the State moved to admit testimony regarding other sexual assaults by Hampton. The parties acknowledged that intent was a matter in controversy. Since a necessary element of aggravated kidnapping is the intent to terrorize or to inflict bodily injury, and since the issue of intent was a matter in controversy, the district court ruled that evidence of other sexual assaults was relevant to prove intent, and the probative value of this evidence outweighed its prejudicial effect. At trial the State elicited the testimony of C.A.W. concerning an incident 2 weeks after Hamptons encounter with M.S.O. C.A.W. testified that while she was out for an early morning walk she was struck by a car driven by Hampton. Hampton got out of his car and forced her into his car where he sexually assaulted her. The jury was instructed that C.A.W.’s testimony was to be considered only with respect to the intent element of aggravated kidnapping. The jury was also instructed that a rape satisfies the element of bodily injury required for a conviction for aggravated kidnapping. Hampton was convicted of all three charges. K.S.A. 60-455 Evidence Hampton argues the district court erred in admitting C.A.W.’s testimony to prove the element of intent in aggravated kidnapping. In considering this claim we first consider whether her testimony was relevant, i.e., whether it tended to prove a disputed material fact. See K.S.A. 60-401(b). Once relevance is established, we apply the other rules governing admission and exclusion of evidence. We recognize that the admission of evidence lies within the sound discretion of the trial court. State v. Holmes, 278 Kan. 603, 623, 102 P.3d 406 (2004). However, when the challenge is to the legal basis for the evidentiaiy ruling, our review is de novo. State v. Gunby, 282 Kan. 39, 47-48, 144 P.3d 647 (2006). Evidence of other crimes is not admissible to prove a defendant’s criminal disposition. However, K.S.A. 60-455 authorizes the admission of such evidence to prove a disputed material fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, if admission does not violate K.S.A. 60-445. State v. Kackley, 32 Kan. App. 2d 927, 92 P.3d 1128 (2004). The crime of kidnapping includes the taking or confining of a person by means of force or threat for the purpose of terrorizing or inflicting bodily injury upon the victim. See K.S.A. 21-3420. The crime becomes aggravated kidnapping when bodily injury is actually inflicted upon the victim. See K.S.A. 21-3421. Rape satisfies the bodily injuiy requirement for aggravated kidnapping. In State v. Kackley, 32 Kan. App. 2d at 930, the court determined that when the defendant’s conduct leaves no room for an innocent explanation, such as Kackley placing the victim’s hand on his exposed penis, the introduction of evidence of other crimes can have no probative value. In such a situation, criminal intent is obvious from the mere doing of the act. Hampton argues that his conduct toward M.S.O. falls into this category. We are not persuaded by this belated characterization by Hampton of his conduct. It stands in marked contrast to the position he took at trial. In his opening statement, Hampton’s counsel characterized the case as follows: “This is a case about regret. . . . There is some small talk and one thing lead [sic] to another and they have sex. And afterward, Miss M.S.O. regret [sic] that and that’s what brought us here today. . . . [T]his is not a rape.” In closing, Hampton’s counsel asked the juiy: “[I]f it wasn’t consensual, why there was [sic] no bruises on [M.S.O.’s] person. . . . [W]hy was she able to leave? It will all lead to consensual sex.” Hampton offered the juxy an innocent explanation of his conduct. M.S.O. got into Hampton’s car voluntarily. She was not restrained against her will. She was not kept in the car so Hampton could rape her. She simply remained in the car so they could engage in consensual sex. Thus, whether Hampton restrained M.S.O. in his automobile with the intent to inflict personal injuries upon her in tire form of rape was a disputed issue of material fact. The testimony of C.A.W. was relevant to prove Hampton’s intent. Further, the determination whether the probative value of C.A.W.’s testimony was substantially outweighed by its probable prejudicial effect is for the district court to decide in the exercise of its discretion. K.S.A. 60-445. The district court did not abuse its discretion in admitting C.A.W.’s testimony. Multiplicity Hampton claims his convictions for criminal threat and rape are multiplicitous. While Hampton did not raise this argument before the district court, we have considered multiplicity arguments for the first time on appeal in order to serve the ends of justice and prevent a denial of the fundamental right to a fair trial. See State v. Groves, 278 Kan. 302, 303-04, 95 P.3d 95 (2004), overruled on other grounds hy State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006). We will consider Hampton’s claim on this basis. Under the analysis required by State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), we first determine whether the charges arose out of the same conduct. Hampton’s conduct satisfies this first test since the acts that constitute criminal threat and rape occurred at the same place and at essentially the same time, there is a causal relationship between the acts, and the rape was not motivated by a fresh impulse separate and apart from the motivation for the criminal threat. We then turn to the second test, whether each crime requires proof of an element not necessary to prove the other crime. If so, the charges stemming from a single act are not multiplicitous. 281 Kan. 453, Syl. ¶ 12. Hampton argues that since criminal threat requires proof of “intent to terrorize another,” the definition of terrorize necessarily requires that the victim be placed in fear through verbal coercion. He concludes that since the State alleged he made verbal threats to M.S.O. in order to terrorize her and thereby coerce her into not resisting his sexual advances, the charges are multiplicitous because the “force or fear” element of rape is identical to the “intent to terrorize” element of criminal threat. A similar argument was raised in State v. Potts, 281 Kan. 863, 871, 135 P.3d 1054 (2006). In Potts the court noted that the test for multiplicity requires a comparison of the strict elements of the offenses without considering the facts that must be proven to establish those elements. Rape does not require a communicated threat to commit violence, an element of criminal threat; and criminal threat does not require proof of sexual intercourse. Thus, the court concluded, convictions for rape and criminal threat are not multiplicitous. We are bound by the court’s holding in Potts. Hampton’s multiplicity argument, therefore, fails. Affirmed.	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Bukaty, J.: Darrell J. Branson appeals his conviction following a bench trial for violation of a protective order. He essentially argues that the victim consented to his contact with her and this constitutes a defense to the charge. We affirm, finding that consent is not a defense to a charge of violation of a protective order. The State charged Branson with violating “a protection from abuse order issued pursuant to K.S.A. 60-3105, K.S.A. 60-3106, [and] K.S.A. 60-3107 . . . in violation of K.S.A. 21-3843(a)(l).” It alleged the crime occurred on or about October 18, 2005. Among the witnesses listed was Pamela Hird. Almost 4 months before the events leading to the charge, Hird had obtained a protection from abuse (PFA) order against Branson under the provisions of K.S.A. 60-3101 et seq. Authorities served Branson with the order shortly after its issuance. The PFA order prohibited Branson from having any contact with Hird “except as authorized by tire Court in this Order.” It provided that Branson “shall not enter or come on or around the premises or the residence or workplace where [Hird] resides, stays or works.” An exception, not applicable here, allowed Branson to obtain his personal property from Hird’s home one time while accompanied by a law enforcement officer. By its terms, the order expired at midnight on June 27, 2006. It further warned: “THE DEFENDANT IS HEREBY PUT ON NOTICE THAT VIOLATION OF THIS ORDER MAY CONSTITUTE VIOLATION OF A PROTECTIVE ORDER AS PROVIDED IN K.S.A. 21-3843 . . . AND MAY RESULT IN PROSECUTION AND CONVICTION UNDER KANSAS CRIMINAL STATUTES. VIOLATION OF THIS ORDER MAY ALSO BE PUNISHABLE AS A CONTEMPT OF THIS COURT.” At trial, Hird testified that on the evening in question, she was at home. She received a telephone call from an employee of a business that Hird owned stating that Branson had appeared at the business. The employee apparently knew of the PFA order and did not admit Branson to the business. The employee saw Branson leave in Hird’s vehicle and then reported the information to police before telephoning Hird. The police soon contacted Hird, who confirmed the existence of the PFA order. The police stopped Branson in Hird’s vehicle. Branson denied that he was at Hird’s business, but he admitted to taking the vehicle from Hird’s residence. He apparently had taken the keys from a table in Hird’s house. Hird then testified about contact she had with Branson prior to the night in question. She said she had seen him either that morning or the prior evening. She admitted that Branson had been staying in her basement for a week or more, and that she had meals with Branson during the 2 days before his arrest. She explained that he was in the basement most of the time and would sometimes come upstairs. The basement has a separate apartment widi an outside entrance. She maintained, nevertheless, that he was staying with her and using her vehicle without her permission. She also admitted that Branson had repaired a toilet and had worked on one of the garbage disposals. Hird explained that she failed to report these violations of the PFA order to the police because: “I thought that a protection order applied to both of us that if — that I was not supposed to have contact with him or allow him anywhere around me, and since I had not called the police immediately, that I would be in as much trouble as he was, and when he came — when he showed up, I think one of my biggest problems has always been to feel sorry for him when he is intoxicated and has no place to go, and I just couldn’t see making him leave when he was that drunk. He was going to be passed out in the yard. It’s gotten to be a joke I think in the neighborhood how many times I have called the police, and I was just tired of it.” After the State rested, defense counsel moved to dismiss the charges based on Hird’s allowing Branson to stay on the property and not contacting police. The district court denied the motion, stating that Hird’s acquiescence was not a defense to the charge of violating the court order. The defense presented no evidence. The district court then ruled as follows: “Well, based on the testimony, I do find that Mr. Branson has violated the protection order and I certainly understand the defense’s position in this matter. Miss Hird’s acquiescence in this certainly doesn’t help the situation, but he has clearly violated the order, so I will find he is guilty.” The district court made no further findings pertaining to the guilt issue. It then sentenced Branson to 12 months in the county jail and costs. Branson first argues on appeal that consent is a defense to criminal violation of a protective order. He does not distinguish between consent and acquiescence but uses the terms interchangeably. While the terms are similar, they are not interchangeable in some areas of criminal law. See Bumper v. North Carolina, 391 U.S. 543, 548-49, 20 L. Ed. 2d 797, 88 S. Ct. 1788 (1968) (consent to search requires more than “acquiescence to a claim of lawful authority”); State v. Jones, 279 Kan. 71, 78, 106 P.3d 1 (2005) (defendant’s “mere acquiescence” to a search “does not establish voluntary consent”). In our analysis of the issue we deem it unnecessary to distinguish between the terms. For the sake of simplicity, we will refer only to consent. We first note that nowhere in the statute defining the crime, K.S.A. 2005 Supp. 21-3843, is consent mentioned at all. Therefore, if consent is deemed to be a defense, it must find its basis in a source apart from the statute defining the crime. Such a defense has been described as a situation where “assuming” facts alleged in the charging instrument are true, . . . if the affirmative defense is found to be factually true . . . , the defendant should be found not guilty.” State v. McIver, 257 Kan. 420, 431, 902 P.2d 982 (1995). Whether an affirmative defense exists is a question of law subject to unlimited review. See City of Wichita v. Tilson, 253 Kan. 285, 291, 855 P.2d 911, cert. denied 510 U.S. 976 (1993). The district court’s ruling suggests that one of its rationales for denying a consent defense was the derogation of the court’s authority. The judge stated his rationale quite simply: “[Branson] has clearly violated the order, so I will find he is guilty.” The State similarly argues on appeal: “[T]here is absolutely no precedent for suspending or nullifying a court order except by seeking a further order of the court.” This certainly is a factor worthy of consideration even though the Protection From Abuse (PFA) Act provides a proper remedy for any derogation of the district court’s authority in its provisions allowing criminal contempt proceedings for violation of PFA orders. K.S.A. 60-3110. In addition to this consideration, however, is consideration of the nature of a criminal act in general as set forth in Kansas statutes and case decisions. A criminal act occurs “against the peace and dignity of the State of Kansas,” as was stated in the charging document involved here. Also, “the philosophy of this state has always been that a criminal prosecution is a state affair.” State ex rel. Rome v. Fountain, 234 Kan. 943, 945, 678 P.2d 146 (1984). The current Kansas Criminal Code begins by defining its scope as “conduct [which] constitutes a crime against the state of Kansas.” K.S.A. 21-3102(1). Of further significance in this regard is the chapter of the state criminal code where the crime involved here is found. It is in Article 38, titled “Crimes Affecting Governmental Functions.” The facts here particularly indicate why Branson’s actions implicate the State and the public at large. Hird testified that she had essentially given up because of public embarrassment and her feelings of pity for Branson. At sentencing, the State referred to an earlier conviction “in 05 CR 925 ... of violating the same pro tective order.” The State asserted that Branson was on probation in that case under the condition that he have no contact of any kind with Hird. The trial judge noted that Branson had been before him several times in connection with his lengthy, antagonistic relationship with Hird over the past years. Such longstanding and intractable conflicts implicate more than a victim’s own wishes or even the court’s authority. Also, the legislature is presumed to have expressed its intent through the language of the statute, State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). Its decision to criminalize a violation of a PFA order reflects a concern for the public peace. Persons granted a PFA order have already proven “the allegation of abuse by a preponderance of the evidence” on a prior occasion. K.S.A. 60-3106(a). Nothing in the language of K.S.A. 2005 Supp. 21-3843 suggests a legislative intent to excuse an abuser just because the victim later consents to contact in violation of the PFA order. See Bryan, 281 Kan. at 159 (“A statute should not be read to add language that is not found in it . . . .”). The legislature saw fit to provide for court supervision over the parties, and that supervision continues until the PFA order is modified or dismissed. See K.S.A. 60-3107(e), (f). In context, then, we deem Branson’s act here that was contrary to the court’s supervision to be of sufficient threat to the public peace that the act is criminal regardless of consent. Our ruling does not construe the statute against Branson, as he suggests on appeal. It simply acknowledges the plain language of its provisions. The cases he cites on appeal are also not persuasive. The affirmative defense raised in State v. Strane, 61 P.3d 1284, 1288-90 (Alaska 2003), involved a mistake of law, not consent. In State v. Dejarlais, 136 Wash. 2d 939, 969 P.2d 90 (1998), the Washington Supreme Court found consent was not a defense even though the statutes in effect on the date of the crime did not explicitly exclude that defense. The Washington court held the purpose of the domestic violence statutes ruled out a consent defense, and that a later amendment making this clear merely showed tire already-existing legislative intent. 136 Wash. 2d at 944-45. Branson cites no authority that renders consent an affirmative defense to a charge of violation of a protective order in Kansas, and our research reveals none. It is left to the legislature then, if it desires, to provide that a victim’s consent to contact by his or her former abuser will relieve the abuser of criminal responsibility. The trial court did not err in refusing to consider a consent defense in this case. Branson also argues on appeal that the evidence at trial supported his defense of consent. Obviously, in light of our ruling above, the issue is moot. Branson never disputed the validity of the PFA order involved, nor did he dispute the significant facts testified to by Hird as to his contact with her. We find no error. Affirmed.	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Leben, J.: Anthony Bordeaux was ordered at gunpoint to come out of an open garden shed in which he was hiding. The shed was located behind a mobile home; an owner of a neighboring lot in the mobile-home park had called police to investigate a suspicious man wearing blue jeans, a black coat, and a black stocking cap. Once Bordeaux came out of the shed, the officer ordered him to put his hands on top of the shed so that the officer could conduct a pat-down for weapons. Bordeaux refused this order at least twice before complying, the officer’s demands presumably becoming more and more insistent until Bordeaux complied. While one officer was conducting the pat-down — perhaps with Bordeaux already in handcuffs — another officer grabbed a black coat from inside the shed and asked Bordeaux whether it was his coat. Bordeaux admitted that it was. This case was in district court because drugs were found in the coat. The case is in the Court of Appeals because the district court suppressed Bordeaux’s statement admitting ownership of the coat, and the State has appealed. The district court’s ruling was based on violation of the well-known rule in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), which precludes police interrogation of suspects in custody unless several warnings are given as a procedural safeguard. We agree with the district court that Bordeaux, who was in the midst of a pat-down search immediately after being held at gunpoint, was in custody for purposes of Miranda. We also agree with the district court that the officer interrogated him when he asked Bordeaux the question. We therefore affirm the district court’s judgment suppressing Bordeaux’s response during the impermissible custodial interrogation. On appeal, we review the factual findings of the district court to be sure that they were supported by substantial competent evidence. The legal conclusions drawn from those facts, including whether a person was in custody at the time of an interrogation, are subject to de novo review, and no deference is owed to the legal conclusions of the district court. State v. Jones, 283 Kan. 186, 192, 151 P.3d 22 (2007). The State has challenged both prongs of the district court’s Miranda analysis. First, the State argues that Bordeaux was not in custody. Second, the State argues that he was not interrogated. Bordeaux Was in Custody for Miranda Purposes When He Was Being Patted Down Immediately After Having Been Ordered Out of Hiding at Gunpoint. Miranda warnings are necessary to satisfy the requirements of the Fifth Amendment to the United States Constitution, which provides a right to remain silent about possible criminal wrongdoing and thus avoids coerced statements and confessions. See Dickerson v. United States, 530 U.S. 428, 147 L. Ed. 2d 405, 120 S. Ct. 2326 (2000). The Miranda warnings are familiar to all: that the defendant “has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Miranda, 384 U.S. at 444. Section 10 of the Kansas Constitution Bill of Rights has been interpreted to provide the same protection. Jones, 283 Kan. at 194. The Miranda opinion held that its rule applied when a person had “been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. at 444. Later cases have established two essential inquiries for determining whether someone is in custody under Miranda. First, what were the circumstances surrounding the interrogation? Second, under those circumstances, would a reasonable person have felt that he or she could terminate the investigation and leave? Yarborough v. Alvarado, 541 U.S. 652, 663, 158 L. Ed. 2d 938, 124 S. Ct. 2140 (2004) (citing Thompson v. Keohane, 516 U.S. 99, 133 L. Ed. 2d 383, 116 S. Ct. 457 [1995]); Jones, 283 Kan. at 193-94 (citing Thompson). But other cases complicate the apparent simplicity of the test of whether or not a reasonable person would feel free to leave. In Berkemer v. McCarty, 468 U.S. 420, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984), the Court ruled that Miranda warnings were not required when a person was questioned in a routine traffic stop. The Court recognized that “a traffic stop significantly curtails the ‘freedom of action of the driver,” 468 U.S. at 436, which would seem to trigger the requirement of Miranda warnings as the test had been stated in Miranda. The Court nonetheless concluded that Miranda warnings were not required because most people know that traffic stops are ordinarily brief and because most such stops occur in public areas, so that the motorist would not feel “completely at the mercy of the police.” 468 U.S. at 437-39. According to Berkemer, the proper question was “whether a traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights.” 468 U.S. at 437. The Court summarized later in Berkemer that when a suspect is “subjected to restraints comparable to those associated with a formal arrest,” Miranda warnings must be given. 468 U.S. at 441. Berkemer decided that the principles of Miranda apply even to traffic stops, and that a routine traffic stop — in which Miranda warnings are not required — may rise to the level where the motorist is “for practical purposes” in custody, which would require Miranda warnings. 468 U.S. at 440. Whether Miranda warnings are required must be decided on a case-by-case basis, and the Berkemer opinion correctly recognized the implication of this: “the police and lower courts will continue occasionally to have difficulty deciding exactly when a suspect has been taken into custody” under this rule. 468 U.S. at 441. We turn to the two essential inquiries for determining Miranda requirements armed both with the tests as currently phrased in Yarborough and Jones and with the knowledge that our analysis must consider the principles behind the rules. We first ask: what were the circumstances surrounding the interrogation? As to this inquiry, we defer to the district court to find the facts. At the district court, the State has the burden to prove the lawfulness of the officer s actions by a preponderance of the evidence. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). We then review that evidence to determine whether there is substantial competent evidence to support the trial judge’s findings. Jones, 283 Kan. at 194. And here we find an issue that requires some careful review. The district court found as a fact that Bordeaux had already been handcuffed at the time that he was asked about the coat. We think it quite clear that a person who was ordered out of hiding in a dark shed and then handcuffed immediately is in custody for Miranda purposes. See State v. Payne, 273 Kan. 466, 468, 478, 44 P.3d 419 (2002) (holding that a person taken from a car at gunpoint, placed on the ground, and handcuffed was in custody for Miranda purposes). But the State cites evidence in its brief that supports its argument that Bordeaux was not placed into handcuffs until after he had been asked about the coat, and the defendant’s brief does not challenge this assertion. Still, it is the district court’s obligation to make factual findings based upon the evidence presented directly to it, and it is our obligation to uphold the district court’s factual findings when they are supported by substantial competent evidence. The district court announced its findings orally after it took a recess to review the evidence. The court specifically found that “[wjhile [one officer] had handcuffed the individual we now know to be the defendant, another officer then arrived, looked inside of the storage shed, and found a black coat and almost immediately asked the defendant if that was his coat, and the defendant so indicated that it was.” Under these facts, the court concluded that “[t]here is no question but what the defendant was in custody and that this was a custodial interrogation.” Two officers played the key roles here. Officer Robert Shipley found the defendant hiding in the storage shed, ordered him out of the shed at gunpoint, handcuffed him, and patted him down. Officer Scott Jones found the coat in the shed and asked the defendant about it. Two other witnesses, Officer Kelly Davis and Doug Crisp, also testified at the hearing, but neither saw Bordeaux handcuffed or asked about the coat. The defendant did not testify, so the evidence supporting the district court’s factual finding must come primarily from the testimony of officers Shipley and Jones. We have reviewed their testimony in detail. Officer Shipley’s testimony can be interpreted either as suggesting that Bordeaux was handcuffed before he was patted down or as suggesting that he was patted down before he was handcuffed. Some of the answers given by Shipley were not in strict chronological order, and neither of the attorneys asked questions to clarify the time sequence. For example, in one answer on direct examination, Shipley talks about having Bordeaux step out of the shed and then doing a pat-down: “I had him step out and I did a quick pat-down on him, make sure there wasn’t any weapons on his person.” Later in the same answer, however, Shipley backtracks to talk about commanding Bordeaux multiple times to put his hands on top of the shed, which was a precursor to the pat-down. Shipley concludes with a statement that he put Bordeaux into handcuffs as soon as he put his hands on the shed: “[H]e finally put his hands up on the shed. Then I placed him in cuffs from that point.” Shipley used handcuffs because Bordeaux “was actively searching the area,” and Shipley concluded that Bordeaux “was trying to find a way to run.” Shipley noticed this before he conducted the pat-down: “I was trying to get him turned around so I could do my pat-down. He . . . was trying to find a way, his head was moving left and right, trying to find — to get — to look for a path to get away from me.” Shipley put Bordeaux into handcuffs to “figure out who he was and what [Shipley] was dealing with.” The defense attorney asked in cross-examination if the pat-down occurred “immediately” after Shipley got Bordeaux out of the shed; Shipley interjected that the pat-down only occurred after Bordeaux put his hands on top of the shed. But Shipley had previously said that when Bordeaux had “finally” put his hands on top of the shed, Shipley had “then” placed him in handcuffs “from that point” because Bordeaux was looking for an escape route. Shipley also agreed with the defense counsel that Shipley “had restrained [Bordeaux] effectively from the moment [Shipley] got him out of the shed.” Under Shipley’s testimony, the pat-down could have occurred with the defendant’s hands on top of the shed, or it could have occurred with him already in handcuffs. Officer Jones testified that he asked about the coat while Bordeaux was being patted down and before he was handcuffed. But the district court found otherwise, and an appellate court may not reweigh the evidence, determine witness credibility, or resolve conflicts in the evidence. State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006). In this appeal, we view the evidence in the light most favorable to the defendant, who prevailed below. See State v. Hardyway, 264 Kan. 451, 459, 958 P.2d 618 (1998). On the evidence presented to the district court, either Bordeaux was handcuffed before he was patted down or he was patted down before he was handcuffed. These are mutually exclusive events, so evidence that makes one scenario unlikely may provide substantial evidence that the other scenario took place. And there is substantial evidence that makes the sequence of events testified to by Jones an improbable one. Jones testified that he was not even present near the shed when Bordeaux was forced out into the open, and the events testified to by Shipley appear to have transpired quite quickly from that moment until Bordeaux was handcuffed. For Jones to have asked about the coat before Bordeaux was handcuffed, the period during which Shipley confronted Bordeaux outside the shed before handcuffing him had to last long enough for Jones to enter the area, enter the shed, make sure there was no one else in the shed, find the coat, come back out of the shed, and then ask Bordeaux about the coat. The district court’s finding that Bordeaux was already in handcuffs when Jones asked about the coat is a reasonable judgment — the alternative scenario would require that all of the lengthy sequence of events described above had taken place while Shipley left Bordeaux unrestrained despite his concerns that Bordeaux was looking “for a path to get away” before the pat-down. At the end of the evidentiary hearing, the district judge took a recess to review the evidence and to consider his decision. He returned to the courtroom and announced that he would make “some very detailed factual findings,” further indicating that he had carefully considered the findings that he then announced. While there is certainly evidence in the record from which one could conclude that Jones asked about the coat before Bordeaux was handcuffed, there is substantial evidence in the record to support the factual finding of the district court. When there is substantial evidence to support the district court’s factual findings, we must accept them even though there may be contrary evidence. State v. William, 248 Kan. 389, 411, 807 P.2d 1292 (1991). Analysis of the second essential Miranda inquiry — whether a reasonable person would have felt free to terminate the investigation and leave — is uncomplicated when one accepts the district court’s factual finding that Bordeaux had been handcuffed shortly before Jones asked about the coat. Miranda recognized that “without proper safeguards the process of in-custody interrogation . . . contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” 384 U.S. at 467. Bordeaux had been forced at gunpoint out of hiding in a small dark shed, then handcuffed. A pat-down was in progress. No time had gone by in which the pressure inherent in this situation dominated by police force and physical restraint might have dissipated. We therefore conclude that Bordeaux, who was forced out of hiding in the shed at gunpoint and handcuffed, was in custody for purposes of Miranda when he was asked about the coat. But Bordeaux would have been in custody for Miranda purposes even if he had not yet been handcuffed while he was questioned. We cannot tell from the record whether Officer Shipley had holstered his gun before conducting the pat-down. Even assuming that he had holstered it, however, at most only a very short time would have elapsed since Bordeaux had been held at gunpoint. Shipley forcefully barked his commands to Bordeaux. Another officer, Kelly Davis, said that she could hear Shipley’s voice from her position in front of the trailer, and she agreed that Shipley “was commanding the subject to do certain things.” One of those commands was that Bordeaux put his hands on top of the shed — and, under this assumed set of facts, he was then patted down while he was still in that position. Officer Shipley testified that Bordeaux was effectively restrained from the time he came out of the shed and Shipley would have had his hands on Bordeaux for the purpose of patting him down. Under the Fifth Amendment Miranda tests we have cited from Yarborough and Jones, no reasonable person would have felt free to leave at that point. Even Officer Jones conceded that Bordeaux was not free to leave during the pat-down. This strongly suggests that Bordeaux was in custody, though Berkemer and other cases caution that this is not conclusive. Although not the sole means of analysis, Kansas courts also have considered an additional set of eight nonexclusive factors to determine whether an interrogation is a custodial one. Those factors are: (1) the time and place of the interrogation, (2) the length of the interrogation, (3) the number of officers present, (4) the statements made by the officers and by the defendant, (5) the presence of actual physical restraint on the defendant or something equivalent to that, such as drawn weapons or a guard stationed at an exit door, (6) whether the defendant is being questioned as a suspect or as a witness, (7) whether the defendant arrived voluntarily at the site of interrogation, and (8) whether the defendant left freely, was detained, or was arrested following the interrogation. Jones, 283 Kan. at 195. Those factors relate to the separate existence both of custody and interrogation, but several appear relevant here on the custody issue. And consideration of them suggests that this was a custodial event, whether or not Bordeaux was already in handcuffs. There were multiple police officers, and they were forceful— using a drawn weapon, strong vocal commands, and an immobilizing position (i.e., hands on top of the shed, presumably with legs spread apart) to control Bordeaux. At the time of questioning, under the State’s assumed facts, Shipley had his hands physically on Bordeaux in the process of patting him down; indeed, Shipley agreed that Bordeaux was effectively restrained from the moment that he came out of the shed. Bordeaux did not come out of the shed voluntarily; he was viewed as a suspect, not a disinterested witness. And, of course, under the State’s factual assumptions, Bordeaux was handcuffed almost immediately after he answered the question about the coat. Because of the fact-intensive nature of cases like this, nearly identical cases are hard to find. We have looked for cases addressing whether a police officer’s questioning of a suspect during a pat-down constitutes custodial interrogation. Some courts have held that it does, but others have disagreed. Compare Argueta v. State, 136 Md. App. 273, 764 A.2d 863, cert. denied 364 Md. 142, 771 A.2d 1071 (2001) (holding that a defendant was in custody for Miranda purposes when asked about a knife found in his pocket during the pat-down); State v. Gerald B., 139 N.M. 113, 129 P.3d 149 (Ct. App. 2006) (holding that a defendant was in custody for Miranda purposes when asked during a pat-down whether he had any more marijuana); and Commonwealth v. Ingram, 814 A.2d 264 (Pa. Super. 2002) (holding that a defendant was in custody for Miranda purposes when asked to identify an object in his pocket that was not an apparent weapon), appeal denied 573 Pa. 671, 821 A.2d 586 (2003), with State v. Healy, 2000 WL1062197 (Ohio App. 2000) (holding that the defendant was not in custody for Miranda purposes when one officer asked if the defendant had bought crack cocaine in a house); and Commonwealth v. Pakacki, 587 Pa. 511, 901 A.2d 983 (2006) (three-member majority concluded that a pat-down did not place a defendant in custody for Miranda purposes regarding questions about an object in a pocket; two justices concurred, holding that Miranda applied but that plain-feel exception made evidence admissible). None of these cases has facts close to those found in Bordeaux’s, and we do not find them determinative of the result here. The State cites a number of cases in support of its position, generally suggesting that the officers’ actions were reasonable under Terry v. Ohio, 392 U.S.1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Terry does not set out standards under the Fifth Amend ment. Rather, it governs when an officer may reasonably detain someone without violating Fourth Amendment rights. “[T]he Fourth Amendment inquiry is not the same as, nor does it ultimately decide, the question of whether there was custody under the Fifth Amendment.” In re I.J., 906 A.2d 249, 257 (D.C. App. 2006). Accord U. S. v. Ali, 68 F.3d 1468, 1473 (2d Cir. 1995); U. S. v. Smith, 3 F.3d 1088, 1097 (7th Cir. 1993); U. S. v. Perdue, 8 F.3d 1455, 1464 (10th Cir. 1993); U. S. v. Acosta, 363 F.3d 1141, 1148-50 (11th Cir. 2004). The Kansas Supreme Court has recognized the distinction between the Fifth Amendment analysis needed to determine questions under Miranda and the Fourth Amendment analysis needed to determine the lawfulness of an investigatory detention. State v. Hill, 281 Kan. 136, 142, 130 P.3d 1 (2006) (distinguishing cases that apply Fifth Amendment analysis when deciding a Fourth Amendment detention issue). We therefore find the cases cited by the State unpersuasive as arguments against the Miranda analysis that we have outlined here. We conclude that whether Bordeaux was in handcuffs or not, he was in custody at the time that he was asked about the coat. Bordeaux Was Interrogated for Miranda Purposes When He Was Asked a Question Admittedly Designed to Tie Him to a Potential Crime. An interrogation requires Miranda warnings only if it consists of “words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 302, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980). Accord State v. Hebert, 277 Kan. 61, 82 P.3d 470 (2004). The State’s brief argues — correctly—that officers knew full well that there was a good chance Bordeaux was up to no good when they found him hiding in the shed. As the State put it, “[U]pon locating Mr. Bordeaux hiding inside of a dark storage shed, the officers had sufficient information to form a reasonable suspicion that a crime had been committed, was being committed[,] or may be committed by Mr. Bordeaux.” The State made that statement in support of its argument that the police had sufficient grounds to detain Bordeaux under Terry standards, but the statement’s import cannot be overlooked when determining whether an interrogation took place here. The owner of a trailer had called police to report a suspicious person lurking along the fence at the edge of the caller’s property, near a storage shed in which he had stored personal properly. Officers found no one suspicious the first time they came in response to that call. The trailer owner called back, however, to report that the person had been sighted a second time. Perhaps after seeing police cars in the area when they first responded, Bordeaux had hidden in an unlighted storage shed. On finding him there, officers had reasonable suspicion that he was hiding from them and that he may have committed a crime (such as burglary or trespass). See State v. Bastian, 37 Kan. App. 2d 156, 161, 150 P.3d 912 (2007) (reasonable suspicion existed to detain person found parked at night under the deck of a home based upon belief that he was a trespasser or was about to commit a crime). Hiding may be considered, along with other circumstances, in determining probable cause to arrest or to detain someone. State v. Sanchez, 137 N.M. 759, 763, 114 P.3d 1075 (N.M. App. 2005) (probable cause for arrest existed when a defendant was found hiding in a shed near the crime scene). The State also notes in its brief that the question about the coat was designed to tie the person found in the shed to the suspicious person reported by the caller. The district court found as a matter of fact that “the officers were focusing upon [Bordeaux] as being the person who might have committed a crime.” The caller had told police of a suspicious man wearing jeans and a black coat. Officer Jones found a black coat, and he asked Bordeaux whether that was his coat because that would tie Bordeaux to the person who had been seen lurking outside the fence. A question specifically designed to tie someone to a suspicious person is certainly so designed to gain incriminating information, especially when the individual being questioned has just been found hiding in a small, dark storage shed where he had no apparent right to be. Our decision does not mean that officers are precluded from asking about weapons or other potentially harmful things that may be on a person during a pat-down. Those sorts of questions are considered part of the physical search itself, not interrogation. See State v. Gerald B., 139 N.M. at 118. But officers do not need to conduct an interrogation as to other potentially incriminating information during the pat-down. In Bordeaux’s case, the question asked of him had nothing to do with potential dangers the officer might encounter during the pat-down. The cases cited by the State on this issue are not on point. Those cases involved statements volunteered or statements that were made as officers took an inventory of property in apparent possession of someone already subject to arrest. See U. S. v. La Monica, 472 F.2d 580, 581 (9th Cir. 1972); State v. Walls, No. 89,231, Kan. App. unpublished opinion (September 26, 2003). Here, the question was asked specifically to tie Bordeaux to the suspect police had been sent to look for. Under Innis, this constituted interrogation. Conclusion Based on the factual findings of the district court, we find that Bordeaux was subjected to custodial interrogation when he was asked about the coat. Miranda warnings were thus required, but none were given. The district court properly sustained the defendant’s motion to suppress his response to the single question he was asked about the coat. We note briefly that the State has also asked us to affirm the district court’s separate ruling denying the defendant’s motion to suppress as to other issues. No issue other than the district court’s granting of the motion to suppress is properly before us on this interlocutory appeal. K.S.A. 22-3603. We therefore may not address the other issues briefed by the State. The judgment of the district court is affirmed.	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McAnany, J.: In May 2004,13-year-old V.D. was walking home from school with her friends L.H. and R.C. A man driving an ice cream truck stopped and offered them ice cream. The truck was decorated with white and black markings similar to those on a cow. The man offered the children free ice cream if V.D. would expose her breasts. V.D. declined. The children later provided a description of the ice cream truck driver that fit Kenneth E. Lowden. On another occasion V.D.’s younger sister, C.D., was walking home when a man similarly described and driving the same kind of ice cream truck made the same proposition. Later that month, J.S., age 13, was propositioned in the same manner by a similarly described man driving the same kind of ice cream truck. J.S.’s father contacted the owner of the ice cream truck company who identified Lowden as the driver. Lowden denied any involvement and claimed that another driver fit the children’s description. The children were shown a photo lineup that included pictures of both Lowden and the other driver. J.S. was unable to identify the perpetrator; but V.D., C.D., and L.H. each identified Lowden. Lowden did not testify at trial but argued mistaken identity. He was convicted of two counts and acquitted on a third count of aggravated indecent solicitation of a child in violation of K.S.A. 21-3511(a). Aggravated indecent solicitation of a child is a sexually violent crime. K.S.A. 22-3717(d)(2)(G). Based on Lowden s prior conviction in 1970 for solicitation of a minor, the court classified Lowden as a persistent sex offender and imposed a 76-month sentence for the base conviction of aggravated indecent solicitation of a child and a concurrent 38-month sentence for his second conviction. Both Lowden and the State appeal. Lesser Included Offense Lowden argues that the district court violated his right to due process by fading to instruct the jury on the lesser included offense of indecent solicitation of a child. Lowden failed to request such an instruction. Thus, we use the clearly erroneous standard, but only if we first determine there was error in not so instructing the jury. See State v. Simmons, 282 Kan. 728, 741, 148 P.3d 525 (2006). The sole difference in the relevant portions of the statutes for indecent solicitation of a child and aggravated indecent solicitation of a child is the age of the victim. The ages of Lowden’s victims were not disputed. Indecent solicitation of a child is not a lesser included offense of aggravated indecent solicitation of a child when the age of the child is not in dispute. See State v. Gregg, 226 Kan. 481, 484, 602 P.2d 85 (1979). Thus, the jury had the options of either acquitting Lowden if it believed his defense of mistaken identity, or convicting him of aggravated indecent solicitation of a child as charged. The juiy was not entitled to find him guilty of a lesser-included offense. Persistent Sex Offender Next, Lowden claims the sentencing court’s use of K.S.A. 2005 Supp. 21-4704(j)(l) to double his guidelines sentences for aggravated indecent solicitation of a child violates his rights under Ap prendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Though not raised before the sentencing court, we may properly address this issue for the first time on appeal since it involves a question of law which may affect Lowden s fundamental rights. See State v. Conley, 270 Kan. 18, 30-31, 11 P.3d 1147 (2000). Lowden was sentenced under K.S.A. 2005 Supp. 21-4704(j)(l) which requires the sentencing court to double the presumptive imprisonment term of a persistent sex offender. K.S.A. 2005 Supp. 21-4704(j)(2) defines a persistent sex offender to include a person convicted in Kansas of a sexually violent crime as defined in K.S.A. 22-3717. K.S.A. 22-3717(d)(2) identifies 11 different criminal offenses as sexually violent crimes, including indecent solicitation of a child (K.S.A. 21-3510), aggravated indecent solicitation of a child (K.S.A. 21-3511), and sexual exploitation of a child (K.S.A. 21-3516). At sentencing, Lowden s criminal history was found to include a prior felony conviction in 1970 for solicitation of a minor in violation of G.S. 1949, 38-711 (1961 Supp.). In order to constitute a felony, Lowden’s 1970 conviction must have involved a child under the age of 15 years, and Lowden must have (1) accosted, enticed, or solicited the child to induce or force the child (a) to commit an immoral act or (b) to submit to an act of sexual intercourse, an act of gross indecency, or any other act of depravity; or (2) Lowden must have suggested to the child any of the foregoing acts. When we examine the crimes involving children that now constitute sexually violent crimes as defined by K.S.A. 22-3717, we do not find any that makes specific reference to enticing a child to commit “an immoral act” or to submit to an “act of depravity.” On the other hand, G.S. 1949, 38-711 (1961 Supp.), under which Low-den was convicted in 1970, criminalizes these activities. Lowden’s 1970 conviction was for solicitation of a minor. This begs the question: Solicitation to do what? G.S. 1949, 38-711 (1961 Supp.) criminalized the solicitation of a child for various activities, some of which may not have been sexual in nature. Soliciting a child to engage in an immoral act covers a broad range of possible conduct. Depravity has been defined as a corrupt act or practice or an im pairment of virtue and moral principles. To pour gasoline on a sleeping vagrant and set him ablaze, for example, is surely an act of depravity. However, there may be no sexual aspect to so vicious a crime. In using Lowden’s prior conviction the sentencing court was required to go beyond the mere fact of this conviction to make the factual finding that this conviction involved sexually motivated conduct. In our Supreme Court’s recent decision in State v. Allen, 283 Kan. 372, 153 P.3d 488 (2007), Allen was convicted of aggravated indecent liberties with a child pursuant to K.S.A. 2004 Supp. 22-3717(d)(2)(B). Aggravated indecent liberties with a child is defined as a sexually violent crime. Allen had a prior juvenile adjudication for aggravated incest. One method for characterizing Allen as a persistent sex offender would be to show that Allen’s aggravated incest conviction constituted a prior conviction for a sexually violent crime as defined by K.S.A. 22-3717. See K.S.A. 2004 Supp. 21-4704(j)(2). However, at the time of Allen’s sentencing aggravated incest was not one of the enumerated sexually violent crimes in K.S.A. 22-3717(d)(2). Since that method of establishing that Allen was a persistent sex offender was unavailable, the sentencing court focused on K.S.A. 2004 Supp. 22-3717(d)(2)(L), which expanded the definition of a sexually violent crime to include “any act which at the time of sentencing for the offense has been determined beyond a reasonable doubt to have been sexually motivated.” The sentencing court determined that Allen’s crime of aggravated incest must have been sexually motivated, thereby providing a basis for sentencing him as a persistent sex offender. On appeal, the Supreme Court vacated Allen’s sentence, stating: “In order to conclude that Allen was a persistent sex offender, the trial court had to make a determination beyond a reasonable doubt that Allen’s 1987 aggravated incest adjudication was sexually motivated. Under Apprendi and Gould, ‘other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ Apprendi. 530 U.S. at 490.” Allen, 283 Kan. at 379. Aggravated incest, which was at issue in Allen, is defined in K.S.A. 21-3603 to include not only engaging in sexual relations with a person age 16 to 18 who is related to the offender in the manner described in the statute, but also the mere act of marriage with such a person. Thus, Allen’s crime could have been the mere act of marriage, which, as evidenced by the practices in some social groups, may not necessarily be sexually motivated. To establish that Allen’s prior crime was sexually motivated takes more than a simple showing of his conviction, and that chasm between the fact of conviction and the fact that the crime was sexually motivated can be bridged only by the unanimous finding of a jury, not by the findings of the sentencing judge. The plain reading of Apprendi and Allen limits the sentencing court’s consideration to the fact of Lowden’s prior conviction. That fact alone, his prior conviction for solicitation of a minor, is not enough to establish that he is a persistent sex offender. To establish that Lowden is a persistent sex offender requires a second fact which the sentencing court sought to establish on its own and in a manner contrary to the holding in Apprendi. Accordingly, we are required to vacate Lowden’s sentence and remand for resentencing consistent with Apprendi and Allen. This outcome renders moot the issues raised by the State in its cross-appeal. See State v. Aleman, 16 Kan. App. 2d 784, 786, 830 P.2d 64, rev. denied 251 Kan. 940 (1992). Therefore, the cross-appeal is dismissed. Lowden’s convictions are affirmed. His sentences are vacated, and the case is remanded for resentencing. The cross-appeal is dismissed as moot.	[ -16, -8, -20, -17, 11, 97, 58, 54, 5, -93, 119, 83, -21, -34, 12, 115, -97, 101, 85, 40, -103, -73, 39, -64, -2, -37, -7, -33, -73, -49, 108, -28, 11, 112, -54, 93, 102, 74, -83, -110, -122, 5, -72, -46, 19, 2, 36, 107, 75, 15, 49, -66, -77, 42, 28, -61, 43, 108, -39, -67, -64, -11, -9, 23, -33, 18, -93, 36, -68, 13, -8, 46, -104, -103, 32, -24, 59, -122, -126, -28, 47, -87, -119, 32, 114, 39, -119, -58, -67, -120, 63, 127, -115, -89, -100, 120, 3, 100, -73, 94, 48, 22, 43, 120, -34, 77, 31, 116, -119, -61, 20, -111, -51, -80, 22, 57, -5, -99, 18, 101, -49, -74, 84, 86, 112, -45, 78, -89 ]
Bukaty, J.: David C. Moore was convicted of an aggravated weapons violation under K.S.A. 21-4202 and K.S.A. 2006 Supp. 21-4201(a)(2) for carrying a “dangerous knife” concealed on his person. In this direct appeal, he raises three alternative issues. He first argues the knife in question was a “pocket knife” under the statute and not a prohibited item. He next urges that the term “dangerous knife” is unconstitutionally vague. Finally, he contends the district court erred in determining the knife was dangerous. We find against Moore on all issues and affirm. Wichita police stopped Moore for a traffic infraction and arrested him for a suspended driver’s license and outstanding warrants. Officers then searched Moore and found on his person an item in his back left pocket that was both a hair comb and a knife with a 3.5-inch serrated blade. The State specifically charged Moore with the aggravated weapons violation for carrying a concealed dangerous knife within 5 years of his release from imprisonment for a felony. Moore filed a motion to dismiss, arguing that the knife he carried did not fit within the definition of a dangerous knife under K.S.A. 2006 Supp. 21-4201(a)(2). The district court denied the motion and found there was a factual question as to whether the knife was a dangerous knife or a dangerous weapon under the statute. The parties submitted the case to the district court on stipulated facts. They stipulated that Moore was carrying the knife concealed on his person and that he had been convicted of a person felony that had not been expunged or pardoned. The sole issue then before the court boiled down to whether the knife was a dangerous knife. After viewing the knife along with a detective’s affidavit regarding the arrest plus the journal entry from Moore’s previous conviction, the district court heard argument from the parties. It then found that the knife was indeed a dangerous knife and that Moore was guilty of the aggravated weapons violation. Later the court sentenced him to 12 months’ probation, with an underlying prison term of 9 months. The portions of K.S.A. 2006 Supp. 21-4201 relevant to this appeal read as follows: “(a) Criminal use of weapons is knowingly: (2) carrying concealed on one’s person, or possessing with intent to use the same unlawfully against another, a dagger, dirk, billy, blackjack, slungshot, dangerous knife, straight-edged razor, stiletto or any other dangerous or deadly weapon or instrument of like character, except that an ordinary pocket knife with no blade more than four inches in length shall not be construed to be a dangerous knife, or a dangerous or deadly weapon or instrument.” On appeal, Moore first argues that the district court should have found as a matter of law that his knife was a pocket knife under the statutory exception and therefore not a dangerous knife. The State argues Moore did not make this argument to the court and is precluded from doing so now. It urges that he only argued the knife was not dangerous. We note that in issuing its decision, however, the district court did mention that Moore’s knife was not a pocket knife that was exempt from the proscriptions in the statute. While generally issues not raised before the trial court cannot be raised on appeal, there are several exceptions to the rule. One of those is the situation where the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case. State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007). Here, there are no disputed factual issues. There is no dispute about the description of the knife, that Moore was carrying it concealed on his person, or that he had previously been convicted of a felony. The knife is part of the record and we have viewed it. The only question is whether such a knife amounts to an ordinaiy pocket knife. Essentially, the question requires statutory interpretation, i.e., the meaning of that term. This is a question of law over which an appellate court has unlimited review. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). We will address the argument on that basis. Our appellate courts have stated the guidelines for statutory construction on many occasions. The primary rule is that the intent of the legislature governs if that intent can be ascertained. We presume the legislature expressed its intent through the statutory language. Ordinaiy words are given their ordinary meanings, without adding something that is not readily found in the statute or eliminating that which is readily found therein. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007); State v. McElroy, 281 Kan. 256, 262, 130 P.3d 100 (2006). Generally, criminal statutes must be strictly construed in favor of the accused, and any reasonable doubt as to the meaning of the statute is decided in favor of the accused. Nevertheless, the rule of strict construction is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Snow, 282 Kan. 323, 340-41, 144 P.3d 729 (2006). Here, the statute does not define the term “ordinary pocket knife,” nor does the legislative history of the statute shed any further light on the meaning. Webster’s Third New International Dictionary 1747 (6th ed. 1993) defines “pocketknife” as “a knife with a blade folding into the handle to fit it for being carried in the pocket.” “Ordinary,” as used here, is defined as “occurring or encountered in the usual course of events: not uncommon or exceptional: not remarkable: ROUTINE, NORMAL.” Webster’s Third New International Dictionary 1589 (6th ed. 1993). Other states have set forth these or similar definitions in construing similar statutes. See In re Luke W., 88 Cal. App. 4th 650, 655-56,105 Cal. Rptr. 2d 905 (2001) (A “pocketknife is most commonly thought of as one in which the blade folds into its attached handle.”); State v. Harmon, 800 A.2d 1289, 1292 (Del. 2002) (Del aware statutes define “ ‘ordinary pocketknife’ ” as “ ‘a folding knife having a blade not more than 3 inches in length.’ ”); L.B. v. State, 700 So. 2d 370, 372 (Fla. 1997) (A “ ‘common pocketknife’ ” is a “ ‘type of knife occurring frequently in the community which has a blade that folds into the handle and that can be carried in one’s pocket.’ ”). The knife in this case has a 3.5-inch straight serrated blade, similar to a steak knife. The blade is concealed in a comb that is about 7 inches long. The blade does not fold into the comb; it is sheathed in the comb. The handle of the comb also serves as the handle of the knife. While a person certainly can carry this item in his or her pocket, the dictionary definitions and case law cited above set out more characteristics than this for a pocket knife. The knife here has no blade that folds into the handle. It certainly is not the type of knife one encounters in the community commonly or routinely. The district court did not err in concluding tins knife was not an ordinary pocket knife under the statute that would be legal to carry concealed on one’s person. Moore next argues that the term “dangerous knife” in K.S.A. 2006 Supp. 21-4201(a)(2) is unconstitutionally vague and, therefore, his conviction under the statute violated his due process rights under the Fourteenth Amendment to the United States Constitution. The State responds again that Moore failed to raise this issue below and is now precluded from raising it on appeal. As to the merits, it urges that the term is not vague when read in the context of the statute. As we stated previously, issues not raised below may be considered on appeal if the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case. Additionally, another exception exists where consideration of the theory is necessary to serve the ends of justice or to prevent the denial of fundamental rights. Shopteese, 283 Kan. at 339. Because this issue falls within these two exceptions, we will address the merits of Moore’s argument. In reviewing a constitutional challenge to a statute, we presume the statute is constitutional and resolve all doubts in favor of the statute’s validity. A court has a duty to uphold a statute under attack rather than defeat it, unless it clearly appears that the statute violates the Constitution. We will construe a statute as constitutionally valid if there is any reasonable way to do so, and we will not invalidate it unless the constitutional infringement is clear beyond a reasonable doubt. State v. Brown, 280 Kan. 898, 899, 127 P.3d 257 (2006). A two-part test exists to determine whether a statute is unconstitutionally vague. First, the court determines whether the statute conveys a sufficiently definite warning of the proscribed conduct considering common understanding and practice. Second, the court determines whether the statute adequately guards against arbitrary and discriminatoiy enforcement. State v. Rupnick, 280 Kan. 720, 737, 125 P.3d 541 (2005). “ ‘A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.’ Kansas has long held, however, that a statute will not be declared void for vagueness and uncertainly where it employs words commonly used, previously judicially defined, or having a settled meaning in law. [Citation omitted.]” City of Wichita v. Hackett, 275 Kan. 848, 853-54, 69 P.3d 621 (2003). Here, neither the statute nor Kansas appellate courts have provided a specific definition of “dangerous knife.” However, the language of the statute suggests that a dangerous knife is a type of “dangerous weapon or deadly weapon”: “[C]ariying concealed on one’s person ... [a] dangerous knife ... or any other dangerous or deadly weapon or instrument of like character.” (Emphasis added.) K.S.A. 2006 Supp. 21-4201(a)(2). Corpus Juris Secundum states in very straightforward language: “A dangerous or deadly weapon is a weapon likely to produce death or serious injury when operable.” 94 C.J.S., Weapons § 2. Also, while doing so in a context other than the statute involved here, our Supreme Court has previously defined “deadly weapon” as “an instrument which, from the manner in which it is used, is calculated or likely to produce death or serious bodily injury.” State v. Bowers, 239 Kan. 417, 425, 721 P.2d 268 (1986). The part of the statute under which Moore was convicted does not set out any particular use of a knife as an element of the offense. It simply prohibits possession of a knife if it is dangerous and concealed on one’s person. The language in Bowers, however, concerning the likelihood of death or serious bodily injury provides some guidance in determining whether a knife is dangerous. When this language is combined with the simple definition in Corpus Juris Secundum, it is not a great leap, nor difficult, for a person of common intelligence to conclude that a dangerous knife is therefore a “knife that is likely to produce death or serious injury when used as a weapon.” A person of common intelligence would also understand that this could include a kitchen knife or a work knife. See State v. Sanders, 263 Kan. 317, 330, 949 P.2d 1084 (1997) (kitchen knife would fit the definition of dangerous knife); State v. Lassley, 218 Kan. 752, 752-55, 545 P.2d 379 (1976) (work knife with 6-inch blade is a dangerous knife). Applying these notions to the instrument found on Moore, a person of common intelligence would understand that a 3.5-inch serrated blade, “very much like a steak knife,” would qualify as a dangerous knife under this definition. As previously stated, we have viewed the knife and it indeed does possess a sharp point and blade. It certainly is not a dull butter or putty knife designed for the purpose of merely spreading a substance as opposed to cutting, slicing, or puncturing something. Moore cites the decision in Bradvica v. State, 104 Nev. 475, 477, 760 P.2d 139 (1988), in which the Nevada Supreme Court held that the term “dangerous knife” was unconstitutionally vague. The court, however, did not provide much reasoning or analysis to explain this conclusion. Also, unlike our Kansas statute, Nevada’s statute contained no pocket knife exception. The weapon at issue in Bradvica was “a small pocket knife” that had a blade 25/ie inches long which “[sprung] open from the handle by pressing a switch.” 104 Nev. at 476-77. The Nevada Supreme Court’s repeated references to the knife as “small” or a “pocket knife,” and its comparison of the knife to a “Boy Scout penknife,” suggest that the court was concerned that an “ordinary pocket knife” could be considered a “dangerous knife” under the statute and lead to criminal liability. 104 Nev. at 477. The Kansas statute contains an explicit exception for such a knife. Also, as we stated above, our statute provides some useful context for determining whether an instrument is a dangerous knife. For these reasons, we find Bradvica unpersuasive. The term “dangerous knife” as used in K.S.A. 2006 Supp. 21-4201(a)(2) is not unconstitutionally vague. Finally, Moore argues the district court erred in finding that the knife at issue was a dangerous knife. An appellate court has de novo review of cases decided on the basis of documents and stipulated facts. Our Supreme Court has also applied this rule in the criminal context. State v. Brown, 272 Kan. 843, 845, 35 P.3d 910 (2001). Much of what we previously stated applies to Moore’s argument. One look at the knife he was carrying readily conveys the notion that it can easily cause great bodily harm or death. Even with its relatively short blade of 3.5 inches, it has a very sharp point and edge. It can easily puncture, cut, or slice deeply into another person. It, therefore, is dangerous, and the statute prohibits one from carrying it concealed on his or her person. We also note that this instrument is disguised to appear as a common, harmless, and innocuous grooming tool. This presents additional safety concerns to the public over and above its sharp and pointed blade. Moore’s argument that the instrument is no more dangerous than a pocket knife fails for the obvious reason the legislature has seen fit to provide a specific, limited exception for ordinary pocket knives without regard to whether they are dangerous. It is the legislature’s prerogative to provide such limited exceptions, and “[i]t is for the legislature and not tire courts to ‘draft’ an exception to the statute.” See Kansas Dept. of SRS v. Paillet, 270 Kan. 646, 654, 16 P.3d 962 (2001). The district court did not err in determining that Moore’s knife was a dangerous knife. Affirmed.	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McAnany, J.: In this appeal we are asked to review an April 14, 2006, order of the Workers Compensation Board (Board). The first issue, the timeliness of the employer’s appeal to the Board, turns on whether a hearing before the administrative law judge (ALJ) was a preliminary hearing and order or a final hearing and order. If the ALJ’s Februaiy 2000 order was a final order, then the employer’s November 2005 appeal to the Board was untimely. However, if the ALJ did not render a final order until November 2005, then the appeal was timely. The remaining issues involve whether the claimant is entitled to benefits for her lower back injuiy and, if so, who should be responsible for them: the employer or the Kansas Workers Compensation Fund (Fund). Though the many factual details that make up the history of this case are well known to the parties, a brief overview is in order. Nancy A. Quandt had a prior histoiy of injury and treatment to her neck and knee when, in 1993, she slipped and fell while working at IBP, Inc. (IBP). She applied for a hearing, claiming she suffered injuries to her neck and knee. After receiving treatment for her injuries, she was awarded compensation in 1997. The award was assessed against the Fund since IBP hired Quandt knowing of her preexisting neck and knee conditions. The Board affirmed the award. In 1999, Quandt applied for review and modification of the 1997 final award in order to provide benefits for a lower back condition. In Februaiy 2000, the ALJ conducted a hearing to determine whether Quandt’s lower back injury resulted directly from the accident or from an altered gait she developed as a result of her knee injuiy. Following that hearing, she was awarded total temporary disability compensation and medical treatment benefits. This time the ALJ did not impose liability on the Fund pursuant to K.S.A. 44-567(a) because Quandt did not have a preexisting back condition and IBP did not have any requisite knowledge of her back condition. The ALJ assessed all of the liability for the lower back treatment to IBP. IBP did not immediately appeal the ALJ’s order to the Board. Numerous hearings followed. The Fund appealed to the Board. The Board remanded the case to the ALJ for a hearing on Quandt’s entitlement to post-award benefits and the Fund’s liability. The Fund appealed the Board’s decision to this court. Our court dismissed the appeal for lack of jurisdiction. After further hearings following the Board’s remand, the ALJ determined in November 2005 that Quandt’s job-related accident and the resulting knee injury aggravated a preexisting condition in her back. Again, the ALJ found that the Fund was not hable since IBP was not aware of Quandt’s back problem when it hired her. IBP appealed to the Board. On further review, the Board, on April 14, 2006, found that IBP’s appeal was timely and modified the award by assessing all liability for Quandt’s lower back condition to the Fund rather than IBP. The Fund now appeals, claiming that the hearing and order of Februaiy 2000 were final and IBP’s appeal to the Board was untimely. The Fund claims that IBP should have appealed to the Board in 2000. Instead, IBP waited to appeal until after the ALJ’s decision in November 2005. The Fund also claims the Board erred in assessing all liability for Quandt’s lower back injury to the Fund. IBP cross-appeals, claiming Quandt was barred from seeking post-award compensation since she was aware of her back injury at the time of the initial award and failed to make a claim for it. IBP also contends the ALJ could not reallocate liability for Quandt’s lower back injury to IBP when the ALJ had already assessed all liability for Quandt’s knee and neck injuries to the Fund. The February 2000 Hearing and Order: Preliminary or FinalP The Fund claims IBP’s appeal to the Board in November 2005 was untimely since the ALJ’s February 11, 2000, order was a final order. On the other hand, IBP contends that the Februaiy 11, 2000, order was a preliminary hearing order which IBP could not have appealed pursuant to K.S.A. 44-551(b) (now K.S.A. 2006 Supp. 44-551[i]) until it became final in November 2005. K.S.A. 44-534a(a)(l) permits an employer or employee to seek a preliminary hearing regarding medical treatment and the payment of temporaiy total disability compensation before the issu anee of a final award. K.S.A. 2006 Supp. 44-551(i)(l) permits appeals to the Board of preliminary awards under K.S.A. 44-534a. However, K.S.A. 44-534a(a)(2), which describes the summary nature of preliminary hearings, only provides for Board review of what it describes as jurisdictional issues, i.e., “a disputed issue of whether the employee suffered an accidental injury, whether the injury arose out of and in the course of the employee’s employment, whether notice is given or claim timely made, or whether certain defenses apply.” K.S.A. 44-534a(a)(2) further explains: “Except as provided in this section, no such preliminary findings or preliminary awards shall be appealable by any party to the proceedings, and the same shall not be binding in a full hearing on the claim, but shall be subject to a full presentation of the facts.” As noted in Rivera v. Cimarron Dairy, 267 Kan. 865, 869, 988 P.2d 235 (1999), “[t]he purpose of foreclosing [an] appeal from a preliminary award or order is to afford the injured employee immediate access to medical and necessary living expenses pending a full hearing.” Thus, a preliminary award of medical treatment and temporary total disability benefits is an award pending the conclusion of a full hearing on the claim and is not appealable. K.S.A. 44-534a(a)(l); Rivera, 267 Kan. at 869. K.S.A. 44-528 permits modification of an award when the claimant’s condition changes after the original hearing and award. See Brandt v. Kansas Workers Compensation Fund, 19 Kan. App. 2d 1098, Syl. ¶ 2, 880 P.2d 796, rev. denied 256 Kan. 994 (1994). An award under K.S.A. 44-528 modifying an earlier award of benefits is an entirely new award separate and distinct from the one it modifies. See Ratzlaff v. Friedeman Service Store, 200 Kan. 430, 433, 436 P.2d 389 (1968), overruled on other grounds Ferrell v. Day & Zimmerman, Inc., 223 Kan. 421, 573 P.2d 1065 (1978); Brandt, 19 Kan. App. 2d at 1101. Thus, the same legal principles controlling an initial award of compensation generally apply to an award under the modification and review statute. Ratzlaff, 200 Kan. at 433. While these principles seem rather straightforward, their application is complicated by the fact that the ALJ did not identify whether the hearing on February 4,2000, and his subsequent order were preliminary or final. The nature of the hearing and tire order that followed is an issue of law over which our review is unlimited. See Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006). First, in Quandt’s demand letter to the Fund which preceded her hearing application, she stated she would apply for a preliminary hearing if her demands were not met. When Quandt applied for review and modification of her 1997 award, she did so under the authority of several provisions of the Workers Compensation Act, including K.S.A. 44-534a, which relates to preliminary hearings. At the beginning of the February 2000 hearing, counsel for Quandt stated that the issue of attorney fees remained, but that it was not necessary to resolve it until after future depositions were taken. No medical evidence was introduced at the hearing. Neither Dr. Patrick Bowman, who performed surgery on Quandt’s back, nor Dr. David Kassmeier, the chiropractor who initially treated Quandt for her back condition, had rendered an opinion or testified regarding Quandt’s back condition. Kassmeier was deposed almost 1 year after the hearing. Bowman was deposed in January 2003, almost 3 years after the hearing. The only evidence presented at the hearing was Quandt’s testimony regarding when her lower back condition developed and whether IBP was on notice of it. As recognized in Hampton v. Professional Security Co., 5 Kan. App. 2d 39, 42, 611 P.2d 173 (1980), the evidence presented here was “consistent with the limited purpose of the preliminary hearing.” The preliminary nature of the ALJ’s two-page order is apparent when it is compared to Quandt’s 1997 final award. The six-page 1997 award provided a detailed narrative of the record, stipulations, issues, and findings of fact; and it comprehensively dealt with all issues, including attorney fees and costs. The ALJ’s February 2000 order contained no statement of findings and conclusions. It simply awarded Quandt ongoing temporary total disability, the type of relief granted under K.S.A. 44-534a at a preliminary hearing. There was no award of permanent partial disability compensation. The order did not address the numerous questions the ALJ had directed to Dr. Eric Nye, the independent medical examiner. The order did not address the issue of attorney fees, which apparently was a point of contention. The purpose of a preliminary hearing is to make a summary determination whether the claimant should be receiving temporary total compensation and medical treatment under the Act. Shain v. Boeing Military Airplanes, 22 Kan. App. 2d 913, 915, 924 P.2d 1280 (1996). That is precisely what the ALJ did in his order following the February 2000 hearing. The Fund’s reliance on Bryant v. U.S.D. No. 259, 26 Kan. App. 2d 435, 992 P.2d 808 (1999), is misplaced. Bryant was awarded compensation for her work-related back injury. The award made provision for future medical care, though it did not designate an authorized physician. Bryant sought reimbursement from her employer for medical bills related to further treatment of her back. When she was told that her employer considered this additional care to be unauthorized medical, she applied for a preliminary hearing to have an authorized medical provider designated for her ongoing back problem. This court ultimately concluded that the order that followed was not a preliminary order. In Bryant, the hearing was to enforce the award in the final order for her back injury, not for benefits relating to a condition not considered in the final order. The hearing in Bryant ended the matter. There was no need for further hearings before the ALJ. Not so in Quandt’s case. There remained disputed issues to be resolved by the ALJ after the award of temporary disability benefits. Bryant does not control. While the hearing in Bryant was final in nature, the hearing at issue before us was not. The ALJ’s February 11, 2000, order was not a final order. Accordingly, the Board did not err in finding IBP’s appeal to be timely. Quandt’s Lower Back Condition: A Consequence of Her Knee Injury? The Board found that Quandt’s back condition was caused by her altered gait which, in turn, was caused by the knee injury she suffered in the accident. The Fund argues that neither of the doctors relied upon by the Board, Drs. Nye and Bowman, could un equivocally opine that Quandt’s lower back problems were caused by her altered gait. Thus, the Fund claims, IBP failed to establish this causal connection. Our factual review is limited to determining whether the Board’s findings of fact are supported by substantial competent evidence when viewed in the light most favoring the prevailing party. In doing so, we do not reweigh the evidence or determine the credibility of the witnesses. Neal v. Hy-Vee, Inc., 277 Kan. 1, 16-17, 81 P.3d 425 (2003). The Board relied upon the opinions of Dr. Bowman, who began treating Quandt in September 1998. Quandt did not develop significant lower back symptoms until January 1999. Bowman opined that Quandt’s limp aggravated her lower back condition. Though he could not quantify this aggravating factor, he believed there was a relationship between Quandt’s altered gait and the progression of her lower back symptoms. The Board also cited the opinions of Dr. Nye, who conducted an independent medical examination in November 1999. Nye reported to the ALJ that both the 1993 accident and Quandt’s altered gait aggravated her lower back. Though not cited by the Board, the testimony from Dr. Kessmeier supports the conclusion that Quandt’s limp that resulted from the accident aggravated her lower back condition. Our task is not to reweigh the evidence. There is ample evidence upon which a rational factfinder could conclude that Quandt’s altered gait aggravated and rendered symptomatic her lower back condition. The Board did not err in concluding that Quandt’s lower back condition was a result of her altered gait. Liability of the Fund for Quandt’s Back Condition The Fund contends the Board erred in finding it responsible under K.S.A. 44-567(b) for Quandt’s lower back condition since IBP failed to show that it had prior knowledge of her back condition. Resolution of this issue involves statutory interpretation, a matter of law. Under the doctrine of operative construction, the Board’s interpretation of the law as applied to disputed facts is entitled to judicial deference. See Graham v. Dokter Trucking Group, 284 Kan. 547, 554, 161 P.3d 695 (2007). If there is a rational basis for the Board’s interpretation, we should uphold it. However, the Board’s determination on questions of law is not conclusive and, though persuasive, is not binding on us. The Fund bears the burden of proving the impropriety of the Board’s interpretation of the statutes. See Foos v. Terminix, 277 Kan. 687, 692-93, 89 P.3d 546 (2004). Subject to certain conditions which do not apply here, K.S.A. 44-567(a) provides that an employer who knowingly employs or retains a handicapped employee is relieved of liability for compensation awarded or is entitled to an apportionment of the costs paid from the Fund. For the statute to apply, IBP must prove either that it had knowledge of the preexisting impairment at the time it hired Quandt or that it retained Quandt as an employee after learning of her impairment and before the accident. See K.S.A. 44-567(b); Guerrero v. Dold Foods, Inc., 22 Kan. App. 2d 53, 58, 913 P.2d 612 (1995). Quandt went to work for IBP in 1985. She reported on her job application that she had carpal tunnel syndrome, prior neck surgery, and a bad knee. She had experienced several injuries in the past, resulting in knee surgeries, a knee replacement, and a cervical fusion. She did not report any prior back problem. She had not suffered any injury to her lower back and had never seen a doctor for treatment of her lower back before working for IBP. Quandt’s claim arose out of an incident on March 26, 1993, in which she slipped on a piece of fat and fell on her knee. The fall reinjured her knee and aggravated her cervical condition. She first experienced discomfort in her lower back about a month after the accident. Quandt continued to work at IBP until May 1993. She eventually required further neck surgery. In Quandt’s original award in 1997, her benefits were assessed against the Fund since IBP had hired Quandt with knowledge of her preexisting neck and knee conditions. The issue of responsibility for benefits for Quandt’s back condition arose in the review and modification proceedings. Since an award made in the review and modification proceedings under K.S.A. 44-528 constitutes an entirely new award (see Ratzlaff, 200 Kan. at 433; Brandt, 19 Kan. App. 2d at 1101), the burden remained on IBP to establish a basis for shifting responsibility for Quandt’s back injury to the Fund. While IBP was able to shift liability to the Fund for Quandt’s neck and knee injuries by showing that it hired Quandt knowing of her prior neck and knee injuries, to shift the responsibility to the Fund for Quandt’s new back award, IBP was required to make a similar showing. IBP made no such showing. IBP’s reliance on Jackson v. Stevens Well Service, 208 Kan. 637, 493 P.2d 264 (1972), does not advance its cause. The court stated in Jackson that “every natural consequence that flows from the [compensable] injury, including a new and distinct injury, is compensable if it is a direct and natural result of a primary injury.” 208 Kan. at 643. Jackson did not involve the Fund. The Fund’s liability for Quandt’s back injury is derivative and only becomes primary upon IBP satisfying the requirements of K.S.A. 44-567. See Brandt, 19 Kan. App. 2d at 1100. The principle expressed in Jackson imposes liability on IBP for Quandt’s back injury unless IBP can establish grounds for shifting that liability to the Fund. Here, the Board assessed liability for Quandt’s back condition to the Fund when there had been no showing that IBP satisfied the hability-shifting requirements of K.S.A. 44-567. Accordingly, there is no rational basis for its conclusion that the Fund is hable for Quandt’s lower back condition. We must, therefore, reverse the Board’s order imposing liability for Quandt’s lower back condition on the Fund. Is Quandt’s Back Claim Compensable Since It Was Not Included In Her Original Claim? Finally, IBP argues that Quandt was not entitled to compensation for her lower back injury since she was aware of her back injury before her original award in 1997 and made no claim for it. Whether an injury is compensable is a question of law over which we exercise unlimited review. Coleman v. Swift-Eckrich, 281 Kan. 381, 383, 130 P.3d 111 (2006). Since there are no Kansas cases directly on point, IBP relies on cases from other jurisdictions which stand for the proposition that when a claimant knows a condition is work-related at the time an action is pending before the ALJ, failure to raise that condition during those proceedings precludes the claimant from later raising it in a review and modification proceeding. See Scroggins v. Industrial Commission, 123 Ariz. 35, 597 P.2d 188 (Ct. App. 1979); Slone v. Jason Coal Co., 902 S.W.2d 820 (Ky. 1995); Finance Oil Co. v. James, 188 Okla. 372, 109 P.2d 818 (1941). Crucial to the decisions in Finance Oil and Scroggins is the fact that the worker’s injury in each case was readily apparent from the time of the accident and was ongoing throughout the time the worker’s claim was pending. On the other hand, while Quandt experienced some minor discomfort in her back a month after the accident in 1993, it was not enough to cause her to seek medical attention. Her back problem remained dormant for many years after the accident. Quandt’s knee injury from the accident caused her to limp. Her altered gait over time aggravated and rendered active her dormant lower back condition. Quandt’s original award was in 1997. It was not until late 1998 that her back condition manifested itself to the point of requiring treatment. The evidence suggests that but for Quandt’s altered gait, the pain in her lower back would have continued to be inconsequential. Quandt’s facts are clearly distinguishable from those in Finance Oil and Scroggins. In the third case cited by IBP, Slone, the employee filed both workers compensation and social security disability claims following his injuries. He claimed a mental condition as one of the grounds for his social security claim, but did not raise the issue of his mental condition in his workers compensation claim. Thus, as in Finance Oil and Scroggins, the worker was well aware of his mental condition when he pursued his workers compensation claim. Slone was distinguished in Ford v. Keener, 2004 WL 1176259, at *1 (Ky. App. 2004) (unpublished opinion). In Ford, the employee suffered from depression shortly after his injury, but the condition did not progress to the point of requiring treatment until 6 years later. While the employee had some depression at the time of the original award, there was no medical evidence that he had a psychiatric condition that needed medical treatment or warranted an impairment rating. Quandt’s case fits the mold of Ford rather than Slone. Accordingly, the Board did not err in granting Quandt post-award compensation for her back injury. 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Green, J.: Midwest Crane and Rigging, Inc. (Midwest Crane) appeals from the trial court’s judgment dismissing its declaratory judgment action. Before Midwest Crane filed its judgment action, the Kansas Corporation Commission (the Commission) issued an order to show cause under the Kansas Administrative Procedure Act (KAPA), K.S.A. 77-501 et seq., as to why Midwest Crane should not be sanctioned for refusing to allow an inspection of its cranes. In tire declaratory judgment action, Midwest Crane sought injunctive relief against the Commission and a declaration that it was not subject to oversight by the Commission. The trial court dismissed Midwest Crane’s declaratory judgment action based on lack of subject matter jurisdiction after finding that Midwest Crane had failed to exhaust its administrative remedies. We affirm. The Commission received a complaint from law enforcement that Midwest Crane might be conducting operations that would bring it under the definition of a motor carrier and thus subject to the Commission’s safety regulations. After receipt of the complaint, the Commission issued a request on December 8, 2005, to Midwest Crane to inspect its records and to conduct a compliance review. On January 30, 2006, a special investigator for the Commission attempted to conduct an inspection of Midwest Crane’s premises to determine whether any potential violations of the Commission’s motor carrier safety rules and regulations existed, but Midwest Crane refused access to its premises. On February 17, 2006, the Commission issued an order to show cause to Midwest Crane. The Commission determined that a hearing on the matter was appropriate and allowed Midwest Crane the opportunity to show cause why any action against it would be unwarranted. Simultaneous with the matter pending before the Commission, on March 23, 2006, Midwest Crane filed a verified petition for declaratory judgment and injunctive relief with the District Court of Johnson County in Case No. 06-C-2280. In the petition, Midwest Crane sought a determination that the Commission lacked authority to regulate it because it was not a motor carrier under Kansas law. Moreover, Midwest Crane sought an injunction restraining the Commission from attempting to regulate Midwest Crane. The Commission moved to dismiss the declaratory judgment action for lack of subject matter jurisdiction. The trial court granted the Commission’s motion to dismiss after finding that it lacked subject matter jurisdiction to consider the issues raised in Midwest Crane’s declaratory judgment action. Specifically, the trial court determined that subject matter jurisdiction was lacking because Midwest Crane had failed to exhaust its administrative remedies in the matter pending before the Commission. During the pendency of the declaratory judgment action, the Commission determined in the administrative action that Midwest Crane was a motor carrier and was subject to the jurisdiction of the Commission. On August 16, 2006, Midwest Crane appealed the Commission’s decision to the district court of Shawnee County in Case No. 06-C-1213. This appeal concerned whether Midwest Crane was subject to the jurisdiction of the Commission. On August 11,2006, Midwest Crane timely appealed the District Court’s Johnson County decision. Did the Trial Court Err in Dismissing Midwest Crane’s Declaratory Judgment Action for Failure to Exhaust Administrative Remedies? On appeal, Midwest Crane argues that the trial court erred in finding that it lacked subject matter jurisdiction to consider the issues raised in its declaratory judgment action. Specifically, Midwest Crane contends that it was not required to exhaust its administrative remedies before proceeding with its Chapter 60 declaratory judgment action. Whether a party is required to or has failed to exhaust its administrative remedies is a question of law over which an appellate court’s review is unlimited. Miller v. Kansas Dept. of S.R.S., 275 Kan. 349, 353, 64 P.3d 395 (2003). The Commission initiated its proceeding against Midwest Crane under KAPA. K.S.A. 66-l,129a(a) allows the Commission to initiate proceedings regarding motor carrier economic or safety rules and regulations under KAPA. The Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., is the exclusive remedy for review of agency actions unless the agency is specifically exempted by statute. K.S.A. 77-603(a); K.S.A. 77-606. The Commission has not been specifically exempted. The KJRA has consistently been recognized as the exclusive means of review of an agency action. See, e.g., Schall v. Wichita State University, 269 Kan. 456, 482, 7 P.3d 1144 (2000); Fowles v. State, 254 Kan. 557, 565, 867 P.2d 357 (1994) (affirming the trial court’s grant of summary judgment and stating that the KJRA was the exclusive means to review the Kansas Lottery’s refusal to pay a claim on a lost winning ticket); Farmers Banshares of Abilene, Inc. v. Graves, 250 Kan. 520, 522-23, 826 P.2d 1363 (1992) (affirming the trial court’s dismissal of a Chapter 60 action seeking mandamus and injunctive relief against the Secretary of State on the basis that the plaintiff s exclusive remedy was through the KJRA); Kansas Sunset Assocs. v. Kansas Dept. of Health & Envi ronment, 16 Kan. App. 2d 1, 3, 818 P.2d 797 (1991) (affirming a trial court’s dismissal of a Chapter 60 declaratory judgment action against the Kansas Department of Health and Environment as barred by the plaintiffs failure to comply with the procedural requirements of the KJRA). Midwest Crane relies on Spor v. Presta Oil Co., 14 Kan. App. 2d 696, 798 P.2d 68 (1990), to support its argument that it did not need to exhaust its administrative remedies before pursuing a determination regarding its status as a motor carrier in its declaratory judgment action. In Spor, the court held that a claim for back wages may be brought in court without first exhausting administrative remedies with the Secretary of Human Resources. 14 Kan. App. 2d at 697-98. Nevertheless, Spor is distinguishable from the present case in two important respects. First, the claimants in Spor brought their claim for back wages with the trial court before any matter was brought at the administrative level. Midwest Crane, however, brought its declaratoxy judgment action after the Commission had initiated administrative procedures but before any ruling had been made by the Commission regarding Midwest Crane’s status as a motor carrier. Spor is additionally distinguishable from the present case because the Spor court held that the court and the Secretary of Human Resources had concurrent jurisdiction to hear back wage claims under K.S.A. 44-324(a) and that the claimants had a choice of forum. 14 Kan. App. 2d at 697. On the other hand, no concurrent jurisdiction exists in this case to avoid the KJRA exhaustion provision before going to court. In addition, Midwest Crane relies on Zion Lutheran Church v. Kansas Comm’n on Civil Rights, 16 Kan. App. 2d 237, 240, 821 P.2d 334 (1991), aff'd 251 Kan. 206, 830 P.2d 536 (1992). The Zion court held that a party may institute an action in the trial court to contest the exercise of jurisdiction over it by an administrative agency without first having exhausted all administrative remedies available. The court stated that exhaustion in an agency action was not required if the agency’s exercise of authority was in excess of its jurisdiction or if the agency acted in a manner that was contrary to its statutory grant of authority. 16 Kan. App. 2d at 239. In so holding, the Zion court stated that “ ‘[i]t is a well-recognized ex ception to the rule [of exhaustion of administrative remedies] that judicial review of interlocutory rulings of an administrative agency is proper if the agency has exercised authority in excess of its jurisdiction or acted in some manner that is contrary to its statutory grant of authority.’ [Citations omitted.]” 16 Kan. App. 2d at 239. Midwest Crane relies on Zion to support its contention that the Commission exceeded its jurisdiction in determining that it was a motor carrier. As a result, it was entitled to bring a declaratory judgment action in the trial court to challenge the Commission’s abuse of authority. Zion, however, is distinguishable from the present case because in Zion the Chapter 60 petition was filed in the trial court after the administrative agency had made an interlocutory ruling. Here, however, there were no rulings made by the Commission regarding Midwest Crane’s status as a motor carrier before the filing of the declaratory judgment action. As a result, the exception to exhaustion of administrative remedies, as set out in Zion, is inapplicable in the present case. When the declaratory judgment action was filed, the Commission had simply issued an order to show cause to Midwest Crane. The order required Midwest to come forward and show why it was not subject to the Commission’s oversight. Midwest Crane construes the Commission’s order as “addressing] whether [it] should be sanctioned for refusing to allow an inspection of its cranes.” Nevertheless, the order instead required Midwest Crane to appear and explain why it was not subject to the Commission’s oversight. Without first exhausting administrative remedies that could have granted relief on some ground before going to court, Midwest Crane filed a petition for declaratory judgment in the trial court. Midwest Crane’s action of filing the petition for declaratory judgment violated the exhaustion doctrine. The Commission is charged with the statutory duty to regulate motor carriers. K.S.A. 66-1,108 et seq. K.S.A. 66-1,108(e) defines a “ ‘motor carrier’ ” as “any person operating as a for hire motor carrier or a private motor carrier, and any of their agents, officers, representatives, as well as employees responsible for hiring, supervising, training, assigning or dispatching of drivers and employees concerned with the installation, inspection and maintenance of motor vehicle equipment or accessories or both.” Moreover, K.S.A. 66-1,108(f) defines a “ ‘motor vehicle’ ” as “any automobile, truck, trailer, semitrailer, tractor, motor bus or any other self-propelled or motor-driven vehicle used upon any of the public highways of the state for the purpose of transporting persons or property.” K.S.A. 66-1,108 also sets out definitions of various types of motor carriers, which we need not mention to resolve this appeal. Whether Midwest Crane is a motor carrier and under the jurisdiction of the Commission requires the interpretation of statutes and the consideration of evidence. Under these circumstances, exhaustion of administrative remedies is required. See Dean v. State, 250 Kan. 417, 422, 826 P.2d 1372, cert. denied 504 U.S. 973 (1992) (The interpretation of a statute by an agency was a necessaiy administrative act in implementing the statute, even though a court could later construe the statute at variance with the agency’s interpretation.); Farmers Banshares of Abilene, Inc., 250 Kan. 520, Syl. ¶ 1 (“Interpretation of statute is a necessary and inherent function of an agency in its administration or application of that statute.”). Consequently, because the issue of whether Midwest Crane was a motor carrier required the interpretation of statutes administered by the Commission, exhaustion was required. See Leben, Challenging and Defending Agency Actions in Kansas, 64 J.K.B.A. 22, 38 (June/July 1995). Moreover, in its declaratory judgment action, Midwest Crane sought declaratory relief and an injunction against the Commission. Nevertheless, declaratory and injunctive relief were available through the KJRA when properly invoked. See K.S.A. 77-622(b). Because the forms of relief sought by Midwest Crane were provided for in the KJRA, Midwest Crane’s exclusive remedy was through tire KJRA. See Zarda v. State, 250 Kan. 364, 826 P.2d 1365, cert. denied 504 U.S. 973 (1992). (In concluding that BOTA had the authority to resolve administrative issues, although BOTA had no power to resolve constitutional issues, the court upheld the trial court’s dismissal for failure to exhaust administrative remedies.). The Commission should not be subjected to litigation in the courts until all administrative remedies have been exhausted. See Farmers Banshares of Abilene, Inc., 250 Kan. at 522-23. Therefore, we determine that the trial court properly dismissed Midwest Crane’s declaratory judgment action for failure to exhaust administrative remedies before resorting to the courts. Affirmed.	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Caplinger, J.: In this interlocutory appeal, the State challenges the district court’s order granting defendant Jared Chilson’s motion to suppress drug evidence discovered in a search of the residence Chilson shared with his father. Relying upon Georgia v. Randolph, 547 U.S. 103, 164 L. Ed. 2d 208, 126 S. Ct. 1515 (2006), Chilson argues his father’s consent to search the shared residence was invalid and the resulting warrantless entry and search unreasonable, because Chilson, who was detained nearby, was not given an opportunity to refuse consent. We hold that in the absence of evidence that the defendant expressly objected to the search, or that officers specifically removed him from the home for the sake of avoiding a possible objection, the consent to search given by the defendant’s father satisfied the consent exception to the Fourth Amendment’s prohibition against warrantless searches and seizures. We thus reverse the district court’s order and remand to the district court for further proceedings. Factual and procedural background Twenty-two-year-old defendant Jared Chilson (Chilson) lived at home with his father, Robert Chilson. Chilson had his own bedroom and access to a shared bathroom. On July 12, 2004, the Jackson County Sheriff s dispatcher received a report of a domestic disturbance at the Chilson residence. The dispatcher’s notes indicate: “[Robert Chilson is] w/son Jarod [sic] — thinks he is doing [narcotics] when dad is not home — wants him off property — not violent at this point.” Deputy Ryan Bruggeman testified that when he arrived at the Chilson home, he had been informed only that there was a domestic dispute between Chilson and his father. Corporal Brad Hanika and Detective Carolyn Clark were on the scene. As was police procedure on domestic dispute calls, officers had separated die father and son so that they were out of sight and hearing of each other; Clark detained Jared Chilson outside. Meanwhile, inside, the father told Bruggeman that he had found a baggie of marijuana in Chilson’s room, and when he confronted his son, Chilson “got in his face” in a threatening manner; took the bag; and flushed it down the toilet. The father granted the officers permission to look throughout the house, specifically in the bathroom, where officers discovered two or three fragments of marijuana in the toilet. Officers did not ask Chilson for his consent to the search. After the search, Bruggeman Mirandized Chilson and asked if he wanted to talk. Chilson responded affirmatively and told Bruggeman he and his father had an argument and his father had attempted to kick him out of the house. When asked about marijuana, Chilson remained silent. After the State charged Chilson with assault and possession of marijuana, he filed a motion to suppress the drug evidence, in which he argued the officers’ warrantless search violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution, § 15 of the Kansas Constitution Bill of Bights, and K.S.A. 22-3216, and the trace elements of marijuana found in the toilet constituted fruit of the poisonous tree. After a hearing, the district court denied the motion, finding Chilson’s father had consented to the search and Chilson had no expectation of privacy in the “flushed material.” Chilson subsequently renewed his motion to suppress based upon a recent decision of the United States Supreme Court, Randolph, 547 U.S. 103. On rehearing the suppression motion, the district court made further findings of fact. It found Chilson was not “absent” from the scene but was segregated by officers pursuant to protocol, and Chilson had communicated with officers and was available for inquiry. The district court further noted that at the time of the incident, case law did not require the police to obtain Chilson’s consent to search once they had received the father’s permission. However, having reviewed Randolph, the district court concluded the officers could have obtained a search warrant based upon the father’s statements. It further concluded it would not have been unreasonable for police to have sought Chilson’s consent to the search. Based upon these findings, the district court reconsidered its earlier ruling and found the search was unreasonable because it was without a warrant and without Chilson’s consent, and it sought fruits and instrumentalities of an offense unrelated to the charge the officers were called to investigate. The State appeals pursuant to K.S.A. 22-3603. Standard of review When reviewing a district court’s ruling on a motion to suppress, we determine whether the factual underpinnings of the decision are supported by substantial competent evidence. We exercise de novo review of the ultimate legal conclusion drawn from those facts. To the extent the facts material to the district court’s decision are not in dispute, the question of whether to suppress is purely a question of law over which we have unlimited review. State v. Anderson, 281 Kan. 896, 900-01, 136 P.3d 406 (2006); State v. Ramirez, 278 Kan. 402, 404, 100 P.3d 94 (2004). Moreover, the State bears the burden to demonstrate that a challenged search or seizure was lawful. See Anderson, 281 Kan. at 901; State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003). Discussion The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights generally prohibit the warrantless entry of a person’s home. Payton v. New York, 445 U.S. 573, 576, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980); State v. Mendez, 275 Kan. 412, 420-21, 66 P.3d 811 (2003). The prohibition does not apply, however, to situations in which voluntary consent has been obtained, either from the individual whose property is searched, see Schneckloth v. Bustamonte, 412 U.S. 218, 222, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973), or from a third party who possesses, United States v. Matlock, 415 U.S. 164, 170, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974), or who reasonably appears to possess, Illinois v. Rodriguez, 497 U.S. 177, 182-89, 111 L. Ed. 2d 148, 110 S. Ct. 2793 (1990), common authority over the premises. See also State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006); Mendez, 275 Kan. at 420-21. In Matlock, the defendant, a suspect in a bank robbery, was arrested in the yard of a house where he lived with a woman named Gayle Graff and her relatives. Defendant was detained in a squad car while officers went to the door. Graff answered the door, dressed in a robe with a baby in her arms, and consented to a search of the house. 415 U.S. at 166. When defendant contested the trial court’s denial of his motion to suppress evidence discovered during the search, the Court held that “the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” 415 U.S. at 170. The Court reiterated and clarified this tenet in Rodriguez. There, the defendant had severely beaten his girlfriend. She called police from her mother’s home and took police to the defendant’s apartment. She told them that she lived there with him, unlocked the door with a key, and gave them permission to enter. Police discovered the defendant asleep in a bedroom and seized drug evidence which formed in part the basis for the defendant’s charges. Unbeknownst to the police, the girlfriend had in fact moved out of the apartment several weeks earlier and did not have actual authority to consent to the search of the defendant’s apartment. 497 U.S. at 179-80. The Supreme Court nonetheless held the warrantless entry would be valid if police, at the time of entry, reasonably believed the girlfriend had common authority over the premises — objective reasonableness being the critical inquiry. 497 U.S. at 188-89. Kansas has absorbed the holdings of Matlock and Rodriguez and adopted the third-party consent to search exception to the warrant requirement. Porting, 281 Kan. at 328 (discussing and applying both Matlock and Rodriguez); State v. Ratley, 16 Kan. App. 2d 589, 591, 594-95, 827 P.2d 78 (1992) (explicitly adopting the third-party consent by common authority and apparent authority rules of Mat-lock and Rodriguez in Kansas); see also State v. Savage, 27 Kan. App. 2d 1022, 1026, 10 P.3d 765, rev. denied 270 Kan. 903 (2000) (noting Kansas has adopted the common authority and apparent authority rules). And it was upon this controlling authority that the district court in this case initially denied Chilson’s motion to suppress. The impetus for the district court’s about-face on the suppression issue was the recent United States Supreme Court case of Randolph, in which the Court distinguished its holdings in both Rodriguez and Matlock. In Randolph, the defendant’s estranged wife called police to report a domestic dispute. She told responding officers that the defendant was a drug addict who had “items of drug evidence” in the residence. 547 U.S. at 107. The defendant arrived at the residence shortly after the police arrived, and he refused the officers’ request for permission to search the residence. Officers then turned to the defendant’s wife, who readily gave them permission to search. Police seized a section of a straw covered with a powdery substance. After receiving a warrant, police returned and seized further evidence of drug use, which formed the basis for charges against the defendant. 547 U.S. at 107. The trial court denied the defendant’s motion to suppress based on the wife’s common authority to consent to the search under Matlock and Rodriguez. The Georgia Court of Appeals and Georgia Supreme Court concluded the evidence should have been suppressed. To resolve a split of authority on whether one occupant may give effective consent to search a shared premises in the face of another occupant’s express refusal to permit the search, the United States Supreme Court granted certiorari and affirmed the Georgia Supreme Court. 547 U.S. at 108. The Randolph Court held that a physically present co-occupant’s explicit refusal to permit entry renders a warrantless entry and search unreasonable and invalid as to the co-occupant, even though another present resident consented to the search. 547 U.S. at 122-23. Specifically, it held “[disputed permission is thus no match for [the] central value of the Fourth Amendment.” 547 U.S. at 115. A co-occupant “may be able to deliver evidence to the police, [citation omitted], and can tell police what he knows, for use before a magistrate in getting a warrant.” 547 U.S. at 116. These options avoid “relying on a theory of consent that ignores an inhabitant’s refusal to allow a warrantless search.” 547 U.S. at 116. Absent some other circumstance justifying a warrantless search, police may not search with the consent of one co-occupant while the other is “standing at the door and expressly refusing consent.” 547 U.S. at 118-19. Significantly, the Randolph court reconciled its holding with that of Matlock and Rodriguez: “If [Matlock and Rodríguez] are not to be undercut by today’s holding, we have to admit that we are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out. “This is the line we draw, and we think the formalism is justified. So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant’s permission when there is no fellow occupant on hand, tire other according dis-positive weight to the fellow occupant’s contrary indication when he expresses it.” 547 U.S. at 121-22. The facts of this case fall somewhere along the continuum of reasonableness established by Matlock and Randolph. Here, the co-occupant defendant was not absent, as was the defendant in Matlock. But, unlike the co-occupant defendant in Randolph, he did not stand at the door and object to the search. However, the district court did not find the officers removed the defendant “for the sake of avoiding a possible objection”; rather, they removed him pursuant to protocol. Nor did the evidence indicate the defendant voiced an objection despite the officers’ failure to inquire. Moreover, if the defendant had been asked for his consent to search, it is not a foregone conclusion that he would have refused: suspects often consent, albeit imprudently. See Randolph, 547 U.S. at 122; see, e.g., State v. Moore, 283 Kan. 344, 347, 360, 154 P.3d 1 (2007); State v. Pennington, 281 Kan. 426, 428, 132 P.3d 902 (2006); State v. Edgar, 281 Kan. 47, 49-50, 127 P.3d 1016 (2006). In determining where this case falls on the continuum, we find guidance in recent post-Randolph cases from other jurisdictions with similar factual circumstances. For instance, in United States v. DiModica, 468 F.3d 495, 497-98 (7th Cir. 2006), a wife, who was not present at the home, re ported a domestic assault and told police her husband, DiModica, was a felon who possessed guns and drugs. She gave police a key to their house and consent to search. Armed with an arrest warrant, officers knocked on the door, confirmed DiModica’s identity, arrested him, and removed him from the home. They did not ask his permission to search. The wife met officers at the home afterward, and police discovered items that formed the basis of charges unrelated to tire domestic abuse. DiModica argued that had he not been arrested and removed from the scene, he would have refused to allow the police to search his home. The Seventh Circuit distinguished the case from Randolph, noting that unlike the defendant and his wife in Randolph, DiModica and his wife were not standing together at the doorway, one consenting to the search while the other refused. The officers did not ask DiModica for permission to search, and DiModica did not advise the officers they could not do so. The Seventh Circuit found Dimodica’s case was not materially distinguishable from Matlock. The officers did not remove DiModica to avoid his objection; they legally arrested DiModica based on probable cause he had committed domestic abuse. Once DiModica was arrested and removed from the scene, the wife’s consent alone was valid and permitted the officers to legally search the residence. See also United States v. Wilburn, 473 F.3d 742 (7th Cir. 2007) (no Fourth Amendment violation where officers, after arresting defendant and placing him in squad car outside his apartment, received consent from defendant’s girlfriend to search apartment where defendant lived with girlfriend; defendant was not physically present when girlfriend consented to search, made no objection, and officers had not deliberately removed him from area to avoid hearing him invoke objection to the search); United States v. Parker, 469 F.3d 1074, 1077 (7th Cir. 2006) (where there was no evidence that the defendant was asked for consent to search and refused, or that he objected in any way, court distinguished case from Randolph). Similarly, in United States v. Uscanga-Ramirez, 475 F.3d 1024 (8th Cir. 2007), officers responded to a mother’s report that her son-in-law was holding her daughter against her will in their home. Police arrived at the residence and found the mother sitting in a parked car in front of the home. The daughter then walked out the front door. In response to police questions, the daughter said she was not being held against her will; she was leaving with her mother; her husband had locked himself in a bedroom with a gun because he was upset that she was leaving; but he had not threatened to harm anyone, including himself. The police asked for her permission to enter the residence and check on her husband, and she consented. Officers found the locked bedroom and the husband opened the door. He advised officers he didn’t have a gun, but police discovered a loaded gun under a pillow in the middle of the bed. He was charged with being an illegal alien in possession of a firearm and ammunition. The Eighth Circuit in Uscanga-Ramirez distinguished Randolph based upon the lack of any evidence that defendant expressly refused the officers’ entry into the home. Federal district courts and other state courts also have concluded that absent a defendant co-occupant’s express objection, third-party consent to a search is a valid exception to the warrant requirement. See, e.g., United States v. Church, 2007 WL 689890, at 2 (W.D. Mich. 2007) (unpublished opinion) (Randolph distinguishable where present defendant raised no objection to entry, which co-occupant girlfriend invited); United States v. Groves, 2007 WL 171916, at 6 (N.D. Ind. 2007) (unpublished opinion) (defendant refused to consent to search on night shots fired from his house; police returned 2 weeks later and obtained consent from defendant’s live-in girlfriend who had actual and apparent authority to consent; court held police did not procure defendant’s absence and his earlier objection was insufficient to invalidate girlfriend’s later consent); United States v. McCurdy, 480 F. Supp. 2d 380, 390 n.9 (D. Me. 2007) (Randolph’s holding expressly limited to defendants who are physically present and expressly refuse consent; it does not extend to absent but potentially reachable defendants who, if reached, might refuse consent); Starks v. State, 846 N.E.2d 673, 682 n.1 (Ind. App. 2006) (Randolph distinguishable where, when co-tenant consented, defendant was not physically present, and was physically present for another portion of search but did not express refusal to consent to the search); but see United States v. Henderson, 2006 WL 3469538 (N.D. Ill. 2006) (unpublished opinion) (wife gave officers responding to her domestic battery call a house key; they entered home she shared with defendant, who told officers to “get the fuck out of my house”; officers acted unreasonably under Randolph in removing defendant and searching home based on wife’s consent given defendant’s explicit objection). As the Utah Court of Appeals noted in State v. Udell, 141 P.3d 612, 613 (Utah App. 2006), Randolph “ ‘invites a straightforward application of the rule that a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.’ ” Here, in the absence of evidence that Chilson expressly objected to the search, or that officers specifically removed him from the home “for the sake of avoiding a possible objection,” we hold the consent given by the defendant’s father satisfied tire consent exception to tire Fourth Amendment’s prohibition against warrant-less searches and seizures. We believe our decision is consistent with Matlock and Rodriguez and, under these facts, does not offend the holding in Randolph. Further, we note the defendant provides no compelling reason for reaching a different conclusion. In fact, rather than distinguishing Matlock or the extrajurisdictional authority that cuts against his position, the defendant essentially asks this court to reweigh evidence and reevaluate the credibility of the responding officers. We decline to do so. See State v. Wilkerson, 278 Kan. 147, 159, 91 P.3d 1181 (2004). Accordingly, we reverse the district court’s decision granting Chilson’s motion to suppress and remand for further proceedings. Reversed and remanded.	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Green, J.: Vincent Scott appeals from the trial court’s summary denial of his K.S.A. 60-1507 motion. First, Scott argues that the trial court should have appointed counsel and held a hearing to determine the factual validity of his assertion that his trial counsel was ineffective for allowing him to proceed to a bench trial on stipulated facts. Nevertheless, the record in this case shows that Scott was fully aware that he was waiving his right to a juiy trial and was agreeing to a bench trial on the stipulated facts. Scott’s attorney was not deficient in allowing Scott to proceed to a bench trial on stipulated facts when Scott agreed to that course of action and fully understood the consequences of his actions. Therefore, Scott cannot prevail on this issue. Next, Scott argues that his trial counsel was ineffective for failing to raise the argument that his rights under the Fourth Amendment to the United States Constitution were violated when his DNA evidence lawfully obtained during an investigation of a burglary case was compared with DNA evidence in other unsolved cases. Nevertheless, once law enforcement lawfully obtained Scott’s blood sample and DNA evidence, no privacy interest persisted in this evidence. Scott’s DNA profile could be used in the investigation of other crimes for identification purposes. Because Scott’s argument lacks merit, Scott is unable to meet the test for ineffective assistance of counsel. Finally, Scott contends that the trial court lacked jurisdiction in his underlying criminal case because no complaint or information was filed after the prehminary hearing, in violation of K.S.A. 22-2905. Nevertheless, where the charges against Scott remained the same as those contained in the original complaint, the State was not required to file an additional complaint or an information under K.S.A. 22-2905. Based on the facts of this case, the trial court had jurisdiction to convict Scott of the charged offenses. Accordingly, we affirm. While investigating a burglary of a gun shop that occurred in August 1997, law enforcement officers served a search warrant on Scott in January 1998. The search warrant authorized the officers to obtain blood, saliva, and hair samples from Scott. A DNA analysis revealed that the blood collected from Scott matched the blood found at the gun shop. A forensic chemist with the Johnson County crime lab also compared the DNA profile from Scott’s blood sample with the DNA profiles from other biological samples recovered in unsolved crimes. Scott’s DNA profile matched the DNA profile from semen stains recovered in an unsolved 1996 case, in which a 21-year-old female was raped and sodomized. After the DNA connection was discovered, Scott’s fingerprints were compared to a latent fingerprint recovered in the 1996 rape case. A latent print examiner with the Johnson County Sheriffs Department determined that Scott’s fingerprint matched the latent fingerprint recovered in the rape case. See State v. Scott, No. 88,129, unpublished opinion filed May 2, 2003, slip op. at 7-8. The State charged Scott with burglary, felony theft, and criminal damage to property in the gun shop case — case No. 98CR1568. In addition, Scott was charged with rape and aggravated criminal sodomy in the 1996 case — case No. 98CR2782. Scott moved to suppress the evidence in both cases. The trial court denied Scott’s motions to suppress. Based on a plea agreement, Scott pled no contest to burglary, rape, and aggravated criminal sodomy counts with the understanding that he would preserve his right to appeal the denial of his motions to suppress. The trial court found Scott guilty of the three counts. Scott appealed his convictions to this court. This court consolidated Scott’s two criminal cases. This court remanded the case for a determination of whether Scott’s counsel was ineffective in advising Scott to plead no contest so he could preserve his suppression issues for appeal. On remand, the trial court set aside Scott’s no contest pleas. Scott filed two new motions to suppress, but the trial court again denied his motions. Scott agreed to submit the charges of rape, aggravated criminal sodomy, and burglary to the trial court for a bench trial on stipulated facts. The State agreed to dismiss the charges of felony theft and criminal damage to property. At the conclusion of the bench trial, the trial court convicted Scott of the three charges. Scott appealed to this court, challenging the denial of his motions to suppress. This court affirmed Scott’s convictions in State v. Scott, No. 88,129, unpublished opinion filed May 2, 2003. In July 2004, Scott moved for relief under K.S.A. 60-1507 in case No. 04CV05344. Scott argued that his trial counsel was ineffective by allowing him to be convicted based upon stipulated facts when he did not agree to the stipulated facts nor did he fully understand the contents of the agreement. In addition, Scott argued that his trial and appellate counsel were ineffective for fading to challenge the collection of his DNA and the comparison of it with DNA samples in the 1996 rape case. In August 2004, Scott filed two supplemental K.S.A. 60-1507 motions, setting forth the same two issues raised in 04CV05344. These later motions were each assigned a separate case number. The trial court determined that all of the claims asserted by Scott pertained to 04CV05344. In September 2004, Scott filed a second amended petition in 04CV05344. Scott argued that the trial court lacked jurisdiction to convict him in his underlying criminal case because the prosecutor never filed an information formally charging him with the crime for which he had been bound over for trial. Determining that all of the issues raised by Scott lacked merit, the trial court summarily denied relief under K.S.A. 60-1507. Standard of Review On appeal, Scott argues that the trial court erred in summarily denying his K.S.A. 60-1507 motion and denying his request for appointment of counsel. The trial court shall hold an evidentiary hearing on a K.S.A. 60-1507 motion and make findings of fact and conclusions of law with respect thereto, unless the motion and the files and records of the case conclusively show the prisoner is not entitled to relief. K.S.A. 60-1507(b); Supreme Court Rule 183(f) and (j) (2006 Kan. Ct. R. Annot. 227). The burden is on the movant to allege facts sufficient to warrant a hearing on the 60-1507 motion. Supreme Court Rule 183(g); Woodberry v. State, 33 Kan. App. 2d 171, 173, 101 P.3d 727, rev. denied 278 Kan. 853 (2004). The standard of review when a trial court fails to appoint counsel and summarily denies a K.S.A. 60-1507 motion is abuse of discretion. The trial court has discretion to determine whether the claim is substantial before granting an evidentiary hearing and ordering the prisoner s presence at the hearing. Laymon v. State, 280 Kan. 430, 436-37, 122 P.3d 326 (2005); Supreme Court Rule 183(h). Ineffective Assistance of Trial Counsel First, Scott argues that the trial court should have appointed counsel and held a hearing to determine the factual validity of his assertion that his trial counsel was ineffective for allowing him to proceed to a bench trial on stipulated facts. Scott maintains that he did not agree to the stipulated facts before the trial court, nor did he fully understand the contents of the agreement. A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. State v. Mathis, 281 Kan. 99, 110, 130 P.3d 14 (2006). Before counsel’s assistance is determined to be so defective as to require reversal of a conviction, the defendant is required to establish two things. First, the defendant must establish that counsel’s performance was deficient, which requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed to the defendant. Second, the defendant must establish that counsel’s deficient performance prejudiced the defense, which requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial. Mathis, 281 Kan. at 109-10. The State maintains that the transcript from the bench trial conclusively establishes that Scott is not entitled to relief on this issue. At the bench trial, the trial court ensured that Scott understood he was waiving his right to a jury trial and was proceeding to a bench trial on stipulated facts based on the disposition agreement. Specifically, the following discussion took place between the trial judge and Scott at trial: “[Trial judge:] As part of the Disposition Agreement which has been presented in writing to the Court, you would, first of all, waive your right to a jury trial of both of these cases. You do have a right to have both of these cases heard by a jury of your peers at trial, and by submitting the case to the Court on the Stipulated Offer of Proof, then I will make the determination of your guilt based upon that Offer of Proof. Do you understand that? “[Scott:] Yes, sir. “[Trial judge:] You are waiving your right to a jury trial in both cases? “[Scott:] Yes. “[Trial judge:] Do you have any other statements you wish to make? “[Scott:] No.” Defense counsel then made clear that he had discussed this course of action with Scott several times. Defense counsel questioned Scott about why he chose this course of action: “[Defense counsel:] And the purpose here is to present the appeal and the motions, and you still want the benefit of the bargain, and I’ve explained and given you my advice on how best to accomplish that? “[Scott:] What I understand is that this is the best route for me at this time, okay. Based on the stipulated facts without going to jury and to preserve my rights in appellate court, and my whole purpose of taking this is to still reserve my rights without giving myself more time, okay. And this is what I understand. This is what we have talked about.” The trial court later questioned Scott about whether he had an opportunity to thoroughly review the stipulated offer of proof. Scott responded, “I had an opportunity to briefly go over that at this time.” Scott’s attorney informed the trial court that the stipulated offer of proof was the same offer that had been made previously with only a few changes. Indeed, the record in this case reveals that the stipulated offer of proof submitted at the bench trial was nearly identical, save for a few minor changes, to the stipulated offer of proof submitted to the trial court when Scott pled no contest to the charges. Scott’s attorney stated that he had gone over the changes with Scott and that Scott had a copy of the stipulated offer of proof. Indeed, Scott acknowledged to the trial court that he had gone over the stipulated offer of proof with his attorney. In denying Scott relief on his K.S.A. 60-1507 motion, the trial court rejected Scott’s argument that his trial counsel was ineffective for allowing him to be convicted on stipulated facts at a bench trial. Determining that the record established that Scott understood and wished to proceed to a bench trial on stipulated facts, the trial court stated: “A review of the record reveals that great efforts were made by counsel and the court to ensure that petitioner was aware and understood the implications of his decision to proceed on stipulated facts and waive a jury trial. The record is clear. The petitioner responded that he had spoken with his counsel on more than one occasion about the matter. Further, that he understood ‘that this was the best route for me at this time’ and his whole purpose was to preserve his rights. He indicated that he understood and wished to proceed with a bench trial under stipulated facts according to the disposition agreement.” The trial court’s analysis of the record is correct. The record establishes that Scott fully understood that he was waiving his right to a jury trial by entering into the disposition agreement. Scott had gone over the stipulated facts with his attorney and had agreed to proceed to a bench trial on those facts. Scott’s attorney cannot be deficient for allowing Scott to proceed to a bench trial on stipulated facts when Scott agreed to that course of action and fully understood the consequences of his actions. The record in this case conclusively establishes that Scott is not entitled to relief under K.S.A. 60-1507 on this issue. Ineffective Assistance of Appellate Counsel Next, Scott contends that his counsel representing him on direct appeal was ineffective for failing to raise an issue on direct appeal that had been raised in one of his motions to suppress. In his motion to suppress filed in 98CR2782, Scott had argued that the comparison of his blood samples with the DNA evidence in the unsolved 1996 case was an unlawful search of his blood. Scott maintains that his appellate counsel’s failure to raise this issue on direct appeal fell below an objective standard of reasonableness and prejudiced his defense. A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. Mathis, 281 Kan. at 110. In order to establish ineffective assistance on appeal, a defendant must show the following two things: “ ‘(1) counsel’s performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness, and (2) [defendant] was prejudiced to the extent that there is a reasonable probability that, but for counsel’s deficient performance, the appeal would have been successful.’ [Citations omitted.]” State v. Smith, 278 Kan. 45, 51-52, 92 P.3d 1096 (2004). Deficient Performance In his appellate brief on this issue, Scott repeatedly states that the issue raised in his motion to suppress appears to be a novel one in Kansas. The State, however, points out that cases from other jurisdictions have held that appellate counsel’s failure to advance novel legal theories or arguments does not constitute ineffective performance. The State cites Ledbetter v. Commissioner of Correction, 275 Conn. 451, 460-61, 880 A.2d 160 (2005), cert. denied 546 U.S. 1087 (2006), where the Connecticut Supreme Court recognized that “numerous state and federal courts have concluded that counsel’s failure to advance novel legal theories or arguments does not constitute ineffective performance.” See Anderson v. United States, 393 F.3d 749, 754 (8th Cir. 2005), cert. denied 546 U.S. 882 (2005) (counsel’s failure to raise novel argument does not render performance constitutionally ineffective); Box v. Petsock, 697 F. Supp. 821, 835 (M.D. Pa. 1987), aff'd mem. 860 F.2d 1074 (3d Cir. 1988), cert. denied 489 U.S. 1028 (1989) (counsel not required to pursue novel theories of defense); Weaver v. State, 339 Ark. 97, 102, 3 S.W.3d 323 (1999) (“An attorney is not ineffective for failing to raise every novel issue which might conceivably be raised.”); Haight v. Com, 41 S.W.3d 436, 448, (Ky.) cert. denied 534 U.S. 998 (2001) (“[W]hile the failure to advance an established legal theory may result in ineffective assistance of counsel under Strickland, the failure to advance a novel theory never will.”); People v. Reed, 453 Mich. 685, 695, 556 N.W.2d 858 (1996) (“[Counsel’s performance cannot be deemed deficient for failing to advance a novel legal argument.”); Com. v. Jones, 571 Pa. 112, 131, 811 A.2d 994 (2002) (“Counsel cannot be faulted for failing to advance a novel legal theory which has never been accepted by the pertinent courts.”). Similar to the statements made in cases from other jurisdictions, this court in Tomlin v. State, 35 Kan. App. 2d 398, 404, 130 P.3d 1229, rev. denied 282 Kan. 796 (2006), stated that the failure of counsel to advance new theories does not render a lawyer’s performance constitutionally deficient. Moreover, in Laymon v. State, 280 Kan. 430, 439, 122 P.3d 326 (2005), our Supreme Court recognized that the failure of counsel to raise a particular issue on appeal is not, per se, to be equated with ineffective assistance of counsel. Our Supreme Court did note, however, that counsel’s “failure to foresee a change in the law may lead to K.S.A. 60-1507 relief if the failure was not objectively reasonable. [Citations omitted.]” 280 Kan. at 439-40. Nevertheless, citing Baker v. State, 243 Kan. 1, 10, 755 P.2d 493 (1988), our Supreme Court recognized that counsel should only include issues on appeal that, in the exercise of professional judgment, have merit: “ In an appeal from a criminal conviction, appellate counsel should carefully consider the issues, and those that are weak or without merit, as well as those which could result in nothing more than harmless error, should not be included as issues on appeal. Likewise, the fact that the defendant requests such an issue or issues to be raised does not require appellate counsel to include them. Conscientious counsel should only raise issues on appeal which, in the exercise of reasonable professional judgment, have merit.’ ” 280 Kan. at 440. In this case, Scott acknowledges that the issue he alleges should have been raised by his attorney on direct appeal was a new legal theoiy. A review of Kansas case law reveals no other cases files around the time of Scott’s direct appeal where a similar issue was raised. Moreover, as discussed below, this new legal theory lacks merit. As pointed out in Baker, “[conscientious counsel should only raise issues on appeal which, in the exercise of professional judgment, have merit.” 243 Kan. at 10. As a result, Scott’s attorney was not deficient in failing to raise this issue in Scott’s direct appeal. Prejudice The issue raised by Scott in his motion to suppress can be summarized as follows: whether an individual’s rights under the Fourth Amendment to the United States Constitution are violated when the individual’s DNA evidence seized under a valid search warrant in the investigation of one crime is compared to DNA evidence recovered from other unsolved crimes. This issue has not yet been addressed by our Supreme Court. Nevertheless, other jurisdictions have held that an individual has no further privacy interest in DNA evidence that has been lawfully obtained from that individual. In discussing a situation where a blood sample had been obtained for DNA analysis, 3 LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 5.3(c), p. 176, n.130 (4th ed. 2004), stated: “Such information about the defendant may already be available, however, obviating the need to obtain a new blood sample for this purpose. The blood sample may have been lawfully obtained in investigating another crime on an earlier occasion, as in State v. Hauge, 103 Haw. 38, 79 P.3d 131 (2003), or may have been obtained incident to a prior conviction of the defendant pursuant to a statute of the kind discussed in § 5.4(c). The defendant cannot object to use of that information in the instant case, for, as held in Hauge, ‘once a blood sample and DNA profile is lawfully procured from a defendant, no privacy interest persists in either the sample or the profile.’ Accord: People v. Baylor, 97 Cal. App. 4th 504, 118 Cal. Rptr. 2d 518 (2002); Washington v. State, 653 So. 2d 362 (Fla. 1994); Bickley v. State, 227 Ga. App. 413, 489 S.E.2d 167 (1997); Smith v. State, 744 N.E.2d 437 (Ind. 2001); Wilson v. State, 132 Md. App. 510, 752 A.2d 1250 (2000); People v. King, 232 A.D.2d 111, 663 N.Y.S.2d 610 (App. Div. 1997); State v. Barkley, 144 N.C. App. 514, 551 S.E.2d 131 (2001).” State v. Hauge, 103 Hawaii 38, 79 P.3d 131 (2003), contained a situation similar to that in the instant case. In Hauge, the defendant’s blood was lawfully obtained by a search warrant during a robbery investigation. Law enforcement requested that a lab analyze and compare the defendant’s DNA to DNA recovered in a separate burglary investigation. The defendant’s DNA matched the DNA in the burglary investigation, and the defendant was arrested in connection with the burglary. The trial court denied the defendant’s motion to suppress the evidence. On appeal, the Hawaii Supreme Court rejected the defendant’s argument that a suspect retained an expectation of privacy in his DNA profile obtained by a valid search warrant. The court looked to the rulings in other jurisdictions that once a blood sample and DNA profile is lawfully obtained from a defendant, no privacy interest persists in either the blood sample or the DNA profile. The court cited as authority all of the cases referenced in LaFave above. The court discussed several of those cases and ultimately adopted the reasoning in Bickley v. State, 227 Ga. App. 413, 489 S.E.2d 167 (1997), holding that “regardless of the number of times that the HPD tested Hauge’s blood sample for its DNA, no violation of his constitutional right to privacy occurred because the analyses did not exceed the objective for which the original warrant was sought — DNA testing for the purpose of identification.” 103 Hawaii at 52. Applying the reasoning from Hauge and the other states’ decisions cited therein to the facts of this case, we conclude that no privacy interest persisted in Scott’s blood sample and DNA profile once law enforcement lawfully obtained that evidence through a valid search warrant. The evidence could be used in the investí gation of other crimes for identification purposes. Therefore, the issue raised by Scott in his motion to suppress has no merit. Accordingly, Scott was not prejudiced by his counsel’s failure to raise the argument on direct appeal. Jurisdiction Finally, Scott argues that the trial court lacked jurisdiction in his underlying criminal case because no complaint or information was filed after the preliminary hearing in violation of K.S.A. 22-2905. Whether jurisdiction exists is a question of law over which an appellate court’s scope of review is unlimited. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006); State v. Jackson, 280 Kan. 16, 30, 118 P.3d 1238 (2005). Scott’s argument requires interpretation of K.S.A. 22-2905. The interpretation of a statute presents a question of law over which an appellate court -has unlimited review. An appellate court is not bound by the trial court’s interpretation of a statute. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). K.S.A. 22-2905(1) states: “When a defendant is bound over to a district judge for trial, the prosecuting attorney shall file an information in the office of the clerk of the district court, charging the crime for which the defendant was bound over. If the complaint is in proper form, pursuant to K.S.A. 22-3201 and amendments thereto, it may be used as the information.” Essentially, Scott argues that based on the use of the word “shall” in the first sentence of K.S.A. 22-2905(1), the State was required to refile the complaint or file an information after he was bound over at preliminary hearing. Nevertheless, Scott’s argument isolates the first sentence of K.S.A. 22-2905(1), instead of considering the entire statutory provision. Nevertheless, we are not permitted under the rules of statutory construction to treat any part of a statute as superfluous. Driscoll v. Hershberger, 172 Kan. 145, 155, 238 P.2d 493 (1951); Goff v. Aetna Life & Casualty Company, Inc., 1 Kan. App. 2d 171, 175, 563 P.2d 1073 (1977). Instead, our responsibility is to give effect to all portions of a statute and reconcile different provisions in a manner that makes them consistent, harmonious, and sensible. State v. Rush, 255 Kan. 672, 677, 877 P.2d 386 (1994). The first sentence of K.S.A. 22-2905(1) states that when a defendant is bound over for trial, the prosecutor “shall file an information” with the clerk of the district court, “charging the crime for which the defendant was bound over.” Nevertheless, K.S.A. 22-2905(1) further states that the complaint, if in proper form under K.S.A. 22-3201, may be used as the information. Nothing in K.S.A. 22-2905 requires the prosecutor to refile the complaint after the defendant is bound over for trial. Under K.S.A. 2006 Supp. 22-2902(6), the complaint or information, as filed by the prosecutor under K.S.A. 22-2905, “shall serve as the formal charging document at trial.” The second sentence of K.S.A. 22-2905(1) allows the prosecutor to proceed to trial on a complaint that is in proper form under K.S.A. 22-3201. When construing the first and second sentences of K.S.A. 22-2905(1) together, the statute does not require the prosecutor to file an information when the complaint is in proper form and sets forth the charges for which the defendant is bound over. In Curless v. Board of County Commissioners, 197 Kan. 580, 586, 419 P.2d 876 (1966), our Supreme Court recognized that the use of the word “shall” in a statute does not prevent tire statute from being construed as requiring a discretionary act. We reject the defendant’s argument that the use of the word “shall” in the first sentence of K.S.A. 22-2905(1) requires the prosecutor to file an information or a second complaint after a defendant is bound over for trial. Giving effect to both sentences of K.S.A. 22-2905(1), we determine that a prosecutor is not required to file a second complaint or an information after the defendant is bound over for trial when the prosecutor is not amending the original charges. In this case, the State filed complaints in both 98CR1568 and 98CR2782 when it commenced the cases against Scott. Scott fails to argue that the complaints were not in proper form under K.S.A. 2006 Supp. 22-3201(b), the statute detailing the requirements for a valid complaint, information, or indictment. The complaints properly informed Scott of the charges against him in the two cases. When Scott was bound over for trial, the State did not amend the original charges against Scott. The original complaints served as the formal charging document in the case. We find no error in the State’s failure to file an additional document, either an information or a second complaint, after Scott was bound over for trial. Under these circumstances, the trial court had jurisdiction to convict Scott of the charged offenses. Affirmed.	[ -16, -24, -20, -68, 57, 96, 58, -78, 64, -29, 103, 83, -19, -53, 0, 106, -14, 125, 117, 105, -49, -74, 7, -63, -14, 51, 90, -41, 119, 75, -27, -3, 12, 112, -54, -43, 70, 9, -89, 94, -50, -127, -71, 97, 16, 66, 40, 35, 118, 14, 117, 28, -93, 42, 23, -117, -55, 56, 91, -68, 64, -72, -24, 21, -100, 16, -77, 55, -72, 71, -40, 63, -104, -71, 0, -8, 114, -74, -126, -12, 77, -99, 40, 106, 98, 32, 88, -18, 72, -127, 46, 63, 62, -121, -103, 96, 73, 108, -106, -99, 118, 84, 46, -16, 103, -35, 23, 108, -118, -49, -80, -109, 77, 116, -126, 83, -29, -92, 20, 113, -50, -32, 76, 87, 121, -37, -50, -11 ]
Malone, J.: Joshua Dean Wonderly appeals his conviction of driving under the influence of alcohol (DUI). Wonderly claims the district court erred in denying his motion to suppress evidence arising from a traffic stop. We conclude the arresting officer had reasonable suspicion to stop Wonderly’s vehicle. However, the officer’s decision to transport Wonderly in handcuffs to the sheriff s office to conduct field sobriety tests constituted an arrest without probable cause. Accordingly, the evidence obtained at the sheriffs office must be suppressed and Wonderly’s DUI conviction is reversed. Factual and procedural background On June 24, 2005, at approximately 11 p.m., a motorist and his passenger called law enforcement on his cell phone and reported that a white Chevrolet pickup truck traveling northbound on Highway 283 towards Norton, Kansas, had been swerving, spinning its tires, and traveling at a high rate of speed. The callers told the dispatcher their names, reported the truck’s license plate number, and stated that the pickup truck was traveling behind two semitrailer trucks as it approached Norton. Officer Pat Morel of the Norton Police Department was on routine patrol that evening. He received a call from dispatch, at approximately 11:25 p.m., stating that a white Chevrolet pickup truck traveling northbound on Highway 283 was driving erratically and at a high rate of speed. Dispatch also gave Morel the truck’s license plate number and told him that the pickup truck would be following two semitrailer trucks coming into Norton. Morel parked his patrol car at the south edge of Norton in anticipation of the truck’s arrival. At 11:34 p.m., Morel saw two semitrailer trucks travel past him, and then he saw a white pickup truck following behind. The pickup truck made a right-hand turn off Highway 283 and onto a city street. Morel left the parking lot and followed the truck, making sure that its license plate number matched the one given to him by dispatch. Morel ran the tag number, and the results indicated that the truck belonged to Wonderly. After following the truck for 3 minutes, or approximately 3/4 of a mile, and not observing any traffic infractions, Morel activated his lights. In response, Wonderly pulled the truck over in a normal manner. After the truck pulled over, Wonderly exited the vehicle. Morel yelled at Wonderly to get back into the truck, but Wonderly ignored Morel’s order and continued to walk toward the back of the truck. Morel yelled at him again to get back into the truck and Wonderly finally complied. As Morel approached the truck, he could see there were other passengers inside the vehicle. Morel went to the driver’s side window and saw Wonderly sitting behind the wheel. Wonderly rolled down the driver’s side window and immediately Morel could smell alcohol. However, Morel could not tell whether the source of the odor came from Wonderly, the other passengers, or the truck itself. According to Morel, Wonderly had bloodshot eyes. Morel asked for Wonderly’s driver’s license, and Wonderly provided the license to Morel without any difficulty. Morel then told Wonderly to step outside the truck, and Wonderly complied, showing no difficulties in doing so. When Wonderly opened the door and stepped outside the truck, Morel could finally see there were three other people sitting in the back seat of the truck and one other person sitting in the front passenger seat. Once Wonderly was outside the truck, Morel asked him to walk to the patrol car and take a seat inside. Wonderly complied, having no problems walking back to Morel’s patrol car. Once Morel and Wonderly were seated inside, Morel stated that he could smell alcohol on Wonderly’s breath. Morel asked Wonderly if he had been drinking, and Wonderly said that he had some drinks at a local bar earlier that evening and one or two drinks at a bar in Lenora, Kansas. Morel described Wonderly’s speech as “fair” and “not particularly slurred.” Morel asked Wonderly if he would submit to a preliminary breath test (PBT), and then informed Wonderly of the statutory advisories. One of these advisories included the notice that a refusal to submit to a PBT would be considered a traffic infraction. After Morel gave Wonderly the advisories, Wonderly agreed to take the PBT. From his training and experience, Morel knew the PBT required a 15-minute alcohol deprivation period prior to administering the test. However, Morel admitted that he did not wait 15 minutes before administering the PBT. The results of the test indicated that the alcohol concentration in Wonderly’s breath was greater than .08. Before and during the traffic stop, it had been raining and misting in Norton, making the streets slick. Because of these conditions and the fact that Morel wanted to continue his investigation, Morel decided that Wonderly should perform field sobriety tests at the sheriffs office. Morel told Wonderly to inform his friends that Wonderly would be going to the sheriff s office. Morel did not place Wonderly under arrest, but he also did not give Wonderly the option to perform the field sobriety tests elsewhere. After Wonderly told his passengers the news, the passengers exited the truck. According to Morel, the front seat passenger became belligerent, which agitated Wonderly. Morel decided to handcuff Wonderly and place him in the front seat of the patrol car for his safety as well as for Morel’s safely. The sheriff s office was located 2 blocks away from the traffic stop. Morel stated that they left the scene of the traffic stop at 11:44 p.m., and they arrived at the sheriffs office at 11:46 p.m. Once there, Morel had Wonderly perform a walk-and-turn test. Morel noted that Wonderly improperly turned, and he took an incorrect number of steps when he walked back to the starting point. Morel also had Wonderly do a one-legged stand for 30 seconds, which resulted in no clues of intoxication. Morel also had Wonderly say the alphabet, starting with E and ending at M. Morel said Wonderly started at M and ended at O. Morel testified that based on everything he had observed at the traffic stop and at the sheriffs office, he concluded that Wonderly was impaired to the extent that he could not safely drive a vehicle. Morel then proceeded to give Wonderly oral and written notice of Kansas’ implied consent warnings and then requested that Wonderly submit to a breath test on the Intoxilyzer 5000. Wonderly submitted to the breath test. The results of the test indicated a blood-alcohol concentration of .174. Morel then issued Wonderly a citation for DUI. Wonderly was convicted and sentenced for DUI in Norton Municipal Court. He timely appealed to the Norton County District Court. Wonderly filed a motion to suppress the evidence. After conducting a hearing, tire district court denied the motion. The district court found there was reasonable suspicion to justify the traffic stop. The district court found the PBT results could not be considered based on State v. Jones, 279 Kan. 71, 106 P.3d 1 (2005), and Morel’s failure to wait 15 minutes before administering the PBT. However, the district court found there was sufficient evidence, independent of the PBT results, which gave Morel reasonable grounds to request Wonderly to submit to the Intoxilyzer 5000. The district court also determined there was probable cause at the scene of the traffic stop to arrest Wonderly for DUI. Thus, the district court ruled that the evidence obtained from Wonderly at the sheriff s office, including the results of the Intoxilyzer 5000, could be admitted at trial. The parties submitted the case for a bench trial on stipulated facts. Wonderly preserved the issues he raised in his motion to suppress evidence. The district court found Wonderly guilty of DUI. He timely appeals. Standard of review When reviewing a district court’s decision on a motion to suppress, an appellate court reviews the factual underpinnings of that decision under a substantial competent evidence standard. State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006). “Substantial evidence” is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. State v. Luna, 271 Kan. 573, 574-75, 24 P.3d 125 (2001). An appellate court does not reweigh the evidence, pass on the credibility of the witnesses, or resolve conflicts in the evidence. Ackward, 281 Kan. at 8. However, the district court’s ultimate legal conclusion drawn from the evidence presented at the suppression hearing is a legal question requiring an appellate court to apply a de novo standard of review. State v. Green, 32 Kan. App. 2d 789, 792, 89 P.3d 940, rev. denied 278 Kan. 849 (2004). Was the traffic stop justified? Wonderly claims the district court erred in finding there was reasonable suspicion to justify the traffic stop. Wonderly contends that any reasonable suspicion Morel may have had when he initially saw Wonderly drive into Norton was dispelled by Morel’s failure to observe Wonderly commit any traffic infractions while following him for 3/4 of a mile before pulling him over. Under the Fourth Amendment to the United States Constitution, a traffic stop is considered a seizure. See State v. McKeown, 249 Kan. 506, 509-10, 819 P.2d 644 (1991). Consequently, in order to perform a traffic stop, Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and K.S.A. 22-2402(1) require law enforcement officers to possess reasonable suspicion that the driver of the vehicle is committing, has committed, or is about to commit a crime. A traffic infraction provides an objectively valid reason to effectuate a traffic stop. State v. Moore, 283 Kan. 344, 350, 154 P.3d 1 (2007). In State v. Partridge, 29 Kan. App. 2d 887, 33 P.3d 862, rev. denied 272 Kan. 1422 (2001), a case very similar to Wonderly s, a police officer received a call from dispatch telling him that a motorist, while on the highway and using her cell phone, reported that she was following a reckless driver traveling southbound on Highway 196 between Potwin and El Dorado. The motorist described the car and gave the dispatcher the license plate number, which the dispatcher then conveyed to the officer. In response to the call, the officer parked his vehicle at a spot he believed the car'would pass. When a car matching the dispatcher’s description passed, the officer pursued the car and pulled it over. The officer had not observed any traffic infractions. During the traffic stop, the officer discovered that the driver had a suspended driver’s license, a crime he was eventually convicted of in Butler County District Court. On appeal, this court affirmed the conviction. 29 Kan. App. 2d at 891. Regarding whether the traffic stop was justified, this court stated: “Under the facts of this appeal, where a motorist calls a law enforcement agency, identifies herself, and gives firsthand information she is following a car being driven at that very moment on a public highway in such a manner as to endanger the lives of the caller and other motorists, there is an adequate showing of the informant’s basis of knowledge and veracity to support reasonable suspicion justifying the stop for further investigation.” 29 Kan. App. 2d at 891. Here, the two identified callers gave firsthand information to law enforcement that a reckless driver was upon a public highway and gave law enforcement a description of the pickup truck, its license plate number, and stated that the pickup truck was traveling behind two semitrailer trucks towards Norton. When Morel saw a truck coming into Norton that matched the dispatcher’s description and was traveling behind two semitrailer trucks, he had reasonable suspicion to stop the pickup truck even without observing any traffic infractions. Wonderly’s primary argument is that any reasonable suspicion Morel may have had when he initially saw Wonderly drive into Norton was dispelled by Morel’s failure to observe Wonderly commit any traffic infractions while following him for 3/4 of a mile before pulling him over. We disagree. Reasonable suspicion still existed despite the fact that Morel did not see Wonderly commit any traffic infractions during the 3 minutes he followed Wonderly before pulling him over. Morel used this time to make sure the license plate number matched the one given to him by dispatch. Three minutes of good driving within the city limits did not dissipate Morel’s reasonable suspicion based on the information conveyed to him that Wonderly had driven his truck in an reckless manner. Had a more significant amount of time elapsed after Morel initially observed Wonderly before Morel stopped the truck, the result might have been different. See State v. Schneider, 32 Kan. App. 2d 258, 262-63, 80 P.3d 1184 (2003) (court questioned a pretextual traffic stop where officers did not stop vehicle for 15 miles after observing traffic infraction). However, these are not the facts of this case. Based upon the evidence, we conclude the district court did not err in finding there was reasonable suspicion to justify the traffic stop. Was Wonderly arrested without probable cause? Wonderly claims that when Morel removed him from the scene of the traffic stop and transported him to the sheriff s office in handcuffs to conduct field sobriety tests, Wonderly was effectively under arrest. Wonderly argues that because Morel did not have probable cause to arrest Wonderly for DUI at that time, all the evidence gathered by Morel at the sheriff s office, including the results of the Intoxilyzer 5000, must be suppressed. Without this evidence, Wonderly asserts his DUI conviction must be reversed. Our analysis of Wonderly’s claim involves two steps. We must first determine whether Wonderly was under arrest when he was transported to the sheriff s office. If the answer is “yes,” then we must determine whether Morel had probable cause to arrest Wonderly for DUI at the time he was transported to the sheriff s office. Pursuant to K.S.A. 22-2202(4) and K.S.A. 22-2405(1), a person is considered under arrest by a law enforcement officer when the person is physically restrained or otherwise deprived of his or freedom of action in any significant way or when he or she submits to the officer’s custody for the purpose of answering for the commission of a crime. See State v. Hill, 281 Kan. 136, 143, 130 P.3d 1 (2006). The test for determining whether a person was placed under arrest “is not based on the officer’s subjective belief. Rather, the test for whether ... an arrest has occurred is based on what a reasonable person would believe under the totality of the circumstances surrounding the incident. [Citation omitted.]” Hill, 281 Kan. at 145. Courts have ruled in similar cases that when police transport a suspect involuntarily to a law enforcement center to conduct questioning or to further investigate a crime, such action effectively constitutes an arrest. In Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979), the police, without probable cause, went to a house occupied by the defendant and transported him involuntarily to a police station without telling him he was under arrest. After giving Miranda warnings, the police questioned the defendant about a murder he was suspected of committing. The defendant eventually made statements and drew sketches that incriminated him in the crime. The United States Supreme Court concluded that the defendant’s rights under the Fourth Amendment to the United States Constitution were violated when the police, without probable cause for an arrest, seized the defendant and transported him to the police station for interrogation. 442 U.S. at 216. The Court stated: “The application of the Fourth Amendment’s requirement of probable cause does not depend on whether an intrusion of this magnitude is termed an ‘arrest’ under state law. The mere facts that petitioner was not told he was under arrest, was not ‘booked,’ and would not have had an arrest record if the interrogation had proved fruitless, while not insignificant for all purposes, [citation omitted], obviously do not make [Dunaway’s] seizure even roughly analogous to the narrowly defined intrusions involved in Terry and its progeny. Indeed, any ‘exception’ that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are ‘reasonable’ only if based on probable cause.” 442 U.S. at 212-13. Kansas cases applying Dunaway have reached similar conclusions. In State v. Parks, 5 Kan. App. 2d 644, 623 P.2d 516 (1981), the police found the defendant’s wife drowned in her bathtub with the water running. A detective, under orders to bring the defendant to the police station for questioning, found the defendant at the hospital and asked him to accompany the detective to the police station. The defendant asked the detective if he could drive his truck to the police station, and the detective told the defendant that he should ride in the detective’s vehicle. When they arrived at the police station at 8:20 a.m., detectives started to interrogate the defendant about his wife’s death. The defendant was not told he was free to leave until 11 a.m. The district court subsequently suppressed the statements made by the defendant during the interview. In affirming the ruling, the Court of Appeals held there was substantial evidence to support the district court’s conclusion that the defendant was in custody when he was taken to the police station. Because the police lacked probable cause to arrest the defendant at the time he was taken to the police station, the defendant’s Fourth Amendment rights were violated. 5 Kan. App. 2d at 648. As part of its analysis, the court stated: “In a limited number of cases an officer may make a carefully circumscribed seizure based on reasonable suspicion that a crime has been or is likely to be committed, but this ordinarily is restricted to asking the person a few pertinent questions on the scene and conducting a pat-down search for weapons. Any involuntary detention exceeding this Terry-type stop and frisk procedure constitutes a seizure, and to be lawful must be based upon probable cause.” 5 Kan. App. 2d at 645-46. In State v. Weis, 246 Kan. 694, 792 P.2d 989 (1990), Salina police officers were investigating two men involved in drug activities. The police set up surveillance of a house one of the men shared with the defendant. When the two men left the house, police arrested them. In order to prevent evidence from being destroyed before police could obtain a search warrant, an officer was stationed outside the house to prevent anyone from entering. Two hours later, the defendant arrived at the house and the officer informed the defendant that if she attempted to enter her residence, she would be arrested. The officer then told the defendant to wait for another officer to arrive so the defendant could be transported to the police station. The officer never informed the defendant that she was free to leave. Another officer finally arrived and escorted the defendant to the station. Upon arrival, the defendant was taken to a room and questioned. When the defendant asked if she was under arrest, she was told that she was “under observation.” 246 Kan. at 695. Later, the defendant was escorted back to her home while police searched the residence pursuant to a search warrant they had obtained. After the police found marijuana and drug paraphernalia inside the home, the defendant admitted that some of it was hers. The defendant was then formally arrested. The officers involved with the investigation acknowledged that they did not have reasonable suspicion to detain the defendant until she admitted to owning the marijuana and the drug paraphernalia. On appeal, citing Dunaway, the court held the defendant was arrested in violation of the Fourth Amendment when police escorted her to the police station without having probable cause to believe she was guilty of a crime. 246 Kan. at 697. The court stated: “An investigatory interrogation is the questioning of an individual by law enforcement officers in a routine manner where the investigation has not reached an accusatory stage and the individual is not in legal custody or deprived of his or her freedom of action in any significant manner. An individual is in police custody when significant restraints on his or her freedom of movement are imposed by some law enforcement agency.” 246 Kan. at 697. Based upon these cases, we conclude that Wonderly was under arrest when Morel, without seeking Wonderly s consent, transported Wonderly in handcuffs to the sheriff s office to perform field sobriety tests. Under the totality of the circumstances, a reasonable person in Wonderly s position would have believed he or she was under arrest at that point. Regardless of what interests Morel may have had in continuing his investigation, by taking Wonderly to the sheriffs office in handcuffs, Morel performed an act indistinguishable from a traditional arrest. This act violated Wonderly s Fourth Amendment rights unless Morel had probable cause to arrest Wonderly for DUI at the scene of the traffic stop. Because Wonderly was effectively arrested when he was transported to the sheriffs office, we must now determine whether probable cause existed to arrest Wonderly at that point for DUI. Probable cause for an arrest is a higher standard than reasonable suspicion for a stop. See State v. Ingram, 279 Kan. 745, 752-53, 113 P.3d 228 (2005). Probable cause to arrest is that quantum of evidence that would lead a reasonably prudent police officer to believe that guilt is more than a mere possibility. City of Dodge City v. Norton, 262 Kan. 199, 203-04, 936 P.2d 1356 (1997). At the suppression hearing, the district court found that the PBT results could not be considered in determining whether there was probable cause for an arrest, and the State has not appealed this ruling. Thus, prior to Wonderly s arrest, the admissible evidence showed that Wonderly initially disobeyed an order to get back into his truck, he had bloodshot eyes, the smell of alcohol was on his breath, and he admitted to drinking earlier that evening. Additionally, Morel knew that a motorist had called law enforcement earlier that night and accused Wonderly of driving his truck in a reckless manner. However, the evidence also indicated that Morel did not see Wonderly commit any traffic infractions while he followed Wonderly for 3 minutes. Wonderly pulled his truck over in a normal manner when Morel turned on the emergency lights, he did not fumble for his driver’s license, and he had no problems getting out of his truck and walking to Morel’s patrol car. Wonderly’s speech was “fair” and “not particularly slurred.” Morel decided to transport Wonderly to the sheriff s office in order to request Wonderly to perform field sobriety tests. Apparently, Morel did not believe there was sufficient evidence to arrest Wonderly for DUI at the scene of the traffic stop, and Morel wanted to transport Wonderly to the sheriff s office to continue his investigation. Morel subsequently testified that his decision to arrest Wonderly for DUI was based on eveiything he had observed at the traffic stop and at the sheriff s office. The district court’s determination that there was probable cause at the scene of the traffic stop to arrest Wonderly for DUI was a legal conclusion subject to this court’s unlimited review. We conclude the district court erred in finding there was probable cause at the scene of the traffic stop to arrest Wonderly for DUI. Although Morel had reasonable suspicion for a stop, the limited ev idence Morel had gathered at the scene of the traffic stop was insufficient to support probable cause for an arrest. The fact that Morel felt it was necessary to continue his investigation at the sheriffs office before formally arresting Wonderly for DUI supports this conclusion. Morel arrested Wonderly without probable cause to do so, and the evidence obtained from Wonderly at the sheriff s office violated his Fourth Amendment rights and must be suppressed. Without this evidence, Wonderly’s conviction at the bench trial is supported only by the evidence obtained by Morel at the scene of the traffic stop. Because we have concluded there was insufficient evidence at the scene of the traffic stop to support probable cause for an arrest, it follows there was insufficient admissible evidence at the bench trial to support Wonderly’s conviction. Accordingly, Wonderly’s DUI conviction is reversed. Reversed.	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Rulon, C.J.: Movant David J. Silvei's appeals the denial of his K.S.A. 60-1507 motion, following an evidentiary hearing in the district court. We affirm. The issue on appeal is whether there was substantial competent evidence that movant’s trial counsel was competent. Underlying Facts On April 27, 2003, S.M., the 13-year-old female victim, was spending the night with her friend Amber at Amber’s aunt’s apartment. Shortly after the victim and Amber arrived at the apartment, James Taylor arrived with his friend, movant. Eventually, the victim was left alone with the two men. The victim testified she was given alcohol, marijuana, and an unidentifiable pill. The victim fell asleep and was on the floor naked when she awoke. One of the men was penetrating the victim vaginafly, and the other was about to place his penis in the victim’s mouth. The victim could not tell which man was on top of her, but she immediately told the man on top of her to get off and found her clothes. After getting dressed, the victim called her sister to pick her up. The victim was taken to the hospital where a sexual assault examination was performed. The examination revealed (1) tearing and redness in the victim’s vagina consistent with injury due to the force of insertion; (2) tearing and redness around the victim’s rectum; and (3) a plastic dome-shaped object inside the victim’s vagina which one of the State’s DNA analysts later testified had possibly been attached to the tip of a condom. Semen attributable to movant was found on a rectal swab and in the middle and rear sections of the victim’s underwear. No semen was detected on a vaginal swab. One sperm cell was found on the dome-shaped object, but testing was unable to link the sample to either movant or Taylor. Movant was charged with rape of a child under 14 years of age and aggravated criminal sodomy of a child under 14 years of age. Prior to trial, movant’s defense attorney, Pamela McLemore, moved to admit evidence of the victim’s prior sexual relationships, contending such evidence was relevant because movant would be pursuing a misrepresentation of age/consent defense based on the victim’s statement she was “old enough.” The district court denied the motion, finding movant was free to present evidence of the victim’s alleged misrepresentation of her age on the night at issue, but the court would not allow argument that consent or misrepresentation was a defense to the charges. During opening statements defense counsel refuted the rape evidence, but admitted movant had some sort of consensual sexual activity with the victim. Defense counsel stated the victim said she was “old enough,” “looked old,” and “indicated [the victim] wanted to mess around with these guys, so they did.” At trial the State called movant’s friend, Jeremy Twist, who testified he overheard movant admit to having sexual contact with the victim. Equally important, movant admitted during direct examination he had anal sex with the victim, but claimed such conduct was consensual. Additionally, movant testified he believed the victim was older because of her appearance and because when he asked the victim how old she was, the victim said, “Old enough.” During closing argument, defense counsel stressed inconsistencies and insufficiencies in the evidence supporting the rape charge and further argued movant had been honest about his sexual encounter with the victim. Ultimately, movant was found guilty of aggravated criminal sodomy, but acquitted of rape. On direct appeal, movant argued insufficiency of the evidence, but his conviction was affirmed. Movant then filed the instant 60-1507 motion, contending trial counsel’s jury nullification strategy essentially resulted in counsel entering a guilty plea without movant’s consent. Jury nullification is defined as: “A jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.” Black’s Law Dictionary 875 (8th ed. 2004). Aju evidentiary hearing was held with movant present, but movant did not present evidence, instead relying on his motion and the record. The State called movant’s trial counsel to testify. Counsel testified she did not remember conversations she had with movant prior to trial, but said, “Well, the problem with the case is that we didn’t have a legal defense. I was — honestly, I was trying to go for juiy nullification, ’cause it just seemed so injust [sic] at the way the law’s written.” Counsel testified she did not remember if she had discussed her strategy and the consequences with movant; however, counsel testified her usual practice was to “tell . . . my client everything about the case, and we go over the facts and talk about the pros and cons of different strategies.” Counsel further testified she “probably did” go over her strategy with movant and she could not remember ever presenting a defense without clearing the defense strategy with a defendant. The district court ultimately found movant’s trial counsel “did everything she could, short of violating her ethical oath to testify truthfully, to provide assistance to her former client.” Trial Counsel’s Representation Where there has been a full evidentiary hearing before the district court, as here, “the appropriate standard of review is findings of fact and conclusions of law. Under this standard, an appellate court must determine whether the district court’s factual findings are supported by substantial competent evidence and whether those findings are sufficient to support the district court’s conclusions of law. [Citation omitted.] Ultimately, the district court’s conclusions of law and its decision to grant or deny the 60-1507 motion are reviewed using a de novo standard. [Citation omitted.]” Bellamy v. State, 285 Kan. 346, 355, 172 P.3d 10 (2007). Before defense counsel’s assistance is determined to be so defective as to require reversal of a conviction, a 60-1507 movant must establish first that trial counsel’s performance was deficient. In other words, trial counsel made errors so serious that his or her performance was less than guaranteed by the Sixth Amendment to the United States Constitution. Second, movant must establish trial counsel’s deficient performance prejudiced the defense. This requires a showing trial counsel’s errors were so serious as to deprive movant of a fair trial. State v. Mathis, 281 Kan. 99, 109-10, 130 P.3d 14 (2006). “Judicial scrutiny of counsel’s performance in a claim of ineffective assistance of counsel must be highly deferential. There is a strong presumption that counsel’s conduct falls within tire wide range of reasonable professional assistance. [Citation omitted.] To show prejudice, the defendant must show a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” State v. Betts, 272 Kan. 369, 387-88, 33 P.3d 575 (2001). Although movant now argues several instances of trial counsel’s perceived ineffectiveness, his primary claim is jury nullification is not a valid defense strategy and trial counsel should have instead required the State to establish movant’s guilt beyond a reasonable doubt. Clearly, criminal defendants are not entitled to have the jury instructed on jury nullification, but the jurors in a criminal case have the clear ability to disregard both the rules of law and the evidence in order to acquit a defendant. State v. McClanahan, 212 Kan. 208, 215-17, 510 P.2d 153 (1973). Our review of cases from other jurisdictions indicate juiy nullification is an acceptable defense strategy, but only when there is strong evidence of guilt and other options are highly unlikely to succeed. For example, in People v. Ganus, 148 Ill. 2d 466, 594 N.E.2d 211 (1992), the defendant confessed in detail to a prison murder. Despite the fact compulsion is not a defense to first-degree murder, the defendant’s attorney introduced evidence the defendant was in a gang and the murder had been committed under gang orders. 148 Ill. 2d at 471-72. The Ganus court held: “What the instant case presents is a situation where the defendant literally had no defense. Evidence of his guilt was overwhelming. His counsel conceived a compulsion defense which, though not a legal defense, could or might have persuaded a jury not to convict. Jury nullification is always a possibility. It is not inconceivable that a compulsion defense might have evoked empathy, compassion or understanding and sympathy in the minds of the jurors. ... A weak or insufficient defense does not indicate ineffectiveness of counsel in a case where a defendant has no defense. In this case it would appear that defense counsel used his imagination and resourcefulness to come up with something where he had nothing to go on.” 148 Ill. 2d at 473-74. In In re Alcox, 137 Cal. App. 4th 657, 40 Cal. Rptr. 3d 491 (2006), the defendant was charged with felony murder despite the fact he ran away from the hotel defendant and his co-conspirators were attempting to burglarize before the murder took place. The defendant had confessed to the crime — both to police and in front of a third party — and had made incriminating jailhouse statements. 137 Cal. App. 4th at 661. Defendant’s attorney essentially admitted the defendant was present and involved in the crime, but unsuccessfully urged the jury to convict the defendant of attempted burglary rather than murder based on the defendant’s disengagement before the hotel clerk was shot, and his honesty and cooperation with police. 137 Cal. App. 4th at 667-68. The Alcox court held: “It is not ineffective assistance of counsel for counsel to admit obvious weaknesses in the defense case. [Citation omitted.] ‘[W]here the evidence of guilt is quite strong, “it is entirely understandable that trial counsel, given the weight of incriminating evidence, made no sweeping declarations of his client’s innocence but instead adopted a more realistic approach, namely, that. . . defendant. . . may have committed [some of die charged crimes], . . .’” [Citation omitted.] “[G]ood trial tactics [may] demand complete candor” with the jury. [Citation omitted.]’ “[There] was strong evidence of guilt. [The defense attorney] attempted to make the best of a bad situation, given his very limited options. [Citation omitted.] It was not ineffective assistance of counsel to concede some measure of culpability and offer the jury some other choice in defendant’s favor. [Citations omitted.]” 137 Cal. App. 4th at 668-69. When defense attorneys have made an educated, well-considered decision to rely on a jury nullification strategy, appellate courts have generally concluded such attorneys afforded effective assistance of counsel. But, when jury nullification strategy is presented haphazardly or in preference for other defenses with a likelihood of success, appellate courts have concluded such attorneys were ineffective. Here, movant arguably could have been acquitted of rape without admitting guilt to aggravated criminal sodomy, but an acquittal was not a certainty. Although movant now argues trial counsel should have exploited the fact the victim did not know who was on top of her, the fact remains the victim testified “someone” was on top of her. The object found in the victim’s vagina and her vaginal injuries corroborated the victim’s testimony, so the only real question was whether the “someone” was movant or Taylor. The evidence supporting movant’s conviction for aggravated criminal sodomy was overwhelming. Independent of trial counsel’s opening and closing statements and movant’s testimony, the evidence established: (1) the victim’s rectal injuries, (2) movant’s semen in the victim’s underwear, and (3) movant’s semen inside the victim’s rectum. We are convinced the jury could not possibly have acquitted movant of this charge. Essentially, trial counsel conceded movant’s guilt on the aggravated criminal sodomy charge in order to preserve movant’s honesty so the jury might believe movant’s version of the facts on the rape charge, or maybe even feel sympathy for movant and ignore tire district court’s instructions and acquit on the aggravated criminal sodomy charge as well. To a certain extent trial counsel’s strategy was successful. Far from showing incompetency, trial counsel’s representation was that of an effective attorney. Importantly, movant has not established he did not consent to trial counsel’s strategy. At the evidentiary hearing, movant chose to rest on the record and his motion, neither of which state movant did not understand or agree with trial counsel’s strategy. Trial counsel testified her usual practice was to discuss defense strategy with her clients, and indeed counsel could not remember an instance where she had not done so. 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Leben, J.: After A.A., a 10-year-old girl, was allegedly raped by her 15-year-old brother, H.A., she was declared a child in need of care and taken into protective custody. Eventually, the parental rights of Harold and Vickie A. to A.A. were terminated. Harold and Vickie have appealed, raising three claims. First, they claim that the Revised Kansas Code for Care of Children unconstitutionally denies equal treatment based on race because the Indian Child Welfare Act precludes the termination of parental rights unless the parents’ unfitness is proved beyond a reasonable doubt while the Kansas statute requires proof of unfitness “only” by clear and convincing evidence for non-Indians. But these laws differ for Indian tribes not because of their race but because of their unique historical claims to sovereignty and the decisions Congress has made because of that history. Second, they claim that there is insufficient evidence to support the district court’s decision. But Harold and Vickie’s failure to address or even acknowledge the sexual abuse allegations combined with other evidence — including their failure to make reasonable progress in creating a suitable home for their child — provided ample support for the decision when giving deference to the lower court, which heard the witnesses directly. Third, they claim that the district court abused its discretion either by denying a trial continuance or by failing to interview the then 11-year-old child. A trial judge is vested with wide discretion in such matters, and she was well within that discretion here. The Case Arose Amid Serious Allegations and Ended in Termination of Parental Rights. Police had responded to the parties’ home after a third party had reported alleged sexual abuse by H.A. against both A.A. and the third party. The police officer who responded reported several reasons for concern about A.A.’s safety in the home: • A.A. did not have a bedroom and was sleeping on a couch in the living room, and H.A. was still living in the same residence. (A.A.’s bedroom had been given to another person who was living with the family.) • There were at least 5 cats and 1 dog inside the house, plus two more dogs outside. • The house smelled strongly of a dirty cat litter box and old trash. • An old vehicle battery was lying just inside the front door; it had a stuffed bear on top of it. • There were large piles of animal feces and other trash just outside the front door. • There were prescription bottles lying around the room in which 10-year-old A.A. kept her toys. The officer took A.A. into protective custody, concerned for her safety both because of the continued presence of H.A. and the living conditions at the house. A child-in-need-of-care petition was filed, and temporary custody was given to the Kansas Department of Social and Rehabilitation Services (SRS). A.A. was taken into SRS custody in February 2006. Court orders entered then provided for supervised visitation with her parents, and the parents were ordered to cooperate with any case plans that might be entered. Frequent review hearings were held, and specific steps were outlined for reintegration of A.A. into her family. When little progress had been made in more than a year, however, the State filed a motion to terminate parental rights in May 2007. The district court heard that motion in an evidentiary hearing on June 4, 2007. Six witnesses testified, including both parents. The district court found that both parents were unfit “based upon their conduct and the lack of effort in this case.” She noted that they had had 16 months to work on reintegration but had made little progress. Harold was living in his truck, which the court found not suitable for raising a child. Vickie was living with her mother, but the court found that Vickie had not taken advantage of SRS offers to clean her former residence and that Vickie had not provided a suitable home for A.A. to five in, either. The Kansas Revised Code for Care of Children Does Not Violate Equal Protection Through Use of a Lower Evidentiary Standard than Found in the Indian Child Welfare Act. The Revised Kansas Code for Care of Children provides that parental rights may be terminated only upon a showing of unfitness by clear and convincing evidence. K.S.A. 2006 Supp. 38-2269(a). The Indian Child Welfare Act presents an even greater evidentiary hurdle before parental rights between Indian parents and children may be terminated: unfitness must be proved beyond a reasonable doubt. 25 U.S.C. § 1912(f) (2000). Harold and Vickie argue that they are denied equal protection of the law since termination of their parental rights is allowed under an evidentiary standard that is easier to meet than the one used in cases involving Native Americans. This argument presents an issue of first impression in Kansas, but other states have rejected this argument after reviewing the basis behind the difference in treatment. In one of those cases, the Nebraska Supreme Court upheld its state statute against an equal-protection challenge. In re Interest of Phoenix L., 270 Neb. 870, 708 N.W.2d 786 (2006). Nebraska’s statutory scheme was the same as Kansas’ in applying a standard of clear and convincing evidence in cases involving non-Indian families. The Nebraska court noted that the different standard for Indians was based not on race, but on their unique history as sovereign political communities. The Nebraska court found that there was a rational basis behind the different standards and concluded that its state statute on the termination of parental rights did not violate the equal-protection rights of non-Indians. 270 Neb. at 883-84. Several other courts have rejected similar challenges. E.g., Adoption of Hanna S., 142 Cal. App. 4th 988, 996, 48 Cal. Rptr. 3d 605 (2006); In re Marcus S., 638 A.2d 1158, 1159 (Me. 1994); Matter of M.K., 964 P.2d 241, 244 (Okla. App. 1998); State ex rel. CSD v. Graves, 118 Or. App. 488, 490-91, 848 P.2d 133 (1993). We agree with the holding and rationale of these cases. The United States Supreme Court has consistently held that laws do not violate equal protection when they treat Indians differently than other groups. In United States v. Antelope, 430 U.S. 641, 645, 51 L. Ed. 2d 701, 97 S. Ct. 1395 (1977), the Court said that federal legislation “with respect to Indian tribes ... is not based upon impermissible racial classifications.” Rather, the Court noted that these classifications are based on the unique history of the federal government’s relations with Indians. In Morton v. Mancari, 417 U.S. 535, 41 L. Ed. 2d 290, 94 S. Ct. 2474 (1974), the Court said that heightened scrutiny should not be applied to special legal status for Indians: “As long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians, such legislative judgments will not be disturbed.” 417 U.S. at 555. The higher standard of proof under the Indian Child Welfare Act is rationally related to the government’s purpose of protecting and preserving Indian families because it ensures that Indian children remain with Indian families unless there is no doubt that the child should be removed. The use of a lower — but still quite stringent — burden of proof in cases involving non-Indian parents does not violate equal protection. Substantial Evidence Supported the District Court’s Finding of Unfitness. Harold and Vickie contend that there was not sufficient evidence for a finding of unfitness. On appeal, we look to see whether there is substantial evidence — what a reasonable person would accept as sufficient to support a conclusion — in support of the trial court’s conclusions. We are required to view the evidence in the light most favorable to the judgment of the trial court, which heard the witnesses directly. We must not reweigh the evidence, substitute our evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses. And we must be able to determine that the State’s evidence was clear and convincing. In re J.D.C., 284 Kan. 155, 170, 159 P.3d 974 (2007). Under this standard of review, there is sufficient evidence to support the district court’s finding of unfitness. There was considerable testimony that both Harold and Vickie had failed to address — or even acknowledge — the sexual abuse allegations made by A.A. Neither parent made substantial progress on the case plan regarding their living conditions. Harold was living in his truck at the time of the final hearing. Vickie was unemployed, did not have a driver’s license, and was living with her mother in a home that social workers deemed unsuitable for children. For several months, both parents delayed in getting parenting evaluations required by the court as a step toward reintegration with A.A. Harold took no substantial steps toward implementing the recommendations of that evaluation; Vickie took some steps, but those steps occurred for the most part only days before the final hearing. Her willingness to make long-term changes thus was left subject to substantial question. Cases like this are difficult ones. A parent may be labeled “unfit” under the law even though he or she loves the child and wants to do the right thing, which may be the case here. But we must judge these cases based mostly upon actions, not intentions, and we must keep in mind that a child deserves to have some final resolution within a time frame that is appropriate from that child’s sense of time. The parents in this case had from February 2006 until June 2007 to make the kinds of changes that would have kept A. A. with them. The district court’s decision was squarely supported by the evidence. It is time to allow A.A. to move on with her life. The District Court Did Not Abuse Its Discretion by Denying a Continuance or by Declining to Interview the Child. Vickie argues that the district court wrongly denied her attorney’s request for a continuance of the final hearing. Harold argues that the district court wrongly denied his request that the judge interview the child before making a decision. A district court has substantial discretion in controlling the proceedings before it. We review those decisions for abuse of discretion and reverse only if no reasonable person would take the view adopted by the district court. In re Adoption of J.A.B., 26 Kan. App. 2d 959, 964, 997 P.2d 98 (2000). Vickie’s attorney asked for a continuance of the June 4 hearing based on his statement that he did not receive the State’s motion to terminate parental rights until May 22. How this might have occurred is not clear. The court file shows that the court clerk mailed a copy of the notice to him — and to the other attorneys in the case — on May 9. Harold’s attorney apparently received the motion in a timely manner; Harold filed a written response to it on May 21. In addition, Vickie was personally served with a copy of the motion by a sheriff s deputy on May 12. Based on the claimed late notice of the hearing, Vickie’s attorney argued that he had had inadequate time to prepare and that a necessary witness was on vacation and unable to testify. But a quick call to that witness’ office found him in town, and he did testify. In addition, Vickie and her attorney had known since a February status hearing that the State was going to file a motion to terminate her parental rights to A.A. Given this background, the presentation made by Vickie’s attorney in support of the continuance request certainly did not provide a substantial reason for one to be granted. The attorney said that when he learned on May 22 of the upcoming June 4 hearing, he asked his client to check with the needed witness to see whether he would be available on June 4 and whether he would be subpoenaed to testify by the State. After the attorney said that he had assumed that this witness would be called by the State, the trial judge asked the appropriate follow-up question: “Why? Why did you assume that?” Vickie’s attorney replied, “Because.” There cannot be an abuse of discretion in denying the requested continuance where the attorney fails to provide adequate reasons for that continuance. Harold argues that the district court abused its discretion by declining to interview A.A., which was requested at the end of the June 4 hearing. The district court declined the request, noting that it takes quite some time for a child to open up to a stranger and to be able to express her thoughts. The court also indicated that it did not wish to put the child into a situation in which “she is questioned about her making a choice” of whether to remain with her parents. In support of his argument, Harold cites one out-of-state divorce case in which an appellate court concluded that the trial judge should have interviewed the child under that state’s divorce law and the facts of the case at hand, Stringer v. Vincent, 161 Mich. App. 429, 434, 411 N.W.2d 474 (1987), and another in which the trial judge’s decision not to interview the children in a divorce custody battle was upheld. Pekarek v. Pekarek, 384 N.W.2d 493, 498 (Minn. App. 1986). Our case arises under the Revised Kansas Code for Care of Children, which has a provision requiring that the court allow any child over 10 who is of “sound intellect” to testify “if requested by the child.” K.S.A. 2006 Supp. 38-2262. In our view, since the legislature specified only one situation where the child must testify, the decision in other situations would be within the judgment of the district judge. A.A. made no request be heard personally, and the district court had ample information about A.A.’s emotional well-being from other witnesses. The district court did not abuse its discretion by declining to bring A.A. in for a personal interview. The judgment of the district court is affirmed.	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The opinion of the court was delivered by Schroeder, J.: This is an action to recover for personal injury and property damage arising from an intersection collision between two automobiles. The jury found the plaintiff guilty of contributory negligence and returned a verdict for the defendant whereupon the trial court entered judgment. Appeal has been duly perfected by the plaintiff from such judgment and the order overruling his motion for a new trial. The basic question presented is whether the record discloses sufficient evidence to sustain the jury’s finding of contributory negligence. The appellant (plaintiff below) was driving his automobile west on 12th Street in the City of Lawrence, Kansas, and the appellee (defendant below) was driving her automobile north on New York Street, when they collided at an intersection formed by these two streets. They collided at a point approximately 2 feet and 6 inches west of the center line of the intersection in the appellant’s lane of traffic. In other words, the collision occurred in the northwest quadrant of the intersection with the appellee’s vehicle in the wrong lane of traffic, when it struck the appellant’s vehicle (entering the intersection from the right) on the left rear fender. The appellant was in the intersection when the appellee entered. It is not clear from the evidence that the appellee saw the appellant’s vehicle before the collision. The appellant testified when he first looked he could see about 50 to 75 feet south and did not see the appellee’s automobile; and that he was probably 25 or 30 feet east of the center of the intersection when he first looked to the south and saw the appellee’s vehicle (from the east edge to the center of the intersection is 15 feet). When asked how far south of the center of the intersection the appellee’s vehicle was when he first saw it, he answered: “Well it would be, that is hard to say, I don’t know; anywhere from 50 to 60 feet I suppose.” He further admitted he first saw the appellee’s vehicle just as he was entering the intersection. Roth drivers testified they were driving approximately 20 miles per hour, and there was no evidence that either of the drivers had applied the brakes. The accident occurred at 10:00 o’clock in the morning on a cloudy day. The street was surfaced with brick and it was dry. A police officer testified the intersection was one “where you have got to slow down like all intersections, as cars park there whether north, south, west, or east, as cars are always parked there.” A licensed civil engineer, after making a study of the intersection as to the visibility of drivers approaching the intersection from the position of the appellant’s vehicle, testified that parked vehicles at the intersection would not affect the visibility in the direction from which the appellee was approaching, and at any point within 50 feet east of the intersection, an automobile approaching from the south could be seen for more than 150 feet. In answer to special questions the jury found the appellee guilty of negligence which was a proximate cause of the collision, and also found the appellant guilty of negligence which caused or directly contributed to cause the collision in question. In answer to special question No. 4, which asked the jury to state in what way the plaintiff (appellant) was negligent, it said: “From Instruction No. 9 in that reasonable care was not exercised to avoid a collision. From the evidence presented in the case, the plaintiff did not, after observing the approaching vehicle, make any effort to stop or otherwise indicate his presence through the use of his horn. His effort to swerve was not, in the opinion of this jury, sufficient to constitute reasonable care on his part to avoid a collision.” The first answer the jury gave to this question terminated with the first sentence, but upon request the court required the jury to give a more specific answer, and the additional two. sentences were supplied. Ry instruction No. 9 the jury was told: “You are further instructed that it is the duty of users of a public street or highway to look ahead and see whatever there may be within their view which may affect their use of such street or highway and to keep a lookout for other users of such street or highway, and to exercise reasonable care to avoid a collision with them, and such users of a public street or highway are presumed in law to have seen that which they could have seen had they kept a proper lookout. “The ordinary and reasonable care required of the users of streets or highways includes a degree of care commensurate with the risk of danger to others by their use of such street or highway.” The appellant specifies that the trial court erred in overruling his motion for a new trial on the following grounds: “1. Because it was an abuse of discretion so to do under the evidence produced; “2. Because there was no dispute concerning any pertinent facts; “3. Because on the facts admitted by all parties and under the instructions of the court, plaintiff was entitled to recover, the only question being how much. “4. Because there was no evidence upon which the jury could base the findings of contributory negligence as stated in the answers to the special questions.” No complaint was made by the appellant to the exclusion of any evidence, nor does he question any of the court’s instructions to the jury. The appellant concedes these specifications basically go to the same question and argues them together in his brief. It is argued by the appellant that the jury found him guilty of negligence in two particulars after observing the approaching vehicle of the appellee, (a) in failing to make any effort to stop, or (b) otherwise indicate his presence through the use of his horn. The appellant contends there is absolutely nothing in the record to show that he did not use his horn. The appellant then argues in substance that he had the right of way at the intersection, because he was on the right and had entered the intersection first; that he had passed the middle of the intersection by 2 feet and 8 inches, and had the right to expect that the vehicle which he saw coming from the south, and which did not have the right of way, would at least slow down for the intersection and stop if necessary; and that he had the right to expect the other driver to stay over on her right-hand side of the street. It is argued the appellant had no duty to stop because he had the right to expect that the appellee would use ordinary care and comply with the law in that regard. G. S. 1959 Supp., 8-5,102, provides, among other things, that a driver of a motor vehicle shall when reasonably necessary to insure safe operation give audible warning with his horn. The applica tion of this statute to an automobile negligence action was discussed in Hubbard v. Allen, 168 Kan. 695, 215 P. 2d 647. Under the circumstances there presented, and under the statute, it was held that whether it was necessary for the driver of a motor vehicle to sound his horn to insure the safe operation thereof was a question of fact for the jury and not a question of law for the court. At the trial the appellee testified “I didn’t hear any warning or signal of approach from plaintiff’s car.” In her answer she alleged as a specific act of negligence the failure of the appellant to sound a warning, and the jury in accordance with such issue framed by the pleadings found the failure of the appellant to sound his horn was an act of negligence which caused or directly contributed to the cause of the collision in question. Thus, the jury determined that it was necessary for the appellant to sound his horn to insure the safe operation of his vehicle in the instant situation, and that his failure to do so was contributory negligence under the law of the case. While the evidence to support such finding is circumstantial in character, it is nevertheless sufficient. No testimony was entered by the appellant that he did sound his horn. The statute (8-5,102, supra) requires that a horn on a motor vehicle be audible under normal conditions from a distance of not less than 200 feet. In Townsend, Administrator v. Jones, 183 Kan. 543, 553, 331 P. 2d 890, it was said, while negligence cannot be presumed and cannot be founded upon mere conjecture, evidence to overcome the presumption (that a decedent exercised due care for his own safety) may be either direct or circumstantial. (See, also, Blackmore v. Auer, 187 Kan. 434, 357 P. 2d 765.) The appellant’s argument that his failure to sound a warning could not be negligence as a matter of fact or law is without merit on the facts and circumstances presented by this case. The merit and purpose of a horn on a motor vehicle and the manner in which it should be used at a hazardous highway intersection was recognized in Green v. Higbee, 176 Kan. 596, 604, 272 P. 2d 1084. The jury specifically found the appellant was contributorily negligent in that he failed to make any effort to stop, after he observed the approaching vehicle of the appellee. The investigating officer found no brake marks after the collision, and there was other sufficient evidence from which the jury could find that the appellant did not apply his brakes. A point overlooked by the appellant is that the jury by its specific answer to question No. 4 found that appellant’s contributory negligence also consisted of a failure to exercise reasonable care in accordance with instruction No. 9. This instruction was a “proper lookout” type of instruction. By incorporating this instruction into its special finding the acts referred to as negligence by such instruction were incorporated. Special findings are to be construed liberally with a view to ascertaining the intention of the jury. (Epple v. Kress 6 & Co., 187 Kan. 452, 457, 357 P. 2d 828.) An effort will be made to review the evidence which supports this finding, and the finding that the appellant failed to make any effort to stop, in the light of instructions given by the trial court, and particularly instruction No. 8, as follows: “The rights of travellers upon a public street or highway are mutual, and it is the duty of each so to exercise his right of passage as not to cause injury to another having a like right. Each is under obligation to use ordinary care, and each has the right to expect that such care will be exercised by the other and that each party will comply with the law in that regard.” The appellant did not look to the south and ascertain the presence of the appellee’s vehicle until he was 25 or 30 feet from the center of the intersection in question. This would place him 10 or 15 feet from the edge of the intersection. Traveling at approximately 20 miles per hour an automobile with good tires and good brakes on a smooth, dry brick surface would require in excess of a total of 44 feet to stop. (See, Orr v. Hensy, 158 Kan. 303, 310, 147 P. 2d 749.) The foregoing evidence was supplied either by the appellant or the appellant’s witness, a police officer. It is obvious when the appellant first looked to the south and ascertained the appellee’s presence, it was too late to enter the intersection with his vehicle under control. His automobile would have been from 14 to 19 feet beyond the center of the intersection before he could have stopped, if his brakes had been simultaneously applied when he first saw the appellee. Therefore, the appellant’s first effective glance was destined to be a futile one. He had passed beyond the point of control when he first saw the appellee’s vehicle. Contributory negligence is established the instant the driver of a motor vehicle fails to maintain a proper lookout, and it bars him as a plaintiff from recovery. The appellant was bound to use reasonable care to avoid a collision and is presumed in law to have seen that which he could have seen had he kept a proper lookout. (Brown v. Utili ties Co., 110 Kan. 283, 203 Pac. 907; and Instruction No. 9 which is the law o£ the case.) The appellant’s argument on appeal is apparently directed to the proposition that the driver of an automobile having the right of way by virtue of his first entry into the intersection, and also being to the right, has an absolute right to proceed as the favored driver. This theory has previously been rejected. The case of Ray v. Allen, 159 Kan. 167, 152 P. 2d 851, illustrates that the right of way is not absolute, and that the favored driver has a duty to exercise the same degree of care under the circumstances as does the disfavored driver. There the plaintiff had the right of way by virtue of his first entry. He assumed the right of way would absolve him of his duty to exercise due care. He made no effort to stop before entering the intersection in order to avoid a collision. He said, “ 1 could have stopped but why should I stop when the right of way was mine.’” The contention did not appeal to the district court or to the Supreme Court. In affirming an order sustaining a demurrer to the plaintiff’s evidence, it was held the facts were not such that reasonable minds might draw different conclusions under such circumstances. The case is authority for the proposition that the favored driver has a duty to use reasonable care to avoid injury — that he did not keep a proper lookout and govern his actions by what he must have seen, but proceeded without regard for his own safety. The driver of a motor vehicle upon a public street or highway, even though he be in law the favored driver, or the driver with the right of way, and even though he has the right to assume others traveling on the public street or highway will comply with the obligation imposed upon them, is not absolved of the consequence of his own independent negligent acts. He is required to regulate his use of the public street or highway by the observance of ordinary care and caution to avoid receiving an injury or inflicting an injury upon another. He has a duty to look ahead and see what there may be within his view which may affect his use of such street or highway and to keep a lookout for other users of such street or highway, and he is in law presumed to have seen and heard that which he could have seen and heard had he kept a proper lookout and exercised ordinary care and caution. His failure to use that degree of care and caution which an ordinarily careful and prudent person would exercise under the same or similar circumstances is negli gence as a matter of law. (Orr v. Hensy, supra; Green v. Higbee, supra; and Taylor v. Johnson, 186 Kan. 561, 352 P. 2d 436.) Facts similar to those presented in the instant case were before the court in Taylor v. Johnson, supra. The jury found the plaintiff guilty of contributory negligence. In the opinion it was said: “While plaintiff was on defendant’s right and therefore had the right of way, she could not drive in front of an oncoming car, and had a duty to observe the traffic approaching the intersection.” (p. 563.) The court in commenting upon an answer to a special question which found the plaintiff guilty of contributory negligence stated: “. . . In fact, under the evidence it would seem that the jury was of the opinion that plaintiff was not keeping an adequate watch for automobiles approaching the intersection at a time when she could easily have seen the defendant and ascertain from his actions that he could not stop his car. She frankly testified that she did not see the defendant until about the time she herself entered the intersection. . . .” (p. 562.) There a motion for judgment notwithstanding the general verdict was sustained by reason of the specific finding of contributory negligence and was affirmed on appeal. Having dispelled the appellant’s assignment of error, that there was no evidence upon which the jury could base the findings of contributory negligence as stated in the answers to the special questions, and finding the general verdict for the appellee and the judgment entered thereon by the trial court consistent with the special findings of contributory negligence, it cannot be said the order denying the motion for a new trial was an abuse of discretion by the trial court. (Clark v. Southwestern Greyhound Lines, 146 Kan. 115, 69 P. 2d 20, and authorities cited therein; and Angell v. Hester, 186 Kan. 43, 348 P. 2d 1050.) The judgment is affirmed. Webtz and Robb, JJ., concur in the result.	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The opinion of the court was delivered by Wertz, J.: The American State Bank, plaintiff (appellee), commenced this action in replevin in the district court against William F. and Dora Holding, defendants (appellants), to recover possession of personal property pledged as security under three separate chattel mortgages given to secure three separate promissory notes. Simultaneously with the filing of its petition plaintiff filed its affidavit in replevin as provided by statute. Plaintiff’s petition sets forth three separate causes of action each representing a separate note and chattel mortgage allegedly broken. The first and third causes of action alleged the notes executed were long past due and in default and that plaintiff was entitled to the immediate possession of the mortgaged property. Attached to the petition were copies of the notes and mortgages mentioned therein. At the time of the filing of the petition an affidavit in replevin was filed that alleged the plaintiff had a special interest in and was entitled to immediate possession of the property described in each of the chattel mortgages. The second cause of action alleged that the note and chattel mortgage were given to the Oswego Implement Company and for valuable consideration were sold to the plaintiff and that plaintiff was the holder in due course; that although the note was not due and payable, the plaintiff deemed itself insecure and under the terms of the chattel mortgage plaintiff was authorized to enter upon the premises of the defendants and take possession of the property. Copies of the note and mortgage were attached to the petition. An order of delivery was issued to the sheriff and under it all of the property covered by the three mortgages was taken and delivered to the plaintiff. The plaintiff further alleged that under the terms of each of the chattel mortgages, having declared the terms of each mortgage broken, it was authorized to take possession of the property, and prayed for possession of the mortgaged property. The defendants’ answer to the first and third causes of action was a general denial. As to their second cause of action, defendants admitted the execution and delivery of the note and mortgage but alleged that the note was not due and that no demand was made for the return of the property given to secure the note prior to defendants’ tender of payment of the amount due. Defendants further alleged that the property was wrongfully taken and that they were damaged in certain specified particulars for which they seek to recover against the plaintiff. The case was tried before a jury. At the conclusion of the evidence the trial court directed the jury to return a verdict finding that the plaintiff at the time the action was filed was entitled to possession of the personal property taken in replevin, and entered judgment accordingly. Defendants filed a motion for new trial, which was overruled, and they perfected their appeal from the trial court’s order directing the jury to return a verdict for the plaintiff and from the judgment of the trial court finding plaintiff entitled to possession of the personal property. At this juncture it may be noted that defendants did not appeal from the order of the trial court overruling their motion for a new trial. An appeal perfected only from a judgment, order or decision does not constitute an appeal from an order overruling a motion for a new trial, and under such circumstances the court has no jurisdiction to review trial errors in the judgment even though the order overruling the motion for a new trial has been specified as error. (Matlock v. Matlock, 182 Kan. 631, 323 P. 2d 646; King v. King, 183 Kan. 406, 327 P. 2d 865; Clarkson v. Mangrum, 186 Kan. 105, 348 P. 2d 607.) Matters specified as error, in order to be reviewable, must be within the purview of those matters contained in the notice of appeal, and when an appellant seeks to have this court review alleged trial errors, he must appeal from the order overruling his motion for a new trial, and, in addition, must specify such ruling as error. (State v. Morrow, 186 Kan. 342, 349 P. 2d 945; State v. Turner, 183 Kan. 496, 328 P. 2d 733, 359 U. S. 206, 79 S. Ct. 739, 3 L. Ed. 2d 759.) Defendants did not appeal from the order overruling their motion for a new trial; therefore, despite their contentions of trial errors, such errors are not reviewable. One of defendants’ specifications of error is in the trial court’s directing the jury to return a verdict for the plaintiff for possession of the property and in entering judgment on that verdict. While it is not clearly spelled out in all of the aforementioned cases, where the basis of an appeal is that the judgment directed and rendered by the trial court was not as a matter of law warranted by the pleadings and the undisputed facts, such record raises a question of law and is reviewable. (Arnall v. Union Central Life Ins. Co., 157 Kan. 535, 538, 142 P. 2d 838; Harshbarger v. Carson, 180 Kan. 241, 247, 303 P. 2d 143.) In their brief defendants concede that the chattel mortgages under plaintiff’s first and third causes of action were in default but contend that the chattel mortgage that was the subject of the second cause of action was not in default and that no demand for the return of the property under this mortgage was made upon defendants prior to the filing of the replevin action, and because of such circumstances the court erred in directing a verdict and entering judgment in plaintiff’s favor for possession of the property. Under their answer defendants put in issue the question as to the right of possession of the property covered by the mortgages. This court has held that no demand for possession of the property and refusal need be shown where the defendant places his defense upon his right of possession at the time of the commencement of the action. (Bartlett v. Bank, 70 Kan. 126, 130, 78 Pac. 414; Shawnee Credit Corp. v. Baker, 137 Kan. 381, 383, 20 P. 2d 455.) In substance, the only issue in a replevin action, such as the instant case, is whether the plaintiff is entitled to the possession of the replevin property at the time of the commencement of the action, and the rights of the parties are determined as of that time. (Secrest v. Wood, 98 Okla. 60, 224 Pac. 349; Bartlett v. Bank, supra, p. 131.) G. S. 1949, 58-307, provides that in the absence of stipulations to the contrary, the mortgagee of personal property shall have the legal title thereto, and the right of possession. In Brookover v. Esterly, 12 Kan. 149, this court held that a mortgagee of personal property has such an interest in the mortgaged property that he may, after condition broken, maintain an action of replevin for possession of the property. In the instant case the mortgages made no provision that title or right of possession was to remain in defendants. The mortgages provided that in case of default, or if at any time plaintiff deemed itself insecure, plaintiff might seize and sell the property at either public or private sale as provided therein. As to causes of action 1 and 3, the mortgages were in default, and as to cause of action No. 2 the plaintiff deemed itself insecure and was entitled to possession of the property covered by the chattel mortgage. (Thorp v. Fleming, 78 Kan. 237, 96 Pac. 470.) Ry the terms of the separate mortgages, and in view of the mentioned statute, no demand for possession of the property was necessary prior to the institution of plaintiff’s action in replevin. We are not deciding that the defendants’ answer fails to set out a defense or cause of action against the plaintiff in a foreclosure proceeding, but we do decide that it contains no defense to plaintiff’s right of possession of the property in its replevin action. Any issue other than the right of possession at the commencement of this replevin action is not subject to review here, and those questions of tender after the commencement of this action and any counterclaims are the substance of later litigation. (Secrest v. Wood, supra; Bartlett v. Bank, supra, p. 132.) The pleadings and undisputed evidence support the trial court’s order and judgment, and the case must be affirmed. It is so ordered.	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The opinion o£ the court was delivered by Fatzer, J.: The plaintiff commenced this action against the defendant on September 3,1960, to recover compensatory and punitive damages for allowing oil to leak and escape from its wells located in a pasture where 85 head of plaintiff’s cattle became sick, lost weight and failed to gain weight, from licking oil or drinking oil polluted water. The defendant filed a motion to make definite and certain and to strike, which was overruled in its entirety; thereafter it filed its demurrer to plaintiff’s petition upon the ground it failed to state facts sufficient to allege a cause of action against the defendant, which was overruled; hence this appeal. The plaintiff alleged that from 1946 through September 3, 1960, he was a tenant with grazing and agricultural rights on land owned by his father and that he had continuous possession during that period and that his cattle grazed on the land during the major portion of each year; that in 1951 the land was leased for oil and gas purposes and three oil wells were completed on and after February 19, 1952, resulting in commercial production of oil, and that the defendant was the operator of the oil and gas lease during the year 1958. The petition further alleged that on September 5, 1958, plaintiff observed oil and refuse leaking and escaping from the vicinity of two oil wells and he carefully inspected his cattle in the pasture and did not observe any were sick from licking the oil or refuse; that on the same day he notified the defendant oil and refuse was escaping from its wells and requested that it take proper steps to stop the escaping of oil and to fence off the wells; that plaintiff’s water supply was a spring fed creek running into and out of a spring fed pond located immediately west of one of the producing wells and that if proper steps were not taken to stop the escape of oil, the pond and stream would become polluted; that the defendant failed to stop the leakage and escape of oil for approximately two months thereafter and failed to fence off the wells; that plaintiff’s cattle licked the oil or drank oil polluted water and became sick and lost weight; that when he put his herd of Hereford steer calves in the pasture on or about May 1, 1958, they were all healthy animals having an average weight of approximately 650 pounds each, and that the plaintiff had a veterinarian examine his cattle who treated them, but they did not respond and continued to lose weight, and several died. It was further alleged that defendant was negligent in the operation of its wells in permitting oil and refuse to escape in violation of G. S. 1961 Supp. 55-121, which was the proximate cause of the injury and damage to plaintiff’s cattle, and that the defendant’s failure to stop the leakage and escape of oil and refuse after it had been notified constituted gross neglect of duty and reckless indifference to the rights of the plaintiff, entitling him to punitive damages. The prayer was that plaintiff recover $8,463.79 actual damages, and $3,000 punitive damages. The plaintiff’s petition basically set forth a cause of action against the defendant for negligent acts including the violation of G. S. 1961 Supp. 55-121. G. S. 1949, 60-741 provides in part that when the allegations of a pleading are so indefinite and uncertain that the nature of the charge or defense is not apparent, the court or judge may require them to be made definite and certain by amendment. It is unnecessary to set forth the various grounds in the motion to make definite and certain and to strike. Some were immaterial; one would have required the plaintiff to plead his evidence, and all were so much within the sound discretion of the district court that its ruling on appeal will not be disturbed. (Parrack v. Wittman, 180 Kan. 193, 302 P. 2d 1005; Acton Manufacturing Co. v. Myers, 182 Kan. 364, 320 P. 2d 840; Coe v. DeMars, 184 Kan. 780, 782, 339 P. 2d 72; Rockhill, Administrator v. Tomasic, 186 Kan. 599, 603, 352 P. 2d 444). No prejudice to the substantial rights of either party resulted in the overruling of the motion. Complaint is made that the petition alleges contributory negligence as a matter of law on the part of the plaintiff. We do not agree. The defendant had a statutory duty to prevent the escape of oil and refuse from the vicinity of its wells. Plaintiff had a right to assume the defendant would obey the law, particularly after it was notified, and he is not guilty of contributory negligence in acting upon that assumption until or unless he has knowledge to the contrary (Siegrist v. Wheeler, 175 Kan. 11, 259 P. 2d 223; Roehrman v. D. S. & O Rural Electric Cooperative Ass’n, 174 Kan. 498, 256 P. 2d 872). It is argued that the allegations of the petition were not sufficient to entitle plaintiff to punitive damages. The point is not well taken. The plaintiff’s petition alleged notice to the defendant of the escape of oil and other refuse from the vicinity of the oil wells which would drain into the water supply for plaintiff’s cattle. In Donley v. Amerada Petroleum Corp., 152 Kan. 518, 106 P. 2d 652, the rule concerning punitive damages was set forth, and it was held: “The fact an act is unlawful and subjects a person to criminal prosecution is not in itself sufficient to determine liability in exemplary damages, but generally the intentional doing of a wrongful act with full knowledge of its character, and without cause or excuse, is malicious and warrants an award of exemplary damages.” (Syl. ¶ 5.) See, also, Wendtlandt v. National Cooperative Refining Ass’n, 168 Kan. 619, 215 P. 2d 209. The leading case on the question is Corwine v. Maracaibo Oil Exploration Corp., 184 Kan. 151, 334 P. 2d 419, which involved a suit for damages to cattle which drank polluted water caused by the defendant allowing oil and refuse to escape in violation of G. S. 1961 Supp., 55-121, and in quoting from Watkins v. Layton, 182 Kan. 702, 324 P. 2d 130, it was said: “The law does not require a specific finding of an intentional and ruthless desire to injure in order to sustain an award of punitive damages. The burden of proof is sustained, once the injured party shows such gross neglect of duty by the wrongdoer as to evince a reckless indifference of the rights of others.” (1. c. 154.) We think the allegations are sufficient to justify recovery of punitive damages. The district court did not err in overruling the demurrer upon the ground that plaintiff failed to allege a cause of action against the defendant. Plaintiff pleaded that he had a prior lease for pasturing his cattle; that defendant operated oil wells upon the land; that defendant allowed oil and refuse to escape from the vicinity of the oil wells; that plaintiff’s cattle drank and licked polluted water caused by the escape of the oil and refuse from the defendant’s wells resulting in their sickness, loss of weight, and death, and that although defendant knew of the escape of the oil and refuse, it did nothing to prevent damage to the plaintiff and that plaintiff was damaged by its acts of omission. All of those together allege a cause of action in favor of the plaintiff and against the defendant. (Corwin v. Maracaibo Oil Exploration Corp., supra; Coffman v. Harris, 187 Kan. 516, 358 P. 2d 673; Gano v. Hall, 188 Kan. 491, 363 P. 2d 551.) The judgment is affirmed.	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The opinion of the court was delivered by Schroeder, J.: This is an action against the Santa Fe Trad Transportation Company and three of its officials for an alleged unlawful discharge of the plaintiff from employment. Appeal has been perfected from an order of the trial court sustaining a demurrer to the second amended petition as amended (hereafter referred to as the petition). The question is whether the petition states a cause of action on the ground that the defendants (appellees) unlawfully conspired to cause the discharge of the plaintiff (appellant) from employment. The petition is framed in two counts wherein damages in the total sum of $98,640 are sought. In the first count the appellant seeks actual damages and in the second count punitive damages. Insofar as material herein the petition alleges that the appellant was employed by the Santa Fe since the year 1931 as a welder in the body shop under an oral contract of employment, and “that there was no agreement except as to wages and hours of work, which was from 8:00 a. m. to 5:00 p. m., each working day.” On August 6, 1959, he was not feeling well and at noon notified the appellee, William D. Bray, foreman of the body shop, that he was ill and unable to work in the afternoon. After notifying Mr. Bray he “clocked out.” Thereupon, the appellant returned home and rested the remainder of the day, and on the following day when his condition had not improved his wife advised the appellee, Frank W. Jester, shop superintendent and agent of the Santa Fe, by telephone that the appellant was not well and was unable to return to work that day because he was going to the doctor. On that day, August 7, 1959, the appellant was treated by a chiropractor, and on the following day he was treated by a medical doctor. The petition then specifically alleged: “That on the following Monday, August 10, 1959, when his condition had improved sufficiently, the plaintiff returned to work, and was preparing to ‘clock in’ when he was advised by the aforementioned defendants Bray and Jester that he had voluntarily quit and was no longer considered by the company as an employee of the defendant company. That the plaintiff insisted and advised the agents and employees of the defendant company, the above mentioned defendants Bray and Jester, that he had not voluntarily quit; but all to no avail. That the defendant Jester joined with the defendant Clarence Offenstein, who was the general manager of the Eastern Division of the defendant company, in declaring that the plaintiff had voluntarily terminated, when in truth and fact he had not done so. “. . . That the agents of the defendant company knew or should have known that the plaintiff had not voluntarily quit or terminated his employment. That the defendant company, acting by and through its agents, as above al leged, knowingly and deliberately acted to the detriment and damage of this plaintiff in refusing him admittance to the premises and employment as above alleged and in reporting to their company superiors that the plaintiff had voluntarily terminated his employment with the defendant company. “That this plaintiff had provoked the ire of his superiors above named herein, by making complaints about bad working conditions, and the defendant company acting by and through the co-defendants herein desiring to discharge the plaintiff, and by fraud and subterfuge as alleged herein, deliberately, wrongfully and without just cause declared that the plaintiff had voluntarily terminated, when in truth and in fact he had not done so. “That the defendants, Clarence Offenstein, William D. Bray and Frank W. Jester, as agents, servants and employees of the defendant company, acted jointly and concurrently in all the acts of commission and omission as alleged herein.” Further allegations set forth the appellant’s tenure of office, seniority rights, life expectancy and average weekly earnings. The second count incorporated the allegations of the first and alleged that the appellees “acted jointly and concurrently in a conspiracy which amounted in law and in fact to intentional and deliberate fraud and subterfuge, for the specific purpose of harming this plaintiff in his contract of employment with the defendant company, subjecting the defendants to liability for punitive damages.” The appellant concedes that unless a cause of action is stated in Count I for actual damages no cause of action is stated in Count II which would entitle him to recover punitive damages. (Stoner v. Wilson, 140 Kan. 383, 394, 36 P. 2d 999; Estell v. New Amsterdam Gas Co., 164 Kan. 712, 192 P. 2d 194; Branstetter v. Robbins, 178 Kan. 8, 14, 283 P. 2d 455; and Local Union No. 795 v. Kansans for the Right to Work, 189 Kan. 115, 368 P. 2d 308.) The appellant’s brief is confined to two pages in which he quotes authorities defining “conspiracy” and the meaning of the word “unlawful.” He cites Rogers v. J. R. Oil and Drilling Co., 149 Kan. 807, 89 P. 2d 847, for the essentials necessary to plead conspiracy, and Rickel v. Cooperative Exchange, 113 Kan. 592, 600, 215 Pac. 1015, and Hutson v. Imperial Royalties Co., 135 Kan. 718, 13 P. 2d 298, for the proposition that a conspiracy may be established by circumstantial evidence. (See, also, State v. Borserine, 184 Kan. 405, 337 P. 2d 697.) The contract of employment alleged by the appellant in his petition was an oral contract of employment, indefinite as to time, and terminable at the will of either party. The appellant’s initial petition was squarely based upon a contract between the Santa Fe Trail Transportation Company and the National Association of Machinists of which the appellant alleged he was a member, and that he was being deprived of his rights under this union contract. The union contract was attached and made a part of the petition by incorporation. It exhaustively covered all matters relating to conditions of employment, including such items as rates of pay, hours of service, seniority, hospitalization, vacations and working conditions. It also had an article dealing with “grievances and arbitration.” The trial court sustained a demurrer to this initial petition of the appellant and granted him time to file an amended petition. The second amended petition as amended, which is presently before the court, eliminates all reference to a “union contract” or to the appellant’s membership in the union. He merely alleges that his contract of employment was oral, and that there was no agreement except as to wages and hours of work, which were from 8:00 a. m., to 5:00 p. m., each working day. Here on demurrer we are confined to the facts of the petition presently before the court. It merely alleges an oral contract of employment, and makes no reference to a union contract or union membership. In the absence of a contract, express or implied, between an employee and his employer covering the duration of such employment, mo action for discharging the employee from service can be maintained against the employer. (Swart v. Huston, 154 Kan. 182, 117 P. 2d 576, Syl. ¶ 4.) Decisions of the Tenth Circuit Court of Appeals and of the Federal District Court of Kansas are in harmony with the rule in the Swart case. (Mitchell v. Stanolind Pipe Line Co., [U. S. C. A. 10th], 184 F. 2d 837; Boatright v. Steinite Radio Corp., [C. C. A. 10th], 46 F. 2d 385; and Kunz v. Colnon, [D. C. Kan.], 54 F. Supp. 673.) In Mitchell v. Stanolind Pipe Line Co., supra, the court held: “. . . It is not the function of the courts in the absence of a contract to compel a person to accept or retain another in his employ, nor is it the function of the courts to compel any person against his will to remain in the employ of another. Coppage v. State of Kansas, 236 U. S. 1, 35 S. Ct. 240, 59 L. Ed. 441; Adair v. United States, 208 U. S. 161, 174, 28 S. Ct. 277, 52 L. Ed. 436. This leaves only the question of whether defendant owed plaintiff any legal duty to retain him in its employ. No claim is made that the discharge was in violation of any right given the plaintiff by the National Labor Relations Act, 29 U. S. C. A. § 151 et seq., or by any state law. No question of public health, safety or welfare is involved so we have no difficulty in determining that the complaint did not state a cause of action. In the absence of a contract or statutory provision an employer may discharge an employee without cause or reason and owes no duty to continue the employment of an employee. 35 Am. Jur., Master and Servant, Sec. 34.” (p. 838.) For other authorities of like effect see, Coxon v. Southern Pac. Co., [C. C. A. 9th], 155 F. 2d 455; Elder v. New York Cent. R. Co., [C. C. A. 6th], 152 F. 2d 361; and 31 Am. Jur., Labor, § 8, p. 390.) The rule concerning seniority right of an employee was stated in Elder v. New York Cent. R. Co., supra, as follows: “The seniority right of the man who toils, indoors or out, in a shop or in an office, is a most valuable economic security, of which he may not be unlawfully deprived. The right, however, is not inherent. It must stem either from a statute or a lawful administrative regulation made pursuant thereto, or from a contract between employer and employee, or from a collective bargaining agreement between employees and their employer. In the absence of statute, mere employment independent of the contractual conferring of special benefits upon those who have longest service records with the individual employer, creates no rights of seniority in retention in service or in reemployment, . . (p. 364.) In the instant case the appellant asserts no statute or administrative regulation made pursuant thereto, or contract, or collective bargaining agreement conferring special benefits upon him by reason of long service or seniority rights. Where the plaintiff has alleged an oral contract of employment that is terminable at the will of either party, he has alleged no cause of action for breach of contract by alleging that he has been discharged. Merely adding the words and phrases, “conspiracy,” “deliberate fraud and subterfuge,” “deliberately, wrongfully and without just cause,” and “unlawfully and wrongfully,” to an action for alleged breach of contract of employment does not transform the action into one based upon conspiracy. (McGill v. Kuhn, 186 Kan. 99, 348 P. 2d 811; Sullivan v. Paramount Film Distributing Co., 164 Kan. 125, 187 P. 2d 360; and Rogers v. J. R. Oil and Drilling Co., supra.) This court said in Browning v. Blair, 169 Kan. 139, 218 P. 2d 233: “Does the amended petition state facts sufficient to constitute actionable fraud or conspiracy? The words fraud and conspiracy alone, no matter how often repeated in a pleading, cannot make a case for the interference of a court of equity until connected with some specific act for which one person is in law responsible to another; they have no more effect than other words of unpleasant signification. . . . Before there can be a civil action for conspiracy, the pleader must plead facts which establish the elements required as a matter of law. And by a complete failure to plead any unlawful act or acts, this amended petition must fall as to the conspiracy. . . ." (p. 147.) No specific acts are alleged in the petition for which the appellees are in law responsible to the appellant. It is readily apparent that a joint liability for conspiracy cannot be pleaded as to the corporate defendant on the one hand and the individual defendants on the other. If the corporate defendant is liable at all, it has to be liable for a breach of contract. There is no way that the corporate defendant can be guilty of inducing itself, or “conspiring” with itself to take a course of action that it may lawfully take concerning its own contract. (Allison v. American Airlines, [U. S. D. C., N. D. Okla.], 112 F. Supp. 37.) The only question remaining is whether the individual defendants were without privilege to take the actions alleged. The petition specifically named the individual defendants, indicating the respective positions held by these individuals with the defendant company. There is no allegation that the individual defendants acted in any capacity other than their official corporate capacity on behalf of the defendant corporation. There is no suggestion that the individual defendants were acting in their individual capacities, or for their individual advantage. There is no allegation that the individual defendants acted outside the scope of then- authority. The petition must therefore be construed to allege that the individual defendants acted in their official capacity and pursuant to their confidential relationship with the defendant corporation. Where, as here, the individual defendants are named and described as officials of the corporate defendant in the petition, with no allegations that these defendants acted other than in their official capacities on behalf of the corporate defendant, and no allegation remotely indicates that they were pursuing their course as individuals or for individual advantage, the acts of the individual defendants must be regarded as the acts of the corporation, and when so acting they cannot conspire with the corporation of which they are a part. (Bliss v. Southern Pacific Co. et al, [1958], 212 Or. 634, 321 P. 2d 324.) While it is true that an action will lie for unjustifiably inducing a breach of contract by a party thereto, the inducement must be wrongful and not privileged. Under circumstances similar to those alleged herein, even a breach of contract induced by one who is in a confidential relationship with a party to the contract is privileged. Thus, a servant may induce his master to breach a contract with a third person. (Lawless v. Brotherhood of Painters, [1956], 143 C. A. 2d 474, 300 P. 2d 159.) For other cases to the effect that a corporate official, acting for and on behalf of his corporation, or a servant acting for and on behalf of his master, is privileged to induce a breach of contract see Allison v. American Airlines, supra; Baruch v. Beech Aircraft Corporation, [U. S. C. A. 10th], 175 F. 2d 1; 26 A. L. R. 2d 1270; 30 Am. Jur., Interference, § 37, p. 82; and 3 Fletcher Cyclopedia Corporations [1947 Rev. Ed.], § 1001, p. 501. A fortiori, the officers and agents of a corporation, acting for and on behalf of their corporation, would not be liable for inducing action by the corporation which it could lawfully undertake to do under a contract of employment. Under such circumstances the conduct of the officers and agents of the corporation is privileged. Inasmuch as the petition has alleged no unlawful act of the corporate defendant terminating the appellant’s employment with the corporation, and the conduct of the officials of the corporation was privileged, the trial court did not err in sustaining the demurrer to the appellant’s petition. The judgment is affirmed.	[ 112, -2, 84, -83, 42, 96, 58, -102, 117, -125, 39, 115, -19, -63, 12, 125, 123, 61, 80, 123, -9, -78, 87, 43, -46, -9, -5, -59, -72, 75, -26, 124, 77, 48, -118, -44, -26, -64, -64, 92, -50, -91, -119, -19, 89, 0, 48, 122, -44, 77, 49, -114, -21, 44, 28, -53, 44, 44, 123, 44, -48, -15, -118, 13, 125, 2, -87, 4, -100, 5, -40, 63, -104, 49, -112, -8, 112, -74, -121, -76, 35, -119, 0, 102, 98, 33, 85, -89, -4, -72, 30, 58, -99, -92, -80, 57, -101, 1, -98, -99, 112, 22, 15, 126, -2, 25, 19, 44, 8, -118, -74, -31, -49, 100, -98, 47, -22, 37, 17, 113, -40, -94, 92, 71, 123, -97, 87, -108 ]
The opinion of the court was delivered by Schroeder, J.: This is an original proceeding in habeas corpus. The petitioner is presently confined in the Kansas State Penitentiary pursuant to an order of the district court of Barber County, Kansas, entered on the 12th day of May, 1960, wherein the petitioner was sentenced "for a period of one (1) year” upon his plea of guilty to the crime of being an accessory after the fact to a felony in violation of G. S. 1949, 21-106. The question presented is whether a valid sentence was imposed. It is clear from the journal entry, the order of commitment, and the transcript of the proceedings that the trial court intended the entire length of the sentence imposed upon the petitioner to be for a period of one year. The petitioner seeks release on the ground that he has fully served the sentence imposed by the court and is now being deprived of his liberty without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States. G. S. 1949, 21-106 provides four alternative methods of sentencing a person for an offense committed thereunder. These alternative methods are: “ . . confinement and hard labor not exceeding five years, or in the county jail not exceeding one year nor less than six months, or by fine not less than four hundred dollars, or by both a fine not less than one hundred dollars and imprisonment in a county jail not less than three months.” It is provided in G. S. 1959 Supp., 62-2239 that: “In committing a defendant to an institution, the court shall not fix a maximum term of imprisonment, but the maximum term provided by law for the offense for which the prisoner was convicted and sentenced shall apply in each case: . . .” It must be noted the last full sentence of the second paragraph in 62-2239, supra, authorizing the trial court in its discretion to fix a minimum term of imprisonment has been held to be so vague and indefinite as to be judicially unadministrative, and therefore void. (State v. O’Connor, 186 Kan. 718, 353 P. 2d 214; and State v. Lewis, 187 Kan. 221, 356 P. 2d 845.) Since the trial court intended to make the sentence imposed both the minimum and maximum length of time to be served by the petitioner in the state penitentiary, the sentence was not imposed in accordance with the foregoing statutes. It had no authority in this case to impose a maximum penalty of one year in the state penitentiary. The trial court having elected, in the exercise of its discretion, to impose the felony sentence upon conviction of the petitioner, it should have sentenced the petitioner to confinement and hard labor not exceeding five years. Under this sentence the minimum for confinement and hard labor would be one year by reason of G. S. 1949, 21-109. It is therefore apparent the sentence imposed by the trial court was in error, and, being in error, it is considered to be void under our decisions. (Edwards v. Hudspeth, 159 Kan. 37, 151 P. 2d 698; Richardson v. Hand, 182 Kan. 326, 320 P. 2d 837, and authorities cited therein.) The situation presented in Crimi v. Hand, 187 Kan. 580, 358 P. 2d 736, is to be distinguished. Kansas has always considered an erroneous or irregular sentence the same as a void sentence, and thus within the power of a court to substitute a new and valid sentence. Under these circumstances this court may remand a prisoner for further proceedings in the district court to correct a void or erroneous sentence, and such authority is not limited to appeals. Such remand of a prisoner can properly be made in a habeas corpus proceeding. (Richardson v. Hand, supra.) It is therefore ordered that the petitioner be taken before the district court of Barber county, and that such court proceed to impose a proper sentence in accordance with the provisions of G. S. 1949, 21-106. The writ is denied.	[ 112, -22, -35, -1, 11, 97, 59, -104, 114, -77, 38, 83, -21, -58, 4, 121, 63, 35, 117, 121, 73, -73, 103, -47, -10, -5, -63, -47, 115, 95, -82, -44, 8, -80, -118, 117, 102, -56, 83, 92, -50, 7, -120, -47, 80, 0, 32, 103, 12, 15, -79, -98, -29, 42, 26, -54, -87, 40, 75, 111, -104, -71, -101, 15, 75, 22, -96, 5, -108, -121, 88, -74, -100, 25, 2, -24, 83, -106, -122, 117, 111, -85, 44, 102, 98, 33, 109, -18, -72, -119, 30, 90, -83, -89, -104, 88, 75, 68, -74, -99, 100, -108, 42, 126, -28, 4, 61, 108, 2, -114, -80, -79, 79, 116, -122, -72, -29, -95, -47, 97, -50, -90, 88, -9, 120, -101, -114, -110 ]
The opinion of the court was delivered by Jackson, J.: In the court below, the appellant insurance company sued the appellee motor company alleging that the insurance company had insured a new car against fire; that Mr. and Mrs. Leonard N. McGuire purchased the new car from the motor company and received the usual new car warranty on November 28, 1956, and that on the next day while the car was being driven by Mrs. McGuire it caught fire because of defective material and workmanship; that the particular parts which were defective are unknown to the plaintiff, but should be within the knowledge of defendant; that the car was totally destroyed by fire and the plaintiff paid Mr. and Mrs. McGuire the sum of $1,961.60 under the insurance policy covering said car; that the McGuires immediately called in defendant motor company and its agents inspected the burned automobile and that the McGuires complied to the fullest extent possible with the terms of the warranty delivered to them. It then is alleged that defendants furnished various cars to the McGuires to drive until a new car was obtained by the motor company as dealer when it was delivered to Mr. and Mrs. McGuire. There is no allegation in the petition as to whether the McGuires paid for the second car. It is also alleged that under the insurance policy entered into between plaintiff company and the McGuires the company is entitled to be subrogated to the rights of the McGuires against the motor company upon the new car warranty issued to the McGuires; the petition concludes with a prayer for the sum of $1,961.60 together with interest against the motor company as defendant. The defendant motor company in due time filed a demurrer to the petition which has been described above. The trial court sustained the demurrer and the insurance company has appealed to this court. Before turning to the holdings of the court below, we believe it pertinent to mention one matter which seems most important. As noted above, from all that is alleged in the petition, the defendant motor company may have supplied a new car to the McGuires without cost under the new car warranty. If this be true, we would certainly feel that the defendant had fully complied with the warranty and that plaintiff can claim no subrogation through the Mc-Guires. Because the parties entirely ignore this question, we assume that the second car was paid for by the McGuires. The petition is entitled to a liberal interpretation. In sustaining the demurrer the trial court held that one subrogated to the rights of another may not rely upon contract rights possessed by his subrogor. The general topic of subrogation has been discussed by some of our own cases in a general way. Attention may be directed to State, ex rel., v. Baker, 160 Kan. 180, 160 P. 2d 264; Fenly v. Revell, 170 Kan. 705, 228 P. 2d 905; and United States Fidelity & Guaranty Co. v. Maryland Cas. Co., 186 Kan. 637, 352 P. 2d 70. The cases just cited would indicate that the right to subrogation is broader than the tidal court’s memorandum implies. Whether a contract right may be used or was used in the above cases we are not certain but certainly such rights must have been brought into play in the last mentioned case. Our own research has turned up a case in Texas which is almost the bay horse case as far as the law is involved. This case is Wolff v. Commercial Standard Insurance Company, Tex. Civ. App., 345 S. W. 2d 565. In the Wolff case, the facts can be boiled down to the following: A sold two lots to B giving a warranty deed. B obtained title insurance. Unknown to B, there were unpaid liens on record and the holders thereof demanded payment. The title insurance company demanded of A that he pay the liens. Upon failure of A to perform, the insurance company paid the liens and then sued A claiming subrogation under B to the express warranty in the deed from A to B. The Civil Court of Appeals affirmed a judgment for the insurance company. In 46 C. J. S. under the title of Insurance but dealing with subrogation we find the definite statement that one may be subrogated to a contract right. In 46 C. J. S. on page 154, the text reads as follows: “Insurer’s right is derived from the rights which insured has, and is limited to those rights; and there can be no subrogation where insured had no claim against the third person, or where the injury was caused by the negligence of insured himself. Insurer is not entitled to the right of subrogation by virtue of a contract between insured and a third person unless the contract shows primary liability on the part of such third person for the loss. As between insurer and insured, the subrogee’s rights are beyond the power of cancellation and destruction by insured.” In the case of Insurance Co. v. Chevrolet Co., 253 N. C. 243, 116 S. E. 2d 780, we have a case remarkably like the case at bar. In the North Carolina case, a buyer had purchased a car from a dealer and received a warranty. Because of faulty conditions in the motor the automobile burned up. The plaintiff insurance company paid the amount due under its policy on the burned car, and brought a suit based upon subrogation on the warranty against the car dealer. But it was further alleged in the petition that the buyer had discovered the fault in the motor and had returned it for repair. On reclaiming the car, the buyer soon found that the engine had not been repaired. Nevertheless, he continued to use the car for about six days at which time the car caught fire and burned. The dealer argued that the buyer of the car was negligent in using the car when he knew that there was danger of fire. The court sustained this defense by the car dealer. But no one suggested that the insurance company might not rely on the contract of warranty possessed by his subrogor or upon any other right the subrogor had. See also the following authorities in which subrogation was had to contract rights possessed by the subrogor: Burgess v. Trevathan, 236 N. C. 157, 72 S. E. 2d 231; F. H. Vahlsing Inc. v. Hartford Fire Ins. Co., Tex. Civ. App., 108 S. W. 2d 947; 50 Am. Jur. 730, § 78. The authorities would seem to make the right o£ subrogation a right given to plaintiff to stand in the shoes of the subrogor, and to assert any right possessed by the subrogor. If the subrogor has a good contract right against the defendant, the plaintiff is very fortunate. Appellee has cited no authority to tire contrary. Therefore, the order of the trial court sustaining the demurrer against plaintiff's petition must be reversed with directions to overrule the demurrer. It is hereby so ordered.	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The opinion of the court was delivered by Jackson, J.: This is a companion appeal to that decided in No. 42,539, Brock, Administrator v. Peabody Cooperative Equity Exchange, this day decided and found ante, p. 364, 369 P. 2d 320. That case involved the alleged wrongful death of the little son, Alex Joe Shank, while this case involves the wrongful death of the mother and wife, Mary Elizabeth Shank. The ultimate questions on appeal in this case have been fully covered in the opinion of Mr. Justice Schroeder in the above mentioned companion case. Therefore, the order in this appeal will be that this appeal is dismissed upon the authority and in accord with the opinion in case No. 42,539. It is so ordered.	[ -16, 120, 125, 28, 58, -32, 58, 58, 81, -79, -27, -13, -115, -113, 21, 123, -69, 59, 81, -21, -9, -77, 51, -24, -102, -13, -13, -35, -78, 124, -9, 94, 72, 32, 10, 85, 98, -54, -55, 84, -114, 41, -71, -23, 121, 66, 52, 50, 50, 75, 49, -97, -29, 45, 28, -61, -120, 40, 89, -67, 85, 48, -86, 15, 95, 2, 51, 0, -100, -90, -56, 46, -56, -79, 40, -4, 112, 38, -122, -76, 75, 91, 5, 106, 98, -125, 92, -19, -68, -56, 46, 126, -97, -90, -104, 88, 1, 9, -74, 60, 110, 16, 11, -4, -18, -51, 76, -20, 5, -114, -76, -95, -101, 117, -98, 10, -22, -105, 34, 117, -51, -70, 92, 70, 59, 21, -106, -78 ]
The opinion of the court was delivered by Parker, C. J.: Plaintiff, a minor, brought this action by his father and next friend to recover damages for personal injuries sustained while riding as a guest passenger in the right front seat of an automobile driven by defendant, Arthur Quinton Raymond. After the plaintiff’s evidence was submitted, defendant’s demurrer thereto was sustained and plaintiff took an appeal where the sole issue presented is whether the trial court erred in sustaining defendant’s demurrer to plaintiff’s evidence. This is one case where there is little, if any, dispute as to the evidence on which the ruling of the trial court must stand or fall. Based on such evidence the general factual picture, as it existed prior to and at the moment of the accident, may be stated thus. On the evening of March 31, 1958, plaintiff and five other young men were riding together in a 1954 Ford automobile driven by defendant in the town of Frankfort. While stopped at a Standard Oil Service Station in that city the occupants of the automobile discussed whether they would go to Seneca or to Olsburg. Ultimately they agreed to go to Olsburg to attend a dance and finally decided they would go south along K-99 until they reached Blaine, a distance of fifteen miles, and then take K-16 west to Olsburg. While the young men were stopped at the Standard Service Station, they discussed the road K-16 west from Blaine and mentioned in the presence of defendant that the road had sharp curves and hills. While traveling south on highway K-99 to Blaine there were no objections to the manner or style of defendant’s operation of the automobile. Defendant was going sixty-five to seventy miles per hour. However, all occupants of the automobile, including the plaintiff, testified that defendant was not driving too fast; that no guest asked or suggested that defendant slow down; and that no one commented or said anything about the manner in which he was driving. Again, while traveling south to Blaine, there was some discussion about K-16 west from Blaine to Olsburg, concerning its characteristics or nature, it being discussed in the conversation that K-16 had sharp curves and hills but thereafter no occupant of the automobile protested or complained about the rate of speed at which defendant was driving. Upon turning west from Elaine, the young men traveled approximately one-half mile west on K-16 at which time the car was stopped, for some unexplained reason, and all occupants got out of the automobile. Thereafter, they re-entered the motor vehicle and proceeded west, with the defendant driving and the plaintiff sitting next to the door in the right front seat of such vehicle. After traveling approximately one and one-half miles farther west on K-16, at about sixty-five to seventy miles per hour, the automobile proceeded down a fairly sharp incline, started up hill, and then encountered a ninety-degree turn to the south. At this point, while negotiating the turn and after a tire blew out, the defendant driver lost control of the automobile and it rolled over one and one-quarter times. Plaintiff sustained severe and permanent injuries in the accident. Specifically, the plaintiff, John Polzar, who testified as a witness in his own behalf, made, among others, the following statements and admissions: That it was dark at the time the accident happened; that he was riding in the right front seat beside the door; that he knew the defendant’s family had owned the car for only a couple of weeks; that the car was in good operating condition as far as he knew; that he knew of no defects in the car; that the defendant had his headlights on; that he didn’t see any warning or speed signs; that neither he nor anyone else complained of the manner that defendant was driving; that he was in a position to see things as they happened; that it was about two tenths of a mile, or about 350 yards down the hill, before the curve began; and that then you go down approximately 210 to 280 yards and the road levels out and starts up again. In addition plaintiff was asked questions, to which he made response, as follows: “Q. Can you tell the jury when the curve was first apparent to you. When did you first see the curve was there? A. When we started sliding. “Q. And by that time Quint already had the brakes on? A. He had the brakes on. “Q. Then he saw it before you did? A. I don’t know just when he seen it. All I know is when the brakes went on. “Q. As a matter of fact, as that road is situated there it’s impossible to see the curve at night in your headlights until you start up the upgrade, isn’t that right? A. Well now it could be, yes. I wouldn’t say for sure. “Q. As you start up the upgrade you are right on top of the curve, is that right? A. As you start up the upgrade, right out there is the curve. “Q. Where were you with reference to starting up that upgrade when Quint applied the brakes? A. Now I couldn’t say for sure. “Q. What is your best recollection? A. We had just started into the curve as far as I know. “Q. As a matter of fact, you were just going up the upgrade, weren’t you? A. We had just started into the curve. You go down the hill and you head up the upgrade and it was just as you start into the curve. “Q. There hadn’t been any trouble in negotiating any curves before this place where the accident happened, had there? A. Not that I recollect. “Q. There hadn’t been any wild or foolish driving on the two hills prior to that, had there, sir? A. No. “Q. Had there been anything that caused you alarm or made you apprehensive prior to the time the accident occurred? A. Not that I know of. “Q. All right. As I understand your testimony, what caused the accident was just going into that curve too fast, is that right? A. As far as I know, yes. “Q. Was there anything else. A. Not that I know that happened that night.” Roger Taylor, another passenger in the automobile, also testified as a witness for the plaintiff. In substance he stated that he knew defendant had not been over the road before; that he had been over the highway and knew its general condition; that he knew it had sharp curves in it, and some bad hills; that they were driving sixty-five miles per hour until they came to the curve; that he remembered the discussion about the condition of K-16 but that he didn’t remember where the discussion took place; that the road was dry; that it was a clear night; that the car slowed to about fifty-five miles per hour as it started up the incline and before reaching the curve. Testifying about what happened as they reached the curve, Roger Taylor was asked questions, to which he made answers, as follows: “Q. What warning did Quinton have that that curve was there? A. Just when we went down and started up again. “Q. And at what point was this curve first visible to you — at the point where you started up? A. That is right. “Q. And at what point did he apply the brakes? A. He applied them when lie started up again. “Q. In other words, then the first time he could see the curve he applied the brakes, did he? A. That is right. “Q. There has been some question about a blowout on that car. Roger, did a tire blow out on that car? A. It definitely did. “Q. Do you remember it blowing out? A. Yes, I remember he was sliding. The car dipped down — I mean it was just a small thump thump. “Q. All right. Now did that occur before or after the car turned over? A. Before — when he was in the slide. “Q. Was there ever any conversation or any comment directed to Quint to drive slower, or there is a curve ahead, or anything of that nature? A. No. I know I felt safe in the car. “Q. All right. Did you feel safe up until the time the accident happened in the car? A. Yes I did.” Norbert Bramlage, another passenger in the automobile, testified in substance that when they started along K-16 they were going sixty to sixty-five miles per hour in his judgment; that up until the accident happened he at no time worried about the way the defendant was driving or felt he was in danger or anything of that nature; that he felt perfectly safe; that no one protested or made any objection as to the manner in which the car was being driven; that the first time he knew the curve was there was when the car started up the incline; that at that time the defendant had slowed up some; that their speed at the time they reached the curve was between fifty-five and sixty miles per hour; that the car was skidding along sideways before it turned over; that the tire either “blew out” or “popped off” the rim, and that it could have popped off from the sideways skid. The only other passenger to testify was Gale Randall, who was sitting in the front seat at the time of the accident. He testified in substance that the defendant was driving at a speed of sixty-five miles per hour at the time the car got to the curve; that when the lights “hit” the curve, the defendant “hit” his brakes; that the car was going too fast and when it got to the curve it started sliding and the right back tire “it seemed like dropped down” and the car overturned; that before they reached the curve there was nothing about defendant’s method or manner of driving which bothered him and there was nothing that caused him or any one else to protest or complain about his driving; that he felt perfectly safe; and that he thought the defendant saw the curve just as soon as it could be seen. In the face of evidentiary facts, such as have been heretofore related, the over-all question raised by plaintiff, who concedes he was a nonpaying guest passenger at the time of the accident in question, is that the trial court erred in holding his evidence was insufficient to establish “gross and wanton negligence” on the part of the defendant and therefore failed to establish a cause of action against defendant under the guest statute (G. S. 1949, 8-122b), which reads: "That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportion, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle.” Specifically, all contentions advanced by plaintiff in support of his position on the point now under consideration are based upon the premise that the rate of speed at which defendant was driving immediately prior to the accident, coupled with the fact there had been some prior conversation between all occupants of the automobile as to the characteristics and nature of the roads to be traveled en route to Olsburg, convicted defendant of gross and wanton negligence and thus established a cause of action against him under the guest statute. Let us see. The terms “gross and wanton negligence” as used in the above quoted statute have been defined by many of our prior decisions. For one of our latest, where such terms are considered, discussed and again defined, see Swinney v. Ward, 187 Kan. 746, 360 P. 2d 193, where, after citing numerous other decisions to the same effect at page 752 of the opinion, it is held: “Former decisions of this court have interpreted the phrase ‘gross and wanton negligence,’ as it appears in G. S. 1949, 8-122b, to mean wanton conduct and wanton conduct is something more than ordinary negligence and yet is something less than willful injury. The act in question must indicate a realization of the imminence of danger and a reckless disregard and complete indifference to the probable consequence of the act.” (Syl. ¶ 1.) After carefully reviewing the evidence of record, pertinent portions of which have been heretofore set forth in the opinion at length so that there may be no question regarding its import, we are convinced this is a case where the existing facts disclose that speed, and speed alone, is the only negligent action on the part of defendant upon which plaintiff can rely as constituting “gross and wanton negligence,” within the meaning of those terms as used in the guest statute (8-122b) and as construed in Swinney v. Ward, supra, and the decisions there cited. Therefore, since this court in numerous decisions, all dealing with such statute and particularly what constitutes wantonness, under its terms, on the part of a motor vehicle operator, has repeatedly held (see Tuminello v. Lawson, 186 Kan. 721, 723, 352 P. 2d 1057; Perry v. Schmitt, 184 Kan. 758, Syl. ¶ 4, 763, 339 P. 2d 36; Hickert v. Wright, 182 Kan. 100, 105, 319 P. 2d 152; Long v. Foley, 180 Kan. 83, 91, 92, 299 P. 2d 63; Mason v. Banta, 166 Kan. 445, 201 P. 2d 645; Srajer v. Schwartzman, 164 Kan. 241, 251, 188 P. 2d 971; Anderson v. Anderson, 142 Kan. 463, 466, 50 P. 2d 995; Aduddell v. Brighton, 141 Kan. 617, 618, 620, 42 P. 2d 555; Murrell v. Janders, 141 Kan. 906, 908, 44 P. 2d 218) that evidence of speed alone does not constitute “gross and wanton negligence,” we are impelled to hold the evidence of record fails to satisfy the standard required to prove defendant was guilty of gross and wanton negligence, wantonness, or wanton conduct; hence the trial court did not err in sustaining defendant’s motion for a directed verdict at the close of plaintiff’s evidence. In reaching the conclusion just announced we have rejected, not overlooked, plaintiff’s argument that information acquired by defendant, which we pause to note was common to all occupants of the automobile, regarding the highways in question, coupled with his negligent speed, would make him guilty of gross and wanton conduct. Under the confronting circumstances we are convinced this argument lacks merit and cannot be upheld. This, we believe, is especially true in a case where — as here — all occupants of the automobile, including plaintiff, admitted in substance that they were in no way worried or disturbed about the manner in which defendant was driving; that they all felt safe up to the time the car started to skid; and that during the entire trip no occupant of the automobile ever made any protest or remonstrated with defendant about the manner in which he was driving. Certainly, under these circumstances, it cannot be successfully argued that, from the standpoint of wantonness, defendant can be charged with any greater realization of the imminence of danger than his friends who, as we have previously indicated, felt perfectly safe until the accident occurred. Nor have we disregarded decisions cited by plaintiff where questions of speed and other facts were involved and held to be sufficient to establish gross and wanton negligence. Without citation or further reference thereto it suffices to say all such decisions have been carefully examined and, on the basis of the facts and circumstances there involved, must be regarded as clearly distinguishable. We find nothing in the record to warrant or permit a reversal of the trial court’s action in sustaining defendant’s demurrer to plaintiff’s evidence and thereafter rendering judgment against the plaintiff. Therefore such order and judgment must be affirmed. It is so ordered.	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The opinion of the court was delivered by Schroeder, J.: This is an appeal from a declaratory judgment entered by the court below construing a trust agreement, wherein the parties to a divorce action made a property settlement which provided for reduced income to the wife upon remarriage, and holding a subsequent bigamous marriage by the wife, later declared void by a decree of annulment, to be a remarriage under the terms of the trust agreement. . The question is whether the wife remarried, within the meaning of that term as used in the trust instrument. This depends primarily upon a construction of the agreement; that is, the intention of the parties as expressed therein. The trust instrument, which is the subject of the declaratory judgment action, was entered into as the principal consideration of a property settlement agreement in a divorce action between Mary Kathryn Bach (defendant-appellant) and George W. Bach (defendant and one of the appellees) as the settlors, in 1956. A divorce was granted to the wife, and she accepted the provisions of the trust in lieu of alimony in the divorce action. Both the husband and the wife contributed jointly to the corpus of the trust estate. The Johnson County National Bank and Trust Company of Johnson County, Kansas, (plaintiff and one of the appellees) was a party to the agreement as the trustee, and simultaneously with the execution of the agreement certain property, described in the schedule attached thereto, was irrevocably delivered to the trustee, the corpus and all income therefrom to be held, administered and distributed as therein provided. Among the provisions of the trust, dated April 28, 1956, were the following: (a) “The trustee shall pay, at convenient intervals but not less frequently than quarter annually, all of the net income derived from the trust estate to mary kathryn bach until her death if she does not remarry, or until her remarriage if she should remarry.” (Emphasis added.) (b) In the event Mrs. Bach remarried the trust was to be divided into shares. She was to continue to receive during her lifetime the income from three-fifths of the trust estate set apart as her share, and the balance of the estate was to be divided into four equal shares for the benefit of the settlors’ four children. The trust for each child was to continue until such child became thirty-five years of age. (c) Upon the death of Mrs. Bach her share, whether three-fifths or the entire corpus, is to be distributed to the four children or their issue. (d) The trust was so drawn that neither the income nor the corpus of the trust could ever revert to George W. Bach or to his estate. (e) The trustee is authorized and empowered to invade the corpus of the trust to the extent it deems necessary, if the trustee should conclude that further funds, in addition to the net income derived from the trust, are needed for the comfortable maintenance and support of Mrs. Bach while she is entitled to all of the net income, or for the comfortable maintenance, support or education of the children; provided, however, that the trustee is not authorized to invade the corpus for the benefit of the children without the prior written consent of Mrs. Bach. It further provided that any sums so paid or used should not be deemed advancements upon any payments of income. The record discloses that George W. Bach has taken care of their four children since the time of the divorce decree, and that the oldest girl is now married, having gone through college. All of the children except one have gone to private high schools. On July 2, 1958, the appellant (Mrs. Bach) and one Charles Edward Emerson were parties to a marriage ceremony in. Cheyenne, Wyoming. Appellant, believing that she was actually married to Emerson, notified the trustee that she had married. Subsequent thereto it was ascertained that Emerson had a wife then living from whom he was not divorced, and that he had no legal capacity to marry the appellant. Upon learning this fact the appellant instituted an annulment action in the Superior Court of the State of Arizona, and on the 28th day of May, 1959, that court entered a decree declaring the purported marriage of July 2, 1958, “null, void and of no effect whatsoever in law or equity.” It ordered the purported marriage “annulled, set aside, held at naught, and declared void ab initio.” In its decree the Superior Court of Arizona declared further that the appellant and Charles Edward Emerson were not and never had been husband and wife. The appellant thereupon notified the trustee of the annulment. In the meantime the trustee had divided the trust estate into shares, but had not then, and has not now, distributed any of the income to the children. The trustee, nevertheless, refused to pay the appellant the entire income from the trust estate. The petition for declaratory judgment was thereafter filed by the appellee trust company to determine the rights of the appellant, the other beneficiaries, and the duties and obligations of the trustee. (The over-all earning power of the trust from January 1, 1958, to the date of the hearing, September 1, 1960, was $12,581.26.) The trial court held, notwithstanding the annulment of the purported marriage and the lack of capacity of one of the parties to enter into the marriage relationship, the purported marriage constituted a “remarriage” under the terms of the trust instrument; that the trustee had rightfully divided the corpus of the trust estate; and that the appellant was entitled only to three-fifths of the income from the trust following the void marriage ceremony. While the trustee does not claim that it has changed its position to its detriment by reason of the purported remarriage, it does contend that the division of the assets in the trust estate was more than a bookkeeping transaction. In making the division the corpus was split into five parts, each of which had a separate account code number; new securities and new certificates were obtained; and each of the five shares received separate income tax treatment. The appellant contends the word “remarriage” or “remarry” as used in the trust instrument can only mean another marriage; that is, a new status acquired as the result of a contract. Such status, it is urged, can be acquired only through a legally valid contract. Here, it is said, no such status was acquired because the contract was legally void — one of the parties lacking capacity to marry, and the absolute prohibition of the law against such bigamous marriage. It is argued that it would be inconceivable that the appellant, as one of the settlors of the trust, intended that her right to income from the trust would be diminished by a marriage ceremony not only declared void in the eyes of the law, but to which criminal penalties would attach had it not been for her lack of knowledge that Emerson had a wife from whom he had not been divorced. We note the situation presented by the instant case is unlike any of the cases to which we have been cited by either of the parties. Here the sole provision for the support of the wife was income from a trust estate irrevocably established — a trust estate to which the wife had made a substantial contribution of her own property. Clearly, there is no manifestation by the trust instrument, or the conduct of the parties, that any attempt was being made by the settlors to bargain away the duty of the father to provide for the support of their four children. The interest of the children in any income from the trust estate during the life of the appellant is wholly contingent upon the happening of a specified event. As to this right the children are contingent donee beneficiaries. This interest in the trust is to be distinguished from the remainder over to the children after the death of the appellant. Under Kansas law a marriage where one of the parties at the time has a husband or wife living is void, absolutely and in all its aspects. It requires no judgment of divorce or of nullity to render it void. It is void inherently and from the beginning. The innocent party may, however, maintain an action in equity to have such colorable marriage declared null and void. (Fuller v. Fuller, 33 Kan. 582, 7 Pac. 241.) In Powell v. Powell, 18 Kan. 371, the court, speaking of a void marriage for want of mental capacity on the part of one of the parties, said: “Not only was there no marriage de jure, but it would also be a misnomer to call it a marriage de facto, although law-writers thus frequently designate it.” (p. 379.) (See, also, Werner v. Werner, 59 Kan. 399, 53 Pac. 127; Browning v. Browning, 89 Kan. 98, 130 Pac. 852; and 35 Am. Jur., Marriage, §148, p. 271.) A void marriage may be treated as void by the parties to it and by all the world. It is good for no legal purpose, and is not attended or followed by any of the incidents of a valid marriage. A decree or adjudication of annulment for a void marriage is supported because conducive to good order and decorum, and to the peace and conscience of the party seeking it. (Powell v. Powell, supra.) An annulment has the effect of declaring the marriage relation void ab initio. (See, In re Estate of Crump, 161 Kan. 154, 166 P. 2d 684.) Upon the record here presented the parties concede the law of Wyoming, where the bigamous marriage took place, and the law of Arizona, where the decree of annulment was procured, to be the same as the law of Kansas. We give full faith and credit to the Arizona decree, but construction of the trust instrument is a matter to be determined by Kansas law. While the Kansas authorities agree with the general effect of a void marriage, no Kansas cases deal specifically with the effect of a void marriage upon a nuptial agreement or trust agreement, as here, conditioning payments upon remarriage. Cases relied upon by the parties are selected from those accumulated in 48 A. L. R. 2d 270, 276, under an annotation entitled “Alimony as affected by wife’s remarriage, in absence of controlling specific statute,” and in 48 A. L. R. 2d 318, 329, under an annotation entitled “Remarriage of wife as affecting husband’s obligation under separation agreement to support her or to make other money payments to her.” In Sutton v. Leib [1952], 199 F. 2d 163, 33 A. L. R. 2d 1451, a former wife sought recovery of unpaid installments of alimony imposed upon a defendant by an Illinois divorce decree as long as the former wife remained unmarried. The plaintiff and a third party subsequently entered into a marriage ceremony in Nevada which was annulled by a New York court, having jurisdiction of the parties, as void ab initio on the ground the second husband had another wife living at the time of the ceremony. Bigamous marriages were also void under Nevada law. In holding that the defendant was not relieved from his obligation to pay alimony between the void marriage and the annulment, and thereafter until a subsequent valid marriage, the United States Court of Appeals, Seventh Circuit, said: “. . . This is in accord with Illinois decisions which have consistently held that a void marriage, as distinguished from a voidable one, is an absolute nullity for all purposes, and no judicial proceedings or decree are required to establish its invalidity. ... It follows that such a void marriage would be ineffectual to alter the marital status of either party to it, and that one who participated in it, if otherwise unmarried, would ‘remain unmarried.’ We find no escape from this conclusion • in the holding of the Illinois court in Lehmann v. Lehmann, 225 Ill. App. 513, also referred to by the Supreme Court, since that case, like the Sleicher case, involved a voidable rather than a void marriage. Once it is established, as the Supreme Court established in this case, that the marriage was void from its inception in Nevada where it was performed, because Nevada declares bigamous marriages void, then it seems simple to apply the Illinois law, that a void marriage is a nullity which creates no rights and duties between the parties and effects no change in the marital status of either. That being true, it cannot be relied upon by a third party, as defendant here, to reheve him of a continuing obligation which was never interrupted by the inefficacious marriage ceremony in Nevada.” (pp. 164, 165.) Similarly, in Brenholts v. Brenholts [1935, App.], 19 Ohio L. Abs. 309, 48 A. L. R. 2d 298n, 332n, the court construed a separation agreement incorporated in a divorce decree, where a subsequent bigamous marriage was declared void by a decree of annulment. The phrase “until she remarries” was construed to mean the status of marriage — that the former wife had acquired no marital status as a result of the void ceremony and that she had not remarried. In Sleicher v. Sleicher [1929], 251 N. Y. 366, 167 N. E. 501, a divorce decree incorporated a separation agreement wherein the husband agreed to pay the wife a monthly sum to continue so long as she remained unmarried. When the wife’s second marriage had been annulled for fraud the court held that she was entitled to a resumption of payment, but could not recover alimony payments accruing during the existence of her second marriage. It should be noted this case involved a voidable and not a void marriage. Subsequent to the Sleicher case in 1940 the State of New York adopted a statute authorizing the' court in an action for annulment to give such direction for support of the wife by the husband as justice requires. Thereafter, in Gaines v. Jacobsen [1954], 308 N. Y. 218, 124 N. E. 2d 290, 48 A. L. R. 2d 312, the husband’s obligation was held to be terminated by the wife’s remarriage, even though subsequently annulled as bigamous. The Sleicher case was distinguished on the ground it was impossible at that time, absent the statute, for a wife to obtain alimony or other support upon annulment of a marriage. In speaking of the effect of remarriage on alimony decrees the annotator in 48 A. L. R. 2d, at page 296, says: “In considering whether the invalidity of the subsequent marriage may be relied upon as a factor tending to establish a wife’s continuing right to alimony from a divorced prior husband, attention has been given to the practical question whether the wife is entitled to alimony from the subsequent, invalid marriage, it being quite apparent that if such alimony is payable, or is being paid, an invalid remarriage affords no more reason for continuation of alimony than does a valid one, the real question being whether by termination the wife would be cut off from all support.” A few courts when confronted with this difficult situation have adopted the position that “remarriage” means any kind of marriage ceremony, and not a valid marriage giving rise to a status. They say it is the fact of the ceremonial remarriage that is in the minds of the parties. Other courts apply principles of estoppel and laches upon giving the matter equitable consideration. Some courts have resorted to “sound principles of justice” to avoid unfortunate decisions. The appellees contend the words “remarriage” and “remarry” as used in the trust indenture refer to the act of remarriage and not to the relation which exists thereafter. In other words, they say, the trust instrument looked to a certain event, not to the relation resulting from that event. In pursuing this position they argue the Arizona decree of annulment declared null and void the marriage, or status, which existed after the act of remarriage, but it did not, and could not, affect the rights of third persons whose rights vested upon the happening of the act of remarriage. That is to say the vesting condition was the act of remarriage, not the ensuing relation. The primary purpose of the trust, as we construe the trust instrument, was to provide for the support and welfare of the immediate beneficiary, Mrs. Bach, with a gift over to the children in the event of her death. To fulfill this primary purpose the trustee is authorized to invade the corpus of the trust estate, even though the result might be detrimental to subsequent beneficiaries. If there was to be an alteration in the primary purpose by making a reduction in the income payments to Mrs. Bach in the event of her remarriage, it was the intention of the parties to substitute another source of income for her support in its stead. This could be accomplished only by a valid marriage, one which gives rise to marriage status. The event or contingency of remarriage, therefore, within the contemplation of the parties to the trust agreement required the creation of a valid marriage status. This, in our opinion, was the intention of the parties expressed therein. The appellees argue that whatever the effect of the Arizona decree annulling the appellant’s remarriage may have been as against the parties thereto, it cannot affect the rights of third parties whose rights had previously vested upon the occurrence of the vesting condition; that is, the appellant’s remarriage. The argument of the appellees throughout their brief fails to distinguish between a marriage which is voidable, such as a marriage induced by fraud where one of the parties has an option to continue the marriage or to set it aside, and a marriage which is absolutely void, such as here a bigamous marriage. No decree is necessary to declare a bigamous marriage void. Under the law applicable to this case it was impossible for the appellant to marry Emerson. There being no marriage, other than the inefficacious marriage ceremony in Wyoming, the condition precedent to the vesting of rights in third persons did not occur. Under these circumstances the rights of third persons could not have been affected by the Arizona decree of annulment. The appellees rely upon the doctrine of “relation back” — that a decree of nullity relates back so as to render the marital relation void from its inception. Here again, nearly all of the cases cited to support the argument on this point, and the language to which reference is made in them, pertain to a voidable marriage. (Sefton v. Sefton, 45 C. 2d 872, 291 P. 2d 439; Williams v. State, 25 N. Y. S. 2d 968, 175 Misc. 972; Sleicher v. Sleicher, supra; and others.) It is further argued that regardless of the rights and duties as between the parties to the purported marriage, third persons are not adversely affected by a proceeding to which they were not parties (here the Arizona decree). Again the appellees rely upon the doctrine of “relation back.” The appellees having acquired no additional rights under the trust instrument by reason of the void marriage, the Arizona decree did not affect their rights. They were not interested parties. In the early case of Powell v. Powell, supra, in 1877 the court reviewed the effect of a decree of nullity and the ramifications of a marriage void ab initio, and said: “A sentence of nullity like this would strip her of all alimony, deprive her of all interest in the property of defendant, and bastardize her children.” (p. 380.) (See, also, Fuller v. Fuller, supra.) Subsequently by statute children of a void or voidable marriage were legitimatized. (G. S. 1949, 23-124 and 60-1515.) But this affected only the children of such marriage and touched no other parties. It does not follow, as appellees contend, that these statutes are authority for the proposition that the legislature has declared the rights of third parties cannot be affected by annulment. If our legislature had wished to limit the effect of a decree of nullity as to other third parties, it could have done so by enacting a statute similar to California. Section 86 of the California Civil Code provides: “A judgment of nullity of marriage rendered is conclusive only as against the parties to the action and those claiming under them.” (See, Price v. Price [1938], 24 C. A. 2d 462, 75 P. 2d 655; and Sefton v. Sefton, supra.) It is argued by the appellees that a reversal of the judgment of the trial court would force trustees and executors making distributions upon “remarriage” to do so at their peril. They say it is not difficult to envision a situation where a trustee or executor may have long been paying out income, or may have distributed the corpus to various beneficiaries, only to learn some years later that the “marriage” or “remarriage” has been declared void ab initio. The problems suggested by the appellees are not involved in this case. The trustee has paid no money out in reliance upon the fact that there was a remarriage. As a legal proposition neither the trustee nor the children have changed their positions. The costs incurred by the trustee in dividing the trust estate into shares, and those which may be encountered in changing the estate back to its original status on the books, are expenses of administration of the trust estate and recoverable to the trustee, as such, out of the earnings of the trust. The problems raised by the appellees can easily be faced by a court of equity when they arise. There are ample resources for solutions in the doctrine of estoppel, laches and other equitable doctrines. Certainly, if the trustee had made distributions to the children in reliance upon Mrs. Bach’s belief and notice that she was married, the court could apply estoppel or another doctrine to protect the trustee from demands as to any distribution actually made in good faith. (See, 55 C. J. S., Marriage, § 38.) In conclusion we hold the appellant is entitled to the income from the entire trust from the date of the void marriage ceremony. The judgment of the lower court is reversed. Robb, J., dissents.	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The opinion of the court was delivered by Robb, J.: Plaintiff in a damage action for personal injuries appeals from the judgment of the trial court wherein it set aside a general verdict of $10,000 for plaintiff and entered judgment in favor of defendant by reason of the jury’s special findings of fact. On May 21, 1958, about 4:40 p. m. plaintiff was driving a 1955 Ruick with good tires and brakes east on McCormick street in Wichita, Kansas, which is a through east-west paved street, at a speed of thirty to thirty-five miles per hour. The speed limit set by city ordinance was thirty miles per hour. Defendant was driving his 1957 Ford about twenty-five miles per hour west on McCormick intending to turn left'or south onto Hiram, a paved street which had stop signs where it entered McCormick. A car coming from the south on Hiram was pulling away from the stop sign located there and had its left turn signal on to go west on McCormick. Plaintiff, who was 200 feet west of Hiram, saw the third car stop at the stop sign and then start to turn west in front of her. She took her foot off the accelerator to slow up. Defendant slowed to a “hesitation stop” to let the third car proceed west in front of him. Defendant was proceeding with his left turn to the south when he saw plaintiff’s car only seventy feet away. He realized it was traveling thirty-five to forty miles per horn: and he tried to speed up and get out of the way but his car was struck on the right rear. Defendant had started his left ton signal about forty feet east of Hiram and his speed had ranged from five to fifteen miles per hour. Plaintiff testified she did not see defendant’s car because of the third car which darted out in front of her to make a left turn. She decreased her speed and defendant toned to the left in front of her. She applied the brakes fully and swerved out to miss defendant when she saw him ninety feet away but hit him. Defendant told her he saw her coming but thought he could make it. From the testimony of a police traffic investigator it was shown Hiram street is thirty-six feet wide, that McCormick west of the intersection is forty feet wide, but east of the intersection is forty-four feet for a distance of sixty feet and then according to a chart introduced it narrows down seven feet on each side to thirty feet in width. Plaintiff’s left front tire had made skidmarks for a distance of sixty-eight feet; her left rear tire for a distance of fifty-seven feet; the right front tire for fifty-seven feet; and the right rear tire for sixty-one feet. The trial court submitted the following special questions and by its answers thereto the jury made the following special findings of fact: “1. What speed do you find the plaintiff’s automobile was traveling as it approached the intersection and at the time she applied her brakes. A. More than 30 miles hr. “2. Do you find that the speed found by you in question number 1 was a contributing cause of the accident and the claimed injuries of plaintiff? A. Yes. “3. State the distance in feet you find that the plaintiff’s automobile was west of the intersection at the time the defendant commenced his left turn? A. About 90'. “4. At what distance do you find that an automobile traveling east on McCormick Street could have stopped at the speed of 30 miles an hour? A. Evidence inconclusive. “5. After the plaintiff observed the defendant making the left turn what, if anything, prevented her from (a) turning to the left or south half of McCormick Street? A. Braking. (b) Stopping? A. Speed and distance. “6. If you find for the plaintiff then state what act or acts of negligence you find against the defendant? A. Failure to yield Right of Way. “7. Do you find that the plaintiff was so close to the intersection as to constitute an immediate hazard when the defendant commenced his turn? A. Yes.” The jury returned a general verdict for plaintiff in the sum of $10,000. Upon defendant’s motion for judgment on the special findings notwithstanding the general verdict, the trial court set aside the jury’s general verdict and on the special findings rendered judgment for defendant. Hence, this appeal. By its answers to special questions No. 1 and No. 2 the jury found plaintiff guilty of negligence because of her speed of “More than 30 miles [per] hr.” and because this “was a contributing cause of the accident,” which is consistent with defendant’s negligence under the answer to special question No. 6 reading, “Failure to yield Right of Way,” but is inconsistent with the general verdict of $10,-000 for plaintiff. Under such a situation the trial court may set aside the general verdict and enter judgment on the special findings. (G. S. 1949, 60-2918; Applegate v. Home Oil Co., 182 Kan. 655, 665, 324 P. 2d 203; Taylor v. Johnson, 186 Kan. 561, 352 P. 2d 436; Holt v. Bills, 189 Kan. 14, 366 P. 2d 1009.) The Applegate case explains how an appellate court approaches the question of whether the special findings of a jury are consistent with each other and with the general verdict. There it was determined the answers to the special questions were consistent with each other and also with the general verdict against the defendants as follows: “We have reviewed the record and find no sound basis to sustain defendant’s claim that the special findings were inconsistent with the general verdict for the reason their negligence, as found by the jury, was not one of the proximate causes of plaintiff’s injuries. Considered in their entirety, the special findings do not compel the setting aside of the general verdict against the defendants, and the trial court properly overruled that motion.” (p. 665.) The above statement was at least strong dicta that had the special findings of fact been inconsistent with the general verdict, the former would have prevailed over the latter. The Taylor case involved special findings by the jury which were in turn inconsistent with its general verdict. It was there held: “If the jury’s special findings of fact are inconsistent with the general verdict and consistent with each other, the special findings control the general verdict and the trial court may give judgment based upon the special findings. (G. S. 1949, 60-2918.) “In an action for damages for personal injury, the general verdict and special findings are considered, and it is held: The special findings are consistent with each other and inconsistent with the general verdict. Therefore, the trial court had authority to enter judgment upon the special findings.” (Syl. ¶¶ 1, 2.) A comparison of the Taylor case with our present one shows the special questions and answers there did not so severely convict plaintiff of negligence, which caused or contributed to the collision, as here. In Holt v. Bills, supra, plaintiff was proceeding south and made a left turn to the east in front and across the path of defendant who was traveling north. The jury made special findings wherein both plaintiff and defendant were found guilty of negligence and returned a general verdict for plaintiff for $2,500. The trial court granted defendant’s motion for judgment notwithstanding the verdict in favor of plaintiff. This court in affirming the trial court stated: “The record in an appeal from the order of the trial court granting judgment notwithstanding the verdict for defendant in an action based upon an automobile collision is examined, and the finding of the jury convicting plaintiff of contributory negligence is found to be binding upon this court and the special findings being consistent with each other and contrary to the general verdict, the judgment for defendant must stand. (G. S. 1949, 60-2918.)” (Syl.) We again point out that in the case now before us the special findings of the jury were much stronger in convicting this plaintiff of contributory negligence than were those of the jury in the Holt case. We have considered other authorities called to our attention by the parties but are of the opinion those already discussed are so compelling we can only conclude the trial court did not err in sustaining defendant’s motion to set aside the general verdict and in entering judgment for defendant on the juiy’s special findings of fact. Judgment affirmed.	[ -16, 106, -80, -84, 11, 64, 34, 90, 97, -107, -76, 51, -81, -63, 69, 105, -2, -67, 84, 35, -9, -73, 23, -125, -78, 51, -13, -52, -105, -40, 118, 118, 78, 48, 10, -43, 38, 72, 5, 92, -114, 22, -87, -12, 25, 10, -76, 120, 0, 13, 49, -113, -45, 46, 24, -46, -87, 44, -53, -88, -112, -16, -63, -121, 127, 16, -93, 4, -66, 3, 120, 25, -104, 49, 0, -8, 114, -90, -126, -12, 109, -101, 12, 38, 103, 33, 29, -49, -4, -120, 38, 120, 15, -89, 50, 24, 41, 37, -106, -97, 111, 18, 7, 124, -35, 5, 89, 104, 3, -53, -112, -79, -49, 50, 22, 92, -21, -123, 51, 97, -51, -14, 78, 69, 114, -69, -97, -106 ]
The opinion of the court was delivered by Wertz, J.: This was an action by the Chicago, Rock Island & Pacific Railroad Company, a corporation, and its oil and gas lessees, plaintiffs (appellants), to quiet title to a narrow strip of land, including the underlying minerals, running across defendants Sanders’ farm. Defendants (appellees), Sanders and their lessees, cross petitioned to quiet title to the entire quarter section of land owned by the Sanders, of which the strips are a part, conceding the existence of an easement for right-of-way purposes in the mentioned railroad. From a judgment entered in favor of the defendants, plaintiffs appeal. The pertinent facts follow. Prior to the year 1887, the Chicago, Kansas and Nebraska Railway Company decided to build a railroad into Wichita. Before commencing construction it was required to file with the county clerk a map and profile of its proposed route and give written notice of such proposed construction to the occupants of the land over which the line was to be constructed (G. S. 1868, Ch. 23, §§ 48, 49, now G. S. 1949, 66-403, 66-404). In January, 1887, a map and profile was filed by the railroad and captioned “Map of Located Line of the C. K. & N. Ry.” and covered the entire route across Sedgwick county. It showed that the line diagonally crossed the farm now owned by Sanders. On February 15,1887, George W. Long and his wife, Mary Long, then owners of the land in question, executed an instrument in writing, bearing caption “Deed,” granting to the mentioned railway: “A strip of land one hundred & one hundred & fifty feet wide of which the center line of the route and line of the Chicago Kansas and Nebraska Railway Company as the same is now surveyed staked and located is the center being Fifty & Seventy five feet each side of the center line of said route over across and through the following described tracts of land as said route and line of said railway passes through the same to wit “The northeast quarter of Section Three (3) Township Twenty five south (25) Range two (2) East being One hundred feet wide from north line of said quarter section to Station 2703 and One Hundred & Fifty wide from Station 2703 to Station 2720 and One hundred feet wide from Station 2720 to South line of said quarter Section [Called ‘Tract A’ by the trial court and appellants] also in addition to the above described tract a strip of land running parallel with and adjacent thereto Fifty feet wide and Four hundred feet long being between Stations 2717 & 2721 [Called ‘Tract B’ by the trial court and appellants] “Together with all such additional or extra ground out of the lands of the said Grantor or Grantors adjoining such strip of land hereby conveyed as said Company may at any time require to be paid for by said Company at the price per acre paid for said strip and said Railway Company may through its Agents employes servants or contractors encroach upon the adjoining lands outside of the limits above mentioned to which said Grantor or Grantors have title or possession for the purpose of building or constructing its roadbed and railroad and of completing and trimming its cuts and fills and for dll other purposes for the building constructing or maintaining its roadbed or of maintaining its railroad.” (Our emphasis.) The deed further provided that the railway company and its successors had the right to erect and maintain snow fences on the lands owned by the grantors not more than 200 feet north or west of the center line of the railway. Subsequent to the mentioned deed, by mesne conveyances, all the interests of George W. Long and Mary Long became vested in defendants John E. and Lula M. Sanders. Subsequent to the 1887 deed, by mesne conveyances, all of the interests of the Chicago, Kansas and Nebraska Railway Company in said quarter section, acquired by the deed, became vested in plaintiff Chicago, Rock Island & Pacific Railroad Company. In 1888 the railroad completed construction of its line through the land in question, making such cuts and embankments on both sides of the track as were necessary for the proper construction and security of the roadbed. The line followed tract A. Tract B, 50 by 400 feet, running parallel with and adjacent to tract A, did not locate tract B on either the east or west side of tract A; however, prior to construction of the line a stream crossed the center line of tract A in two places. In the construction of the line the stream was diverted, which necessitated in making cuts and embankments on both sides of the track as necessary for proper construction and security of the roadbed. It appears that both tracts were used for such purpose. No other use of the property has been made by the railroad or its successors since its construction. On April 12, 1956, the Sanders executed an oil and gas lease covering the entire quarter section, including the right-of-way, and warranted title to all of the land. A producing oil well was drilled on the Sanders’ farm. On October 28, 1958, the Chicago, Rock Island & Pacific Railroad Company executed an oil and gas lease in favor of plaintiff Harvest Queen Mill & Elevator Company and J. E. Newman covering the strip of land in question. Subsequently Newman assigned a one-half interest in the lease to the plaintiff Newman Investment Company. In May, 1959, plaintiffs Harvest Queen Mill & Elevator Company and Newman Investment Company, under the terms of their lease from the railroad, entered upon the 50-by-400-foot tract described in the 1887 deed and began making plans to drill a test well. Defendants advised the plaintiffs that they were claiming an interest in the land and the minerals, whereupon plaintiffs filed their petition, as amended, against defendants to quiet title to the strips as described in the 1887 deed and the underlying minerals. Defendants Sanders and their lessees cross petitioned to quiet title to the entire quarter section of land owned by the Sanders, of which the strips were a part, conceding the existence of an easement for right-of-way purposes in the mentioned railroad. The case was tried to the court, which made findings of fact and concluded as a matter of law that the 1887 deed was clearly a conveyance for railroad right-of-way purposes only and the grantors therein warranted an easement for such purposes; that plaintiffs were not the owners of the minerals that may be produced from the land described therein and that they had no right to explore for or produce the same; that title should be quieted in the defendants as their interests appear, subject'to the Chicago, Rock Island & Pacific Railroad Company’s easement for railroad purposes, and entered the judgment accordingly in defendants’ favor. From an order overruling plaintiffs’ post-trial motions, they appeal. Plaintiffs concede that the primary question to be resolved by this appeal is the quantum of estate which was conveyed by the 1887 deed. They assert that the instrument is a general warranty deed and by its terms it conveys to the railroad either a fee simple absolute or a fee simple determinable title in the strips of land described in the deed; that there is no language in the deed which in any way either restricts or limits the estate granted or the use to which the strips were to be put. Defendants contend, in substance, that the deed conveyed only an easement for railroad right-of-way purposes and the right to use so much of the surface of the land as was necessary to effect the purpose of the building and maintenance of the railroad right-of-way. In the case of Abercrombie v. Simmons, 71 Kan. 538, 81 Pac. 208, a railroad had acquired a right-of-way through defendant’s farm by a standard form general warranty deed. Plaintiff was the railroad’s grantee. He claimed that the railroad owned a fee title. It was shown that prior to the execution of the deed the railroad contemplated the construction of a railroad over his land and had actually surveyed and had staked out the route and line. The map and profile of the route was in the course of preparation and was completed a few days later and filed with the county clerk, all of which was done in the instant case with the exception that in this case the map and plat was filed with the county clerk prior to the execution of the deed to the railroad, and the deed made reference thereto. In holding that the railroad did not own a fee title, the court reviewed the pertinent statutes and stated: “The statutes recognize that land for a right of way may be acquired by purchase as well as by compulsory proceedings. When so purchased for that purpose does the railroad company hold a higher or better right than where it is acquired by virtue of eminent domain? May a railroad company purchase a strip of land extending a great distance through the country and over many farms, abandon the enterprise, and then sell the strip to those who will put it to a wholly different use — one that might be both obnoxious and menacing to the adjoining owners? Where an absolute and unqualified fee-simple title is acquired by a railroad company it may of course, in the absence of express or implied restrictions, be conveyed to another. After stating this rule Judge Elliott remarks: “ ‘But where there is an implied restriction, as is often the case in regard to the right of way, or the like, of a railroad company, the grant does not ordinarily vest a fee in the company, but vests such an estate, usually an easement, as is requisite to effect the purpose for which the property is required. “The fact that the deed contains covenants of warranty, or that the right acquired is designated as a fee, is not necessarily controlling. . . .” Although the railroad used a general warranty deed containing covenants of warranty, the court held: “. . . the deed and those things to which we may look in its interpretation plainly show that the strip was sold on the one part, and purchased on the other, as and for a right of way for a railroad. This use, being within the contemplation of the parties, is to be considered as an element.in the contract, and limits the interest that the railroad acquired. It took the strip for a specific purpose, and could hold it so long as it was devoted to that purpose. Whether the right of way purchased should be designated as an easement or as a qualified or determinable fee may not be very important. A right of way, although commonly designated as an easement, is an interest in land of a special and exclusive nature, and of a high character. “Whatever its name, the interest was taken for use as a right of way, it was limited to that use, and must revert when the use is abandoned.” Able and industrious counsel for plaintiffs have reviewed cases from foreign jurisdictions relative to conveyance of fee simple absolute and fee simple determinable title and assert that the public policy of this state as adopted in Abercrombie v. Simmons, supra, is not in accord with the decisions of other states, that the Abercrombie case was incorrectly decided under the applicable statutes and judicial decisions, that it should now be disapproved and overruled insofar as it holds that regardless of the language and form of the deed, a railroad cannot take a fee simple absolute or a fee simple determinable title in land that is to be used for right-of-way purposes, and that this court should now hold that a railroad may acquire by grant or deed a fee simple absolute or a fee simple determinable estate in land purchased for right-of-way purposes. In the instant case the 1887 deed and those things to which we may look in its interpretation plainly show that the strips were sold by the grantor and purchased by the grantee railway company as and for a right-of-way for a railroad. This use being within the contemplation of the parties, it is to be considered as an element in the contract and limits the interest that the railroad acquired, i. e., an easement for railroad purposes. We have held that when land is devoted to railroad purposes it is immaterial whether the railway company acquired it by virtue of an easement, by condemnation, right-of-way deed, or other conveyance. If or when it ceases to be used for railway purposes, the land concerned returns to its prior status as an integral part of the freehold to which it belonged prior to its subjection to use for railway purposes. (Federal Farm Mortgage Corp. v. Smith, 149 Kan. 789, 792, 89 P. 2d 838.) This court has uniformly held that railroads do not own fee titles to narrow strips taken as right-of-way, regardless of whether they are taken by condemnation or right-of-way deed. The rule is in conformity with this state’s long-standing public policy and gives full effect to the intent of the parties who execute right-of-way deeds rather than going through lengthy and expensive condemnation proceedings. (Abercrombie v. Simmons, supra; Bowers v. Atchison, T. & S. F. Rly. Co., 119 Kan. 202, 237 Pac. 913, 42 A. L. R. 228; Disney v. Long, 90 Kan. 309, 313, 133 Pac. 572.) In Midland Valley R. Co. v. Corn, 21 F. 2d 96, 98, it was held that land acquired by a railroad company, whether by purchase or compulsory proceedings, shall be held and used for such grant only and where it was conveyed for right-of-way purposes it was limited to that use. The railroad, of course, is entitled to the exclusive use of the right-of-way while it is used for railroad purposes, but any right not inconsistent with the easement remains in the abutting owner. It must therefore be inferred that the legislature did not intend to confer upon the railroad the power to acquire title to any greater interest in land either by condemnation or by deed than was necessary for right-of-way purposes. Generally a railroad company in acquiring land for railroad right-of-way, whether it be by grant or condemnation proceedings, is held to take not the fee, but only a special interest therein, usually termed an “easement,” which special interest or title is taken for railroad purposes, that is, public purposes, so that the railroad has no right to take from such right-of-way any underlying minerals and appropriate them to its own use or convey them to others. Where a railroad merely acquires an easement of way the title to the underlying minerals found or existing within the limits of the right-of-way and below the grade of the road remain in the owner of the fee who might mine for them so long as he does not interfere with the operation of the railroad nor imperil the surface support. (Harvey v. Railroad Co., 111 Kan. 371, 372, 373, 207 Pac. 761; Railroad Co. v. Schmuck, 69 Kan. 272, 76 Pac. 836; Abercrombie v. Sim mons, supra; Anno. 21 A. L. R. 1139.) We find no precedent in this state holding that a railroad acquiring a right-of-way for railroad purposes either by grant or condemnation is entitled to the underlying minerals. For many years it has been the established law of this state that railroads receive easements only in strips taken as rights-of-way, regardless of whether they are taken by condemnation or deed. The rule is based on long-standing public policy. The Abercrombie case was decided in 1905. For more than a half century the public has been informed as to the rights granted by such a deed. Lawyers have repeatedly examined and passed titles based upon this court’s construction of such a deed. Valuable property rights have been acquired, sold and warranted based upon the knowledge that under our law such a deed conveys only an easement for right-of-way purposes. Where questions arise which affect titles to land, it is of great importance to the public that when they are once decided they should no longer be considered doubtful. Such decisions become rules of property, and many titles may be injuriously affected by their change. Legislatures may alter or change their laws, without injury, as they affect the future only, but where courts vacillate and overrule their own decisions on the construction of statutes affecting the title to real property, their decisions are retrospective and may affect titles purchased on the faith of their stability. Doubtful questions on subjects of this nature, when once decided, should be considered no longer doubtful or subject to change. (Minnesota Co. v. National Co., 3 Wall. 332, 18 L. Ed. 42; Bull v. Kelley, 83 Kan. 597, 602, 603, 112 Pac. 133; 21 C. J. S., Courts, §216, p. 396.) Although our legislature has held twenty-eight regular sessions since the decision in the Abercrombie case, the statutes have not been modified, indicating that our legislators are satisfied with the interpretation of the statutes and the law as enunciated in the Abercrombie case, and we know of no reason at this late date for making any modification of our decision on the question involved. It follows that the railway company, by virtue of the 1887 deed, took nothing more than an easement for right-of-way purposes to the strips of land described therein and only so much of the surface as was needed to construct, build and maintain the roadbed in the operation of their railroad, and the fee title to the property conveyed for that purpose, including the underlying minerals, remained in the grantors or their successors in title, the defendants herein. The deed neither conveyed a fee simple absolute title nor a fee simple determinable title in the plaintiffs, and the court did not err in quieting title to the land in question and the underlying minerals in the defendants as their interests appeared. The judgment of the trial court is affirmed.	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The opinion of the court was delivered by Jackson, J.: The appeal herein involved is by the landowners as appellants from certain orders in a condemnation proceeding brought by the State Highway Commission in acquiring a new right of way for improved state highways. The present appeal is unusual in that both sides attack the opposing parties’ right to appear before the court. First of all, the highway commission challenges the landowners’ appeal to this court and contends there is no valid appeal in this case. We must say that it would appear that the commission is correct. That being the case, we shall give only as brief an account of the facts herein as may be necessary to show the fault in the appellants’ appeal. The condemnation proceeding was filed in the Sedgwick district court on November 21, 1957. By December 18, 1957, the tract owned by the appellant landowners had been appraised at $57,280. On January 7, 1958, the commission filed a motion to approve the award of the commissioners and on the same day, the court approved the commissioners’ award, fixed the appraisers’ fees, and taxed the costs. It is also shown that on January 10, 1958, the highway commission paid in the total amount of the appraisers’ awards to the clerk of the district court, and on January 20, 1959, the landowners herein applied to withdraw the $57,280, which the appraisers had allotted to them for the land taken for highway purposes. On the same day the landowners received their money. Before the landowners received their money, the highway commission had on January 16, 1958 filed a verified condemnor’s estimate of just compensation and also a notice of appeal. The commission’s estimate placed the value of the landowners’ property at the figure of $42,960. The above procedure adopted by the highway commission was at least an attempt to follow the procedure outlined in G. S. 1961 Supp. 26-102 as that section of the statute was amended in 1953. The idea of the commission is that the condemnation should become complete at once, with tire title passing to the commission, but that the commission should retain the right to appeal as to the price paid for certain of the condemned lands. It should also be noted that from the counter abstract, we find the above landowners also appealed from the award of the appraisers on January 17, 1958. The two appeals were later consolidated. The above consolidated appeals from the award of the appraisers were finally tried by the district court to a jury from February 7 to 9, 1961, with the jury bringing in a verdict which amounted to $5,728 less than the landowners had received under the award of the appraisers. Thus the order of the district court was that the landowners pay back to the highway commission the above amount of $5,728 with interest at 6% per annum from the 9th day of February, 1961. Since the landowners appealed from the appraisers’ award themselves, it would appear to make little difference whether the commission did or did not appeal. See Moore v. Kansas Turnpike Authority, 181 Kan. 840, 317 P. 2d 384; and Jenkins v. Kansas Turnpike Authority, 181 Kan. 862, 317 P. 2d 401. Prior to the above trial, the landowners had on January 20, 1961, filed a motion to dismiss the appeal of the highway commission on ground that the commission had acquiesced in the award of the appraisers by paying into the clerk the full amount of the award and obtaining approval thereof before starting any move to appeal from the award. This motion was overruled on February 1, 1961, and landowners immediately filed an appeal to this court, which they later dismissed. At the beginning of the trial on February 7, 1961, the landowners renewed this above motion to dismiss because of acquiescence by the highway commission and also filed another motion to the effect that the evidence as to the value of the landowners’ property be limited to testimony that it had a value of $2,000 per acre or higher. It was contended that the commission had acquiesced in that value for the land. The trial court overruled these two motions and proceeded to trial with a result as noted above. Landowners filed a motion to set aside the verdict and to grant a new trial. The trial court overruled the motion. On April 7, 1961, landowners filed their appeal to this court in which they appealed only from the motion of January 20, 1961, noted above and also from the two motions filed at the beginning of the trial on February 7, 1961, as above noted. There is no appeal from either the final judgment or from the order overruling the motion for a new trial. It is mentioned in the notice of appeal that the court covered the overruling of the motions of February 7, in the journal entry formalizing the judgment, but it is clear that no appeal is taken from the judgment itself. Rather belatedly on February 8, 1962, appellant landowners filed a new notice of appeal seeking to amend their appeal by adding to the scope of the appeal the order denying the granting of the motion for new trial. This last notice is ineffective since the court has definitely concluded that an amendment to the notice of an appeal can be made only under G. S. 1949, 60-3310, in a case in which a valid, subsisting appeal already exists. This was the holding in the case of National Reserve Life Ins. Co. v. Hand, 188 Kan. 521, 363 P. 2d 447, which is a very recent decision and one in which the court re-emphasized the various rules of appellate jurisdiction. We direct the attention of those interested to the Hand case and the authorities there cited. From what has been said above, it is clear that appellants have appealed from no final, appealable orders. The denial of a motion to dismiss is usually held not to be an appealable order until final judgment has been rendered and is appealed from. (Runnels v. Montgomery Ward & Co., 165 Kan. 571, 195 P. 2d 571 and cases cited.) The motion as to the limitation of evidence would require the filing of an appeal from the motion for new trial since it would he in the nature of a trial error. (Russell v. Phoenix Assurance Co., 188 Kan. 424, 362 P. 2d 430; Dick v. Dick, 188 Kan. 487, 363 P. 2d 457; Ford v. Sewell, 188 Kan. 767, 366 P. 2d 285.) All that remains to he said is that the motion of the State Highway Commission to dismiss the appeal of the landowner appellants must be sustained. The appeal of the appellants is hereby dismissed. It is so ordered.	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Stewart, J.; This is an appeal from a district court decision that Harold L. McGranahan could structure a settlement in a work-related tort action against a third party to avoid subrogation by Bettis Asphalt, his employer, and National Indemnity Company, its workers compensation carrier. Harold L. McGranahan was in a pickup truck when his vehicle was struck by an Umthun Trucking Company truck driven by Donald W. McGough. At the time of the accident, McGranahan was working and on the job for Bettis Asphalt Company. McGranahan suffered injuries to his right knee. He filed a workers compensation claim and received benefits, which included temporary disability compensation, medical expenses, and permanent partial disability compensation. McGranahan also sued McGough and Umthun Trucking Com pany. Bettis Asphalt and National Indemnity Company moved to intervene, and the motion was granted. McGranahan settled with McGough and Umthun Trucking for an amount that included medical expenses, loss of service for his wife, and pain and suffering. The district court found the settlement “fair, just and equitable” and entered the judgment. The district court later resolved the subrogation issue when it allowed Bettis Asphalt and its insurer to recover only the medical expenses less attorney fees. Bettis Asphalt and National Indemnity Company appeal on the subrogation issue as it pertains to the recovery for pain and suffering and loss of services. To resolve the issues in this case, this court must determine the legislative intent of the workers compensation subrogation statute, K.S.A. 1989 Supp. 44-504. “The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.” State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). Since the statute at issue is a part of the Workers Compensation Act an additional rule of construction must be remembered. “[W]hen a workers’ compensation statute is subject to more than one interpretation, it must be construed in favor of the worker if such construction is compatible with legislative intent.” Houston v. Kansas Highway Patrol, 238 Kan. 192, 195, 708 P.2d 533 (1985). The question here concerns the extent of an employer’s subrogation rights to an employee’s recovery in a third-party action. “The extent and nature of the subrogation rights of an employer under the workmen’s compensation statutes are matters for legislative determination.” Negley v. Massey Ferguson, Inc., 229 Kan. 465, 469, 625 P.2d 472 (1981). Since 1927, the legislature’s determination has been expressed in one version or another of K.S.A. 44-504, which now says in part: “(a) When the injury or death for which compensation is payable under the workers compensation act was caused under circumstances creating a legal liability against some person other than the employer or any person in the same employ to pay damages, the injured worker or the worker’s dependents or personal representatives shall have the right to take compensation under the workers compensation act and pursue a remedy by proper action in a court of competent jurisdiction against such other person. “(b) In the event of recovery from such other person by the injured worker or the dependents or personal representatives of a deceased worker by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by the employer to the date of such recovery and shall have a lien therefor against such recovery and the employer may intervene in any action to protect and enforce such lien. Whenever any judgment in any such action, settlement or recovery otherwise is recovered by the injured worker or the worker’s dependents or personal representative prior to the completion of compensation or medical aid payments, the amount of such judgment, settlement or recovery otherwise actually paid and recovered which is in excess of the amount of compensation and medical aid paid to the date of recovery of such judgment, settlement or recovery otherwise shall be credited against future payments of the compensation or medical aid.” K.S.A. 1989 Supp. 44-504. “The applicable language in K.S.A. 44-504 is clear and unambiguous — and not capable of two interpretations. The statute unequivocally states ‘in the event of recovery from such other person . . . by . . . settlement . . . the employer shall be subrogated to the extent of the compensation and medical aid. . . ” Houston v. Kansas Highway Patrol, 238 Kan. 192, 195-96, 708 P.2d 553 (1985). See Negley v. Massey Ferguson, Inc., 229 Kan. at 468. Further, K.S.A. “44-504 expressly gives the employer a lien on the first proceeds recovered by the injured workman from a negligent third party.” Houk v. Arrow Drilling Co., 201 Kan. 81, 92, 439 P.2d 146 (1968). Workers compensation laws have always been at best a compromise. “There is thus a sort of balancing of benefits in the common interest. Some employees may receive less compensation for injuries received than they would have been able to recover in a common-law action, while many other employees will receive benefits which they otherwise would not be able to receive because of the inability to establish the employer’s negligence.” Hormann v. New Hampshire Ins. Co., 236 Kan. 190, 192, 689 P.2d 837 (1984). The terms of this compromise are incorporated in employment contracts, and the parties to those employment contracts are bound by the remedies provided by the act. 236 Kan. at 193. Further, “[t]he Act is considered to be substitutional rather than cumulative and supplemental, and, therefore, provides the exclusive remedy for the injured worker.” 236 Kan. at 193. Until the Supreme Court’s decision in Houston v. Kansas Highway Patrol, 238 Kan. 192, there was little question about the extent of employers’ subrogation rights in workers compensation cases. In fact, the majority in Houston adopted, in effect, the traditional position on subrogation rights. That case involved a state highway patrol sergeant who was injured while writing a ticket on a highway. The injury occurred when a driver struck the officer’s car, which then struck him. He suffered a 25 percent permanent partial disability as a result of the accident and received a workers compensation award of approximately $40,000. The worker claimed, unsuccessfully, that he should be able to retain $2,273.62 of the settlement because that portion of the settlement was for damages that were not compensable under the Workers Compensation Act. 238 Kan. at 195. In denying the worker’s claim, the court said: “Had the settlement documents clearly stated a certain amount was specifically for these personal noncompensable losses and had such amount been supportable in fact (as opposed to an effort to circumvent the operation of the statute), a much stronger argument in support of claimant’s position could have been made. Such is not the situation before us. We conclude the trial court did not err in denying claimant the right to take his claimed personal losses off the top of the settlement.” 238 Kan. at 196. The concurrence and dissent went much further: “The purpose of K.S.A. 44-504 is to insure that the injured worker does not receive a double recovery. The employer should be reimbursed only from that portion of a settlement or judgment that would be compensable under the Act. That is the intent of the legislature.” 238 Kan. at 200-01. In the case at bar, the terms of the settlement agreement were spelled out as to medical expenses, loss of services, and pain and suffering. There is no question that the amount for medical expenses is subject to subrogation. The parties disagree, however, about McGranahan’s right to retain the pain and suffering award and the loss of services award. Given the history of 44-504, there is no question the legislature intended awards for personal injury to be subject to subrogation in situations similar to the one at bar. Pain and suffering damages are traditionally a portion of damages recoverable in personal injury actions. Indeed, Kansas courts have recognized this in considering subrogation rights in workers compensation cases. See, e.g., Negley v. Massey Ferguson, Inc., 229 Kan. at 468 (in event employee recovers, employer is subrogated to extent of compensation paid by employer); Houk v. Arrow Drilling Co., 201 Kan. at 91-92 (employer has lien of first proceeds from worker’s tort action); Moeser v. Shunk, 116 Kan. 247, 252, 226 Pac. 784 (1924) (elements of damage include pain and suffering as well as financial loss). Though appellate courts in Kansas have considered the subrogation question a number of times in a number of ways, none has ever held that an employer should not be subrogated to damages for pain and suffering awarded a worker in a 44-504 situation. It should also be noted the plaintiff in Houston never claimed a right to withhold pain and suffering damages from subrogation. Instead, the worker sought to retain only damages for “losses of sick pay, of certain holiday pay, and of personal property.” 238 Kan. at 195. Nor did any member of the Supreme Court in Houston suggest that the worker had any right to withhold pain and suffering damages from subrogation. The question of the employer’s right to subrogation for the loss of services claim appears at first glance to be somewhat different. This element of damages, which has also been called loss of consortium, theoretically is damage to an injured worker’s spouse and not the employee. However, this right of action is governed by K.S.A. 23-205, which says in part: “Where, through the wrong of another, a married person shall sustain personal injuries causing the loss or impairment of his or her ability to perform services, the right of action to recover damages for such loss or impairment shall vest solely in such person, and any recovery therefor, so far as it is based upon the loss or impairment of his or her ability to perform services in the household and in the discharge of his or her domestic duties, shall be for the benefit of such person’s spouse so far as he or she shall be entitled thereto.” K.S.A. 23-205 includes loss of services as an element in personal injury damages that may be sought by the injured worker alone, and, therefore, the rationale for subrogation of pain and suffering damages would also apply. Family members, as well as employees, benefit from the compromise of workers compensation statutes. The family budget is spared loss of income and necessary medical expenses that it might otherwise incur. Had the injured worker died and his family prevailed in a wrongful death suit, his employer would have been entitled to subrogation of the proceeds. The right to subrogation in wrongful death workers compensation cases has a long history in Kansas and is discussed in detail in Moeser v. Shunk, 116 Kan. 247. Moeser involved questions of election of remedies under an earlier version of the Workers Compensation Act but is informative on the policy goals in subrogation. When an employee has been injured by the negligence of a third party who is not liable under the Act, the statute only permits the employer, who was not at fault but who is contracted to pay the employee, to be reimbursed for the money it was thus required to pay out of the monies the employee recovers from the third party. 116 Kan. at 252. K.S.A. 60-1904 provides that elements of damage in wrongful death actions may include “mental anguish, suffering, or bereavement; loss of society, companionship, comfort, or protection; loss of marital care, attention, advice or counsel; loss of filial care or attention; and loss of parental care, training, guidance, or education, and the reasonable funeral expenses for the deceased.” If loss of consortium as an element of damages is subject to subrogation in a wrongful death action, why should an action by a surviving worker differ? In their dissent in Houston, 238 Kan. at 199, Justices Lockett, Prager, and Herd posed the circumstance in which a worker’s automobile was damaged in his work-related accident. They felt that there was danger under the majority opinion that property damage recovered could be subrogated to the employer. Property loss, however, is a separate cause of action from a personal injury claim, even when against the same defendant. Such loss is not merely an element of damages in a personal injury claim. To allow plaintiff's and defendants to specify a particular element of personal injury damage in their settlement so as to defeat subrogation of that award to the employer who has compensated the employee for that personal injury defeats the intent of K.S.A. 1989 Supp. 44-504. We believe that all elements of personal injury damages, including medical expenses, lost wages, disability compensation, pain and suffering, and loss of services, should be subject to subrogation. We affirm the district court’s determination that the award for medical expenses was subject to subrogation by the employer and reverse the district court’s determination that the award for pain and suffering and the award for loss of services were not subject to subrogation by the employer.	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King, J.: After convictions of one count of attempted possession of cocaine (K.S.A. 21-3301 and K.S.A. 1990 Supp. 65-4127a) and one count of possession of marijuana with intent to sell (K.S.A. 1990 Supp. 65-4127b[b][3]), Paul J. Hemme appeals the denial of his motion to suppress evidence seized pursuant to a search warrant. K.S.A. 22-2502. On January 26, 1989, officers in Jefferson County executed a search warrant issued for the residence of Paul Hemme. Some of the items seized included 90 pounds of marijuana, a triple beam scale, forceps, lactose milk sugar, a jar with seeds, a paper with notations that are consistent with drug buys, a box of zip-lock baggies, and some glass vials with residue. Subsequently, many of these items tested positive for the presence of cocaine and marijuana. Hemme moved to suppress the items seized pursuant to the search warrant, and a suppression hearing was held. Hemme contended the affidavit was defective. The court denied the motion to suppress. The case proceeded to a bench trial on stipulated facts, and the defendant was found guilty of attempted possession of cocaine and possession of marijuana with intent to sell. Hemme was sentenced to one to five years on the attempted possession of cocaine conviction and three to ten years on the possession of marijuana with intent to sell conviction. The officer applying for the search warrant filed a sworn “Affidavit and Application for Search Warrant,” to which he attached a signed, but unsworn, “voluntary statement” by Kasandra L. Riley. Hemme first contends that K.S.A. 22-2502 does not allow an additional unsworn statement to be attached to the affidavit supporting the search warrant. Whether the statute in question disallows an unsworn informant’s statement to be used by the court for a probable cause determination is a question of law, and “[t]his court’s review of conclusions of law is unlimited.” Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988). The trial court essentially found that the application for the search warrant was sworn to by the requesting officer and the informant’s statement did not have to be sworn to. We agree. K.S.A. 22-2502 states in relevant part: “(a) A search warrant shall be issued only upon the oral or written statement of any person under oath or affirmation which states facts sufficient to show probable cause that a crime has been or is being committed and which particularly describes a person, place or means of conveyance to be searched and things to be seized. Any statement which is made orally shall be either taken down by a certified shorthand reporter, sworn to under oath and made part of the application for a search warrant, or recorded before the magistrate from whom the search warrant is requested and sworn to under oath.” Hemme argues the informant’s statement falls under the requirements of the statute and must be a sworn statement. This ignores, however, the fact that the police officer included the facts supporting the application for the search warrant in his affidavit, which was in writing and was sworn to under oath. This met the requirements of the statute. THE PROBABLE CAUSE INQUIRY It is well settled that probable cause may be founded upon hearsay and information provided by informants. Franks v. Delaware, 438 U.S. 154, 165, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). The informant’s identity does not need to be disclosed. 438 U.S. at 165. Here, the officer took the next step, in addition to his sworn affidavit, by attaching the hearsay evidence he possessed, which is arguably a better procedure, as long as he has sworn to everything in the hearsay statement. The purpose of the statute is “to insure a means of examining the evidentiary basis, of a search warrant if later questions [arise].” Hearron v. State, 10 Kan. App. 2d 229, 233, 696 P.2d 418, rev. denied 237 Kan. 886 (1985). If anything, the officer eliminated any question as to what the informant told him. Hemme next contends there was not a substantial basis for finding probable cause to issue the search warrant. He asserts, among other things, the reliability and credibility of the informant is in question, there was no corroboration of the informant’s information by the police officer, the affidavit lacked specific dates of drug buys by the informant, and the information alleged by the informant was stale. The court, in State v. Rose, 8 Kan. App. 2d 659, 665 P.2d 1111, rev. denied 234 Kan. 1077 (1983), adopted the totality of the circumstances test for determining probable cause as set forth in Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983). The Rose court stated: “A judge, in determining whether to issue a search warrant, should consider the ‘totality of the circumstances’ presented and make a practical, commonsense decision whether there is a fair probability that contraband or evidence of a crime will be found in that particular place.” 8 Kan. App. 2d 659, Syl. ¶ 2. “On appeal, the duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” State v. Abu-Isba, 235 Kan. 851, Syl. ¶ 3, 685 P.2d 856 (1984). Prior to Gates, a two-pronged analysis was required to establish the credibility and reliability of a confidential informant. State v. Toler, 246 Kan. 269, 272, 787 P.2d 711 (1990). The means by which the informant received the information, as well as the veracity of the informant or the reliability of the information, had to be shown in the affidavit. 246 Kan. at 272. These remain viable factors to be considered. State v. Probst, 247 Kan. 196, 202, 795 P.2d 393 (1990). There must be some indicia of accuracy of the informant’s information. State v. Olson, 11 Kan. App. 2d 485, 491, 726 P.2d 1347, rev. denied 240 Kan. 805 (1986). Mere conclusions by the affiant are not sufficient to establish probable cause. State v. Jacob, 8 Kan. App. 2d 729, 731, 667 P.2d 397 (1983). As stated by the court in State v. Morgan, 222 Kan. 149, 151, 563 P.2d 1056 (1977): “Bald conclusions, mere affirmations of belief, or suspicions are not enough and, while an affidavit may be based on hearsay, there must be sufficient affirmative allegations of fact as to affiant’s personal knowledge to provide a rational basis upon which a magistrate can make a judicious determination of probable cause.” This statement of the law was recently approved in State v. Probst, 247 Kan. at 202. An examination of the affidavit supporting the search warrant indicates the affiant, Ronald Ewing, stated he came in contact with Kasandra Riley, who resided with an individual named Christopher Pifer and gave the address in Perry, Kansas. The informant related to him that, since October 1988, she had been a guest in the home of Hemme and observed drugs and drug paraphernalia in the bedroom of the residence. She described the box that contained baggies of cocaine. Riley informed Ewing she and Pifer had purchased cocaine during the visits and gave the price of the buys. She also related she observed Pifer buy marijuana. She knew the prices charged for various quantities of marijuana and cocaine. Two sections of the affidavit read as follows: “f) Riley advises affiant that Paul Hemme has visited her residence in the last month and had with him a quantity of cocaine and marijuana. That Hemme is a well known source of cocaine and marijua na by users of illicit drugs. That several parties owe Hemme large sums of U.S. currency from previously fronted drugs. “g) Riley advises affiant that she last visited the Hemme residence just prior to Christmas because of sickness and confinement to her residence by Pifer. That Hemme during this period had delivered cocaine to Pifer on one occasions [sic].” In addition, the affidavit stated that the officer confirmed the address given by the informant as that of the defendant. The date of the affidavit was January 26, 1989. The informant’s statement, if reliable and credible, could support probable cause. What does the affidavit contain that related to her reliability and credibility? This 18-year-old woman had come to Jefferson County from Texas only recently. She was a drug user. There is no information as to her motivation to talk to officers. The affidavit is bereft of any information supporting her reliability and credibility, with the possible exception of specific information as to prices and a description of the interior of the house. The officer did not have any relationship established whereby the informant had provided reliable information in the past. In the absence of any evidence establishing the reliability or credibility of the informant, corroboration by an independent police investigation would help establish probable cause. State v. Olson, 11 Kan. App. 2d at 491. But the only corroboration in the present case was confirmation of the defendant’s address. This was not enough in Olson to establish the reliability or credibility of the informant, and it is not enough here. The better practice would have been to bring her before the magistrate and let her testify in person under oath. A more serious problem with the affidavit is whether it relies upon stale information. The Kansas Supreme Court has stated: “The lapse of time which would tend to remove all probable cause for issuance of a search warrant by destroying any reasonable belief that drugs remain on the premises will depend on the facts and circumstances of each particular case.” State v. Jacques, 225 Kan. 38, 42, 587 P.2d 861 (1978). In that case, two days was not fatal. In Hearron v. State, 10 Kan. App. 2d at 232, an informant had seen stolen property within 72 hours of execution of the warrant. The court, in United States v. Myers, 553 F. Supp. 98 (D. Kan. 1982), set forth the principle that probable cause dissipates with time unless the criminal activity is continuous. 553 F. Supp. at 103. The court summarized four factors to consider when analyzing whether the information relied upon in obtaining a warrant is stale. The first is whether the criminal activity is continuous. The second is the time between the issuance of the warrant and the alleged criminal activity relied upon to establish probable cause. The third is the use of present or past tense verbs in the affidavit supporting a search warrant. Finally, the court looks at the likelihood the contraband would be moved from the location of the proposed search. Taking all of these factors into consideration, the court determined there must be a logical link between the place to be searched, the property to be seized, and the criminal conduct. 553 F. Supp. at 104-05. Here the informant stated she first began to observe the criminal conduct in October 1988. She was last in Hemme’s residence before Christmas of that same year. The affidavit for search warrant was prepared on January 26, 1989, at least a month later. Two to three months is not a long enough period to indicate a continuing course of conduct where there is no indication of the number of the informant’s visits nor their regularity. The lapse of one month between the alleged criminal activity and the informant’s statement to the deputy is also significant. Although she said the defendant made a house delivery to her in January, which might indicate a continuing pattern of sales, that is not sufficient to conclude he was still keeping drugs in his house, nor is the fact that people owed him money for drugs. We find there was insufficient probable cause to believe the drugs would still be at the defendant’s residence at the time of the issuance of the search warrant based upon the lack of sufficient information as to the reliability and credibility of the informant and the lack of sufficient corroboration by the police when coupled with the lapse of time between her observations and her statement to the deputy. BEYOND PROBABLE CAUSE As we now know, the search warrant did, indeed, result in the seizure of 90 pounds of marijuana and other items. Must that evidence be suppressed? In 1984, the United States Supreme Court carved out what has been referred to as the “good faith” exception to the exclusionary rule. See United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405, reh. denied 468 U.S. 1250 (1984). The Court determined that the purpose of the exclusionary rule was to deter police misconduct. 468 U.S. at 916. The Court stated that “suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.” 468 U.S. at 918. The Court established four situations in which the evidence seized pursuant to an invalid warrant should be suppressed. They are: (1) when the judge or magistrate is deliberately misled by false information; (2) when the judge or magistrate wholly abandons his or her neutral and detached role; (3) when the warrant was so lacking in specificity that the officers could not determine the place to be searched or the things to be seized; and (4) when there was so little indicia of probable cause contained in the affidavit for the warrant that it was entirely unreasonable for an officer to believe the warrant was valid. 468 U.S. at 923. The Kansas Supreme Court addressed Leon in State v. Doile, 244 Kan. 493, 769 P.2d 666 (1989). This opinion left open the question of whether the good faith exception to the exclusionary rule is operative in Kansas or whether it is encumbered with another layer or degree of probable cause finding. In Doile, the court found no probable cause existed for the warrant in question and stated that, to determine whether suppression was appropriate, the court must consider Leon. 244 Kan. at 501. The majority then analyzed the affidavit in light of the four situations in Leon and determined none of the exceptions were applicable. 244 Kan. at 502. Under Leon, it appears this would be the end of the analysis and the evidence would not be suppressed, but the court went on to quote some preliminary probable cause language from earlier in the Leon opinion and concluded that, if the magistrate erred in applying the totality of the circumstances test in finding probable cause, the evidence must be suppressed. 244 Kan. at 503. Thus, the court suppressed the evidence without finding bad faith because there had been a five-year lapse in drug sales at the residence and because the affidavit did not contain any factual allegations from which the judge could have found probable cause. Apparently, the majority of the court found a level of gross failure to show probable cause, which the minority referred to as absence of objectivity by the magistrate and unreasonableness of the officers to believe the warrant was valid and which would leave the rule of Leon intact. Recently, the Kansas Supreme Court again addressed the good faith exception as set forth in Leon. State v. Probst, 247 Kan. 196. In Probst, the trial judge, ruling upon the search warrant he had issued, found no probable cause for the warrant to have been issued, and also found that the magistrate (himself) had wholly abandoned his neutral or detached role and that no reasonable officer would have relied upon the probable cause determination. 247 Kan. at 205. Thus, the trial court found the good faith exception did not apply. 247 Kan. at 205-06. The Supreme Court agreed and stated, “We conclude that under the unusual circumstances here, the district court did not err in finding that the affidavit for the search warrant lacked probable cause and that the good faith exception as promulgated by Leon did not apply in this case.” 247 Kan. at 207. We conclude the Kansas Supreme Court, in Probst, approved the good faith exception to the exclusionary rule, although it did not apply in that case. Having found probable cause lacking, we now turn to the question of whether the good faith exception applies in this case, or rather whether this evidence should be excluded in furtherance of the exclusionary rule based upon the four tests of Leon. We look at each Leon test for exclusion for bad faith. First, there is no evidence of any false statement in the affidavit. The location of Hemme’s residence was correct, and the drugs and other items were where the informant said they would be. When we consider the neutrality and detached role of the magistrate, we note this was a reasonably close question. Although we disagree as to whether reliability and credibility of the informant were sufficiently demonstrated by the affidavit, she was a known person, giving a voluntary statement, who demonstrated a knowledge of the interior of the house, where things would be found, and the various prices for drugs. The fact that she was a drug user does not automatically exclude her ability to be reliable. Who else would be more likely to know what she knew? The 30-day delay is also a far cry from the five years of Doile, and the home delivery was some evidence of continuing activity. This affidavit did not contain mere conclusions. It contained facts. While we disagree with the magistrate’s conclusion of the totality of the circumstances, he did not lose his neutrality, detached role, or objectivity in reaching his conclusion. The specificity of this warrant is quite sufficient. The place, a residence, was located as described. The things to be seized, i.e., drugs, scale, etc., were not only described, but were found. Finally, looking at the indicia for probable cause for the officer serving the warrant to believe it was valid, we find nothing out of the ordinary. It is a routine search warrant based upon an officer’s affidavit which in turn was based upon the statement of a person who gave him a lot of facts, one of which — the location of the residence — he was able to verify. None of the four Leon tests for exclusion of evidence for bad faith require exclusion of the evidence in this case. Based upon the Leon good faith exception to the exclusionary rule, we affirm the denial of the motion to suppress.	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Davis, J.; The defendant, Clare E. Walden, appeals his conviction under the Habitual Violator Act, K.S.A. 8-284 et seq., claiming that his three qualifying convictions did not all occur “within the immediately preceding five years,” as required by K.S.A. 1989 Supp. 8-285. We affirm. The habitual violator petition was filed March 7, 1990, alleging that the defendant had on or about March 2, 1990, and within five years immediately preceding that date, been convicted of three violations listed in K.S.A. 1989 Supp. 8-285. The abstract of defendant’s driving record attached to the petition shows the following convictions: (1) March 13, 1985 — failure to remain at the scene of an injury accident; (2) November 6, 1985 — driving under the influence of alcohol or drugs (diversion); and (3) January 9, 1990 — driving under the influence of alcohol or drugs. All the defendant’s convictions are listed under K.S.A. 1989 Supp. 8-285(a) and provide the basis for the trial court’s habitual violator conviction under K.S.A. 1989 Supp. 8-285(b), if the convictions fall “within the immediately preceding five years.” The defendant was served by alias summons on May 10, 1990, and ordered to appear on May 24, 1990. His motion for continuance was granted, and at a hearing on June 21, 1990, the defendant stipulated that he was the person named in the abstract of convictions and that the abstract was accurate. He moved for dismissal, arguing that it was factually impossible for him to be a “habitual violator” because his March 13, 1985, conviction fell outside the five-year period immediately preceding the original hearing date on the petition, May 24, 1990. He contends that the phrase “within the immediately preceding five years” in K.S.A. 1989 Supp. 8-285 must refer to the five years immediately preceding May 24, 1990, the date set by the district court for hearing the habitual violator petition. The trial court rejected the defendant’s argument and held that his convictions fell “within the immediately preceding five years” from the date the habitual violator action commenced. The question raised involves the statutory construction of the phrase “within the immediately preceding five years” as it relates to the defendant’s three qualifying convictions. This court may construe and determine the legal effect of the statute on appeal regardless of the construction adopted by the trial court. Palmer v First Nat’l Bank of Kingman, 10 Kan. App. 2d 84, 86, 692 P.2d 386 (1984). The defendant argues that we should strictly construe this statute because it is in the nature of a criminal statute. However, the defendant’s argument is soundly rejected by Kansas law. An action under the Habitual Violator Act is civil in nature because no criminal penalties are imposed. State v. Boos, 232 Kan. 864, 867-70, 659 P.2d 224 (1983); State v. Hines, 14 Kan. App. 2d 100, 102-03, 783 P.2d 350 (1989). In construing this civil statute, we follow this accepted basic rule: “The fundamental rule of statutory construction, to which all others are subordinate, is that the intent of the legislature governs; the court must give effect to the legislature’s intent ‘even though words, phrases or clauses at some place in the statute must be omitted or inserted.’ [Citations omitted.] In determining legislative intent, courts are not limited to consideration of the language used in the statute, but may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested.” Citizens State Bank of Grainfield v. Kaiser, 12 Kan. App. 2d 530, 536, 750 P.2d 422, rev. denied 243 Kan. 777 (1988). Starting from the date of the defendant’s earliest qualifying conviction, there are at least four dates that might be used to measure the phrase “within the immediately preceding five years” as used in K.S.A. 1989 Supp. 8-285: (1) The date of the first hearing on the habitual offender petition, which defendant claims is the proper time frame; (2) the date of the commencement of the habitual violator action, which the trial court concluded was the proper date; (3) the date of the defendant’s last offense; and (4) the date of the defendant’s last qualifying conviction. The Habitual Violator Act was enacted by the legislature with three purposes in mind: first, to protect persons traveling on, or using, Kansas highways; second, to deny driving privileges to those who have demonstrated their indifference to the safety and welfare of others and the traffic laws of this state, as reflected by their conduct, attitude, and driving record; and third, to discourage repeated violations of traffic laws and punish repeat offenders. See K.S.A. 8-284. See also State v. Underwood, 10 Kan. App. 2d 116, 122, 693 P.2d 1205 (1985) (purpose of Habitual Violator Act “is simple: get the chronic violator out from behind the wheel”). The act fulfills these purposes by requiring the Kansas Department of Revenue, Division of Motor Vehicles, to “forthwith” forward to county or district attorneys a certified abstract of a person’s driving record whenever the division’s records show that a person is a “habitual violator.” Upon receipt of the certified abstract, the county or district attorney is directed to “forthwith” file a petition in the county district court alleging the person to be a habitual violator. The district court must then issue the person a summons to appear for a show cause hearing on whether the person should be convicted of being a habitual violator. If the court finds the accused is the same person named in the driving records and the abstract of convictions is correct, the court must find the accused is a habitual violator and enter an order directing the person not to operate a motor vehicle on Kansas highways for three years. K.S.A. 8-286; K.S.A. 1989 Supp. 8-288. The “forthwith” language in the statute has been previously construed to be directive only and dismissal of a habitual violator action is not an appropriate remedy for failure to comply with the statutory directive. State v. Graham, 12 Kan. App. 2d 803, 806, 758 P.2d 247 (1988); State v. Garton, 2 Kan. App. 2d 709, 710-11, 586 P.2d 1386 (1978). (1) The Date of the First Hearing The defendant contends that the phrase “within the immediately preceding five years” refers to five years preceding May 24, 1990, the date the habitual violator petition was set for hearing. Since the defendant’s first qualifying conviction on March 13, 1985, does not fall within that five-year period of time, he contends that there is no basis for the trial court’s conclusion that he is a habitual violator. The defendant’s contention is in conflict with both the statutory scheme of the Habitual Violator Act and the expressed purpose of the Habitual Violator Act. The act states: “Whenever the files and records of the division shall disclose” that a person is a habitual violator, the division must certify a record of convictions to the county attorney for prosecution. (Emphasis added.) K.S.A. 8-286. Based on the language used, the court hearing date becomes immaterial to the determination of whether a person is a habitual violator. The habitual violator action arises out of a governmental function. The act requires the division, rather than the district court, based on its own files and records, to determine whether a person is a habitual violator. It would be inconsistent with the statutory scheme to require the Division of Motor Vehicles to predict when a court hearing will be set in order to make its determination so that the petition could be filed early enough to guarantee a conviction. See State v. Graham, 12 Kan. App. 2d at 808 (habitual violator action arises out of a governmental function). Under the construction suggested by the defendant, a person might avoid being convicted as a habitual violator by a fortuitous setting of the court hearing date. Such a construction would be at variance with the legislative stated purpose in protecting the safety of highway users and removing unsafe drivers from the road. See K.S.A. 8-284. (2) The Date of the Commencement of the Habitual Violator Action The trial court determined that the significant date was the commencement of the habitual violator action against the defendant. However, the conclusion that “within the immediately preceding five years” should be measured from the date the petition was filed is also at odds with the statutory scheme of the Habitual Violator Act. Although a habitual violator action is civil in nature and a civil suit commences on the filing of the petition and service of process on the defendant (see K.S.A. 60-203), the -trial court’s interpretation ignores the fact that the habitual violator action arises out of a governmental function. State v. Graham, 12 Kan. App. 2d at 808. It is the division that is required to make the initial determination of whether a person is a habitual violator. To measure the five years from the date the district attorney files a petition in the district court would require the division to predict future events which are beyond its control. (3) The Date of the Defendant’s Third Offense It would be impossible under the statutory scheme of the Habitual Violator Act to use the date of the defendant’s third offense because K.S.A. 1989 Supp. 8-285(b) requires that there be three convictions before a person is considered a habitual violator. Since three convictions are required, the rules set out in City of Chanute v. Wilson, 10 Kan. App. 2d 498, 704 P.2d 392, rev. denied 238 Kan. 877 (1985), relied upon by the defendant, would not apply. We held in Wilson that, for the purposes of sentence enhancement under K.S.A. 1983 Supp. 8-1567(e) (now K.S.A. 1989 Supp. 8-1567[f]), convictions occurring within five years of the date of the present offense could be considered. 10 Kan. App. 2d at 499. The distinguishing feature of Wilson, ignored by the defendant, is its focus on determining an offenders status as a first, second, or third-time offender at the time of sentencing. Thus, this determination would logically be determined on the basis of prior convictions as of the date of the present offense. Wilson, therefore, provides no support for the defendant. (4) The Date of Defendant’s Last Conviction We conclude that the most logical construction of the statute and the one most consistent with the statutory scheme of the Habitual Violator Act is that the phrase “within the immediately preceding five years” used in K.S.A. 1989 Supp. 8-285 refers to a time from the defendant’s earliest qualifying conviction to the date of the defendant’s last qualifying conviction. The legislative history of the statute is not particularly helpful. The “within the immediately preceding five years” language was contained in the original enactment in 1972. L. 1972, ch. 32, § 2. Portions of the act have been noted for ambiguity, and the legislature has refused invitations to correct them. See State v. Underwood, 10 Kan. App. 2d 116, 123, 693 P.2d 1205 (1985) (Foth, C.J., concurring: “[T]he present act is ambiguous at best. It deserves legislative attention.”). However, the historical circumstances surrounding the enactment of the Habitual Violator Act are instructive. In 1971, the United States Supreme Court decided Bell v. Burson, 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586 (1971), which held that the Fourteenth Amendment due process clause requires states to provide notice and a hearing appropriate to the nature of the case before suspending a person’s driver’s license. 402 U.S. at 542. The Court’s rationale was that the suspension of the driver’s license involves state action which adjudicates important interests of the licensee, such as the ability to pursue a livelihood, and, therefore, due process requires notice and a hearing appropriate to the nature of the interest, whether it is considered a right or a privilege. 402 U.S. at 539. Although a finding that a person is a habitual violator does not actually involve the suspension or revocation of their driver’s license, the Court’s initial rationale in Bell is applicable here since the defendant was ordered, through state action, not to operate a motor vehicle. Thus, the hearing requirement in K.S.A. 8-286 appears to have been placed in the statute to safeguard the defendant’s due process rights, rather than as a measuring date to determine whether the defendant was convicted of three violations within five years immediately preceding the hearing. Furthermore, K.S.A. 8-286 limits the scope of the district court hearing to two questions: The identity of the accused and the accuracy of the abstract of convictions certified by the Division of Motor Vehicles. If the accused is the same person named in the division’s record and the abstract is correct, the court must find the accused is a habitual violator. Otherwise, the action is dismissed. The limited scope of the show cause hearing supports this court’s conclusion in Graham that a habitual violator action arises out of a governmental function and undermines the defendant’s contention that the hearing date should be used as a measuring date under the Habitual Violator Act. The defendant argues that the district court’s determination that he was a habitual violator must fail based upon City of Overland Park v. Rice, 222 Kan. 693, 567 P.2d 1382 (1977), because computing a period “within the immediately preceding five years” from the date the petition was filed would constitute suspending his license based upon an uncertain future event. In Rice, the defendant was arrested by police officers on July 27, 1972, and charged with driving on a suspended license in violation of an Overland Park ordinance. On appeal, Rice argued that he could not be guilty because the 60-day suspension period had already expired at the time he was arrested by the police officers. To determine the merits of this defense, the Kansás Supreme Court was required to determine when the suspension period began and ended. The suspension order stated: “Although this order is effective as of this date [October 4, 1971] and you can no longer legally operate a motor vehicle upon receipt hereof, the period of suspension runs from the date the department receives your license.” 222 Kan. at 694. The city argued that since Rice never surrendered his license to the Division of Motor Vehicles, he must be guilty. 222 Kan. at 697. The Supreme Court disagreed, construing strictly the statute and ordinance prohibiting, driving while the privilege to do so is suspended, since they provided criminal penalties for their violation. 222 Kan. at 697. The court determined that the division suspension order did not comply with the statutory definition of suspension of driver’s license in K.S.A. 1972 Supp. 8-234(r) (now K.S.A. 8-1474), since it did not withdraw the privilege to operate a motor vehicle “ ‘for a period specifically designated by the Division of Vehicles.’ ” Focusing on the “specifically designated” language in the statute, the court determined the suspension began on October 4, 1971, and ended December 3, 1971. 222 Kan. at 695. Therefore, the court reversed Rice’s conviction for driving on a suspended license. 222 Kan. at 699. The defendant’s reliance on Rice is misplaced. In this case, the defendant’s driver’s license was not suspended. Under the Habitual Violator Act, a person is merely ordered to refrain from driving for three years. See K.S.A. 1989 Supp. 8-288. There is no provision in the act requiring the division to suspend or revoke a habitual violator’s license. The Court’s holding in Rice was based upon a strict construction of the division suspension order as required by statute, and a strict construction of the driving while suspended ordinance, since criminal penalties were provided. Neither of these concerns' applies to the present case. The Habitual Violator Act does not provide for criminal penalties unless a person is later convicted of driving while under a court order prohibiting operation of a vehicle, which is a class E felony. K.S.A. 8-287. Moreover, the length of the withdrawal of the defendant’s driving privilege is not an issue in this case. In construing K.S.A. 1989 Supp. 8-285, we hold that the phrase “within the immediately preceding five years” refers to the time starting from the date of the defendant’s earliest qualifying conviction identified by the division until the time of his most recent qualifying conviction identified by the division. Although the trial court determined the defendant was a habitual violator based on an improper interpretation of K.S.A. 1989 Supp. 8-285, we affirm. “The reasons given by the district court for its decision are immaterial so long as its ruling was correct for any reason.” Prairie State Bank v. Hoefgen, 245 Kan. 236, 245, 777 P.2d 811 (1989). The date of the defendant’s first qualifying conviction was March 13, 1985, and the date of his most recent qualifying conviction was January 9, 1990. Since all three of his convictions fell “within the immediately preceding five years” as required by K.S.A. 1989 Supp. 8-285, he was a habitual violator under K.S.A. 1989 Supp. 8-285(b). Affirmed.	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Rulon, J.: Marthelle Keller, defendant, appeals the district court’s grant of summary judgment to Helen Snodgrass, administratrix of the estate of Marion Snodgrass, plaintiff, which declared invalid a payable-on-death (POD) account established by Marion naming Marthelle as beneficiary. We reverse and remand with directions. We must decide if a POD account, on which a third party is designated as beneficiary, is subject to attack by a nonconsenting surviving spouse in defense of his or her statutory right to a distributive share of a deceased spouse’s intestate estate. The material, undisputed facts are as follows: Helen and Marion Snodgrass were married in 1962. No children were bom of the marriage. Marion suffered from and was under psychiatric care for chronic severe depression. On October 5, 1989, Helen told Marion she was leaving their home due to his deteriorating mental condition and eccentric behavior. The next morning, October 6, 1989, as Helen was about to leave the house to do some errands, Marion got out of bed, went to the garage, and left the house in the couple’s other car. Helen and Marion then drove to Franklin Savings Association in Lyndon, Kansas, in separate vehicles. While waiting for Franklin Savings Association to open, they discussed withdrawing money from their joint tenancy account. Marion stated he had deposited into the account a $21,000 inheritance from his father and approximately $7,000 from a disability settlement received from the Veterans’ Administration. Helen stated she had deposited into the account approximately $5,000 in inheritance from her father and sister and nearly $8,000 from an insurance settlement. Once inside the savings and loan, Helen and Marion went to separate tellers. Helen withdrew $15,000 and used the amount to open a joint checking account with her daughter at Franklin Savings Association. Marion withdrew . $33,000 and went to Lyndon State Bank where he opened a POD account naming his sister Marthelle Keller as the beneficiary. According to the POD contract between Marion and Lyndon State Bank, Marion retained the rights to change the beneficiary; withdraw all or any part of the deposit; change the type of account; and sell, transfer, assign, pledge, or hypothecate the account or any portion of it. Marthelle was not aware of her designation as beneficiary until she was served in this lawsuit. Helen moved out of the home she shared with Marion on October 9, 1989. When Helen and Marion made their respective withdrawals from their joint account, Helen did not know what Marion was planning to do with the money he withdrew. Marion and Helen did not have a prenuptial agreement and neither filed a separate maintenance or divorce action before he died intestate on December 4, 1989. Marion’s probate estate, according to the inventory filed by Helen as administratrix, was worth $72,456.03, including the POD account. Nonprobate assets, property held in joint tenancy with Helen, were valued at $63,033.14. Helen is Marion’s sole heir. Helen filed a chapter 60 action requesting the court to declare the POD account void and to order the funds paid into Marion’s estate. Ultimately, both she and Marthelle, a named defendant, filed motions for summary judgment. The district court entered judgment in favor of Helen, holding that although POD accounts are authorized by K.S.A. 1990 Supp. 9-1215, Marion’s establishment of such an account naming his sister as beneficiary was fraud implied by law against Helen. The district court ordered Lyndon State Bank to pay the balance of the account to Helen, as administratrix of Marion’s estate. Marthelle appeals the district court’s judgment invalidating the POD account, and Helen appeals other issues which we need not reach. Marthelle principally argues that the language of K.S.A. 1990 Supp. 9-1215 excludes POD accounts from the operation of K.S.A. chapter 59, the Kansas Probate Code. Marthelle specifically contends that a POD account results from a contractual relationship which may exclude the statutory rights of a surviving spouse. Finally, Marthelle distinguishes POD accounts from revocable inter vivos trusts, which under Ackers v. First National Bank of Topeka, 192 Kan. 319, 387 P.2d 840 (1963), are subject to a surviving spouse’s rights of inheritance. On the other hand, Helen contends the legislature intended only to exclude POD accounts from the operation of the statute of wills, not the entire probate code. Helen therefore contends that, following Ackers, the district court properly voided Marion’s POD account as a fraud upon Helen’s right of intestate succession to Marion’s estate. Amicus curiae The Kansas Bankers Association essentially agrees with Marthelle that POD accounts are excluded from all the provisions of the Kansas Probate Code and that, because a POD account is contractual in nature, Ackers and its progeny are not applicable to POD accounts. Summary judgment is appropriate if there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. See Crooks v. Greene, 12 Kan. App. 2d 62, Syl. ¶ 1, 736 P.2d 78 (1987). Neither Marthelle nor Helen contest the district court’s finding that this case is ripe for summary judgment. Therefore, the only issue on appeal is whether the district court entered judgment for the proper party as a matter of law. The first step in resolving this issue is determining whether K.S.A. 1990 Supp. 9-1215 exempts POD accounts from the operation of the entire probate code. K.S.A. 1990 Supp. 9-1215, which authorizes POD accounts, was initially enacted in 1979. L. 1979, ch. 177, § 1. The current version of the statute reads as follows: 9-1215. Contracts for payment to beneficiaries upon deposit account owners’ deaths; rights of owner during lifetime; change of beneficiary. An individual adult or minor, hereafter referred to as the owner, may enter into a written contract with any bank located in this state providing that the balance of the owner’s deposit account, or the balance of the owner’s legal share of a deposit account, at the time of death of the owner shall be made payable on the death of the owner to one or more persons or, if the persons predecease the owner, to another person or persons, hereafter referred to as the beneficiary or beneficiaries. If any beneficiary is a minor at the time the account, or any portion of the account, becomes payable to the beneficiary and the .balance, or portion of the balance, exceeds the amount specified by K.S.A. 59-3003, and amendments thereto, the moneys shall be payable only to a conservator of the minor beneficiary. “Transfers pursuant to this section shall not be considered testamentary or be invalidated due to nonconformity with the provisions of chapter 59 of the Kansas Statutes Annotated. “Every contract authorized by this section shall be considered to contain a right on the part of the owner during the owner’s lifetime both to withdraw funds on deposit in the account in the manner provided in the contract, in whole or in part, as though no beneficiary has been named, and to change the designation of beneficiary. The interest of the beneficiary shall be considered not to vest until the death of the owner. “No change in the designation of the beneficiary shall be valid unless executed in the form and manner prescribed by the bank and delivered to the bank prior to the death of the owner. “For the purposes of this section, the balance of the owner’s deposit account or the balance of the owner’s legal share of a deposit account shall not be construed to include any portion of the account which under the law of joint tenancy is the property of another joint tenant of the account upon the death of the owner.” (Emphasis supplied.) Although not discussed in the legislative history of the statute’s enactment, 9-1215 appears to have been enacted to legislatively overrule the decision of the Kansas Supreme Court in Truax v. Southwestern College, 214 Kan. 873, 522 P.2d 412 (1974). See In re Estate of Morton, 241 Kan. 698, 705, 769 P.2d 619 (1987). In Truax, the Supreme Court found three POD savings accounts to be testamentary in character and invalid because they were not executed in compliance with K.S.A. 59-606 (Corrick), our state’s version of the statute of wills. 214 Kan. at 874-75, 883. When the legislature enacted the statute authorizing POD ac counts in 1979, the pertinent portions of the statute read as follows: “9-1215. Contracts for payment to beneficiaries upon deposit account owners’ deaths; rights of owner during lifetime; change of beneficiary. A natural person, adult or minor, hereinafter referred to as the owner, may enter into a written contract with any bank or trust company located in this state whereby the balance of the owner’s deposit account at the time of death of the owner shall be made payable on the death of the owner to another person or persons, hereinafter referred to as the beneficiary or beneficiaries. Should any beneficiary be a minor at the time the account, or any portion thereof, becomes payable to him or her and such balance, or portion thereof, exceeds four thousand dollars ($4,000) such moneys shall be payable only to a conservator of such minor beneficiary. Such transfers shall not be considered testamentary and shall not be subject to the provisions of chapter 59 of the Kansas Statutes Annotated. “Every such contract authorized by this section shall be deemed to contain a right on the part of the owner during his or her lifetime both to withdraw funds on deposit in such account in the manner provided in the contract, in whole or in part, as though no beneficiary has been named, and to change the designation of beneficiary. The interest of the beneficiary shall be deemed not to vest until the death of the owner.” (Emphasis supplied.) K.S.A. 1979 Supp. 9-1215. The emphasized language above differs from that of the current version. See K.S.A. 1990 Supp. 9-1215. The current language resulted in part from an amendment approved by the Legislature in 1980. See L. 1980, ch. 166, § 2. The language “shall not be considered testamentary and shall not be subject to the provisions of chapter 59 of the Kansas Statutes Annotated” was changed to “shall not be considered testamentary or be invalidated due to nonconformity with the provisions of chapter 59 of the Kansas Statutes Annotated.” As we understand the legislative history, the 1980 amendment appears to have originated from the legislature’s concern about the use of POD ¡accounts to disinherit surviving spouses. .After hearing testimony on this possible effect of POD accounts, the House Committee on Commercial and Financial Institutions reported favorably to the full House the following amendment to the POD account statute ip House Bill No. 3140: “shall not be considered testamentary or subject tp the provisions of chapter 59 of the Kansas Statutes Annotated but shall be subject to the right of election and unless the will indicates otherwise, shall abate ratably with specific bequests.” See Minutes of the House Committee on Commercial and Financial Institutions, February 28, 1989. The apparent effect of this language would have made any POD account on which the designated beneficiary was someone other than the surviving spouse subject to that spouse’s election to take his or her statutory intestate share in lieu of a will to which he or she did not consent, pursuant to K.S.A. 59-603. The above amendment, however, was lost in action taken on House Bill No. 3140 subsequent to the House Committee report. The Senate Judiciary Committee amended the bill by striking the clause “but shall be subject to the right of election.” See Sen. J. 1980, p. 1212. The House then requested a conference committee on the bill, which was agreed to by the Senate. See House J. 1980, p. 1669; Sen. J. 1980, p. 1408. However, it is not clear from the conference committee reports when or why the POD account statute was amended to read “or be invalidated due to nonconformity with the provisions of chapter 59 of the Kansas Statutes Annotated,” Sen. J. 1980, p. 1561; House J. 1980, p. 1865. From our research,, it appears that minutes of the conference committee do not exist. With this legislative history in mind, we must construe K.S.A. 1990 Supp. 9-1215 to determine if the legislature intended to exclude POD accounts from only the execution formalities of chapter 59 (K.S.A. 59-606) or from the entire body of law under chapter 59. “The fundamental rule of statutory construction, to which all others are subordinate, is that the intent of the legislature governs; the court must give effect to the legislature’s intent ‘even though words, phrases or clauses at some place in the statute must be omitted or inserted. ’ [Citations omitted. ] In determining legislative intent, courts are not limited to consideration of the language used in the statute, but may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. [Citations omitted.] Ordinarily, courts presume that by changing- the language of a statute the legislature intends to change its effect. This presumption, however, may be strong or weak according to the circumstances, and may be wanting altogether in a particular case. [Citation omitted.]” Citizens State Bank of Grainfield v. Kaiser, 12 Kan. App. 2d 530, 536, 750 P.2d 422, rev. denied 243 Kan. 777 (1988). Marthelle argues the legislative intent behind the current version of the POD account statute is to¡ exclude POD accounts from all the provisions of the Kansas Probate Code and specifically to avoid the application of Ackers to these bank accounts. We need not revisit Ackers here except to note that our Supreme Court recently reaffirmed the Ackers doctrine in Newman v. George, 243 Kan. 183, 755 P.2d 18 (1988). The Newman court stated, “The Ackers decision created an additional exception to G.S. 1949, 33-101, holding a revocable trust valid but subject to challenge by creditors and ‘by the wife in defense of her rights under the provisions of G.S. 1949, 59-504, 59-505, or 59-602.’ 192 Kan. at 325.” 243 Kan. at 188. This court recently construed an individual retirement account as a revocable inter vivos trust under Kansas law that may be invalidated to protect the rights of a nonconsenting surviving spouse, pursuant to Ackers and Newman. McCarty v. State Bank of Fredonia, 14 Kan. App. 2d 552, 795 P.2d 940 (1990). In examining a POD account, strong similarities with the revocable trusts at issue in Ackers and Newman are clearly evident. With a POD account, the person who establishes the account remains its owner until his or her death. The owner may withdraw any funds from the account until his or her death and may change the beneficiary. The contract between Marion and Lyndon State Bank establishing Marion’s POD account also provided that Marion could change account types and sell, transfer, assign, pledge, or grant a security interest in the account. The designated beneficiary acquires no interest in a POD account until the death of the owner. The owner’s power to withdraw funds and assign or pledge funds from the account is similar to the grantor’s powers of revocation and amendment in a revocable inter vivos trust. But a POD account is created by a contractual relationship between the financial institution and the owner, and the beneficiary claims the funds through third-party beneficiary theory rather than through trust principles. Morton, 241 Kan. at 704. Marthelle contends this court’s opinion in McCarty, 14 Kan. App. 2d 552, “inferred, if not directly held, that a POD account would not be subject to a spousal attack.” McCarty, however, considered only whether K.S.A. 1990 Supp. 9-1215 (then K.S.A. 1989 Supp. 9-1215) governed the disposition of a decedent’s individual retirement account and did not determine or even consider a nonconsenting surviving spouse’s rights regarding a POD account. McCarty simply stated that Morton, 241 Kan. 698; the Supreme Court case which recognized the validity of Totten trusts in Kansas, did not provide authority for extending K.S.A. 1990 Supp. 9-1215 to individual retirement accounts. 14 Kan. App. 2d at 559. Against the above backdrop of case law and legislative history, we have examined the language contained in K.S.A. 1990 Supp. 9-1215 which provides that “[transfers pursuant to this section shall not be considered testamentary or be invalidated due to nonconformity with the provisions of chapter 59 of the Kansas Statutes Annotated.” We conclude that the legislature intended this language to exclude POD accounts from all provisions of the Kansas Probate Code, thus shielding such an account from the statutory rights of a surviving nonconsenting spouse to any interest therein. The statutory language is clear and unambiguous, and if die legislature intends otherwise, the statute should be amended to clearly protect the interest of a surviving nonconsenting spouse. The district court erred in not following the clear and unambiguous statutory language which excludes POD accounts from all the provisions of the Kansas Probate Code. We need not address other issues presented for our consideration in light of the above discussion. We reverse and remand with directions that the district court grant summary judgment to Marthelle consistent with the provisions of this opinion.	[ -112, 108, -7, -36, 8, 96, -86, -102, 114, -45, 37, 91, -21, -23, 5, 105, -28, 43, -15, 107, -11, -77, 31, -72, -38, -69, -24, 71, -77, 92, 100, -41, -52, 32, -118, 85, -30, -128, 71, 88, -114, 9, -120, 99, -39, -125, 48, -25, 22, 15, 81, -98, -71, 11, 53, 102, 72, 110, 91, -7, -44, -79, -119, 5, -17, 23, -126, 6, -104, 101, 88, 58, 18, 17, 0, -24, 121, 38, 2, 116, 107, -67, -115, 102, 96, 32, 32, -19, -76, -120, -89, -41, -97, -121, -98, 121, 33, 8, -75, -97, 124, 29, 7, -4, 110, -43, 29, -92, 16, -49, -42, -111, -116, 126, -100, 10, -1, -113, 34, 113, -49, -64, 85, 67, 122, -101, -74, -9 ]
Briscoe, C.J.: Jean Belt appeals from the denial of her claim to recover the remaining balance due on a liquidation agreement between her deceased husband, C. Robert Belt, and the accounting partnership from which he had retired, C. Robert Belt & Company. We reverse and remand with directions to enter judgment in favor of Jean Belt. Robert Belt retired from the partnership in 1983 and, pursuant to the partnership agreement, entered into a liquidation agreement requiring the partnership to pay him a fixed sum over a ten-year period. In 1986, another partner, Robert Shepard, withdrew from the partnership. The remaining partners did not purchase Shepard’s partnership interest and Shepard was forced to file suit. In 1987, the remaining partners sold their interest to Jerry Buchanan and, on January 18, 1988, Robert Belt died. In August 1988, Shepard prevailed in his lawsuit and was awarded the value of his partnership interest less his pro rata share of the remaining obligation due Belt. Payments to Jean Belt under the 1983 liquidation agreement ceased in September 1988 and she filed suit to collect the remaining balance owed under the agreement. All of the partners except Shepard have filed for bankruptcy. In denying Jean Belt’s claim against Shepard, the district court found that a partner does not remain liable to a partnership creditor after withdrawal from the partnership. The court further found the remaining partners had assumed the obligation of the partnership to Robert Belt and he had agreed to that arrangement, thus discharging Shepard from partnership liability. Specifically, the court found Belt had agreed to Shepard’s discharge from liability by (1) Belt’s failure to intervene in Shepard’s lawsuit against the partnership; (2) Belt’s continued acceptance of checks from the remaining partners; and (3) Belt’s oral agreement with Shepard indicating Shepard no longer had any obligations to Belt. The sole issue on appeal is whether the district court erred in construing K.S.A. 56-336 and in applying the statute to the facts of this case. K.S.A. 56-315 provides: “All partners are liable jointly and severally for everything chargeable to the partnership; but any partner may enter into a separate obligation to perform a partnership contract.” It is undisputed the liquidation agreement entered into between Robert Belt and the partnership following his retirement was a partnership obligation. Therefore, there was a joint and several obligation of all of the remaining partners for which each could be sued. The issue here is whether Shepard remained liable for this partnership obligation or if subsequent actions by Shepard, Belt, and the partnership effectively discharged Shepard. K.S.A. 56-336 provides: “(a) The dissolution of the partnership does not of itself discharge the existing liability of any partner. “(b) A partner is discharged from any existing liability upon dissolution of the partnership by an agreement to that effect between himself or herself, the partnership creditor and the person or partnership continuing the business; and such agreement may be inferred from the course of dealing between the creditor having knowledge of the dissolution and the person or partnership continuing the business. “(c) Where a person agrees to assume the existing obligations of a dissolved partnership, the partners whose obligations have been assumed shall be discharged from any liability to any creditor of the partnership who, knowing of the agreement, consents to a material alteration in the nature or time of payment of such obligations. “(d) The individual property of a deceased partner shall be liable for all obligations of the partnership incurred while the deceased partner was a partner but subject to the prior payment of his or her separate debts.” Thus, the general rule is that dissolution of the partnership alone is insufficient to discharge the existing liability of a withdrawing partner. All of the partners remain jointly and severally liable for all existing liabilities unless subsections (b) or (c) of 56-336 apply. See Daniels Trucking, Inc. v. Rogers, 7 Kan. App. 2d 407, 408-09, 643 P.2d 1108 (1982). There is no basis for concluding that 56-336(c) applies in the present case. There is no evidence that anyone agreed to assume the obligations of the dissolved partnership or that Belt, knowing of such an agreement, consented to a material alteration in the nature or time of payments payable to him. For Shepard to escape liability for the partnership obligations existing at the time of his withdrawal, he has the burden of proving he, Belt, and the remaining partners mutually agreed that he would be discharged from liability. Shepard argues such an agreement can be inferred from the course of dealing between Belt and the partnership continuing the business. K.S.A. 56-336(b). The question of whether an agreement to modify a withdrawing partner’s liability exists is a question of fact. See Wester & Co. v. Nestle, 669 P.2d 1046, 1049 (Colo. App. 1983). Our standard of review of questions of fact is limited to determining if the findings are supported by substantial competent evidence and whether they are sufficient to support the trial court’s conclusions of law. Army Nat’l Bank v. Equity Developers, Inc., 245 Kan. 3, 19, 774 P.2d 919 (1989). The district court made the following findings of fact in support of its decision that Belt agreed to discharge Shepard from liability: “A. C. Robert Belt knew of defendant’s lawsuit against the partnership. “B. C. Robert Belt knew defendant had reduced the amount he was claiming from the partnership by his share (20%) of the partnership’s liability to C. Robert Belt. “C. C. Robert Belt did not seek to intervene in the lawsuit as a creditor to oppose the reallocation between the partnership and Shepard of the liability to him. “D. C. Robert Belt did continue to accept payments from the partnership, minus defendant, as he had in the past. “E. C. Robert Belt approved two subsequent transfers of partnership interest, minus Shepard, from Locke to Buchanan.” Belt’s knowledge of Shepard’s action against the partnership and his subsequent nonintervention in that action have very little, if any, relevance to the issue at hand. The district court took judicial notice of Shepard’s action. The record on appeal indicates only that the action was filed October 15, 1987, and a judgment was rendered August 18, 1988. Belt retired from the partnership in 1983 and had no interest in the partnership thereafter other than as a partnership creditor. See Gottesman v. Toubin, 353 S.W.2d 294, 298 (Tex. Civ. App. 1962). To intervene in Shepard’s action against the partnership, Belt would have been required to show he had a substantial interest in the subject matter of the action and inadequate representation of his interest (K.S.A. 60-224[a]); or a claim involving a common question of fact or law (K.S.A. 60-224[b]). As a mere partnership creditor, Belt could satisfy neither criterion for intervention. Any other interpretation would lead to the absurd result that every partnership creditor would have to intervene in every lawsuit involving a partner or risk losing valuable legal rights. The finding that Belt continued to accept payments from the partnership after Shepard’s withdrawal is insufficient in and of itself to infer an agreement by Belt to discharge Shepard from liability. See White v. Brown, 292 F.2d 725, 727 (D.C. Cir. 1961). Additionally, the finding that Belt approved subsequent transfers of partnership interest has no legal basis. Belt retired from the partnership in 1983 and no longer had any managerial authority over the partnership and no voting power. He was relegated to the role of a partnership creditor upon his retirement and had no authority to approve or disapprove subsequent partnership activities. This leaves the finding that Belt had knowledge of Shepard’s action against the partnership and knew Shepard’s claim against the partnership was reduced by his pro rata share of the partnership’s liability to Belt. It is unclear from the record just how Belt could have known the terms of the judgment since Belt died over eight months before the judgment was rendered. The parties and the trial court did refer to “Defendant’s Exhibit B” at trial, but the exhibit was not included in the record on appeal. Apparently, exhibit B is a dated letter from Shepard’s accountant to the partnership valuing Shepard’s partnership interest with a reduction for his pro rata share of the liability to Belt and the court accepted the letter as evidence that Belt knew of Shepard’s claim, knew of the parties’ desire to reallocate the liability, and agreed to that reallocation. The question is whether a partnership creditor’s knowledge of a settlement between the partnership and a withdrawing partner reducing the withdrawing partner’s interest by his pro rata share of the partnership debt is equivalent to assent to an agreement discharging the withdrawing partner of liability. Even assuming Belt did know of the terms of Shepard’s claim, under the facts of this case, that knowledge does not constitute assent to such an agreement. As an additional argument in support of his discharge, Shepard testified the reduction in his claim against the partnership reflected an agreement he had with Belt. Shepard relied upon the terms of the initial partnership agreement of C. Robert Belt & Company as evidence that Belt agreed to Shepard’s discharge. Shepard also stated he never discussed his lawsuit with Belt. Based upon the terms of the partnership agreement and Shepard’s other conversations with Belt, Shepard concluded that Belt agreed the partnership was to continue to make the payments. The initial partnership agreement of C. Robert Belt & Company did not require Shepard to reduce his partnership interest by a pro rata share of any partnership debt. Pursuant to the partnership agreement, the partnership is required to purchase the interest and each five percent interest owned by the withdrawing partner for more than five years is worth five percent of the gross income of the partnership for the prior calendar year. For each five percent interest owned less than five years, the withdrawing partner receives only his cost. There is no provision allowing the remaining partners to reduce the partnership interest by any pro rata share of existing obligations. Belt’s agreement to abide by the partnership agreement when the C. Robert Belt & Company partnership was created is not sufficient to infer he agreed to discharge Shepard of his liability. Even if we find that Belt agreed to discharge Shepard of his obligation, the agreement cannot stand. Every contract requires consideration to be legally enforceable. Dugan v. First Nat’l Bank in Wichita, 227 Kan. 201, 211, 606 P.2d 1009 (1980). This includes an agreement by a partnership creditor to release a withdrawing partner. See Gannon v. Bronston, 246 Ky. 612, 616-17, 55 S.W. 2d 358 (1932); Fried v. Fisher, et al., 328 Pa. 497, 500, 196 A. 39 (1938); Marshall Field & Co. v. Fishkin, 180 Wis. 149, 153, 192 N.W. 463 (1923). Here, there is no consideration supporting Belt’s purported agreement to release Shepard of his liability to him. Shepard admitted he gave Belt no consideration for the release and received no written release or document signifying an agreement. Further, Shepard does not allege or establish the remaining partners also agreed to his release. Absent consideration and absent the agreement of the remaining partners, Belt’s agreement with Shepard, assuming there was one, is legally unenforceable and Shepard is not discharged from his joint and several liability for the partnership obligation. Reversed and remanded with directions to enter judgment in favor of Jean Belt.	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Davis, J.: This is a direct criminal appeal from a conviction of indecent liberties with a child (K.S.A. 21-3503). The defendant, Michael A. Blackmore, contends that the trial court erred by denying his motion for a psychiatric examination of the complaining witness and by admitting evidence of his prior conviction under K.S.A. 60-455. He further claims that the sentence imposed is illegal because it was imposed by the Board of Paroles of Wyandotte County, not a district court. We affirm the conviction, but vacate the sentence and remand for imposition of sentence by the district court. Michael Blackmore dated and lived with J.K.B. from May or June 1987 to April or May 1988. J.K.B. has two sons, Jacob (d.o.b. 11/21/83) and Joshua. Jacob is the complaining witness. In May 1987, J.K.B. left Jacob with her mother because she was going through a period of instability. Jacob visited his mother two days a week and on weekends. Jacob had behavior problems which caused the grandmother to take him to the Wyandot Mental Health Center for treatment. Jacob’s problematic behavior included hyperactivity, sleeplessness, bowel movements in his pants, and gagging himself at night until he vomited. Jacob also experienced an episode of rectal bleeding from a tear which his grandmother attributed to constipation. Annette Inman, a mental health therapist at Wyandot Mental Health Center, saw Jacob 31 times between June 7, 1988, and March 1990. During this time, Jacob first told Inman that defendant “stabbed him in the butt with a knife.” In later therapy sessions, Jacob said that the defendant also kissed him on the mouth, buttocks, and genital area; wrapped his mouth and hands with strong towels; put makeup on him; and put a finger in his rectum. A physical examination of Jacob did not reveal any physical evidence of sexual abuse. According to the nurse clinician who examined Jacob, there are no physical findings in 60-80% of children who are repeatedly sodomized and the history becomes the most important element. The defendant was charged with one count of indecent liberties with a child, with the incident occurring between January 1, 1987, and June 31, 1988. He was convicted by a jury and sentenced by the Board of Paroles of Wyandotte County to the maximum sentence of 5 to 20 years. The Board also revoked defendant’s probation on his previous conviction of aggravated indecent solicitation of a child and ordered the sentences to run consecutively. Psychiatric Examination The defendant’s motion for an independent psychiatric examination was based on testimony presented at the preliminary hearing. The defendant has failed to include the transcript of the preliminary hearing in the record on appeal. “ ‘An appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, we presume that the action of the trial court was proper.’ ” State v. Gonzales, 245 Kan. 691, 699, 783 P.2d 1239 (1989) (quoting State v. Bright, 229 Kan. 185, Syl. ¶ 6, 623 P.2d 917 [1981]). Even if we were to consider the testimony offered at trial on the issue, we can find no abuse of discretion in the denial of defendant’s motion. The granting or denial of a psychiatric examination of the complaining witness in a sex crime case is within the discretion of the trial court. Its decision will not be disturbed on appeal unless it can be shown by the defendant that the trial court abused its discretion. State v. Griffin, 246 Kan. 320, 326, 787 P.2d 701 (1990). The trial court must order such an examination if the defendant presents a compelling reason for the examination. State v. Gregg, 226 Kan. 481, 489, 602 P.2d 85 (1979), held that the trial court did not abuse its discretion by denying such a motion when “[n]o facts were stated or evidence introduced as to the child’s mental instability, lack of veracity, similar charges against other men proven to be false, or any other reason why this particular child should be required to submit to such an examination.” 226 Kan. at 490. Not unlike Gregg, the record of testimony at trial contains no evidence that the complaining witness was mentally unstable or lacked veracity. There was no evidence that the complaining witness had made similar charges against other men that were proven to be false. While the complaining witness took medication as needed for earaches and asthma, there is no showing that the medication affected his veracity or mental stability. This evidence alone supports the trial court’s denial and, while defendant advances other contentions regarding the examination, it cannot be said that the trial court abused its discretion. Admission of Prior Conviction Under K.S.A. 60-455 The admissibility of evidence of prior crimes pursuant to K. S. A. 60-455 is within the discretion of the trial court and that decision will not be disturbed on appeal absent an abuse of discretion or unless the trial court admitted evidence that clearly had no bearing on any of the issues. State v. Nunn, 244 Kan. 207, 210-11, 768 P.2d 268 (1989). In its determination of whether to admit evidence of a prior crime, the trial court must “(1) determine it is relevant to prove one of the facts specified in the statute, (2) determine the fact is a disputed, material fact, and (3) balance the probative value of the prior crime or civil wrong evidence against its tendancy to prejudice the jury.” State v. Nunn, 244 Kan. at 211. The defendant’s prior conviction was a 1987 no contest plea to one count of aggravated indecent solicitation of a child. In this case, the defendant is charged with indecent liberties with a child. While the defendant argues that the two offenses are dissimilar, the trial court found several similarities existed between the two offenses. Suffice it to say that the evidence of record supports the conclusions of the trial court and, while a contrary finding may also be supportable, reasonable persons may differ as to this conclusion. Consequently, we conclude that there is no abuse of discretion found in the trial court’s conclusion that the offenses are similar. Our consideration of the Nunn factors supports the conclusion that the trial court did not abuse its discretion. The victim said that the defendant sexually abused him. The defendant, although he did not testify, denied the allegation and attempted to point to others who could have committed the crime. Under K.S.A. 60-455, identity was a disputed, material fact providing a basis for admission of the prior crime to prove identity. Thus, the first two factors of Nunn are satisfied. Consideration of the third Nunn factor involves weighing the probative value of the evidence offered against its tendency to prejudice the jury. “If the potentiality of the natural bias and prejudice overbalances the contribution to the rational development of the case, the evidence must be barred.” State v. Bly, 215 Kan. 168, 175, 523 P.2d 397 (1974). The admission of a prior conviction in this case, as well as in most cases, would tend to prejudice the defendant. The admission in this case related to a disputed, material fact and contributed to the rational development of the case. The decision of the trial court will not be set aside unless it abused its discretion. While this presents a close question, we believe that reasonable persons may disagree on the admission of the defendant’s prior conviction. Thus, the trial court’s conclusion that the probative value of the prior conviction outweighed the prejudice of admission is not an abuse of discretion. Sentencing by the Wyandotte County Board of Paroles The facts regarding this assignment of error are not in dispute. Both parties acknowledge that the defendant appeared before the Wyandotte County Board of Paroles, composed of three district court judges, for sentencing. The transcript of sentencing is entitled “Transcript of Proceedings of Parole Board Hearing.” We are concerned only with the sentence imposed. The Board sentenced the defendant to five to twenty years and the journal entry of sentence was then signed by one of the members of the Board in his capacity as a district judge. The defendant argues that the imposition of sentence by the Board of Paroles of Wyandotte County is an unlawful delegation of judicial authority. The sentence is, according to defendant, void and must be vacated. We agree. The Wyandotte County Board of Paroles was created under the provisions of K.S.A. 20-2301. This provision allows the district court judges within a single county to create such a board. The provisions of K.S.A. 20-2302 and K.S.A. 20-2303 set forth the powers which may be exercised by any board of paroles set up in a single judicial district. K.S.A. 20-2303 grants the board of paroles the same power of parole as a trial court. However, neither this provision nor K.S.A. 20-2302 authorizes a board of paroles to impose sentence on a criminal defendant. Moreover, the imposition of sentence in a criminal proceeding is vested by statute exclusively in a court of competent jurisdiction. K.S.A. 21-4603(2)(a), in providing for authorized dispositions, states that a court may commit a defendant to the custody of the secretary of corrections. K.S.A. 21-4602 defines “court” as follows: “(1) ‘Court’ means any court having jurisdiction and power to sentence offenders for violations of the laws of this state.” The court, as defined, is vested with the exclusive power to impose sentence. “It is the sentencing, judge alone who determines the appropriate sentence or other disposition in each case, not the appellate judges.” State v. Heywood, 245 Kan. 615, 617, 783 P.2d 890 (1989). Imposition of sentence in a criminal case is not power that may be delegated. The imposition of sentence is exclusively a judicial function. In State v. Owens & Carlisle, 210 Kan. 628, 504 P.2d 249 (1972), a trial court sentenced the defendant but then ordered the case be sent to the board of probation and parole for a determination of the grant or denial of probation or modification of sentence. In holding that the trial court erred in failing to exercise its discretion, the court in Owens stated: “The sentencing judgment is a judicial function and as such is unreviewable when within the statutory limits and procedural safeguards have been observed. [Citation omitted.] But it is a function which may not be delegated, that is, a trial court may not divest itself of this responsibility. The initial grant or denial of probation or parole under 21-4603 is a part of the sentencing process vested in the trial court and is not to be arbitrarily dispensed with no matter how well-intentioned the motives may be.” 210 Kan. at 635-36. The State argues that the three judges were not sitting as a board of paroles but as a panel determining the sentence to impose and the issue of probation. The State further argues that the panel was not an agency board but was an extension of the trial court performing a judicial function. Both of these arguments by the State must fail. The sentencing function is vested exclusively within a court. Assuming the three judges were sitting as a panel, the panel was without statutory authority to impose sentence on a criminal defendant. While the State may argue that the journal entry was signed by a district court judge, it is clear that the sentence imposed was a consensus of the three sitting judges. Thus, the district judge signing the journal entry could very well have disagreed with the sentence agreed upon by the majority of members of the panel. However meritorious the system developed in Wyandotte County may be, it simply has no statutory basis. The sentence imposed by the Wyandotte County Board of Paroles is therefore void and must be vacated. The conviction is affirmed, the sentence is vacated, and the case is remanded for imposition of sentence by the court.	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Elliott, J.: Anthony and Kimberly Bell appeal a summary judgment granted to Patrons Mutual Insurance Association (Patrons) in their suit seeking to recover under an automobile insurance policy. We affirm and, in the process, overrule Richmeier v. Williams, 9 Kan. App. 2d 222, 675 P.2d 372 (1984). The facts are mostly undisputed. Patrons insured a 1986 Dodge owned by the Bells. A premium installment of $64.07 was due on November 18, 1989. On November 3, 1989, Patrons mailed the Bells a second notice of the installment due on November 18 which the Bells received. On November 27, 1989, a past-due notice was mailed to the Bells. On December 5, 1989, Patrons mailed a notice of cancellation for nonpayment of premium. The Bells contend they never received the notice, although their local insurance agency (the Felts Agency) received its copy of the notice on December 7, 1989. The lienholder on the Dodge also received its copy of the cancellation notice. The cancellation notice stated the policy would be terminated as of 12:01 a.m. on December 17, 1989. On December 24, the Bells were involved in an auto accident while driving the 1986 Dodge. The Bells also claim they put a check above the door of the Felts Agency on the night of December 22, which has never been presented for payment and has never been seen again. The Bells make no arguments about the effect of the December 22 check; their appeal is grounded solely on whether the cancellation notice could be effective if they did not actually receive it. Appellants rely on Koehn v. Central National Ins. Co., 187 Kan. 192, 354 P.2d 352 (1960), and Richmeier v. Williams, 9 Kan. App. 2d 222. In Koehn, the Supreme Court held that actual receipt of a notice of termination for nonpayment of premium, 187 Kan. at 194, was required for the termination to be effective. The court recognized it was adopting a distinctly minority view as public policy for the state. 187 Kan. at 202-03. In Richmeier, we reviewed a judgment which held that K.S.A. 40-3118(b) does not require actual receipt of notice of cancellation for nonpayment of premiums. We analyzed policy language essentially identical to that involved in the present case and ruled the policy required actual notice although the statute did not. Relying on Koehn, we held the insurance company promised actual notice/receipt of the cancellation. By hindsight, we rewrote the insurance policy for the parties in the guise of public policy. See Stewart v. Preferred Fire Ins. Co., 206 Kan. 247, 477 P.2d 966 (1970). Two other events need to be discussed before analyzing the insurance contract in the present case. First, some 14 years after Koehn, the legislature adopted K.S.A. 40-3118(b), which provides that except for termination for nonpayment of premium, no auto liability policy can be cancelled until the insurance company gives the insured 30 days’ notice by certified or registered mail. Manifestly, the statute means that a policy can be cancelled for nonpayment of premium by means other than 30 days’ notice by certified or registered mail. The main event in this chronology, however, is the Supreme Court’s decision in Feldt v. Union Ins. Co., 240 Kan. 108, 726 P.2d 1341 (1986), decided two years after our decision in Richmeier. In Feldt, the trial court ruled that Kansas law does not require the notice of cancellation actually be received by the insured unless the policy language provides otherwise. On appeal to this court, we reversed in an unpublished opinion, holding that actual receipt is necessary for a valid cancellation. 240 Kan. at 109. On review, the Supreme Court reversed this court and affirmed the trial court, stating that the only issue on appeal was “whether notice of cancellation of a motor vehicle liability insurance policy must be actually received by the insured before the policy is validly cancelled.” 240 Kan. at 109. The answer was a unanimous “no.” Along the way, the court in Feldt: a. noted our reliance on Koehn, 240 Kan. at 110; b. noted that Koehn remains a minority view, 240 Kan. at 110; and c. held that our discussion of K.S.A. 40-3118(b) in Richmeier was mere dicta. 240 Kan. at 112. In addition, the Feldt court found it “obvious” that the legislature in passing 40-3118(b) chose to reject the minority rule of Koehn requiring actual receipt of the notice of cancellation. 240 Kan. at 111. Further, the court noted that since 40-3118(b) does not apply to cancellation for nonpayment of premium, no notice at all to the insured is statutorily required in this state. 240 Kan. at 112. Finally, the court observed that the constitutionality of 40-3118(b) “is unchallenged and its terms rejecting the Koehn rule clear and unambiguous.” 240 Kan. at 112. (Emphasis added.) We read Justice Herd’s language in Feldt to be equally clear and unambiguous: The Koehn rule has been rejected as the public policy of this state. All of which brings us to the language of the policy in the present case. The policy provided: “A. Cancellation. . . . “2. We may cancel by mailing to the named insured in the Declarations at the address shown in this policy: “a. at least 10 days notice: “(1) if cancellation is for nonpayment of premium.” (Emphasis added.) The policy also provided that “proof of mailing of any notice shall be sufficient proof of notice.” (Emphasis added.) We find the policy language to be straightforward, clear, and unambiguous. Accordingly, our function is to enforce the insurance contract as written; we are not free to make another contract for the parties. E.g., Stewart v. Preferred Fire Ins. Co., 206 Kan. 247; Esfeld Trucking, Inc. v. Metropolitan Insurance Co., 193 Kan. 7, 10, 392 P.2d 107 (1964); Ferguson v. Phoenix Assurance Co., 189 Kan. 459, 463, 370 P.2d 379 (1962). Simply put, we should not strain ourselves to create an ambiguity where, in common sense, there is none. See Lehman v. State Farm Mutual Automobile Insurance Co., 350 F.2d 568, 570 (10th Cir. 1965); Myers v. Liberty Life Ins. Co., 124 Kan. 191, 194-95, 257 Pac. 933 (1927). In the present case, Patrons followed its policy obligations in cancelling the Bells’ policy for nonpayment of premium. Neither statute nor public policy requires the Bells to have actually received the mailed notice of cancellation. The judgment is affirmed.	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Rees, J.: Defendant Richard A. Parson appeals from his Pratt County misdemeanor conviction for operating an unregistered vehicle in violation of K.S.A. 1990 Supp. 8-142. Parson complains that the trial court erred in finding that the equipment he was operating is not exempt from registration pursuant to K.S.A. 1990 Supp. 8-128(b). K.S.A. 1990 Supp. 8-127(a) requires that “[e]very owner of a motor vehicle . . . intended to be operated upon any highway in this state . . . shall . . . apply for and obtain registration in this state.” K.S.A. 1990 Supp. 8-142 provides: “It shall be unlawful for any person to commit any of the following acts and . . . violation is subject to penalties provided in K.S.A. 8-149 . . . : “First: To operate, or for the owner thereof knowingly to permit the operation, upon a highway of any vehicle . . . which is not registered . . . .” We observe that both the operator and the permitting owner of an unregistered vehicle are subject to prosecution for violation of K.S.A. 1990 Supp. 8-142. That occurred in State v. Groves, 232 Kan. 66, 653 P.2d 457 (1982), where the owner and three of its drivers were prosecuted. Violation of K.S.A. 1990 Supp. 8-142 is a criminal offense. K.S.A. 1990 Supp. 8-149. The statutory provision lying at the core of this case is K.S.A. 1990 Supp. 8-128(b): “Self-propelled cranes and earth moving equipment which are equipped with pneumatic tires may be moved on the highways of this state from one job location to another . . . without complying with the provisions of the law relating to registration . . . .” The question at hand is whether the trial court erred in finding that the equipment owned by Harp Well and Pump Service, Inc., (the Harp rig) and operated on a Pratt County highway by Parson is not within the registration exemption afforded by K.S.A. 1990 Supp. 8-128(b) to “[s]elf-propelled cranes and earth moving equipment.” Otherwise put, the question is whether the statutory words “[s]elf-propelled cranes and earth moving equipment” identify a class or category of equipment that encompasses the Harp rig- For the purpose of this opinion, it is sufficient to say that the Harp rig is a mobile water well drilling rig. It is a specialized piece of equipment having as its major and structurally united components an International truck, a drilling tower, and associated drilling machinery. The trial court’s decision in this case that the Harp rig is not within the class or category of vehicles or equipment afforded registration exemption by K.S.A. 1990 Supp. 8-128(b) was founded substantially upon Groves, 232 Kan. 66, a case in which violations of K.S.A. 1981 Supp. 8-142 were charged and our Supreme Court concluded that the. “Schwing concrete pump/ boom trucks” involved there were not exempt from registration. The trial court in the present case found that “the vehicle in question is a truck with incidental specialty equipment affixed thereto” and concluded that “the truck is subject to registration under Kansas law.” Given the fact-driven decisions of the Supreme Court in Groves and the trial court here, it is likely we would affirm if this appeal were grounded on a sufficiency of the evidence or similar claim. But that easy appellate disposition is not readily available to us in view of Parson’s contention that his conviction is barred by operation of the doctrine of collateral estoppel. The collateral estoppel contention stems from the fact that, prior to the date of the offense alleged here, December 14, 1989, there had been a judicial determination that the Harp rig “is a ‘vehicle’; that it does come within the registration exemption provision of 8-128(b); and, that it is exempt from the vehicle registration requirements of the laws of the State of Kansas.” That explicit adjudication was made and memorialized in the journal entry of judgment filed March 17, 1972, in Harp Pump & Well Service, Inc. v. Ronald G. Miller, Treasurer of Sedgwick County, Kansas, and The State of Kansas, State Highway Commission, Motor Vehicle Department, case No. 22795, in the District Court of Sedgwick County, Kansas. The Sedgwick County case was a declaratory judgment action, a civil action, initiated and prosecuted by Harp. It concerned the specific equipment, the Harp rig, that is the subject of the present case and whether payment of a registration fee for the Harp rig is required. No appeal having been taken, the Sedgwick County adjudication constituted a final judgment on the merits. Even though the parties’ arguments on appeal speak of the doctrine of res judicata (claim preclusion), it is the closely related doctrine of collateral estoppel (issue preclusion) that is involved. It is said in Penachio v. Walker, 207 Kan. 54, 57, 483 P.2d 1119 (1971): “The doctrine of res judicata is a bar to a second action upon the same claim, demand or cause of action. It is founded upon the principle that the party, or some other with whom he is in privity, has litigated, or had an opportunity to litigate, the same matter in a former action in a court of competent jurisdiction. The doctrine of collateral estoppel is a bar in an action upon a different claim as to certain matters in issue which were determined in a former judgment. The distinction between res judicata and collateral estoppel is based on the distinction between a cause of action and issues in a cause of action.” More recently, it has been said in Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 690, 751 P.2d 122 (1988): “[C]ollateral estoppel . . . prevents relitigation in a different claim of issues conclusively determined in a prior action. [Citation omitted.] . . . [Collateral estoppel may be invoked where the following is shown: (1) a prior judgment on the merits which determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the pleadings and judgment, (2) the parties must be the same or in privity, and (3) the issue litigated must have been determined and necessary to support the judgment.” Under the doctrine of collateral estoppel, an issue once actually litigated and determined may not again be litigated in a subsequent action between the same parties or their privies, even though involving a different cause of action. Goetz v. Board of Trustees, 203 Kan. 340, 349, 351, 454 P.2d 481 (1969). Was the issue of whether the Harp rig is within the K.S.A. 1990 Supp. 8-128(b) exemption conclusively determined in the prior Sedgwick County action? Yes. Was determination of the issue necessary to support the judgment in the prior Sedgwick County action? Yes, clearly. The issue was the foundation subject of the declaratory judgment action. Was the prior Sedgwick County judgment a judgment on the merits? Obviously, yes. Of greatest difficulty is the question of privity for the purpose of applying collateral estoppel here. In Goetz, a collateral estoppel case, it is said that collateral estoppel does not require mutuality of the parties. 203 Kan. at 349-50. Importantly, Goetz also says that “[t]here is no generally prevailing definition of ‘privity’ which can be automatically applied to all cases. A determination of the question as to who are privies requires careful examination into the circumstances of each case as it arises.” 203 Kan. at 350-51. With no hesitation we find the requisite privity existing here insofar as Harp Well and Pump Services, Inc., and Parson— an employer and its employee — are concerned. But that does not matter. Instead, there remains the question whether there is “privity” between the State in this case and a defendant in the prior Sedgwick County case? We conclude there is. In Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P.2d 858 (1967), Pierce, a property owner, brought an action to set aside a tax foreclosure sale of his property. On appeal, the Supreme Court addressed the question whether the constructive service by publication utilized in the tax foreclosure proceeding was sufficient to obtain jurisdiction over Pierce. It was held that the constructive service was not sufficient because due process required that, inasmuch as Pierce’s address was readily obtainable in at least the county treasurer’s office, Pierce was entitled to personal service. The Supreme Court found that Pierce’s whereabouts could have been ascertained by the simple expedient of making inquiry of the treasurer, or of examining the treasurer’s records. 200 Kan. at 85. In its opinion, the Supreme Court had this to say: “If it be argued that Pierce’s address was not on file with the sheriff, or the county attorney, we reply that they and the treasurer are but arms of the same governmental body — Leavenworth County. . . . The county may not now use the excuse that its right hand knew not what its left hand did . . . .” (Emphasis added.) 200 Kan. at 85. In Goetz, 203 Kan. 340, the first “action” was initiated by a Wichita fireman, Lawrence C. Goetz, for a disability pension as provided for by statute. After his subsequent termination of employment with the Wichita Fire Department and death, his widow, Peggy, initiated an action for a widow’s pension as also, but separately, provided for by statute. In Lawrence’s proceeding, it was ultimately adjudicated that Lawrence’s disability — a diseased heart condition which resulted in his death — was not a service-connected disease and that, therefore, Lawrence had had no entitlement to a disability pension. In regard to the later and separate claim asserted by Peggy for a widow’s pension, the Su preme Court observed that “the issue as to whether the husband’s diseased heart condition was contracted by reason of his occupation as a fireman is the same in the widow’s claim for a pension as it was when her husband;made application for a pension as a fireman.” 203 Kan. at 350. The Supreme Court held: “Here it must be conceded the widow’s claim for a pension under K.S.A. 13-14a07 is a different claim or cause of action from her husband’s claim for a disability pension under K.S.A. 13-14a09, but her right to a pension is dependent upon a determination of the issue whether her husband’s death was the result of a disease contracted by reason of his occupation as a fireman. . . . “We think the doctrine of collateral estoppel applies here and precludes the widow from the benefits under the statute." (Emphasis added.) 203 Kan. at 350. Accordingly, Peggy’s claim-for widow’s pension benefits was denied. As a practical matter, Peggy’s claim was denied on the ground that Peggy was “in privity” with Lawrence and that the doctrine of collateral estoppel barred her relitigation of a necessary issue determined adversely to Lawrence in the prior action and, having been so determined, she was ineligible to recover in her subsequent action. For the purpose of considering the applicability of the doctrine of collateral estoppel, the Supreme Court implicitly but necessarily found Peggy “in privity” with Lawrence. The registration exemption issue in the case before us was determined adversely to the defendants in the prior action. There, one defendant was the Sedgwick County Treasurer and the other defendant was “The State of Kansas, State Highway Commission, Motor Vehicle Department,” an appellation that in our estimation would have been better stated as “The Motor Vehicle Department of the State Highway Commission of the State of Kansas.” We will refer to the second defendant simply as the Motor Vehicle Department. In 46 Am. Jur. 2d, Judgments § 578, p. 742, it is said that the courts have held that the agents of the same government are in privity with each other, since they represent not their own rights but the right of the government. This, it seems, is in line with the previously recited language of Pierce, 200 Kan. at 85, saying that “[the sheriff or the county attorney] and the treasurer are but arms of the same governmental body — Leavenworth County.” In considering the case before us, we find that in the so-called subsequent case — this case brought and prosecuted by the State — we have the State itself as the object of a collateral estoppel assertion and that one of its' arms, the Motor Vehicle Department, was a party against whom an adverse ruling of exemption was conclusively made in a prior case, that is, the Sedgwick County case. When this scenario is considered in the light of Pierce and Goetz, we are persuaded that in this subsequent case the State is bound by the prior case’s issue determination that the Harp rig is afforded registration exemption by K.S.A. 1990 Supp. 8-128(b) and that the present prosecution of Parson is barred. Under Goetz, “strict privity” is not required for application of the bar of collateral estoppel and the Pierce “arms of the same government” principle is sufficient for the application of the collateral estoppel bar. We conclude that, under the circumstances of this case, the trial court erred in concluding that the Harp rig is not within the registration exemption afforded by K.S.A. 1990 Supp. 8-128(b). As a matter of law, by operation of the doctrine of collateral estoppel, the Harp rig is within the registration exemption afforded by K.S.A. 1990 Supp. 8-128(b). One further matter needs to be addressed. That is the question of whether the fact that the Sedgwick County case (the prior case) was a civil action and the present case (the subsequent case) is a criminal case prevents application of collateral estoppel. State v. Roach, 83 Kan. 606, 112 Pac. 150 (1910), and Rosenberger v. Northwestern Mutual Life Ins. Co., 182 F. Supp. 633 (D. Kan. 1960), demonstrate that we must answer in the negative. Consideration of Roach and Rosenberger requires our recognition that the standard of proof in a criminal action is “beyond reasonable doubt” and the standard of proof in a civil action is “preponderance of the evidence.” In Roach, the “prior case” was a criminal case in which the defendants Roach were acquitted. The case on appeal was the “subsequent case,” an injunction action, a civil case, in which the plaintiff State appealed from judgment for the Roaches granted on the ground that that was required by the acquittal. This appears in the opinion: “[A] judgment was rendered for the defendants expressly upon the ground that the acquittal constituted an adjudication of the controversy involved in the civil case. In order to obtain an injunction it was necessary for the state to prove that the defendants had committed the precise offense of which upon the same evidence they had been found not guilty. In the two actions the parties were the same, and the acts complained of were the same and were made illegal by the same statute. There was identity of parties and identity of issues. A final judgment in one was necessarily conclusive in the other unless this result is prevented by the fact that one action was criminal and the other civil. In order to procure a conviction on the criminal charge the state was required to establish beyond a reasonable doubt that the defendants had violated the law, while to obtain an injunction it needed only to show this by a preponderance of the evidence. This difference in the degree of proof required has generally been thought sufficient to prevent the application of the doctrine of res judicata.” 83 Kan. at 607. “The higher standard of proof required of the plaintiff in a criminal action is so frequently mentioned in discussions of the doctrine of res judicata that its bearing on the subject may be said to be generally recognized. True, its mention is often associated with other matters that would alone be controlling. But this difference between civil and criminal litigation is either without any significance at all in this connection or it is decisive, and of itself prevents either party to an action from being concluded therein by a previous judgment obtained in a proceeding where the rule of evidence was less favorable to him. We think, upon principle and authority, an acquittal in a criminal case does not for all purposes amount to an adjudication against the state that the defendant did not commit the acts charged against him. What a verdict of not guilty really decides is that the evidence does not exclude every reasonable doubt of the defendant’s guilt. If in the present case the injunction action had been tried first it would hardly be seriously contended that a judgment for the plaintiff would bar a defense in the criminal action. A sufficient reason why the defendant would not be concluded by the result of the civil case is that his guilt would not have been established beyond a reasonable doubt. The consideration that protects him against the plea of res judicata in the one case deprives him of its benefits in the other. “. . . The acquittal in the criminal action is therefore not a bar.” 83 Kan. 611-12. In discussing Roach, Rosenberger observes: “The intervening defendant contends that a criminal judgment cannot be res judicata in a subsequent civil action. In support of this argument State v. Roach, 1910, 83 Kan. 606, 112 P. 150, 31 L.R.A.,N.S., 670, was cited to the court. That case, however, was concerned with the propriety of admitting evidence of the acquittal in the criminal action. This is the general rule with respect to acquittals for the reason that, as stated in 3 Jones on Evidence § 639, ‘a judgment of acquittal is a negative sort of conclusion lodged in a finding of failure of the prosecution to sustain the burden of proof beyond a reasonable doubt.’ ” 182 F. Supp. at 634-35. We are persuaded pursuant to Roach and Rosenberger that, under circumstances such as those now before us, where the prior case is civil in nature and the subsequent case is criminal in nature, estoppel operates as a bar. Reversed and remanded for vacation of the imposed fíne and for dismissal of the charge.	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Larson, J.: William Stewart appeals the trial court’s dismissal of his race discrimination claims against the Department of Administration and Morton Oelke. He also appeals the trial court’s retroactive application of its ruling. Stewart is a black male employed as a printing press operator assistant in the department. His employment was terminated because he could not perform his regular job duties due to a medical restriction that he not lift more than 25 pounds. Stewart appealed his job termination to the Kansas Civil Service Board (CSB), which concluded the department had acted unreasonably in terminating Stewart’s job and had erroneously concluded he could not perform his job duties. The CSB restored Stewart to his previous job status and ordered that he receive back pay from the date he had been terminated. After receiving the favorable result from the CSB, Stewart resumed his employment and on December 31, 1987, filed the present action setting forth claims for relief under 42 U.S.C. §§ 1981 and 1983 (1988), plus other contentions which are not in issue herein. The caption names Oelke individually and as an employee of the department, although the allegations in the petition stated Oelke acted in his official capacity. Stewart’s petition alleged both defendants were guilty of racially discriminatory acts and practices resulting in his termination, which entitled him to damages. The defendants’ answer and motion to dismiss asserted defenses of failure to exhaust administrative remedies, statute of limitations, and res judicata. The trial court granted the defendants’ first motion to dismiss. In a prior opinion, our court concluded that Stewart’s claims prior to December 31, 1985, were barred by the statute of limitations, that his claims under 42 U.S.C. §§ 1981 and 1983 were not barred by the proceedings before the CSB, and that he had Exhausted his administrative remedies. (No. 63,087, unpublished opinion filed September 1, 1989.) After remand, both defendants filed a second motion to dismiss on the grounds that Stewart’s claims are barred because of the rulings in Patterson v. McLean Credit Union, 491 U.S. 164, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989), and Will v. Michigan Dept. of State Police, 491 U.S. 58, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). The trial court granted the defendants’ motion. Stewart moved to alter or amend the judgment, claiming Patterson should not be given retroactive effect. This motion was denied by the trial court. Stewart appeals from all the trial court’s rulings. We affirm. The trial court did not err in concluding that Patterson v. McLean Credit Union barred Stewart’s discriminatory discharge claim. Stewart brings his claim of discriminatory discharge pursuant to 42 U.S.C. § 1981, which provides: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the lull and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” The critical part of this statute to our case is that “all persons . . . shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens.” Although Justice Kennedy, writing for a five to four majority in Patterson assured us of ease of application of its rule (“We believe that the lower courts will have little difficulty applying the straightforward principles that we announce today,” 491 U.S. at 185 n.6), six judges in the federal district court in Kansas have divided equally as to how Patterson should be applied. Since the Kansas Supreme Court has not yet visited this issue, the divergence of opinion by the federal judges requires that we examine the rationale and conclusion of Patterson in considerable detail. Brenda Patterson, a black woman, was employed by McLean Credit Union as a teller and file coordinator for 10 years before being laid off. She sued under 42 U.S.C. § 1981, alleging harassment, failure to promote, and unlawful discharge, all because of her race. Patterson received a jury verdict on her § 1981 claims of alleged discrimination in her discharge and her nonpromotion, but the trial court determined her claim for racial harassment was not actionable under § 1981 and refused to submit it to the jury. On appeal, Patterson alleged the trial court erred in refusing to submit to the jury her § 1981 claim based on racial harassment and in instructing that in order to prevail on her § 1981 claim of discriminatory failure to promote, she had to show she was better qualified than the white employee she alleges was promoted in her stead. In affirming, the Court of Appeals held that while instances of racial harassment “ ‘may implicate the terms and conditions of employment under Title VII [of the Civil Rights Act of 1964, 78 Stat. 253, 42 U.S.C. § 2000e et seq.,] and of course may be probative of the discriminatory intent required to be shown in a § 1981 action,’ . . . racial harassment itself is not cognizable under § 1981 because ‘racial harassment does not abridge the right to “make” and “enforce” contracts.’ ” (Emphasis added.) 491 U.S. at 170 (quoting Patterson v. McLean Credit Union, 805 F.2d 1143, 1145-46 [4th Cir. 1986]). After the United States Supreme Court granted certiorari, 484 U.S. 814 (1987), and oral arguments were heard, the parties in Patterson were requested to brief and argue “[w]hether or not the interpretation of 42 U.S.C. § 1981 adopted by this court in Runyon v. McCrary, 427 U.S. 160 (1976), should be reconsidered.” 485 U.S. 617, 99 L. Ed. 2d 879, 108 S. Ct. 1419 (1988). The Patterson Court concluded that Runyon should not be overruled and “reaffirm[ed] that § 1981 prohibits racial discrim ination in the making and enforcement of private contracts,” 491 U.S. at 172, but held “that racial harassment relating to the conditions of employment is not actionable under § 1981 because that provision does not apply to conduct which occurs after the formation of a contract and which does not interfere with the right to enforce established contract obligations.” 491 U.S. at 171. After explaining the affirmance of Runyon, Justice Kennedy stated, in that portion of the Court’s opinion critical to our decision herein: “By its plain terms, the relevant provision in § 1981 protects two rights: ‘the same right ... to make . . . contracts’ and ‘the same right . . . to . . . enforce contracts.’ The first of these protections extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment. The statute prohibits, when based on race, the refusal to enter into a contract with someone, as well as the offer to make a contract only on discriminatory terms. But the right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions. Such postformation conduct does not involve the right to make a contract, but rather implicates the performance of established contract obligations and the conditions of continuing employment, matters more naturally governed by the state contract law and Title VII.” 491 U.S. at 176-77. If racial discrimination exists in the work environment it is actionable under “the more expansive reach of Title VII of the Civil Rights Act of 1964,” which “makes it unlawful for an employer to ‘discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment.’ 42 U.S.C. § 2000e-2(a)(I).” 491 U.S. at 180. Although recognizing some overlap between Title VII and 42 U.S.C. § 1981, the Court noted that the integrity of Title VII’s procedure is preserved. 491 U.S. at 181. The timing of the two federal provisions (§ 1981 and later Title VII) was deemed to be important to the Patterson majority, which stated: “We should be reluctant, however, to read an earlier statute broadly where the result is to circumvent the detailed remedial scheme constructed in a later statute. [Citation omitted.] .... But, in any event, the availability of the latter statute should deter us from a tortuous construction of the former statute to cover this type of claim.” 491 U.S. at 181. Nowhere in the Patterson opinion do we find a specific prohibition of the application of § 1981 to a claim of unlawful termination, but the unmistakable language and reasoning clearly show § 1981 is not available in a discriminatory discharge case. The words of Justice Brennan in Patterson give credence to this construction when he opens his ringing concurring and dissenting opinion with the following statement: “What the Court declines to snatch away with one hand, it takes with the other. Though the Court today reaffirms § 1981’s applicability to private conduct, it simultaneously gives this landmark civil rights statute a needlessly cramped interpretation. The Court has to strain hard to justify this choice to confine § 1981 within the narrowest possible scope, selecting the most pinched reading of the phrase ‘same right to make a contract’ . . . .” 491 U.S. at 189 (Brennan, J., concurring and dissenting). Justice Brennan’s dissent is eloquent and persuasive, but the fact of life with which we are faced is that it is a minority opinion and we are duty-bound by our system of jurisprudence to follow and apply the wording and meaning of majority decisions. See Ritchie v. Johnson, 158 Kan. 103, 117-18, 144 P.2d 925 (1944). Clearly and simply stated, 42 U.S.C. § 1981 does not provide a remedy for discriminatory discharge. Two recent decisions from the 10th Circuit Court of Appeals give comfort to our conclusion. Circuit Judge Tacha, in Trujillo v. Grand Junction Regional Center, 928 F.2d 973, 976 (10th Cir. 1991), stated: “Every appellate court that has addressed this issue agrees the Patterson decision requires the conclusion that a claim for discriminatory discharge cannot be asserted under section 1981.” See 928 F.2d at 976, citing cases from the 2nd, 4th, 5th, 6th, 7th, 9th, and 11th Circuits and footnote 1 at 976, citing Hicks v. Brown Group, Inc., 902 F.2d 630, 638-39 (8th Cir. 1990), the one opinion that had reached an opposite conclusion. Hicks has been vacated by the United States Supreme Court and remanded to the 8th Circuit, - U.S. -, 113 L. Ed. 2d 234, 111 S. Ct. 1299 (1991), in light of the recently granted rehearing en banc in a companion case, Taggart v. Jefferson County Child Support Enforcement Unit, 915 F.2d 396, 397 (8th Cir. 1990). In the other 10th Circuit opinion, Carter v. Sedgwick County, Kan., 929 F.2d 1501 (10th. Cir. 1991), Circuit Judge Ebel recognized that Patterson did not settle the issue of whether § 1981 applies to a race-based discharge (see Lytle v. Household Mfg., Inc., 494 U.S. 545, 108 L. Ed. 2d 504, 515 n.3, 110 S. Ct. 1331 [1990]), but stated “the logic of the Court’s opinion in Patterson indicates that a claim of discriminatory discharge does not implicate the right ‘to make . . . contracts’ protected by § 1981 because a discharge occurs after the employment contract has been formed.” 929 F.2d at 1504. Trujillo was followed and the United States District Court for the District of Kansas’ determination of liability for discriminatory discharge under § 1981 was reversed. We will not attempt to reconcile the opinions from the federal district courts of Kansas collected in Ginwright v. Unified School Dist. No. 457, 756 F. Supp. 1458 (D. Kan. 1991). Ginwright should be contrasted with Boyd v. Telecable of Overland Park, Inc., 752 F. Supp. 388 (D. Kan. 1990). Stewart’s fallback argument to the decision we have reached is that even if § 1981 no longer applies to discriminatory discharge cases, Patterson cannot be applied retroactively to his case. We do not agree with his contention. In Kansas, a judicial decision will be applied retroactively unless it establishes a new rule of law, retroactive application would not further the principle on which the decision is based, and retroactive application would cause substantial hardship or prejudice. In re Estate of McDowell, 245 Kan. 278, Syl. ¶ 2, 777 P.2d 826 (1989). Patterson does not establish a new rule of law, it is merely a judicial decision involving a longstanding statute. The interpretation may be a strict one, but the principle on which Patterson is based would not be furthered by allowing Stewart to recover under § 1981. Stewart exercised his remedies before the CSB and his employment was restored with back pay. We recognize that from Stewart’s standpoint, the damages may be more expansive under a § 1981 action, but that is not a sufficient reason to allow his claims thereunder to continue in light of the decision in Patterson. In McDowell, the Kansas Supreme Court gave retroactive effect to a United States Supreme Court decision, Tulsa Professional Collection Services v. Pope, 485 U.S. 478, 99 L. Ed. 2d 565, 108 S. Ct. 1340 (1988), that rendered the Kansas nonclaim statute involving estates unconstitutional because it did not provide actual notice to known or reasonably ascertainable creditors of an estate. McDowell validated an untimely claim against an estate which was filed after Pope was announced. In Hill v. Goodyear Tire & Rubber, Inc., 918 F.2d 877, 879-90 (10th Cir. 1990), the issue of whether Patterson should be applied retroactively was decided in this manner: “After Patterson was decided, Goodyear moved to dismiss this appeal on the basis that none of plaintiffs claims was still actionable in light of Patterson. Plaintiff responded by arguing that Patterson should not be applied retroactively, and that even if it were, his claims for retaliatory and discriminatory discharge should survive. “Those circuits that have considered appeals that were pending when Patterson was decided have applied Patterson retroactively. [Citations omitted.] Furthermore, the Supreme Court retroactively applied its limitation of the scope of section 1981 to the plaintiff in Patterson, 109 S. Ct. at 2377, 2379, and on at least one occasion has directed a circuit court to consider the effect of Patterson on a plaintiffs section 1981 claims on remand. Lytle v. Household Mfg., Inc., 494 U.S. 545; 110 S. Ct. 1331, 1336 n.3, 108 L. Ed. 2d 504 (1990). We see no reason to divide the circuits on this issue and therefore, we hold that Patterson should be applied retroactively.” (Emphasis added.) We hold Stewart has failed to satisfy the three-prong test of McDowell and choose to follow the decisions of the federal courts that Patterson is to be applied retroactively. Although Stewart argues that he states a claim against Oelke individually, the wording of his petition compels us to disregard this contention as being without merit. We need not reach or discuss Will, as the conclusion we have reached in light of Patterson is fatal to Stewart’s claims. Affirmed.	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PlERRON, J.: Defendant Charlene F. Brown appeals her conviction of forgery. K.S.A. 21-3710. On March 13, 1988, a woman presented to Russ Meens, a drive-through teller at a branch office of Capitol Federal Savings and Loan in Topeka, a passbook bearing the name Marjorie Thomas and a withdrawal slip for $1,000 on that account. She was given $1,000 in cash. Forty-five minutes later, the same woman returned and attempted to again withdraw $1,000 from Thomas’ account. This time Meens compared the signature on the withdrawal slip with that of the signature card and found they were not “close enough.” Meens asked the woman for identification, which she did not give. He then advised the woman to complete the transaction at the Capitol Federal home office. The woman was identified at trial as Charlene Brown, an employee of another branch office of Capitol Federal. Marjorie Thomas’ passbook had not been stolen nor had she authorized anyone to use it to withdraw the $1,000. A subsequent investigation of the savings and loan’s computer records revealed that several inquiries into Thomas’ account had been made on March 11 and 13 from Charlene Brown’s terminal and cashbox numbers. On the date of the forgery, Brown deposited $600 into her personal account at Capitol Federal. The next day she purchased a $400 money order. Brown was charged with one count of forgery. She was convicted by a jury and sentenced to four years’ probation. She filed a timely notice of appeal. The only issue Brown raises on appeal is the admission of certain computer records. “There is little doubt that evidence in the form of a computer printout may constitute hearsay and is inadmissible unless it qualifies under one of the exceptions to the hearsay rule. United States v. Ruffin, 575 F.2d 346, 355-56 (2d Cir. 1978). The most frequently applied exception to overcome the hearsay rule and gain admissibility is the ‘business records’ exception, K.S.A. 60-460(m).” West v. Martin, 11 Kan. App. 2d 55, 59, 713 P.2d 957, rev. denied 239 Kan. 629 (1986). K.S.A. 1990 Supp. 60-460(m) defines the business records exempted from the hearsay rule as “writings offered as memoranda or records of acts, conditions or events to prove the facts stated therein, if the judge finds that (1) they were made in the regular course of a business at or about the time of the act, condition or event recorded and (2) the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness.” Here, Brown contends that neither requirement of 60-460(m) was met. She argues the computer printouts which revealed the inquiries into Thomas’ account were not ordinarily made in the normal course of business. The information at issue was entered during the testimony of Perry Adkins, the director of internal audit at Capitol Federal. He testified that each teller has his or her own cashbox and cashbox number. Two tellers share a computer terminal, but have separate sign-on numbers. Pursuant to his investigation, he requested from data processing the printouts showing inquiries made on Thomas’ account. He discovered that on March 11, 1989, two days before the forgery, 17 inquiries were made on Thomas’ account from the terminal and cashbox assigned to Brown on that date. The inquiries requested general information about the account and were consistent with those necessary to create a new passbook. Numerous inquiries were also made on March 13, 1989, from different terminals and cashboxes. Most of them were made from cashbox 6, which was assigned to Brown. Adkins testified that there is a distinction between transactions and inquiries, both of which are done by computer. Transactions are such things as withdrawals and deposits and, pursuant to federal regulations, records of transactions may be retained as long as 40 years. Inquiries are questions to verify information about an account. Capitol Federal records inquiries so that if the computer malfunctions the savings and loan would be able to update customer information. Generally, records of inquiries are only retained for a week to ten days. Capitol Federal records everything for back up in case of a problem, and then sorts through the records to determine what will be saved for a long period of time. Clearly, the computer information regarding inquiries about Thomas’ account was made in the regular course of business. Although not kept as long as records of transactions, inquiries were recorded for a legitimate business purpose and those records were kept for several days to satisfy that purpose if the need occurred. Brown also argues that the computer information did not meet the second requirement of K.S.A. 1990 Supp. 60-460(m) which is trustworthiness. The determination of whether business records are trustworthy under 60-460(m) is within the discretion of the trial court. Hudson v. City of Shawnee, 245 Kan. 221, 230, 777 P.2d 800 (1989). “The test on appellate review of whether the trial court abused its discretion is whether no reasonable person would agree with the trial court.” Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d 124 (1988). Here, Brown makes several specific allegations against the trustworthiness of the computer data at issue. First, she contends it should not have been admitted because Adkins admitted he did not know the intricacies of the computer’s operation and a computer programmer was better qualified to explain how the computer records each inquiry. Further, she contends he was only able to obtain and interpret the data with the assistance of the data processing department. “In Olathe Ready-Mix Co., Inc. v. Frazier, 220 Kan. 646, 556 P.2d 198 (1976), it was held that K.S.A. 60-460(m) does not require that the custodian of business records be called to lay the foundation facts for their admission into evidence. The foundation facts may be proved by any relevant evidence and the person making the entries in the records need not be called to authenticate them if they can be identified by someone else who is qualified by knowledge of the facts. The policy of this section is to leave it up to the trial court to determine whether the sources of information, method, and time of preparation reflect trustworthiness. (State v. Beasley, 205 Kan. 253, 469 P.2d 453 [1970], cert. denied 401 U.S. 919 [1971]).” State v. Cremer, 234 Kan. 594, 601, 676 P.2d 59 (1984). Adkins did request the information from the data processing department, but he has access to all information at Capitol Federal. He is able, through his training, to interpret the numbers on the inquiry information to determine from what terminal and cashbox the requests came. Brown also argues that the information is untrustworthy because it was generated solely for the purpose of this litigation. Federal courts have stated that the fact a business record was made solely for litigation is a factor in determining trustworthiness. Rosenberg v. Collins, 624 F.2d 659, 665 (5th Cir. 1980). Even if that is a factor in this jurisdiction, the information at issue here was not made for the sole reason of prosecuting Brown. Adkins explained that inquiries are recorded as back-up in the event of a computer shutdown. Brown also argues that the information is suspect because the employee’s identification number was not shown in the data; therefore, it cannot be shown which employee made the inquiry but only from which terminal and cashbox the inquiry came. This goes to the weight of the evidence, not its admissibility. The court did not abuse its discretion by admitting the computer evidence. Affirmed.	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The opinion of the court was delivered by Valentine, J.: This was an action brought in the district court of Jewell county on December 13, 1887, by Peter Olson against N. Lindgrove and A. G. Nunnally, to perpetually enjoin the defendants from making a sale of certain personal property belonging to Olson and levied on by the defendant Nunnally as constable of Center township, in said county, under an execution issued by J. W. McRoberts, a justice of' the peace of said township, upon a supposed judgment in favor of Lindgrove, as the judgment creditor, and against Olson, as the judgment debtor. The plaintiff, Olson, in his petition in the district court, sets forth and alleges that the judgment upon which. the execution was issued was rendered on April 30, 1887, and he attaches a certified transcript of the judgment and the proceedings of the justice of the peace to his petition, and makes them a part thereof. This transcript shows that the trial before the justice was had on April 28, 1887, and then follow these words: “After hearing arguments of counsel and taking the matter under consideration until April 30, 1887;” and then follows the justice’s judgment, which is entered without any further date being given. Olson further alleges in his petition, and shows by the transcript, that on May 4,1887, such judgment was set aside and vacated and a new trial granted, upon a motion made by himself for that purpose, upon the ground of newly-discovered evidence, and the new trial was set for May 16, 1887. But it is also alleged that on that day the parties appeared, but the justice of the peace was absent from his office and from the township, and nothing further was done in the case. The transcript also shows that on November 3, 1887, the justice of the peace attempted to set aside and vacate his previous order setting aside and vacating the aforesaid judgment and granting a new trial, for the reason that the aforesaid motion of Olson’s to vacate the judgment and for a new trial was not “ in writing as agreed upon.” Upon this subject Olson alleges in his petition that it was agreed by the parties at the time that the motion might be made orally. Whether Olson or his counsel was present or not, of had any notice when this last order of the justice was made attempting to set aside his former order vacating the judgment and granting a new trial, the transcript is silent. Other allegations are contained in the petition, not necessary to be stated for the purposes of any question now presented to this court. This petition was duly verified by affidavit. The defendants answered, setting up the aforesaid judgment, execution, and levy, and also that the defendant gave a redelivery bond, on account of which he was permitted to retain the possession of the property levied on. The defendants also allege in their answer that the aforesaid judgment was rendered on April 28, 1887, and that Olson did not make any motion for a new trial within five days thereafter; and they attach a certified transcript of the judgment and proceedings of the justice of the peace to their answer, and make the same a part thereof. This transcript shows precisely the same as the one attached to the plaintiff’s petition, except that it does not contain the words “after hearing arguments of counsel and taking the matter under consideration until April 30, 1887.” The plaintiff replied to this answer by filing a general denial. Neither the answer nor the reply was verified by affidavit. At the June term of the district court, in 1888, the defendants made and presented a motion for judgment upon the pleadings, which motion was sustained, and judgment was rendered in favor of the defendants and against the plaintiff for costs; and the plaintiff, as plaintiff in error, brings the case to this court for review. It would seem to us that the judgment of the district court is erroneous and must be reversed. For the purposes of the case it must be assumed, either that the judgment of the justice of the peace was rendered on April 30,1887, or that there was an issue of fact presented by the pleadings of the parties as to whether it was rendered on that day or on April 28,1887; and as the plaintiff, Olson, in his petition alleged, and his transcript showed, that thejudgment was rendered on April 30,1887, he certainly had a right, either to have this allegation to be considered as true, or the right to prove the same by evidence; provided, of course, that the same shall be considered as material in the case and as controverted by the defendants. We shall therefore assume for the purposes of this case that the judgment was rendered on April 30, 1887. We shall also assume for the purposes of this case, that in any case a motion to vacate or set aside a decision or verdict rendered in a justice’s court and for a new trial must be made within five days after the decision or verdict is rendered; (Justices’ Code, § 110;) and that the motion should be in writing, but that the parties and the justice may waive the writing, and permit the motion to be made orally; and with these assumptions, the following questions arise: Was the judgment of the justice of the peace a valid and subsisting judgment at the time when the execution in question in this case was levied on Olson’s property? And did he, by giving the redelivery bond, estop himself from questioning its validity? The judgment, if rendered on April 30, 1887, as alleged by the plaintiff and shown by his transcript, was certainly vacated and set aside on May 4,1887, and therefore at that time it ceased to have any legal existence. The action, however, was still pending before the justice of the peace, and the case was set for a second trial on May 16,1887; but ou that day the justice of the peace was absent from his office and from the township, and nothing was done in the case, and therefore, under the authorities, the justice lost all jurisdiction of the case. (Martin v. Fales, 18 Me. 23; Flint v. Gault, 15 Hun, 213; Lynsky v. Pendegrast, 2 E. D. Smith, 43; Downer v. Hollister, 14 N. H. 122; 12 Am. & Eng. Encyc. of Law, 402, and cases there cited.) And the subsequent order of the justice of the peace attempting to vacate his former order vacating the judgment and granting a new trial certainly could not revive or resuscitate the former defunct judgment. There being, then, no valid judgment in existence to uphold the execution when the same was levied upon Olson’s property, the execution was itself absolutely void, and it may be attacked collaterally as well as directly,‘and its enforcement be restrained by injunction. (1 Freeman, Ex., §20; 12 Am. & Eng. Encyc. of Law, 400, 401; Mo. Pac. Rly. Co. v. Reid, 34 Kas. 410, 413.) It is further claimed by the defendants, Lindgrove and Nunnally, that the plaintiff, Olson, who was defendant in the execution and whose property was levied on, is estopped from claiming that the judgment of the justice of the peace is void, for the reason that he gave a redelivery or forthcoming bond, and was thereby permitted to retain the possession of the property levied on; and several authorities are cited as authority for this claim, among which are certain decisions rendered by this court. (Sponenbarger v. Lemert, 23 Kas. 55; Haxtun v. Sizer, 23 id. 310; Wolf v. Hahn, 28 id. 588; Case v. Steele, 34 id. 90.) These cases have no application to, the present case. These cases have nothing to do with void judgments, void executions, or void levies, but go only to this extent: Where property of the defendant is levied upon by an officer under judicial process, and the defendant or anyone for him afterward gives a redelivery or forthcoming bond, the party giving such bond or procuring it to be given is estopped from afterward asserting title to the property in any person other than the defendant in the process. But where a judgment upon which an execution is issued and levied is void, which renders all the subsequent proceedings void, the party giving the redelivery bond, and thereby obtaining the right to retain the possession of the property levied on, does not thereby estop himself from afterward asserting either directly or collaterally that the judgment and all things depending thereon are utterly and absolutely null and void. (2 Freeman, Ex., §264; Earl v. Camp, 16 Wend. 562; Perry v. Williams, 39 Wis. 339; Buckingham v. Bailey, 4 S. & M. [12 Miss.] 538; Ex parte Cheatham, 6 Ark. [1 English], 531; Newburg v. Munshower, 29 Ohio St. 617; Van Cleave v. Haworth, 5 Ala. 188; Page v. Coleman, 9 id. 275.) We do not hold in this case that a party after giving a redelivery or forthcoming bond may then interpose objections because of any mere irregularities in any of the prior proceedings; but we simply hold that a party giving such a bond is not estopped from afterward asserting that all the prior proceedings are absolutely and utterly void. The judgment of the court below will be reversed, and the cause remanded for a new trial. All the Justices concurring.	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Opinion by Simpson, C.: This is an action commenced in the Osborne district court by the plaintiff in error against W. A. Ware, who was sheriff, to recover damages for the wrongful taking possession of and the conversion of certain property. At the October term, 1888, there was a trial by the court, and special findings were made that substantially embody all the material facts. The findings of fact and conclusions of law are as follows: “findings of fact. “On the day prior to the 30th day of October, 1886, one H. H. Withers was the owner and in the possession of a certain stock of goods and general merchandise in the town of Portis, Osborne county, Kansas, and had been doing a general retail business in the building in which the goods and merchandise were situated at the time. Said Withers was indebted to plaintiff in this case, and a large number of other creditors, and shortly before the 30th day of October, 1886, he executed and delivered to the Wm. B, Grimes Dry Goods Company a chattel mortgage for $1,249.17 on said stock of goods, and said chattel mortgage was filed for record, in the office of the register of deeds of Osborne county, Kansas, on the 28th day of October of said year, and on the 30th day of October said Withers executed and delivered to plaintiff' in this action a chattel mortgage for $686.30, which is set up and made a part of the petition in this action, on the same stock of goods and merchandise, and said chattel mortgage was filed for record in the office of the register of deeds of Osborne county, Kansas, at 3:30 o’clock p. m. of the 1st day of November, 1886. The chattel mortgage from Withers to plaintiff was made, executed and delivered about 11 o’clock a. m., at Atchison, Kas., October 30, 1886. On the said 30th day, and about 5 o’clock in the evening of the said day, the defendant, sheriff of Osborne county, Kansas, levied three writs of attachment upon said stock of goods and merchandise. The aggregate amount of the said three writs was something over $750; and thé order directed the sheriff also to levy upon sufficient amount to cover costs in the probable sum of $50. The sheriff levied each of three writs of attachment upon the entire stock of goods, and invoiced the same, and the invoice value was about $4,600. Thereafter, and at divers times between and including the 3d day of November, 1886, and the 8th, the sheriff levied these other writs of attachment on said stock of goods and merchandise for other creditors of Withers, subject to the levy of the first writ. The aggregate amount of the last six subsequent writs was about $1,389.53, and the probable costs in each case. Some time after the levy of all of said writs the creditors under the three first orders of attachment, and the Wm. B. Grimes Dry Goods Company, by agreement, placed one Buchanan in possession of the stock of goods, not by order of court, but as a sort of an agreed receiver, with the understanding that he should sell the goods at retail, to the best advantage possible, and pay the proceeds into court, to abide the order of the court; and under the arrangement said Buchanan sold about $700 worth of goods, but never paid anything into court. Said Buchanan was an employé of said Wm. B. Grimes Dry Goods Company. Afterward, and on the 15th day of January, 1887, the judge of this court, at chambers, appointed J. W. Marshall receiver, to take possession of said stock of goods, to sell the same, and to pay the proceeds into court. Said receiver took possession and made an invoice of the stock, which then invoiced $4,022.50, when by leave of the court the Wm. B. Grimes Dry Goods Company commenced an action in replevin in this court against said receiver to recover possession of said goods by virtue of their chattel mortgage, and on the hearing of said case the mortgage of said Wm. B. Grimes Dry Goods Company was adjudged valid, and the court found the right.of possession in favor of plaintiff in that action, and that the value of its interest therein was $1,365.25. Under the writ of replevin in said action of Wm. B. Grimes Dry Goods Company against the receiver, the possession of the goods and merchandise was by the sheriff delivered to the plaintiff therein, and after the judgment in the case the plaintiff proceeded in that action to sell, and sold until he acknowledged the satisfaction of his mortgage claim, and tendered the remainder of the stock back to the receiver, Marshall, and the receiver accepted of the goods and proceeded to invoice the same, which then invoiced $2,559.25, and sold the same for $1,605, and making his report of the same to the court, which was approved and his bill of expense for $67.75 and $125 for his services was allowed, and the balance being paid into court, $1,412.25. On the order of the court, .said amount was paid-as follows: First, all the costs in the attachment, which aggregated $117.75, $54.95 of which was in the three attach- meat cases first levied, and $62.80 the amount of costs in the six subsequent attachment eases; second, to the payment of the judgment rendered in the first three attachment cases; third, to the payment in full of the fourth attachment case, which left the remainder $500, which was applied on the attachment cases. That is to say, there was $718.80 paid out on the order of the court on the attachment suits, besides paying the judgment and costs in full in the first three attachment cases. “At the time the attachments were levied, on the 30th of October, 1886, the sheriff found in possession of the store and stock of merchandise a man by the name of Knoff, who had possession of the key to the store, Withers being then in Atchison ; Knoff had been in and about the store for some days prior to the execution of the mortgage from Withers to the W. B. Grimes Dry Goods Company, and shortly before Withers’ departure to Atchison, Withers had employed Knoff to take charge of the store, telling him that he should hold it as the agent of the W. B. Grimes Dry Goods Company, but no agent or person representing the W. B. Grimes Dry Goods Company, unless it be Withers, ever authorized or employed Knoff to hold possession of the store. Two other clerks in the store at the time were clerks who had been regularly and previously employed for some months by Withers. Knoff was employed to take charge of the store only during the temporary absence of Withers, and on Withers’ return he paid over to Withers the proceeds of the sales made in the store during his absence. On the 30th day of October, 1886, there was no apparent change in the manner of conducting the business, or the persons in charge, different from what there had been while Withers was conducting the business, except that Knoff had not previously had the keys, but on this day he had not or did not make known the fact, until he was interrogated in reference to it, and, when asked who was the clerk in charge of the business, referred the deputy sheriff to another clerk in the store, who had been there some months under the employment of Withers. There were two keys to the store; the evidence shows that Knoff had one key; whether he had both keys, or where the other key was, the evidence does not disclose. In the mortgage dated October 28, 1886, from Withers to W. B. Grimes Dry Goods Company, the provision in reference to possession is as follows: ‘And until default be made as aforesaid, or until such time as the party of the second part shall deem him self insecure, as aforesaid; the said party of the first part to continue in peaceful possession of all of said goods and chattels, as above specified.’ “ Prior to that there was this reference to the possession in said mortgage: “‘It is expressly understood and agreed by and between the parties hereto, that H. H. Withers shall have possession of said property only as the agent of the said W. B. Grimes Dry Goods Company, and that he sell said goods for cash only, in the usual course of business, keeping a true account of all the sales and expenses, and shall apply the proceeds of said sales to the payment of the debt hereby secured, and shall at all times, when demanded by the second party, make full and true account of all sales and receipts arising therefrom.’ “And the mortgage from Withers to the Smith-Frazer Boot and Shoe Company, plaintiffs, dated October 30, 1886, has the following provision in reference to the possession of the goods thereunder: “ ‘ It is expressly understood and agreed by and between the parties hereto, that H. H. Withers shall have possession of said property only as the agent of the said Smith-Frazer Boot and Shoe Company, and that he shall sell said merchandise for cash only, in the regular course of business, keeping a true account of all sales and expenses, and shall apply the proceeds to the payment of the debt hereby secured. He shall at all times, when demanded by the second party, make full and true account of all the sales and receipts arising therefrom.’ “Aud further on there is the following provision: “‘The said possession of the said property heretofore mentioned to be held subject to the possession of the William B. Grimes Dry Goods Company, under the chattel mortgage executed to it October 28, 1886, to which mortgage this is made subject.’ “And further on there is the following provision: “ ‘And until default be made as aforesaid, or until such time as the party of the second part shall deem himself insecure as aforesaid, said party of the first part to continue in the peaceful possession of all of said goods and chattels as above specified, all of which in consideration hereof he engages shall be kept in as good condition as the same now are.’ “ On the 30th day of October, 1886, when the sheriff levied the three orders of attachment, he had no notice or knowledge whatever of the existence of the mortgage from Withers to the Smith-Frazer Boot and Shoe Company, executed on the forenoon of that day at Atchison. After the sheriff delivered the stock of goods and merchandise in question to Marshall, as receiver, under the order of the court, he never thereafter had any possession whatever of said goods, except that he took the same on the order of replevin in the suit of William B. Grimes Dry Goods Company against the receiver, and turned them over to the W. B. Grimes Dry Goods Company, and never at any time sold or received any of the proceeds of said goods or any portion thereof in any way whatever. After the mortgage from Withers to plaintiff was executed, in Atchison, on the 30th day of October, 1886, the same was delivered to the mortgagor, Withers, to be filed for record. The ensuing day was Sunday, October 31st. The distance from Atchison to Portis, where Withers lived and did business, is 218 miles. Withers arrived by train from Atchison on Sunday evening at Portis, and on the following day drove to Osborne, the county-seat of Osborne county, which is a distance of 8 J miles, and filed the mortgage for record at 3:30 in the afternoon; said Withers returned from Atchison to Portis on the first train he could obtain after the execution of the mortgage. Said Withers consented to Buchanan acting as receiver.in the selling of the goods, before the appointment of Mr. Marshall as receiver by the court; and after the commencement of the replevin action by the W. B. Grimes Dry Goods Company against the receiver, the sheriff turned over the possession of the goods to Buchanan as agent of the W. B. Grimes Dry Goods Company, and Buchanan was the agent who redelivered the same to the receiver after the sale of sufficient goods to pay the claim of the W. B. Grimes Dry Goods Company. The plaintiff’s claim has not been paid, or any part thereof. At the time said Withers gave the mortgage in question to plaintiff, and on the 30th day of October, 1886, the plaintiff agreed to accept said mortgage, with the express understanding, at its request, that the agent of the W. B. Grimes Dry Goods Company had possession of the stock of goods and merchandise in question, and that he would hold the same as the agent of plaintiff and said W. B. Grimes Dry Goods Company. The amount of the plaintiff’s claim on the 3d day of October, 1887, was $686.30. During the time Buchanan, agent for W. B. Grimes Dry Goods Company, was selling the goods to satisfy the mortgage of W. B. Grimes Dry Goods Company, said Withers was present as clerk and assisted in making sales. The plaintiff made demand on the sheriff for sufficient of the proceeds of the sale to pay his claim a short time prior to the bringing of this suit. Demand was refused.” “conclusions on law. “It seems at least a matter of question whether or not there is any complaint in the plaintiff’s pleadings in this ease against the defendant for any trespass committed in the levying of the six writs of attachment on the stock of goods in question, between the 3d and 8th day of November, 1886. If there is any issue under the pleadings of a trespass in the levying of said writs, it is constructive, under the legal claim that, if any wrongful act is shown to have been committed by the defendant with reference to the.goods at any time subsequent to the first levies, that it should relate back to the original levy. Under the findings of fact, I find that the levy of the first three orders of attachment by the defendant upon the stock of goods in question, on the 30th day of October, 1886, was rightful as against plaintiff’s claim under its mortgage. “I find also, as a conclusion from the facts previously found by the court, that under the terms of the mortgage which the plaintiff took from H. H. Withers upon the stock of goods in question, the agent of the W. B. Grimes Dry Goods Company, which had a prior mortgage to the plaintiff upon the stock of goods in question, should be held to be also the agent of the plaintiff in all matters pertaining to the possession, sale and control of said stock of goods and merchandise. “I find also, as conclusions from said findings, that the agent of the W. B. Grimes Dry Goods Company, one Buchanan, with the assistance of H. H. Withers, who was by the terms of the plaintiff’s mortgage made plaintiff’s agent in the matter of the possession and sale of said stock of goods, sold $700 worth of said goods before said W. B. Grimes Dry Goods Company replevied said goods from the receiver appointed by the court to sell the same, and that said amount was not accounted for, nor taken into consideration in the replevin action in determining the value of the plaintiff’s interest in that case in said stock of goods under said mortgage. W. B. Grimes Dry Goods Company, by its agent, said Buchanan, and Withers, afterward sold or disposed of nearly $1,500 of said stock of goods to satisfy the mortgage of the said W. B. Grimes Dry Goods Company. The court has found that the plaintiff’s claim under its mortgage has not, in fact, been paid; but it seems probable, as a conclusion from such findings, that there is or was sufficient funds in the hands of the joint agent or agents of the said Wm. B. Grimes Dry Goods Company and the plaintiff to discharge both the plaintiff’s and the claim of Wm. B. Grimes Dry Goods Company. “The court finds as a proposition of law that when the Wm. B. Grimes Dry Goods Company, in the action of replevin for that purpose, recovered the possession of the stock of goods in question from Mr. Marshall, the receiver appointed by the court, and the goods were turned over to the Wm. B. Grimes Dry Goods Company, in accordance with the judgment, that the lien of the attachments previously levied thereon by the sheriff, upon such delivery ceased to exist, and that thereafter the agent of the said Wm. B. Grimes Dry Goods Company, said Buchanan, and from the circumstances of the case probably, with the knowledge and consent of Withers, voluntarily turned said goods over to the receiver, Marshall, without any action whatever upon the part of the defendant, or any participation in the said act. If there is any issue in this case charging the defendant with trespass in levying the six subsequent attachments, on and after November 3, 1886, I find as a proposition of law that the sheriff should have levied such attachments subject to the mortgage of the plaintiff; but if the levy of such attachments without being levied subject to the claim and mortgage of the plaintiff was wrongful, I think no damage has been shown to the plaintiff by reason thereof, in this case, and that under the evidence its damage should only be considered as nominal at most. I find in favor of the defendant in this case, and against the plaintiff for costs. “I think that the plaintiff is estopped, by the action of its agent in turning the goods over to the receiver, from claiming any damage in this case against the defendant. I think that the plaintiff, by its agent, was apprised at every step of the proceeding of the conversion of the goods into money and the manner in which the proceeds were being applied, and that it has been guilty of laches, standing by and seeing the goods it had the right to appropriated to the payment of other claims, without making any effort to assert its own claim upon the same, and that it should not be allowed to recover from the officer who levied the attachments, under all the circumstances of the case.” The boot and shoe company brings the case here for review, having saved all exceptions, and assigns many errors. I. The first contention that demands consideration is respecting the issues made by the pleadings. The plaintiff in error in its petition charges that on the 30th day of October, 1886, the defendant wrongfully and unlawfully took possession of, and without the right, and against the consent of the plaintiff in error, entirely deprived them of the title to and use of the property, and converted the same to his own use. The defendant below and defendant in error pleaded in justification under three several writs of attachment issued out of the district court of Osborne county, and delivered to him as sheriff of said county, and that he executed the same on said day without notice or knowledge of the chattel mortgage of the plaintiff in error; that afterward a receiver was appointed by said court, and he was ordered to and did turn over to the receiver the stock of merchandise levied upon by said orders of attachment. The plaintiff in error in its reply alleges that the Grimes Dry Goods Company recovered possession of the goods by an action of replevin against the receiver, but alleges that a portion of said goods, amounting to $700 in value, had been wrongfully disposed of under and by virtue of the pretended writs of attachment set up in the defendant’s answer before the action of replevin was commenced by the dry goods company. And it is further alleged in the reply “that this plaintiff has been wholly and wrongfully deprived of said goods and their ownership therein by reason of the wrongful and unlawful seizure and conversion of the said goods by the said defendant, under the pretended attachments as set up in his answer; that the said attachments and the writs were not valid.” In this condition of the pleadings, the issue was narrowed to the trespass, if any, committed by the defendant under the three writs of attachment issued and levied on the 30th day of October, because this is not only the natural construction of the pleadings, but after judgment they must be construed so as to sustain the judgment. Before judgment, if they were attacked, that construction would be adopted that told most strongly against the pleader; so under the operation of any of these rules the result would be the same. The inquiry is then restricted to any conversion by reason of the three orders of attachment issued on October 30th. II. The next contention of the plaintiff in error is that it was in possession of the stock of goods, subject to the rights and possession of the dry goods company. This contention is principally based upon a construction of ¶ 3903 of the act relating to the mortgage of personal property. This section provides "that the mortgage shall be void unless forthwith filed,” etc. The plaintiff in error claims that when its chattel mortgage was executed in Atchison, on Saturday, October 30th, and filed for record on the 1st day of November, at 3:30 o’clock p. M., the intervening day being Sunday, and Atchison being 218 miles away, it was forthwith'filed, and, when filed, all of its provisions took effect when executed, on the 30th day of October, so as to have precedence of the attachment levies made intermediate its execution and filing for record. We do not think this is the proper construction to be given that section. It is not the one generally acted upon by the bar, or contemplated, if not expressly decided by this court. Our view is, that the mortgage only became operative, as notice to other creditors, after it had been filed in the office of the register of deeds. It would involve innocent parties in interminable difficulties to hold that, although a chattel mortgage had been filed in the office of the register of deeds days or weeks after its execution, yet it was notice from the date of its execution. We must hold, therefore, that whatever rights the plaintiff in error derived from its chattel mortgage, other parties who had no knowledge of its execution were only bound by the notice imparted by its filing in the office of the register of deeds. Therefore, at the time of the levy of the three orders of attachment, on the 30th day of October, complained of in the reply of the plaintiff in error to the answer of Ware, the plaintiff in error had no rights in or to these goods by virtue of the chattel mortgage executed by Withers that Ware or the attaching creditors had notice of. The levies were good as against the plaintiff in error, whether good against the dry goods company or not. The plaintiff in error, at the time of these attachment levies, was not in possession of the goods attached, had no legal right to their possession at that time as against the attaching creditors, and consequently this defendant in error, as sheriff, and as the officer who made the seizure and levy by virtue of the orders of attachment, could not and did not commit an act of trespass against the plaintiff in error. The fact that the dry goods company successfully prosecuted an action of replevin for the possession of these goods does not help this plaintiff in error. The dry goods company was entitled to the possession of the goods because it had the first mortgage on them; and because, at the time the three attachments were levied, it was in the actual possession, oi;, the conditions of the mortgage being broken, it was entitled to the possession. It could succeed in such an action for either of these reasons, but the possession of the dry goods company was not the possession of the plaintiff in error, because its succession to the possession of the goods was defeated by its failure to file its mortgage in the office of the register of deeds until after the levy of the attachments. III. The plaintiff in error, in its reply to the answer of the defendant below, alleges that a portion of the said goods embraced in its chattel mortgage, amounting to the sum of $700, had been wrongfully disposed of under and by virtue of the pretended writ of attachment set up in the defendant’s answer, by the defendant herein, before said action of the said Wm. B. Grimes Dry Goods Company was brought to recover said goods, or the value of its special ownership therein. The facts are, as found by the court, that some time after the levy of all of the orders of attachment the creditors under the three first orders of attachment and the ¥m. B. Grimes Dry Goods Company and Withers, the debtor, by agreement placed one Buchanan in possession of the stock of goods as an agreed receiver, with the understanding that he should sell the goods at retail, to the best advantage possible, and pay the proceeds into court; and under the arrangement said Buchanan sold about $700 worth of goods, but never paid anything into court; that said Buchanan was an employé of the Wm. B. Grimes Dry Goods Company. The plaintiff in error claims that this was a conversion by the sheriff. We think the attaching creditors and the first mortgagee had the legal right to stipulate as to the possession of the goods, and that from the moment the defendant in error yielded possession in pursuance of such agreement he was no longer either per sonally or officially liable for the same; certainly not to any of the parties to the agreement; and certainly under these circumstances not to the plaintiff in error, who was not in court, or was making no claim for them or any part of them, or who was not asserting any rights in the controversy; and especially is this true when the owner of the goods in equity, Withers, was a party to this agreement; but even if the sheriff had been disposed to have refused to deliver the goods to the agent of the attaching creditors and the dry goods company, such delivery could have been enforced by an order of the court, because the dry goods company was entitled, by the plain words of the statute, to the possession of the goods; and that right it subsequently enforced against a receiver appointed by the court. So, if the right of recovery by the plaintiff in error is based upon the default of the agent to pay into court the $700 worth of goods sold by him, it is not good against this defendant in error. The plaintiff in error has a plain remedy for the failure of the agent of the contracting parties to account for the proceeds of sale. As we understand the law, attaching creditors, or plaintiffs who resort to attachment proceedings and thereby secure first liens, have the absolute legal right to control such proceedings. They can release their levies entirely, or they can by agreement with each other and with the debtor take the property out of the hands of the sheriff, or the officers who made the levies, and commit it to the care and possession of some one else, and thereby absolve the sheriff from liability for the original levy or continued possession. It is true that by this agreement they may create a liability against themselves on behalf of some other creditor, but any other rule would make a sheriff liable for loss of the property after the possession was taken from him by parties in interest. All this, without reference to the finding of the court that the agent selected by the dry goods company and the attaching creditors was also the agent of the plaintiff in error. It may be well doubted under the facts in this record and the case of Swiggett v. Dodson, 38 Kas. 702, if the Wm. B. Grimes Dry Goods Company ever had the actual possession of the goods of Withers, and if there was that continued change of possession required by the statute, as held in that case; and hence, if the three attachment levies of October 80th had not intervened, the same doubt would exist as to the possession of this plaintiff in error, subject to that of the dry goods company. The finding of the court that Buchanan was the agent of the plaintiff in error is largely a deduction from the terms of the mortgage and the circumstances attending its execution, rather than a conclusion of fact based upon express oral evidence; and yet Blake, a witness for the plaintiff in error, and the attorney of the dry goods company, swears that he was in possession of the stock of goods at the time of the execution of the chattel mortgage by Withers to the plaintiff in error. He fully understood that his possession was as agent for the dry goods company and- the boot and shoe company jointly, and that point was fully agreed upon by both paries. Frazer, the treasurer and credit man of the boot and shoe company, states in his deposition that he agreed to accept the mortgage on the condition that the dry goods company would hold possession for both; so that there is some evidence to support the finding of the court that Buchanan was the agent of the plaintiff in error, as well as of the dry goods company and of the first three attaching creditors; and, upon this theory of the case, it would be gross injustice to say that the plaintiff in error can now hold Ware responsible for any shortage occasioned by the act of Buchanan. IY. The plaintiff in error in this case must recover, if at all, under the allegations of its petition against the defendant in error, for a wrongful taking, or a taking made wrongful by subsequent conduct — a trespass rather than a trover— because it is very clear from the record that, even if the agreed receivership of Buchanan had no validity, the court appointed Marshall receiver without objection by any of the interested parties, and ordered the receiver to take possession of the goods, and hence there has been no conversion by the sheriff. He did not sell or otherwise dispose of them, but delivered the possession of them to the receiver on an order of the court. We have seen that the original seizure of the goods was not wrongful as against this plaintiff in error, because of the priority of lien of the attachment levies. If the plaintiff in error seeks to recover in trover, then it must show either absolute ownership, or a special interest in the property, coupled with actual possession, or the right to the immediate possession at the time of the tortious act. The plaintiff in error had a special interest in the property after its chattel mortgage was filed in the register’s office, but did not have either actual possession, or the right of immediate possession, because both the dry goods company’s mortgage and the three attachment levies of October 30th were prior levies, and there can be no successful contention but that the right, to possession by the boot and shoe company was subordinate to the others. ~V. Our conclusions are, that because the plaintiff in error fails to show a wrongful taking by Ware, as sheriff, in the first instance, and because it is shown that Ware, as sheriff, did not sell or dispose of the property, but that it was taken possession of by a receiver duly appointed by the court, the plaintiff in error has no right to recover in this action. The other assignments of error are not regarded as material, in this view. We recommend an affirmance of the judgment. By the~CÍQurt: It is so ordered. All the’Justices concurring.	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Opinion by Green, C.: This was an action upon a bond executed by the plaintiff in error, in an action commenced by the defendant in error against H. M. Fordham, in which an order of arrest had been procured. The bond sued on .had been given in the ■ district court of Barton county, to obtain the discharge of Fordham from arrest. The original suit of Elizabeth Pawsey against H. M. Fordham was prosecuted to judgment October 15, 1886, and the order of arrest was sustained by the district court. On the 24th day of January, 1887, H. M. Fordham filed in this court a petition in error and case-made, with a bond for costs, wherein he sought to have reviewed certain alleged errors in the case of Elizabeth Pawsey against H. M. Fordham, and filed a supersedeas bond on the 7th of March following, in the office of the clerk of the district court, to stay the issuance of an execution on the judgment rendered until that case could be determined in. this court. This action was commenced after the filing and approval of the supersedeas bond, and was, therefore, pending in the district court of Barton county at the same time-the original case was for hearing in this court. It is contended by the plaintiff in error, that the approval of the undertaking, under §§ 551 and 552 of the code, stayed-all proceedings until the cause should be finally determined in this court. The condition of the bond sued on was, that, “the said H. M. Fordham should in his own proper person appear, if judgment should be rendered against him, and render himself amenable to the process of the court thereon.” It was established that an execution was issued upon the judgment against the body of Fordham, and placed in the- hands of the sheriff, who returned the same on the 5th day. of March, 1887, indorsed: “Not found.” This was done before the approval of the supersedeas bond. This action was commenced on the 7th day of May, 1887, but was not tried in the district court until the judgment in the original case of Pawsey against Fordham had been affirmed by this court. It is insisted by the defendant in error that the pendency of the original suit in this court, without any stay bond having been filed until after the return of the execution, did not preclude the commencement of this action; that the return of the execution, as made by the sheriff, fixed the liability of the plaintiff in error under §§165 and 167 of the code; and that an action might be brought at any time after the liability had been fixed. This court has decided that the institution of a proceeding in error in the supreme court does not, of itself, operate to suspend further proceedings in the case in the court below; nor will the giving of the undertaking provided for in §§ 551 and .552 of the code suspend proceedings in the district court further than to stay execution of the judgment or final order sought to be reviewed. (G. B. U. P. Rld. Co. v. Andrews, 34 Kas. 563.) In the opinion the law is stated: “In none of the provisions of the code, however, is the undertaking made to stay any of the proceedings beyond the issuance of an execution to enforce the judgment or final order of the court below.” That case settles the only.question involved in this case in favor of the defendant in error. Proceedings against the bail could have been stayed under § 172 of the code, or ¶ 1930 of the General Statutes of 1889, upon proper application to this court. It is recommended that the judgment of the district court be affirmed. By the Court: It is so ordered. All the Justices concurring.	[ -80, 124, -71, -1, 74, 96, 51, -104, 71, -109, -25, 119, -23, -57, 5, 97, 117, -23, 85, 121, 97, -77, 119, 1, -14, -13, -59, -41, 49, 77, -10, -33, 12, 48, -54, 93, 70, -62, -27, 84, -114, 13, -52, -20, 81, 75, 48, 121, 17, 13, 33, -82, -21, 43, 22, 106, 109, 40, -53, 45, 89, -15, -101, -115, 79, 18, -79, -57, -104, 3, -40, 126, -112, 21, 0, -24, 114, -106, -58, 118, 104, -87, -84, 102, 34, 49, -59, -19, -80, -88, 46, 44, -123, -90, -111, 8, 105, 12, -106, -99, 119, 82, 7, 124, -26, -52, 24, 76, 13, -49, -10, -75, -35, -14, 26, -125, -29, 3, -80, 69, -52, -86, 84, -25, 56, -101, -114, -41 ]
The opinion of the court was delivered by Valentine, J.: This was an action in the nature of ejectment, brought in the district court of Shawnee county by Lulu M. Howbert and George Howbert against Valentine Heyle, to recover the undivided two-twelfths of a certain quarter-section of land hereafter described. A trial was had before the court without a jury, and the court made certain findings of fact and conclusions of law, and upon such findings and conclusions rendered judgment in favor of the defendant and against the plaintiffs; and the plaintiffs, as plaintiffs in error, bring the case to this court for review. It appears that in 1869 George W. Howbert owned the undivided two-thirds of the aforesaid quarter-section of land, to wit, the southeast quarter of section 32, township 12, range 17, in Shawnee county; and that while owning the same, and in 1869, he died intestate, leaving as his heirs, his wife, Martha, aud four children, Dora, Augusta, Lulu M., and George. After his death, and on November 6, 1869, Joseph A. Deit rich was appointed and he gave bond and duly qualified as the guardian of Dora, Lulu M., and George; they at the time being minors. Afterward, and on June 6, 1870, the guardian sold the interest of the aforesaid minors in the aforesaid quarter-section of land to Valentine Heyle for the sum of $357, which sale was immediately confirmed, and a guardian’s deed executed and recorded, and Heyle took the immediate possession of the land, all on June 6, 1870, and he has been in the actual and continuous possession of the land ever since, claiming exclusive ownership therein adverse to the plaintiffs and to all others, This action was commenced on October 16, 1886. The defendant in his answer denied generally all the allegations of the plaintiffs’ petition except as to his (the defendant’s) possession, and also pleaded the 15-years’ statute of limitations. (Civil Code, §16, subdiv. 4.) The first question arising in the case upon the pleadings and the evidence is, whether or not the plaintiffs’ action is not barred by the aforesaid 15-years’ statute of limitations. One of the plaintiffs, Lulu M. Howbert, was born on June 16, 1866; hence she arrived at 18 years of age and attained her majority on June 16, 1884, (Act relating to Minors, §1,) and the two years given her by §17 of the civil code after her disability of minority was removed within which to commence her action expired on June 16, 1886, just four months prior to the commencement of this action; r * hence her 'present action is barred by the aforesaid 15-years’ statute of limitations. Lulu’s action would also be barred by the five-years’ statute of limitations relating to real property claimed under a guardian’s sale and deed, (Civil Code, §16, subdiv. 2,) if such sale and deed were only voidable and not absolutely void, for she had more than five years after her supposed cause of action accrued, and more than two years in addition thereto after she attained her majority, before she commenced this action. This five-year statute of limitations, however, was not pleaded, but as this is an action in the nature of ejectment, it may be considered in determining the rights of the parties under the general plead ings without any special plea of the statute, if the sale and deed were only voidable and not utterly void. The aforesaid statutes of limitations, however, do not apply to the other plaintiff, George Howbert, for he did not attain his majority until within less than one year before the commencement of this action, and he then attained the same by a proceeding in the district court. Nor can either of the plaintiffs recover in this action if the aforesaid sale and deed were only voidable and not void; for this is purely a collateral attack upon them and not a direct attack. As to Lulu Howbert, the judgment of the court below must of course be affirmed, for the reason that her cause of action was barred under the 15-years’ statute of limitations before this action was commenced. As to George Howbert, however, it will be necessary to consider the case further, in order to ascertain whether the guardian’s sale and deed were and are utterly null and void or not. If they are only voidable, they cannot be attacked in this proceeding, for the reason that such attack is only collateral, and is not direct. Counsel for the plaintiffs claim that such sale and deed are utterly null and void. Indeed, they claim that all the proceedings in the probate court with reference to the guardianship and everything done under the guardianship are utterly null and void. Going into particulars, it is claimed that there is no record in the probate court showing the appointment of the guardian. The court below, however, found as a fact that the guardian was duly appointed on November 6,1869, and that he gave bond and duly qualified. This was the bond required by § 3 of the act relating to guardians and wards. It is also shown by the evidence and found by the trial court, that letters of guardianship were duly issued by the probate judge to the guardian, Joseph A. Deitrich, and that such letters were duly recorded by the probate judge in the records of his office, and Deitrich afterward, with the approval of the probate judge, acted as suc]j guardian. This is certainly sufficient. The case of Higginbotham v. Thomas, 9 Kas. 328, has but little if any application to this case, and is not controlling. It is further claimed by the plaintiff in error, that the petition of the guardian to sell the land of the plaintiffs is insufficient : First, because it does not state facts, but only conclusions and inferences; and, second, because it does not give a sufficient description of the land to be sold, We think the petition is amply sufficient when attacked collaterally, as it is now attacked. It stated that the minors had no money or personal property, and that it was to their interest and necessary for their support and education that the land should be sold; and it described the land as the one-twelfth interest of each of the minors “in the following-described real estate, to wit: The southeast quarter of section 32, range 17, township 12.” The objection to this description is, that it does not state in what county or state the land is situated, nor whether in range’ east or west, or township north or south. The land, however, is situated in Shawnee county, and the aforesaid description of it is perfect except as to the omissions complained of; all the parties interested in the land resided in that county; all the proceedings were had in that county; and in all the other proceedings the description of the land was complete; and no person could have been misled as to where the land is situated. We think the description was and is sufficient when attacked collaterally, as in this case. The case of Cohen v. Trowbridge, 6 Kas. 385, has but little if any application to this case, and is not controlling. It is also claimed that no sufficient service of the petition to sell the land and the notice of the hearing thereof was ever made upon the minors: First, because no notice at all was ever served upon them; second, because the petition accompanying the notice was not sufficient as above stated; third, because the petition and notice were not served upon the minors by a proper person; and, fourth, because the service was not made a sufficient length of time prior to the hearing of the application to sell the land. Section 12 of the act relating to guardians and wards reads as follows: “Sec. 12. The petition for that purpose must state the grounds of the application, must be verified by oath, and a copy thereof, with a notice of the time at which such application will be made to the court, must be served personally upon the minor, if a resident of this state, at least 10 days prior to the time fixed for such application.” It will be noticed that the statute provides for serving a copy of the petition, “ with a notice of the time at which the application will be made,” and does not provide for the service of a summons, or a writ, or an order, or any kind of process issued by a court, or coming within the meaning of §1, chapter 38, of the Laws of 1869. (General Statutes of 1889, ¶2120.) The notice and the petition were each signed by-Joseph A. Leitrich, the guardian, and both were actually served upon the minors by Elias B. Williams, and the notice and petition and the affidavit of service by Elias B. Williams were filed in the probate judge’s office, and are amone; the files of the probate court; and this cj J. ' we think is sufficient. Both the probate court and the district court have expressly found that the service was made, and that it was sufficient; and we think the findings were made upon sufficient evidence. The petition and notice were served on April 18,1870, and the hearing was to be had and was had on April 28, 1870. We think the notice was served “at least 10 days prior to the time fixed for such application,” within the meaning of the statute, and in accordance with all the decisions of this court upon similar questions. (Schultz v. Clock Co., 39 Kas. 334; Northrop v. Cooper, 23 id. 432; The State v. Eggleston, 34 id. 719; Dougherty v. Porter, 18 id. 206; Neitzel v. Hunter, 19 id. 221; Warner v. Bucher, 24 id. 478.) The case of Garvin v. Jennerson, 20 Kas. 371, has no application to this question, for the reason that the statute there commented on required that the act to be done should be done “at least one day before the day of trial,” and not at least one day before the trial. One clear day besides the fractions of the first and the last days was there intended. If the statute in the present case had required the service to be made at least 10 days prior to the day on which the hearing should be had, instead of providing as it does, it would have presented a very different question. The decision which we now make with respect to the petition and notice does not contravene anything decided in the case of Mickel v. Hicks, 19 Kas. 578. It is further claimed by the plaintiffs in error, that it was also found by the trial court that the guardian never gave the bond required by §15 of the act relating to guardians and wards, and it is therefore claimed, for that reason especially, that all of the proceedings with respect to the sale and conveyance of the plaintiffs’ land were and are void. This court, however, in the case of Watts v. Cook, 24 Kas. 278, has decided otherwise. In that case this court decided that “the failure of a guardian to give security, as required by § 15, chapter 46, (Comp. Laws of 1879,) upon obtaining an order for the sale, of real estate, will not render void a sale regularly made and approved.” It is now the opinion of the writer of this opinion that that case was decided wrongly and against the great weight of authority,. but it was decided nearly 11 years ago, and has possibly to some extent become a rule of property, and it is not against all authority nor all reason; but there are cases in Ohio, Pennsylvania and Iowa which seemingly sustain it. (Mauarr v. Parrish, 26 Ohio St. 636; Arrowsmith v. Harmoning, 42 id. 254; Lockhart v. John, 7 Pa. St. 137; Merklein v. Trapnell, 34 id. 42; Thorn’s Appeal, 35 id. 47; Dixcy’s Executors v. Laning, 49 id. 143; Bunce v. Bunce, 59 Iowa, 533.) It is therefore now believed by this court, or at least by a majority of its members, that we should follow our former decision upon this subject, and we shall do so; and therefore the point made by the plaintiffs in error with- reference to this subject will be overruled. Other irregularities are mentioned by the plaintiffs in error, but we hardly think that they require any comment. They claim that the minors did not receive any of the money paid by Heyle for the land. That, however, was not his fault. He paid it to the guardian, and the guardian loaned all but $100 thereof to the minors’ stepfather, with whom they resided, and he has never returned it to the guardian or accounted for it. In all probability, however, their board, clothing and education cost more than all the money of theirs which their stepfather received. But this is immaterial. It is also claimed that the sale of their property was procured through fraud, but there is but little, if anything, to sustain this claim, and the court below must have found against them. Certainly there is nothing that shows that Heyle defrauded the plaintiffs or desired to do so; and the entire proceedings, from the beginning up to the time when the guardian’s deed was executed to Heyle, were approved by the plaintiffs’ mother, their stepfather, their guardian, and the probate judge, and there is nothing really to show that any of these persons during any part of that time intended or desired to defraud the plaintiffs. It is also claimed that there are some discrepancies as to dates. We have examined this, and it is unfortunate that they occur, but there is enough in the record to indicate in every instance what was the true date, and hence they cannot render the proceedings void. It must also be remembered that the probate court in this state is a court of record; (Const., art. 3, § 8; Act relating to Probate Courts, §1;) and while it has jurisdiction only of particular classes of things, such as the care of the estates of deceased persons, minors, and persons of unsound mind,- yet it has general jurisdiction of these things. (See constitution and statute above cited, and also acts relating to executors and administrators, guardians and wards, and lunatics and habitual drunkards.) Hence all presumptions should be in favor of r r the regularity of all the proceedings of probate courts within their jurisdiction of the aforesaid particular classes of things, and such proceedings should seldom be held to be void when attacked collaterally, as in this case; never, indeed, except where it is shown affirmatively that the court had no jurisdiction. The judgment of the court below will be affirmed. All the Justices concurring.	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Opinion by Simpson, C.: Prior to the commencement of this action Tracy had contracted in writing with one Connacher, a builder, to erect a house. Kerr was a dealer in lumber and building materials, from whom materials were purchased that were used in the construction of Tracy’s house. Kerr brought an action against Tracy and wife to recover the value of the materials sold, alleging in his petition that Tracy’s agent, Connacher, had bought the material for Tracy, and that as the material was furnished, it was at that time charged directly to Tracy; that the material furnished was of the value of $222.99. Tracy in his answer alleged, as a first defense, that Kerr had commenced his action within the period of sixty days after the completion of the building; for a second defense, denied every material allegation of the petition except the completion of the building on the 10th day of November, 1887; for a third defense, Tracy and wife specifically denied that Connacher had any authority from them to contract for or purchase any lumber, or that he was the agent of Tracy and wife, or either one of them, for any such purpose. The reply of Kerr was a general denial. The case was tried by a jury, and a verdict in favor of Kerr for $4.70 was returned, and a judgment rendered. After this judgment was rendered, and on the 13th day of December, 1888, Connacher made a written assignment of all the indebtedness of every kind and nature owing to him from Tracy, growing out of the building contract, to Kerr, and on the 14th day of December Kerr brought this suit, alleging in his petition, as a first cause of action, that Connacher had duly performed all of the conditions of the agreement on his part, and that there remained due and unpaid on said building contract the sum of $242, and asking judgment for that amount; as a second cause of action, extra work of the value of $10 done by Connacher, at the request of Tracy, with a demand for judgment for that amount. Tracy answered, first, pleading the former suit and judgment between the same parties, claiming that it was for the same debt — that the same identical lumber and building material was in controversy as in the first action ; second, denied generally; third, that he had paid Connacher, plaintiff’s assignor^ before the assignment, money, property, and on orders drawn by Connacher on this defendant, the sum of $325; fourth, that Connacher did not perform in accordance with the building contract in many particulars; that he (Tracy) was compelled, by reason of the failure of Connacher to perform, to hire men, buy materials, and complete the building himself, at a cost of $200; fifth, that the plaintiff wrongfully commenced a suit against him as a contractor to foreclose a mechanic’s lien, alleging that Tracy had bought lumber and material from the plaintiff with which to construct said building, when in truth and in fhct Connacher had bought it, and the plaintiff ought to have commenced his suit as a subcontractor, and made Connacher a party, so that Connacher would be obliged to bear the expense of said litigation; that prior to said suit this defendant informed plaintiff of all the facts, and requested him to make Connacher a party, but he refused to do so, and prosecuted the suit to final judgment without making Connacher a party, by reason of which this defendant was prevented from having Connacher defend said litigation and bear the costs and expenses of the same, to the damage of this defendant of $50. Attached to the answer is the record of the action of Kerr v. Tracy and wife. The plaintiff below filed a motion requiring the defendant to make his third and fourth defenses more definite and certain. The plaintiff below filed a demurrer to the first, third and fifth defenses, on the ground that they nor either of them did not state facts sufficient to constitute a defense to the facts stated in the petition. The trial court sustained the demurrer to the first, third and fourth defenses set forth in the answer of the defendant. And the defendant not amending them in any way, but excepting to the ruling, the cause was tried by a jury, after the plaintiff had filed a general denial to the remaining defenses pleaded in the answer. The jury returned a general verdict in favor of Kerr for $177.80, and Tracy brings the case here for review. The substantial complaint of the plaintiff in error is, that the court sustained the demurrer to the first and fifth defenses. It is now insisted that by the ruling on the demurrer to the first defense the trial court has permitted Kerr to have a double recovery against Tracy, as both suits between these parties were about the same subject-matter — the lumber and materials that were used in the construction of the house. In the first suit, it is said that the legal effect of the allegations in the petition is that he had furnished the lumber and material under a contract with Tracy, and in the second, that Connacher furnished the lumber and material, and the plaintiff is his assignee. I. Whatever may be the allegations of the first defense set forth in the answer of Tracy, it is apparent, on the state of facts heretofore recited, that the cause of action set forth in the petition of Kerr in this action was not in existence, so far as Kerr is concerned, at the time of the trial and final determination of the first action. The issue made by the pleadings in the first case was, whether Tracy was indebted to Kerr on account for lumber sold by-Kerr to Tracy personally, or to his duly-authorized agent, Connacher. The issue made by the pleadings in this case is the amount due from Tracy to Connacher on the building contract. This issue could not have been tried in the first case, because at the time that suit was instituted and tried' Kerr had no interest in the building contract, and had never been a party thereto, and Connacher was not made a party in that action. The question raised by the plea of res adjudieata is, whether or not the same subject-matter between these parties was drawn in question or included in the issue, so that it could be, or was, as a matter of fact, tried and determined by the judgment in the former action in which the same persons were parties. (Shepard v. Stockham, 45 Kas. 244.) This action is brought by Kerr against Tracy to recover the amount still remaining due and unpaid on the building contract, Kerr having succeeded to the rights of Connacher by an assignment made after the final determination of the first action. It is beyond dispute that the issues in the two cases are entirely separate and distinct, and that the one was not and could not be included in the other. We think the ruling of the trial court in sustaining a demurrer to the first defense in the answer of the plaintiff in error was good, as it failed to state any defense to the action. II. As to the demurrer to the fifth defense, this defense was based upon this state of facts disclosed by the record of the first action: Kerr commenced an action against Tracy to recover a judgment for an amount of material furnished for the construction of the building erected by Connacher, alleging that, under contract with one D. S. Connacher, contractor and builder, and agent of the said Pat. Tracy, Kerr furnished said Tracy lumber and material for the erection of a dwelling-house; that Kerr treated this as a direct sale to Tracy, and as the lumber and material was delivered Kerr charged the same directly to Tracy on his books, and so informed Tracy during the delivery of the materials. He had filed, and in his petition set up and claimed, a mechanic’s lien on the building and the ground upon which it was situate, and sought to foreclose it in the action. It seems from the record that he only recovered a personal judgment for a small amount, the record nowhere showing what disposition was made of the lien. The plaintiff in error, however, claims that Kerr wrongfully commenced the first action as a contractor to foreclose a mechanic’s lien against Tracy, when he ought to have commenced his suit as a subcontractor, and made the contractor, Connacher, a party, so that Connacher would be obliged to bear the expenses of said litigation; that Kerr was informed of all the facts before the commencement of his said first action, and was requested to make Connacher a party to the said suit, but refused and failed to do so, and compelled Tracy to assume the expense and pay the costs of said litigation, and employ and pay an attorney, and that by reason thereof Tracy was damaged in the sum of $75. This contention is based upon ¶4738, General Statutes of 1889, which provides: “ Where such action is brought by a subcontractor, or other person not the original contractor, such original contractor shall be made a party defendant, and shall at his own expense defend against the claim of every subcontractor, or other person claiming a lien under this act; and, if he fails to make such defense, the owner may make the same at the expense of such contractor; and until all such claims, costs and expenses are finally adjudicated and defeated, or satisfied, the owner shall be entitled to retain from the contractor the amount thereof, and such costs and expenses as he may be required to pay.” In view of the provisions of this section, it practically makes no difference whether we consider Kerr technically as a subcontractor, or one of “the other persons claiming a lien under this act,” for the language is so plain, the command that the contractor be made a party so imperative, that requirement is so mandatory, and the result of a failure or refusal to make him a party is so specifically stated, that there seems to be no fair ground, either by construction or otherwise, on which to place approval of the ruling of the trial court. The provision in question is a just and equitable one for the owner of the building. He ought not to be required to litigate at his own expense all the differences that naturally and inevitably arise between the contractor and the men who furnish material to him, and those who are hired by the contractor to perform labor on the building. This provision was designed to relieve him from the trouble and expense of a litigation in which he has practically no interest. This provision, and the one that the owner shall not become liable to any claimant for any greater amount than he agreed to pay the original contractor, are designed for the protection of the owner of the land and building, and are deserving of such liberal interpretation as will best accomplish the intent of the legislature. It may be suggested that if the subcontractor, or other person not the original contractor, neglect or refuse to make the contractor a party, the owner may do so on his own motion, and while it is probably true that the trial court would permit or order this to be done, yet the plain command of the statute is, that the contractor shall be made a party, and we think it is primarily the duty of the party instituting such an action to do so. In this case Kerr was requested so to do and refused, and Tracy was compelled to assume the burden and to pay the expenses of a litigation that the legislature casts upon the contractor. He now seeks to recover the costs and expenses of such litigation from the assignee of the contractor; We think he cannot do this, for the evident reason that there is no showing in the record that Connacher ever had notice or knowledge of the pendency of the original action; but he has a cause of action against Kerr personally for the recovery of the costs and expenses necessarily incurred by him because of Kerr’s wrongful institution of that action. We are aware that this may prove to be a troublesome construction of the statute, as in every instance the subcontractor or “other person” may refuse to make the contractor a party, but for this refusal or neglect several remedies may be suggested. It might be that,.if the subcontractor failed to make the contractor a party, there would be a defect of parties defendant, or the owner might serve a notice on the contractor similar to that served by the grantor on his grantee in.actions for damages occasioned by a breach of the covenants of warranty in a deed to real property. These are suggestions, rather than authoritative declarations, but as this record nowhere shows that Connacher had notice or knowledge of the pendency of the original action, we think the defense was not good in this respect, because no statutory liability was shown. Tracy unquestionably has a cause of action against Kerr personally for the recovery of his costs and expenses necessarily incurred by reason of Kerr’s wrongful institution of that action; but can Tracy plead it and recover in this action? This is a vexed question. If Tracy can recover the costs and expenses of the former litigation in this, action, it must be by waiving the tort and suing on the implied promise. Can it be joined with the other defenses pleaded as a counterclaim? It is a claim existing in favor of Tracy against Kerr, between whom a several judgment might be rendered in an action; that is, Tracy could bring'an independent action against Kerr to recover the costs and expenses of the first suit. It arises out of the contract now sued upon by Kerr, and is connected with the subject of the action. According to the authorities cited in the case of Deford v. Hutchison, 45 Kas. 318, 332, although they were not authoritatively applied in that case, (see opinion on motion for rehearing,) we think that the defense stated facts sufficient to constituted counterclaim, and that the court erred in sustaining a demurrer thereto. We recommend that the judgment be reversed, with instructions to overrule the demurrer to the fifth defense. 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The opinion of the’court was delivered, by Johnston, J.: This was an action brought by the railroad company against the city of Atchison, T. J. Emlen, county treasurer of Atchison county, and T. J. Emlen, to recover certain taxes claimed to be illegally paid, amounting to the sum of $264.55, with interest thereon at 7 per cent, from December 20, 1887. In its petition plaintiff alleged, among other things, that in the year 1887 it was the owner of personal property in the city of Atchison and a tax-payer of Atchison county; that in that year the city of Atchison, by its mayor and council, levied a tax of lOf- mills on the dollar on the personal property of plaintiff assessed in the'city to pay one-half of a subscription made by the city in the sum of $50,000 for the benefit of Midland College, and also to pay one-half of a subscription of $50,000 made by the city for the benefit of St. Louis College, and that both of these colleges were and are private and sectarian institutions, and not public schools and colleges; that the levy and tax therefrom, amounting to $271.33, was charged against , the personal property of the plaintiff on the tax-roll of the county for the year 1887; and that the defendant treasurer proceeded to collect this illegal tax, the same as other taxes. It is further alleged, that between the 16th and the 20th days of December, 1887, the plaintiff was desirous of paying the full amount of all taxes legally due from it, and notified the county treasurer that the tax of $271.33 for the colleges was illegal and unauthorized, and protested against the payment of the same; but the treasurer declined and refused to receipt in full for the taxes on plaintiff’s property unless the plaintiff should pay the illegal tax, less the usual rebate; and the plaintiff thereupon, although protesting, paid to the treasurer the sum of $264.55, in order to avoid the issue of legal process for its collection. And it is further alleged that if it had not so paid the illegal tax, the county treasurer would have issued his warrant to the sheriff of the county for its collection, and the property of the plaintiff would have been levied upon and sold under the forms of law. The protest against paying this tax was in writing, and is as follows: “The Atchison, Topeka & Santa Fé Railroad Company hereby notifies you that the amount legally due by said company as tax on the personal property in your county for the year 1886 does not exceed the sum of $5,799.38, which sum you have refused to receive; and that said company pays the sum of $264.55 demanded by you, protesting against the illegality thereof, and solely to avoid the issue of legal process for its collection. And said company further notifies you, that it will hold you and your county liable for the excess above the amount legally due; that you are not to disburse or part with such excess, and that said company will sue you and said county for its recovery. “Dated this 16th day of December, 1887.” Upon the demurrer of the defendants, the district court held that the petition did not allege a cause of action; and the plaintiff standing upon its petition, judgment was given in favor of the defendants. No argument is required to show the invalidity of the tax. Of course the public is interested in education, and taxes may be authorized and properly levied for the maintenance of public institutions of learning; but in this case the subscription and levy were for private and sectarian institutions. We are concluded by the statements in the petition as to the character of the colleges proposed to be aided by the city. The demurrer admits that they are not public schools or colleges, such as can be maintained by money drawn from the public treasury. While it is argued that the public is benefited by the increase of schools and the spread of learning and knowledge, it is not chntended that the colleges in question are under the supervision and control of the public, or that there is or could be any legislative authority to expend the public revenues for their support. The officers of the city had no power to impose a tax on the property of the citizens of Atchison to aid private, sectarian schools, r 7 7 or to promote private interests and enterprises. (Loan Association v. Topeka, 20 Wall. 655.) The district court appears to have held the tax to be void, but that the payment of the same by the plaintiff was voluntary, and therefore not recoverable. The facts stated in the petition bring the case within the rule announced long ago in K. P. Rly. Co. v. Comm’rs of Wyandotte Co., 16 Nas. 596, and which has been followed in A. T. & S. F. Rld. Co. v. Comm’rs of Atchison Co., infra. Under the Wyandotte case, the argument and reasoning^of which it is unnecessary to repeat, the first half of the illegal tax which was required to be paid may be recovered back; but the second half was an optional payment, made to secute a rebate, and is not recoverable. The demurrer should have been overruled, and for the error in sustaining the same the judgment will be reversed, and the cause remanded for a new trial. Horton, C. J., concurring. Valentine, J.: In my opinion, the decision of the court below was and is entirely correct. While I concur with the majority of the members of this court in holding that the tax in dispute is illegal and void, yet I dissent from their opinion holding that such tax was paid by the plaintiff under compulsion and involuntarily. The tax was paid on December 17, 1887; therefore, presumably, it was levied in August, 1887, and was placed on the tax-roll some time between that time and November 1, 1887; and on November 1, 1887, the tax-roll was placed in the hands of the county treasurer for collection; and on December 17,1887, the plaintiff paid the tax; and during all that time, from August up to December 17, 1887, the plaintiff had ample opportunity to commence an action to test the validity of the tax; but it did not do so. And why did it pay the same at that particular time and without any contest? It is suggested that a penalty might have been added after December 20, if the tax had not been paid prior thereto; but this could not affect the plaintiff's rights. A valid penalty could never be added to a void tax. The penalty would be as void as the tax itself, and no lapse of time nor anything else could ever make either the void tax or the void penalty valid. The plaintiff could at any time have avoided both. It is also suggested that a warrant for the collection of the tax might have been issued by the treasurer. Now it would be illegal and wrongful for the treasurer at any time to do so; and why must it be supposed that he might have committed such wrongful and illegal act? But suppose he might have done so: still, it must not be supposed that he would have done so until after January 10,1888; for a county treasurer cannot, under any circumstances nor in any case, issue a legal tax warrant for delinquent taxes until after January 10. (Tax Law, §92; Gen. Stat. of 1889, ¶6911.) Hence the plaintiff was under no possible compulsion to pay the tax when it paid the same, nor could it have been until after January 10,1888 — more than 24 days thereafter. The rule governing in such cases is stated in the case of Wabaunsee Co. v. Walker, 8 Kas. 431, 436, as follows: “Where a party pays an illegal demand with a full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, or unless-to release his person or property from detention, or to prevent an immediate seizure of his person or property, such payment must be deemed to be voluntary, and cannot be recovered back. And the fact that the party at the time of making the payment files a written protest does not make the payment involuntary.” This rule has been quoted approvingly and followed twice by the supreme court of the United States. (Lamborn v. Co. Commissioners, 97 U. S. 181, 186, 187; Railroad Co. v. Commissioners, 98 id. 541, 543, 544.) In the first case Mr. Justice Bradley delivered the opinion of the court. The case was thoroughly considered and many cases cited, among them the case of K. P. Rly. Co. v. Comm’rs of Wyandotte Co., 16 Kas. 587, which was cited and considered, but not followed, except so far as it supported the decision reported in 8 Kas. 431. The case reported in 98 U. S. was on error from the United States circuit court for the district of Nebraska. That case was also thoroughly considered. The opinion therein was de livered by Chief Justice Waite, who, in delivering the opinion of the court, after quoting the rule enunciated in the 8th Kansas Report, then used the following language: “This, as we understand it, is a correct statement of the rule of the common law.” ( 98 U. S. 543, 544.) See also Phillips v. Jefferson Co., 5 Kas. 412, 416, et seq.; Sapp v. Comm’rs of Brown Co., 20 id. 243, 245. Possibly the rule as enunciated in the 8th Kansas Report and also in the 97th and 98th United States Reports is wrong, but I do not think so. The case reported in the 8th Kansas (Wabaunsee Co. v. Walker) was decided more than 20 years ago, and the rule there enunciated has never since been overruled or questioned or doubted by this court, unless by the merest of implications; but, on the contrary, it has been reiterated and confirmed in other decisions, and especially in the case of K. P. Rly. Co. v. Comm’rs of Wyandotte Co., 16 Kas. 587, 597, where the rule enunciated in the 8th Kansas Report is quoted; and a statement is then made in the opinion of the court as follows: “We see no reason to doubt the correctness of the rule as thus stated.” (16 Kas. 597.) The rule is also quoted as law in the syllabus of that case. (16 Kas. 587.) Now, after the rule has existed in Kansas for more than 20 years, being announced by the supreme court of Kansas in 1871, (8 Kas. 431,) reiterated by the same court in another case in 1876, (16 Kas. 587,) and subsequently followed by the court in still other eases, (20 Kas. 245; 22 id. 389, 398, 399,) has it not had an existence long enough in Kansas to be considered as settled and established, or must it now be overturned and destroyed ? The rule, however, was really announced in Kansas in 1870. (Phillips v. Jefferson Co., 5 Kas. 412.) But suppose that when the plaintiff paid this illegal and void tax, which it was not bound at all to pay, a cause of action accrued in favor of the plaintiff: then against whom did the cause of action accrue? Was it the county treasurer who received the money, or the county clerk who placed the tax on the tax-roll, or the county of Atchison, or the city of Atchison, or the Midland College, for whose benefit the tax was levied and col lected ? Or was it some other person or corporation or body, public or private, or all severally and collectively ? And if a cause of action accrued in favor of the plaintiff and against somebody, did any statute of limitations commence to run against such cause of action ? And if so, then what statute of limitations — a statute giving two years or three years, or some greater period of time within which to commence the action ? How long would this cause of action stand as a valid and existing liability impending over one or more or all of the foregoing parties? In closing, I might say that if the plaintiff had tendered to the county treasurer all the valid taxes standing against it, and had kept the tender good, no valid penalty could ever afterward have been added to any one of such taxes, nor could any valid warrant have ever afterward been issued for their collection; and void penalties and void warrants could in any case easily be defeated. Horton, C. J.: I concur in the reversal of the judgment of the district court, but on account of the dissent filed I add a few words. It was decided by this court in 1876, about 16 years ago, in the case of K. P. Rly. Co. v. Comm’rs of Wyandotte Co., 16 Kas. 587, as stated in the syllabus, that— “ Where all steps for determining the amount of a tax upon personal property have been taken, the tax-roll is complete and in the treasurer’s hands, the taxes due, and it is made the duty of the treasurer at a specified date to issue a warrant to the sheriff to collect all unpaid taxes on personal property, and the duty of the sheriff within 60 days thereafter to levy upon and sell sufficient personal property to pay such taxes, penalty, and costs, and no discretion is given to anyone to change the amount of the tax or the time or manner of its collection, a payment to the treasurer of the tax, protesting its illegality, declaring that payment is made solely to avoid the issue of process, and asserting an intention to sue for the sum illegally paid, should be considered an involuntary payment— one made to prevent an immediate seizure of the taxpayer’s property, although such payment was made 17 days before the time fixed for the treasurer to issue his warrant.” In support of this part of the syllabus of the case, Mr. Justice Brewer, in the opinion, said: “But here no warrant has issued. None could legally issue for 17 days, nor could the company’s property be in any manner disturbed before that time — so that there was no danger of instantaneous seizure. On the other hand, there was no further inquiry to be made by the officer or tribunal. The amount of the tax was fixed beyond any opportunity for review. There was no discretion with anyone as to whether a warrant should or should not issue, a levy should or should not be made. The machinery for adjusting the amount of the tax had completed its work, and was at rest; only the machinery for collecting was in motion, and it moved with the certainty of fate and the rapidity of time to the finality of seizure and sale. Where the law is imperative, and, giving no discretion, commands the issue of the warrant at a definite time, and the levy under that warrant within a fixed time thereafter, must an individual wait until the last moment, and pay only just as the officer is seizing his property, or may he assume that the officers of the law will obey its precepts, and, when all opportunity for consideration, correction and change has passed, all discretion ended, and the tax-roll is in the treasurer’s hands, waiting only the lapse of a few days to ripen into a warrant and seizure, may he not then pay to the treasurer, protesting against the legality, and asserting his intention to contest? Does he not then pay to prevent an immediate seizure, one that is certainly and presently impending? Wherein does the state suffer wrong, or what advantage does it lose by holding that to be an involuntary payment? . . . It seems to us, then, that according to a fair and reasonable interpretation of the rule, the railway company paid this first half of the tax under such circumstances that it should be considered an involuntary payment. It was to prevent a seizure as certainly impending as the law could make it, and one also presently impending. It may be remarked that the entire personal tax was levied and assessed as one tax. The law simply divided the time of payment, requiring one-half to be paid in December, and permitting the other to remain until the June following, so that if more than the one-half was paid in December, there would be some show of reason in holding that it might be corrected when the last half of the same tax was to be paid.” This decision was subsequent to the decision of Wabaunsee Co. v. Walker, 8 Kas. 431, rendered by this court in 1871, and if it differs or modifies that decision in any way, the decision in the Wyandotte county case must be considered as the law of this state, as interpreted by its highest legal tribunal, rather than the earlier decision. The decision in the Wyandotte county case very clearly and properly construes the old case of Wabaunsee Co. v. Walker, 8 Kas. 436, and ever since that decision the construction so given it by the court in the declaration of the law as announced in the fifth proposition of the syllabus thereof, has been the rule in this state in such cases, and is very justly the rule now. Further, this decision has remained unchallenged and unchanged ever since 1876. In this particular case, it appears that the plaintiff “ used the Wyandotte case as a guide for its action” and paid its money upon the rule therein stated. It would be grossly unjust if a party, acting upon the law as interpreted by the supreme court of this state, should pay his money according to the express provisions of a decision, and then be gravely informed by a subsequent decision, after he had so acted, and parted with his money, that the law was exactly contrary to that previously declared by this court. “ I suppose it might be considered as a kind of legal axiom, that courts should not exercise their jurisdiction in any random manner, for this would speedily land everything in ‘confusion worse confounded.’” (Wells, Res. Adj. 541.) The New York court, speaking of the maxim stare decisis et non quieta movere, says: “ The decisions of this court, while unreversed, always form the absolute law of the cases, and enter, with very decisive effect, into the body of precedents.” (Bates v. Relyea, 23 Wend. 340.) “ When once a principle has been fully recognized, it should not be changed, except it is found to be unbearably wrong, or else it is changed or abrogated by the legislature, (Lemp v. Hastings, 4 G. Greene, 449,) to whom the correction of errors ought usually to be left as to long-established principles acted upon as a rule of property.” (Emerson v. Atwater, 7 Mich. 23.) “The rule of stare decisis, so far as it applies to decisions of our own court, should not be disregarded, but on the fullest conviction that the law bad been settled wrong, and, even then, we should pause and consider how far the reversal would affect transactions entered into and acted upon under the law of the court.” (Sydner v. Gascoigne, 11 Tex. 455; see, also, Ewing v. Ewing, 24 Ind. 470.) In Giblin v. Jordan, 6 Cal. 418, it is said that “A rule once established and firmly adhered to may work apparent-hardship in a few cases, but in the end will have more beneficial effect than if constantly deviated from.” And again: “Courts are permitted to exercise a wide discretion, and judges are not expected, or required, to overturn principles which have been considered and acted upon as correct, thereby disturbing contracts and property, and involving everything in inextricable confusion, simply because some abstract principle of law has been incorrectly established in the outset. The books are full of cases in which learned judges have acknowledged the errors committed by themselves, or their predecessors, and at the same time refused to overthrow the rule established.” Even, however, if this court were not bound by the decision in the Wyandotte county case, in 16 Kas. 587, upon the maxim of stare deoisis, (which I think it is,) yet the rule adopted in the fourth proposition of the syllabus of that case is so reasonable, fair and just that it ought to be the law, not only in this state, but in every other state. A tax-payer in Kansas ordinarily has sufficiently heavy burdens to bear when he promptly pays or tenders all taxes lawfully levied against him or upon his property, without being compelled to go into a court of equity in the first instance to prevent the collection of unjust and illegal exactions, made without any authority of law, and in violation of the constitution of the state. The law declared by the court below and favored in the dissenting opinion, although sustained by very many able and respectable courts, is unjust, harsh, and, in my opinion, without any good reason for its support. Of all the powers conferred by the state upon cities, that of taxation is most often abused, and courts ought not to favor such abuse by throwing around the attempted collection of unjust, illegal and unconstitutional taxes such protec tion as will doubly burden the tax-payer, by requiring of him the expenditure of large sums of money as attorney fees in a court of equity to protect his rights from such illegal and unconstitutional exactions, when he tenders all legal taxes in due time, and, after pointing out the special taxes or exactions which are unjust, illegal, and unconstitutional, objects and protests against their collection. 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The opinion of the court was delivered by Johnston, J.: This action was brought under §§ 568 and 570 of the civil code, to vacate a judgment alleged to have been obtained through the fraud of the plaintiffs in error* The questions in the case arise upon the ruling of the court upon the demurrer filed against the petition of the plaintiffs below. It was first contended that there was no joint cause of action in favor of the defendants below, and this is based on the statement in their petition that some of the defendants in the original action were never served with summons and made no appearance in that action, while others of the defendants were served and properly brought into court. It is said as to those who were never served, and who never entered their appearance in the case or authorized anyone to enter an appearance for them, that the judgment was absolutely void; while as to the other class, who were served, the judgment was only voidable; and so it is urged that the judgment rendered affected a part of the defendants in an entirely different manner from that in which it affected the others. It is contended that because the judgment was absolutely void as to some of them, the proper proceeding to set it aside was by a motion, under the last clause of § 575 of the civil code. It appears, however, that this proceeding was not brought under the last clause of § 575, nor were the defendants in error confined to that remedy. (List v. Jockheck, 45 Kas. 349, 748; same case, 27 Pac. Rep. 185; Hanson v. Wolcott, 19 Kas. 207.) The action is manifestly brought to set aside the judgment for “fraud practiced by the successful party in obtaining the judgment.” The allegations of fraud apply to those not served as well as to those who were served; and all of the defendants in error were affected by the fraud as alleged to have been practiced, and all are entitled to relief against the judgment so obtained. The objection of misjoinder cannot therefore be sustained. The next objection is, that the allegations respecting the fraud practiced are not sufficiently full and specific to constitute a good petition or require an answer. It is true that a statement of the facts showing the fraud should be pleaded, and that mere conclusions are insufficient. It cannot be said, however, that only conclusions with reference to the fraud practiced have been set forth in the petition. It is charged that the judgment which purported to have been entered by agreement of the defendants in error was entered without their knowledge and consent, and that Steele and M. K. Sample paid $1,911 to Elizabeth Sample in order to obtain the judgment, and thus defraud the defendants in error. They denied that the papers which were filed in the case in their behalf were ever filed by them or by any person authorized to file the same, and that they never entered into the agreement recited in the journal entry to have been made between them and the plaintiffs in error. Although the allegations with reference to the fraud are not as full and specific as they might have been, they are sufficient in our opinion to overcome the demurrer. It is substantially alleged that J. M. Steele and M. K. Sample paid $1,900 to Elizabeth Sample to induce her to withdraw her claim upon the land and permit a judgment to be entered in their favor; and that they conspired together to have it appear that the defendants in error were present and agreeing to the judgment that was entered, when in fact they had no knowledge of the agreement or of the rendition of the judgment, and authorized no one to make the agreement or to consent to the judgment that was given. If the allegations made are established, it will show that a fraud was not only practiced upon the defendants in error, but also upon the court, as the judgment rendered would probably not have been given if the court had understood that all the parties were not represented and consenting. There is considerable complaint that the petition is not sufficiently. definite and certain in its allegations; but these objections cannot be cured in a review of a ruling upon the demurrer. We think the court might properly have required the defendants in error to have set o.ut copies of the pleadings upon which the judgment sought to be vacated was founded, as the pleadings may throw some light on the character and effect of the judgment. The court might properly, too, have required a fuller and more detailed statement of the times and manner in which the fraud was practiced; but, as has been stated, these objections are not now available. When the case is remanded for trial, the court will have an opportunity to require the defendants in error to make their petition more definite and certain in both particulars, and in that way overcome these objections. We conclude that the demurrer to the petition was properly overruled, and therefore the ruling of the district court will be affirmed. All the Justices concurring.	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Opinion by Simpson, C.: This is an application in habeas corpus, brought in this court by A. A. Hyde, who claims to be illegally restrained of his liberty by an order of commitment made by the court of common pleas of the county of Sedgwick as for contempt, to enforce an order of that court. Hyde is one of the administrators with the will annexed of the estate of one W. C. Woodman, deceased. The order of the court of common pleas that he refused to obey, on which refusal the order of commitment was issued, was one made in an action against the executors of the estate of Woodman, commanding him to deliver to a receiver appointed in that action the property described in the order belonging to said estate. The material facts are, that in his life-time W. C. Woodman was engaged in the banking, loan and investment business in the city of Wichita, under the name of W. C. Woodman & Son, otherwise the First Arkansas Valley Bank. W. C. Woodman was, the sole owner of the business. Woodman died on the 27th day of December, 1887, having disposed of all his property by a will that was probated on the 14th day of January, 1888; and on that day Elizabeth Woodman, his widow, and W. S. Woodman and U. S. Grant Woodman, his sons, were qualified as executors, having been named as such in the will. By the express provisions of the will, all the property, real, personal, and mixed, of the deceased, except the homestead occupied by the family, was devised to the executors in trust as the capital of the First Arkansas Valley Bank of W. C. Woodman & Son, and the executors were directed to continue said banking business for the term of 20 years after the death of the said W. C. Woodman. It seems, from a cursory examination of the terms of the will, that the conduct and management of the banking business to be conducted by the executors was one of almost unlimited discretion on their part. There seem to be no limitations or conditions attached to the control of the executors in the transaction of the business. Nor does it appear but that the whole estate, of every kind and description, except some specific legacies, was to be used as the capital and resources of the banking business. From the date of their qualification until the 4th day of February, 1891, these executors continued the business, receiving deposits, making loans and investments, buying and selling exchanges, and in detail transacting a general banking, loan and investment business. On the 4th day of February, 1891, the bank, being unable to pay its current obligations, closed its doors and suspended payment, owing debts exceeding the sum of $100,000, all of said debts having been contracted since the death of W. C. Woodman. All indebtedness of Woodman contracted prior to his death had been paid, and the statutory period within which such claims could have been presented and allowed in the probate court had expired before the 4th day of February, 1891. After the failure of said bank, on the 4th day of February, 1891, and prior to the commencement of the action in which the order of commitment was issued, the said Elizabeth Woodman and the other executors named in the will were removed by the probate court of Sedgwick county, and the petitioner, A. A. Hyde, and U. S. Grant Woodman were appointed administrators with the will annexed of sstid estate, and took possession of the assets thereof, and proceeded to the administration of said estate. After the appointment of said administrators, a large number of the creditors of said estate, whose claims grew out of the banking business as conducted by the executors, presented their claims for allowance in the probate court. On the 23d day of April, 1891, the National Bank of Kansas City, Mo., filed its petition in the court of common pleas of Sedgwick county, on its own behalf and on behalf of all other creditors of said bank similarly situated, against the executors, admistrators with the will annexed, legatees, and other beneficiaries under the will, praying the appointment of a receiver to take charge of the assets of said bank. On the 13th day of June, 1891, one W. D. Keyes, who claims to be the owner ,of a judgment recovered by T. B. Wall, one of the depositors of said bank, against Elizabeth Woodman, W. S. Woodman, and U. S. Grant Woodman, individually and as executors and trustees, by leave of the court filed his cross-petition in said action, and joined with the plaintiff therein in the application for the appointment of a receiver in that cause. On the 24th day of June, 1891, the district court appointed one Prank W. Oliver receiver in the action of the Bank v. Elizabeth Woodman et al. of all the assets, real estate, property, equitable interests, things in action, chattels and effects of every kind and nature belonging or in any way appertaining to the estate of W. C. Woodman & Son, otherwise the First Arkansas Valley Bank, of Wichita, Kas., vesting the said Oliver with all the rights and powers of a receiver in equity, and ordering the defendants to turn over all the property in their possession or under their control to him. Oliver filed his oath on the 27th day of June, and filed a bond approved by the court on the same day. Hyde, as one of the administrators with the will annexed, refused to turn over property of the estate in his possession to the receiver. He was attached for contempt, and filed his reasons in writing for his failure to comply with the order of the court, and was adjudged guilty of contempt, was fined $100, taxed with the costs of the attachment proceedings, and committed to the jail of Sedgwick county until he obeys the order of the court and surrenders to the receiver the property of the estate in his custody. The commitment was dated on the 25th day of July, 1891. The principal contention of the attorneys for the petitioner is based upon the assertion that the court of common pleas of Sedgwick county had no jurisdiction to entertain the action of the Kansas City bank, and to appoint the receiver; that the claim of the bank was one against the estate of Woodman, of which the probate court of Sedgwick county had primary and exclusive original jurisdiction. On the other side, it is said that the claim of the Kansas City bank is one against the Woodman bank, and not against the Woodman estate; that it originated long after the death of Woodman, and is not a claim properly against the estate, and is of that nature that the machinery, practices and usages of the probate court are not sufficient to properly enforce. This preliminary statement appears to be sufficient to develop the consideration that must control us, which is, that if the court of common pleas of Sedgwick county had, upon the facts presented, jurisdiction of the subject-matter of the action, its order appointing a receiver, however erroneous, will not be reviewed by this court on a habeas corpus proceeding. (In re Morris, 39 Kas. 28; In re Petty, 22 id. 477; In re Dill, 32 id. 668.) This court has said, in the case of Shoemaker v. Brown, 10 Kas. 383, that — “The district courts of the state have jurisdiction concurrent with the probate courts over certain matters relating to the estates of deceased persons; and, in the exercise of their equity or chancery jurisdiction, the district courts may entertain and determine actions to foreclose mortgages where the defendant is a legal representative of a deceased person, or any other proper proceeding over the estates of deceased persons, and over the legal representatives and heirs of decedents.” It is further said in that case, that the district courts of this state have full chancery powers, and that courts of equity have always had a paramount jurisdiction over the estates of deceased persons; that these powers are not taken away by the statutes regulating the duties and defining the powers and jurisdiction of the probate court. This has been maintained in many other cases, and it must be held to be settled law in this state that, when certain facts exist, growing out of the liabilities of a deceased person, or it may be arising out of the settlement of the estate of a deceased person, wherein the probate court, by reason of its limited jurisdiction and restricted authority, cannot protect and enforce the rights of all persons involved in the controversy, the equitable power of the district court may be invoked in their behalf. In the case of the Kansas City Bank v. Elizabeth Woodman et al., out of which this controversy grows, there are two questions that sufficiently support the jurisdiction of the district court to entertain the action. One of these is, that the claim sued upon is not one against the estate of W. C. Woodman, deceased, because it originated long after his death, in the course of that banking business which he sought to perpetuate by the terms of his will, and strictly speaking is a claim against the assets of the bank, these assets being held in trust for banking purposes; and the other is, that it is an admitted fact on the hearing that all claims against the estate of Woodman that existed at the time of his death have been paid. It seems apparent that by the terms of the will the property enumerated in that instrument was a fund set aside and solely appropriated to the banking business to be conducted after his death by his executors; that it was a trust fund for the purpose of carrying on such banking business, and by the clearest principles of equity the debts contracted in the operation of such business must be paid out of such funds to the exclusion of other debts or to the claims of the heirs. The ordinary proceedings of the probate court are inadequate to the task of determining the many questions that may arise, and its restricted process and limited powers not sufficient for all the purposes of such a litigation. The primary jurisdiction in such cases rests with the district court. The court of common pleas of Sedgwick county having jurisdiction of the persons and the subject-matter of the action, we cannot say that the order appointing a receiver was absolutely void, and it follows that the petitioner must be remanded to the custody of the sheriff. By the Court: It is so ordered. Ail the Justices concurring.	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The opinion of the court was delivered by Horton, C. J.: Several preliminary questions are presented in this case, but we need to refer to one only. It is urged that the case-made does not, in terms, purport to contain all of the evidence. We have carefully examined the alleged omissions from the record, and are of the opinion that it does not properly show that all the evidence is preserved. (Ryan v. Madden, 46 Kas. 245; same case, 26 Pac. Rep. 679.) There is no statement at the end of the testimony showing the case contains all that was offered. The stenographer certifies that the record contains a true and correct copy of her short-hand notes of the evidence, excepting the matter set forth on page 21J of the record. A statement is also included in the certificate of the judge who settled the ease, to the effect that it embraces the evidence introduced on the trial, but the certificate and the statement of the district judge are ineffectual to accomplish the purpose intended. (Railroad Co. v. Grimes, 38 Kas. 241; Eddy v. Weaver, 37 id. 540.) We have decided, time and again, that— ' “In order to have the question whether the evidence supports the findings and judgment examined, the case-made should show that it contains all the evidence. A statement to that effect in the certificate of the district judge settling the case, or in the notice served with the case upon the opposing party, when such notice is not a part of the case-made, is insufficient.” (Newby v. Myers, 44 Kas. 477.) It is urged that the case contains the evidence, within the rule laid down in Dewey v. Linscott, 20 Kas. 686, and Lewis v. Linscott, 37 id. 386. We find, however, that this is not true. There are palpable omissions from the record, notably exhibit “A” referred to in the testimony of plaintiff. There are also other exhibits marked “A” “A” and “B” which ought to have been attached to the depositions read upon the trial, but these are not included with the depositions, and are placed after the judgment. It is difficult, without having been present at the trial, to ascertain to which depositions the several exhibits at the end of the case belong. As far as we can understand the case, from the partial record presented, the material facts are as follows: In 1886, Geo. C. Glover was a painter residing and carrying on his business in Emporia, in this state. In January, 1886, he purchased of the F. Hammar Paint Company 51 gallons of paint; on the 6th of September, 1886, he purchased 30 gallons; on the 7th of March, 1887, he purchased 51 gallons, and on the 18th of May, 1887, he also purchased 51 gallons. The paint cost him $1 a gallon. He paid for the paint purchased in January and September, 1886, but refused to pay for the paint purchased in March and May, 1887, amounting to $102, be cause he alleged that it was worthless. This case was tried before the court with a jury. The jury returned a verdict in- favor of the defendant for $300 as his damages, and the trial court compelled the defendant to remit $52 of the verdict, and judgment was rendered for $248 in favor of the defendant and against the plaintiff. The defendant testified upon the trial, among other things, that he purchased the paint upon the following warranty : “Any buildings, when painted with prepared paints, according to directions, and applied properly, we will guarantee to give satisfaction or repaint free of charge to the owner.” “That he used the paint upon two houses belonging to Mr. Hughes, upon Mr. Bundrem’s house, Mr. Balweg’s house, Mr. Ford’s house, Mr. McCoy’s fence, and his own house; that this work was worth $300; that-it would cost $140 to put the work in proper condition to be repainted; that the paint purchased, with the exception of the first lot, was unsatisfactory; that the paint commenced to crack and peel off in three to six months; that he told the plaintiff the work done with its paint was peeling off, and requested the company to repaint the same; and that this has not been done.” There were no exceptions taken to the instructions given, and the only instruction prayed for, which was refused, is as follows: “If the jury believe from the evidence that the defendant, Glover, has been paid in full for all the painting he has done with the paint bought of these plaintiffs, and that he has not had to refund any of the money or repaint any of the houses, then defendant has not sustained any damage, and the jury must find for the plaintiffs in the full amount of their claim, as stated in their bill of particulars, and interest thereon.” This instruction does not correctly declare the law, and was therefore properly refused. If there was a breach of the warranty on the part of the plaintiff, the right to nominal damages existed at once in favor of the defendant to vindicate the right. If the consequences of the act for which the law renders the party in default responsible have developed themselves so as to create absolute injury before the verdict, the jury are bound to give compensation for such injury; but if at the time of trial the loss is still only probable, the verdict should be but nominal damages. (1 Sedg. Dam., 7th ed., p. 200.) In all cases where the defendant personally agreed to repaint, upon request so to do, an actual liability against him exists, which can be enforced in the way of damages, if he refuses to perform. If the plaintiff’s breach of the warranty has involved the defendant in a legal liability to pay money or to incur expense to the parties for whom he did work, to relieve himself against the effects of the bad paint, such liability or expense, whether paid or not, constitutes an element of damages which the defendant was entitled to recover. It is probable that, if all the evidence introduced upon the trial had been properly preserved in the record, and sufficient exceptions had been taken to the instructions of the trial court, the large judgment rendered for damages against the plaintiff would not be allowed to stand; but upon the record as presented, and the exceptions therein appearing, we cannot interfere. The judgment of the district court must be affirmed. All the Justices concurring.	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Opinion by Green; C.: At the election held on the 4th day of November, 1889, in the third commissioner district of Stevens county, W. H. Swartz and J. W. Spoon were the only candidates for county commissioner; and each received 72 votes. The board of county commissioners, sitting as a board of canvassers, decided the tie by lot, and W. H. Swartz received the certificate of election, gave bond, took the oath of office, and entered upon the discharge oí his official duties. On the 25th day of February, 1890, Spoon commenced contest proceedings against Swartz, under the provisions of chapter 36 of the General Statutes of 1889. On the 3d day of March, 1890, the contest court decided in favor of Spoon, and ordered a certificate of election to be issued to him, which was accordingly done, and he qualified as commissioner, and entered upon the discharge of his duties at the following April meeting of the board. Swartz had a bill of exceptions allowed and took this contest case to the district court, where it is still pending and undetermined. On the 7th day of August, 1890, Spoon commenced an action in quo warranto in the district court of Stevens county against Swartz, for the purpose of settling the question as to who was entitled to the office in dispute; this case was decided in favor of Spoon, on the 22d day of January, 1891, and a final judgment was rendered against Swartz, forever enjoining him from setting up any claim or title to the office in question. This case was not appealed from. On the 20th day of November, 1890, the plaintiff applied for a writ of mandamus in this court to require the defendants, one of whom is commissioner and the other county clerk, to recognize him as county commissioner at all the meetings of the board, and at all other times until such office shall become vacant, or until the plaintiff shall be ousted from such office by due process of law. The alternative writ was allowed. The question for our determination is, whether or not the peremptory writ of mandamus shall issue. Courts and text-writers have justly considered the remedy by mandamus as one of the highest known to our system of jurisprudence, and the peremptory writ issues only when the legal right to be enforced is clear and specific, and no other adequate remedy exists. The writ should never be granted in doubtful cases. If another action is pending in which the same questions may be determined, the court may, in its discretion, refuse mandamus. (High, Extr. Rem., § 9, and cases there cited; Wood, Mand. 17; Smalley v. Yates, 36 Kas. 519; The State v. Mo. Pac. Rly. Co., 33 id. 176.) When an. office is already filled by a person who has been admitted and sworn, and is in by color of right, a mandamus is never issued to admit another person. The proper remedy for the applicant is by proceedings in quo warranto. (Moses, Mand. 150; Bonner v. The State, 7 Ga.473; The People v. Scrugham, 20 Barb. 302; The King v. Mayor of Colchester, 2 Durnford & East’s Reports, 259.) In this case both parties claim the office. The defendant instituted contest proceedings and obtained a decision in his favor. The plaintiff obtained a bill of exceptions, and the case is now pending in the district court of Stevens county. After obtaining a favorable decision in the contest court, the defendant instituted proceedings in quo warranto and obtained a judgment in the district court of Stevens county ousting the plaintiff from office. That judgment is a finality, unless reversed, and forever settles the question between the plaintiff and defendant as to who is entitled to the office. The plaintiff says that this suit is brought to compel Large, as commissioner, and Davis, as county clerk, to recognize Swartz as commissioner until the contest case and the action in quo warranto can be determined in this court. The extraordinary remedy of mandamus, as we have seen, will not lie for any such a purpose. It is recommended that the peremptory writ be denied, and that this action be dismissed at the costs of the plaintiff. By the Court: It is so ordered. All the Justices concurring.	[ -16, -22, -36, 72, 42, -32, 34, -8, 75, -127, -25, 119, -19, -14, 21, 49, -69, -67, -43, 107, -58, -94, 23, -62, -78, -77, -61, -33, -77, 109, 124, -20, 72, 48, 82, 21, -58, -96, -117, -36, -122, -125, 41, -22, 112, -64, 60, 127, 114, -53, 49, 46, -13, 46, 84, 99, -55, 52, 91, -65, -55, -79, -98, -115, 93, 6, -111, 6, 28, -121, 64, 46, -112, 49, -100, -24, 123, -90, -126, -12, 11, -71, 40, -26, 38, 34, -115, -17, -88, -119, 44, -2, 29, -90, -105, 80, 106, 9, -74, -99, 113, -48, 2, 116, -19, 69, 30, 108, 3, -118, -44, -125, -97, -66, -116, 67, -49, -125, 52, 113, -51, -12, 95, 99, 48, 27, -49, -78 ]
The opinion of the court was delivered by Valentine, J.: This controversy grows out of a proceeding originally instituted by the defendant in error, L. J. Webb, before the board of county commissioners of Hamilton county. On December 12, 1887, Webb filed with the county clerk and the board of county commissioners of Hamilton county his claim against the county for $1,000, based upon an alleged contract attached thereto, dated November 6, 1887. This claim was finally rejected by the board, and Webb appealed to the district court, where, on February 1, 1889, the case was tried before the court without a jury, and judgment was rendered in favor of the plaintiff, Webb, and against the defendant, the board of county commissioners, for the sum of $1,070, and costs of suit; and the defendant, as plaintiff in error, brings the case to this court for review. Many questions are presented to this court, among which is the question of the validity of the contract upon which the plaintiff below, Webb, bases his claim. It purports to be a contract between the board of county commissioners of Hamilton county and Webb, employing him as an attorney and counselor at law to perform legal services in certain cases pending in the supreme court, and agreeing to pay him therefor the sum of $1,000. It appears, however, conclusively from the evidence in the case that the contract was not made by the board of county commissioners, nor in legal session, nor at the county seat, nor in Hamilton county, nor by all the members of the board, nor in the presence of the county clerk or county attorney; but it was made by only two members of the board, at the city of Topeka, and these two members made the contract without any previous authority from the board, and the contract has never been ratified, confirmed or recognized as legal or valid by the board. Such a contract is of course void. (Merrick Co. v. Batty, 10 Neb. 176; P. & F. R. Rly. Co. v. Comm’rs of Anderson Co., 16 Kas. 302; Comm’rs of Anderson Co. v. P. & F. R. Rly. Co., 20 id. 534; Aikman v. School District, 27 id. 129; Mincer v. School District, 27 id. 253; Sullivan v. School District, 39 id. 347.) As the aforesaid contract was and is void, and as the case was tried by the court below upon the theory that the contract was entirely valid, it follows that the judgment of the court below must be reversed. But it does not follow, however, that the plaintiff below, Webb, is entirely without remedy, or that he cannot recover anything for any of his services. The tend ency of the courts and others at the present time is to treat corporations, including municipal corporations, with respect to their business transactions, about the same as the courts and others treat individuals; and where a corporation, municipal or otherwise, has received benefits from others, upon contracts ultra vires or void because of some irregularity or want of power in their creation, but not void because made in violation of express law, or good morals, or public policy, and where the corporation retains such benefits, it must pay for them. (City of Ellsworth v. Rossiter, 46 Kas. 237, and cases there cited.) It would seem from the record in the present case, that for some of the services performed by Webb the county cannot possibly be liable, for it would seem that the county had no interest in them, but that they related purely to private matters beween individuals. But as to others of such services it would seem otherwise, and that the county might be liable as for benefits received. (See also Thacher v. Comm’rs of Jefferson Co., 13 Kas. 182.) All these questions, however, may be considered upon a new trial, where the parties may show just how far the county was interested, and how far not, and what benefits the county may have received from the plaintiff’s services. The judgment of the court below will be reversed, and the cause remanded for a new trial. All the Justices concurring.	[ -76, 108, -4, 31, 24, 64, 32, 10, 59, -95, -75, 87, -19, -58, 4, 109, -78, 125, 80, 106, 69, -77, 51, 33, -112, -109, -37, -35, -79, 79, -12, -41, 76, 48, -54, -35, 70, 74, -63, -44, -54, -126, -87, 108, -39, -63, 52, 117, 50, 27, 53, -82, -13, 42, 29, -61, -24, 46, -37, 42, 80, -79, -98, -121, 124, 4, -111, 39, -104, 3, 72, 46, -72, 49, 3, -24, 83, -74, -126, 118, 13, -87, 12, 54, 102, 33, -68, -17, -84, -99, 15, -13, -99, -90, -73, 72, 107, 13, -74, -100, 116, 82, 7, -2, -28, 4, 28, 44, 11, -113, -108, -109, -113, 44, -118, 3, -13, 6, -80, 65, -57, -94, 93, 102, 50, -101, -97, -72 ]
Per Curiam: Mrs. Lydia A. Amick obtained a policy of insurance for $2,000 on the 7th day of November, 1883, of the Kansas Farmers’ Mutual Fire Insurance Company, which was organized at Abilene, in this state, in 1882, under the provisions of chapter 111, Laws of 1875. The policy was to be in force from November 7,1883, at noon, to the 7th of February, 1884. The premium' was $10, and was paid in cash. Of the insurance, $1,300 was upon merchandise, consisting of dry goods, notions, hats and caps, etc., in a one-story frame building on lots 33 and 35, in block 9, in Ottawa, in this state, and $700 on household furniture, family apparel, books, music, etc., in the same building. Under the provisions of chapter 111, two classes of policies were issued by the company, one denominated “class No. 1,” and the other “class No. 2.” The business of each class is required by the statute to be conducted separately and independently of the other, and the statute specifically provides that “in no case shall an assessment be made by the company or association upon the premium notes of one class to pay the losses or expenses of the other class.” (Ch. Ill, §1, subdiv. 2.) The policy accepted by Mrs. Amick had clearly and plainly written upon its face “Class No. 2.” There was also indorsed upon the back of the policy the letters and figures “Class No. 2.” All the persons who in 1883 accepted policies from the insurance company in class No. 2 knew, or ought to have known, if they acted prudently, that class No. 2 was not in a good financial condition. From the insurance report of the state for 1884, the true condition of class No. 2, for 1883, is shown, as follows: MEMBEES. Number of members added during the year...................... 261 Number of members who have withdrawn, or whose policies have been canceled, during the year................................ _29 Number of members belonging to the company December 31,1883, 232 BESO VECES. Amount of premium or deposit notes in force December 31, 1883.................................................. $1,665 19 Amount of all other resources, viz., premiums in course of collection............................................. J__823 49 Total amount of resources............................ $2,488 68 EXPENDITUEES. Amount paid for losses occurring during the year.......... $30 62 Amount paid to agents.................................. 505 65 All other expenditures during the year, viz.: Express................................... $37 30 Postage and telegraphing........'.......... 19 04 Books, blanks, and stationery.............. 323 15 Reinsurance............................... 184 00 General agent’s salary and expense......... 600 00 Total........................................... 1,163 49 Total expenditures during the year................... $1,699 76 So it appears from the records of the company and the official statement of the superintendent of insurance for the state, that in 1883 the total amount of resources for class No. 2 was $2,488.68, and that the expenditures for said class No. 2 for that year were $1,699.76. The persons having insurance in class No. 2, in 1883, had no other notes, funds or resources to look to for the collection of their claims than the $2,488.68, unless other notes were executed, or other funds collected, or some other thing done after that date. The condition of class No. 1, in 1883, was much better. The amount of premium notes in force in that class on December 31, 1883, was $65,-838.23. But, of course, the insurers in class No. 2, under the statute, had no right to expect that the $65,838.23 of premium notes given by insurers in class No. 1, and expressly devoted by the statute to pay the losses and expenses of class No. 1, could be assessed, used or levied upon to pay the risks in class No. 2. The statute prohibits this. On the 27th of December, 1883, a fire occurred, destroying a part of the property insured by Mrs. Amick. On the 23d of December, 1884, she brought her action upon the policy of insurance of the date of the 7th of November, 1883, and attached to her petition a copy of the policy, which showed upon its face that it was issued under the provisions of chapter 111, as “class No. 2.” Subsequently, judgment was rendered in favor of Mrs. Amick and against the insurance company, and .other proceedings were thereafter had, as stated in the opinions already filed. (37 Kas. 73; 45 id. 74, 738.) In overruling the motion for a further hearing, it is only necessary to repeat some of the things already stated in the opinion of June 6, 1891. In the first place, Mrs. Amick accepted her policy of insurance with full knowledge of the provisions of chapter 111, Laws of 1875, and she cannot now be heard to say that she did not understand the terms of her policy, or the conditions under which it was issued. She had her property insured in the second, not the first, class. The statute expressly prescribes that “the goods, wares, etc., contained in buildings used for merchandise must be insured in the second, not the first, class.” Mrs. Amick knew at the time of accepting her policy that the business of each class was conducted separately and independently of the other. She paid her money for her insurance, but she knew at the time of making the payment that the premium notes given by the company for insurance of the first- class could not be assessed or used to pay the losses in the second class. All that we decided in the opinion handed down was, that— “Under the provisions of chapter 111, Laws of 1875, (ch. 50a, Comp. Laws of 1879,) the business of each class of a mutual fire insurance company must be conducted separately and independently of the other, and in no case shall an assessment be made by the company or association upon the premium notes of one class to pay the losses or expenses of the other. “A general judgment, rendered upon a policy of insurance on .property of the second class only, issued on November 7, 1883, by a mutual fire insurance company, under the provisions of chapter 111, Laws of 1875, (ch. 50a, Comp. Laws of 1879,) cannot be collected from the property expressly devoted by the statute to the payment of losses by the company on property of the first class.” (45 Kas. 738.) We held then, as we hold now, that the general judgment may be and can be enforced against any and all of the property of the insurance company which is not expressly exempt by statute. We never held, and never intend to hold, that the execution could not be levied upon the general property of the insurance company subject to any execution. If the insurance company has money in its treasury, has office furniture, books, papers, real estate, or other property subject to execution, the general judgment may be enforced against it. The property that we said could not be levied upon to pay the judgment in this case was premium notes or other like funds, expressly devoted by the statute for the protection of the insurers in the first class. As the statute expressly forbids any assessment to be made upon the premium notes of one class to pay the losses of the other class, we held before, and now hold, that the premium notes of the first class are exempted by the statute from being used, levied upon or sold to pay the losses or expenses of the second class. If the insurance company could not assess the premium notes of the first class to pay the losses or expenses of the second class, it could not use or sell said notes for such an unlawful purpose. In brief, it could not divert the premium notes of the first-class insurers, or the proceeds thereof, or any moneys in the treasury therefrom, for the losses or expenses of the second-class insurers. If it could not do so directly, on account of the prohibition of the statute, it could not evade the law by indirectly doing the same thing through a judgment against it upon a default, or by any insufficient answer, where the petition in the court shows the judgment was obtained upon a policy issued by the insurance company in the second class only. The courts are not eager to assist insurance companies in violating the provisions of the statute under which they are authorized to transact business. We never intimated, in the slightest manner, that the original judgment was to be modified, changed, or vacated, or that it could not be enforced against property subject to execution. When the learned district judge of Franklin county, on the 13th day of August, 1888, appointed D. W. Naill as receiver in this case, he fully recognized the principle announced in the opinion of June 6,1891, and reiterated here, that the premium notes of the first class could not be assessed or used to pay a loss in the second class. The order appointing the receiver recites, among other things, that “If said defendant has not sufficient cash to satisfy said judgment, with interest and costs, then it is ordered that said defendant deliver to said sheriff any notes, bonds, bills or assets (other than premium notes) sufficient to satisfy said judgment, interest, and costs,” etc. We affirmed the appointment of the receiver, but extended the order of the district judge so as to protect, not only the premium notes, but any other like funds (if there be any such) of the insurers expressly devoted by the statute to pay the losses of the first class. If a general judgment is rendered against a debtor, his exempt property cannot be taken or sold upon an execution issued on such a judgment, whether he answered the original petition or not. (Sproul v. National Bank, 22 Kas. 336; In re Jones, 2 Dill. 343; Reed v. Umbar ger, 11 Kas. 206; Robinson v. Wilson, 15 id. 595; Rasure v. Hart, 18 id. 340.) If property is specifically appropriated by the statute for the use or payment of a certain class of claims or judgments only, it cannot be used against the objection of the debtor, for the payment of every judgment. Such property is exempt, excepting for the purposes expressly prescribed by the statute. A homestead may be sold upon a judgment for the purchase-money thereof, or for the erection of improvements thereon, but a general judgment, obtained even upon default, cannot be enforced against a homestead if the debtor object. Certain personal property, owned by the head of the family, is exempt under the statute against a general judgment, but not against a judgment rendered for the wages of a clerk, mechanic, or servant. If a judgment is rendered in the district court of Franklin county, and executions thereon are issued from that court to the sheriff of Dickinson county, the sheriff of the last-mentioned county cannot lawfully levy and sell the exempt property of the debtor in Dickinson county, whether it be exempt under the statute of the state or under the federal statute as a homestead, or as money due or to become due to the debtor as a pensioner; and while a sheriff cannot, in any case, upon an execution in his hands, allow any new defense or modify any judgment, he cannot sell any property of the debtor which is exempt by the state or federal statutes. If the sheriff of Dickinson county, on an execution issued upon a valid judgment in Franklin county, attempts to sell property exempted to the debtor under the state or federal statutes, the debtor residing in Dickinson county may apply to the district court of his own county, where the property is situated, to prevent the unlawful sale. He is not compelled to commence such litigation in Franklin county, or in a court beyond the limits of his own county; therefore, while “a judgment is the final determination of the rights of the parties in an action," the judgment never can be, and never was intended to be, enforced against property of the debtor which the state or federal statute forbids being applied to the payment of the claim or judgment. The legislature has the sa'me power to exempt the property of a corporation from levy under a judgment that-it has to exempt the personal or real property of an individual; and a judgment cannot be enforced in the one case against the exempted property any more than it can be enforced in the other case. Whether the provisions of chapter 111, Laws of 1875, are wise or not, we are not called upon to say. If the legislature has said that the premium notes of an insurance company given by persons belonging to the first class, and similar funds, shall not be used to pay the losses of the second class, the letter of the statute must control, and we cannot wipe out the exemption by judicial construction. If it be true, as asserted by counsel for Mrs. Amick, that the insurance company is not doing any business of the first class, or if it has any property — real, personal, or mixed — not expressly devoted by the statute to the payment of losses of the first class only, then, of course, the original judgment may be enforced against all such property. Of course, all property not exempt is subject to levy and sale. We repeat what we said upon the former rehearing: “If any property, assets or funds belonging to the second class at the date of the policy issued to Lydia A. Amick, or at the date of the fire, or at any other time, have been improperly or wrongfully transferred by the officers of the insurance company from the second class to the first class, to evade the payment of any judgment, debt, or other claim, such transfer will not prevent the collection of the judgment from such property, assets, or funds. Again, if the officers of the insurance company have concealed or secreted any of the property, assets or funds of the second class in the business of the first class, such property will also be subject to the payment of this judgment. Further, if the officers of the insurance company have covered up, by reorganization or any other change, any of the property, assets or funds which belong, or ought to belong, to the second class, or which in any possible way can be used, under the provisions of the statute, to pay the losses of the second class, such property is also subject to the payment of the general judgment.” (45 Kas. 741.) In case No. 5491, we affirmed the appointment of the receiver, but directed that he should not take possession or con trol of the premium notes given by persons insured in the first class only, or any other notes or funds expressly devoted by the statute to the payment of the losses in the first class. It might be beneficial for the receiver to ascertain what has become of the premium notes of the second class in force on December 31, 1883. If, in January, 1884, the insurance company ceased to do second-class business, still the premium notes in force in that class on December 31, 1883, until legally exhausted, could be used to pay the loss of Mrs. Amick, and the company could not, to the prejudice of her rights, or in violation of the statute, return to other insurers, or give to any other company these notes, or the proceeds thereof, or in any way divert them or any part of them from the payment of the loss of Mrs. Amick. In case No. 7017, the injunction was continued, excepting it was ordered to have no application to property not exempt from levy and sale. The motion for a further rehearing will be overruled. Horton, C. J., and Johnston, J., concurring. Valentine J.: This case has been in this court at different times from 1887 up to the present time: Insurance Co. v. Amick, 37 Kas. 73; same case, 14 Pac. Rep. 454; Insurance Co. v. Amick, 45 Kas. 74; same case, 25 Pac. Rep. 211; Insurance Co. v. Amick, and Naill v. Insurance Co., 45 Kas. 738; same case, 26 Pac. Rep. 944. The last decision rendered by this court, on June 6, 1891, in the above case of Naill and Mrs. Amick against the Kansas Farmers’ Fire Insurance Company, was against Mrs. Amick and in favor of the insurance company; and this was the first decision rendered by this court against Mrs. Amick, and she, with her co-defendant, Naill, now moves for a rehearing. In addition to the facts already stated in the former opinions delivered in the above cases by myself, I would state the following: The insurance policy was an ordinary full-paid policy, executed by the insurance company, as a company, to Mrs. Amick on November 7, 1883. It was an absolute contract of indemnity, whereby the company, in its entirety and as a single corporate entity, agreed to pay for all loss or damage to the insured property occasioned by fire up to the amount of $2,000, within 60 days after notice and proof of loss; or to repair, rebuild or replace the property lost or damaged; and this agreement to pay or to repair, rebuild or replace was without any reference whatever to classes of business or members of the association or assessments. It was as absolute and unconditional a contract of indemnity as is ordinarily made by stock insurance companies. No premium note was given or executed by Mrs. Amick or by any one else in payment for the insurance, but the price of the insurance was wholly paid in cash; hence Mrs. Amick was not further liable to the insurance company, or to anyone else with reference to the insurance; or, in other words, she did not procure the insurance “upon the mutual plan” of premium notes, assessments, etc., but purchased the insurance absolutely from the insurance company, just as any person might purchase insurance from an ordinary stock insurance company not doing business “upon the mutual plan” at all. Sections 5 and 8 of chapter 111 of the Laws of 1875, which were then in force, read as follows: “Sec. 5. The members of any company or association formed under this act shall be liable to such company, or to any other person, only to an additional amount equal to the principal and interest of the premium note given when effecting insurance.” “Sec. 8. All persons insuring upon the mutual plan, in any company organized in accordance with the provisions of this act, shall constitute its members and stockholders,” etc. There was nothing in the policy in the present case showing that Mrs. Amick became or was a member of the insurance company; and nothing anywhere else that would make her such unless the aforesaid statutes would; and nothing showing anything with- reference to the class of business in which the policy was issued further than has already been stated in my former opinion, reported in 45 Kas. 742; 26 Pac. Rep. 946. But, with the opinion that I entertain, all this is immaterial, for the reason that the judgment rendered in the original case was a general judgment, authorizing a general execution against all the property of the insurance company subject to execution; and such judgment has never been modified in any ^particular by any court or person having any authority to modify it. Judgments may be modified or vacated in the same court in which they were rendered, under § 568, et seq., of the civil code; and they may also be modified or vacated by the supreme court under § 542, et seq., of the civil code; and see also § 77 of the.civil code. But the present judgment has never been vacated or modified in any manner recognized by any law; and really the only question now involved in the case is, whether a sheriff holding a general execution, issued in pursuance of a general judgment and following the'judgment, may so modify the judgment or the execution that he may levy it only upon particular kinds of the property belonging to the judgment debtor subject to execution, and whether he is liable, in a different forum from the one from which the execution was issued, to be compelled to so modify the same if he should fail or refuse to do so. It is claimed that the execution should be levied upon only property belonging to the insurance company as property of its second-class business; but it is shown that the insurance company has no such property; that it had ceased to do a second-class business on January 25, 1884 — long before any execution in this case was issued, long before the judgment in this case was rendered, and long before the time when the action in which such judgment was rendered was commenced. Such action was commenced on December 23, 1884; the judgment was rendered on October 17, 1885; and the question is now, whether such judgment may be enforced or not by the levy of an execution upon the general property of the insurance company subject to execution. Since January 25, 1884, the company has been doing only a single class of business, or, perhaps, rather a single business without reference to classes; and why should a sheriff, holding a general execution against all its property subject to execution, issued a great many years after January 25, 1884, and issued upon a general judgment rendered against the company on October 17, 1885, know that the execution should not have force or effect as a general execution, but only as a special execution against a particular class of property belonging to a particular class of business which the company had not for a great many yeárs, nor for more than 1J years before the judgment was rendered, carried on ? How could the sheriff know that the company had ever carried on such a business, and modify the terms of the execution accordingly ? Why should a sheriff be compelled to modify the terms of an execution, and then attempt to enforce it against a class of business which had not been in existence since January, 1884, more than a year and a half before the judgment was rendered, and more than seven years ago? “A judgment is the final determination of the rights of the parties in an action,” (Civil Code, § 395,) and it imports absolute verity. “No principle of law is more firmly settled than that the judgment of a court of competent jurisdiction, so long as it stands in full forcé and unreversed, cannot be impeached in any collateral proceeding on account of mere errors or irregularities, not going to the jurisdiction.” (1 Black, Judgm., §261.) “A final judgment cannot be collaterally impeached because the opinion of the court shows that a different judgment should have been entered.” (1 Black, Judgm., § 262.) “It is a general rule that a valid judgment for the plaintiff definitely and finally negatives every defense that might and should have been raised against the action; and this is true not only with respect to further or supplementary proceedings in the same cause, but for the purposes of every subsequent suit between the same parties, whether founded upon the same or a different cause of action. A party cannot relitigate matters which he might have interposed, but failed to do so, in a prior action between the same parties or their privies in reference to the same subject-matter. And if one of the parties failed to introduce matters for the consideration of the court, that he might have done, he will be presumed to have waived his right to do so. ' If a party fails to plead a fact he might have pleaded, or makes a mistake in the progress of an action, or fails to prove a fact he might have proved, the law can afford him no relief. When a party passes by his opportunity, the law will not aid him.” (2 Black, Judgm., § 754.) “No defense can beset up against a judgment which might with proper diligence have been interposed in the action in which the judgment was rendered.” (Snow v. Mitchell, 37 Kas. 636.) See, also, Boyd v. Huffaker, 40 Kas. 634, 636, and authorities there cited. “A party may have a good defense to an action, but if he fail to make such defense when the case is called for trial, he will not be permitted to come in weeks afterward and say that the judgment was wrong and ought to be set aside, simply because he had a good defense.” (Iliff v. Arnott, 31 Kas. 674.) See, also, Larimer v. Knoyle, 43 id. 351. Now may a party, a corporation, which supposes it has a particular kind of defense in an action brought against it, fail to interpose the defense until the final judgment has been rendered in the case, and then, after several years have elapsed, and when an execution has been issued to enforce the judgment, appear before the sheriff and interpose its defense before him, and ask him to grant the defense, and, if he refuses, then go into a forum other than the one which rendered the judgment and issued the execution, and procure an order in that forum compelling the sheriff to recognize and sustain such defense? The original judgment was rendered in the district court of Franklin county, and the executions were issued from that court to the sheriff of Dickinson county, and it was the sheriff and the district court of the last-mentioned county that were asked to modify the executions or prevent their enforcement. Now, suppose the sheriff, when he was asked to modify these executions, or not to enforce them, for the reason that they should be enforced only against property belonging to the second-class business, of which there was none at that time, had answered: “I have examined that matter, and find that at'the time when the original judgment was rendered, and even prior to the time when the action in which it was rendered was commenced, and more than seven years ago and ever since, your insurance company has been doing only one kind of business, and the judgment was rendered accordingly, and against the company in its entirety, and against all its property subject to execution:” then should the sheriff allow the company’s defense and modify the judgment and the executions accordingly? One of the things which the insurance company wishes to protect in the present caséis its guarantee fund of $50,000, which was created in the early part of the year 1885, and before the judgment was rendered. The last execution issued on this judgment, and the one now sought to be modified or annulled, was issued on May 29, 1889; and on June 6, 1889, the superintendent of insurance reported concerning the aforesaid guarantee fund, as follows: “The fund of the Abilene company consists of the stock of the Bonebrake Hardware Company, and the Abilene Water and Electric Light Company.” (Supt. Ins. Hep. 1889, pp. 11, 12.) It is not probable that any person would ever desire to attempt to levy an execution upon such a fund; and he could not do so until after all other resources had been exhausted. (Laws of 1885, ch. 130, §2.) As to how actions may be brought and judgments rendered against mutual insurance companies doing business even upon the assessment plan, see 16 American and English Encyclopaedia of Law, 88-90, and 2 May, Ins. (3d ed.), §§ 563a and 564. In the first authority cited, it is stated, among other things, as follows: “When the insurance company refuses to make an assessment, it violates its contract, and becomes liable to the beneficiary for damages caused by such violation. Such damages, like all damages for breaches of contract, can be recovered by an action at law. The recovery should be for the maximum amount insured, unless the defendant shows, by pleadings and proof, that such sum should be reduced.” See also 2 May on Insurance, supra, to the same effect. It is further claimed by counsel for Mrs. Amiek, that the insurance company has not only not done business in classes since January 25, 1884, but that the business which it has done it has done as one single business, including all kinds of fire insurance business; that since that time it has insured all kinds of insurable property. Under the statutes as they now exist, the insurance company would certainly have a right to do so. (Gen. Stat. of 1889, ¶ 3418.) Therefore, in all probability, the insurance company has at the present time no property that belongs to any particular class of business, but simply has property, office furniture, and the like, belonging to itself as an entirety; and may not such property be levied upon, under a general execution against the company, issued upon a general judgment against the company? Or must Mrs. Amick and the sheriff still hunt for property belonging to the company’s second-class business, which was extinguished more than seven years ago, and for property which no longer has any existence?	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Opinion by Simpson, C.: Agerter commenced this action in replevin against Clare, to recover the possession of one bay mare, one gray mare, and one set of double harness, which he claimed under and by virtue of a chattel mortgage executed by one J. C. Thomas. It appears that the property in controversy, on the 3d day of February, 1888, belonged to one J. H. Koger, who sold it on that day to J. C. Thomas for $175; that Thomas paid by executing his note, with Clare as surety, and he agreed with his surety that the property should stand pledged to the surety until he (Thomas) paid the note; that subsequently, and about the 15th of December, 1888, Thomas delivered the property to Clare for him to hold possession of and keep until the note to Koger was paid; that on the 18th day of December, 1888, Clare permitted Thomas to have the temporary use of the property to go to a place six miles distant, with the distinct understanding that the property was to be immediately, on the return of Thomas, delivered to Clare; that while Thomas was thus temporarily in possession of the property, Agerter, on the .night of December 19th, attached the same as the property of Thomas, and on the next day Thomas executed a chattel mortgage on this and other property to secure to Agerter the payment of $159.60. On the 21st of December Thomas redelivered the property to Clare, and on the 19th day of January, 1889, Agerter, the defendant in error, commenced this action. The case was tried at the May term, 1889, of the district court of Brown county, the general verdict of the jury being in favor of Agerter, but the special findings were to the effect that on the 3d day of February, 1888, the property in controversy belonged to J. H. Roger; that on that day Roger sold to Thomas, and received in payment a promissory note of Thomas, for $175, payable in one year, with Clare as surety; that there was an agreement between Thomas and Clare that the property should stand pledged for the payment of the note; that on or about the 17th day of December, and before Agerter recovered the mortgage from Thomas, the property was delivered by Thomas to Clare, so that Clare could keep possession, pay the balance due on the note, and when Thomas was able to repay Clare the property to be returned to Thomas; that on the 18th of December Clare permitted Thomas to have the temporary use of the property for the purpose of making a trip, and while said property was in the temporary possession of Thomas Agerter attached it, on the night of the 19th of December, and on the next day Thomas executed the note and chattel mortgage to Agerter. On the 21st of December Thomas returned the property to Clare, who has retained possession ever since, and when replevin was served Clare gave a delivery bond. When the general verdict and special findings were returned Agerter made a motion for a judgment in his favor, and Clare filed a motion for a judgment in his favor on the special findings. Clare’s motion for a judgment on the special findings was overruled, and he brings the case here for review, claiming that the court erred in overruling his motion for a judgment in his favor on the special findings. The trial court committed material error in overruling the motion of Clare for judgment on the special findings, as these control the general verdict. The facts found especially by the jury are to the effect that, at the time the chattel mortgage was executed to Agerter, both the right of possession and the actual possession of the chattels was in Clare. These chattels had been delivered to Clare in pursuance of a lawful agreement with Thomas days before the execution of the chattel mortgage to Agerter, and the temporary loan of them by Clare to Thomas did not disturb the legal title or right of possession in Clare. We recommend that judgment be entered on the special findings in favor of Clare. By the Court: It is so ordered. All the Justices concurring.	[ 114, 102, -72, 47, -40, -16, -86, -72, 67, -125, 55, 87, -23, -58, 17, 117, -26, -19, 65, 105, -58, -78, 23, -16, -46, -13, -45, 85, -71, 77, -28, -41, 65, 52, -54, 21, -60, -126, -119, 92, 14, -115, -101, -59, -39, -24, 48, -5, 52, 72, 113, 14, -5, 35, 116, 127, 109, 42, -55, 41, -64, 97, -69, 14, 79, 6, 16, 118, -100, 67, 72, 12, -112, 17, 20, -8, 115, -74, -122, 84, 45, -119, 8, 34, 102, 33, -27, -17, 120, -120, 47, 95, -121, -89, -125, 120, 2, 97, -66, -99, 82, -46, 39, 126, -29, -107, 20, 108, 2, -49, -42, -93, 47, 46, -122, 7, -33, -67, 57, 113, -51, -96, 93, 87, 56, -101, -114, -8 ]
Opinion by Strang, C.: September 24,1881, one Silas H. Hamilton and Frances B. Hamilton gave Alexander M. Sutherland a mortgage upon a quarter-section of land in Atchison county to secure the sum of $5,300, which mortgage was placed upon record October 9, 1883. Sutherland duly assigned said mortgage to J. C. Goodrich, and on the same day Goodrich assigned an interest in said mortgage of the value of $2,318.05 to Ann B. Sutherland, both of which assignments were placed of record on the 12th day of October, 1883. January 8,1884, a petition was filed with the county clerk of Atchison county, asking the board of county commissioners to cause a public road to be laid out, in part across and over the land covered by the mortgage above described. March 25, 1884, the road prayed for was established across said land, the viewers assessing damages to the said land in the sum of $250, and awarding the same in the name of T. C. Beard, agent of the mortgagors. Afterward said T. C. Beard appeared before the board of county commissioners and procured an increased allowance of damages in the sum of $100, making a total award of damages of $350, which was paid to said Beard. During the time when said road was being laid out, as well as when the award of damages was paid to Beard, the mortgagors were in possession of the land, and had been ever since the execution of the mortgage. February 3,1885, the mortgage was foreclosed in the United States circuit court, and the land sold by a master to the plaintiff J. C. Goodrich, for the sum of $2,500. April 11, 1887, this action was begun by the plaintiffs to recover the amount of said award from the board of county commissioners of Atchison county, claiming that they were entitled to the damages as mortgagees of the land, and alleging that said damages were wrongfully paid by said board to the agent of the mortgagors. March 7, 1888, defendants filed a demurrer to the petition, which demurrer was overruled by the Hon. S. H. Glenn, judge pro tem., the regular judge being disqualified to sit in the case. Answer and reply were afterward filed, and the case came on for trial February 5, 1889, before the regular judge of the district, Hon. Robt. M. Eaton, who in the meantime had been elected and qualified. A jury was obtained, and a witness placed upon the stand, when the defendants objected to any evidence being received under the petition, for the following reasons: 1st, “because this court has no jurisdiction to try this case;” 2d, “because the petition does not state facts sufficient to constitute a cause of action against the defendants.” This motion was sustained. A mo- . tion for a new trial was then filed, which, upon a hearing, was overruled, and the case brought here for review. The first question presented is raised by the contention of the plaintiffs in error that the action of the court in overruling the demurrer to the petition settled the law of the petition so far as the trial court was concerned; that having overruled a demurrer to the petition, thus holding the petition to state a cause of action, the trial court could not subsequently in the same trial, when evidence was offered under the petition, sustain an objection to the reception of such evidence on the ground that the petition did not state facts sufficient to constitute a cause of action; that when the court overruled the demurrer to the petition, such action of the court was a final adjudication in favor of the plaintiff as to the sufficiency of the petition, and if the defendant felt aggrieved thereby, its only remedy was by appeal and not by objecting to the introduction of the testimony. We do not think this position is tenable. This is a jurisdictional question, and we think the defendant may raise it at every stage of the trial. Though the court has overruled a demurrer, a party defendant may, in the same trial, object to the reception of evidence under the petition, and thus again secure the attention of the court to and challenge its judgment upon the same question raised by the demurrer; and if the court overrules its objection, it may still raise the question, before the final judgment against it, by a motion for a new trial. The object of a motion for a new trial is to call the attention of the court to alleged errors, that the court may have an opportunity to correct its own errors, if it concludes, even after the trial, it has made any, or suffered any to be made. If it is proper to permit the defendant to argue the question raised by the demurrer anew on a motion for a new trial, we know of no reason why it is not proper to raise and argue the question by an objection to the reception of evidence under the petition. The object sought to be obtained is the same. By filing an answer the defendant waives his right to demur, but he does not thereby waive his right to raise the same question that he could have raised by demurrer to the petition, by objecting to the reception of evidence under the petition. We have examined the cases cited. The case of Sanford v. Weeks, 39 Kas. 649, instead of supporting the position of the plaintiffs, seems to militate against such position so far as it is in point. In that case Sandford demurred to the petition, which was overruled, and no exception taken. He then objected to the reception of evidence under the petition, which was the same practice that prevailed in this case, and which is now objected to. That case also holds that if the defendant had taken exceptions to the overruling of his demurrer, the question raised thereby might have been reviewed by this court. There is nothing in the case of the U. P. Rly. Co. v. Estes, 37 Kas. 229, that supports the contention of the plaintiffs in error. That case simply holds that a party who seeks to have a ruling on a demurrer to a petition reviewed by this court may either stand on his demurrer, and bring the case direct to this court for review, or take his exception to the ruling, file his answer, and go to trial, and after trial bring his case here and have the ruling on the demurrer reviewed. That a defendant whose demurrer to the petition is overruled may except, and stand on his demurrer, and come to this court at once and have the question settled as to the sufficiency of the petition, is not denied in this case. That question is not involved in the case. The case cited, however, settles the question that he need not stand on his demurrer and come at once to this court, but may take his exception, answer over, and at the end of the trial come to this court and have the question raised by his demurrer reviewed. The cases cited from Ohio, Nebraska and New York relate simply to the question as to whether a defendant whose demurrer has been overruled can answer over, and afterward, at the end of the trial, have the ruling on his demurrer reviewed by the superior court.' What the law may be in those states upon that question is not very material, as that precise question is not raised in this case, and if it were, the cases in 37 and 39 Kansas, above cited, settle the law so far as this state is concerned. The next and more important question in this case is, “Are the plaintiffs, mortgagees out of possession, owners” within the meaning of ¶ 5477, General Statutes of 1889 ? Mr. Lewis, in his work on Eminent Domain, § 324, enters upon the discussion of the general subject as to whether mortgagees are necessary parties to condemnation proceedings, by saying that “the authorities on the question are not only conflicting, but very unsatisfactory.” The same author adds: “The cases go almost entirely upon the language of the statutes, as though it was a matter entirely within the control of the legislature.” So, in our examination of the question, we have found the authorities thereon inharmonious, and depending very largely upon the language of the statutes, and upon the law relating to mortgages in the states where the decisions are found. In those states where the common-law doctrine relating to mortgages prevails, where the mortgagee is held to be the possessor of a defeasible title to the land, it is generally held that he is a necessary party to the condemnation proceeding; while in states where the mortgage is held to be a mere security creating a lien upon the property, but vesting no estate in the mortgagee, it is generally held that the mortgagee is not a necessary party to condemnation proceedings. In some of the states where the decisions depend upon the language of statutes, such language is broader than it is in others. In some states the statute simply requires notice to be given to the “ owner,” while in other states the language of the statute in relation to notice requires it to be given to the owner, mortgagee, lien-holder, lessee or other person having an interest therein. The law of mortgages is well defined in our state. In Chick v. Willetts, 2 Kas. 379, a mortgage is declared to be a mere security, creating a lien upon the property, but vesting no estate whatever in the mortgagee, either before or after condition broken. It gives no right of possession, and does not limit the mortgagor’s right to control the property. In Vanderslice v. Knapp, 20 Kas. 647, Mr. Justice Valentine, writing the opinion, says “that a mortgagor of real estate has the right to the possession of the mortgaged property, and to sever and remove timber, wood, sand, earth, coal, stone or anything else therefrom, and to sell the same, unless it unreasonably impairs the mortgage security. When it unreasonably impairs the mortgage security, the remedy of the mortgagee is not at law, but in equity; not replevin to recover the property severed from the realty, but generally injunction to restrain the commission of waste upon the realty.” Upon this question of the law of mortgages, see Clark v. Reyburn, 1 Kas. 281; Curtis v. Buckley, 14 id. 456; Pritchett v. Mitchell, 17 id. 358; Alexander v. Shonyo, 20 id. 705; Robbins v. Sackett, 23 id. 304; Seckler v. Delfs, 25 id. 165; Tomlinson v. Thompson, 27 id. 72; Perkins v. Dibble, 10 Ohio, 439;. Norwich v. Hubbard, 22 Conn. 587; Astor v. Hoyt, 5 Wend. 615. The statute of our state upon the question under discussion (¶ 5477, Gen. Stat. of 1889) reads as follows: “It shall be the duty of at least one of the petitioners to-cause six days’ notice to be given in writing to the owner or owners, or their agents, if residing in the county — through whose land such road is to be laid out and established — of the time and place of meeting as specified in the notice of the commissioners.” - The notice of the commissioners is pointed out in ¶ 5476 of the same statutes, and requires the county clerk to give notice “by advertisement set up in the county clerk’s office and every municipal township through which any part of said road is designated to be laid out, for at least 20 days; and by publication for two consecutive weeks in a newspaper, if there be one published in the'county, setting forth that such petition has been presented, giving the substance thereof, and that viewers will on the day designated proceed to view said road and give all parties a hearing.” In view of the statute in our state in relation to notice in road proceedings, and the law relating to mortgages, and rights of mortgagors and mortgagees, we do not think it was necessary to serve notice on the plaintiffs for the purpose of establishing the road which was laid out across the lands upon which they at the time held a mortgage. There is nothing in our statutes that requires service of notice upon any one in such proceeding except the “owner.” It has been seen that in our state a mortgagee of land is not the owner thereof. The mortgagor holds the legal title, and, in the absence of stipulations to the contrary, the right of possession. He is regarded as the owner of the land, and when in possession by himself or agent notice to him or his agent is, in proceedings to establish a public road, notice to the “ owner,” to the full intent of our statute requiring such notice. The case of Railroad Co. v. Wilder, 17 Kas. 246, goes a long way toward settling the law of this case. In that case, Mr. Justice Valentine, speaking for the court, says: “We think Wilder is entitled to the same damages as though he owned the unincumbered fee of the land. Da Lee is not entitled to any portion of such damages. DaLee is entitled to the $2,000 which Wilder owes him, and to nothing more, except that he holds th$ legal title to the land (and possibly a lien on the damages awarded if he choose to assert that lien) as a security for his claim on Wilder.” The case of Kuhn v. Freeman, 15 Kas. 423, is in line with the above case. The law upon this question is fully settled in many of the states. In Parish v. Gilmanton, 11 N. H. 293, Justice Woods says: “In the third place, it is objected that certain mortgagees of land over which the road is laid were not notified of the proposed laying out of the way, and that no damages were awarded them. By the first section of the statute, as already seen, it is provided that notice shall be given to the owners of the land through which the highway is to be laid out. Whether the exception can prevail depends upon the proper decision of the question whether the mortgagee is to be regarded as the owner of the land for the purpose of receiving notice, and 'having damages awarded for the injury done in taking easement to the lands mortgaged. It does not appear in the present case that the mortgagee was in possession. In such cases, we think that the mortgagor in possession is to be regarded as the owner, and as such is entitled to the notice. Indeed, it would now seem to be a firmly-established doctrine in this state, that the mortgagee is entitled to have his mortgage interest regarded as real estate, and himself as the owner of the land mortgaged, so far only as to enable him to protect and avail himself of his just rights intended to be secured to him by the mortgage, and to give him all necessary and appropriate remedies for that purpose, and that in all other respects, and for all other purposes, it is to be treated as a chattel interest; and we think this is not one of the cases in which the mortgagee is entitled to be regarded as the owner of the land mortgaged.” In Read v. City of Cambridge, 126 Mass. 427, the court says: “In every taking of land for public use, the mortgagor is regarded in this commonwealth as having, at law, the entire estate in the premises, and entitled to recover the whole value thereof, estimated according to the provisions of the statute, without any deduction on account of the mortgages and liens thereon.”' In Paine v. Woods, 108 Mass. 160, Wells, J., delivering the opinion of the court, says: “This is a complaint of flowage, under the mill act. The complainant is the piortgagor in possession of the land flowed. The mortgage was given before the erection of the dam of the respondents. The mortgagee has never entered or taken any steps toward foreclosure. The ground of defense is, that the complaint cannot be maintained by the mortgagor without joining the mortgagee. The respondents insist that, as the mortgagee-will not be bound by the judgment, they will be exposed to the risk of making double compensation for the same injury, if these proceedings are maintained. This objection is not tenable. For all the purposes of these proceedings, the mortgagor in possession is a sufficient party, without joining the mortgagee.” “A mortgagee out of possession is not the proprietor of the mortgaged premises, and in common parlance is never spoken of as such; nor is he so recognized in a legal sense. In truth the mortgagee has only a lien, and cannot be considered or treated as a proprietor or owner of the mortgaged estate.” (City of Norwich v. Hubbard, 22 Conn. 587.) “In laying out new highways, either by selectmen or by the county courts, or in repairing old ones, no provision is made by law for notice to be given to mortgagees, nor in practice is this ever done. The interests of the mortgagees are not regarded in these proceedings. They are necessarily connected with the interests of the mortgagor, and in this respect subject to them.” (Whiting v. City of New Haven, 45 Conn. 305.) “In a complaint under the mill act by a mortgagor, it is no defense that the respondent has acquired the right of the mortgagee by an assignment of the mortgage.” (Vaugh v. Wetherill, 116 Mass. 138.) “The mortgagor of land, taken by'a railroad corporation for the purpose of their road, may recover the full amount of damages, without regard to the mortgagees.” (Ballard v. Ballard Vale Co., 5 Gray, 468.) We have examined the case of Severin v. Cole, 38 Iowa, 463. The cases therein referred to in 2 Ohio State, 114, and 4 id. 101, in support of the position taken in that case, relate to mechanics’ liens, and are not analogous cases, and do not depend upon the same principle as the case in which they are cited, nor upon the same principle as the case at bar. The case of Ballard v. Ballard Vale Co., 5 Gray, 468, does not sustain the opinion promulgated in the Iowa case. The case in 5 Gray was under the mill act of Massachusetts. It was brought by the mortgagee in possession after foreclosure, and did not claim damages for any of the period of time during which the mortgagor was in possession of the premises. In fact the case conceded that, under the statute which provided for the assessment of annual damages, the mortgagor is entitled to such annual damages while in possession. And it was undecided and left an open question as to whether the mortgagor in possession could, under the same statute which provided also for the assessment of damages in gross, that is, damages for all time, elect to take damages in gross and thus deprive the mortgagee of the right to recover annual damages after the reduction of the land to his possession; and whether the mortgagor in possession could release the owners of the mill, the dam to which caused the overflow, from the damages for all time, and thus conclude the mortgagees after obtaining possession. Merrick, J., in that case, uses the following language: “The respondents [assignees of the mortgagor] have never had any interest except that which they derived from Marland, the mortgagor. His deed to them was a mere quitclaim and release of all his right, title and interest in the premises; and these consisted only of the right of redemption, and the right of possession, previous to a breach of the condition of the mortgage. Of the former the respondents have never availed themselves; and of the latter they have had the uninterrupted advantage and enjoyment — no claim being made for damages occasioned by the flowing before the time when the complainant entered upon and took possession of the premises for the breach of the condition of the mortgage and to foreclose the right in equity of redemption. The right of the respondents is now superseded by the paramount title of the complainant; and they have therefore no defense to set up against the complaint, and can show no reason why it should not be maintained. It has been argued, for the respondents, that a mortgagor in possession has the power and right effectually to release and discharge a mill-owner from all claims for damage which have been or which may be occasioned to the mortgaged premises, either by the past or future maintenance of the dam, used and to be used forever, for the purpose of raising water to work his mill. Without intending in any degree to sanction that position, as a principle of law resulting from a just interpretation of the provision of the statute for the support and regulation of mills, it is sufficient to say that the determination of this question is not requisite in this case; for it does not appear that Marland (mortgagor) has released or discharged, or even attempted to release or discharge, the respondents from all the claim to which they were or might become liable by reason of the maintenance of their dam, and the consequence to the complainant’s land by overflowing.it with water.” Mr. Justice Cole, in the opinion of the Iowa case, says: “The case of Breed v. Eastern Rld. Co. is only reported as a note to the case of Ballard v. Ballard Vale Co., supra.” That is true, but the principle decided in the case of Breed v. Eastern Rid. Co. is carried back and made a part of the syllabus in the case of Ballard v. Ballard Vale Co. With this examination the Iowa case loses some of its force, and we prefer to follow the precedents cited from other states, as being in line with our authorities so far as this court has already gone in analogous cases, and also in line with our numerous decisions affecting the law of mortgages, and the rights respectively of mortgagors and mortgagees, and hold that, for all the purposes of opening highways, the mortgagor in possession is to be regarded as the owner of the land. Whether a mortgagee may, by a proceeding in equity, intervene, and have the damages applied in accordance with what the court under all the circumstances might consider as equitable, we are not called upon in this case to decide, and therefore leave that question open, to be settled in a case wherein it is raised. It will be seen that there is no provision in ¶ 5477 for notice to non-resident owners who have no agent in the county- nor is there elsewhere in our statute any provision for notice to them, except the notice required to be given by the county clerk in ¶ 5476, above referred to. As that notice is required to be posted in the county clerk’s office and each municipal township through which the road or any part of it is to be established, and also published in a newspaper of the county, if there is one in the county, the legislature probably intended this notice to reach non-resident owners. But as, under our view of the law, the plaintiffs — mortgagees out of possession at the time the road was established — are not to be regarded as the “ owners,” it matters little, so far as this case is concerned, what the legislature might have intended as to non-resident owners. We recommend that the judgment of the district court be affirmed. By the Court: It is so ordered. 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The opinion of the court was delivered by Horton, C. J.: On the first day of April, 1887, Clay Bradford, the husband of Maria Bradford, the plaintiff, was the owner of the southeast quarter of section 19, in township 7 south, range 20 west, in Graham county, in this state. Upon that day Clay Bradford executed and delivered to the Central Kansas Loan and Trust Company, of Bussell, Kansas, a mortgage on the land for $600. This mortgage was filed for record in the office of the register of deeds for Graham county on the 5th day of April, 1887. Maria Bradford, the wife of Clay Bradford, did not sign the mortgage, and on the 29th day of August, 1887, brought her action against the Central Kansas Loan and Trust Company and Clay Bradford to have the mortgage declared null and void, upon the ground that the land at the date thereof was occupied as a residence by the family of Clay Bradford, and that the property had never been mortgaged with the joint consent of husband and wife. Subsequently, the loan and'trust company filed its answer, denying that Clay or Maria Bradford, at the date of the mortgage, occupied the land as a residence, and also denying that at such date the land was the homestead of Clay Bradford or his family. Trial had before the court without a jury. The court made a general finding in favor of the loan and trust company,, and rendered a judgment for costs against the plaintiff, Maria Bradford. She excepted, and brings the case here. After the petition in error was filed in this court, on June 18, 1889, Mrs. Bradford died. After her death, her mother, Mrs. Nancy Dawson, was appointed administratrix. On the 18th day of March, 1891, Mrs. Dawson was removed as administratrix, and George F. Clark was appointed administrator in her place. At the late December session of this court, application was made to revive the proceeding brought by plaintiff in error in the name of George F. Clark, as administrator. It is not shown by any affidavit, or otherwise, when Mrs. Bradford died. Therefore, it does not appear affirmatively that the motion to revive has been made within a year, as required by §§ 433 and 434 of the civil code. The defendant has not filed any consent for a revivor. The statute provides that an order to revive an action upon the death of either the plaintiff or defendant cannot be made after the expiration of one year, without the consent of the opposite party. (Angell v. Martin, 24 Kas. 334; Railroad Co. v. Andrews, 34 id. 563; Mawhinney v. Doane, 40 id. 681; Tibbetts v. Deck, 41 id. 492.) Under the statute and the decisions of this court, upon the showing made there can be no revivor; and therefore the proceeding in error must be dismissed. (Gen. Stat. of 1889, ¶¶4530, 4531; Green v. McMurtry, 20 Kas. 189; Scroggs v. Tutt, 23 id. 181; Halsey v. Van Vliet, 27 id. 474; Myers v. Kothman, 29 id. 19; Tefft v. Citizens’ Bank, 36 id. 457.) We have fully examined the record, however, and if the motion to revive were in time, we do not perceive any sufficient ground upon which to rest the reversal of the judgment of the trial court. There was evidence before the court below tending to prove that Clay Bradford made a homestead entry upon the land described in the mortgage in April, 1879; that he occupied the land with his wife as a residence from 1879 to some time in 1882; that he proved up on his land in 1884 or 1885; that Mrs. Bradford left Graham county in June, 1883, going to Nebraska; that she remained there one year and then went to Wichita, in this state; that after being at Wichita a year, she went to Kingman; that she was at King-man until her return to Graham county in 1886; that after she left Graham county, in June, 1883, she did not cohabit with her husband any more; that when she returned to Graham county in 1886 she had three children — two of them were illegitimate— and soon after was pregnant again by some person other than her husband; that Clay Bradford left his homestead in 1882 and went to Ellis, in this state; that his wife, Maria Bradford, did not attempt to occupy the land in controversy after 1883 until in August, 1887, after the date of the mortgage, when she put in the house a bed and stove; that the house upon the land, from the 1st of March, 1887, until late in April of that year, was used as a granary; that after ward, for about three months, it was used for a school; that on the 3d day of May, 1887, Clay Bradford leased the property to Hiram Travis and John Neal; that there was not anything in the house from March, 1887, to April of that-year but grain, and that during the last of April a district school was opened in the house. It further appears from the evidence, that in November, 1887, Clay and Maria Bradford conveyed by deed the land to W. R. Hill or J. P. Pomeroy for $300. Whether this deed was a warranty or a quitclaim we cannot ascertain. The court made a general finding for the defendant below, and therefore must have found, in order to render the judgment which it did, that both Clay Bradford and his wife, Maria Bradford, abandoned the land in dispute as a homestead prior to the 1st day of April, 1887. While the evidence is-conflicting, we cannot say that there is no evidence whatever to support the finding. The conduct of Mrs. Bradford after she left her husband indicates clearly that she had no intention of returning to her husband or to the land in Graham county until she heard of the execution of the mortgage. Some of the evidence tends to show that Clay Bradford had not wholly abandoned the land as his homestead; but he did not live upon it after 1882, and we cannot say, as against the finding of the trial court, that there is not sufficient evidence tending to show his abandonment of the land as a homestead. Under the constitution, there must be occupancy as a residence by some one of the family of the owner to constitute a homestead. (Farlin v. Sook, 26 Kas. 397; Koons v. Rittenhause, 28 id. 359.) The judgment of the district court will be affirmed. All the Justices concurring.	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Per Curiam: This is an application in this court for a writ of habeas corpus on the part of Mike Rabbitt, who claims that he is unlawfully restrained of his liberty in pursuance of a judgment rendered by a justice of the peace of Kansas City, Kas., sentencing him to imprisonment in the county jail of Wyandotte county for the period of three months for the offense of unlawfully carrying a deadly weapon. The only ground upon which it is claimed that the imprisonment is unlawful is that there is no such city or township as that of Kansas City, Kas., and this for the reason that the statute under which the city was organized is unconstitutional, and void, and therefore it is claimed that there can be no such officer as justice of the peace of such city or township, and therefore that the judgment or sentence under which the applicant is restrained of his liberty is absolutely void. We think the principles enunciated and decided in the two cases of In re Short and In re Cross, ante., p. 250, will control the decision in this case. See also the authorities therein cited. Kansas City is a city and township de facto, if not de jure. It is now acting under valid statutes and valid laws — acts relating to cities of the first class — and the question of its legal organization or legal existence cannot be raised in this manner. The application for the writ of habeas corpus will be denied. Per Curiam: The case of In re James Williams, Petitioner, is decided adversely to the petitioner upon the foregoing authority of In re Rabbitt.	[ 112, -22, -7, 126, 10, -63, 16, -69, 83, -77, -26, 83, 77, -55, 3, 121, 127, 125, 21, 121, -59, -73, 103, -53, -16, -13, -55, -59, -78, 79, -12, -60, 76, 112, 10, -43, 70, 10, -79, 92, -114, 5, -119, -48, -45, 66, 52, 35, 16, 7, -79, -97, -29, 42, 16, -61, -55, 44, 91, -123, 65, -39, -99, -57, 92, 22, -94, 4, -108, -121, 80, 54, -104, 49, 17, -24, 113, -74, -126, 116, 109, -53, 44, 102, 98, 33, -71, -49, -8, -119, 30, -38, -113, -89, -112, 80, 99, 9, -106, -97, 125, 20, 14, -12, -27, 4, 25, 108, 15, -50, -76, -111, -113, 116, -122, -47, -21, 37, 32, 81, -60, -90, 92, -125, 56, 27, -114, -80 ]
The opinion of the court was delivered by Valentine, J.: This was an action brought by Mary H. Simpson and R. J. Simpson, wife and husband, against W. H. Hurd, to recover the sum of $5,650, claimed to be due to them as the purchase-price of certain real estate sold and conveyed by them to the defendant. The petition stated and showed a joint cause of action in favor of the plaintiffs and against the defendant for the purchase-price of the land. It appeared on the trial, however, that although the sale and conveyance was by a single deed executed by both the plaintiffs jointly, for a jóint consideration of $5,650, yet that each of the plaintiffs owned a separate portion of the real estate con - veyed, and it is therefore now claimed that each had a separate cause of action, and that the two together did not have a joint cause of action, and therefore could not maintain this action for the purchase-price, nor for any portion thereof. This question, however, was not raised in the court below by either a demurrer or an answer, and hence, in our former decision in this case, {ante, p. 245; same case, 26 Pac. Eep. 465,) it was held that the question of misjoinder was waived, and that the plaintiffs might therefore recover in the action jointly for whatever might still remain due of the purchase-price of the land, which the court below found to be, principal and interest, $2,240.57; and the court below rendered a joint judgment in favor of the plaintiffs and against the defendant for this amount. Of course this court did not intend to hold in our former decision, and would not hold if the question were properly raised, that where each of two persons has a separate cause of action, such two persons together might maintain a joint action to enforce their separate causes of action. (Hudson v. Comm’rs of Atchison Co., 12 Kas. 140; Swenson v. Plow Co., 14 id. 387; Palmer v. Waddell, 26 id. 352; Dobbs v. Stauffer, 24 id. 127, 128; Jeffers v. Forbes, 28 id. 174; McGrath v. City of Newton, 29 id. 365; City of Ellsworth v. Rossiter, 45 id. 237.) Separate causes of action in favor of separate individuals cannot, in the nature of things, constitute a single cause of action or a joint cause of action, or a cause of action in favor of any two or more or all of the several plaintiffs. But such causes of action are nevertheless causes of action in favor of the separate plaintiffs, and are not nullities. Nor would this court hold that a misjoinder of parties or an excess of parties would constitute a defect of parties. (McKee v. Eaton, 26 Kas. 226.) Nor would this court hold that a demurrer would lie in any case for a misjoinder of parties. (Civil Code, § 89; Town Co. v. Maris, 11 Kas. 147.) But this court intended to hold by our former decision in this case, and now holds, that under the facts of this case and the provisions of the civil code the defendant below, plaintiff in error, so waived any question of misjoinder which might possibly be in the case that the court below did not err as against defendant in rendering a joint judgment, as it did upon the facts of the case, in favor of the plaintiffs and against the defendant for the amount of the purchase-price of the land still remaining due; and therefore this court now holds that the motion for a rehearing in this case should be overruled. Under § 35, article 4, of the civil code, “all persons having an interest in the subject-matter of the action and in obtaining the relief demanded may be joined as plaintiffs, except as otherwise provided in this article;” and §37 of the same article provides as follows: “Sec. 37. Of the parties to the action, those who are united in interest must be joined, as plaintiffs or defendants; but if the consent of one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason being stated in the petition.” And under § 83, article 7, of the civil code, “the plaintiffs may unite several causes of action in the same petition; ” but, in order that they may do so, these “causes of action” must all belong to one of the several classes of actions mentioned in said section, “and must affect all the parties to the action, except in actions to enforce mortgages or other liens.” Now, where each of two plaintiffs has a separate cause of action, the separate cause of action of one of the plaintiffs would certainly not in any manner affect the other plaintiff; hence, under said § 83 of the civil code, such two separate “causes of action” could not be united in one and the same action. But if they should be so united, then there would be an improper joinder' of causes of action. (Jeffers v. Forbes, 28 Kas. 174.) And the question whether they could be so united or not might properly be raised by a demurrer to the petition, where the facts showing the same appear upon the face of the petition. (Civil Code, § 89, subdiv. 5; Jeffers v. Forbes, 28 Kas. 177; Barnes v. City of Beloit, 19 Wis. 93; Newcomb v. Horton, 18 id. 566. Also, in the same connection, see Fuller v. Fuller, 5 Hun, 595; Fisher v. Hall, 41 N. Y. 416.) In the opinion of the court in case of Jeffers v. Forbes, supra, delivered by Mr. Justice Brewer, the following, among other language, is used: “ The first ground of demurrer, as heretofore stated, is, that several causes of action were improperly joined; and the con tention is, that the setting aside of each of the six several deeds from the plaintiffs to the defendant, W. H. Forbes, was a separate and independent cause of action, in which only the grantor in such deed had any interest. . . . We think the contention of the defendants in error is correct, and that the ruling of the district court must be sustained on this ground. [ Such ruling of the district court was, that the demurrer should be sustained.] ... As each grantor is alone interested in obtaining the cancellation of his own deed, and as all the other plaintiffs would be improper parties in an action brought by the one alone to set aside his individual deed, so where all the parties unite in an action to have set aside six several deeds by separate grantors conveying separate interests, they unite six several causes of action in one suit, and six several causes of action in each of which only a portion of the plaintiffs is interested. . . . We conclude, then, that upon this ground the ruling of the district court is correct, and must be affirmed. We might stop here, but inasmuch as under § 92 of the civil code the court, upon the application of the plaintiffs, must allow them to file separate petitions for the different causes of action, it is due to the parties that we should examine further, and determine whether the second ground of demurrer, namely, that the petition does not state facts enough to constitute a cause of action, is sustainable.” In the ease of Barnes v. City of Beloit, supra, the supreme court of Wisconsin, in holding that a demurrer to the complaint upon the ground that several causes of action were improperly joined would lie, used the following, among other language: “But the complaint in the action sets forth separate causes of action, one in favor of each plaintiff, without being separately stated; and if so, several causes of action are improperly united. The counsel for the respondents, however, maintains that different causes of action, within the meaning of §5, eh. 125, R. S., are improperly united only where there are in the same complaint causes of action of the different classes mentioned in § 29 of the same chapter; as, for instance, where the complaint contains one count in tort and another on contract; and that where there are several causes of action, to wit, one in favor of each of several plaintiffs, in the same complaint, and all of the same class, the remedy is not by demurrer, but by motion. He cites several cases to this point, but they are all cases where several causes of action in favor of all the plaintiffs, affecting all the parties, and which might be united in the same complaint, were not separately stated. But in this case each separate cause of action does not affect all the parties to the action, and they could not be united without violating the provisions of § 29, aforesaid. In other words, the plaintiffs have no common pecuniary interest. The complaint would have been held bad before the code for multifariousness.” In the case of Fuller v. Fuller, supra, the following was decided : “Where, upon the trial of an action brought by two plaintiffs to recover for the conversion of a team of oxen, it appeared that each of the plaintiffs owned one of the oxen, held, that a motion for a nonsuit of both of the plaintiffs, on the ground that they had brought a joint action and shown a several interest, was properly denied.” (Syllabus.) In the case just cited, the case of Simar v. Canaday, 53 N. Y. 298, is referred to, which decides as follows: “A misjoinder of parties plaintiff is not a ground for dismissal of the complaint as to all the plaintiffs, if either has shown that he has a good cause of action. In such case the motion must be for dismissal of the complaint of the plaintiff in whom no right of action appears.” (Syllabus.) In the case of Fisher v. Hall, supra, the plaintiffs were the children and their husbands and the grandchildren of George Fisher. Their action was for the recovery of certain undivided interests in real property, and they brought their action as devisees under the last will and testament of Leonard Fisher, the father of George, by which will Leonard devised to George the property in question, with other property, in trust for the use of George’s children and their heirs. The plaintiffs were only a portion of the tenants in common of the real estate in controversy, and not all of such tenants in common, and the case was decided upon the theory that such an action could be rightfully maintained only by each tenant in common separately, or by all the tenants in common jointly, and not by simply a portion of the tenants in common. A judgment, however, in favor of the plaintiffs, who were only a portion of the tenants in common, was affirmed upon the grounds stated in the following language contained in the opinion of the court, to wit: “As tenants in common, representing less than the aggregate common interests in the estate, the plaintiffs probably would have been unable to have maintained a joint action, if that objection had been taken in time. . . . But as the facts of the case were fully stated in the complaint, showing that the plaintiffs did not represent all the common interests in the estate, if any objection was intended to be taken to their right to maintain the action on the account, it should have been presented at that time. By answering and taking issue on the case alleged, this objection was waived, and it became the duty of the court to try and determine the issue as it had been joined by the pleadings. If any objection existed to the form in which the action was brought, it was that the complaint contained several causes of action which had been improperly united, and that should have been raised by demurrer. As it was not, it toas waived, within the express language of section lj.8 of the code. The judgment should be affirmed with costs.” The above § 148 of the New York code, together with § 147 of that code, corresponds precisely with § 91 of the Kansas code, hereafter quoted. We know of no decision by any court of last resort adverse to any of the foregoing eases. There is a dictum, however, in the case of Masters v. Freeman, 17 Ohio St. 323, which comes near it. The ease of Bort v. Yaw, 46 Iowa, 323, which is supposed to be strongly against the above views, has no application whatever to this case, for the reason that under the statutes of Iowa a demurrer will not lie on the ground of a misjoinder or improper joinder of causes of action; nor can a defendant ever waive anything under the statutes in that state by merely failing to file such a demurrer and failing to raise the question specifically by answer. The contention on the part of the defendant below would seem to be substantially, that where two or more persons commence an action jointly, they must allege and prove a joirft cause of action in favor of all the plaintiffs* or all must utterly fail in their action; or, in other words, their contention is as follows: Where two or more persons sue jointly for anything, as for the purchase-price of land? and upon the trial it appears that each is entitled to a part, or that one or more of the number and not all is entitled to a part or the whole and the others not entitled to anything, then that the action must fail as to each and all, upon the principle that a cause of action in favor of each or any one or more of the plaintiffs less than all is not a cause of action in favor of all. This would certainly be a harsh rule, especially in the light of § 396 of the civil code, which provides among other things that “judgment may be given for or against one or more o.f several plaintiffs, and for or against one or more of several defendants.” It is certainly not the law that where two or more sue jointly all must recover jointly or all utterly fail. Mr. Pomeroy, in his work on Remedies and Remedial Rights under the Code Practice, §41, after first speaking of the equitable theory of judgments, then uses the following language: “The common-law theory of the judgment was in every respect different from this. Based upon the intensely arbitrary notion of joint rights and obligations, it regarded the demand of co-plaintiffs on the one side, and the liability of co-defendants on the other, except in a certain well-defined class of cases, as a unit, as utterly incapable of being severed, as something which must be established as to all or must fail as to all the parties. In no instance was affirmative relief granted to the defendant. Recoveries by plaintiff against plaintiff, or by defendant against defendant, were unknown. Since the right of the plaintiffs or the liability of the defendants was conceived of as one and indivisible, the recovery must be against all the defendants equally, and in favor of all the plaintiffs alike. As a general rule, therefore, independent of statute and of the few excepted cases, the judgment in a common-law action could not be severed, and be pronounced in favor of some plaintiffs and against the others, nor in favor of some defendants and against the others. No principle of the common-law procedure was more firmly established than this; and it represented all the technical and arbitrary notions which characterize the entire system. The codes are unanimous in their dealing with this subject. In the most direct and comprehensive language they reject these narrow dogmas of the law, and establish the liberal doctrines of equity, which they apply to the civil action without exception or limitation. The statutory provisions are so clear, definite and certain that no reasonable doubt as to their scope and meaning is possible. Although the purpose of the law-makers and the theory of their legislation are so plainly expressed, the courts have hesitated and halted in giving effect to this extent and in carrying out this design. The change made in the ancient order of things is so radical and sweeping that judges sometimes shrink from its contemplation, and seem to regard the statute as though it could not mean what its language declares. This evasion or ignoring of the legislative will has by no means been universal. In many states the courts have conformed to the letter and the spirit of the codes, and have by their decisions established the true principles which can and must be adopted and used in constructing and arranging the practical rules of procedure that regulate the recovery of judgments by means of the civil action.” There are cases in some of the states where they have no code like ours, or where the code is ignored and the common-law rules followed, in which it is held that the several plaintiffs in an action must all recover jointly or all utterly fail; and following this doctrine it is further held, that it makes no difference how many causes of action may be stated in the plaintiffs’ original pleading in favor of one or more of the plaintiffs; still if no joint cause of action is stated in favor of all the plaintiffs, the pleading may be demurred to upon the ground that no cause of action at all is stated in the pleading. Such can hardly be the law, however, in any state like this, where all the distinctions between actions at law and suits in equity and all the forms of all such actions and suits are abolished, and where we have in their place only one form of action, which is called a civil action, (Civil Code, § 10,) and where “judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants.” (Civil Code, § 396.) It would seem strange that a petition may contain several causes of action and yet not contain one. The petition, however, in the present case contains only one cause of action, and that is a joint cause of action in favor of both the plaintiffs and against the defendant. Where a petition, however, of several plaintiffs, which sets forth several causes of action, one in favor of each of two or more of the plaintiffs, but none in favor of all the plaintiffs, which is not the present case, such petition may be demurred to upon the ground of an improper joinder of causes of actions. (See the authorities above cited.) The argument is this: Section 83 of the civil code provides for the joinder of causes of actions, but provides that causes of action can be joined only where they all “affect,all the parties to the action, except in actions to enforce mortgages or other liens.” If the causes of action attempted to be joined do not affect all the parties, within the requirements of § 83, then there is an improper joinder of causes of action, and § 89 of the civil code provides that a demurrer will lie to a petition where “several causes of action are improperly joined;” (subdiv.5;) and§91 of the civil code then provides as follows: “Sec. 91. When any of the defects enumerated in section 89 do not appear upon the face of the petition, the objection may be taken by answer; and if no objection be taken, either by demurrer or answer, the defendants shall be deemed to have waived the same, except only the objection to the jurisdiction of the court, and that the petition does not state facts sufficient to constitute a cause of action.” Where a separate cause of action in favor of each of the several plaintiffs is stated in the petition, so as to subject the petition to a demurrer upon the ground that several causes of action are improperly joined, and where a demurrer upon such ground is interposed and sustained, then the proper practice is as follows: Each of the plaintiffs will be permitted, upon application, to file a separate petition for his or her own cause of action, and each of such plaintiffs will then be permitted to separately proceed upon his or her own separate petition. (Civil Code, § 92; Jeffers v. Forbes, 28 Kas. 180.) In all probability, however, each of the plaintiffs in the present case had an interest in the entire amount of the purchase-price of their land, and if the question of their interests, whether joint or several, had been properly raised, it would probably have been shown and found that their interests were joint. But what if they were not joint ? What harm could the defendant suffer by paying to the plaintiffs jointly just what he owed to them in severalty? He could lose nothing by such a transaction. But he did not need to litigate with them jointly if their claims were really separate, unless he chose to do so. In all cases a defendant may raise the “question of the misjoinder of the separate causes of action of several plaintiffs, either by demurrer or answer, and have such separate causes of action separated and litigated separately. But if a defendant chooses to permit such separate causes of action to be litigated together, he should not complain of a joint judgment against him, where there can be no complaint against it except that it is joint. As to the judgment, see Hall v. Jenness, 6 Kas. 365. It might be doubtful, however, in this ease, even if the plaintiffs were entitled to separate portions of the purchase-price of their land, and not entitled to the same jointly, and even if the question of misjoinder had been properly raised by the defendant, whether he could have defeated the plaintiffs’ joint action. Section 28 of the civil code provides that “a person with whom or in whose name a contract is made for the benefit of another . . . may bring an action without joining with him the person for whose benefit it is prosecuted.” In this case the contract was made with both the plaintiffs jointly; it was made in their names jointly, and upon its face it was for their benefit jointly. But suppose that it was really for their benefit severally: then may they not, as the contract was made with them jointly and in their joint names, bring the action in their joint names for the benefit of themselves severally ? See what is said in Walburn v. Chenault, 43 Kas. 352, 358. Upon the facts of this case, and with our views of the law, it is the opinion of this court that the judgment of the court below should be affirmed, and that the motion for the rehearing should be overruled, and it is so ordered. All the Justices concurring.	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The opinion of the court was delivered by Horton, C. J.: The facts in the ease are as follows: On the 1st day of March, 1884, and for a long time thereafter, the Winfield Bank was a corporation duly organized and existing under the laws of this state, having a capital stock of $50,000, divided into 500 shares of $100 each, which shares were issued and in the hands of various individual stockhblders. On the 23d day of April, 1884, J. C. McMullen, who was then the president of the bank, furnished to the proper assessor of the city of Winfield a statement, verified by his oath, showing that the bank was the owner of stock in a com pany or corporation of the assessable value of $22,000. This statement was filed in the office of the county clerk by the assessor, and upon an equalization of the assessment, the value of stock was increased to $24,420. Upon this statement, taxes were levied in the sum of $1,030.47, and extended against the bank upon the personal property tax-rolls of the county for 1884. The taxes not being paid within the time prescribed by the statute, a warrant for their collection, with penalties and costs, was issued and placed in the hands of the sheriff. The sheriff was about to proceed to collect the same when restrained by a temporary injunction, granted at the instance of the Winfield Bank, which had commenced an action to perpetually enjoin the collection of the same. On the 1st day of August, 1884, H. B. Schuler became the owner by purchase from J. C. McMullen and others of about four-fifths of the capital stock of the bank, and on the last-named day McMullen resigned his office as president of the bank and was succeeded in office by Schuler, who thereafter was the managing officer of the bank, at whose instance this action was brought. Upon the trial, the court below found in favor of the defendants, and rendered judgment for costs against the bank. Complaint is made of this ruling, and it is contended that the case of Bank of Leoti v. Fisher, 45 Kas. 726, is conclusive in favor of the plaintiff. In that case, no question of estoppel was presented, argued, or decided. Further, in that case, it’appeared that before the assessment was finally completed the board of county commissioners received' from the president of the Bank of Leoti a list of stockholders, with the amount of stock held by each on March 1, 1889. This action is not prosecuted by the stockholders of the Win-field Bank, and it is not alleged or shown that the stockholders have ever asked that their individual stock might be assessed for 1884. It does not appear that the stock held by the several stockholders was assessed for 1884. H. B. Schuler succeeded J. C. McMullen as president, but the action is not brought in his name, but in the name of the bank itself.- The facts presented upon the trial disclose that all of the action taken by the defendants in the assessment of the stock and in the levying of the taxes thereon was the result of the return of the Winfield Bank, duly verified by the oath of its president. The bank represented, through its managing officer, that on the 1st day of March, 1884, it had stocks in a company or corporation of the actual value of $22,000. This statement.was verified by the oath of the president, its managing officer; therefore we do not think there are any equities existing in favor of the plaintiff. The plaintiff asks in this case equitable relief. It does not make a case showing that it is entitled to the relief demanded. The mode of assessing stock in a state bank is prescribed by ¶ 6868, Gen. Stat. of 1889, but, under the statute, the bank may pay'the taxes assessed upon the individual stock of its stockholders and have a lien thereon. If the Winfield Bank had made a proper return under the oath of its president or managing officer to the assessor, then, of course, the statute would have to be complied with literally. (Bank of Leoti v. Fisher, supra.). But the action of the bank and its president have caused all the trouble complained of. The judgment of the district court will be affirmed. All the Justices concurring.	[ -12, 110, -96, -68, 106, 100, 34, -70, 99, -95, -91, 115, -23, -54, 4, 105, 87, 45, 69, 112, -60, -77, 55, -29, -37, -13, -13, -51, -77, 90, -26, -41, 77, 48, -54, 93, 102, -56, -59, -76, -50, 5, 41, -55, -39, 8, 52, 46, 48, 75, 17, 14, -13, 42, 29, 66, 105, 45, -23, -67, 112, -7, -66, -115, 77, 23, -109, 0, -120, 1, -40, 46, -104, 51, -64, -55, 118, -90, -122, -44, 105, -87, 12, 38, 103, 1, 57, -49, -32, -104, 38, -1, -97, -89, -110, 80, -86, 44, -74, -99, 118, 16, -126, -4, -30, -116, 28, 108, 5, -53, -106, -109, -123, 124, -102, 91, -37, -93, 48, 113, -49, 64, 93, 6, 58, 27, -98, 84 ]
Opinion by Simpson, C.: Skinner commenced an action in the district court of Sedgwick county on a promissory note for $2,000, signed by J. C. Brunton and wife and Albert Law,, and indorsed by James Goodacre — who did not write his name but made his mark — bearing interest at the rate of 12 per cent, per annum after maturity, the interest to be computed semi-annually, and to become principal after each semi-annual date; containing also these provisions: “The sureties, guarantors and indorsers on this note severally agree and do hereby waive demand or presentation of this note for payment to the makers hereof, and waive protest and notice of protest; and do hereby grant to any holder of this note the right to grant extensions on this note to makers without notice to them or either of them, hereby ratifying such extensions and remaining bound on this note as if no extension had been obtained. All such extensions in the aggregate not to be longer than one year from the maturity of the note.” This instrument was secured by a mortgage executed by Brunton and wife on real property situate in Sedgwick county,, containing among other provisions one that the buildings on mortgaged premises should be insured, and in case of loss the insurance should be paid to the mortgagee, if mortgage should be due, or become a trust fund for payment if not due, or should be used in rebuilding. Brunton and wife and Law made default. Goodacre filed an answer, admitting he signed the note as claimed, but alleged there was due only the sum of $2,000; that he signed the note as surety for Brunton; that no diligence had been used by the plaintiff in the collection of the note; that Brunton was permitted to remove property of the value of $1,000 and five horses of the value of $700 from the county of Sedgwick, after the plaintiff was notified that the said Brunton was about to remove said property, and this after the indebtedness had accrued, to wit, on the 1st day of August, 1887. He further alleged that the payment of said note was not demanded of Brunton or of the defendant Law within a reasonable time after the maturity of the same, and that this defendant was not notified of the default of the principals on said note, or of the protest of the same; that he is unskilled in business affairs, and was, prior to the commencement of this suit, wholly ignorant of any other form of a promissory note than the most simple form; that he is unable to read or write, and has to rely on others to explain to him the contents of written or printed instruments; that at the time of the execution of said note the said plaintiff was present, and the defendant relied upon the plaintiff to inform him of the contents of said instrument, and that the plaintiff wholly failed and neglected to explain or read to the defendant all parts of the note in addition to the usual short form of promissory notes; that the plaintiff did state to this defendant that it was a note for $2,000, payable in 90 days, whereby this defendant was misled by plaintiff as to his obligation upon said note, and that all the clauses of said note in addition to the usual short form are void as against this defendant. This answer was verified and filed on the 19th day of August, 1887, this action being commenced on the 20th day of July of the same year. The plaintiff filed a reply to the answer of Good-acre that contained only a general denial. This was all of the pleadings. The case was called for trial on the 29th day of May, 1888, after having been pending for a year, and the defendant, Good- acre, demanded a jury to try the issues in said cause. The trial court refused to order a jury, to which ruling exceptions were saved. Goodacre, through his counsel, then asked leave of the court to amend his answer, by adding thereto after the word “suit,” on line 13, these words: “Whereby said defendant has been prejudiced, and is damaged, and has been unable to proceed against the said Brunton to prevent him from removing his property out of the jurisdiction of this court, and disposing of the same for the purpose and with the intent and to the effect of cheating, hindering and delaying his creditors in the collection of their debts; that the said Brunton is now insolvent, and that nothing can be made off him by execution; and that if, at the time said note had become due, due diligence had been pursued in the collection of the said note, that it could have been made off of said Brunton.” The court refused leave to amend the answer, and to this ruling exceptions were duly taken. Goodacre then filed a written motion for leave to file a supplemental answer, as follows: “Now comes the defendant, John Goodacre, and asks leave of the court to file a supplementary answer in the said cause, alleging the following facts which have occurred since the filing of the original answer of this defendant in this case, to wit: That on, to wit, the 1st day of May, 1888, there was and had been a long time prior to the commencement of this suit a mill situated on the immediate premises described in plaintiff’s petition, of the value of, to wit, $3,000; that on said 1st day of May, 1888, the said mill was by fire totally destroyed; that the said defendants Law and Brunton have been in default in this action ever since the answer day therein, and that this defendant has frequently requested the said plaintiff, during and at each of the last two terms of said court before this one, to take judgment as and upon the default against said defendants Law and Brunton, and to foreclose their said mortgage upon the said property, to have the said property sold to satisfy the said debt, which request the said plaintiff has refused to grant; that by reason of the above premises, the said security on the said note, to wit, the said real property mentioned in plaintiff’s petition has been greatly depreciated in value, and that by reason of the negligence of the said plaintiff in the prosecution of this case as against the said defendants Brunton and Law; that if the said mortgage had been foreclosed with due diligence, that the said property was amply sufficient to have satisfied the said note; that the said Brunton is now insolvent, and that at the time of the commencement of this action he was solvent; whereby the defendant prays judgment for costs.” The motion was overruled, and exceptions were noted. “ It is asked in open court by and between the parties to this suit that said application be duly verified, and the defendant now asks time to give them such notice as the court may deem sufficient, on the presentation of this motion to the court; to which plaintiff objects, and the court denies application to make further showing. Whereupon attorney for defendant, Mr. Bentley, interrogates Mr. "Vermilion, attorney for plaintiff, as follows: £Mr. Vermilion, I want to ask you if one of the grounds of your objection to the consideration of this motion is that you have not had sufficient notice of it?’ A. ‘That is one of them, and I object on all other grounds.’ Defendant asks time to give plaintiff sufficient notice of this application, and asks to make a showing in court of the fact, in addition to the facts I have already given in here in an answer sworn to, that my client is unskilled and unable to read or write, also the fact that I was not aware of the fact that the mill had burned down until this morning; to which plaintiff objects, and the court denies the request, exception being duly noted by defendant. The court requires the parties to proceed to the trial, of the case. Plaintiff in open court consents to take judgment for the amount due on indebtedness claimed in plaintiff’s petition, $2,000, and interest from the 20th day of January, 1887; and thereafter the plaintiff also produces his original note and mortgage.” Skinner was then called as a witness, and on being asked a question, the attorneys of Goodacre objected to any evidence until after a jury had been duly impaneled to try the cause. This objection was overruled, and excepted to. The examination of Skinner in chief and on cross-examination by the attorneys of Goodacre was then proceeded with, and at its conclusion the plaintiff rested. Goodacre was then sworn and offered as a witness for the defendant. The plaintiff’s attorneys objected to the introduction of any evidence for the de fendant because there is no defense pleaded in the answer. This objection was sustained, and duly excepted to, and final judgment rendered for Skinner for $2,329.60, and for the sale of the mortgaged premises. Goodacre brings the case here for review. I. The principal error complained of is the refusal of the trial court to impanel a- jury to try the cause, at the demand of Goodacre. If Goodacre’s answer did not state a cause of defense, there was no issue for a jury to try. We think his original answer did not state a defense to the action. Good-acre signed the note on the back thereof at the time of its execution, and before its delivery to Skinner; and so far as the face of the note is concerned he was a guarantor, but he avers in his answer that really he was surety for Brunton; but as surety he waived demand, protest and notice of protest (if necessary), and extension of time to the makers, not exceeding one year. The note he signed as surety for Brunton was secured by a mortgage on real property belonging to Brunton; and under such conditions, if Brunton was removing and disposing of his personal property, and rendering himself unable to pay the note, the surety, and not Skinner, ought to have invoked the aid of the law. His alleged defense that he was unskilled in business affairs, and ignorant of any form of promissory note but the short form in common use, and that at the time of the execution of said note the plaintiff was present, etc., does not allege fraud on the part of the plaintiff. He admits the execution of the note, and that $2,000 was due on it, and judgment for that amount, with interest, was rendered. If he was a surety, he was not entitled to demand protest and notice thereof. Neither does the delay in bringing suit release him, as has been decided recently by this court in Ingels v. Sutliff, 36 Kas. 444. There being no defense pleaded in the original answer, the trial court did not err in refusing a jury trial. II. The proposed amendment to the answer came very late, and did not create an issue.if allowed, and no error follows the action of the court.in refusing to allow it. The applica tion to file a supplemental answer after a case is called for trial requires a very strong showing to rebut an irresistible inference. Supplemental pleadings can only be allowed on notice, and as the issues made up might be subject to material change by the facts occurring after issue joined, the supplemental pleading ought to be offered within a reasonable time after the occurrence of the fact that makes it necessary. There is absolutely no legal showing in this record for the filing of a supplemental answer. III. The last contention is, that the court improperly overruled the motion for a new trial on the ground of newly-discovered evidence. The affidavit of Goodacre, if uncontradicted, would not have been sufficient to have authorized a new trial, and as the facts alleged by him were all disproved in the affidavits filed against the motion, the court could not err in refusing to grant a new trial. If as vigorous fight had been made before the cause was called for trial and the trial commenced as was made after these two things had happened, the record would have probably presented some other questions. We recommend an affirmance of the judgment. By the Court: It is so ordered. All the Justices concurring.	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The opinion of the court was delivered by Horton, C. J.: An information was filed in the district court of Shawnee county charging Joseph J. Spendlove with murder in the first degree, in killing and murdering Gustave Werner. He was tried at the September term, 1889, of the district court of said county, convicted of murder in the second degree, and sentenced to imprisonment for the term of 21 years. He appealed, and this court reversed the judgment at its January term, 1890. (The State v. Spendlove, 44 Kas. 1-11.) After the case was reversed, and on the 27th day of Septemder, 1890, without leave of court and without notice to the defendant, the county attorney filed an amended information, in which he charged the defendant with murder in the first degree. The defendant filed a motion to quash this amended information, and set up, with others, the following reason: “That said amended information was filed by the county attorney after the defendant had entered a plea of not guilty in the case, and without leave of the court, and without the notice, knowledge or consent of the defendant.” After the motion to quash was filed, but before it was passed upon, the prosecution applied to the court to indorse the names of additional witnesses upon the amended information. The defendant objected, but the court granted the application, and thereupon the defendant excepted, and gave notice that unless another copy of the amended information, with the additional names indorsed thereon, was served upon the defendant, he would, at the proper time, object to being tried upon the amended information. The motion to quash was overruled by the court, to which ruling the defendant at the time ex- cepted.. The defendant demanded a trial upon the old information, refused to plead to the amended information, and objected to the introduction of evidence under the amended information. All of these motions were overruled by the court, and excepted to by the defendant. He was tried upon the amended information, found guilty of manslaughter in the first degree, and sentenced to imprisonment in the penitentiary for 16 years. From this he appeals to this court. Section 72 of the criminal procedure reads: “An information may be amended in matter of substance or form at any time before the defendant pleads, without leave. The information may be amended on the trial as to all matters of form, at the discretion of the court, when the same can' be done without prejudice to the rights of the defendant. * No amendment shall cause any delay of the trial, unless for good cause, shown by affidavit.” It has already been decided by this court that, after a new trial has been granted, the attorney for the state, with consent of the court, may enter a nolle prosequi, and thereafter the defendant may be put upon his trial and convicted upon a new information, charging the identical offense set forth in the prior one. (The State v. Hart, 33 Kas. 218.) The amended information in this case was filed on the 27th of September, 1890. The motion to quash was filed on the 13th day of December, 1890. This motion was overruled on the 26th day of January, 1891. No motion was made to strike the amended information from the files. When the motions to indorse additional names and to quash the amended information were presented to the court, the court’s attention was thereby called to the matters contained in the new information, and when one motion was allowed and the other overruled, the court thereby gave permission for the new information to be substituted for the old one. The amended # # information, therefore, was filed with leave of the court. From and after January 26, 1891, the amended information occupied the same position as if the court had expressly allowed it to be filed. When the defendant refused to plead to this information, the court properly directed a plea of not guilty to be entered. The amended information was filed in ample time, and as the trial court permitted the same to be substituted, no error prejudicial to the rights of the defendant can be fairly founded upon the rulings of the court in refusing to try the defendant upon the original information, or in requiring the defendant to be tried upon the amended or substituted information. Upon the trial, after instructing the jury concerning murder in the first and the second degrees, the district court further instructed the jury that— “Next, as to manslaughter in the first degree. To constitute manslaughter in the first degree, the act must be the killing of a human being without a design to effect death, by the act, procurement, or culpable negligence of another person, while such other person is engaged in the perpetration of, or attempting to perpetrate, some crime or misdemeanor, not amounting to felony, in case where such killing would be murder at the common law. . . . In this case Joseph J. Spend-love is charged with the crime of murder in the first degree, as recited in the amended information, and while this is nominally the charge made in the amended information, in contemplation of law, however, it includes the charge of murder in the second degree, and the charge of manslaughter in each of the four degrees described in the statutes of the state, as already explained, and the amended information would allow a verdict of guilty in any of these minor offenses, provided the evidence in the ease would warrant such a verdict. ... If the guilt of the defendant is not proven to be that of murder in the first degree or second degree, or of manslaughter in the first degree, beyond a reasonable doubt, then you may proceed to inquire whether he is guilty of manslaughter in the second degree.” These instructions were properly excepted to. It is contended upon the part of the defendant that it was error to give the instructions referred to, and it is further contended that there was no evidence introduced upon the trial proving or tending to prove a case of manslaughter in the first degree. We are therefore called upon to construe §12 of chapter 31, of the act regulating crimes and punishments. (Gen. Stat. of 1889, ¶ 2133.) That is the section under which the defendant was convicted. It reads:' “ The killing of a human being, without a design to effect death, by the act, procurement or culpable negligence of another, while such other is engaged in the perpetration, or attempt to perpetrate, any crime or misdemeanor, not amounting to a felony, in cases when such killing would be murder at the common law, shall be deemed manslaughter in the first degree.” This section appears in chapter 48 as § 7 of the Territorial Laws of Kansas for 1855. It has been continued in force since that time. (Terr. Stat. of Kas. 1859, ch. 28, § 7; Comp. Laws of 1862, ch. 33, §7; Gen. Stat. of 1868, ch. 33, §12; Comp. Laws of 1879, ch. 31, § 12; Gen. Stat. of 1889, ¶ 2133.) In support of the contention of the defendant, it is said that §12 of chapter 31 was borrowed from Missouri; that, as the supreme court of that state has decided that, to bring a case under this statute within manslaughter in the first degree, it is necessary to show the accused was committing, or attempting to commit, some misdemeanor other than intentional violence upon the person killed; that the facts in this case conclusively establish that the instruction concerning manslaughter in the first degree was wholly applicable; and that the verdict was without any evidence whatever to support it. The claim is, that the jury might as well have found the defendant guilty of manslaughter in the first degree in assisting Werner in the commission of self-murder, or of manslaughter in the first degree for the willful killing of an unborn child. Our statute was evidently taken from Missouri, as the Missouri statute is identical with it. (Rev. Stat. Mo. 1879, § 1238.) But the rule of Bemis v. Becker, 1 Kas. 217, that whatever construction has been given to the statute by the courts of Missouri must follow it to this state, does not hold good, because the supreme court of Missouri, prior to 1855, when this statute was incorporated into the body of the criminal laws" of Kansas, had not judicially construed or interpreted it. In 1871, long after the statute referred to was first adopted by the legislature of Kansas, the supreme court of Missouri, in The State v. Sloan, 47 Mo. 604, construed the statute as before stated. In support of its decision it referred to the following cases from New York: The People v. Butler, 3 Parker’s Crim. Rep. 377; The People v. Sheehan, 49 Barb. 217; The People v. Rector, 19 Wend. 605, In The State v. Downs, 91 Mo. 19, decided in 1886, the case of The State v. Sloan was approved. Prom 1838 to 1867, and for some time after that year, New York had a statute similar to the statute of Missouri and our own. (2 N. Y. E. S. 656-7.) Since then the statute has been changed in New York, and manslaughter in the first degree is now defined as follows: “In a case other than one of those specified in the §§183, 184, and 185, homicide, not being justifiable or excusable, is manslaughter. Such homicide is manslaughter in the first degree, when committed without a design to effect death, either, (1) by a person engaged in committing, or attempting to commit, a misdemeanor, affecting the person or property either of the person killed, or of another; (2) in the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon.” (Vol. 2, N. Y. Rev. Stat. of 1890, page 1382.) All of the decisions referred to by the Missouri supreme court are decisions of inferior courts in the state of New York, excepting the case of The People v. Rector, 19 Wend. 605. In that case, Cowen, J., expressed one opinion. Bronson, J., delivered a different opinion, and the chief justice finally decided the case, principally agreeing with Bronson, J., but saying little, if anything, concerning the construction of the statute relating to manslaughter in the first degree. In the case of Darry v. The People, 10 N. Y. 120 (1854), opinions were delivered by Selden, J., Denio, J., and Parker, J., favoring a new trial. Three other members of the court of appeals concurred in their views, and reversed the judgment of the supreme court. Selden, J., in referring to The People v. Rector, 19 Wend. 569, said: “This subdivision was incidentally and partially consid ered, but the examination given to it was cursory merely, and no attempt was made to subject it to the rigid analysis which is indispensable to the development of its true meaning.” Denio, J., in his opinion said: “ I have not overlooked the opinions incidentally expressed by Chancellor Walworth and Mr. Justice Bronson, in The People v. White, (24 Wend. 520,) and in The People v. Rector, (19 Wend. 569.) In neither of these cases was this question presented; and in both of their opinions, those learned judges were dissentients from the judgment of the court upon the points decided in those cases.” Parker, J., in criticising The People v. Rector, 19 Wend. 591-608, said: “But it has been said that the 6th section of the statute defining manslaughter in the first degree is not applicable to a case where the party causing death without design is engaged in an assault and battery. I find no warrant for such a position. No exception of that offense is made in the statute. The language is, ‘the killing of a human being, without a design to effect death, by the act, procurement, or culpable negligence of another, while such other is engaged: (1) in the perpetration of any crime or misdemeanor not amounting to a felony; or, (2) in an attempt to perpetrate any such crime or misdemeanor, in cases where such killing would be murder at the common law, shall be manslaughter in the first degree.’ This section is thus made expressly applicable to all crimes and misdemeanors not amounting to felony, and it is certain an assault and battery is one. The statute nowhere confines this section and the third subdivision of the section defining murder to other offenses than those of intentional violence. It is said that this plain construction of the act would make every case murder, because, being engaged in an assault, and death ensuing, it becomes the felony of manslaughter, and being engaged in such felony, and death ensuing, it is murder. But it leads legitimately to no such result. The intent regulates the crime, unless otherwise provided. If the party intends an assault and battery, and death ensues without design, he is guilty of manslaughter. If he intends a mayhem or other felony to the person, and death ensues without design, it is murder. . . . It is objected, that if my construction of the first degree of manslaughter is correct it would cover every other degree of manslaughter. For in every case provided for in the lower degrees there is also an assault and battery, and death ensues. 1 answer, the general description in the first degree cannot be considered as applicable to cases particularly described in the lower degrees. The first degree gives the general desription; the lower degrees the exceptions, as where the act is done in the heat of passion, etc. It is far more consistent to hold that the description in the first degree does not apply to cases described in the second and third degrees, than to hold it is not applicable to any case of assault and battery where death ensues. There is much less violence done to the language of the section by my construction than by that against which I contend. There is reason in holding that the first section, being in general terms, is not applicable to cases specially described. Though within the general language, it may well be supposed the legislature did not intend to include them, because they are provided for specially in other sections. But it seems to me it is refusing obedience to the statute to say that it is not intended to be applied to any case of assault and battery, when no exception of that offense is made.” Heretofore we have never been called upon to construe said §12. It is an original question with us. The decisions of Missouri were made subsequent to the adoption of our statute; therefore they are not conclusive. The Missouri supreme court has followed certain decisions of New York, and construed its statute according to those decisions. If we are to go to New York for decisions construing this statute, the views of the judges in Darry v. The People, supra, are more satisfactory to us than any others. We prefer to take the construction of the statute by the highest court of the state, rather than from inferior tribunals. The statute is “expressly applicable 1° crimes or misdemeanors not amounting to a fe]ony; and an assault and battery is one.” There are no exceptions as to any crime less than a felony. Intentional violence upon the person' killed is not excluded. If we follow the Missouri construction, we virtually wipe out said § 12, because, as judicially interpreted by that court, it can have but little operation. We therefore conclude that the instructions referred to were not inapplicable to the case, and that there was sufficient evidence introduced upon the trial to authorize the jury to find the defendant guilty of manslaughter in the first degree. The defendant requested the district court to give the following instruction: “The law at the outset clothes the defendant, in a criminal case involving the charge of murder, with the presumption of innocence, and when the proof tends to overthrow this presumption and to fix upon the defendant the perpetration of such a crime, the latter is permitted to support the original presumption of innocence by proof of good character for peace and quietness, and the good character of the defendant for peace and quietness is itself a fact in the case. It is a circumstance tending, in a greater or less degree, to establish his innocence. And therefore, in the present case, the good character of the defendant, if proven to your satisfaction, is to be considered by you, in connection with the other facts in this case, in determining the guilt or innocence of the defendant.” The court refused this instruction, but gave the following: “There has been evidence offered by the defendant respecting his good character as a peaceable, orderly, law-abiding citizen. Such evidence is competent and proper to be considered by the jury, in connection with the other evidence in the case, in determining the guilt or innocence of the defendant respecting the matters charged against him. Such evidence is particularly important for the defendant in cases where there may be doubt as to his guilt, and in all such cases good character, if clearly proven, should resolve such doubt, whatever it may be, in favor of the defendant; but in cases where all the evidence in the case clearly shows guilt beyond a reasonable doubt, then former good character would be of little avail.” The instruction given, as was stated in The State v. Douglass, 44 Kas. 618, is subject to criticism. Evidence in criminal cases of the good character of the defendant may be introduced for the purpose of disproving guilt; and if, upon the whole of the evidence introduced, including that of the* good character of the defendant, the jury entertain a reasonable doubt as to the defendant’s guilt, he should be acquitted. (3 Am. & Eng. Encyc. of Law, 110, 111.) But the instruction given is not as bad as those condemned in Kistler v. The State, 54 Ind. 400, and The People v. Doggett, 62 Cal. 27. In the Kistler ease, the court instructed the jury that “where the guilt is positively proven, then good character will not benefit the defendant.” In the Doggett case, the court instructed the jury “that good character was only applicable in doubtful cases to turn the scale, when the jury was in doubt, from the other evidence, as to whether the defendant was guilty or not.” The last two or three lines of the instruction given ought to have been omitted, but we are unwilling to say that the instruction was so erroneous or misleading as to demand a new trial. After the district court had instructed the jury at very great length concerning murder in the first and the second degree, and the various degrees of manslaughter, it further instructed the jury as follows: “If you do not find beyond a reasonable doubt that the defendant, Spendlove, deliberately fired a shot at Werner in the front room of the building, and that Werner retreated in attempting to get away from the defendant into another room, and that the defendant, Spendlove, followed the deceased to the door or opening into another room for the purpose of further assaulting the deceased; or if you have a reasonable doubt upon either of these propositions, then if Spendlove did not commence the combat by firing deliberately a loaded pistol at the body of Werner within striking distance of said Werner, but that Werner and Spendlove went to or near the door or entrance to the back room, and the combat there took place, then I instruct you — ” And thereupon gave ten instructions, marked A, B, C, D, E, F, Gr, H, I, and J. D was as follows: “If the evidence leaves you in doubt as to what the acts of the deceased were at the time or immediately before the killing, you may consider the threats and character of the deceased in connection with all the other evidence in determining whether he was probably the aggressor.” It is contended that the language just prior to A, B, C, etc., was misleading; that it prevented the jury from considering all the instructions before reaching a verdict; that they were prevented from considering the theory of the defense until after they had considered all of the evidence of the prosecution and were in doubt upon that of the guilt of the defendant. In addition to the instruction D, concerning threats, etc., of the deceased, the court also instructed the jury in J, as follows: “If you should believe from the evidence that Werner made threats towards or against Spendlove, or that he entertained ill feeling towards him, or that he was a wicked or depraved person, this would not excuse or justify Spendlove or any other person to-make an assault on him or kill him. No person can take the law into his own hands to correct his real or imaginary grievances or wrongs. But if you believe from the evidence that the deceased, Werner, was an irritable and quarrelsome man, or that he had made threats to put Spendlove out of the building; that he would cut his throat if he didn’t get out, or run his scissors through him if he did not get out; or, that if he fooled with him he would learn a trick or kill him; or, if on the day of the shooting he said, if Spendlove was not out of there inside of 24 hours he would be carried out; that on the evening of the occurrence Werner was nervous, sweating, and talking about his trouble, and that he was going to put Spendlove out; and that Werner had been indicted for selling intoxicating liquors and accused Spendlove of having him indicted and was mad about it; and if you are satisfied that several persons saw Werner have a revolver with him a few days before the shooting, and that but one revolver was found at the place, and that was found between Werner’s legs, and no explanation has been made of what became of the revolver seen in Werner’s possession before the shooting, then I instruct you that you should take such of the above matters, as you believe to be established by proof, into consideration in determining the part Werner took in the affair and in determining the guilt or innocence of the defendant.” We think that the prefix to A, B, C, etc., might have been properly omitted; and yet, in view of all the instructions given, we do not think that it diverted the attention of the jury from all the instructions given, or withdrew any part of the instructions, or the effect thereof, from the jury, to the prejudice of the rights of the defendant. At the last trial the threats and actions of the deceased were fully commented upon, and the attention of the jury directly called thereto. If the jury had found the defendant guilty of murder in the first or second degree, the argument would be much stronger in favor of the theory that the language just prior to A, B, C, etc., might have been prejudicial. But with a verdict of manslaughter in the first degree only, the jury of necessity, under the instructions of the court, must have considered A, B, C, etc., with the other instructions, and upon all the instructions and the evidence they reached the conclusion that the defendant was guilty of manslaughter in the first degree, but not of any degree of murder. The criminal code expressly provides that, on an appeal, the supreme court must give judgment without regard to technical errors and defects or to instructions which do not affect the substantial rights of the parties. (Sec. 293, Gen. Stat. of 1889, ¶ 5355.) The errors which we have referred to, in our opinion, are technical, not substantial. The defendant has twice been tried. Upon the first trial, the verdict against him was for murder in the second degree. On account of the failure of the trial court to give a proper instruction concerning the threats of the deceased, we reversed that conviction, and granted a new trial. We all concurred in the judgment of reversal; but some things were said in the opinion, in the way of argument, about insufficient or unsatisfactory evidence, that it was not necessary for all of us to approve as conclusions of fact from the evidence introduced. Spendlove has been convicted again; this time of manslaughter in the first degree. There is evidence in the record sustaining the conviction. The other alleged errors presented to us have also been fully considered. We do not think any of them sufficient to demand another trial. The evidence, although not as satisfactory as we could wish, convinced the last jury of the guilt of the defendant of manslaughter, and the district court has approved that verdict and passed sentence thereon. Upon the record, we decline to interfere further. The judgment of the district court will be affirmed. Johnston, J., concurring.	[ -80, -18, -100, -116, 42, 96, 42, -104, -62, -79, -16, 115, 105, -46, 0, 57, 50, 77, 85, 121, -60, -105, 119, -127, -78, -13, -61, -41, -13, 124, -66, -43, 74, 48, 66, -51, -26, 72, -61, -34, -114, -122, -88, -64, 90, 64, 48, 59, 126, 10, 97, -66, -77, 106, 30, -53, 41, 44, 75, -82, 80, -79, -126, -49, -97, 7, -125, -106, -76, 6, 88, 47, -104, 57, 0, -8, 51, -74, -122, -12, 69, -119, 45, 98, 99, 49, -60, -81, 48, -119, 46, 118, -115, -89, -103, 65, 105, 12, -74, -99, 115, 52, 15, 106, 101, 23, 81, 104, -128, -121, -78, -101, 79, 52, -118, -13, -21, 36, 32, 113, -60, 102, 124, 102, 81, -5, -57, -48 ]
Opinion by Strang, C.: This was an action on appeal from the judgment of a justice of the peace. The bill of particulars contained two counts — the first one stating a cause of action in trespass upon real property, arising in the county of Norton and state of Kansas; the second count stating a cause of action in trespass to real property, arising in the county of Furnas and state of Nebraska. The defendant demurred to the first count, and also separately to the second count of the bill of particulars. The demurrer to each count was overruled, and exceptions allowed. The ease was then tried by the court and a jury, resulting in a general verdict for the plaintiff against the defendant for the sum of $10, upon which the court entered judgment for that amount, and costs of suit amounting to $61.10. A motion for new trial followed, and was overruled, and the defendant below brings the case here for review, and alleges that the court erred in overruling his demurrer. We think the court erred in overruling the demurrer to the second count of the bill of particulars. This count stated a cause of action in trespass to real estate arising in the state of Nebraska. The action of trespass to real estate is a local action. (Sumner v. Finegan, 15 Mass. 280, 284; Livingston v. Jefferson, 19 Am. Rep. 400; Cooley, Torts, 471, 472.) The cause of action stated in the second count having arisen in the state of Nebraska, and being a local action, the courts of Kansas could not take jurisdiction of the same, and therefore the demurrer to the second count should have been sustained. The verdict is general upon both counts. The judgment follows the verdict. It must be reversed. It is so recommended. By the Court; It is so ordered. All the Justices concurring.	[ -46, -4, -72, 44, 90, 96, 34, -100, 97, -79, -74, 83, 109, -53, 21, 121, -42, -19, 113, 105, 78, -73, 7, -62, -74, -77, -47, 85, -69, 77, -26, -41, 76, 48, 66, 21, 6, -62, -91, 28, -114, -114, 8, 68, -63, 74, 52, 123, 64, 3, 49, -113, -13, 42, 24, -61, 105, 44, -53, 33, 81, -8, -54, 21, 95, 19, 33, 38, -100, 71, 92, 114, -112, 57, 3, -24, 115, -90, -122, 116, 37, -101, 41, -26, 98, 33, 37, -17, -72, -120, 47, 81, -115, -89, -79, 88, 99, 40, -74, -99, 117, 20, 7, 122, -28, -100, 29, 108, 7, -50, -108, -111, -113, 52, -110, 87, -1, 19, 48, 97, -60, -26, 92, 71, 18, -101, -113, -99 ]
The opinion of the court was delivered by Johnston, J.: This action was brought by David Taylor to set aside a conveyance made by the Dunlap Stone & Lime Company to Richard Pickens, as trustee for the company, which trust it is alleged he violated, and that he was endeavoring to apply the-property intrusted to him to his own usé and benefit, instead of to the purposes intended by the company. David Taylor was a judgment creditor of the company, and brought the suit, not only to set aside the conveyance, but to prevent Pickens or the corporation from selling or mortgaging the property of the company which he had levied upon to satisfy his judgment, and to have the land adjudged subject to the execution, and that he be permitted to sell it in satisfaction of his judgment. There were charges of fraud and collusion made against Pickens and the company in absorbing the property of the company for the payment of fictitious claims, and in endeavoring to defeat the plaintiff below in obtaining satisfaction of his claim and judgment. The case was here before, and the nature and allegations of the same have been fully stated. (Taylor v. Stone Co., 38 Kas. 547.) There were counter-charges of fraud made against Taylor, who was a member of the corporation and assisted in its organization, but the final trial of the case has resulted in Taylor’s favor, and the general findings which have been made sustain the allegations made against the plaintiffs below, and overthrow those made against Taylor. The testimony in the record is sufficient to sustain the findings and judgment of the court. It was adjudged and decreed that the conveyance made by the company to Pickens was invalid, and that the company was the owner of the land at the commencement of the suit, subject only to a lien in favor of the Kansas Loan & Trust Company for $109.25, with interest, and therefore subject to sale to satisfy the judg ment and execution of the defendant in error. It appears that the land was sold under the execution to Taylor on July 27, 1886; the sale was confirmed by the court on October 15, 1886; and October 30, following, a sheriff’s deed was executed to Taylor in accordance with the direction of the court. There is testimony offered by the plaintiffs in error, that, after the sale and conveyance to Taylor they proposed to pay Taylor the amount of his claim, and they asked the court to fix a short time after judgment in which Pickens could pay off the amount due to Taylor, which the court refused. This refusal is substantially the only objection made against the judgment of the court below. It does not appear, however, that a tender of the money was actually made, nor was any specific amount named or proposed to be paid. Neither is it shown that Pickens had any ability to pay the amount of the judgment for which the land was sold. More than that, no proposal to pay Taylor was made until after the judgment had been extinguished by sale and a conveyance of the land. Taylor was a bona fide judgment creditor and entitled to have the property of the company subjected to his judgment, and for that purpose was entitled to have any fictitious or fraudulent conveyance held by Pickens against the property canceled and set aside. The property was levied upon as the property of the company, and that it was the property of the company is clearly shown by the testimony. The claim and lien of Taylor appears to have been paramount and superior to that of Pickens, if he held any claim against the company or its property. The sale upon execution appears to have been fair and regular. It was confirmed by the court, and a formal sheriff’s deed was executed. By this sale and conveyance he acquired a good title to the land, and no equitable considerations are presented which would require that conveyance to be set aside for the protection of any claim made by Pickens. Under the circumstances of the case it was too late-after that conveyance for Pickens to propose to pay Taylor’s claim. It had been satisfied and extinguished, and the property in question had effectually passed to the purchaser. Under the find ings, it must be taken that the charges of fraud and conspiracy against Taylor are groundless and have been disproved. We see no reason to disturb the findings and judgment, and hence there must be an affirmance. All the Justices concurring.	[ -12, -20, -4, 29, 26, -32, 40, -70, 73, -80, -89, 91, -23, 78, 0, 123, -26, 45, -44, 110, -12, -73, 2, -31, -46, -13, -39, -51, 49, 74, -10, -41, 77, 48, -54, -107, -26, 66, -57, 92, -114, 4, 24, -52, -37, 32, 48, 43, 86, 75, 85, -82, 115, 41, 29, -61, 73, 44, -21, 41, 80, -8, -102, -121, 127, 5, 1, 36, -104, -121, -56, 46, -112, 53, 1, -88, -5, -74, 22, -12, 41, -103, 45, 102, 99, 33, -107, -17, 120, -104, 46, 126, -99, -90, 84, 72, 2, 73, -74, -99, 116, 20, -57, -12, -26, 12, 29, 44, 5, -113, -106, 66, 15, 60, -102, 3, -13, -111, -80, 96, -52, -94, 76, 71, 114, 19, -113, -7 ]
Opinion by Simpson, C.: The following summary of the material facts is taken from the brief of counsel for plaintiffs in error, and is sufficient to present the controlling question in the case: Prior to February 28, 1889, the First National Bank of Newton, Kas., had a paid-up capital stock of $50-000, and an undivided surplus of $50,000, and on said February 28,1889, the directors of said bank passed and adopted a resolution, which is in the words and figures following: “Office of the First National Bank, Newton, Kas., February 28, 1889. “At a meeting of the directors of the First National Bank held February 28, 1889, it was resolved that a dividend of forty thousand dollars ($40,000) be declared, payable out of surplus, and the same amount placed to credit of stockholders’ account. Said stockholders’ account to remain as a deposit in said bank unless otherwise ordered by the board of directors. “The said $40,000 belongs to the several stockholders, as follows: S. Lehman......................... $14,640 00 owning 183 shares- A. B. Gilbert........................ 10,000 00 “ 125 “ F. S. Steinkirehmer................. 4,000 00 “ 50 “ B. Lombard, jr...................... 5,000 00 “ 70 “ I. J. Cook.......................... 1,840 00 “ 23 “ O. W. Goss.......................... 1,520 00 “ 19 “ R. O. Loon (estate).................. 1,680 00 “ 21 “ A. Entz............................ 320 00 “ 4 “ A. M. J. Winey...................... 400 00 “ 5 “ $40,000 00 500 “ “The above amounts belonging to the several stockholders are to be held as above directed. “Attest: A. B. Gilbert, Cashier and Secretary.” Thereupon, the cashier of said bank charged the surplus account on the books of said corporation as follows: “ February 28, 1889, to stockholders’ account, as per resolution of the directors, $40,000; ” and then opened up a new account, designated “Stockholders’ Account,” and made the following entry therein and thereunder: “February 28, 1889, by surplus account, as per resolution of directors, $40,000.” The capital, surplus and stockholders’ account remained in this condition until March 8, 1890, and the officers of the bank returned to the assessor for taxation for the year 1890, and as of the 1st day of March of said year, $50,000 of capital stock and $10,000 of undivided surplus or profits. Afterwards the board of county commissioners of Harvey county made and adopted a resolution and order in the words and figures following : “Newton, Kas., July 11, 1890. “ The following order was made in the matter of assessment of the First National Bank of Newton, the bank waiving formal notice, and appearing by S. Lehman and A. B. Gilbert, its president and cashier, and the board, after hearing- their statements and being fully advised, ordered and directed that there be added to the assessment list of said bank the sum of $13,335; or, if said bank should prefer to have the whole assessment made to its stockholders and furnish the county clerk a list of the names of the stockholders, and the amount of stock held by each, then said clerk shall assess $53 on each share, and thé said clerk shall delay making such assessment for the period of five days, to give said bank an opportunity to test the validity of such increased assessment by injunction or otherwise. And said clerk is directed to forthwith give said bank notice of this order.” Afterward the county clerk added said amount to the amount returned by the officers of said bank for taxation. On February 26, 1891, the First National Bank brought an action in the district court of Harvey county against the plaintiffs in error, to restrain the collection of the taxes levied on the amount so added to the assessment list of said bank by the board of county commissioners, as aforesaid, which action was defended by the plaintiffs in error, and on the trial of said cause it was agreed, admitted and stated in open court that said bank made no objection on account of the fact of the capital of said bank being assessed as the property of said bank instead of as the property of the stockholders, and waived all objection to the assessment of such capital, surplus and profits direct to the bank instead of to its stockholders — but said bank contended only that the $40,000 added by the county commissioners for taxable purposes was not a part of the capital, surplus, or undivided profits of said bank, to be returned in any manner for taxable purposes. The court below, after hearing the evidence offered by the respective parties and argument of the respective attorneys, found for said bank, and that said $40,000 was not undivided surplus or profits of said bank, and gave judgment enjoining and restraining the plaintiffs in error from collecting the taxes levied on said $40,000. The plaintiffs in error filed a motion for a new trial, which was overruled, and said cause is brought here for review. The sole and only question involved is, was said $40,000, on March 1, 1890, a part of the undivided profits or surplus of said bank • or, in other words, should said $40,000 be considered in arriving at the value of the undivided profits and surplus of said bank for taxable purposes? The general finding of the trial court in favor of the defendant in error, and its order granting a perpetual injunction, resolves the question of fact in favor of the bank. The theory of the plaintiffs in error is, that the act of the bank in changing the $40,000 from one account to another did not in any manner withdraw said amount from the control of the officers of the bank, or place respective amounts of it within the control of individual stockholders, but that it was a subterfuge to avoid taxation. What the inducement was is a question of fact, as there is no doubt but the stockholders can legally control and dispose of the surplus. On this question of fact the trial court heard the witnesses, and its finding being supported by some evidence, it will not be disturbed by this court. Our duty is a plain one. We must recommend that the judgment be affirmed. By the Court: It is so ordered. All the Justices concurring.	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Opinion by Green, C.: This was an action brought in the district court of Finney county, by William F. Collins against the Atchison, Topeka & Santa Fé Railroad Company, to recover damages for the loss of a mare, shipped from Winfield to Hartland over the railroad of the defendant below, under a written contract which provided : “And for the consideration before mentioned, said party of the second part further agrees that, as a condition precedent to his right to recover any damages for loss or injury to said stock, he will give notice in writing of his claim therefor to some officer of said party of the first part, or its nearest station agent, before said stock is removed from the place of destination above mentioned, or from the place of delivery of the same to said party of the second part, and before such stock is mingled with other stock.” The defendant answered that no notice had been given by the plaintiff for damages, as required by the contract. The plaintiff, in reply, alleged that the mare had been removed from the car at Garden City, with the knowledge and request of the defendant’s agents; that after the death of the mare, the plaintiff notified the station agent in writing at Garden City of his claim for damages. The jury returned a verdict in favor of the plaintiff for the sum of $175. A motion for a new trial was overruled, and judgment was rendered for the amount of the verdict. I. The first assignment of error is in the admission of testimony claimed to be hearsay. The plaintiff stated that he had a conversation with one of the trainmen, about. 15 minutes after the jar which it is claimed caused the injury to the mare, in which the man apologized for being so rough with the train, saying he thought that there was a brakeman on the bunch of cars which ran against the car of stock. The accident occurred at Valley Center. The car containing-the plaintiff’s stock was set out upon a siding, and, in switching, five or six cars were permitted to run down grade against the car occupied by the plaintiff. The plaintiff testified that the cars had no brakeman upon them. There was really no controversy about how the accident occurred. While the statement of the trainman was not a part of the res gestea, its admission was immaterial error. It is claimed that the plaintiff below was allowed to give evidence of another conversation said to have taken place with some employé of the railroad, in which the plaintiff told the employé that the mare was hurt, and the latter remarked that he had better take her off at Garden City; also, that the plaintiff gave evidence, over the objection of the defendant, to the fact that some railroad man was present when the mare was unloaded at Garden City, and knew where the horses were taken. The evidence established the fact that the mare was unloaded at Garden City, with the consent of the company, and we do not think there was any prejudicial error in this statement of the plaintiff The company consented to the removal of the mare and accepted the freight. II. It is urged that the written claim for damages was not served until some time after the mare had arrived at Garden City, and had been unloaded and placed in a stable in which other animals were kept. This question was raised by several instructions which were requested and refused, to the effect that, if the plaintiff did not give a written notice of his claim for damages for the loss of the mare in question to the station agent at Garden City until after the mare had been removed from the place of delivery to the livery stable, or until after she had mingled with other stock, the jury should return a verdict for the defendant. This raises substantially the same question which we have just decided, in the case of A. T. & S. F. Rld. Co. v. Temple, and, upon the authority of that case, we think the instructions were properly refused. The mare was unloaded on the 5th of March, and until she died was kept separate from other stock. The jury found that the written claim for damages was delivered by the plaintiff to the station agent of the railroad company at Garden City about the 10th or 12th of March, 1887. This, we think, was sufficient. III. The last objection urged by the plaintiff in error is, that the plaintiff below was permitted to give evidence, over the objection of the defendant, that the contract was signed after the stock had been loaded, and that he received no reduced rate. It is claimed that this evidence was foreign to the issue in the case. We do not know for what purpose this evidence was introduced. The defendant in error says there was no attack on the consideration and validity of the contract. The question was one of negligence, and the court instructed the jury that the action was upon a written contract, and that the railroad company had a right to limit its responsibility to the owner for the carrying of stock by special contract, so long as the limitation did not affect the liability on account of negligence or misconduct. The court instructed the jury as to the contract and the performance of the condition precedent, thus eliminating this testimony from the case, and we think there was no material error in its admission. We recommend an affirmance of the judgment. By the Court: It is so ordered. All the Justices concurring.	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The opinion of the court was delivered by Johnston, J.: This is a proceeding in mandamus, brought originally in this court by the Nemaha Fair Association, to compel the chairman of the board of county commissioners of Nemaha county to issue and deliver to the plaintiff an order on the treasurer of the county for $200. The claim is made under the provisions of “An act for the encouragement of agriculture,” and particularly under § 8 of that act. (Gen Stat. of 1889, ¶¶ 6249, 6257.) In an earlier stage of this litigation, the validity of § 8 was challenged and sustained. (Fair Association v. Myers, 44 Kas. 132.) Since that time, Thummel was elected chairman of the board of county commissioners, to succeed Myers, and he has been substituted in the place of Myers as the defendant. The Sabetha District Fair Association, upon application, was made a defendant herein, and alleged that it was entitled to the $200 in controversy, by reason of being a district agricultural society, and having held a fair, collected $500 by voluntary contribution, and having made all necessary reports to the secretary of the state board of agriculture, and performed everything else required by law to be done to entitle it to the sum of $200 from Nemaha county. The statute having been held to be constitutional, the question remains whether the plaintiff has complied with the requirements of the statute so as to be entitled to demand from the county the statutory allowance. It is alleged in the alternative writ, that the plaintiff is a duly-organized agricultural society, formed November 24, 1882, “to encourage agriculture, horticulture, mechanics, and the fine arts, the im provement of the breed of domestic animals, and to hold fairs for the exhibition of skilled industry and enterprise;” that its capital stock is $7,000, which has been voluntarily contributed by the members, and is fully paid; that the plaintiff has held annual fairs in Nemaha county since its organization, and has paid annually to exhibitors not less than $1,500 for premiums, and has annually sent a delegate from the society to the meeting of the state board of agriculture, which delegate has been duly recognized by and admitted as a member of that board. The writ further alleges: “That the secretary of the plaintiff has made monthly reports to the state board of agriculture on the last Wednesday of each month since its organization, of the condition of the crops in its county, and made a list of such noxious insects as were destroying the crops, if any, and stated the extent of their depredations; and reported the condition of stock, giving a description of the symptoms of any disease prevailing among the same, with the means of prevention and remedies employed, so far as ascertained, and such other information as was of interest to the farmers of the state; and did also make out a statement containing a synopsis of the awards at the fair at the current year, offered and awarded as premiums for the improvement of stock, tillage, crops, implements, mechanical fabrics and articles of domestic industry, which exceeds the sum of $1,500, and an abstract of the treasurer’s account, and reported on the condition of agriculture in its said county of Nemaha to the state board, said statement being forwarded by mail to the state board on or before the 15th day of November of each year.” The facts which have been agreed upon, however, do not measure up with the allegations of the plaintiff. It is practically conceded by counsel that the Sabetha District Fair Association has not met the requirements of the statute, and is therefore not entitled to demand from the county $200, or any other sum; and counsel for defendants insist that the Nemaha Fair Association is not entitled to the allowance for three reasons: (1) That it is not such an agricultural society as is contemplated by the act; (2) that it has not made the reports required by the statute; and (3) that it has not raised from its members and paid into its treasury the required sum of money. The facts satisfactorily show that the first objection is not well taken, as the plaintiff appears to be an agricultural society such as would be entitled to the statutory bounty if it had complied with the requirements of the statute. The second objection urged against the demand of the plaintiff is good, as it has clearly failed to follow the directions of the statute in respect to the making of reports. The conditions upon which a society can demand an allowance are clearly stated in the act providing for the same, and the making of monthly and annual reports to the state board of agriculture are among the most important. In respect to the monthly reports, it is provided, in § 2 of the act— “That the secretary of each district or county society, or such other person as may be designated by the society, shall make a monthly report to the state board of agriculture, on the last Wednesday of each month, of the condition of crops in his district or county, making a list of such noxious insects as are destroying crops, and state the extent of their depredations, report the condition of stock, giving a description of the symptoms of any disease prevailing among the same, with means of prevention and remedies employed, so far as ascertained, and such other information as will be of interest to the farmers of the state.” After the fair has been held, another report is required, containing a synopsis of the awards, as well as other information. The record discloses that no report was made for January or February of the year on which the demand was made, and that the first report made was on March 31, 1888, which is called a quarterly report, and contained most of the information required to be furnished in each monthly report. On May 31, 1888, a postal-card report was made, giving the condition of the crops, including apples and cherries, and also reporting with reference to rainfall and chinch-bugs, but no mention was made of the condition of stock. A postal-card report was made on June 30, 1888, similar to the one of the preceding month, and it contained no reference to the condition of stock, or the diseases prevailing among the same. On July 31, 1888, a report covering substantially the same ground as the last one was made, and which was equally incomplete. On August 31, 1888, a report was made upon a postal card in respect to the area planted in corn, the difference in results between listed corn and that put in with a planter, and the estimated product per acre of-the same. No other facts were stated in the report. In September, 1888, a full report was made as to the average yield of the various crops grown in the county, and the average value of the same, as well as the average value of live stock, and of the wages paid for farm laborers during the season. Nothing whatever was said about the condition of the growing crops or the noxious insects, nor about the condition of stock or the diseases prevailing among stock, as the statute requires. In the same month the annual report was made, which, although quite full, did not cover all the subjects upon which a report is required. No other reports were made or attempted during the year, and the reason given for the omission is that no others were required by the secretary of the state board. It is agreed that the secretary of the state board, for a long time prior to 1888, had assumed to and did direct, by means of blanks sent out to the various agricultural societies throughout the state, what information should be furnished to the office with respect to crops, stock, insects, etc., and that the plaintiff had filled up all the blanks sent to it, and answered fully all the questions asked by the secretary. It further appears that the secretary wrote to the plaintiff, stating that, on examination of the records of the office, it appeared that the plaintiff had made all the reports required by law, entitling it to a delegate to the annual meeting to be held on January 9, 1889. The delegate was elected by the plaintiff, and was recognized and admitted as a member of the state board at its annual meeting. The plaintiff contends that as it has made all the reports required by the secretary of the state board, and as it was accorded representation in the state board at the annual meeting, that no other or further reports were necessary or essential to the payment of the $200. The will of the legislature and not that of the secretary must control. The legislature has specifically provided when the reports shall be made, and what they shall contain, and has further provided that the making of these reports is a prerequisite to an allowance by the county. The society can demand the money from the county only when it “shall have complied fully with the provisions of the second section of the act, so as to be entitled to a representation in the state board L _ _ ; of agriculture.” (Gen. Stat. of 1889, ¶ 6256.) It is not left to the secretary nor to the state board to determine what acts are to be performed and what conditions ■ exist to entitle a society to representation, or to entitle it to demand an appropriation of public money from the county. These limitations are fixed by the statute, and they can neither be ignored nor modified by the secretary. The fact that the society was given representation on the state board is not the test of its right to the money, but it is whether it was entitled to representation; and the statute provides that it shall not be so entitled unless it has made the monthly and annual reports. One of the principal objects of the state board of agriculture is the collection and dissemination of information of interest to the farmers of the state. To accomplish this beneficial purpose the monthly reports are required from the county and district societies, which in a certain sense form a part of the state board. In order to encourage the local societies in making these reports, and also in making an annual exhibit of the products of the county or district, the allowance of $200 is authorized. If they are not made regularly and promptly, as the statute prescribes, the county is under no obligation to the society, and the chairman of the county board has no right to issue an order upon the county treasurer for $200 or any other sum. As the Nemaha Fair Association and the Sabetha District Fair Association have both failed to comply with the statutory requirements, neither of them is entitled to the relief demanded. The peremptory writ will therefore be denied. All the Justices concurring.	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The opinion of the court was delivered by Johnston, J.: This action was brought by Gustave Koch against the Wichita & Western Railway Company to recover damages for the injury and loss of certain hogs, which the railway company undertook to carry from Cheney to Kansas City. It was alleged that a car-load of hogs was shipped on January 7, 1886, and that through the negligence of the company 18 of the hogs died, two of which were left at Wichita, and were a total loss, and that 16 of the dead hogs were de livered in Kansas City, but were of but little value; and that by reason of the death of the hogs Koch was damaged in the sum of $125. It was further alleged, that through the negligence of the company the hogs were greatly delayed in trans-portion, and were negligently handled, so that many of them were so frozen and injured as to depreciate them in value, in consequence of which there was a loss of $100. It was further alleged, that by the delay of the company in transporting the hogs there was a decline in the market price of the same, to the damage of the shipper of $25. A further claim of damages was made upon a shipment of stock in 1887; but there was no competent testimony given upon this claim, neither was there any allowance made by the jury for the same in their verdict, and it may be laid out of consideration. The jury returned a verdict in favor of Koch for $201.65, and the special questions submitted and answered show that $175.15 of that sum was allowed for the hogs frozen to death, and $26.50 of it for the shrinkage of the remainder from cold and suffering on the route. The testimony tended to show that the hogs were loaded and started to Kansas City on January 6, and that soon afterward it became very cold and began to snow, so as to blockade the railroad and delay the train on which the hogs were being carried. The storm and cold increased in severity, and continued for several days. After considerable effort the hogs, were delivered to the agents of Koch at Kansas City on January 13. They were then in bad condition; 16 of them were dead, two had been left on the way, and others were badly frozen and injured. They were sold and delivered to-the packers in Kansas City on the day of their arrival. The shipping contract made between Koch and the railway company provided, among other things— “ That, as a condition precedent to his right to recover any damages for loss or injury to said hogs, he will give notice in writing of his claim therefor to some officer of said party of the first part, or'its nearest station agent, before said stock is removed from the place of destination above mentioned, or from the place of delivery of the same to said party of the second part, and before such stock is mingled with other stock.” Upon this stipulation the court instructed the jury as follows: “Before you can find for the plaintiff, he must show by the greater weight of the evidence that the plaintiff notified the defendant in writing of the loss or injury to said stock before said stock was moved from the yards, or from the place of delivery, or before such stock was mingled with other stock.” No notice was given before the sale and delivery of the stock to the packers at Kansas City, nor was there any notice given until January 25, 12 days after the hogs had been disposed of. The instruction given by the court with reference to the giving of a notice must be taken as the law of the case. Not only that, but it has been held that such a stipulation or contract is reasonable, just, and valid. (Goggin v. Railway Co., 12 Kas. 416; Sprague v. Railway Co., 34 id. 347.) The record shows that the plaintiff below wholly failed to bring himself within the requirements of the instruction of the district court by showing a compliance with this provision. It is not contended that there was any unfairness, misrepresentation or fraud in the making of the contract, but it is contended that compliance with the same was unreasonable and impracticable. The contract was made with the Wichita & Western Railway Company, the eastern terminus of whose line is at Wichita, and the stock was forwarded over the Atchison, Topeka & Santa Fé railroad from Wichita to Kansas City. They appear to be, or at least at that time were, separate corporations. It is urged that the giving of a notice to the agent of the Wichita & Western Railway Company at Wichita of loss and injury discovered at Kansas City would be wholly impracticable. It is said that, unless the stock which is shipped there for sale is speedily disposed of, great expense and loss must ensue, and that therefore to wait until a notice was given to the officers or agents of the Wichita & Western Railway Company is so unreasonable a provision as to defeat its validity. The agreement of the contracting company was to carry the stock, not to Wichita, but to Kansas City. According to the contract, it became the carrier for the whole dis tance; and, in effect, it adopted the line of the connecting company as its own, and to that extent it made the officers and agents of that company its own officers and agents. The station agent, therefore, of the Atchison, Topeka & Santa Fé Railroad Company at Kansas City must, for the purposes of this contract, be deemed the agent of the Wichita & Western Railway Company; and a service of a written notice upon that agent would have been a sufficient compliance with the stipulation in question. (Railroad Co. v. Roach, 35 Kas. 743; Railroad Co. v. Fort, 9 Am. & Eng. Rld. Cases, 392; Lawson, Com. Car., § 235.) And so it is held that the connecting carriers are entitled to the exemptions and liabilities in the special contract made by the initial carrier for the whole distance. (Kiff v. Railroad Co., 32 Kas. 263; Railway Co. v. Harwell, 45 Am. & Eng. Rld. Cases, 359; Lawson, Com. Car., § 243.) The connecting company had an agent at the place of destination, upon whom written notice could have been served without difficulty or delay, and who could have inspected the dead hogs, as well as the injured, before they passed into the hands of the packers and beyond the possibility of examination. Such provisions are to receive a reasonable interpretation, and a substantial compliance with the contract on the part of the shipper is sufficient. (A. T. & S. F. Rld. Co. v. Temple, ante, p. 7; same case, 27 Pac. Rep. 98.) The circumstances of each case must determine how promptly notice must be given, and whether that which is given is reasonable, considering the purposes for which such contracts are made. The necessity for prompt .notice was as great in this case as in the Goggin case, where it was said that “unless the notice was given immediately, it would be of no value to the defendant.” Instead of giving notice before the removal of the hogs, as might reasonably have been done, the plaintiff postponed it until the 25th of Jannary, nearly two weeks after the time when notice should have been given. In this respect, therefore, the testimony fails to meet the requirements of the instruction given by the court, and is insufficient to sustain the verdict and judgment. Some other objections are made, which it is not deemed necessary to notice. The judgment of the district court will be reversed. All the Justices concurring.	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Opinion by Green, C.: This was an action in the nature of ejectment, brought by the plaintiff in error to recover lot 109 and the north half of lot 111, on Taylor street, in the city of Topeka. The district court found for the defendants, and the plaintiff brings the case here. The material facts are: That the real estate sued for was a part of an Indian float, which was purchased by C. K. Holliday, president of a company known as the Topeka Association, and became a part of . the Topeka town-site. The land was divided into shares, and Milton C. Dickey became the owner of the property in question. On the 16th day of February, 1858, he conveyed the lot and a half described in the plaintiff’s petition, with other land, to Benj. J. Fisk, by a deed of special warranty, which was immediately recorded in the office of the register of deeds of Shawnee county. The Topeka Association authorized C. K. Holliday, as its trustee, to convey the legal title to the lots to the parties who had drawn them, or to their grantees. On the 10th day of July, 1858, Benj. J. Fisk reconveyed the lots he had received a deed for to Milton C. Dickey, but described the lots as being situated on Tyler instead of Taylor street. On September 24,1859, Dickey conveyed the lots to Saunders E. Shepherd, who deeded the same to Joseph F. Cummings. On November 1,1859, C. K. Holliday, as president and special trustee, conveyed the lots to Sarah Harlan Cummings, the wife of the grantee last named, and from her there is a regular chain of title to Walter Scott, one of the defendants in error. On the 24th day of September, 1887, Fisk conveyed the property to Milo J. Goss, by quitclaim deed, and on the 7th day of November following Goss conveyed the same to the plaintiff in error, who had no notice that Fisk had attempted to convey this same property to anyone else. This property was vacant until 1882, when it was occupied, and has been in the possession of the defendants ever since. The plaintiff had no actual notice that the deed from Dickey to Fisk was claimed to be a mortgage. The case was tried by the court, and, among others, the following special findings of fact were made: “1. On February 9, 1858, Milton C. Dickey borrowed from Benj. J. Fisk $100, and, as security therefor, Dickey made to Fisk a deed of conveyance for the land described in plaintiff’s petition. “2. On July 10, 1858, Dickey repaid Fisk the $100, and on the same day Fisk made a deed of conveyance of certain lots, but by mistake of the conveyancer in preparing the deed, or the register in recording the same, the lots described in the deed as recorded were designated as being on Tyler street, when in fact Fisk intended to convey to Dickey lots numbered 109, 111, and 113, on Taylor street. “3. Fisk never owned lots numbered 109, 111, and 113, on Tyler street, in the city of Topeka; and the Topeka Association, or C. K. Holliday as trustee, never executed to Dickey any writing whereby it or he agreed to convey to Dickey the lots described in the plaintiff’s petition.” The case-made shows that the only evidence introduced to support the above findings of fact was the deposition of Benj. J. Fisk, and a deed from him to Dickey. Complaint is made that Fisk, who testified by deposition, was permitted to give evidence as to what a certain diary, which he had kept, showed concerning the transaction between him and Dickey; that without this evidence these findings are unsupported; and with them eliminated from the case the judgment should be for the plaintiff. We do not think that .the findings complained of are material. The plaintiff must recover upon the strength of his own title, which he alleges was a legal one. The common source of title was from Holliday, as trustee, •who held the legal title until he conveyed to Cummings, from whom the chain is complete to the defendants; and there is no deed from the Topeka Association to the plaintiff or any of his grantors. Before the plaintiff can recover in an action in the nature of ejectment, he must show that he has either an equitable or a legal title to the real estate. In this case the plaintiff relied upon a legal title, and we cannot say that the three special findings complained of are material; and therefore the judgment should not be reversed because there was no competent evidence to support it. We recommend an affirmance of the judgment of the district court. By the Court: It is so ordered. All the Justices concurring. Per Curiam: The facts in the case of Booge v. Scott, just decided, and the questions of law maintained therein, being substantially the same as in the case of H. D. Booge v. Lizzie P. Huntoon et al., this case will be decided upon the authority of that case. Judgment affirmed.	[ -16, 78, -16, 93, 24, -32, 40, -70, 105, -79, -73, 87, -119, -53, 9, 49, 102, 41, -107, 123, -25, -73, 23, -103, -46, -13, -39, 77, -79, 76, 118, -42, 76, 16, -54, 61, 6, 64, -57, 92, -114, -98, 9, -60, -47, 96, 52, 123, 96, 71, 81, 47, -14, 42, 28, -61, 73, 46, -17, -72, 81, -80, -115, -123, 124, 86, -127, 102, -108, 67, -56, -118, -102, 53, 32, -88, 115, 38, 6, 116, 5, -117, 12, 102, 98, 49, 17, -17, -80, 25, 46, 116, -115, -89, -74, 72, 67, 41, -74, -103, 85, 16, 71, -10, -18, -116, 25, 40, 7, -114, -108, -109, 47, 48, -118, 3, -5, 3, -79, 97, -49, 38, 92, 68, 58, -101, -113, -4 ]
The opinion of the court was delivered by Valentine, J.: This was a prosecution in the name of the city of Solomon, a city of the third class, against J ames Hughes, for the violation of a certain city ordinance. The action was commenced before the police judge of said city, before whom the defendant was tried, convicted and sentenced. The defendant then appealed to the district court, where he was again tried, convicted and sentenced; and he now appeals to this court. About the only question involved in the case is, whether the district court could, in such an action as this, take judicial notice of the incorporation of said city and of its ordinances. We suppose that it will be admitted that the police judge, who was an officer of said city, and the one before whom the case was originally prosecuted, could not only take judicial notice of the incorporation of his own city and of the existence and substance of its ordinances, but that it was his imperative duty to do so. And when the case was taken on appeal from the police judge to the district court, we think it was not only within the power, but it was also the duty of the district court to try the case in the same manner that it should have been tried before the police judge. The district court was, in fact, substituted for the time being for the police judge; and whatever the police judge could have taken judicial notice of while the case was in his court, the district court could and should take judicial notice of after the removal of the case to the district court; and as there was no necessity to introduce evidence in the police judge’s court to show the incorporation of the city of Solomon, or the existence of its ordinances, we think there was no necessity to introduce such evidence in the district court. And what did not need to be proved, did not need to be alleged. The defendant claims that the ordinance under which he was prosecuted was not and is not valid; but as both the police judge and the district court held it to be valid, we think it devolves upon the defendant to show its invalidity. This he has not done. The ordinance was adopted under.the following circumstances: No ordinance had ever been passed fixing the time for holding the regular meetings of the city council; but it nevertheless met from time to time, whenever it was thought that its services were required. On May 22,1878, it had a meeting. At this meeting the mayor and all the councilmen were present. At this meeting they took certain steps . toward having the said ordinance under which the defendant was prosecuted, drawn up for the purpose of having it adopted, and did some other business, and then adjourned to meet again on May 27,1878. On May 27, they met pursuant to adjournment, the mayor and all the councilmen being present, and did some business, and adjourned to- meet again on May 31,1878. On May 31, the council met again, the mayor and one of the councilmen being absent. All the other councilmen, including the president of the council, were present. At this meeting, they passed said ordinance. The ordinance was first read, and then reread, and considered and adopted by sections. The yeas and nays were taken on the vote on the adoption of each section, and every one of the members of the council present — except the president, who did not vote — voted in favor of the adoption of each section; and those voting in favor of each section were a majority of all the members of the council elected. All the foregoing the journal of the council proceedings itself shows. The ordinance was then put upon its final passage as a whole, and was adopted unanimously. The vote was, in fact, taken by yeas and nays, but this the record of the council proceedings does not fully show. Upon this matter, the record reads as follows: “On motion, the ordinance was then adopted, as a whole, as read, no dissenting voice.” Upon the facts of this case, we think that the ordinance was a valid ordinance. The judgment of the court below will be affirmed. All the Justices concurring.	[ -15, 124, -32, -98, 58, 96, -86, -80, 72, -95, -28, 123, -87, 75, 21, 123, -70, 63, -44, 75, -60, -74, 7, 66, -78, -45, -45, -43, -75, 76, -26, -35, 12, 33, -54, -67, 70, 74, -57, -38, -58, 39, -119, -52, -45, 65, 52, 51, 115, 15, 117, 46, -13, 46, 28, -45, -24, 44, 89, 49, 88, -7, -116, -107, 93, 2, -109, 32, -103, -123, -8, 14, -104, 49, 16, -32, 113, -90, -122, -12, 111, -69, -116, 102, 66, 65, 77, -9, -72, -119, 31, 122, -103, -90, -107, 80, 106, 5, -106, -111, 117, 80, 7, 118, -25, -107, 24, 108, 11, -54, 112, -109, -49, 48, -110, 65, -61, 69, 16, 113, -59, -6, 92, 100, 16, 91, -105, -112 ]
The opinion of the court was delivered by Brewer, J.: This case was tried in the court below, on the following agreed statement of facts, dated June 3,1879, and signed by the attorneys for the parties hereto: “It is agreed by and between the plaintiff and defendant in the above-entitled cause, that the same may be tried at the June term, 1879, by the court, without a jury, and in all other courts wherever or whenever the same may be heard or tried, by appeal, review, or otherwise, upon the following agreed statement of facts, and none other: “I. The plaintiff is, and was at all the times hereinafter alleged, a railroad corporation, duly created and organized under the laws of the state of Kansas. “II. That, as such railroad corporation, it was a beneficiary under the certain act of the congress of the United States, entitled ‘An act for a grant of lands in the state of Kansas, in alternate sections, to aid in the construction of certain railroads and telegraphs in said state/ approved March 3,1863, and the act of the legislature of the state of Kansas, entitled ‘An act to accept a grant of lands made to the state of Kansas by the congress of the United States, to aid in the construction of certain railroads and telegraphs in said state, and to apply the same to the construction of such roads and telegraphs/ approved February 9,1864, and which acts, and each of them, as they are and appear in the statute book, are hereby referred to and made a part of this agreed statement of facts. “III. That the plaintiff duly accepted the provisions of said acts, and did proceed with the construction and completion of its road in accordance therewith. “IV. That the land in dispute is the southeast quarter of section seven (7), in township twenty (20), south, of range eight (8), west, in the county of Rice, in the state of Kansas. “V. That the definite location of the line of plaintiff’s railroad in and through the county of Rice, and at and opposite to said land, was made, and the proper surveys, maps and profiles made and filed, and such definite location of the plaintiff’s line of railroad aforesaid approved by the proper officers, as contemplated by the before-mentioned acts, on the 10th day of December, 1870. “VI. That on the 23d day of January, 1871, the defendant, with his family, made actual settlement on said land, in good faith, intending to .take the same under the preemption laws of the United States. “VII. That on the 30th day of January, 1871, the defendant duly filed his declaratory statement to obtain said land as a preemption, and has at all times since then fully complied with all the preemption laws of the United States concerning said land. “VIII. That on the 13th day of February, 1871, this land, along with other lands, was withdrawn by the secretary of'the interior, and in pursuance of the aforementioned acts, from sale, and from the operation of the homestead and preemption laws of the United States. “IX. That in a contest had by and between the plaintiff and defendant before the interior department, it was finally decided by the secretary of the interior that the defendant’s filing on said land as a preemption claim as aforesaid should be canceled, and that the said land inured to the plaintiff under and by virtue of its said land grant, and that in pursuance of said decision, on the 29th day of June, 1872, the filing of the defendant was canceled, and the land conveyed by patent to the plaintiff, and that ever since that time the plaintiff has been the holder of the legal title thereto; (and by the phrase ‘legal title’ is meant the title conveyed by the patent, the defendant in nowise admitting that the plaintiff was or is rightfully the holder of the legal title, or the rightful owner of the land.) “X. That on the 23d day of December, 1872, the line of the plaintiff’s railroad was fully constructed and completed, as required by the aforesaid act of congress and the act of the legislature of the state of Kansas. “XI. That on the 17th day of November, 1876, the defendant made proper application to the proper officers to make final proof, under the preemption laws, to obtain this land under said laws, under the provisions of the act of the congress of the United States, entitled ‘An act to confirm preemption and homestead entries of public lands within the limits of railroad grants where such entries have been made under the regulations of the land department,’ approved April 21, 1876; which act, as the same appears and reads in the statute book, is hereby referred to and made a part of this agreed statement of facts. “XII. That on the 28th day of November, 1876, the proper officer of the interior department authorized and allowed the defendant to make final proof under his application above mentioned. “XIII. That on the 28th day of November, 1876, the defendant did duly make final proof under the preemption laws in order to obtain this land, before the proper officer, and has at all times, and in everything, and at the proper time, complied with the requirements of the preemption laws of the United States. “XIV. That under the authority, decision and direction of the commissioner of the general land office, the defendant was permitted to enter, under the provisions of the last-mentioned act of congress, approved April 21,1876, the land herein described; and that the defendant made final proof and payment for the land, and obtained the final receipt of the receiver of the land office therefor. “XV. That an appeal was taken by the plaintiff from the order and decision of the said commissioner, permitting the defendant to enter the land as a preemption, and that the same was finally decided by the interior department and the secretary thereof, on the 9th day of March, 1878, in favor of the defendant, on the ground that ‘the first section of said act, approved April 21, 1876, provides that all preemption entries made on the public lands in good faith, by actual settlers, upon tracts of not more than one hundred and sixty acres within the limits of any land grant, prior to the time when notice of the withdrawal of the lands embraced in such grant was received at the local land office in which such lands are situated, and where the preemption laws have been complied with and proper proofs have been made by the parties holding 'such tracts, shall be confirmed, and patents for the same shall issue to the parties entitled thereto. As the filing of Bobb was prior to the time when notice of the withdrawal of this tract was received at the local office, and he has complied with the requirements of law, I am of opinion that (notwithstanding my predecessor held Bobb’s filing for cancellation June 29,1872, and awarded the tract to the railroad company, for the reason that it inured to it under its grant prior to. Bobb’s settlement, and it has been patented to the railroad company) the case of Bobb is within the provisions of the said act, as I decided on the 7th of February last, in the case of Streeter, under a similar state of facts. I therefore affirm your decision,’ as appears in the letter of the secretary of the interior department to the commissioner of the general land office. “XVI. That in case the court on the foregoing facts shall find the law to be for the plaintiff, the judgment of the court shall generally be for the plaintiff, and for the possession of the land, and for costs of suit; and if for the defendant, the judgment shall be against the plaintiff, and in favor of defendant for costs.” Judgment was rendered in favor of the defendant, and the plaintiff brings the case to this court for review. The single question is, whether the title of the plaintiff vested at the time of the definite location of its road, of not until the lands were formally withdrawn from sale by the order of the secretary of the interior. If the former, this land became and was the property of the plaintiff before defendant moved upon it. This is no open question. Under the act of congress of March 3, 1863, (12 U. S. Stat., p. 772,) a present grant of lands was made to the state of Kansas, of which the railroad became the beneficiary; in and by which act every alternate section of land, designated by odd numbers, for ten sections in width on each side of the road intended' to be benefited, were then granted to the state for such road. But, in case it should “appear that the United States have, when the lines or routes of said road and branches are definitely fixed, sold any section or any part thereof granted as aforesaid, or that the right of. preemption or homestead settlement has attached to the same,” then other lands may be selected. In this case the road had been definitely located, and nothing then stood in the way to prevent its right from attaching to this land. Some time after, the defendant in error made a settlement on the land, and filed his declaratory statement for the purpose of taking it under the preemption laws. The supreme court of the United States has decided, when passing upon similar grants, that, just so soon as the route of the road became definitely fixed, at that-time the grant became a certainty, and the alternate sections of odd-numbered lands within ten miles of the line as definitely fixed, at once attached to the grant and vested in the company. As long ago as 1817, the supreme court, in construing a grant of lands made to General Nathaniel Greene, was unanimously of the opinion that the act vested a title in General Greene, and that the survey afterward made gave precision to that title and attached it to the lands surveyed. (Rutherford v. Greene’s Heirs, 2 Wheat. 196.) In the case of Railroad Co. v. Fremont County, 9 Wall. 94, the court says: “Until the line of the railroad was definitely fixed upon the ground, there could be no certainty as to the particular sections of land falling within .the grant; nor could the title to any particular section on the line of the road vest in the company. The grant was in the nature of a float until this line was permanently fixed.” Again, in the case of Railroad Co. v. Smith, 9 Wall. 97: “The grants of lands by congress to the states, in aid of rail roads, have generally been made with reference to the lands through which the roads were to pass, and as the line of the road had to be located after the grant was made, it has been usual in the acts making the grants to describe them as alternate sections of odd numbers, within a certain limit on each side of the road when it should be located. This, of course, left it to be determined by the location of the road what precise lands were granted. So far as this uncertainty in the grant was concerned , it was one which might remain for a considerable time, but which was capable of being made certain, and was made certain by the location of the road.” And again, in the case of Schulenberg v. Harriman, 21 Wall. 60: “It is true that the route of the railroad for the construction of which the grant was made, was yet to be designated, and until such designation the title did not attach to any specific tracts of land. The title passed to the sections to be afterward located; when the route was fixed their location became certain; and the title, which was previously imperfect, acquired precision, and became attached to the land.” And in the case of L. L. & G. Rld. Co. v. United States, 2 Otto, 741, the court, construing this very act under which plaintiff claims, says: “It creates an immediate interest, and does not indicate a purpose to give in future. ‘ There be and is hereby granted,’ are words of absolute donation, and import a grant in prcesenti. This court has held that they could have no other meaning; and the land department on this interpretation of them has uniformly administered every previous similar grant. They vest a present title in the state of Kansas, though a survey of the lands and a location of the road are necessary to give precision to it, and attach it to any particular tract. The grant then becomes certain, and by relation has the same effect upon the selected parcels as if it had specifically described them. In other words, the grant was a float until the line of the road should be definitely fixed.” It seems idle to add anything to these citations from the decisions of the United States supreme court, which cover the very point, and are upon a question whose final determina tion rests with that court. Neither does it seem necessary to add that a different construction of the law in the land office, or by the secretary of the interior, in no manner affects the plaintiff's title, nor can that title be disturbed by a subsequent act of congress. The judgment of the district court will be reversed, and the case remanded with instructions to render judgment upon the agreed statement, in favor of the plaintiff in error, for possession of the land and costs of the suit. All the Justices concurring.	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Per Curiam: The judgment in this case will be reversed, and the case remanded with instructions to the district court to affirm the judgment of the justice. This decision is based upon the case of Jackson v. Stoner, 17 Kas. 605.	[ -80, -20, -35, 28, 10, 96, 50, -98, 77, 113, -10, -47, 43, -118, 28, 125, -77, 123, 113, 121, -98, -89, 7, -63, -10, -37, 59, -41, -72, 94, 111, 94, 76, 120, -110, -59, 98, -128, -123, 86, -118, -115, -71, 108, 83, 98, 48, 43, 18, 14, 33, 55, -31, 42, 27, -61, 105, 56, -7, 33, 75, -71, -120, 5, 107, 20, -95, -96, -100, -122, -4, 110, -52, 57, 1, -8, 114, -90, 6, -44, 43, -8, 0, 98, 102, -111, 101, 71, -72, -40, 5, 46, -83, -90, -103, 57, -55, -59, -74, -11, 108, 101, 15, 108, -58, -43, 21, 108, 17, -34, 116, -79, -113, 88, -102, -61, -21, 99, 48, 69, -115, -62, 80, -62, 49, -109, -106, -10 ]
The opinion of the court was delivered by Brewer, J.: The facts.in this ease are these: Plaintiff was county attorney of Eice county. Defendant was clerk of the district court of that county, and one W. T. Nicholas his deputy. As such county attorney, plaintiff filed an information against one W. B. E. Moore, charging him with the crime of murder, and said Moore was arrested and held to answer for that offense. Thereafter said Moore commenced an action for false imprisonment on account thereof, against this plaintiff, this defendant and said Nicholas. Plaintiff defended that action successfully, and now sues defendant for professional services in making such defense. The case was tried by a jury, which returned a verdict for defendant. They also answered certain special questions. Judgment was entered thereon in favor of the defendant, and plaintiff now alleges error. The first question is one of fact. Plaintiff testifies to an express contract, that defendant in terms employed him to defend. Defendant denies any such contract. True, the language of defendant, as it appears .in the record, is not as positive and emphatic as that of plaintiff. He says: “As I understand it, I never employed Muscott as my attorney to defend me in the Moore action, nor did I ever request him to defend me in that action/7 He admits frequent conversations with plaintiff, but they were jointly sued and jointly interested in making a defense. Such conversations were therefore very natural, and do not carry any admission of plaintiff’s employment. The words, “as I understand it,77 may have 'been intended by the witness to qualify only the first clause of the sentence, leaving the latter as a positive and ab solute denial. Indeed, such would be the natural import of the language. But we lay no particular stress on this. Because one witness speaks positively and another doubtingly, it does not follow that the jury must credit the former rather than the latter. Equally truthful men often speak in very different ways about the same transaction, one with perfect confidence and the other with doubt and hesitation. One will say, “It was,” and the other, “I think it was.” A jury is bound by neither statement, but may credit either. Again, it is said that if there was no express contract, there was an implied one, because in fact plaintiff did render professional services to defendant, with the latter’s knowledge and assent. The fact is, that all the papers on the part of the defense were prepared and signed by plaintiff alone, as attorney for the defendants. He alone presented and discussed the questions in court. The case never went to trial, however, and these questions were in preliminary matters. It also appears that defendant employed one J. H. Smith as his at- ■ torney to look after his interests in that suit; that plaintiff knew of this employment, and consulted about the case with said counsel. Now the principle upon which implied contracts are sustained is, not merely that one party has done work which benefits the other, because it was never the law that one party could force a contract upon the other, but also that such other party, knowing that the services are being performed for his benefit and on his account, makes no objection, but permits the party to continue doing the work and performing the services. Do the facts in this case show such knowledge and assent? They are consistent with, but do not prove, and therefore the jury were not bound to find such knowledge and assent. If defendant had employed no attorney to look after his interests, or had not notified plaintiff of such employment, then his knowledge that plaintiff was carrying on the defense for all the defendants, might create an implied contract. But here the plaintiff was jointly sued with defendant; their interests were alike; their defense was joint. Now, if neither plaintiff nor defendant had been attorneys,. and each had employed counsel to the knowledge of the other, and of the respective counsel, the manner in which those counsel carried on the defense would ordinarily be a matter of their own choosing, and the. knowledge by one client, that the counsel of the other prepared and signed all the papers, and took the leading part in the defense, would not raise an implied contract, for he might fairly suppose that what he did was by virtue of his express employment by the other, and in consequence of some personal understanding between the two counsel. The fact that the plaintiff occupied the two-fold position of counsel and client, in no manner changes this. Muscott, as counsel for Muscott defendant, was charged with the duty of full preparation, and careful defense for his client’s sake. Defendant having employed Smith, had a right to suppose that Smith would protect his interests, and each party defendant having counsel, to suppose that the two counsel would act together for the mutual interests of the two defendants, and at the same time, each look to his own client for compensation. Placing all the undisputed facts together, it cannot be said that an iihplied contract was proved. And as to the disputed facts, the jury found against the plaintiff. The same considerations are a sufficient answer to the crit1 icism on the refusal of the court to give instruction No. 3, asked by plaintiff And there are also other reasons why the instruction was properly refused. Objection is made to the ruling of the court in the admission of certain testimony. We see nothing in this of sufficient moment to justify a reversal. Indeed, upon the claim of an implied contract, it may well be, that all the circumstances and surroundings of the defense in the Moore case were properly presented to the consideration of the jury, and on the whole it may be said, that the record presents little more than a strong contradiction between parties as to their recollection and testimony about past events, a contradiction whose solution must be left to the triers of fact, and they having pronounced against the plaintiff, their decision is conclusive. The judgment will be affirmed. All the Justices concurring.	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Per Curiam: The above case is reversed, and remanded for a new trial, upon the authority of Swartz v. Redfield, 13 Kas. 550; Couch v. Sherrill, 17 Kas. 622; Doolittle v. Ferry, 20 Kas. 230; Braley v. Buchanan, 21 Kas. 274.	[ -80, -22, -11, 122, 10, 96, 48, -66, -125, 113, -9, 81, 43, -117, 21, 123, -45, 125, 116, 123, -41, -73, 22, -63, 114, -13, -101, -41, -8, -18, 102, -2, 76, 120, -38, 85, 86, -128, 69, 22, -126, -115, 57, 109, -63, 67, 48, 45, 18, 31, 49, 31, -31, 42, 23, -45, 72, 40, 90, 29, 65, 25, -104, 7, 126, 4, -93, -92, -111, -121, -40, 54, -44, 49, 9, -8, 115, -10, -122, -10, 107, -103, 4, -126, 102, 0, 36, 111, -72, -104, 117, -18, -81, -89, -40, 16, -55, 64, -106, 119, 100, 55, 14, 124, -23, -43, 29, -16, 4, -49, -108, -77, -57, -48, -124, 66, -29, 35, 29, 117, -48, -96, 127, 67, 53, -73, -114, -98 ]
The opinion of the court was delivered by Brewer, J.: This case comes into this court for review of the decision and judgment of the district court of Nemaha county, upon a demurrer to the petition of plaintiff, which was sustained, and judgment forthwith thereon rendered for defendants. The petition shows that Ewing, as assignee of Potter, held a school-land-sale certificate dated November 20, 1867, for 160 acres of land; that Potter went into possession and made permanent improvements upon said land, and thereafter, until February 20, 1878, plaintiff was in possession, and had so improved said land as to have it inclosed with an Gsage hedge fence, and to have a house and a well thereon, and all of the value of $2,000, and had paid six of the ten payments to be paid therefor, his last payment of principal being in 1873, and of interest in 1874; that taxes had been paid from date of sale up to 1873, and that for the taxes of that year a sale had been made to the county, which was unassigned until January 23, 1878; that a subsequent sale was made to the county for the tax; of 1874, to which was charged up the taxes for 1875-6; that on November 7, 1877, this last tax-sale certificate was assigned to defendant, Martha E. Baldwin, the wife of S. J. Baldwin; that forthwith, on said day, Baldwin (with no claim to said land, unless under such certificate, and which was void, being a sale forbidden by law, there being an outstanding sale certificate held by the county for tax of 1873, at the time such sale for 1874 was made) paid to the treasurer the four of the ten payments unpaid under Ewing’s sale certificate, and $85.55 interest, being a total of $301.55, and obtained a certificate of full payment; that upon such payment Baldwin obtained a certificate from the county clerk, and thereon procured the auditor to certify that she had made full payment for said land as a purchaser thereof; that thereon, on November 14, 1877, the governor issued a patent to Baldwin under school-land-sale act of 1864, which was placed on record November 21, 1877; that Baldwin placed thereon what is conceded to be a bona fide mortgage for $550; that on February 20,1878, Baldwin forcibly evicted defendant’s tenant from the premises, and has since enjoyed the benefits thereof; that the $550, derived from the mortgage and. the use of the premises for 1877-1878, amounted in excess of all tax liens paid on said land, and purchase-money therefor; that Baldwin obtained such assignment, certificate and patent through collusion with the county officials, and without authority of law therefor; and thereon praying that Baldwin be held as trustee (as such patentee) for the benefit of plaintiff, and compelled to account for benefits derived, and upon same being settled, that title should be decreed to be conveyed to plaintiff. Was there error in the ruling of the district court? On behalf of defendants, it is urged that by the default of Ewing in the payments of principal and interest, he had forfeited all rights and interests in the land, and that therefore it matters not what wrong may have been done to the state or the school fund by the defendants — he can found no personal rights thereon. The case of The State v. Emmert, 19 Kas. 546, is referred to as decisive, in which this court held, that “If a purchaser of school lands fails to pay the interest or principal at the time the same becomes due, such failure ipso facto works a forfeiture; and the interest of the purchaser in the land instantly and absolutely ceases.” It is further urged that school lands are by statute subject to taxation, and that the purchaser at a tax sale has a right to complete the pay ments to the school fund for his own benefit, and that defendants have only exercised this statutory right. On the part of the plaintiff, it is argued that the question of forfeiture is one which can arise only between the vendor (in this case, the state) and the vendee; that no third party can raise the question; that even the vendor cannot both accept the money and claim the forfeiture; that accepting the former waives the latter; that in case of forfeiture, the land is to be reappraised and resold, and the money paid forfeited to the school fund; that the defendants have treated this as though there were no forfeiture, and have paid the balance of the purchase-money to the state, and the same has been accepted, so that there is in fact no question of forfeiture in the case; that defendants’ attempted purchase of a tax title was a failure, (Morrill v. Douglass, 17 Kas. 291,) and gave them no right to be substituted for plaintiff, as purchaser from the state. So that the case resolves itself into this: that defendants voluntarily paid the balance of the purchase-money due to the state, and then wrongfully obtained a conveyance of the legal title to themselves. We think the ruling of the district court in favor of the defendants must be sustained. By the plaintiff’s default, his rights and interests had fully and absolutely ceased. He bought in the first instance with that law plainly before him, and with that as a part of his contract. His rights and interests were to cease and determine, not upon the election of this or that officer, nor at the close of judicial proceedings, but immediately and absolutely upon a default in payment of either principal or interest. He had defaulted, and defaulted for years. There was no attempt to interfere at the instant of default. Now, having no right or interest in the land, and having had none for years, how has he been deprived of anything by the conduct of defendants? No matter what they may have acquired, or how they acquired it— they have taken nothing which belonged to him. That at one time he had an interest in the land, does not give him a present right to challenge their conduct. Their wrong-doing does not restore his lost estate.- He is in no worse condition than if the county attorney had proceeded to eject him, as it was his duty to do, and thereafter the land had been reappraised and resold. If'the school fund has been wronged, the public officers are the ones to enforce redress. But further: plaintiff defaulted, not merely in his payments of purchase-money, but also in the taxes on the land, and defendants became tax purchasers. As such they had a right to protect their tax interests against the claims of the school fund. Such a right is not limited, as counsel claim, to the holder of a tax deed. If it were, it would generally be only a barren right. But every purchaser at a sale, or of a sale certificate, may protect his interest by paying any sum due as purchase-money to the school fund. (Comp. Laws 1879, p. 856, §14.) And these defendants paid for themselves, and to protect their own claims: whether those claims were well or ill founded, they had a color of right, and to protect that made their payments to the school fund. They never pretended to be paying plaintiff’s debt, but, claiming to own the land by virtue of their tax-purchase, paid the balance due upon the original sale. In all this they acted for themselves, and adversely to plaintiff. Whether defendants have not gone further than they were entitled to, and obtained a patent before they had acquired a tax deed, and whether plaintiff could not have redeemed from these tax sales, are questions not properly before us. No redemption in fact is alleged. The plaintiff does not claim to have tendered any money to either the county treasurer or the defendants. All he claims’Ms, that they have been reimbursed in théir entire outlay by the Value of their possession of the land and the money they received from a mortgage on the title they acquired. But upon this, see Stebbins v. Guthrie, 4 Kas. 354; Hoffmire v. Rice, 22 Kas. 749; Comp.Laws 1879, p.963, §127. It may be that plaintiff has lost the proceeds of some years of toil, and that defendants have acquired property for less than its real value. But contracts in which time is of the essence of the contract, though hard and harsh, are legal. Parties who voluntarily enter into them have no right to complain of their terms. Always, or almost always, there are benefits, or supposed benefits, to countervail the risk, and where a party defaults in his payments of purchase-money to his vendor, and of his tax obligations to the state, and so defaults for a series of years, he need not be surprised to see that property, whose obligations he has abandoned, but whose benefits he has been seeking to continue, pass to one who has discharged all his delinquent obligations in respect to the land. The prospect of getting land at less than its market value is one of the inducements the state holds out to purchasers at tax sales to. encourage such purchasers, and insure prompt payment of taxes. And this policy, whether right or wrong, wise or unwise, the courts may not thwart. We think the ruling of the district court was correct, and must be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: Plaintiff in error, on the 26th day of March, 1879, filed his petition in the district court in and for Atchison county, against the said defendant, George Sutliff, for the purpose of foreclosing a lien against certain real estate claimed by • defendant, as grantee, under one James Preston. The lien accrued, as plaintiff claims, under a contract made in the year 1870, between said Preston, the owner of the land, and the plaintiff. By said contract, plaintiff agreed to plant, grow, cultivate and train about 240 rods of hedge on the farm of said Preston, to wit: On and along the north line and on and along the north half of the east line of the N.E.-J of sec.l, T. 6, R. 19, Atchison county, Kansas; such hedge to be set in the spring of 1870, and to be trimmed and cultivated until the same would turn ordinary stock, the said Preston agreeing to pay therefor one and twenty-five one-hundredths ($1.25) dollars per rod, and to pay the same when three-fourths of said hedge would turn ordinary stock, and the balance when completed. Said petition further alleged that, on the 18th day of March, 1874, defendant Sutliff purchased said farm, entered into possession thereof, and with notice of such contract and of the material furnished and work and labor performed by the plaintiff thereunder; that on the 25th day of November, 1878, plaintiff completed said hedge, and within four months thereafter filed his lien, affidavit and claim, in the proper office, and praying for judgment on such lien. Defendant answered with a general denial, plea of the statute of limitations, and other defenses. The case was tried by a jury. Verdict and judgment for defendant, and plaintiff alleges error. The errors alleged are in the instructions given and refused, and in submitting certain special questions to the jury- The last question-submitted, the propriety of which is unchallenged, was this: “If plaintiff .completed and performed his contract, at what date did he complete it?” The answer returned was this: “It has not been completed.” In other words, in an action on a contract and to enforce a mechanic’s lien, besides a general verdict for defendant, the jury specifically say that the plaintiff has not completed his contract. It seems to us this answer avoids the necessity of inquiry as to most of the matters discussed by counsel, for if the contract was not completed the action was premature. It is true the contract stipulates for a partial payment when three-fourths of the hedge should turn ordinary stock, but the defendant was no party to such contract. Preston was the only party personally liable thereon, and against whom a personal judgment could have been obtained. Defendant’s property was sought to be charged with a lien under the mechanic’s lien law, but that law provides that the owner shall not be liable to an action until sixty days after the completion of the work. (Comp. Laws 1879, p. 689, § 631;. Perry v. Conroy, 22 Kas. 716.) Now it matters little what errors, if ány, appear in the record so long as it affirmatively appears that no cause of action existed, or that the action was prematurely brought. Hence it is unnecessary to consider whether the law as laid down in the instructions was correct. At least this is true so far as it relates to any-instructions not bearing upon the question of the completion of the contract. We see nothing touching upon this question calling for any notice. So far as the question of fact is concerned, there was testimony in abundance to sustain the finding of the jury. We conclude, therefore, that it appearing that the action was prematurely brought, the judgment must be affirmed. Valentine, J., concurring. Horton, C. J., not sitting.	[ -16, 106, -7, 31, -118, 96, 42, -104, 93, -79, -11, 87, -19, -117, 20, 105, -29, 9, 101, 106, 70, -73, 21, 120, -46, -13, -45, -35, -79, 77, -12, -42, 13, 24, 74, -107, -90, -126, -59, -100, -114, -124, -87, 100, -47, 104, 60, -3, 102, 77, 49, 46, -13, 42, 61, 67, 104, 44, -23, 41, -47, -16, -70, -123, 126, 2, 1, 70, -108, 71, -56, 46, -112, 53, 1, -24, 115, -74, 6, 116, 45, -103, 8, 102, 102, 32, 61, -17, -24, -72, 14, -2, -115, -89, -110, 72, -21, 14, -66, -99, 124, 20, 38, 118, -20, 5, 29, 124, 2, -114, -48, -77, 31, 48, -102, 11, -21, -89, -80, 97, -51, -94, 93, 103, 50, -101, -113, -72 ]
The opinion of the court was delivered by Brewer, J.: This case has been to this court once before, and the decision therein is reported in 21 Kas. 725. At that time a judgment upon the pleadings in favor of Gore was . reversed, and the case remanded for trial upon the facts. Subsequently a trial was had by the district court without a jury, special findings of fact made, and judgment entered upon them in favor of Gore. To reverse such judgment this proceeding in error has been brought. It may be stated generally, that the court found against the facts alleged in the answer, so that the decision in the prior case has little if any bearing upon the questions now presented. The first proposition of counsel for plaintiffs in error is, that the petition is fatally defective. It alleges substantially the execution-of a deed, that there was by mutual mistake a misdescription of the land, and prays a reformation. It does not allege a previous contract for the purchase of the land, the payment of any money, or any matter extrinsic to the deed by which it appears that the plaintiff has parted with anything or will suffer loss if reformation is not awarded. For all the petition shows, the deed may have been purely voluntary on the part of the defendants, a mere gift, and equity will not interfere to correct a gift. Now it may be, as counsel claim, that a demurrer, if it had been filed, ought to have been sustained. But none was filed. No challenge was made of the petition. Answer and reply were filed, trial had, evidence received and findings made before the sufficiency of the petition was questioned. And upon the question of the sufficiency of the pleadings, we need not look alone to the petition. We may properly examine all the pleadings, and if by them all there are sufficient allegations presented to make an issue of fact for trial, any defect in the petition will be cured. Now the answer which was considered when the case was here before, alleged that plaintiff had contracted to purchase the land at and for the price of $800, and that, relying upon his promise to pay that amount, the defendants had executed the deed, and that he had since failed and refused to pay. Upon the maxim that he who seeks equity must do equity, we held that this answer stated a defense. Thereafter a reply was filed, in which the plaintiff alleged that he bought the land for $395, and had paid that sum. This reply was found by the court to be true. Now taking the petition and reply together, a plain case for equitable relief is disclosed. Purchase, pay ment, and mistake in description, all appear. Clearly, the plaintiff would suffer great prejudice if denied a recovery; and no objection to the mere manner in which these facts, are alleged is of any avail, if not presented until after the close of the trial. Another claim of counsel is, that the statute of frauds presents an insuperable obstacle to the plaintiff’s recovery. The argument is, that the contract for the sale of the land was inparol, that there is no allegation or proof of the delivery of possession, the making of improvements, or any other matters which take a parol contract out of the statute of frauds, that the deed which was executed was a conveyance of other land, and therefore neither a conveyance nor a contract for the land in question. The argument is elaborated by counsel, and many authorities are cited. But these authorities run along the line of the doctrine of specific performance; while, the case at bar comes under the head of the reformation of con-, tracts. The difference between the two is marked and substantial. One aims to enforce a parol contract as .though it were in writing; the other seeks simply to conform the written to the real contract. One would avoid the necessity of any writing; the other would simply correct the writing. The principles which control the one are essentially different from those which control the other. / If a parol contract were sought to be enforced, the arguments and authorities of counsel would be in point. But the reformation of a deed already made, the correction of a contract already in writing, involve very different considerations. The question is, not whether there has been such a performance as renders inequitable the non-enforcement of the parol contract, but whether the written is the actual contract. It is not the substituting of acts in pais for the written contract, but it is making the written the expression of the real contract. We think, therefore, that the argument and authorities of counsel based upon the statute of frauds are not apt, and the objection urged not well taken. It would undervalue the whole doctrine of the reformation of contracts and deeds, if the case were to be treated as though no writ ten contract had ever been made. The reformation implies the existence of a written contract. It corrects that which exists, and does not seek to avoid the necessity of that which is not'. A mutual mistake must be shown, and that the party would be wronged by a failure to correct. • These facts appearing, the power and duty of a court of chancery to reform is clear. Many objections are urged in reference to the admission, exclusion and effect of the testimony. We see nothing in reference to the admission or exclusion of testimony which calls for-notice, nothing in which a different ruling would have changed the result. As to the effect of the testimony, it is urged that the findings of the court cannot be sustained, because one party swears that the consideration was $800, while the other as positively swears that it wa¿s but $395. Hence, it is argued that the plaintiff has failed to make his case clearly apparent. We cannot agree with counsel, for the fact of a mutual mistake in the description is conceded, and the matter of consideration, performance and prejudice must, we think, rest upon the ordinary rule as to the preponderance of evidence, and, as to that question of fact, the finding of the trial court is conclusive. Upon the whole record we see no error prejudicial to the material rights of the plaintiffs in error, and therefore the judgment must be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: The paramount question in these cases is, ■ the validity of the prohibitory amendment submitted at the last November election. Counsel have invoked our most careful and serious consideration in its determination. Its importance compels that. On the one hand, we have been told that it is the crowning effort of a brave and earnest people to free itself from the curse of intoxication; on the other, that it is a departure from the wisdom and experience of the past, a radical change of policy, trespassing upon personal liberty and rights of property. But questions of policy are not questions for the courts. They are wrought out and fought out in the legislature and before the people. Here the single-question is one of power. , We make no laws; we change no constitutions; we inaugurate no policy. When the legislature enacts a law, the only question which we can decide is, whether the limitations of the' constitution have been infringed upon. When a constitutional amendment has been submitted, the single inquiry for us is, whether it has received the sanction of popular approval in the manner prescribed by the fundamental law. So, that whatever may be the individual opinions of the justices of this court as to the wisdom or folly .of any law or constitutional amendment, and notwithstanding the right which as individual citizens we may exercise with all other citizens in expressing through the ballot box our personal approval or disapproval of proposed constitutional changes, as a court, our single inquiry is, have constitutional requirements been observed, and limits of power been regarded ? We have no veto. The judge who casts his individual opinions of wisdom or policy into the decision of questions of constitutional limitations and powers, simply usurps a prerogative never committed to him in the wise distribution of duties made by the people in their fundamental law. With these preliminary observations, we pass to the question whether this prohibitory amendment has received the popular approval in such a manner as to become a part of the constitution. The state board, of canvassers, after a canvass of the votes, declared, in November last, that it had received a majority of the votes cast upon the question, and had therefore become a part of the organic law. This declaration is challenged upon two grounds: first, a non-compliance with constitutional methods; and second, a conflict with the superior obligations of the constitution of the United States, and the indestructible rights of personal liberty and individual property. Have constitutional forms and methods been followed ? The provision concerning amendments is found in §1, art. 14, and is as follows: “Propositions for the amendment of this constitution may be made by either branch of the legislature; and if two-thirds of all the members elected to each house shall concur therein, such proposed amendments, together with the yeas and nays, shall be entered on the journal; and the secretary of state shall cause the same to be published in at least one newspaper in each county of the state where a newspaper is published, for three months preceding the next election for representatives, at which time the same shall be submitted to the electors for their approval or rejection; and if a majority of the electors voting on said amendments, at said election, shall adopt the amendments, the same shall become a part of the constitution. When more than one amendment shall be submitted at the same time, they shall bé so submitted as to enable the electors to vote on each amendment separately; and not more than three propositions to amend shall be submitted at the same election.” The joint resolution, as it appears in the statutes of 1879, reads as follows: “Section 1. The following proposition to amend the constitution of the state of Kansas shall be submitted to the electors of the state, for adoption or rejection, at the general election to be held on Tuesday succeeding the first Monday of November, A. D. eighteen hundred and eighty: “‘Proposition. — Article fifteen shall be amended by adding section ten thereto, which shall read as follows: The manufacture and sale of intoxicating liquors shall be forever prohibited in this state, except for medical, scientific and mechanical purposes.’ “ Sec. 2. The following shall be the method of submitting said proposition to the electors: The ballots shall be either written or printed, or partly written and partly printed, and those voting for the proposition shall vote, ‘ For the proposition to amend the constitution,’ and those voting against the proposition shall vote, ‘Against the proposition to amend the constitution.’ “Sec. 3. This resolution shall take effect and be in force from and after its publication in the statute book.” (Laws 1879, p. 293.) The original document, with the indorsements of the various officers of the two houses, and the signature of the governor, is in the office of the secretary of state, and is as published. The legislative history of this amendment, known as senate joint resolution No. 3, is, briefly, as follows: 1879, Feb. 8. — 'Introduced by Senator Hamlin, by unanimous consent, and read the first time. (Senate Journal, p. 312.) Feb. 13.— Reported back from committee on judiciary, with recommendation that it be referred to committee of the whole, and printed. (Senate Journal, 357.) Feb. 20. — Reported back from committee of the whole, with recommendation that it be passed. (Senate Journal, 416.) Feb. 21. — Passed the senate; yeas 37, nays 0. (Senate Journal, 432.) Feb. 21.— House informed of the passage of the resolution by the senate. (House Journal, 576.) Feb. 24. — r First and second reading, and referred to committee on temperance. (House Journal, 618 and 620.) Feb. 26. — Reported back to the house, with recommendation that it be passed. (House Journal, 743.) March 4. — Ordered to third reading. (House Journal, 949.) March 5. — Read the third time, and passed; yeas 88, nays 32; absent or not voting, 10; two-thirds of all the members •elected to the house, 86. (House Journal, 999.) March 6.— Passage of the resolution by the house reported to the senate. (Senate Journal, 611.) March 8. — Approved by the governor. (Senate Journal, 715.) Upon the journal of neither house does this amendment appear; it is simply described as “senate joint resolution No. 3, proposing an amendment to art. XV of the constitution of the state of Kansas, relating to the manufacture and sale of intoxicating liquors, by adding section 10 to said article.” This article XV is entitled “Miscellaneous,” and nothing in it, prior to this proposed section 10, refers to the manufacture or sale of intoxicating liquors. Upon the canvass made by the state board of canvassers, it declared that this amendment received 92,302 votes, that only 84,304 were cast against it, and that, having received a majority of all the votes cast upon the question, it was adopted by the people, ’and had become a part of the constitution. Upon these facts all the questions as to form and method arise. It is insisted, first, that the proposed amendment was never legally submitted to the people, inasmuch as it does not appear in full upon the journal; second, that no provision was made for receiving, counting, or canvassing votes; that, therefore, the action of the election boards, county commissioners and state canvassers, was without warrant of law and void, and that this court has and can have no legal evidence that a majority of the votes cast upon this amendment was in favor of it; and finally, that two amendments having been submitted, an examination of the votes by precincts shows that a majority of all the votes on the two amendments was not east in favor of this. The constitution provides that the “proposed amendments, together with the yeas and nays, shall be entered on the journal.” (Art. 14, §1.) Is the failure to enter this amendment at length on the journals, fatal? It is well said by counsel, that no change can be made in the fundamental law, except in the manner prescribed by that law. In the case of Collier v. Frierson, 24 Ala. 100, the court says: “We enter tain no doubt, that to change the constitution in any other mode than by a convention, every requisition which is demanded by the instrument itself must be observed, and the omission of any one is fatal to the amendment.” That case illustrates and enforces this proposition. The constitution of Alabama required, in order to work án amendment, that the proposition be approved by two-thirds of one legislature — a popular vote — and then by two-thirds of the next legislature. This last approval was wanting, and the court held that the constitution had not been amended. In other words, proceedings under a constitution to change that constitution must be in accord with the manner prescribed by that constitution. But this only brings us to the real question in this case: Is a proposition to amend the constitution in the nature of a criminal proceeding, in which the opponents of change stand as defendants in a criminal action, entitled to avail themselves of any technical error, or mere verbal mistake; or, is it rather a civil proceeding, in which those omissions and errors which work no wrong to substantial rights are to be disregarded? Unhesitatingly, we affirm the latter. The central idea of Kansas law, as of Kansas history, is, that substance of right is grander and more potent than methods and forms. The two important, vital elements in any constitutional amendment, are, the assent of two-thirds of the legislature, and a majority of the popular vote. Beyond these, other provisions are mere machinery and forms. They may not be disregarded, because, by them, certainty as to the essentials is secured. But they are not themselves the essentials. Take a strong illustration: The constitution requires that the “secretary of state shall cause the same to be published in at least one newspaper in each county ¡of the state where a newspaper is published, for three months preceding,” etc. Suppose a unanimous vote of both houses of the legislature, and a unanimous vote of the people in favor of a constitutional amendment, but that the secretary had Omitted to publish in one county in which a newspaper was published, would it not be simply an insult to common sense to hold that thereby the will of the legislature and people had been defeated? Is it within the power of the secretary, either through ignorance or design, to thwart the popular decision? Is he given a veto, or can he create one? This may be an extreme case, but- it only illustrates the principle. The records of the proceedings of the two houses are made, not by the houses themselves, but by clerical officers. True, they are under the control of .the respective houses, but in fact the records are made by clerks. May they défeat the legislative will? The constitution does not make amendments dependent upon their approval or their action. To insure certainty and guard against mistake, journal evidence of the amendment and votes is prescribed, but this is mere matter of evidence, and not the substantial condition of constitutional change. In Leavenworth County v. Higginbotham, 17 Kas. 62, a law was upheld, although the signature of the presiding officer of the senate was never affixed to it as the constitution prescribes, and although the yeas and nays were not entered on the journal of the senate on its concurrence in certain slight amendments made by the house. See also Division of Howard County, 15 Kas. 194. Again, in constitutional changes the popular voice is the,' paramount act. While to guard against undue haste and temporary excitement, to prevent unnecessary and frequent appeals for constitutional amendments, the assent of two-thirds of the legislature is prescribed as a condition precedent, yet after all, that which determines constitutional changes is the popular will. This is a government by the people, and whenever the clear voice of-the people is heard, legislatures and courts must obey. True, a popular vote without previous legislative sanction must be disregarded. There is no certainty that all who could would take part in such a vote, or that they who did, all realize that it was a final action. It lacks the sanction of law, is a disregard of Constitutional methods and limitations, and should be taken as a request for a change, rather than as a change itself. But notwithstanding this, legislative action is simply a determina tion to submit the question to popular decision. It is in no sense final. No number of legislatures and no amount of legislative action can change the fundamental law. This was made by the people, who alone can change it. The action of the legislature in respect to constitutional changes is something like the action of a committee of the legislature in respect to the legislative disposition of a bill. It presents, it recommends, but it does not decide. And who ever thought of declaring a law invalid by reason of any irregularities in the proceedings of the committee which first passed upon it ? It is the legislative action which is considered in determining whether the- law has been constitutionally passed; and it is the popular action which is principally to be considered in determining whether a constitutional amendment has been adopted. We pass now to the second, and really the most important, question. It will be noticed that the joint resolution simply provides that the proposed amendment shall be submitted to the electors at the general election. It does not otherwise provide for casting, receiving, counting or canvassing votes. It appoints no officers for the purposes of this election. It casts no duty upon the general election officers, imposes no penalty for false return, forgery, or other crime, and does not in terms refer to the general election laws. By what authority did the various election boards receive any votes tendered upon this question, or count any such votes, or return the result, to the county officials ? By what authority did these officers canvass and return to the state board of canvassers, or the latter canvass those returns and proclaim the result? Suppose that the election judges in any precinct had falsely and knowingly certified to the county canvassers that a thousand votes were cast in fkvor of the amendment, when in fact there were none; or that the county clerk had made a similarly false certificate to the state canvassers; or that the latter had falsely declared the result of the canvass made by them; or that either officer or board had omitted to return or certify the true vote against the amendment: .what law would have been violated, and to what punishment would the wrong-doer be subjected ? A lie as such, whether oral or in writing, is not a criminal offense. The law punishes only when some statute is broken; and if no statute casts any duty on these various officers, the moral quality of their conduct is not a subject of inquiry in the criminal courts. In order to make a valid election, is it not essential, ■not merely that a question be submitted, and a time for the election fixed, but also that election machinery be provided ? (Lewis v. Bourbon County, 12 Kas. 211; A. T. & S. F. Rld. Co. v. Jefferson County, 17 Kas. 39.) Does the fact that any officers assumed to conduct the election and canvass, bind any one or determine the result, unless, such officers were by law authorized to so conduct and canvass? In short, is not the failure to name the officers and provide the machinery for the election such an omission as renders invalid any election in fact held, or any canvass and declaration of result in fact made. It must be conceded that this proposition has great force. Thé arguments sustaining it were put with unequaled skill and ability by the learned counsel, and the claim that to sustain this election the court must assume the functions of a legislature, and supply the omissions of that body, is very plausible. In dissenting from this claim, several reasons control; perhaps no one by itself is sufficient, but all together compel us to uphold the election as actually held, and the result as actually declared. And first, the election itself was authorized by law. It was not a mere volunteer proceeding. The proposition was put by legislative sanction before the people, who were invited to consider and act upon it. “The following proposition . . . shall be submitted to the electors of the state for adoption or rejection.” Both constitution and statute name the time and the persons at which and to whom this proposition is submitted. And the statute further provides that the proposition shall be submitted “at the general election.” This implies something more than the mere matter of time. The consti tution says “at which time.” But the statute goes further: it does not read, at the time, -or on the day of the general election, but at that election itself. For the purpose of voting upon and determining the question submitted, it thus refers to and appropriates the statutory machinery of the general election. Concede that this may technically be limited to the mere proceedings of election day, and that the constitution and the statute together, prescribing the form of ballots, the parties entitled to vote, the time of election, and the election machinery, have exhausted their force at the close of the polls, and what then? Must not the court take judicial notice'of the result? We are bound to know what the constitution is — what the statutes are. We take judicial notice of them. No proof is required — none is proper. In the case of the Division of Howard County, 15 Kas. 213, it is said: “Of course, we take judicial notice, without proof, of all the laws of our own state. All the courts of the state are required to do this. And in doing this, we take judicial notice of what our books of published law contain, of what the enrolled bills contain, of what the journals of the legislature contain, and, indeed, of everything that is allowed to affect the validity of any law, or that is allowed to affect or modify its meaning in any respect whatever.” Now, the constitution provides that, “if a majority of the electors voting on said amendments at said election shall adopt the amendments; the same shall become a part of the constitution.” Suppose a majority did adopt, but no machinery is provided for ascertaining that fact, no one is authorized to canvass and proclaim the result, and no one in fact does so canvass and proclaim: must not the court nevertheless take judicial notice of the result? When the constitution says that upon certain conditions an amendment is adopted, must we not take judicial notice of the happening of those conditions? It is the election, and not the canvass, that works the change; and if we are bound to take notice “of everything that is allowed- to affect the validity of any law,” must we not of everything affecting the fundamental as well as the statute law? And judicial notice does not depend on the actual knowledge of the judge or the extent of the personal labor and inquiry required. The justice of the peace in the most remote county in the northwest ■ portion of the state, who may never have seen a copy of the journal of either house, takes judicial notice of all things appearing in either journal, so far-as they affect the validity of any law. When challenge is made, he must investigate and know. So, although it may seem extravagant, yet if the legislature has failed to make provision for the canvass of any vote on a proposed constitutional amendment, and if in fact none be made, must not the courts take judicial notice of the actual vote and its result? It may be said if we take judicial notice of votes on one question, why not on all, and what need of election contests? Let the court determine on its judicial knowledge. But we do not take judicial notice of votes and elections as such, but we can take notice of them so' far, and only so far, as they affect the validity of some public law. We do not take judicial notice of all things in the journals of the houses, or of all in the statute books. A private act must be proved, and ohly such portion of the journals as affects the validity of some public law is matter of judicial notice. The point is this: The courts are to know\ what is and what is not a public law of the state; what is \ and what is not a part of the constitution; and to that end, must take judicial notice of everything, near or remote, that determines such fact. This argument condensed, is this: The courts take judicial notice of what is public law, statutory or constitutional. When a majority of the electors voting on an amendment at an election properly ordered, adopts it, then it becomes a part of the constitution. So the constitution itself says. The courts must judicially know whether such amendment has been adopted, and is in fact a part of the constitution, and to that end, if need be, must take judicial notice of every ballot cast at that election. But, second: does not a fair reading, a reasonable construction of the resolution, make it broad enough to appro priate the entire election machinery, including all relating to canvass as well as to casting votes ? It says that the proposition “shall be submitted to the electors of the state for adoption or rejection, at the general election to be held on the Tuesday succeeding,” etc.; and the second section prescribes the form of the ballot. This, as we have just considered, plainly anthorizes the vote. Does it not also appropriate the whole election machinery? We have a general election law, It is a single statute, yet it covers all details of ordinary elections, names election boards, prescribes rules of election, provides for returns and canvass of all votes — township, county, district, and state. True, it speaks of individuals as though persons were all affected by and the subject of elections, yet it is one election law of the state. It is- a general election law. Now, when a proposition is submitted to the people at the general election, without further words or designation, does it not mean that the proposition is to be decided in the manner prescribed by that general election law? It is an old and familiar doctrine that that which is within the spirit of the statute, though not within the letter, is a part of it; as well as that which is not within the spirit but within the letter, is nota part of it. Quaeeunque intra rationem legis inveniuntur, intra legem ipsam esse judieantur. (2 Coke’s Inst. 689.) It will not be presumed that the legislature went through the form of legislative action, intending nothing, (City of Emporia v. Norton, 16 Kas. 236,) or that it made incomplete provision for carrying its intention into effect. Rather, in order to support and make effective legislation, it will be presumed that it used words and phrases in a larger and broader sense than common. Now, along this line of argument, one of two things is clear: either the legislature intended by the words used, to appropriate the entire machinery of the general election law, or else it ignorantly or intentionally omitted that which is necessary to make its action effective. By the ordinary rules of construction, the former must be presumed, rather than the latter. Legislation should be supported if possible. If in common conversation it should be stated that a question had been submitted to the electors at a specific and named election, the universal understanding would be, not only that the votes were to be received, but also that they were to be counted, canvassed, and the result proclaimed; and all this would be implied from the simple statement in reference to the submission. Should not equal extent be given to the language used by the legislature, if, without such extent, its intended action fails? Of course, what the legislature omits, the courts cannot supply. But the largest latitude may, and should be given to the language used, in order to uphold, rather than defeat its action. Especially is this true when, otherwise, large interests fully considered, will fail, and more especially is this true, when upon the faith of such legislative action the people of the whole state have been stirred up and moved to express their judgment upon a matter understood to be before them for decision. Again, concede that criminal laws cannot be extended by implication, and that there is an entire lack of penalties for misconduct at the election, either on the part of electors or election officers, yet such omission is not fatal to the validity of the election. If every portion of the penal laws touching misconduct at elections were stricken out, the substantial elements of the general-election statute would remain. Elections held under it would be as valid and effective as now. No official duty is made more sacred and binding because the legislative wisdom has prescribed penalties for any breach of such duty. Though every statute punishing official misconduct were repealed, official duty would remain obligatory, and official action legal and effective. But, beyond presumptions and necessities, we have experience. That which for years has been accepted and acted upon, may now justly be considered as sufficient. A mere form of action once recognized and approved, may properly be followed without danger to the substance. Now the present} method of submission of amendments to the constitution has! been in use for many years. Several amendments thus submitted have been adopted, and recognized, and acted upon as parts of the constitution. Let us look along the line of the past. From the admission of the state in 1861, to 1868, certain .amendments were submitted, and the propositions therefor in terms appropriated the general-election law. From 1868 to 1873 no propositions for amendment were submitted. Since then, this is history: In 1873 an amendment was proposed, changing the numerical organization of the legislature. (Laws of 1873, p.249.) This was approved by the popular vote, and it has since been acted upon in the legislative organization. Its validity has never been challenged. All laws since then have been enacted by legislatures organized upon the basis established by that amendment. All taxes levied, all appropriations made, all the motions of governmental machinery, center and rest upon the validity of such legislatures. In 1875, three amendments were submitted. (Laws 1875, p. 207.) These also were accepted, and they have since been acted upon without challenge. In 1876, two amendments were proposed, (Laws 1876, p. 299,) adopted, and popularly accepted, without question. In 1879, three questions were submitted to popular vote, one for a constitutional convention, one changing the section concerning assessment and taxation, and the other, the one in present controversy. Now, in all these legislative acts since and including 1873, the provisions concerning popular action are similar. There is no specific appropriation of the machinery of the general-election law, and no provision beyond a submission to the electors at the general election, and a prescription of the form of the ballots; yet to-day the sufficiency of this form of submission is for the first time challenged. If we Were to hold that form insufficient, what becomes of these various amendments? Will it not unsettle all that for nearly a decade has been accepted and acted upon as sufficient? Unsettling them, will not all legislation, all conduct and all rights based thereon fail, and the general order and peace stand in confusion ? Counsel say no, because there has been a general acquiescence in the results of such elections — both legislative, executive and judicial recognition of the validity of those amendments. Hence, everything of irregularity and informality has been waived. But the question necessarily arises: If such acquiescence and recognition are sufficient to support these amendments, do they not support the- form of submission as well as the result of the election ? Do they not carry an affirmation on the part of the legislatures which so submitted, of the people who acted upon such submission, and of all the departments of the government which have recognized the validity of these amendments, that this form of submission is sufficient under the constitution? Is it not a legislative and popular interpretation of the scope and import of the language used in these various acts of submission ? The several election officers and canvassing boards proceeded to act as though they were specially deputed, and from year to year there has been universal acquiescence. It must be borne in mind that it is not simply a single submission and election thus acquiesced in. After one election, and the adoption of one amendment proclaimed, a succeeding legislature submits further propositions. It finds that a certain form of submission had been used, that under it the people had voted, and all proper canvass and returns made, and no question raised as to the validity of all these proceedings. And in using the same form of language in submitting these propositions, does it not substantially say that it intends all that the people have impliedly recognized as contained in the former submission? And this is repeated again and again. Surely, in all this there is an interpretation of the language which may not be ignored. Words and phrases by usage and acquiescence ofttimes acquire a meanifig beyond their natural import. A man may bind himself by habitual use of any signature. It is a frequent thing to strain the ordinary meaning of a term or a sentence in a contract to effectuate the manifest intent of the contracting parties. It is a cardinal canon of construction of all statutes, that the intent governs. [The State v. Bancroft, 12 Kas. 170.) And repeated use by succeeding legislatures of any word or phrase in any restricted or enlarged sense compels a judicial recognition of that sense. (County Seat of Linn County, 15 Kas. 527.) Here also may appropriately be noticed the fact that the past tells the same story of omission from the legislative journals, of the full text of the proposed amendment, as it does by defect in the form of submission. Many amendments have gone before the people, been adopted and acted upon as parts of the. constitution, when only the title, scope and object can be found on the journals. (House Journal, 1876, p. 527; Senate Journal, 1876, p. 303; House Journal, 1875, pp.444, 445; Senate Journal, 1870, pp. 542, 543; House Journal, 1873, p. 763; Senate Journal, 1873, p. 584.) Another thought, and we pass from this question. We may not ignore public history. Nearly two years elapsed between the time the.proposition passed the legislature and the day of the popular vote. During this time this question was not forgotten. It was discussed in every household and at every meeting. The state was thoroughly canvassed; its merits and demerits were presented and supported by all possible arguments. . Pulpit, press and platform were full of it. It was assumed on all sides that the question was before the people for decision. There was not even a suggestion of any such •defect in the form of submission as would defeat the popular decision. If this objection had been raised prior to the election, the legislature could have been easily convened, and the defect remedied. But there was not a suggestion from friend or foe. The contest was warm and active. After the contest was ended and the election over, the claim is for the first time made that after all there was nothing in fact before the people; that this whole canvass, excitement and struggle was simply a stupendous farce, meaning nothing, accomplishing nothing. This is a government of the people, by the people, and for the people. This court has again and again recognized the doctrine lying at the foundation of popular governments, that in elections the will of the majority controls, and that mere irregularities or informalities in the conduct of an election are impotent to thwart the expressed will of such majority. (Gilleland v. Schuyler, 9 Kas. 569; Morris v. Van laningham, 11 Kas. 269; Wildman v. Anderson, 17 Kas. 344; Jones v. Caldwell, 21 Kas. 186; Lewis v. Comm’rs of Bourbon Co., 12 Kas. 186.) In the opinion of the case last cited, we said, speaking of a case somewhat similar: “Notwithstanding the silence of the statute and the omissions of the order, an election would doubtless be valid where the people generally acquiesced in the manner, and took part in the election.” We could not have used language more apt if we had then been anticipating this very case. While estoppel may not technically bind either party to an election, yet where a mere defect of form exists which may, if presented seasonably, be fully corrected, and is not suggested until after the election is over, there is eminent justice in applying the principles of estoppel, and holding that they who have gone to trial on the merits shall not, when beat m there, go back to an amendable defect in the preliminary proceedings. Another argument is based upon the use of the plural in this cause: “And if a majority of the electors voting on said •amendments at said election shall adopt the amendments, the .same shall become a part of the constitution.” Now it is said, that computing the vote by precincts, it is apparent that more than twice 92,302 voters voted on the two amendments, some on one and some on the other, and that before any one amendment is adopted, it must appear that a majority of all who voted on all the amendments, voted in the affirmative on the one. This does not commend itself to our judgment. A more correct interpretation grammatically of this language would be, that no single amendment could be adopted unless all were, there being no provision for adopting one out of several. But we think the clear intent is, that every amendment submitted shall stand upon its own merits, and that if a majority of those voting upon it is in the affirmative, it becomes a part of the constitution. This idea is confirmed by the further provision, that where more than one amendment is submitted, they must be so submitted as to enable the voters to vote on each separately. A distinction is also apparent between the number requisite for the adoption of an amendment, and that for calling a constitutional convention. In the latter, it must be a majority of all the electors voting at that election; while in the former, it is a majority of those voting on the amendment. A final argument against the validity of this amendment is,, that it is in conflict with the fourteenth amendment of the federal constitution. Counsel have made an ingenious argument, based on the assumption that this amendment was taken substantially from the bill of rights of the constitution of the state of New York, and that the scope and effect of such .amendment had been determined by the court of appeals in New York, in the cases of Wynehamer v. The People, 13 N. Y. 378, and Metropolitan Board of Excise v. Barrie, 34 N. Y. 657. A full answer to this argument is the unanimous decision of the supreme court of United States, the final arbiter in all questions of alleged infractions of the federal constitution, in-the case of the Beer Co. v. Massachusetts, 7 Otto, (97 U. S.) 25, a decision since the adoption of the fourteenth amendment, and reaffirming the decision in Bartemeyer v. Iowa, 18 Wall. 129, in which the court decides that a state law prohibiting the manufacture and sale of intoxicating liquors for use as a beverage is not repugnant to any clause of the United States constitution. Comment upon or argument to support that decision would be a manifestly superfluous and unnecessary work. We pass now to the second important question: If the-constitutional amendment was adopted, what effect has it upon the dramshop act? And upon this question the members of this court are not fully in accord, yet the majority holds that the penalties of that act are still in force. The-difference arises upon the scope and applicability of two accepted and well-approved rules of statutory construction.. One is, that repeals by implication are not favored; that, where a subsequent statute departs in some respects from a. prior, without any formal repeal of such prior act, the provisions of the former will be upheld so far as not absolutely inconsistent with those of the latter. This is true of constitutional as well as statutory changes. (Brooks v. Borough of Danville, [Pa. Sup. Ct.] 23 Albany L.J. 95; Prouty v. Stover, 11 Kas. 235.) Along this line the thought is, that the dramshop act prohibits, under penalty, the sale of liquor to certain persons, upon certain days, and except upon certain conditions, as to petition, license, etc. The amendment has simply enlarged and increased- these restrictions. It permits the sale for certain purposes. It thus, without abrogating penalties, simply puts additional limitations upon the sale. Before the amendment and under the dramshop act, the licensed dealer might sell to adults not habitual drunkards, upon secular days not devoted to special purposes. Under the amendment, such licensed dealer may still sell, but only for certain purposes. The right to sell remains. The conditions of license continue. The only change is, in the limitations upon the purposes for which the sale may be made. My associates think this the sounder argument, and the true construction. The other theory is, that when the latter law is evidently. a substitute for the former, when the underlying idea and thought of the one is a departure from that of the other, then, although no formal words of repeal are used, the former wholly ceases upon the adoption of the latter, and this, although certain sections and provisions of the former may be consistent with and valid as parts of the latter. This seems to the writer of this opinion, the correct view. Whatever of similarity may exist in details and means of enforcement, I think the idea underlying license is widely and essentially different from that supporting prohibition. True, license has limitations, restraints and penalties, and prohibition has also its limitations and penalties. The penalties to uphold the one may be of the very nature of those to enforce the other. But the idea of license is to permit the use, while guarding against the abuse, of liquors as a beverage; but the idea of prohibition is, the absolute destruction of the use, as a beverage, of any intoxicating liquors. I do not care to push this argument to any extent, for the present legislature has already adopted an act intended to give active force and operation to the provisions of the amendment. In the case of Ehret, it is contended, that as the defendant had obtained a license from the city of Winfield, prior to the adoption of the amendment, to sell intoxicants, and as such license had not at the time of the alleged offense expired by its terms, he was exempt from the operation of the provisions of such amendment, on the ground that the license is a contract that could not be ignored or abrogated by constitutional or statute law. Not so. Such licenses are not contracts within the meaning of the federal constitution, and are liable to be modified or set aside whenever they fail to promote the good order and welfare of the community. (Calder v. Kurby, 5 Gray, 597; Freleigh v. The State, 8 Mo. 606; Commonwealth v. Brennan, 103 Mass. 70; Cooley’s Const. Lim. 582, 583.) Within the views of the majority of the court, under the existing laws, licenses can only be issued to sell intoxicating liquors for medical, scientific and mechanical purposes. All sales of intoxicating liquors, since the adoption of the amendment, whether under licenses issued before or since its adoption, for other purposes, are unlawful. A final question is presented in one of these cases — that of Weaver. It is insisted that the complaint is fatally defective. It charges that “the defendant did, on January 1,1881, in Emporia city, Lyon county, Kansas, unlawfully sell to one J. S. Conwell, spirituous, vinous, fermented and intoxicating liquors, to wit, one gallon of whisky, . . . contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Kansas.” That this is defective, cannot be doubted. If seasonably challenged, the proceeding must have stopped, or at least an amendment must have been made. Perhaps it is so defective that a motion in arrest of judgment ought to have been sustained, though it is unnecessary to consider and pass upon that question. But still, it is not such an absolute nullity as not to challenge judicial consideration and action. And therefore the judgment of conviction cannot be pronounced void. (Burke v. Wheat, 22 Kas. 722; Bryan v. Bauder, 23 Kas. 95; Hodgin v. Barton, 23 Kas. 740.) Hence no relief can be granted by habeas corpus. (Civil Code, §671, second clause.) This disposes of all the questions in these cases. The petitions for habeas corpus will be denied; the judgment in the appeal ease of The State v. Charles Grieve and William Grieve, affirmed; and the judgment in the case of The State v. Reinhardt Ehret, reversed, and the cause remanded for further proceedings in accordance with the views herein expressed. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: In the court below, the appellant, William Stackhouse, being jointly indicted with his brother Charles, was placed upon his separate trial for the crime of murder in. the first degree. Upon the first trial the jury failed to agree, and upon the second trial, had at an adjourned session of the same term, the jury found the appellant guilty of murder in the second degree. He made motions for a new trial, and in arrest of judgment, which motions being severally overruled by the court, he was sentenced to confinement at hard labor ■in the penitentiary of the state for a term of twelve years, from which sentence and judgment he appeals to this court. The first error alleged is, the overruling of his motion to quash the indictment. Within repeated rulings of this court the indictment must be adjudged sufficient. It charges a deliberate and premeditated intent to kill and murder; that with this intent the defendants made a deliberate and premeditated assault; that this assault was with a rifle, or gun, and leaden balls, etc.; that by this assault they gave to deceased a mortal wound, of which wound he then and there died. Now here are all the elements of the crime: the assault, the killing, the intent to kill, and the deliberate and premeditated intent. The ruling of .the court upon the motion to quash was correct.. (Smith v. The State, 1 Kas. 365; The State v. Potter, 15 Kas. 302; The State v. Brown, 21 Kas. 38.) A second allegation of error is, that the verdict was against the evidence. This also must be overruled. The record is very voluminous, filling two bound volumes of some 800 pages. We cannot, therefore, notice the various matters of testimony. These things, however, are undisputed: The deceased had been living upon a tract of land for two years or more, claiming it as his residence and intending to acquire title to it from the government. In March, 1879, one Wilcox, denying his right to obtain title from the government, commenced a residence upon the land. The building erected by Wilcox, the deceased tore down. On May 28th, Wilcox commenced another building. In the afternoon of that day he went to the town of Hays, returning a little after sundown. As he neared the place where he had commenced his new building, the defendant and his brother came to the wagon, one with a rifle and the other with a shot-gun. Wilcox got out, and with them went towards this new building. He had a Colt’s navy pistol. As they neared the building the deceased appeared, and one of the three parties approaching shot and killed him. The claim of the state was two-fold: that the defendant was the one who fired the fatal shot; or, if not, that the parties went there in pursuance of a mutual purpose to commit a felony, and that in the attempt to commit that felony, the death was caused. Wilcox testified that defendant was, in his opinion, the party who shot-. The defendant’s brother fled the country that night, has not since been heard from, and was not a witness at the trial.- Defendant testified that he did not shoot, and that it was his brother who did. Other witnesses, claiming to have been witnesses of the transaction, testified similarly. Upon the mere question of the number of witnesses to the fatal shot, the preponderance was largely with the defendant, but there was other, testimony: the size of the bullet found in the brain of the deceased, the mark of a bullet in a door frame, the condition of the gun and rifle carried by himself and his brother when taken possession of the night of the murder, the feeling shown to have existed between defendant and deceased — all of which pointed towards the defendant as the one who.fired. The defendant is a man with a family, who had resided in the vicinity for some time. Defendant’s brother was a single man, a recent comer, and one who could easily change .his residence. The flight of the latter was not till after a visit of the deputy sheriff to defendant’s house, and knowledge of the fact that the shot was fatal. Now we do not mention these facts to show that the jury were bound to find that defendant was \|he one who shot, but simply to show that there was testimony pointing directly and positively to him as the principal offender, the party primarily and principally guilty. And upon a question of fact,' based upon contradictory testimony, the verdict of a jury is conclusive in this court. Upon the other branch of the case, a mutual intent to commit a felony, there was also considerable testimony, to wit: a bitter feeling on the part of defendant toward deceased, prior threats, his appearance at the time with a deadly weapon, his calling to Wilcox to leave the wagon and go to the place of the homicide, his proposition of violence to the deceased at that time as testified to by several witnesses. Indeed, it may safely be asserted that upon the testimony of the state alone, the jury could not well have done otherwise than come to- the conclusion that the defendant personally fired the fatal shot, or at the least that he was one of the three who, bent on violence to the deceased, approached and killed him. Either makes him guilty and sustains the verdict, and the question of contradiction between the state and defendant .is a matter not for this court to decide. It cannot be said that ¡the verdict was not sustained by the evidence. Error is also alleged in the matter of the admission of testimony. The principal line of objection here is, to testimony ■offered for the purpose of showing the state of mind of defendant toward the deceased. This testimony consisted of ■evidence of threats, expressions of dislike, and of the opinions of witnesses, based upon what they had seen and heard, that the parties were not on good terms. That evidence of threats and of expressions of dislike is competent, cannot be doubted. Such evidence strictly shows the state of mind of defendant toward the deceased, for out of the abundance of the heart the mouth speaketh. It tends to do away with the presumption which exists against any man’s doing injury to his neighbor. It tends to show a willingness to do him harm. Where one of three parties shoots and kills, and it is doubtful which one of them does this,, evidence that one had prior thereto threatened to kill, or even that he hated the deceased, points to that one as the guilty party. It also explains the character of the act, makes against an excuse of self-defense and shows a motive for the crime. (The State v. Horne, 9 Kas. 119.) In reference to the matter of opinion, this is the way the testimony was introduced: One witness was asked whether or not, from what he had heard the defendant say, he should say that defendant and deceased were on good or bad terms, and he replied that he should say that they were on bad terms. Another was asked, “Do you know on what terms, as to friendship, this defendant was with Samuel Nipple just previous to this occurrence? ” and he replied, “ Why, they were not on good terms.” This inquiry was followed by one as to how he knew, and the reply was that he had heard defendant-say so. Another witness was asked a similar .question, and he replied that he knew that they were not on good terms. Was this error? In a certain sense, this was calling for the opinions of these witnesses, and that, too, not upon matters of science or skill. And yet such opinions are often competent — often the very best and most satisfáctory kind of testimony. In the case of The State v. Folwell, 14 Kas. 110, a witness was allowed to state that in his opinion it was defendant’s wagon that made a certain track. In 1 Greenleaf on Ev., 13th ed., § 440, note 2, p. 495, is collected a number of cases showing to what extent this evidence of opinion has been sustained. Thus it is stated that opinions have been held admissible as to the origin of sounds, State v. Sherborn, 46 N. H. 497; as to the health of another, Wilkinson v. Moreley, 30 Ala. 562; the meaning of certain gestures, or tones of voice, and to whom they apply, Leonard v. Allen, 11 Cush. 241; that a horse appears to be diseased in the foot, 31 N. H. 485; or to be /rightened or sulky, 46 N. H. 23; or that a person appears to feel sad, Calvin v. Dwight, 6 Gray, 444; or to be intoxicated, People v. Eastwood, 14 N. Y. 562. In Commonwealth v. Sturtevant, 117 Mass. 122, the court say that “common observers, having special opportunities for observation, may testify to their opinions as conclusions of fact, although they are not experts, if the subject-matter to which the testimony relates cannot be reproduced or described to the jury precisely as it appeared to the witness at the time, and the facts upon which the witness is called to express his opinion are such as men in general are capable of comprehending.” See also the opinion of Doe, J., in State v. Pike, 49 N. H. 398, in which it is held that non-experts may give their opinions on questions of identity, resemblance, apparent condition of body or mind, intoxication, insanity, sickness, health, value, conduct, and bearing, whether friendly or hostile, and the like. How common it is to ask a witness whether his feelings toward a party are friendly, or otherwise. It is a question of fact as to his own state of mind. And so, where the question is as to the state qf mind of a party or a witness toward another, one who is intimately acquainted with such party or witness may be able to speak positively thereof, and yet not be able to give fully, or in detail, the various matters of conduct and speech which have clearly disclosed such mental condition. Of course, upon cross-examination the basis and extent of his knowledge are open to inquiry. The ruling of the court in this matter furnishes no ground for reversal of the judgment. Again: Counsel criticise several portions of the charge. Taking a separate paragraph and disconnecting it from the undisputed facts of the case, and some of those criticisms have force — as, for instance, the criticism on paragraph No. 31. Rut the charge must be taken as a whole, and read in the light of the facts of the case; and where certain facts are undisputed, they enter into and qualify the instructions as given. So read, it does not appear but that the charge clearly, fully, and accurately presented the law to the jury. So far as the objections to the juror C. A. Faxon are concerned, the evidence fully sustains the action of the court in finding against them. And while affidavits are ordinarily the only testimony received upon motions, we suppose it is competent for the court in its discretion and in furtherance of justice to call the witnesses before it, and have them examined and cross-examined orally, in its presence. We'all know how often an affidavit speaks the language of counsel rather than that of the witness, or fails to state all the facts; and great injustice might be done if the court had no power to bring the witnesses before it and have them examined in its presence. We do not decide that a party has a right to proceed in this way, but simply that the court may permit it. We pass now to the only remaining question which we deem it necessary to notice, and that is the failure of the court to admonish the jury at every separation. The facts in reference to this are, as stated by the judge — “that this did not occur at any adjournment, but only when a short recess was had of from three to five minutes or thereabouts, and at two of the recesses in the fore part of the trial the jury were admonished also, and told (as at the first adjournment and admonition) that this admonition was always upon them when out of the jury-box until the trial should dose.” The statute in reference to this matter reads: “When jurors are permitted to separate after being im panneled, and at each adjournment, they must be admonished by the court that it is their duty not to converse among themselves nor suffer others to converse with them on any subject connected with the trial, or to form or express any opinion thereon until the cause is finally submitted to them,” (Cr. Code, § 235.) In The State v. Mulkins, 18 Kas. 16, it appeared that the jury were permitted to separate at night, and the case was adjourned to the next morning without any admonition, and also that one of the jurors was approached during the separation by an outsider, and an opinion expressed concerning the case. It was held that substantial error was shown, compelling a new trial. The rule announced was, that there was error in disregarding the mandate of the statute, and that in the absence of any showing by the state, it would be presumed that such error wrought substantial wrong to the defendant. Does that rule obtain here and compel a reversal ? Nothing is shown by the state as to what took place during these separations. Hence, counsel rely upon that decision as conclusive. It appears from the affidavits filed, as well as from the bill of exceptions, that these recesses occurred some seven times during the progress of the trial. Whether during these recesses the jurors left the court room or simply rested themselves by standing or moving about in the presence of the court, we are not advised. It may have been that these were simply tp enable a juror to retire for a moment, or while waiting for a witness, or to enable counsel to consult. Now the mandate of the statute is not a mere technical, arbitrary rule, but one designed to protect the substantial rights of the accused. Formerly the jury were not allowed to separate at all, but remained in charge of an officer from the time they were impanneled until the return of the verdict. By our statute, separation is permitted, but in lieu thereof this admonition from the court is réquired, and such admonition ought always to be given. But under the old practice, if from the record it appeared that no prejudice could have resulted from such separation, the error was deemed immaterial. Here the brevity of the time of recess-makes strongly against the probability of prejudice. Before any separation they were admonished, and admonished that this duty of avoiding conversation and refraining from any conclusion rested upon them at all times until the close of the trial. Would this admonition be any stronger from repetition? All familiar with trials know how often a mere resting, a temporary recess, is given to jury and counsel. Will a failure of admonition at every such recess avoid the verdict? Further, an examination of the statute shows a distinction between a recess and an adjournment. It reads: “When jurors are permitted to separate, after being impanneled, and at each adjournment.” It does not read at each separation. It implies that if any separation is allowed, they should be-admonished; but if duly admonished before any separation, and at each adjournment, is not the statute strictly complied with? Doubtless the better practice is, to repeat the admonition whenever the jury pass out of the sight of the court, and if the recess is protracted, it may fairly be considered as tantamount to an adjournment; but when the. recess is brief, and an admonition is previously given, and extends by its terms during the whole trial, and the record discloses a trial-otherwise fair and impartial, it seems like sacrificing substance to form to reverse a judgment and compel a new trial for an error so trivial and unlikely to have wrought injury. We would not take away any substantial rights from an accused.;, the forms of proceedings prescribed by statute must be followed, but trifling errors may be disregarded. With some-hesitation we overrule this objection. Nothing else requiring notice, the judgment will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Valentine, J.: This was an action brought by Mary J. Fletcher against Melissa Wormington, for the purpose of subjecting certain land belonging to the defendant to the payment of a certain debt. The plaintiff’s petition was demurred to, on the ground that it did not set forth facts sufficient to constitute a cause of action. The demurrer was sustained by the court below, and the plaintiff now brings the case to this court for review. The facts set forth in the plaintiff’s petition, (which facts were of course admitted by the demurrer,) are briefly and substantially as follows: In 1869, Edward Fletcher, brother of the plaintiff and husband of the defendant, died intestate, leaving the defendant his sole heir. She was afterward appointed administratrix, and duly qualified and entered upon the discharge of her duties. The plaintiff had a claim against her brother’s estate for $596.32, money loaned by her to him during his lifetime, which claim she duly presented to said administratrix and filed in the probate court, which claim was afterward, after a contest, and on July 7, 1869, duly allowed by the probate court, and classed as a claim of the fifth class. The defendant closed the administration of said estate on July 1) 1872, and was then discharged as administratrix, and the said claim of the said plaintiff remained wholly unpaid. On March 18, 1875, Robert Fletcher, the father of the plaintiff and of the deceased Edward, died intestate, seized in fee of the land described in the plaintiff’s petition, which land is situated in Greenwood county, Kansas. One undivided half of this land descended from Robert, through the deceased Edward, to the defendant, and the other undivided half descended to the plaintiff, and the plaintiff now asks to have the undivided half of said land which descended to the defendant, made and declared subject to the payment of her said claim against said estate. This the defendant'claims cannot be done. The defendant claims in her brief, filed by her counsel in this court, that the plaintiff’s petition, which was filed in the court below on January 5, 1880, does not state facts sufficient to constitute a cause of action, for the following reasons, to wit: “1. Said petition shows on its face that more than five years have elapsed since the cause of action, if any, accrued. “2. That more than three years have elapsed since the cause of action, if any, accrued. “ 3. That said petition discloses the further fact that the lands in question are not, and never were, any part of Edward Fletcher’s estate, for the reasim that the said Edward died without seisin and before descent cast.” The first and second grounds upon which the defendant claims that the plaintiff’s petition is defective and insufficient, are really that the petition shows upon its face that the plaintiff’s claim is barred by some statute of limitations. Now it is true that the petition shows that ten and one-half years had elapsed after the plaintiff’s claim had been allowed by the probate court, and had thereby been merged in a judgment, which was on July 7, 1869, before this action was commenced, which was on January 5, 1880; but still, we do not think that the petition thereby shows, or in any manner indicates, that the plaintiff’s present cause of action is barred by any statute of limitations. It was less than three years from and after the merging of the plaintiff’s claim into a judgment until the said administratrix was finally discharged; which left no representative of the estate to be sued; and the plaintiff has for that reason had no power to sue the estate since that time. And it was less than five years from and after the time when the defendant (Melissa Fletcher, now Melissa Wormington) inherited said property from the Fletchers, until the plaintiff (Mary J. Fletcher) commenced this action against the defendant. And of course the present alleged cause of action did not accrue or exist in favor of the plaintiff, and against the defendant, until the defendant inherited said property from the Fletchers;-and therefore no statute of limitations could commence to run barring any such cause of action until such property was so inherited. The defendant refers to § 107 of the executors’ and administrators’ act, (Comp. Laws of 1879, p. 422,) ánd to subdivision 6 of §18, and to § 445 of the civil code, (id. pp. 603 and 660,) as furnishing the proper limitations for the bringing of actions like the present, but we do not think that any of these statutes are applicable to this case. Said § 107 can have no possible application whatever; for the land in controversy never came into the hands of any executor or administrator, or into the hands of any executrix or administratrix, as that statute requires in order to bar an action. And said subdivision 6 of § 18 is a five-year statute of limitations, which runs against causes of action, only after they have accrued. It will not be claimed that it could possibly apply to the defendant as administratrix, or to any other personal representative of Edward Fletcher’s estate, for, among other reasons, the estate ceased to have any personal representative within less than three years after the plaintiff’s claim was allowed in the probate court and merged into a judgment. And it could not apply to the defendant as an heir or as an individual, for the plaintiff’s alleged cause of action did not accrue against the defendant in -the capacity of an heir or individual, or indeed in any other capacity, until March 18,1875, when she inherited the property as aforesaid; and therefore, such cause of action did not exist against her for the requisite period of five years before this suit was commenced, which that statute requires in order to bar the action. And said § 445, which merely provides for judgments becom ing dormant, cannot apply to judgments of this kind rendered in the probate court, for no execution, such as is contemplated by said § 445, can be issued from the probate court on such a judgment, Besides, from and after July 1, 1872, (less than three years after the judgment was rendered,) there was no executor or executrix, nor administrator or administratrix, against whom any writ or order of any kind could be issued. There may be other reasons why this cause of action is not barred by any statute of limitations, but we think the foregoing are sufficient. We shall now proceed to consider the third reason given by the defendant in her brief for claiming that the plaintiff’s petition is insufficient. This reason, given in other words than those used by the defendant, are, briefly, that the title to the undivided half of said land passed directly, immediately, absolutely and unconditionally from Eobert Fletcher, the defendant’s father-in-law, to the defendant, and that Edward Fletcher, her husband, never had any interest in the property. Now we think it is clear that such title did pass directly and immediately from Eobert Fletcher to the defendant, and that Edward Fletcher never had any interest in the property; but still, the real question is, whether such title passed absolutely and unconditionally to her, or whether it passed subject to certain conditions and charges. We suppose from the briefs of counsel that this question was not in fact thought of or considered in the court below; but, as the question is really in the case, we shall consider it and decide it. The law relating to this question is embodied principally in §§1, 18,19 and 20 of the act relating to descents and distributions. (Comp. Laws of 1879, pp. 378, 379 and 380.) So much of said sections as we think it is necessary to quote, reads as follows : “Sec. 1. After allowing,” etc., . .' . “the remainder of the real estate and personal effects of the intestate, not necessary for the payment of debts, shall be distributed as hereinafter provided.” “Sec. 18. Subject to the rights and charges hereinbefore contemplated, the remaining estate of which the decedent died seized, shall, in the absence of other arrangements by will, descend in equal shares to his children. “Sec. 19. If any one of his 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. “Sec. 20. If the intestate leave no issue, the whole of his estate shall go tó his wife.” Edward Fletcher died intestate, leaving no issue and leaving the defendant, his widow, as his only heir to inherit his estate. Robert Fletcher died intestate, leaving no widow and only one child, the present plaintiff, and only one other heir, to wit, the widow of his said son Edward, the present defendant, who, under said § 19, takes Edward’s “share” of his father’s estate, which share is one-half of such estate, after Robert’s debts are paid. Rut this share, Edward’s share— “his share,” in the language of §19 — is not given to the defendant absolutely and unconditionally. It is given to her “in accordance with the rules herein [that is, in said act] prescribed, in the same manner as though sueh child [that is, Edward] had. outlived his parent.” That is, the defendant takes Edward’s share of his father’s estate in the same manner as though Edward had been living at the time of his father’s death, but had died immediately thereafter. Now, if Edward had been living when his father died, he would undoubtedly have immediately taken his share of his father’s estate, but subject, however, to the payment of his father’s debts, and such share would also undoubtedly and immediately have become liable for the payment of his own debts, and if he had then died, such share would have still remained liable for the payment of his own debts, as well as of his father’s debts. The property in general of an intestate is- never given absolutely to his heirs. It is always given subject to the intestate’s debts. Or, in the language of the statute, (said §1,) only so much of it is given to his heirs as is “not necessary for the payment of debts.” Said §19 could scarcely be made plainer than it is; and we think it means just what it says. If the legislature had intended what the defendant seems to claim that it did,-it would in all probability not have added the words that it did after the words “his share,” but would have -added the words, “absolutely and unconditionally,” or some other words of -similar import. The section would then read: “If any one of his children be dead, the heirs of such child shall inherit his share absolutely and unconditionally.” The judgment of the court below will be reversed, and the cause remanded- with the order that the demurrer to the petition be overruled, and for such other proceedings as may be proper in the case. Horton, C. J., concurring.	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The opinion of the court was delivered by Brewer, J.: Susan Downing, the plaintiff in error, on May 29th, 1879, commenced suit against the defendant Montraville Reeves, and one R. T. Sallee, in the district court of Morris county, Kansas, to enjoin them, or either of them, from interfering with the plaintiff’s right of possession to lots -19 and 20, in sec. 7, T. 15, R. 8, in that county, said lands being a part of the Kansas Indian trust lands. A temporary order of injunction was issued by the probate judge of Morris county in behalf of plaintiff. ■ The defendant Reeves, on June 5th, 1879, in vacation moved the district judge to dissolve the injunction, alleging as reasons for the dissolution of the injunction that the allegations of the petition of plaintiff were not true, and that the petition did not state facts sufficient to constitute a cause of action in favor of plaintiff and against said defendant. This motion was heard before any answer was filed. Upon the hearing of this motion the judge modified the order of injunction, and at the same time made an order restraining the plaintiff. Now it is insisted that upon the testimony, which was all by affidavit, the district judge erred in modifying the order as originally granted, and that he also erred in granting a restraining order against the plaintiff) because the showing did not warrant it, and also because there was no written demand for it by motion or answer. It appears that one Mary Downing was recognized as the actual occupant, and entitled to purchase these lands by the commission appointed under the act of congress of March 13, 1873, (17 U. S. Stat., p. 85,) and that she had transferred her rights to plaintiff. But it did not appear that any patent had been issued, or any payment made. As to the extent of the occupation and improvement of plaintiff or her grantor, it would seem that they had broken about four acres. Whether there were any buildings on the premises, or any other occupation than as above stated at the time of the defendant’s entry, seems doubtful. Now we do not understand that the award in 1873 gave to the party given the right to purchase a continuous right to hold possession without purchase or payment. Indeed, it would seem from the subsequent acts of June 23, 1874, (18 U. S. Stat., p.272,) and that of July 5, 1876, (19 U. S. Stat., p. 74,) that unless the first payment wa#. made by January 1,1877, or within ninety days thereafter, the prior right of the occupant to purchase ceased. But be that as it may — and we do not intend to pass upon the ultimate rights of the parties to the land — we think there is not enough before us to justify us in reversing the ruling of the district judge. It appears that both parties had a certain occupation of the premises; both had put improvements thereon, and both claimed the right to purchase. Which will finally succeed and obtain the patent, is a question to be settled by the United States authorities. Meantime, the order of the district judge was, that each party should be enjoined from interfering with the improvements made by the other. This order of course will continue only till the final trial. Meantime, the question of title may be settled, and if not, the case will be heard upon oral testimony and where there is an opportunity for cross-examination. The exact truth will then be more likely to be ascertained, and the proper judgment entered. We do not think the want of an answer, or any formal written motion, sufficient reason for changing the order. The judge, sitting as a chancellor, had both parties before him, and could and did make such order as will preserve the peace and secure to each the opportunity to present and enforce any rights in the premises. The continuance of any restraining order against him was fairly conditioned upon her not disturbing him in his improvements. By appealing for equity, the plaintiff submits to all the obligations of equity. And preserving the rights of each pending the litigation, seems under all the circumstances to have been equity. The order will be affirmed. All the Justices concurring.	[ -15, 106, -16, -100, 42, 96, 34, -104, 99, -95, -91, 83, -87, -46, 21, 57, 122, 45, -48, 105, 66, -73, 7, -21, -110, -13, -39, -35, -77, 93, -27, -41, 72, 32, 66, -99, -58, -62, -63, 28, -50, 5, -119, -28, -45, 8, 48, 107, 82, 75, 17, -81, -13, 44, 25, -61, 40, 44, -53, 45, 89, -8, -81, -123, 95, 6, 17, 6, -102, -123, 72, -6, -112, 48, 8, -8, 115, -74, 6, 116, 71, -69, 40, 102, 111, 97, -4, -17, -32, -120, 15, -66, -115, -89, -106, 72, 106, 72, -74, -103, 116, 16, 7, -2, -26, 12, 92, 124, 7, -53, -42, -75, 15, 58, -102, 3, -21, -123, 48, 97, -51, -94, 92, 67, 48, -101, -113, -80 ]
The opinion of the court was delivered by Horton, C. J.: John Wilson, defendant in the court below, was charged with a violation of the provisions of §165, ch. 31 of the crimes act, in resisting and obstructing E. C. Jaquith, a deputy sheriff of the county of Chautauqua, while attempting to execute an order of replevin in that county. He was convicted, adjudged to pay a fine of $100 and all costs. He now appeals to this court. The main allegations of error relied upon to reverse the judgment are — First, that the district court erred in not finding the purported order of replevin introduced in evidence was void upon its •face, and insufficient to protect the officer; second,'that the court erred in not finding the service of the order of replevin insufficient upon the evidence. The imperfection alleged in the writ was the absence of any statement in the body of the order, of the court in which the action was brought. It appears from the writ that it was duly addressed to the sheriff of Chautauqua county; it stated the names of the parties to the action; commanded the sheriff to seize the property described in the writ and deliver it to the plaintiff; and also to make return of the order on the 21st of .November, 1879. It was attested as follows: “In witness whereof, I have hereunto signed my name and affixed the seal of said court, at my office in Sedan, in said county, this 13th day of November, A. D. 1879. — T. N. King, Clerk of the District Court;” and was authenticated by the official seal of the district court of Chautauqua county. The omission referred to was not fatal, and at most can be regarded only as an irregularity. The writ showed that it issued out of the district court of Chautauqua county, and cannot be held void. Counsel contends that even if the omission stated failed • to vitiate the order of delivery, that the officer was guilty of attempting unlawful arid unauthorized acts, in breaking into defendant’s inclosure, and using force to obtain the cattle described in the writ without having first made due service of it on defendant. Section 181 of the code provides': “The sheriff shall execute the order by taking the property therein mentioned. He shall also deliver a copy of the order to the person charged with the unlawful detainer of the property, or leave such a copy at his usual place of residence.” Section 187 further provides: “The sheriff, or other officer, in the execution of the order of delivery, may break open any building or inclosure in which the property claimed, or any part thereof, is concealed, but not until he has been refused an entrance into said build ing or inclosure, and the delivery of the property, after having demanded the same.” The evidence discloses the following state of facts: That on the day charged in the complaint the defendant had in his inclosure, in a public place, certain cattle; that the entrance gate to the inclosure was secured by a chain around the gate and adjoining post, fastened by a lock; that the deputy sheriff,' having in his hands for service the ordér heretofore mentioned, went to the defendant, exhibited to him the order, and orally demanded possession of said cattle; that defendant did not deliver the cattle upon the demand, but asked for time to oonsult his attorneys; that the officer thereupon went to defendant’s inclosure, and, with an ax, broke the fence sufficiently to open the gate, and, proceeding into the inclosure, attempted to drive the cattle therefrom; that before he had succeeded in so doing, defendant came to the inclosure, closed the gate, and thus prevented the officer from driving out the cattle; that at the time of such occurrence, the officer had not delivered to defendant, or left at his usual place of residence, a copy of the order. The statute certainly does not require the order of replevin to be served before the property can be taken, and the suggestion of the attempt to seize the property under the writ before service on the defendant, is without merit. The writ was exhibited to the defendant and the possession was demanded of him, and thereafter the officer had the legal right to break open the inclosure in which the property was kept, and take the same. If § 181 be construed literally, the officer would be required to execute the order in the first instance by taking the property into possession, and afterward delivering a copy. We suppose, however, that it is immaterial whether possession is taken before, or after the delivery of the copy. The judgment of the district court will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: This was an action of forcible entry and detainer, commenced in a justice’s court by White, plaintiff below, against Bond, defendant below, to obtain restitution of a quarter-section of land in Neosho county. White recovered before the justice, and Bond appealed. The trial in the district court again resulted in favor of White, and Bond brings the cause to this court for review. ■ We shall pass the first question presented by counsel, with the simple remark that we consider the complaint sufficient. It was a pleading in the justice’s court, and the defendant could in no manner have been misled by it. The only question we deem it necessary to consider is a ruling on the admissibility of certain testimony offered by defendant. This testimony was a transcript of the record of an action between the same parties. By this transcript it appeared, that on February 25th, 1879, plaintiff commenced an action of forcible entry and detainer, for the recovery of the possession of the same land. The complaint charged the forcible entry and the notice to quit upon the same day as were alleged in the complaint in the case at bar. Indeed, the two cases were in all respects alike. The transcript further showed that, the case proceeded to trial and judgment on the 19th day of March, 1879; and that on the same day an appeal bond was duly filed and approved. The present action was commenced March 26th, 1879. We think this evidence was competent. It tended to show another action pending between the same parties. It was a complete record, a transcript of the entire proceedings before the justice, all that he could authenticate. The-filing and approval of the appeal bond perfected the appeal. (St. L. L. & D. Rld. Co. v. Wilder, 17 Kas. 243; Comp. Laws 1879, p. 720, § 122.) Whether the justice filed the transcript with the clerk of the district court before the 26th of March, or within the twenty days prescribed by statute, is immaterial: the appeal was perfected, and there was a case pending. As against the admissibility of this record, counsel for defendant in error say: “It neither proved that an action was pending, nor that a judgment was in force. It simply showed that a long time previous a case had been tried between the same parties, and dismissed, and that White appealed from the order of dismissal, since which one or more regular terms had elapsed. (Dass. Comp. Laws, p.322, §20.) The records of the district court were the best and only evidence of the pendency or disposition of that case after it was appealed to that court; 'but they were not offered, because counsel knew they would neither show a judgment on the merits, nor a suit pending. The court would take judicial notice of the dismissal or disposition that had been made of that case in that court, and hence knew this transcript to be immaterial. (State v. Bowen, 16 Kas. 475.) “The offering of this transcript, under the circumstances, when the production of the records of the district court there present in the room would have shown whether the action was pending, had been dismissed without prejudice, or gone to judgment on the merits, was mere trifling. The question whether one judgment or action of this kind pending is a bar to another, is not presented by the record. The transcript offered, if it had been introduced, would not have proved either. The former judgment was vacated by the appeal, and whether another had been rendered, or the action was still pending, or had been dismissed without prejudice, no proof was offered.” In reply, it may be said that the district court in the trial of one case does not take judicial notice of the proceedings in other cases, even though on its own records. They must be offered in evidence, as any other facts. We do not know that the court placed its ruling upon any such ground, for in objecting to .this evidence counsel ran through nearly the entire catalogue of possible objections to the admission of testimony, and nothing indicates upon what ground the decision was placed. Even if the record of the district court showed no action in respect to that case, or even failed to show the existence of the case, it would not follow that the action -was not pending. The appeal was perfected. There was a case in existence, and no omission or neglect of the justice could destroy it. The plaintiff might dismiss it, but the records should show such a dismissal. His neglect would not dismiss or abate it. Cases once legally commenced continue until some affirmative action is shown discontinuing them. After the appeal is perfected, the dismissal or other disposition of the case should appear on the records of the district court. Counsel offered the entire transcript of the case before the justice. That disclosed affirmatively the continued existence of the action. Whether, if that had been admitted, he could or would have followed it up by the records of the district court showing action in the case there and continuance from term to term, we can only conjecture. It was useless to offer records of continuance or other action in a case, till its identity with the one on trial was shown. It seems to us, therefore, that this was testimony which fairly tended to prove the pendency of another action between the same parties, for the same cause. If such prior action existed, it was a good defense to this. Whatever may be the force or effect of a judgment in forcible entry proceedings upon subsequent actions, the same rule obtains as to the effect of a pending action, as in other cases. A party may not be vexed by two actions at the same time, for the same thing; and this is true, and equally true, whether they be forcible entry, replevin, or on promissory notes. “The law abhors a multiplicity of actions, and therefore, whenever it appears on record that the plaintiff has sued out two writs against the same defendant for the same thing, the second writ shall abate; for if it were allowed that a man should be twice arrested, or twice attached by his goods for the same thing, by the same reason he might suffer infinitum, and it is not necessary that both should be pending at the time of the defendant’s pleading in abatement; for if there was a writ in being at the time of suing out the second, it is plain the second was vexatious and ill, ab initio.” (1 Bacon’s Abridgment, p. 28. See also Capehart v. Van Campen, 10 Minn. 158; Harris v. Johnson, 65 N. C. 478; Grambsy v. Ray, 52 N. H. 513; Gregory v. Gregory, 33 N. Y. Superior Ct. 1; Mullen v. Mullock, 22 Nas. 598.) No reason exists why a party should be permitted to maintain at the same time more than one suit in forcible entry. If he is conscious of mistake in the one he has commenced, let him abandon it and try again. But he has no right to harass the defendant by mere multiplicity of actions. Eor this error in the trial, the judgment must be reversed, and the case remanded for a new trial. All the Justices concurring.	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The opinion of the court was delivered by Horton, C. J.: This was an action in the nature of ejectment, brought by Horace B. Smith against Torbett Entreken, in the district court of Miami county, in November, 1870, to recover a quarter-section of land in that county. The plaintiff based his title upon a patent from the United States. The defendant claimed title through a decree of the district court of Miami county, of December 9,1868, adjudging one Joel Abbott as the legal owner and possessor of the land in the action pending in that court between said Joel Abbott, as plaintiff, and Horace B. Smith, as defendant, and a warranty deed of April 14, 1869, executed by said Joel Abbott to defendant. Subsequently to the conveyance to Entreken, Horace B. Smith obtained a vacation of the judgment of December 9, 1868, by proceedings under §77 of the code. After the commencement of this action, Horace B. Smith died, and the action was revived in the names of the plaintiffs, in error. Torbett Entreken also died, and the defendants in error have been substituted. This case was before the court in 1876, but in a different form. (Entreken v. Howard, Adm’r, 16 Kas. 551.) The question now is, whether a person who buys land for a valuable consideration from a plaintiff to a judgment rendered in his favor in an action to quiet title upon service by publication, is a purchaser in good faith within the meaning of § 77 of the code? Or, stating the question in another form, does the subsequent vacation of a judgment under §77 of the code, divest the title to land of a prior purchaser from the plaintiff to the judgment, where the purchase has been made in good faith and fora valuable consideration? This section reads: “A party against whom a judgment or order has been rendered, without other service than by publication in a newspaper, may, at any time within three years after the date of the judgment or order, have the same opened, and be let in to defend. Before the judgment or order shall be opened, the applicant shall give notice to the adverse party of his inten tion to make such an application, and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and mak® it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense; but the title to any property, the subject of the judgment or order sought to be opened, which by it, or in consequence of it, shall have passed to a purchaser in good faith, shall not be affected by any proceedings under this section, nor shall they. affect the- title of any property sold before judgment under an attachment. The adverse party, on the hearing of an application to open a judgment or order, as provided by this section, shall be allowed to present counter affidavits to show that during the pendency of the action the applicant had notice thereof in time to appear in court and make his defense.” We regard this section and § 467 of the code, as only declarations of the previous common-law rule; and, like that rule, they were adopted to protect third persons purchasing under the authority of a judgment or decree. They apply to strangers to the judgment, who have purchased under the honest belief that the judgment is valid; If the judgment is afterward reversed, or opened up, the defendant who has lost his property must look to the plaintiff for redress. In this case, the judgment of Abbott v. Smith was entered of record December 9, 1868. The deed of Abbott to Torbett Entreken was executed April 14, 1869. The application to open the judgment was not made till April 7, 1871. The title to the property in controversy (the subject of the judgment of December' 9,1868) was by such judgment and in consequence of it (rather upon the faith of such judgment and decree) by the warranty deed of Abbott, passed to Entreken before April 7, 1871. In the words of the statute, this title cannot be affected by any proceedings under § 77. In Illinois, while it is conceded that the purchase by the plaintiff in the judgment is subject to be annulled by a subsequent reversal, the assignee from plaintiff of the certificate of purchase, under an assignment made before any reversal, is held to occupy as favorable a position, as if he, instead of being an assignee, were the original purchaser at the sale. (Guiteau v. Wisely, 47 Ill. 433.) If Torbett Entreken had purchased in good faith the property at a judicial sale, it must be conceded that his title would not have been divested by the reversal of the judgment. As he purchased the property, upon the faith of a judicial decree, from the party plaintiff for a valuable consideration and in good faith, the like rule prevails. When Joel Abbott conveyed to Torbett Entreken, he had, upon the solemn decree of a court of competent jurisdiction, a complete title as against Horace B. Smith, which it was competent for him to transmit by conveyance, in the usual mode. In making this conveyance, he divested himself of title, and invested it in Torbett Entreken. By this act of conveyance, Joel Abbott plit an e.nd to his power over the land. He could not resume his interest in it, without the consent of his grantee, and no decree subsequently made in the suit against Joel Abbott could affect the interest of Torbett Entreken. Joel Abbott had no interest in the land at the filing of the application to open up the judgment of December 9,1868, and the vacation of that judgment could not affect an interest which he did not have in the subject. (Taylor v. Boyd, 3 Ohio, 338.) The case of Martin v. Gilmore, 72 Ill. 193, cited by counsel, is not applicable, as the law of Illinois of 1845, oonstrued therein, makes a decree rendered upon service by publication merely interlocutory. The district court committed no error in refusing to admit in evidence the vacation of the judgment of Abbott v. Smith, or the other matters offered in rebuttal to the decree of December 9, 1868. The judgment will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: On the 11th day of March, 1879, Lewis Bugher commenced his action in the district court of Saline county, against Howard M. Sale, J. M. Greeley and one E. E. Bowen, to quiet the title to the northwest quarter of section twenty-eight, in township thirteen, south, range one, west, in said county, alleging in general terms that he held the legal title and was in peaceable possession of the same, and that said defendants had, or claimed to have, some estate in said premises, etc. The said Sale and Greeley answered, setting up the general issue, and also alleging the same causes set up injBugher’s petition and in language similar. Bugher first made a motion to strike out the second cause of defense, which was overruled. At the next term of court, Bugher moved to dismiss his action without prejudice. The then defendants, now plaintiffs in error, objected, claiming a right to proceed to trial on their second cause of defense. The court sustained the motion of. Bugher, but also decided that Sale and Greeley had the right to proceed to a trial of their second cause of defense, and gave judgment for all costs then accrued against Bugher. Bugher, after his motion to dismiss his action was sustained, was also granted leave, over objections by Sale and Greeley, to file a reply, and thereafter, also an amended reply denying defendants’ answer, and setting up that he was owner in fee. The case came on for trial on the second cause of the answer and the amended reply. The court found: “That the defendants were not, at the commencement of this action, and are not now, in possession of the land in controversy, but that the plaintiff, Lewis Bugher, is in possession — not residing upon it, but occupying it and raising crops thereon. There are no buildings upon it. “ The court finds, as conclusions of law, that the said defendants had no possession of the land in controversy, and cannot maintain the form of -action set forth in the second cause of their said answer.” The first proposition of counsel is, that the court erred in permitting plaintiff, after dismissing his cause of action, to come in and defend against defendants’ claim. We see no error in this. The fact that a plaintiff dismisses his cause of action, is not an admission of the validity and sufficiency of defendants’ counter-claim, nor does it preclude him from making any legal defense thereto. Suppose, for instance, that the plaintiff had sued on an account for goods sold and delivered, and the defendant had answered with a counterclaim for work and labor: must the plaintiff, if for any reason compelled to dismiss his cause of action, be held to admit the defendant’s counter-claim, or to be precluded from any defense thereto? Such a construction would work monstrous injustice. By dismissing his cause of action, the plaintiff does not put himself entirely out of court. If he did, the defendant could not proceed. - He remains in court for the trial of defendant’s counter-claim, and that goes to trial as though defendant were plaintiff and had sued upon this claim. Any defense which the plaintiff may have thereto, he may interpose, and the ordinary rules control as to the discretion of the court in permitting the filing of amended pleadings. Of course, the plaintiff is limited, after the dismissal of his cause of action, to his defense or defenses to the defendant’s counter-claim. This was all that was attempted in this case, and we see no error in the court’s ruling in this respect. So far as the finding of fact is concerned, it is fully sustained by the testimony. It was clearly shown that while there were no buildings upon the premises, the land had been in the possession of plaintiff and been cultivated by him for some, two or three years. Not that it had all been broken, for this seems to have been true of only some twenty-five or thirty acres, yet on the rest the plaintiff had men employed in putting up hay; so that it could fairly be said that he had occupied and-cultivated the premises for some two or three years. Cohnsel contends that notwithstanding this lack of possession, the court should have adjudicated defendants’ claim of title; that the defendants had been brought into court by the plaintiff, and ought not now to be sent out upon a mere technicality. But when a defendant insists, notwithstanding the plaintiff’s dismissal of his cause of action, upon a trial on the cause of action set up in the answer, he becomes himself a plaintiff, and must state in his pleading a good cause of action, and support that by proof. He voluntarily assumes the affirmative, and must stand or fall upon the merits of his own pleading and proof. He occupies the same attitude as though he were prosecuting an original and independent action. It appears from the testimony that each party’s title was a tax deed — that of the plaintiff founded upon the taxes of 1870, 1871, 1872, and 1873, and that of defendants upon those of 1874, 1876, and 1877. The defendants alleged possession, and framed their pleading under the statute to quiet title. The pleading was sufficient, but their testimony showed that they were not in possession. After they had rested, plaintiff demurred to the evidence. This demurrer should have been sustained, as they had failed to prove one of the material averments, to wit, that of possession. (Douglass v. Nuzum, 16 Kas. 515.) But the demurrer was overruled, and the plaintiff introduced his testimony. This not only failed to>supply the defect as to possession, but showed clearly a possession in the plaintiff. The court thereupon rendered the proper.judgment, dismissing defendants’ cause of action at their costs. It is the judgment which should have been entered upon the demurrer, the same that would have been entered if this had been an independent action on the part of the defendants. This judgment does not determine the ultimate rights of the parties to the land, but we think it was the proper judgment under the pleadings and proofs, and it must therefore be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Horton, C. J.: The trial court adjudged that the railroad company was the owner in fee of the premises in controversy at the commencement of this action, but required the company to pay to Phillipi, taxes, interest and costs amounting to $367.28, before it should be let into possession. Both parties are dissatisfied with the judgment. Plaintiffs in error claim that the tax deed of June 26, 1877, vested in Charles L. Flint an absolute estate in fee to the land; that such title was transferred by Flint to John Shoup on January 18, 1878, and from Shoup to Phillipi on February 6, 1878. The defendant in error contends that John Shoup was under a duty to pay all the taxes; that his quitclaim deed to Phillipi passed no title, interest or lien; therefore, the order requiring the railroad company to pay taxes, interest and costs as a precedent condition to being let into possession, was wholly erroneous. . Our attention is first called to the second conclusion of law of the court, “that said John Shoup could not, on account of the relation in which he stood to the railroad company, acquire a valid tax deed on the land.” This conclusion, we suppose, is intended to be based upon the following findings: 1. On September 5, 1871, the president of the United States of America executed and delivered to the said Central Branch Union Pacific railroad company, plaintiff, under and in accordance with the treaty concluded between the United States and the Kickapoo Indians on- or about May 28, 1863, a patent for numerous tracts of land, including the southeast quarter of section thirty-five, in township five, south, of range sixteen, east, in Jackson county, Kansas, and thereby conveyed said land to the plaintiff; and the same is still owned by the plaintiff, unless the title has been divested by the proceedings hereinafter mentioned. 2. On September 24, 1868, the defendant John Shoup entered into a contract in writing with the plaintiff, whereby the said John Shoup agreed to purchase, and the.plaintiff agreed to sell, the west half of said quarter-section of land for $680, in nine annual payments, with interest thereon annually at the rate of ten per cent, per annum; and the said John Shoup covenanted in said contract with the plaintiff that he would regularly and seasonably pay all such taxes and assessments as should be lawfully imposed on said premises. Said contract was numbered 531. And on October 7, 1868, the said John Shoup entered into a contract in writing with the plaintiff, whereby the said John Shoup agreed tó purchase, and the plaintiff agreed to sell, the east half of said quarter-section of land for $680, in nine annual payments, with interest thereon annually at the rate of ten per cent, per annum; and the said John Shoup covenanted in said contract that he would regularly and seasonably pay all such taxes and assessments as should be lawfully imposed on said premises. Said contract was numbered 555. 3. The said John Shoup entered into the actual possession and occupation of said tracts of land, together being the southeast quarter of section 35, in township 5, of range 16, in said Jackson county, under said contracts numbered 531 and 555 respectively, in the spring of the year 1869, and he so remained in possession and occupation of the said east half of said quarter-section under said contract number 555 until August 17, 1875, and he so remained in possession of the said west half of said quarter-section under said contract number 531 until May 17, 1877. At said dates respectively the said John Shoup, having paid only a small part of the purchase-money, but having made valuable improvements thereon, and being unable to make further payments, voluntarily surrendered said contracts and all future rights or benefits thereunder to the plaintiff, with the understanding that the plaintiff released him from making any further payments under said contracts, and from all future liability under or upon any of the covenants of said John Shoup contained in said contracts. 4. On the surrender of said contract No. 531 for the west half of said quarter-section, on May 17, 1877, the said John Shoup entered into a contract in writing with the plaintiff for the lease of’ said west half for the term of eight months, which was afterward extended by agreement until February 1, 1878; but said lease contained no agreement as to payment of taxes, and the said John Shoup did not remove from said premises on surrender of said contract No. 531, May 17, 1877, but remained thereon under the provisions of said lease, until the expiration thereof; and he continued to occupy said •land, together with his son, Winfield Shoup, defendant, until the commencement of this action. 5. The said John Shoup did not pay the taxes and assessments, nor any part thereof on said southeast quarter of said section 35, township 5, range 16, nor on any part thereof, for the years 1873, 1874, 1875, and 1876; nor for any of said years — neither did the plaintiff, nor any other person, company or corporation do so. 13. On June 26, 1877, said Charles L. Flint presented said tax certificate No. 145 to the county clerk of said county of Jackson, and said county clerk executed, signed, sealed, acknowledged and delivered a tax deed for said tract of land to the said Charles L. Flint. Said deed is in form as prescribed by the statute. And the same was filed for record, in the office of the register of deed’s of said county of Jackson, on June 27, 1877, at eight o’clock A. m., and was duly recorded in book P, at page 542. The amount of the fee paid the county clerk for said deed was $l,and the fee for recording the same, paid by the said Charles L. Flint, was $1.25. 14. On January 18,1878, the said Charles L. Flint executed, signed, acknowledged and delivered to the defendant, John Shoup, a quitclaim deed for said tract of land, and said deed was filed for record in the office of the register of deeds of said county of Jackson, February 8,1878, at nine o’clock A. M., and duly recorded "in book Q,, at page 371. 15. On Februax-y 6, 1878, the said John Shoup, defendant, and Ann E. Shoup, his wife, executed, signed, acknowledged, and delivered to the defendant, Thomas H. Phillipi, a quitclaim deed for said tract of land, and said deed was filed for record in the office of the register of deeds for said county of Jackson, February 21, 1878, and duly recorded in book I, at page 373. 16. Afterwai'd, on said 6th day of February, 1878, the said Thomas H. Phillipi let and leased said land by a written indenture for one year to the defendant, Winfield Shoup, a son of the defendant, John Shoup, and the said Winfield Shoup and John Shoup, defendants, were living together and occupying said quarter-section of land at the time of commencing, this action, and keeping the plaintiff out of the possession thereof. The argument of counsel for defendant in error upon these findings, is, that the acquisition of the tax title, by John Shoup from Flint, was only a compliance with the terms of his written contract of purchase to regularly and seasonably pay all the taxes and assessments as should be imposed lawfully on the land; that the purchase of the tax title from Flint, operated as a payment of the taxes only; that having only redeemed the land from taxes by his purchase, his quitclaim to Phillipi passed no title, or lien for taxes, or for anything else. This argument, although plausible, and having some little foundation from the peculiar wording of the third special finding of fact, cannot be upheld, in view of the admission made by the parties on the trial, viz.: “ That at the time of the surrender of each of said contracts, numbered 555 and 531 respectively, and mentioned in the third finding or conclusion of fact of the court herein, it was mutually agreed and understood by and between the said plaintiff (defendant in error) and the said John Shoup, that he should relinquish all his claims in and to each of said tracts (of land) under and by virtue of the said contracts respectively, and all his improvements on the said premises; and in consideration thereof, the said plaintiff at the time of such surrender of said contracts, released all its claims against the said John Shoup, under and by virtue of the covenants on the part of said John Shoup in said contracts and each of them contained.” Under this admission, the railroad company had no claim or right of action against Shoup at the date of the deed from Flint to him, to wit, January 18, 1878, for any default from his non-payment of the taxes, because prior to January, 1878, viz., on August 17,1875, and on May 17, 1877, there had been such settlements between the railroad company and Shoup, that the company released all its “claims against him under and by virtue of the written contracts. A per son under obligation to pay taxes cannot, upon the sale of such taxes, acquire a valid title founded upon his default, but where there is no duty or obligation to pay taxes there is no default. Even if default had occurred, the defaulting party may be relieved from such non-performance by express contract with the owner of the land, and thereafter he is not inhibited from procuring a tax title. When Shoup surrendered all his rights in the land, and gave up all his improvements to the railroad company, he was absolved from all obligation or duty, under the terms of settlement, from paying past or future taxes. The transactions between the parties about the purchase of the land and the payment of taxes had been closed up; and past, as well as future liability, ceased. The railroad conmany, under 1 J J settlements, assumed virtually the duty or obligation of Shoup to discharge the taxes for 1873, 1874, 1875 and 1876, and as on May 17, 1877, the land was still redeemable, and as the tax deed to Flint was not executed until June 26, 1877, the company had ample time to pay all back taxes, and prevent the issuance of a tax deed. After the release by the company to Shoup of all liability, he was not debarred by any relation under the written contracts from acquiring a valid tax title for the taxes set forth in the special findings; nor was his subsequent occupation of the land, as tenant or otherwise, any obstacle to his acquisition of such a title. (Perley v. Taylor, 21 Kas. 712; Weischelbaum v. Curlett, 20 Kas. 709.) We pass next to consider the alleged defects in the tax proceedings. The third conclusion of law of the court is, “that said tax deed is null and void, by reason of the defective and insufficient execution of the prerequisites to the execution of said tax deed.” It is claimed that the following findings support this conclusion: 6. The assessor’s roll for Whiting township (in which township said land is located) for the year 1873 was returned to, and filed in the office of the county clerk of Jackson county on June 21, 1873, and on said day the oath of the assessor to his assessment roll was administered by E. D. Rose, county clerk, and the same was reduced to writing on one of the pages of said assessment roll, and was signed by Charley Shedd, but neither the word “assessor” nor any other official designation followed said signature, but it was stated in the body of the writing that said Charley Shedd was assessor of Whiting township. The jurat to said oath was signed by E. D. Rose as county clerk, but no official seal nor other seal was ever affixed thereto. On said assessor’s roll the said quarter-section of land was assessed in the name of John Shoup as the owner thereof, and the land was designated and valued as follows: “John Shoup, owner. S.E.¿sec. 35, T. 5, R.16; 160 acres; 6J per acre.' Improvements 75. Total value 955.” Neither the words dollars or cents, nor any abbreviations or characters denoting either, appear in said assessment roll relating to said land, but said assessor’s roll was properly ruled into appropriate columns, and the assessed value appears in the appropriate column. 7. The tax roll of said Jackson county for the year 1873 shows the assessment of said quarter-section of land in the name of J. Shoup, and said name is set opposite to and in the same line with the description of said land, to wit: The S.E.¿ sec.35, T. 5, R.16; and the valuation thereof, $955; and on said tax roll the said J. Shoup appears as the owner of said quarter-section of land; and the total amount of taxes charged against said land on said roll is $46.77, besides penalty, $4.68, making a grand total of $51.45. 8. The county treasurer caused to be published in due time a notice of the tax levy for the year 1873, and an oath was taken by the publisher of the Holton Express to the due publication of said notice, and the same was reduced to writing and signed by Frank A. Root as such publisher, and the jurat was signed by E. D. Rose as county clerk, but no seal of office or other seal was ever attached thereto, and the same was duly filed in the office of the county clerk of said county. 9. The taxes on said quarter-section of land not being paid for the year 1873, the county treasurer issued his notice, on March 3, 1874, that the same would. be sold on the first Tuesday of May, 1874. Said notice was accompanied by a schedule describing the lands by numbers and subdivisions, but no name was set opposite the said S.E.¿ sec. 35, T. 5, R.16, showing the ownership thereof as on the tax roll, and it could not be ascertained from said notice who was the owner of said land, nor in whose name it was assessed. Said notice was published in the Holton Express, March 6, March 13, March 20, and March 27, 1874, and an oath was taken by the publisher of said newspaper, and the same was reduced to writing and signed by Frank A. Root as such publisher, and the jurat was signed by E. D. Rose as county clerk, but no seal of office or other seal was ever attached thereto., . 10. In pursuance of said tax-sale notice the county treasurer offered said land for sale on May 6, 1874, and said quarter-section of land was purchased by John E. Tyler for $51.80. But the purchaser’s name, as stated in the tax-sale record made and kept by the county treasurer, and also in the county clerk’s duplicate, was and is J. E. Tyler. And the tax-sale book so made by the county treasurer did not and does not show the ownership of said quarter-section of land, nor the person’s name to whom assessed, but the column designated in said book for the name of the owner or owners, if known, is left entirely blank, and the duplicate thereof in the office of the county clerk is in all respects the same as said original book made and kept by the county treasurer. 11. At the time of said sale a certificate was issued to said John E. Tyler, in due form, and numbered 145, and afterward he paid taxes on said land, and had the same indorsed on said certificate, as follows: January 10, 1875, for taxes of 1874, $26.10; February 10,1876, for taxes of 1875, $29.88; January 27, 1877, for taxes of 1876, $20.70; and on May 28,1877, he indorsed on said certificate the words “Assigned to Charles L. Flint, of Suffolk county, Mass., May 28, 1877.” And he then and there signed his name thereto as “John E. Tyler.” But said assignment was not and never has been entered on the said county treasurer’s sale book, and the clerk’s duplicate thereof, nor on either of them; but the column prepared, and designated for the purpose of showing assignments, is left entirely blank, both on'said tax-sale book and the duplicate thereof. 12. On December 4, 1876; the county treasurer issued his notice in substance and to the effect that the time for redemption of the lands designated in the schedule attached to the notice, from the sale of May, 1874, for the delinquent taxes of 1873, would expire on May 8, 1877, and if not redeemed on or before said day, then deeds would be issued to the purchasers. Said notice was published December 7, December 14, December 21, and December 28,1876, and not thereafter. The said quarter-section was described in said notice as “S.E. qr. sec. 35, township 5, range 16,” and as being in Jackson county, Kansas, and the amount specified in said notice as düe thereon at expiration of redemption was $218.35. But said notice did not state in any manner the name of the person to whom said land was assessed, and neither the name of John Shoup, nor J. Shoup, nor any other name, was set opposite thereto nor used in connection therewith, and it could not be ascertained from said notice who was the owner of said tract of land, nor to whom the same had been assessed, although the name of John Shoup appeared on the assessor’s roll as the owner of said land at the time of the assessment thereof in 1873, and the name of J. Shoup appeared on the tax roll for 1873 as the owner of said land, and said assessor’s roll being at the time of said notice and advertisement in the county clerk’s office, and said tax roll being at said time in the county treasurer’s office, as public records. . The defects pointed out in the findings we deem mere irregularities or immaterial omissions, and under § 113, ch. 107, Gen. Stat. 1868, (§139, ch. 107, p. 967, Comp. Laws 1879,) not sufficient to invalidate tax proceedings, or the title conveyed by the tax deed. The omission of the official title of the assessor after his signature to the oath as to the correctness of his assessment and valuation of the real estate, and the absence of the official seal of the county clerk to the jurats to the oath of the assessor upon his return, and to the affidavits of the publication of the tax levy and tax sale, are clearly such mere defects as are intended to be covered by the curative act above referred to, that no argument is needed to support our conclusion. (Townsen v. Wilson, 9 Barr [Penn.], 270.) The only serious question concerning the alleged defects arises over the omission of the name of the person to whom the land was assessed in the notices of sale and redemption. The tax roll shows the assessment in the name of J. Shoup. The statute in force at the time of the publication of the notice of sale provided that the county treasurer should cause to be published for four consecutive weeks prior to the day of sale a list of all lands and town lots subject to sale, describing such land and town lots as the same are described on the tax roll, with an accompanying notice, stating that so much of each' tract of land, described in the list, as might be necessary for that purpose, would, on the first Tuesday of May next thereafter, and the next succeeding days, be sold by him at public auction, at his office, for the taxes and charges thereon. (Gen. Stat. 1868, ch. 107, §§ 81, 82.) The statute relating to redemption notice in force in 1877, and still in force, prescribes: “The county treasurer, at least four months before the expiration of the time limited for redeeming lands as aforesaid, shall cause to be published in some paper published in, or of general circulation in his county, once a week for four successive weeks, a list of all unredeemed land and town lots, describing each tract or lot as the same was described on the tax roll, stating the name of the person to whom assessed, if any, and the amount of taxes charged, and interest, calculated to the last day of redemption, due on each parcel, together with a notice that unless such lands or lots be redeemed on or before the days limited therefor, specifying the same, they will be conveyed to the. purchasers.” (Gen. Stat. 1868, ch. 107, §110; Comp. Laws 1879, ch. 107, p. 965, §137.) These provisions regarding the description of land by the addition of the name of the person to whom assessed, are qualified to some extent by other sections of the statute. Thus §36, ch. 107, Gen. Stat. 1868, (§49, ch. 107, Comp. Laws 1879,) only requires land assessed, or entered upon the assessment roll, to have the name of the owner inserted, when known. Section 92, Gen. Stat. 1868, (§ 118,ch. 107, Comp. Laws 1879,) provides: “When any lands or town lots are offered for sale for any taxes, it shall not be necessary to sell it as the property of any' person, or persons; and no sale of any land or town lot for taxes shall be considered invalid, on account of its having been charged on the roll in any other name than that of the rightful owner; but such land’mustbe in other respects sufficiently described on the tax roll, and the taxes for which it is sold be due and unpaid at the time of such sale.” This section is supplemented by said § 113 of the General. Statutes of 1868, (§ 139, Comp. Laws 1879,) that “noirregularity in the assessment roll, nor omission from the same, nor mere irregularities of any kind in any of the proceedings, shall invalidate any such proceeding, or the title conveyed by the tax deed.” From these sections, we deduce these results, that the assessors are expected to ascertain the names of the owners of the lands assessed, and to set opposite each tract or lot on the assessment roll, the name of the owner; but when the assessor, having jurisdiction, and proceeding irregularly in the exercise of it, fails to enter any name, or enters another name than that of the rightful owner, the assessment is not a nullity; further, that a tax sale is not invalid, if the land is sold as the property of a person other than the true owner, or if sold without regard to ownership; and, finally, that as in the assessment roll and in the tax sale the name of the owner of the land is not essential to the validity of the proceedings, the name of such owner, or the name of the person to whom land is assessed, is not absolutely essential to the sale and redemption notices; therefore its omission is only an irregularity. Clearly, section 92 renders the omission in the tax-sale notice a matter of form, if the description is otherwise sufficient; and if the name ip omitted in all the assessment and sale proceedings, without injurious effect, it is hardly reasonable to hold, that failure to insert such name in the i . . redemption notice renders the tax deed void, because the officer giving such notice can only obtain such name from the assessment or tax books. If it is not there, (and some of the sections quoted were evidently adopted upon the theory that the assessor might not always be able to ascerr tain the owner — that he might assess the land to the wrong person, or by mistake or neglect omit it altogether,) no name can be inserted in the redemption notice. An examination of the cases in the Illinois and New York reports, to which our attention has been called by counsel, does not change our opinion. In the former state, the duty of giving notice devolves upon the tax purchaser, before he is entitled to his deed, by a provision of the state constitution. Of course, under such a constitutional direction, a strict compliance with all the obligations devolving upon the tax purchaser is requisite to render a tax deed valid. In New York, the statutes are different in many respects from ours, and we fail to find any curative act in force in that state like § 139, ch, 107, Comp. Laws 1879. In Wisconsin, the supreme court hold the redemption notice is merely directory, and its total omission not effective against the tax purchaser. (Robinson v. Howe, 13 Wis. 341; Wright v. Sperry, 21 Wis. 331; Wright v. Sperry, 25 Wis. 617.) We do not go so far. The writer is of the opinion that the failure to comply with the substantial requirements of the redemption notice would be fatal to a tax deed; that this notice, though subsequent in point of time to the tax sale is, nevertheless, regarded in judgment of law as precedent to the acquisition of the title. (Blackwell on Tax Titles, [4th ed.,] 343, 344.) But it is unnecessary to pursue this line of discussion. In this case, the notice was not wholly omitted; in the notice occurred only an omission or irregularity, which, under the statute, was not of the substance of the notice, and therefore not fatal. Counsel for defendant in error suggest toward the close of their argument that, as many errors and fatal .omissions in the tax proceedings might have been shown in the court below, this court ought to sustain the judgment of the trial court as to the invalidity of the tax deed, upon' the well-settled principle of law, that error will never be presumed, and that everything necessary to support the conclusion of law that the tax deed is null and void will be considered as having been found by the court in its general judgment. Counsel are here in error, in view of the condition of the record. All the parties requested the court to make special findings of fact; such findings were made; the court, among other findings, found that the tax deed was in due form; then certain defects or omissions in the tax proceedings are set forth at length; the conclusions of law are presumed to be based upon the special findings of fact and the general judgment follows the conclusion of law. As the tax deed is prima facie evidence of the regularity of all proceedings, from the valuation of the land by the assessor, inclusive, up to the execution of such deed, the only defects or omissions we can consider or suppose were proved, are those contained in the special findings. Those defects or omissions are not sufficient to destroy the deed. All the interest and title possessed by John Shoup under the deed were transferred and conveyed to Phillipi. The first, second and third conclusions of law, being inconsistent with the special findings, must fall; and as the general judgment is based upon those conclusions, it also must fall. The third conclusion of fact, not being as full and definite as the admissions of the parties on which it was founded, and having been duly excepted to by the plaintiffs in error, and we being in doubt as to ordering a final judgment in their favor in the absence of the important admission of the parties, (contained in the bill of exceptions,) from the special findings of fact, feel compelled to remand the case for a new trial. If no other defects or omissions are shown in the tax proceedings on another hearing, than those pointed out in the special findings of fact, the tax deed cannot be decreed void by reason of the defective and insufficient execution of the prerequisites thereto. The judgment of the district court will be reversed, and the case remanded with direction to proceed in accordance with the views herein expressed. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: Plaintiff in error (plaintiff below) commenced an action on a promissory note, against defendant, before a justice of the peace, filed its affidavit, and obtained an order of arrest. Before the trial, the order of arrest was discharged, and this is the error complained of. The motion to discharge was sustained upon two grounds — one, a defect in the writ, and the other, the insufficiency of the affidavit. So far as the first ground is concerned, there was obvious error. The writ issued by the justice was without defect; but the constable gave it to defendant, and retained the copy upon which he made his return, and which did not have the name of the justice upon it. Nevertheless the defendant, who at first refused to submit to arrest, came before the justice, and “admitted himself under arrest and subject to the jurisdiction of the court in that regard.” The mistake of the constable in giving the wrong paper to the defendant did not vitiate the proceedings, and any mistake was waived by the .action of the defendant. The other ground presents the only real question in the case: Did the affidavit make such a showing of fraud as ■compelled the sustaining of the order of arrest? We cannot'agree with counsel, that by deciding to issue the order, the justice so far found the affidavit to be sufficient as to prevent further consideration by him of the matter. While he acts judicially upon the affidavit in ordering the arrest, he •decides upon an ew-parte hearing, and when the defendant is .arrested, he may again, upon the motion of defendant, examine and decide upon the sufficiency of the showing in the affidavit, or, upon the denial of the facts in the affidavit by the ■defendant, proceed to an inquiry as to their truth as provided in §25 of the justices’ act. The question then is, Was the •showing prima facie sufficient, and did it cast upon the defendant the duty of denial or explanation? It is true the ■defendant filed an affidavit of denial, but no inquiry was entered into. The plaintiff’s showing was held insufficient. The facts are these: The defendant was an agent of plaintiff, and as such sold some of its machines. He failed to pay-over the proceeds, and when called upon gave his note for the amount-due. At the same time, he promised to give a mortgage on forty acres of land belonging to him, as security therefor. He executed and delivered the mortgage to plaintiff, and then under a promise to obtain his wife’s signature to the instrument, she living about twelve miles from the office where the settlement was made, he received the mortgage and went home. .Instead of returning the mortgage with or without his wife’s signature, he sold and conveyed the property to a third party, his wife joining in the conveyance, and he falsely represented that she refused to join in the mortgage. These facts are stated in the affidavits more in detail, and other matters are also alleged, though mostly upon information and belief tending to strengthen the inferences deducible from these facts. This, however, is the burden of the complaint. Does it make a prima-facie showing of fraud? — for fraud alone under our constitution justifies an arrest for debt. We are inclined to think it does. It is the duty of an agent to remit to his principal the proceeds of the latter’s property sold by him. If he fails to do this and converts such proceeds to his own use, he is guilty of embezzlement and may be punished for the crime. If a party executes one conveyance or assurance of lands, and then another, in which latter he fails to give notice of the former, he is guilty of a misdemeanor. (Sec. 99 of Crimes Act.) Both of these wrongs are charged upon defendant. The note sued upon was for balances due upon sales made of plaintiff’s property. In settling, and to secure this claim, he gave a mortgage, and then, obtaining the mortgage on a false pretense, conveyed the property covered by the mortgage to a third party. This looks like fraud, and seems to call for explanation or denial. We think there was error in sustaining the motion to discharge, and for this error the judgment must be reversed, and the case remanded. All the Justices concurring.	[ -80, 126, 104, -100, 27, 96, 34, -72, -43, -127, 47, 115, -3, -45, 0, 115, -16, 121, 113, 88, 95, -77, 39, 73, -10, -14, -48, 85, -77, 109, -28, -4, 76, 48, -30, -43, 102, -54, -89, -48, -114, 33, 8, -28, -47, 72, 32, 25, 64, 11, 113, -50, -29, 46, 59, 67, -23, 44, -21, 53, -32, -16, -99, -99, 15, 22, -77, 54, -98, 70, 90, 46, 8, 113, 3, -24, 50, -106, -122, 116, 107, 59, 41, 102, 106, 1, 29, -17, -68, -88, 46, 59, 31, -90, -111, 72, -23, 45, -74, -99, 45, 16, 38, 124, -6, -99, 29, 108, 3, -53, -106, -95, -65, 102, 24, 11, -17, -93, 16, 112, -59, -32, 92, 53, 123, -103, -50, -106 ]
The opinion of the court was delivered by Yalentine, J.: On the 9th day of September, 1878, the defendant in error commenced his action in the district court of Saline county, to obtain an injunction restraining plaintiffs in error, who were defendants below, from the collection of certain taxes and from obtaining or issuing certain tax deeds. On the same day a restraining order was issued by the judge of said court, at chambers. Plaintiffs in error filed a general denial, and upon the 15th day of October, 1878, upon a hearing before said judge, a temporary order of injunction was granted. At the November term, 1878, a trial was had before the court in the said district court, and the court made special findings, as follows: “The court finds the following conclusions of fact: “First: That it is admitted by the parties on the trial, in open court, that the defendant W. C. Sloan was, at the commencement of this suit, the county clerk of this county, and acting as such; that the defendant J. B. Hamilton was county treasurer, and acting as such; that the defendant city was duly organized and acting as a city of the third class, and had been and was such during the times covered by this controversy; that the defendant association is a corporation under the laws of this state, duly organized and acting, and was such during all the time hereinafter mentioned; that the witness hereinafter introduced, E. H. Wildman, was city clerk of said defendant city for one year from the-day of April, 1875, and that one E. E. Bowen was such city clerk for the year previous (1874); that plaintiff herein, Beebe, was the legal and acting county clerk of Saline county during the years of 1874 and 1875; that plaintiff was the owner and holder in fee simple of the lots and lands "desqribed in the petition, and during the times therein set forth; that said plaintiff was a share-holder in said defendant association on January 1, 1874, and mortgaged the property described in the petition to said association on a loan; that the defendant city built and paid for, at the rate of 43c. per linear foot, on said plaintiff's lots, at the total cost off-, in the years 1874 and 1875, thesidewalk in plaintiff's petition mentioned; that the ordinance passed by said city, directing "said sidewalk to be built, directed, ordered and proclaimed it to be built of pine boards, plank and joists, while said sidewalk was in fact built wholly of stone; that said lots, in the petition named, were sold for the taxes of 1875, and a tax deed was due defendant association on said lots Nos. 27, 28 and 29, on the face of the records and papers, on the 9 th of September, 1878, for it had taken out and held by assignment from the county, on the 11th day of July, 1877, tax-sale certificates in common form; that a part of the taxes covered by said sale of 1875, and by the tax certificates of defendant as sociation, was the sidewalk tax above named; that plaintiff Beebe has ever refused to recognize the validity of said sidewalk tax, and ever resisted the same; that the lots in plaintiff’s petition mentioned were vacant and unoccupied from the date of the levy of this tax to the present time, and that none of defendants has ever had any possession of them. “Second: From the testimony the court finds, that in addition to the ordinance above named directing said sidewalk to be built, and how to be built, etc., there was an ordinance (or ordinances) making an appropriation from the city treasury for the payment of the same to the contractor or builder of such walk, and none other; there was no ordinance making an assessment or levy of cost of such walk against said lots, or the owner, and no notice to plaintiff by the city to build said walk, or of its cost, or demand for payment of same, save the constructive notice given by the proper publication of said two ordinances above named, and there is no proceeding, order, finding, or notice of or about this sidewalk on the journal of the city, or in its council proceedings. “Third: The proceedings on the part of the city with reference to building such walk and making a tax against such lots for such walk, other than the two ordinances above named, were as follows: After the ordinance directing such walk to be built, the council advertised (in what way does not appear) for bids for such work, and let the same in writing to the lowest bidder; that then the whole matter was referred to the committee of the council on ‘streets and sidewalks,’ which looked after the building, measured and accepted the same, figured upon and decided the amount due the contractor, orally reported that amount to the city council, and they passed the ordinance of payment; fhat said committee also gave to the city clerk (the witness F. H. Wildman) the numbers of the lots on-which sidewalks had been built, and the number of feet of each lot, and the said city clerk on these data figured upon and decided (under the said contract with the contractor, I suppose — it does not appear how) the amount due upon each lot, and this he put into his statement and thus made up the levy or amount of sidewalk tax against each lot, and returned it to the county clerk, and it was filed, and is the Certified statement from which is found and was taken, in that office, the amount of sidewalk tax against each lot, and the same put on the tax roll in the manner hereinafter set forth. “Fourth: That the above-named F. H. Wildman (city clerk) was, during the term of office of plaintiff as county clerk as aforesaid, twice duly appointed in writing as deputy county clerk, and after working awhile under each appointment was by said plaintiff discharged from further duty in his said office^, and from this plaintiff understood and intended to revoke his said appointment as deputy, but he never did revoke his said appointment in writing; that said Wildman accepted said last discharge sometime in the spring of 1875, and went about other businesses, one of which was city clerk aforesaid. “Fifth: That said Wildman, after so leaving said office of county clerk, and while city clerk as aforesaid, after filing his said certified statement of the sidewalk tax in question, in the county clerk’s office as aforesaid, and after the 15th day of November, 1875, and after the tax-roll had been by the county clerk made up and turned over to the county treasurer, and he had begun to and was collecting taxes for that year and had full possession of said tax-roll, went to the county clerk’s office, took the (his) certified statement of these taxes, and, claiming in his own mind to be deputy county clerk, put in his own hand such taxes and charges on the tax-roll opposite the respective lots of plaintiff and others, where they now remain, and all without the knowledge of plaintiff at the time, though plaintiff was then alone performing the duties of said office of county clerk. “Sixth: That plaintiff claims that he has overpaid the defendant association on his said loan more than enough to cover the tax certificates now held by it on these lots; that defendant association claims that there is something still due it on said loan over and above these taxes or certificates; amount of tax certificates held by association on said three lots of plaintiff, $70.05. “Seventh: That defendant association had not demanded a deed • on its said certificates when this suit was commenced, but intended to do so on the 10th of September (next day after), and would have done so and the deed issued, had it not have been for the restraining order issued at the commencement of this suit. “Eighth: The said stone sidewalk built was a very poor and inferior one, soon ^ot out of place and repair, and, as compared with the kind of a walk described in the ordinance, is inferior, but cost 12 cents per front foot less than the council could then have got the other (wood) walk built for, and a reasonable price for the work at that time. “Ninth: That on the 7th day of September, 1878, and before the commencement of this suit, the plaintiff tendered to defendant, county treasurer, all taxes due upon the lots in said petition mentioned, and all charges on the tax-roll save the sidewalk tax in question, which he refused to tender and to pay, and the said tender was, by said county treasurer, defendant, refused. “Tenth: That in said mortgage of plaintiff to defendant association there is, inter alia, the following clause or condition, to wit: ‘But the board of directors of said Salina Building, Saving and Trust Association may, at its option, pay or cause to be paid the said taxes and assessments so due and payable, and charge them against said party of the first part/ The court also found the following conclusions of law: “1. That said claimed sidewalk tax is illegal. “2. That said claimed sidewalk tax was not properly on the tax-roll of the county as a tax for the year 1875. “ 3. That said plaintiff, having tendered to the county treasurer all lawful taxes due on the property in his petition mentioned before the commencement of this suit, is entitled to an.injunction against the tax certificates of defendant association, and is also entitled to an injunction against the'collection or enforcement of said sidewalk tax, by the county or city. “4. That, quaere, is not defendant association estopped by the clause in said mortgage mentioned, from taking out tax-sale certificates on said property? Should not it hold the tax as a charge against the property merely?” The defendants below made a motion to set aside the conclusions of law and for a new trial, and requested the court to make the additional finding of fact, that the said sidewalk was worth the price paid for it, and was a benefit to said David Beebe, all of which was overruled and excepted to. A perpetual injunction was allowed by the court against all the plaintiffs in error, and costs assessed against them; to which rulings, exceptions were saved by each of these plaintiffs in error. The plaintiffs in error submitted to Hon. J. H. Prescott, the judge who tried this case, a case-made, with the suggestions of amendment of defendant in error. The said judge made many erasures and additions to the said case- made other and over and above those, suggested by said plaintiff below. The plaintiffs in error objected and excepted to such changes, and now bring the case here to reverse said judgment. The first point made by plaintiffs in error is with reference to said erasures and additions. Now it is the opinion of this court, that the judge of the district court, in settling a case-made for the supreme court, has the power, on his own motion or at the suggestion of either party, and before signing such case-made, to make such alterations in the case-made, such erasures and additions, as may be necessary to make the case-made speak the truth. And it is not shown that anything different from this was done in this case. But passing to the main question in the case: Was said perpetual injunction properly granted? Or in other words, was sa^ sidewalk tax illegal, or not? We think that the tax was illegal, and therefore that the injunction was properly granted. It appears that the city, by its mayor and council, passed an ordinance requiring in substance that the plaintiff and other abutting lot-owners should build a certain kind of plank sidewalk on the west side of Santa Fé avenue in said city. The plaintiff did not build any portion of said sidewalk. Afterward the city officers, without any ordinance being passed therefor, built a stone sidewalk in place of said contemplated plank sidewalk; the city afterward passed an ordinance appropriating money out of the general revenue fund to pay for said stone sidewalk, but never passed any ordinance assessing or levying any tax against the abutting lot-owners or their lots to pay for such stone sidewalk. Indeed, the city passed only two ordinances with reference to the matter — one ordering the building of said plank sidewalk, and the other ordering an appropriation from- the general revenue fund to pay for said stone sidewalk. Some of the city officers, however, without an ordinance, assessed the tax in controversy against the abutting lots to pay for said stone side.walk. Now we think said tax is illegal, because there was no ordinance requiring or authorizing said stone sidewalk to be built; and th'ere was no ordinance requiring or authorizing an assessment of a tax to pay for the same. No power is given to cities of the third class to build sidewalks, or to make an assessment to pay for the same, except by ordinance. (Comp. Laws 1879, p. 192, §34.) Besides, while all sidewalk taxes or assessments in cities of the third class must be certified by the officers thereof to the county clerk so that he may place them on the county tax-roll for collection, (Comp. Laws 1879, p. 194, §43,) and while such taxes or assessments should be so certified on or before August 25th of each year, (id., p. 956, § 82,) and while the county clerk should immediately after that time place them upon the tax-roll of his county, and should complete such tax-roll and hand it to the county treasurer and charge the county treasurer with all the taxes placed thereon, all on or before the first day of November in each year, (id., p. 956, §84,) and while all the taxes for any particular year become due on the first day of November and then become a lien on real estate, (id., p.956, §85,) and are to be paid by the then owner of the real estate, and not by his grantee if the real estate should afterward be conveyed, (id., p. 956, §86,) and while the county clerk, as a finishing touch, should, on or before November 15th, transmit to the auditor of state a statement showing the total amount of taxes levied in his county for all purposes in such year, (id., p. 956, §87,) yet, in this particular case, the sidewalk tax was not even certified to the county clerk until November 16th, which was some time after the county clerk had delivered the tax-roll to the county treasurer, and some time after the treasurer had commenced to collect the taxes thereon. How long after November 16th it was before this sidewalk tax was placed on the tax-roll, is not very definitely shown. It might have been placed on the tax-roll the next day, or some time afterward; and when it was placed on the tax-roll, it was placed thereon without the knowledge or consent of the county clerk, by a person who had previously been appointed deputy county clerk, but who was not at that time doing any business in the county clerk’s office. The judgment of the court, below will be affirmed, upon condition, however, that the tender made by the plaintiff to the county treasurer be kept good. All the Justices concurring.	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The opinion of the court was delivered by Valentine, J.: This was an action in the nature of ejectment, brought by the plaintiff in error, who was the plaintiff below, against the defendants in error, who were defendants below, to recover the possession of certain real estate situated in Miami county, Kansas. The answer of the defendants was a general denial of the plaintiff's* title and an admission of possession and a claim of ownership in themselves. The trial was had before the court, without a jury. The plaintiff claimed under a tax deed executed to him by the county clerk of said Miami county, Kansas, on July 27th, 1877, on a tax sale made May 9th, 1872, for taxes levied on the land in 1871. The plaintiff had also paid all the taxes levied on the land for the years 1871 up to 1876, inclusive. The defendants held title by a direct chain from the original patentee; the court below made special findings of fact and of law — finding the foregoing facts, and also finding the separate amounts of the taxes which the plaintiff had paid for each separate year and the times respectively when he paid them, and then held that the plaintiff's tax deed was void, upon the ground that the notice of said tax sale failed to state the place where the sale .would be made. The notice was given by the county treasurer, and was sufficient in all respects, except that it did not state the place where the sale would be made, and in this respect it was defective. The law required that such a notice should state that the sale would be made “at his office,” meaning the county treasurer’s office. (Sec. 81 of the Tax Law of 1868; Laws of 1869, p. 238.) This was the only law prescribing where the sale should be held. The court below, after making said findings, rendered judgment in favor of the defendants and .against the plaintiffs for costs; “and thereupon the plaintiff moved the court to ascertain and declare the amount that said plaintiff would be entitled to receive for his said taxes paid by him under and in accordance with the provisions of §117 of the tax law of 1868, (Gen. Stat. of 1868, p. 1057,) as modified in the tax law of 1876, (Laws 1876, p. 95, §142; Comp. Laws 1879, p.967, §142,) and adjudge the same a lien upon said land, which motion the court overruled, and to which ruling of the court the said plaintiff then and there excepted.” This was the only exception taken in the case. The plaintiff now brings the case to this court for review. The only question presented in this court for decision is, whether, under the foregoing facts, the plaintiff is entitled to receive back from the defendants any part of the taxes which were paid by him on said-lands. The court below held that he was not. We think that he was. The statutes provide that “a lien for all taxes shall attach to the real property subject to the same, on the first day of November in the year in which such tax is levied; and such lien shall continue until such taxes and any penalty, charges and interest which may have accrued thereon, shall be paid by the owner of the property, or other .person liable to pay the same.” (Gen. Stat. of 1868, p. 1044, §74; Laws of 1876, p. 80, §85; Comp. Laws of 1879, p. 956, § 85.) “If the holder'of a tax deed, or any one claiming under him by virtue of such tax deed, be defeated in an action, by or against him, for the recovery of the land sold, the successful claimant shall be adjudged to pay to the holder of the tax deed, or the party claiming under him by virtue of such deed, before such claimant shall be let into possession, the full amount of all taxes paid on such lands, with all interests and costs as allowed by law, up to the date of such tax deed, including the costs of such deed, and the recording of the same, with interest on such amount at the rate of twenty per cent, per annum, and the further amount of taxes paid after the date of such deed, and interest thereon at the rate of twenty-five per cent, per annum.” (Gen. Stat. 1868, p. 1057, §117; Laws 1876, p. 95, §142; Comp. Laws 1879, p.967, §142.) The tax deed in this case was not void, but at most only voidable; the land was taxable, and was taxed; and the owners of the land did not pay the taxes on it, and it was sold for the taxes, and a tax deed was duly executed thereon. Everything seems to have been regular except merely said notice of sale. The owners of the land of course knew that their land was taxable, and that they did not pay the taxes thereon. They omitted to pay their taxes from 1871 to 1876, inclusive. They cannot now be relieved from paying their taxes simply because of said slight defect in said notice. We think the court below erred in refusing to determine the amount of taxes due on said land, and in refusing to declare the same to be a lien upon the land. .Said §117 (in connection with said § 74) clearly contemplates such a thing, notwithstanding its ambiguity. Said section says, that if the holder of the tax deed “ be defeated in an action by or against him, for the recovery of the land sold, the successful claimant shall be adjudged to pay the holder of the tax deed” the taxes. The words “before such claimant shall be let into possession” must be held not to apply to a case of this kind, or they must be given a liberal construction. It must not be held, because of said words, that the evident intent of the legislature, as shown by said §§117 and 74, must be overturned, or held for naught. We think that the court below should have granted the plaintiff’s motion. The judgment of the court below, so far as the ruling on said motion- is concerned, will be reversed, and cause re manded for further proceedings in accordance with this opinion. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: This was an action brought by plaintiff in error, to whom a promissory note for $1,500, of April 6, 1870, and .due fifteen months after date, had been assigned by successive assignments from the payee, W. T. Shively, to this plaintiff. The petition recites that an action was commenced on this note on the 9th day of July, 1874, and that said action was pending until the 21st day of October, 1878, when the suit was dismissed without prejudice to another action. At the time the suit was dismissed, a prior assignee in the actfen was the owner of the note, as well'as the plaintiffs in the action, and remained the owner until October 13, 1879, on which day he assigned the same to the plaintiff in error. On October 15, 1879, plaintiff commenced this suit, and defendants were served October 17, 1879. Defendants filed a general demurrer to plaintiff’s petition, which upon hearing was sustained. From this ruling plaintiff brings error. The question is, as to the effect of § 23 of the code, which reads: “If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or if he die, and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure.” Now the argument is, that this creates an exception, and that plaintiff must bring herself within its very terms, or take nothing by it. The section says, the plaintiff, or, in case of his death, his representatives. There is no allegation of death, and she does not claim to be the plaintiff in the former action. Having named the parties who may sue, all others are excluded. A privilege is granted, which is limited to certain specified parties. • No general prolongation of the right of action is intended, but simply a special reservation to the plaintiff personally, or, in case of his death, his representatives. The very fact that the latter are- mentioned, shows that the intention was to limit to the parties named. Williams v. Council, 4 Jones (N. C.) L. 206, is cited in support of these views, in which the court decides that “ the proviso that the plaintiff may commence a new action within a year after suffering a nonsuit, means that the plaintiff must be the same, and the cause of action the same, but the defendant may be different.” This argument is plausible and strong, and is exceedingly well put by counsel for defendants in error. Nevertheless, we are constrained to believe that it is not the correct exposition of the statute. Of course, the intent of the legislature controls, and every section must be read in the light of other statutes. By this section it is conceded that-a right of action is preserved to the plaintiff. He may sue within a year. It is a right vested in him, a right whose existence defendants do not question. This right of action, being founded on contract, may by general law be assigned and the action maintained in the name of the real party in interest. After suit he may assign, and the assignment by special statute works no abatement, but the suit may progress in his own name, or in the name of the assignee. (Code, §40.) As the prior plaintiff, if still the owner, could beyond question have sued within the year, and after suit assign to plaintiff, it would seem that no valid reason exists why, under the general law of assignment, he might not transfer his claim before suit, and permit the assignee to commence suit in his own name. The assignment, being specially operative by statute in certain cases, should be generally operative, unless expressly prohibited, or unless against public policy. It would seem trifling to say that a party may commence suit, then assign and permit the action to continue in the name of the assignee, but that he might not assign before suit. Such construction would be an insisting upon form to the neglect of substance. -Yet the former, the statute expressly authorizes. A prohibition of the latter should not be implied. Substance of right is vital, and form only secondary. Substance of right being with the plaintiff, mere implication should not make form controlling and destructive of substance. Full force may be given to said § 23, by making it operative simply to keep the right of action alive for one year after failure of prior suit. Were the cause of action to be assigned pending prior suit, it might legally continue in the same name till its termination. If it failed, otherwise than upon its merits, is the cause of action lost?. The former plaintiff could not sue, because- he has ceased to be the real party in interest, and, according to defendants' argument, the purchaser of the cause of action could not sue, because he was not the prior plaintiff. Suppose, not by voluntary assignment but by order of the court, the claim is transferred to a receiver: does a failure of the prior action defeat any future recovery? Certainly, if defendants’ argument is sound. We cannot think such the intent of the legislature. Rather it seems to us that the intent is to preserve the right of action for a year after failure of suit, leaving that right of action free to transfer, and the subsequent plaintiff to be determined by other sections as to the real party in interest and the right of transfer. This is the only question in the case, and it appearing that the court erred in the construction of this statute, the judgment must be reversed, and the cáse remanded with instructions to overrule the demurrer. All the Justices concurring.	[ -80, 126, -36, -34, -118, 96, 40, -112, 67, -95, -89, 83, -23, -45, 21, 121, 115, 41, 81, 107, -26, -73, 23, 66, -14, -13, -61, -43, -79, -51, -26, -33, 76, 32, 74, -43, 102, -62, -63, -42, -50, -83, 9, -20, -15, -55, 48, 123, 82, 79, 85, -34, -29, 46, 25, 78, -17, 41, -7, 57, -56, -72, -114, 5, 127, 18, -79, -89, -100, 71, 104, 44, -104, -75, 0, -24, 50, -74, 6, -12, 107, -103, 8, 102, 103, 32, 5, -1, -120, -72, 6, -98, -65, -90, -44, 57, 43, 9, -74, -99, 53, 16, 7, 116, -18, -107, 17, 60, 7, -117, -42, -77, -49, 38, -98, 3, -29, -89, 48, 113, -52, 32, 92, 103, 59, -109, -122, -98 ]
The opinion of the court was delivered by Horton, C. J.: On November 13,1879, the defendant in error brought his action under the stock law of 1874, before a justice of the peace in Crawford county, to recover damages for the killing of a mare belonging to him. Judgment was rendered by the justice of the peace against the plaintiff in error, from which judgment an appeal was taken to the district court. The case was tried at the April term, 1880, of the district court of Crawford county. The plaintiff in error objected to the introduction of any evidence, on the ground that no cause of action was stated in the bill of particulars or petition. The objection was overruled by the court. This was error. The statute requires that the action shall be brought in the county in which the animal was killed, and there is an entire omission of any such allegation in the complaint. No cause of action was stated. (K. P. Rly. Co. v. Taylor, 17 Kas. 566; Hadley v. Central Branch Union Pacific Rld. Co., 22 Kas. 359.) Of course, when the court’s attention was directed to this omission in the pleading, it might have authorized the omission to be supplied by amendment, but no order or motion was made to that effect, and the objection ought to have •been sustained. In actions under the stock law of 1874, a reasonable attorney’s fee for the prosecution of the suit is recoverable in favor of the plaintiff; and therefore, there is less reason for favoring defective pleadings in these actions than in the ordinary cases commenced injustices’ courts. In this case, thirty-five dollars was allowed as attorney’s fee. Certainly where the statute contemplates the employment of an attorney before the justice, and provides for compensation to be recovered from the opposing party, the.attorney engaged should at least be careful to see that the complaint states facts essential to a cause of action; and if it fails so to do, on the first objection to any substantial- omission, it should at once be corrected by amendment. The judgment will be reversed, and the case remanded. All the Justices concurring.	[ -74, 126, -8, -83, -120, -32, 34, 10, 65, -95, -73, 83, -115, -45, 20, 113, 114, -83, 85, 107, 70, -77, 23, -30, -110, -109, -109, -57, 49, 79, -26, -49, 77, 48, 74, -43, 103, -86, -127, 84, -118, 5, 9, -20, -39, 104, 56, 105, 54, 75, 49, -82, -21, 42, 28, 67, 105, 40, -81, 41, -46, -15, -70, 15, 127, 2, -77, 118, -98, 3, 88, 46, -112, 57, 0, -8, 114, -74, -126, 84, 45, -119, 8, 102, 102, 33, 109, -49, 40, -120, 47, -2, -113, -89, -112, 16, 75, 9, -106, -99, 53, 16, 7, -4, -30, 28, -99, 108, 1, -33, -112, -65, -81, 36, -106, 71, -21, -89, 16, 113, -99, -64, 93, 69, 114, -101, -114, -98 ]
The opinion of the court was delivered by Brewer, J.: This was an action brought under the 9th and 10th sections of the dramshop act, in which the defendant in error, plaintiff below, recovered a judgment of $2,600 against the plaintiff in error, for having caused the intoxication of her husband. It appears from the affidavit of the bailiff, thé only testi mony offered on the motion for a new trial, that he was present in the jury room during the deliberations of the jury, and that the amount of the verdict was ascertained and determined solely by adding the sums named by the respective jurors, and dividing the sum total by twelve. This was not done for purposes of consultation, but by distinct agreement that the result of these arithmetical processes should be the amount of the verdict, and it was immediately at the close of the calculation so written out and returned. This was error, and sufficient to compel a new trial. (Bailey v. Beck, 21 Kas. 465.) It is true the district court refused to permit the affidavit to be read upon the motion, but we think its ruling in this respect cannot be sustained. The following quotation from the case-made shows the ruling in respect to the affidavit, and the reasons therefor: “The facts are, that the plaintiff objected to the reading of the same, on the ground that it was not filed with the motion for a new trial. The court ruled that as a matter of practice, the affidavit should be on file a reasonable time before the hearing of the motion for a new trial, to give opportunity for counter affidavits. The defendant insisting upon the court hearing the motion for a new trial at that time, the court refused to permit the affidavit to be rea,d — it appearing that the plaintiff Had no notice of the filing thereof until after the motion for a new trial was called up for decision.” Now when notice of a motion is required, the statute provides that if affidavits are to be used, the notice shall state that fact. (Code, § 534.) But even then, it is not required 'that the affidavits be filed, but simply that notice be given that they are to be used. As to this motion, however, no notice is required, and certain of the grounds for a new trial must be sustained by affidavit. (Code, § 309.) The fact that a motion is filed including those grounds, is notice to the opposite party that affidavits sustaining them will be offered. And a party making a motion is under no obligation to disclose the testimony he may have to offer on the hearing thereof, any more than a party before trial to disclose the testimony he expects to produce on the trial. Neither has the court any power to require such a disclosure. The court may, either upon a trial or a motion, and upon each alike, if unexpected testimony be offered, for good reason postpone the further hearing to enable the opposing party to produce testimony in reply to that offered, but if the opposing party has no counter testimony, and can get none, he cannot prevent the introduction of that offered, simply on the ground that it was unexpected. In the case at bar, if the facts stated in the affidavit were true, the defendant was entitled to a new trial; if they were not true, and the plaintiff could produce testimony to show their falsity, she should have made an application for time to produce such .testimony, but she could not prevent the defendant from offering his testimony, simply because she did not know what he was going to offer. As this error compels a reversal of the judgment, we might stop here; but some-questions are raised which will have to be considered on the new trial, and we may as well dispose of them now. This will facilitate the proceedings on that trial. It is insisted that said §§ 9 and 10 are unconstitutional, because they contain matter foreign to that in the other sections of the act, and not expressed in the title to the act. The title of the act is, “To restrain dramshops and taverns, and to regulate the sale of intoxicating liquors.” The other sections contain provisions as to licenses, penalties for sales without license, prohibitions of sales upon certain days and to certain persons. Sec. 9 provides that any one who causes the intoxication of another shall be compelled to pay for his care while so intoxicated; and §10, that every person who is injured in his property or means of support by any intoxicated person, or in consequence of intoxication, may recover therefor of the person causing such intoxication. Now it seems to us that these matters come fairly within the scope of the title. They name certain conditions upon which one may sell liquor. The act in substance says to a party that you must not sell without a license; that when licensed you must not sell on certain days or to certain persons; and that if you sell, you will be held liable for the iujury the liquor causes. Is not all this the regulation of the sale of intoxicating liquors? We think the district court properly overruled the objections of counsel in this respect. Another question is, whether it must appear that the liquor sold by defendant was the sole cause of the intoxication. In other words, does the statute apply where it is shown that the intoxication was caused by two drinks of liquor, one sold by defendant and the other by another party? The language of the statute is, “shall cause the intoxication;” and the argument is, that unless the sale by defendant shall be the sole cause, if it is only a contributory cause, the statute does not apply. We do not agree with this view of the statute. Where the separate acts of two wrong-doers contribute to and jointly cause the wrong, each is responsible as though he were the sole wrong-doer. This is a universal law of torts, and applies ip the case of the sale of liquor as in all other cases. Of course the act must stand in the line of direct causation. If a glass of liquor is sold to-day which simply awakens an appetite, which months thereafter causes the party to seek and drink liquor to excess, such sale cannot be said to be in the line of direct causation; but where the liquor sold is part of that which directly produces the intoxication, we suppose the sale is within the statute, although it appears that other parties sold liquor which also contributed to the intoxication. In other words, it is sufficient if it appears that the liquor sold was either solely or with liquor sold by other parties at or about the same time, the direct cause of the intoxication. Where two glasses of liquor are sold by two different parties, and intoxication follows therefrom, no analysis can accurately apportion the cause between the two sales, and the statute holds each responsible for the result caused by the two separate sales. If it be said that this casts large risks on the sale of liquor, for a sale of one drink to a man perfectly sober may be followed by a second sale to the same party by another person, and so no man be safe against the wrongful acts of a second vendor, we reply that- the statute invites no man to engage in the business of selling liquor. It prescribes the conditions, and if they seem hard to any one, he may decline entering into the business. It cannot be disguised that ■the general judgment is, that the sale of liquor carries risks to society, and if as protection against' such risks the lawmakers attach severe conditions to such sale, the courts have no alternative but to enforce such conditions. In Lawson’s monograph on the “civil remedy for injuries arising from the sale or gift of intoxicating liquors,” p. 20, it is said: “A seller of intoxicating liquors by which another is injured in person, property or means of support, is not released from liability, if a part of the liquors causing the intoxication was sold by others. He is liable if he contributed to the result.” (Woolheather v. Risley, 38 Iowa, 486; Fountain v. Draper, 49 Ind. 441; Hackett v. Smelsey, 77 Ill. 109; Emory v. Addis, 6 Ch. Legal News, 336; Stone v. Nickerson, 5 Allen, 29; Bodge v. Hughes, 53 N. H. 616; Boyd v. Watt, 27 Ohio St. 259; Roth v. Eppy, 16 Am. L. Reg., N. S., 111.) See especially the case from 27 Ohio St. We are aware that in many of the states having statutes similar to ours, the language used is, “have caused or contributed to the intoxication,” or, “have caused the intoxication in whole or in part;” but while this may make the meaning of the legislature plainer, we think for the reasons indicated our statute must bear the construction we have placed upon it. Indeed, in some of the states referred to we find one section with language as quoted, and another with language as in ours. Several other questions are presented and discussed by counsel for plaintiff in error in their briefs, (the defendant in error has filed no brief,) but we shall not pass upon them at present. They may not arise in the next trial. The judgment will be reversed, and the case remanded with instructions to grant a new trial. All the Justices concurring.	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The opinion of the court was delivered by Valentine, J.: This was an action on the official bond of George W. Graves, constable. The facts are substantially as follows: Graves, having an execution in his hands, which had previously been issued on a judgment in favor of W. L. Challiss and against Thomas Butcher, levied such execution on certain property as the property of said Thomas Butcher, and was. about to sell the same, when George W. Butcher (defendant in error, plaintiff below) claimed the same, and gave notice to Challiss for a trial of the right of property, under chapter 164 of the laws of 1872. (Comp. Laws of 1879, pp.725, 726.) Said trial of the right of property was had, and judgment was rendered in favor of Butcher and against Challiss. Challiss then gave the constable an indemnity bond, and the constable then refused to deliver the property to said George W. Butcher, but sold it as the property of said Thomas Butcher. George W. Butcher then commenced this present action against the constable and his sureties on the constable’s official bond, for - damages alleged to have been sustained by reason of the sale of said property. Various proceedings were had in the case, including the sustaining of a demurrer to certain of the defendants’ defenses, a trial, and the rendering of a judgment in favor of the plaintiff and against the defendants for said damages, to wit: the sum of $208.60 apd costs. The court below held that said trial of the right of property in the justice’s court, and the judgment rendered therein, were conclusive against the constable and his sureties as to the ownership of said property. Whether this ruling of the court below is correct or not, is the only substantial question now presented to us for our consideration. We think said judgment is not conclusive. In the case of Sponenbarger v. Lemert, 23 Kas. 63, it is said: “Such judgments are generally not conclusive. (Freeman on Executions, §§276, 277; Armstrong v. Harvey, 11 Ohio St. 527, 533; B’Hymer v. Sargent, 11 Ohio St. 682; Foltz v. Stevens, 54 Ill. 181, 185, 186; Curtis v. Patterson, 8 Cowen, 65; Van Cleef v. Fleet, 15 Johns. 147; Sheldon v. Loomis, 28 Cal. 122.) This kind of suit is a summary proceeding before a justice of the peace, for the trial of the right to property which may amount in value to several hundreds, or even thousands of dollars, and neither the judgment debtor (the supposed owner of the property) nor the constable who has seized it, is made a party to the action, but the proceeding is had merely between the claimant and thejudgment creditor.” For the error of the court below, in holding that thejudgment rendered by the justice of the peace in the proceeding for the trial of the right of property was conclusive against the constable and his sureties, the judgment rendered in this case must be reversed, and the cause remanded for further proceedings. All the Justices concurring.'	[ -16, 126, -8, -65, 120, 96, -86, -104, 73, -95, -75, 115, 45, -62, 1, 41, -14, 125, 85, 121, 70, -78, 55, 33, -102, -13, -45, -52, 49, -56, -26, 85, 77, 36, -54, -99, 102, -24, -63, 80, -114, 45, -88, -19, 88, 16, 52, 59, 80, 75, 85, -118, -21, 46, 29, -29, 105, 40, 75, 45, 80, -7, -81, -123, -33, 30, -109, 100, -100, 3, -38, 14, -112, 53, 1, -24, 115, -92, 6, 116, 13, -119, 44, 102, 103, 48, 85, 109, -72, -104, 45, -2, -121, -89, 16, 88, 66, 0, -106, -99, 122, 16, 39, 118, -26, 92, 93, 108, 35, -113, -106, -109, 13, 44, -102, -109, -45, 41, 48, 113, -52, -24, 93, 97, 85, -101, -114, -43 ]
The opinion of the court was delivered by Horton, C. J.: On January 6, 1879, defendant in error, (plaintiff below,) filed his petition in the district court of Reno county, to recover of plaintiffs in error, (defendants below,) $500 and interest on the following contract in writing: “$500. Hutchinson, Kansas, February 5th, 1878. “Thirty days after the execution and delivery to us by R. E. Fletcher of a good and sufficient deed of warranty, of the following-described real estate, situated in Reno county, Kansas, to wit: Northeast quarter of section (10) ten, in township twenty-three (23), range five (5) west, we promise to pay said R. E. Fletcher five hundred dollars. “J. McMurry. “C. McMurry. “A. McMurry.” Plaintiffs in error in their answer denied the delivery or tender of the deed mentioned in the written contract, referred to a prior written contract hereafter set forth, and alleged that the defendant in error, by his own act and negligence, had discharged them from all liability. To this, a reply in the nature of a general denial was filed. On the trial, Fletcher testified, that on September 23d, 1878, he tendered to J. McMurry, who declined to receive it, a deed, of which the following is a copy: “This indenture, made this 23d day of September, 1878, between Robert E. Fletcher and Ellen Fletcher, his wife, in Reno county, of the state of Kansas of the first part, and J. & C. McMurry & Co., of Reno county, in the state of Kansas of the second part, witnssseth, that the said parties of the first part, in consideration of the sum of two thousand dollars, the receipt of which is hereby acknowledged, do by these presents grant, bargain, sell, and convey unto the said parties of the second part, their heirs and assigns, all the following-described real estate, situated in the county of Reno, in the state of Kansas, to wit: The northeast quarter (N. E. J) of section number ten (10), in township number twenty-three (23), south, of range number five (5) west, containing one hundred and sixty (160) acres, more or less, according to the United States survey thereof: to have and to hold the same, together with all and singular the tenements and hereditaments and appurtenances thereunto belonging, or in anywise appertaining, forever. And the said Robert É. Fletcher, for himself and his heirs, executors and- administrators, does hereby covenant and promise and agree to and- with the said parties of the second part, that at the delivery of these presents he is lawfully seized in his own right of an absolute and indefeasible estate of inheritance herein, in fee simple, of, and in all and singular, the above-granted and described premises, with the appurtenances; that the same are free, clear, discharged, and unincumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments and ineumbrances of what nature or kind soever; and that he will warrant and forever defend the same unto said parties of the second part, their heirs and all and every person or persons whomsoever lawfully claiming, or to claim the same. “In witness whereof, the said parties of the first part have hereunto set their hands, the day and year first above written. “Robert E. Fletci-ier. “Ellen Fletcher.” “State of Kansas, Reno County, ss. “Be it remembered, that on this 23d day of September, 1878, before me, the undersigned, a notary public in and for the county and state aforesaid, came Robert Fletcher and Ellen Fletcher, his wife, who are personally known to me to be the same persons who excuted the within instrument of writing, and such persons duly acknowledged the same. “In testimony whereof, I have hereunto set my hand and affixed my notarial seal, the day and year last above written. (Seal.) John Brown, Notary Public.” No proof was offered of any other tender, or the attempted delivery of any other deed. After the defendant in error rested, the plaintiffs in error filed a demurrer to the evidence, on the ground that it was insufficient to maintain the action. This was overruled by the court. After the evidence was closed, the plaintiffs in error asked the court to instruct the jury: “That a deed executed to J. & C. McMurry & Co., under a contract with J. McMurry, C. McMurry and A. McMurry, would not be a compliance with the contract, and that a tender of such a deed to J. & C. McMurry & Co. would not be (in) compliance with (the contract) with J. McMurry, C. McMurry and A. McMurry, and they would be under no obligation to receive such a deed under a contract with the individual members of the firm.” The court refused the instruction, and directed the jury “that, so far as the tender of the deed was concerned, the tender of the deed to J. & C. McMurry & Co. was a compliance with the contract.” The court erred in overruling the demurrer to the evidence, and in its direction to the jury. The petition was based solely upon the-written contract of February 5th, 1878. As a precedent condition to the payment of the money therein nambd, Fletcher was to deliver to J. McMurry, C. McMurry and A. McMurry a good and sufficient deed of warranty to the N.E.J of section 10, township 23, and range 5. A deed to J. & C. McMurry & Co. would not be in compliance with the written contract for four reasons, at least: First, it nowhere appears in the deed that A. McMurry is one of the grantees; second, the contract does not show that any partnership existed as J. & C. McMurry & Co.; third, a conveyance to- J. & C. McMurry & Co. only conveyed the legal estate to J. & C. McMurry, clothed with a trust for the company, if a partnership existed and the real estate was purchased with partnership funds; fourth, the contract calls for a deed to J. McMurry, C. McMurry and A. McMurry, as the grantees. The rule is, that conveyances of real estate for the use and benefit of a partnership should run to the individual partners jointly as tenants in common. The principle applicable to conveyances of real estate to members of a partnership, is stated in Moreau v. Saffarans, 3 Sneed, 595, and in 1 Washburn on Real Property (3d ed.), pp. 573 and 574. Counsel for defendant in error attempt to support the rulings of the trial court upon the following contract: “Memoranda of agreement made and entered into at Hutchinson, Kansas, by and between J. & C. McMurry &■ Co. of the first parties, and R. E. Fletcher, second party, all of Hutchinson, Kansas, witnesseth: That first parties, in consideration of presents hereinafter mentioned, have this day executed and delivered to second party, his heirs and assigns forever, a good and sufficient warranty deed for and to lots 8 and 10, Sherman street, east, in the city of Hutchinson, Kansas, and delivered possession thereof; first parties further sell and deliver the following personal property, to wit: six head-of horses and three buggies, three sets of harness, two saddles, two bridles, two blankets, three robes, one stove— all of said real and personal property being of the value of twenty-five hundred and fifty dollars. And first parties warrantee and guarantee the same and every part thereof, free and clear of all incumbrances of any kind or nature-whatsoever. Second party agrees to pay first parties the sum' of twenty-two hundred and fifty dollars, as follows:,, one hundred and fifty-three and 55-100 dollars cash in hand, the-receipt whereof is hereby acknowledged by first parties, and ninety-six and 45-100 dollars to be paid on or before March 25, 1877, with interest thereon at the rate of 10 per cent, per annum according to second party’s certain promissory note of even date herewith; and second party agrees to execute and deliver to first parties, or their assigns, a good and sufficient warranty deed, and conveying the N. E. J of section 10, in township 23, south, of range 5, west, containing 160 acres, more or less, and situated in Reno county, Kansas. Second party further sells all growing crops on said tract, said tract-of land and crops thereon being of the value of $2,000; said deed to be given on or before November 1st, 1877. Should second party fail to convey said tract of land as herein agreed or within a reasonable time thereafter, first parties shall be entitled to recover the sum of $2,000 in lieu of said conveyance of said tract of land. Witness our hands, at Hutchinson, this 5th day of February, 1877. J. McMurry. C. McMurry. R. E. Fletcher. It is further agreed, that I will lend J. & C. McMurry, if requested, on the first day of May, 1877, the sum of five hundred dollars, from said date until foregoing deed is executed and delivered, at the rate of 10 per cent, per annum until paid. Said sum is to be repaid before second party shall be required to execute said deed for N. E. £ 10-23-5, W., Reno Co., Kas. R. E. Fletcher. Hutchinson, Kas., Feb. 5, 1877. We hereby guarantee the performance of the foregoing contract on the part of R. E. Fletcher, second party thereto. Jas. Storing-. Brown & Bigger. E. Wilcox. This contract was mentioned in the answer to the petition, and also offered in evidence. We may therefore consider its contents in determining the alleged errors. As the contract does not show A. McMurry a partner with J. & C. McMurry & Co., and as there is no allegation in the pleadings that he-was a partner, or otherwise interested in the contract of February 5th, 1877, such contract does not uphold the rulings complained of. Further than this, if the contract of February 5th, 1878, was a supplemental contract to the contract of February 5th, 1877, between the same parties and to modify its terms, the original contract is modified accordingly. In the absence of the contract of February 5th, 1878, as the original contract recites that the deed should be made to J. & C. McMurry & Co., we suppose Fletcher would have fully performed the conditions of the contract upon this point by delivering or tendering a deed running to said J. & C. McMurry & Co. After the contract of February 5th, 1878, (if such contract was intended to supplement the original contract,) the time for executing the deed was changed from November 1st, 1877, or a reasonable time thereafter, to a reasonable time after February 5th, 1878; instead of the $500 loaned by Fletcher, drawing interest at the rate of ten per cent, per annum, the parties were to have the use of said $500 from Februaiy 5th, 1878, until thirty days after the delivery of the deed without interest, and the deed was to run to J. McMurry, C. McMurry and A. McMurry, in place of J. & C. McMurry & Co. Had the defendant in error made a deed to the individuals last named, then set forth in his petition the original contract, and its changes and modifications by the supplemental contract, and alleged that the J. McMurry, C. McMurry and A. McMurry composed the firm of J. & C. McMurry & Co. at the date of the original contract, and further stated a tender of said deed to said individuals, he might, we think, have recovered, if the testimony had supported the allegations. We suppose it is not too late yet for such a petition to be filed, unless something has intervened by the action of the parties since the commencement of this suit to bar the recovery of the $500. The judgment of the district court will be reversed, and the case remanded for further proceedings in conformity with the views herein expressed. All the Justices concurring.	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The opinion of the court was delivered by Valentine, J.: The sole question presented to the court for its decision in this case is, the validity of § 7 of ch. 90 of the Laws of 1870. The section reads as follows: “ If any county or township tax shall be assessed and col lected from any railroad which may have been built in whole or in part in any township which may have subscribed stock as provided in the foregoing sections, all such county and ’ township tax arising from said railroads within said township, shall be set apart and held by the treasurer for the benefit of ■such township, and applied to the payment of the' interest and principal of said bonds, and after the payment thereof, "the same shall be added to the school fund of said township; if only a general county or other tax is levied and collected from said railroad in the county, then the township or townships which may have aided in the construction of said road as aforesaid, shall be entitled to have of said tax a fair proportion thereof, to be determined by comparing the length of the road in the township to the whole length in the county.” (Laws of 1870, p. 191. See also Laws of 1879, p. 253, §1; Comp. Laws of 1879, pp. 796, 797, §7; Laws of 1876, p. 215, §7, and pp. 220, 221, §10; Comp. Laws 1879, p. 791, §7, and p. 794, §10.) The defendants in error claim that said section 7 is void, because, as they claim, it is in contravention of sections 1 and 4 of art. 11 of the constitution of the state of Kansas. So much of section 1 of art. 11 of the constitution as is necessary to be considered in this case reads as follows: “The legislature shall provide for a uniform and equal rate of assessment and taxation.” Said section 4 of art. 11 of the constitution reads as follows: “No tax shall be levied except in pursuance of a law, which shall distinctly state the object of the same; to which object only such tax shall be applied.” This litigation has reference to that portion of the county tax of Douglas county and that portion of the township tax of Eudora township, which was levied on the railroad property of the St. Louis, Lawrence & Denver railroad company, in said Eudora township and county of Douglas. We shall first consider the question raised with reference to the county tax; but what we shall say with reference to the county tax, we think will also have application in principle to the township tax. This county tax, which-is now in litigation, is a portion of the general county tax which was levied on all the taxable property of the county by the county commissioners for general county purposes, under § 83 of the tax law. (Comp. .Laws of 1879, p. 956. See also id., p. 275, § 16, sub. 4; id., p. 312, §§181, and 1.) This general county tax was levied for “county purposes,” for “county charges and expenses,” for “current expenses of the county,” and no portion of it was levied for the purpose of paying principal or interest on township railroad bonds. And it was levied for said “ county purposes” “in pursuance of a law;” and therefore, no portion of it can now be diverted from such purpose or purposes. (Const., art. 11, §4; The State v. Comm’rs of Marion Co., 21 Kas. 419.) Certainly no portion of this tax was levied for the purpose for which the plaintiff now desires to use it. The tax now in litigation either is or is not a part of the county tax. If it is, then it cannot be diverted from county purposes as before stated. But if it is not, then neither it nor the real county tax is levied on the taxable property of the county or township at “a uniform and equal rate.” That is, if it is not a part of the county tax, then all taxable property in the county, except the railroad property, in which this tax was levied, is subject to a county tax, while this railroad property is not subject to any county tax, and no property in the county or township, other than this railroad property, is subject to so high a township railroad bond tax, as this railroad property is. While this railroad property is subject to the same township railroad bond tax that other property in the township is, it is also, in addition thereto, subject to another township railroad bond tax equal to the county tax and the township tax levied on other property, and called a county tax and a township tax. Hence, it will be seen that if the tax now in litigation is not a county tax or a part thereof, then neither it nor the real county tax is levied on the taxable property of the county and township at “a uniform and equal rate,” and hence, both it and the statute attempting to create it must be held to be void. Besides, if it is not a county tax, then both it and the statute attempting to create it, must be held to be void, for the additional reason that it is not levied in pursuance of any law which distinctly states the object of the tax. (Const., art. 11, §4; A. T.& S. F. Rld. Co. v. Woodcock, 18 Kas. 20.) If it is not a county tax, then it is really not levied in pursuance of any law. No statute can be found authorizing the levy of any such tax. And it will not do t® call it a county tax for the purpose of giving authority to the county commissioners to levy it under the statutes which authorize the levy of county taxes, and also for the purpose of avoiding that constitutional provision which requires the tax to be imposed at a uniform and equal rate, and then, after the tax is supposed to be legally levied, to say that it is not a county tax for the purpose of avoiding that other constitutional provision which requires that a tax shall be applied only to the object for which it was levied. It either must or must not be a county tax, and in either ease the statute attempting to apply it as a township railroad bond fund must be void. It will be noticed that under the statute in question, the tax in question is never to go into'the county fund, or to become any part thereof. The statute provides that it “ shall be set apart and held by the treasurer for the benefit of such township, and applied to the payment of the interest and principal of said bonds; and after the payment thereof, the same shall be added to the school fund of said township.” That is, the statute in effect provides that the railroad property in the township, belonging to the railroad company to which the bonds were issued, shall be exempt from bearing its just proportion, or any proportion, of the expenses or other indebtedness of the county or township. This court has intimated that it is possible that the legislature may have the power to exempt from taxation personal property, in addition to that exempted by the constitution. (Ottawa Co. v. Nelson, 19 Kas. 237, 238; Francis v. A. T. & S. F. Rld. Co., 19 Kas. 311, 312.) But this court has never intended to intimate or decide that real estate may be so exempted. And the bulk of all railroad property is real estate. It will also be noticed that under the statute in question, no part of the tax in question is ever to go into or become a part of the township fund, although a part of such tax was levied as general township tax. And the plaintiff, the National Bank of Lawrence, which now owns the coupons for interest due on said bonds, so construes the statute, and commenced this action to compel the county treasurer to pay all such tax collected by him directly to it, the plaintiff. But as substantially the same principles which govern with reference to the county tax, also govern with regard to the township tax, it is not necessary to say anything further as to the township. In both cases it is a clear attempt on the part of the statute to divert funds, raised by taxation for one object, to another object. The judgment of the court below will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by "Valentine, J.: This was an action under the railroad .stock-killing law of 1874. (Comp. Laws of 1879, p.784.) The railroad company was charged with killing five horses and wounding another (geldings and mares), belonging to the plaintiff below, defendant in error, Alanson Walters. Judgment was rendered in the court below in favor of the plaintiff and against the defendant, the railroad company, for $550 damages, $50 attorney’s fees, and costs; and the railroad ■company now brings the case to this court for review. Many questions are raised in this court, but we do not think that it is. necessary to decide more than one or .two of them. The first is, with reference to the proof of the demand alleged to have been made by the plaintiff of the railroad company for the value of the stock alleged to have been killed and wounded. That such a demand is necessary — an essential prerequisite to enable the plaintiff to recover — see K. P. Rly. Co. v. Ball, 19 Kas. 535; C. B. U. P. Rld. Co. v. Butman, 22 Kas. 639. The demand may be made by parol or otherwise, (see last case cited); but, in whatever way it is made, it must be proved by competent evidence, (see first case above -cited.) In the present case, the demand was made in writing .and only in writing; and whether this writing .was properly proved or not, is the real question now presented for our consideration. That such writing (if it was a demand, as is ■claimed by the plaintiff,) was. served on the proper person and at the proper time, seems to be admitted by the defendant; but it is claimed by the defendant that it was not shown by any competent evidence to have been a demand. The •defendant claims that its contents were proved by secondary ■evidence only, without any proper foundation having been laid therefor. We think the defendant is correct. The writing claimed to have been a demand was proved by the introduction of a paper in evidence, which a witness testified was like the original paper claimed to have been a demand. The witness also testified that the two papers were “ exactly alike.” No attempt was made to account for the non-production of the original paper, and no notice of any kind was ever given to or served upon the defendant, or any of its agents or employés to produce it, or to give, or to permit to be taken, a copy thereof. Th§ original and the copy were probably drawn up at the same time, but there is nothing in the case tending to show that any agent or employé of the defendant ever saw or had any knowledge of the existence of the copy, until it was introduced' in evidence on the trial of this case. The copy was introduced in evidence over the objections and exceptions of the defendant; and in permitting it to be so introduced, we think the court below erred. (Guthrie v. Merrill, 4 Kas. 187; Johnson v. Mathews, 5 Kas. 118; Shaw v. Mason, 10 Kas. 184; Grant v. Pendery, 15 Kas. 236; Shepard v. Pratt, 16 Kas, 209; City of Waterville v. Hughan, 18 Kas. 473; Brock v. Cottingham, 23 Kas. 383.) We are also inclined to think that the court below erred, in refusing to permit the defendant to prove the third defense set up in its answer. This defense was a counter-claim, in which the defendant alleged that said horses were knowingly and intentionally permitted to run at large, and on the defendant’s premises, in violation of the herd law of the state, (Comp. Laws of 1879, p. 933, et seq.,) whereby the defendant’s train was wrecked, and great damage was thereby done to the defendant. We understand that the court below refused to permit this counter-claim to be proved, on the ground that the defendant had not alleged that it itself was free from all fault or negligence. Now the defendant did not admit that it was guilty of any fault or negligence, its pleadings did not show that it was, and it denied in its answer all the allegations of the plaintiff charging it with fault or negligence. And the defendant’s fault or negligence is matter to be shown by the other party. Upon this subject, (that is, allegations denying contributory negligence,) see K. P. Rly. Co. v. Pointer, 14 Kas. 38, 50, 51; Gibson v. City of Wyandotte, 20 Kas. 156, 158. With reference to the other questions raised in this case, we do not wish to express any decided opinion, as we do not think it is necessary. We might say, however, that from the ease as it is now presented, we could hardly say that the court below committed any material error with regard to such questions. The judgment of the court below will be reversed, and the cause remanded for a new trial. All the Justices concurring.	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The opinion of the court was delivered by Horton, C. J.: This was an action of mandamus, commenced on the 26th day of July, 1879, to compel J. S. Tem.pleton, as justice of the peace of Eush county, to approve and file an appeal bond in an action of forcible entry and detainer tried before him. Trial had at the November terna of the district court of Eush county for 1879. Judgment was entered for the allowance of a peremptory writ, and the defendant below brings the case here. The bond tendered was in these words: • In Justice’s Court — Before J. S. Tem/pleton, Justice of the Peace in and for Center Township, Rush County, Kansas. Thomas Miller, Plaintiff, v. E. D. Millis, Defendant. Bone. Whereas, said plaintiff did, on the 12th day of July, 1879, obtain a judgment against this said defendant, E. D. Millis, in justice’s court, before the above entitled court, in an action of forcible entry and detainer; and whereas, the said E. D. Millis, defendant, feels himself aggrieved, intends to appeal from said judgment: now, therefore, we,the undersigned, as principal, and as sureties, do undertake in the penal sum of $300, . . . will not commit waste on said premises now in controversy; and if, that upon the final judgment in this cause, herein rendered, against him, he (said defendant) will pay double the value of the use and occupancy of the property, from the commencement of this action until the delivery of said property to the plaintiff, in pursuance of the judgment of the court, and that he will pay all costs that may accrue, and that he will perform every order and the judgment of this court if judgment be finally awarded against him, the said defendant. E. D. Millis. T. W. Parker.* M. H. Young. Chas. H. Peokham. [Justification of sureties.] State oe Kansas, Etjsh County: We, and each of us, do solemnly swear that we are each and severally worth the amounts opposite our names, over and above all debts, liabilities and exemptions. T. W. Parker, $300. M. H. Young, ■ $200. C. H. Peckham, $500. [Oath of sureties.] State oe Kansas, Rush County: Subscribed and sworn to before me, by T. W. Parker, M. H. Young and C. H. Peckham, this 17th day of July, 1879. J. A. Bell, J. P. Sec. 11, ch. 81, p. 721, Comp. Laws 1879, provides that— “In appeals taken by the defendant in actions for the forcible entry and detention, or forcible and unlawful detention of real property, the undertaking on appeal shall be conditioned that the appellant will not commit or suffer waste to be committed on the premises in controversy; and if, upon further trial of the cause, judgment be rendered against him, he will pay double the value of the use and occupation of the property from the date of the undertaking, until the delivery of the property, pursuant to the judgment, and all damages and costs that may be awarded against him.” The appeal bond fails to comply in several respects with the requirements of this statute. It does not clearly appear therefrom that the “appellant” is bound not to commit waste. The provisions that “the appellant will not suffer waste to be committed,” and “that he will pay all damages,” are wholly omitted. The omissions are material and substantial conditions of an appeal bond, and in their absence, it was not the duty of a justice to approve the undertaking for appeal. It is by far the best practice, in all cases of appeals in justices' courts, for undertakings to comply strictly with the language and conditions of the statute. If different words are employed, the justice ought not to approve the undertaking, unless the language and conditions of the statute are substantially followed. The judgment of the district court will be reversed, and the case remanded. All the Justices concurring.	[ -12, 104, -80, 61, 10, 96, 49, -104, 75, -13, -76, 83, -87, -38, 5, 123, 51, 93, 21, 105, 68, -73, 55, -29, -112, -13, -75, -43, -79, 92, -28, -43, 73, 116, -118, 29, -58, -118, -125, -100, -50, -119, 105, -16, -45, 72, 60, 125, 80, 74, 113, 46, -13, 46, 24, -29, -24, 44, -39, -83, 24, -15, -69, -107, 93, 30, -109, 2, -100, 7, 72, 62, -104, 49, 8, -24, 115, -122, -122, -12, 45, -103, 72, 126, 98, 33, -108, -19, 40, -120, 14, -6, -115, -89, -78, 88, 106, 64, -74, -103, 125, 84, 7, -2, -30, 4, 24, 108, 2, -53, -110, -77, -115, 60, -106, 95, -13, -83, 48, 113, -83, -94, 95, -57, 56, -69, -97, -72 ]
The opinion of the court was delivered by Horton, C. J.: On the 23d day of March, 1880, in the township of Iuka, county of Pratt, in a civil action then pending before the defendant, Blucher Rich, wherein one J. T. Chinn was plaintiff, and the plaintiff herein, W. L. Cox, was the defendant, the said J. T. Chinn, by the consideration of said justice, recovered judgment against said W. L. Cox for the sum of $10 damages and $13.75 costs of suit. On the 24th day of March, 1880, this plaintiff, desiring to appeal from the judgment of the justice of the peace, presented. to the justice au appeal undertaking, conditioned as required by law, with sufficient surety in the sum of $50, said sum being more than double the amount of the judgment and costs. The justice refused to approve the undertaking, on the ground that it was insufficient to include the probable costs of the appeal in the district and the supreme courts, holding that in the exercise of a reasonable and sound discretion, he had the authority to . demand an appeal undertaking in the sum of $75. Sec. 121, ch. 81, Comp. Laws 1879, p. 720, provides, that “The party appealing shall, within ten days from rendition of the judgment, enter into an undertaking to the adverse party, with at least one good and sufficient surety, to be approved by such justice, in a sum not less than fifty dollars in any case, nor less than double the amount of the judgment and costs, conditioned: First, that the appellant will prosecute his appeal to effect, and without unnecessary delay. Second, that if judgment be rendered against him on the appeal, he will satisfy such judgment and costs. Such undertaking need not be signed by the appellant.” The plaintiff, having fully complied with the statute, itwas the duty of the justice to have approved and filed the undertaking presented to him. The statute fixes the minimum amount of the penalty of the undertaking, and further provides that the amount shall not be less than double the judgment and costs. When, therefore, the surety is sufficient, and the undertaking is double the amount of the Judgment and costs, it is not optional with the justice to approve the undertaking: it is his duty to do so. He has no legal right to consider the additional costs likely to accrue in subsequent litigation. In this case, the justice had no authority to demand the execution of an undertaking in excess of double the amount of the judgment and costs. He had no right to anticipate and provide security for the additional costs in the district and the supreme courts, and failed in his official duty in rejecting the undertaking tendered to him. A peremptory writ will be directed to issue, requiring the defendant to approve the undertaking, and perfect the appeal. All the Justices concurring.	[ -12, 104, -3, -67, -56, -32, 58, -104, 91, 32, -92, 83, -101, -46, 5, 123, -9, 93, 85, 107, 71, -77, 55, -30, -46, -109, -9, -59, -79, 76, -25, -41, 72, 32, 74, -107, -58, -56, 65, -48, -50, -123, 41, 72, -15, 104, 48, 123, 16, 75, 49, -98, -13, 46, 25, -61, 109, 44, -37, 41, -48, -15, -98, -113, 127, 20, -125, 38, -104, 7, 88, 60, -104, 17, 0, -8, 115, -90, -122, 84, 65, -119, 9, 126, 103, 1, 77, -21, -8, -104, 47, -10, -97, -89, -77, 57, 10, 0, -66, -99, 125, 16, 23, 124, -21, 4, 88, 108, 0, -113, -16, -77, -113, 36, -102, 67, -62, 40, 16, 65, -59, -30, 93, 35, 49, -69, -106, -68 ]
The opinion of the court was delivered by Brewer, J.: This was an action of ejectment, brought by plaintiff, to recover the undivided one-fourth of a tract of land in Neosho county. The case was tried by the court, without a jury, findings of fact made, and a judgment entered in her favor. Her title was based on a patent to herself and three others, as the heirs of Charles Mograin. Defendants claimed to have purchased from her, through* one John Moffitt, her attorney in fact. The other heirs were, at the time of the alleged sale, minors, and Moffitt, claiming to be their guardian, as well as the attorney in fact of plaintiff, sold the land to defendants. Passing by all the testimony in reference to the existence of any power of attorney, or any appointment as guardian, we turn to the findings concerning the sales and the conveyances executed by Moffitt: “4th. That the only deed offered in evidence by the defendants, in support of their title to or right.to occupy said lands, or for any other purpose, was one executed to George Nay on the 31st day of August, 1870, by ‘John Moffitt, attorney in fact for Amanda Mograin/ conveying the north half of the northeast quarter of section thirty-three, town twenty-seven, range nineteen east, only. “5th. That the deed referred to in the last finding was never in the possession of either of the defendants until after the trial of this case commenced; and that it has always remained in the possession of said Moffitt or plaintiff’s attorneys at law, until delivered to defendants’ attorney, for the purpose only of allowing them to offer it in evidence on the trial of this cause.” “12th. That John Moffitt claimed to have a power of attorney from plaintiff, dated and recorded prior to July 20th, 1870; and by virtue thereof, offered and attempted, on the 6th day of October, 1870, to sell the interest of the plaintiff in the lands in controversy; that said offer and attempt were made by said Moffitt to sell said interest of plaintiff, together with the interests of her infant sisters and brother, in a lump, at public auction, to the highest bidder, and on credit — the said Moffitt claiming to act in the double capacity of guardian of said infants and attorney in fact of the plaintiff, and to have an order of the probate court to sell the interests of said infants, the other grantees named in the patent. “13th. That said Moffitt did not, at said time, have any power of attorney, except the one mentioned in finding No. 6; and was not the guardian of said infants. “14th. That the above was the only offer or attempt of said Moffitt to sell the interest of plaintiff in said lands, save and except the portion of the lauds described in the deed to George Nay, mentioned in finding No. 4.” “16th. -That, pursuant to said offer and attempt to sell the interests of plaintiff and said infants in said lands, the said John Moffitt executed and delivered to the defendants, except the defendant George Nay, certain deeds. “17th. That the contents of said deeds are not known to the court, as none of them, except the one referred to in finding No. 4, have been offered or introduced in evidence.” It would seem that from these findings there could be but one conclusion, and that in favor of the plaintiff. Plaintiff’s title, resting on a patent, was good, unless divested by sale. Now, take these findings in their strongest bearings toward the defendants, and they show that a sale was made by one claiming to be her attorney in fact, and that upon that sale, deeds were executed and delivered to the defendants. We leave Nay out of thought for the present. But those deeds are not shown. They are the written — the best — evidence of what the contract really.was between the attorney and the defendants. It matters not what may have been the prior talk —the deed expresses the final contract; it is the evidence of the title conveyed. Now the execution, delivery and existence of these deeds were shown; indeed, one was presented on the trial and identified, but not offered in evidence. In other words, the defendants, who hold in their hands the written evidence of their purchase and their title, decline to produce it. Now we may indulge in no presumptions in favor of deeds or other instruments, when the party who must rely upon their validity and suffi ciency can, but does not, produce them. When collateral reference is made to an instrument, we sometimes rest on a presumption that it is complete and sufficient, but when upon it hinges the very title in issue, we indulge in no such presumptions. It must be produced, or it will be held insufficient to convey title. It is useless to speculate as to the defect in these deeds. Are there limitations on the title conveyed? Is the possession reserved as a security for the purchase-money? Are they, as counsel for defendants suggests, merely guardian’s deeds? and if so, do they contain any disavowal of authority to act for plaintiff? Do they support or disprove defendants’ claim of purchase and title? We can only guess, and we have no right to guess away the plaintiff’s title. Counsel for defendants says in his brief, that “The fact that these deeds that the defendants spoke about were the guardian’s deeds, was so well known and understood at the trial, that I cannot but regard these findings as highly disingenuous.” Accepting this statement, though it is stoutly attacked by counsel on the opposite side, and turning to the evidence, we find that we are only led from one difficulty to another. The testimony plainly shows that defendants had no other deeds than these. The fact that no other deeds were given, makes strongly against their claim of a purchase of plaintiff’s interest in the land. And evidence to sustain a parol purchase of land must be clear and positive. While the patent names the four heirs, the plaintiff included, defendants were content to receive only the deeds of the minors’ interests, and sought no other. Thus they held for years, and until plaintiff asserted her rights in the land. But conceding their understanding of the purchase to be correct, the statute of frauds interposes against them. They bought, and paid; they took possession, and imProved. But payment will not take a parol purchase out of the statute of frauds; and possession and improvement must be referred to, and will be upheld under the written title they accepted. As purchasers of the minors’ interests, they had a right to the possession, and might lawfully enter and improve. They became tenants in common with plaintiff, with equal right to enter. No action of trespass would lie against them. (Edwards v. Fry, 9 Kas. 417.) “What, then, it may be asked,” said Woodward, J., in Workman v. Guthrie, 5 Casey, 495, “can there be no sale of land by parol among tenants in common where all are in possession? Certainly not, because the statute of frauds and perjuries forbids, and there cannot be such part performance as would take it out of the operation of that wise and salutary rule of titles.” See also Blakeslee v. Blakeslee, 10 Harris, 257. Nor is it an answer to this, that their purchase of the minors’ interests failed, and that the guardian’s deeds passed no title. The only written title under which they entered was the guardian’s deeds. They may not now invoke the failure of that written title to sustain a parol contract with another party, in the face of the positive prohibitions of the statute of frauds. Indeed, we do not know that such title has failed. Its validity was not in question in this action. Notwithstanding the finding that Moffitt was not the guardian of the minors, we see from the testimony that the probate court recognized him as their guardian, and ordered this sale, and received a report of the sale, and that he and a successor in office received the purchase-price. We know not what ratification or estoppel may have intervened to uphold these deeds as against the minors. But be that as it may, and even if that written title fails, their entry and improvements must be referred to that. Where there is an express contract, the law does not imply one. (Perry v. Bailey, 12 Kas. 539.) So where a party enters upon land under a written instrument purporting to convey the title of certain joint owners, he may not, upon a failure of the title'thus conveyed, uphold a parol purchase from another joint owner by his entry and improvements. That which he does as an owner must be referred to that which apparently made him an owner. Part performance to uphold a parol purchase must be exclusive; must be referable solely to such purchase. Part performance does not make the parol contract any stronger or more binding. It is still a contract which the statute declares- inoperative to transfer title. Equity has interfered in cases of part performance to prevent one party from leading another on to the expenditure of labor and money in the melioration of an estate upon the faith of an agreement, and then denying the agreement. Yet its interference has been severely criticized, and many have doubted whether public policy has been subserved by any departure from the strict letter of the statute. In Browne op Statute of Frauds, §492, the author says: “It should be remarked in conclusion, that the decided inclination of the judicial mind appears to be against extending, beyond those limits to which it has been carried by clear authority, the doctrine of enforcing oral contracts in equity, upon the ground of part performance.” See also Lindsay v. Lynch, 2 Sch. & Lef. 4; Forster v. Hale, 3 Ves. 712; O’Reilly v. Thompson, 2 Cox, 271; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 284; Phillips v. Thompson, 1 Johns. Ch. 149. We think it would be going-much beyond established limits, to enforce a parol purchase of an undivided interest in land upon the strength of part performance, when there was a written conveyance intended as a conveyance of the larger interests in the land, under which possession was in fact taken and improvements made. The melioration of the estate will be presumed to have been made on the faith of the title apparently conveyed. Acts which presume a conveyance, will be referred to the conveyance, and that irrespective of the validity of that conveyance. We conclude, then, that both upon the findings and the testimony, the judgment of the district court was right. We have treated this case as though the fact of a purchase of plaintiff’s 'interest was unquestioned. So the defendants testify, and so also says the guardian and attorney in fact. But when we look at the order of sale, the advertisement, the appraisement and report of sale, and also the notes and mortgages given to secure the unpaid purchase-money, there is nothing to indicate in the slightest degree a sale of anything other than the minors’ interests. We have no reason to doubt the good faith of these defendants, but they were certainly very negligent, or else very badly overreached by the representations and acts of John Moffitt. We have thus far been considering the case as it stands between the plaintiff and defendants other than Nay. His position is different. He claims to have purchased at a private sale, and a deed, purporting to be from John Moffitt, attorney in fact of plaintiff, was offered in evidence. Waiving any question as to whether this deed was anything more than the deed of John Moffitt, it appears that this deed had never been delivered, and that Moffitt had refused to deliver it until he should receive a hundred dollars. It also appears that Nay at the time of his purchase received a deed, but that deed was not offered in evidence. Much, therefore, that has already been said as to the effort to support a parol contract of purchase, applies here. And the deed actually offered cannot change the conclusion reached in the other cases. An undelivered deed is no deed. Whatever force it may haye as evidence tending to prove the fact of the purchase, as a conveyance, or evidence of title, it amounts to nothing. It may be that Moffitt is a scoundrel, and trying to blackmail, and from the testimony in this case we are inclined to think he is. It would seem as though he had deliberately imposed upon all the defendants, and obtained money from them for a title which he did not, and did intend, to convey. Unfortunately for defendants, they placed too much confidence in him, and must suffer for his wrong. This deed was not only never delivered, but it also appears from the testimony, that at the time Moffitt proposed to deliver it for a hundred dollars, any authority he had to act for the plaintiff had been revoked. So that the facts are, that he did not deliver, that he demanded money as a condition of delivering, and that he then had no right to deliver. This leaves the defendant Nay in the same position substantially as the other defendants, attempting to uphold a parol contract of purchase by proof of acts properly referable to a different title conveyed, or attempted to be conveyed, by a written conveyance. We have attempted, in this case, to pass beyond all the technical questions which counsel have discussed at length in their briefs, to consider the case upon its merits. We have examined all the testimony offered by defendants, that which was rejected as well as that which was admitted, and are forced to the conclusion that the judgment of the district court against 'them was in accordance with the law of the case. While they may have, been misled by their ignorance, or their over-confidence in Moffitt, they show at best but a parol contract of purchase, with nothing which, according to the established rules of equity, will take the case out of the statute of frauds. The judgment will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Benson, J.: This is the second appeal in this case. The first was by the plaintiffs from a judgment sustaining a demurrer to their evidence. (Griffin v. Brick Co., 84 Kan. 347, 114 Pac. 217.) This appeal is by the defendant from a judgment awarding damages to the plaintiffs for the death of their minor son, a laborer at the defendant’s brick manufactory. The facts, stated in the first opinion, need not be restated here. The negligence charged was the failure to make the place where the employee worked reasonably safe and to properly inspect the shale pit where he was killed. The law applicable to the case was stated in the former opinion. The evidence at the last trial was substantially the same as at the first trial unless it differs in respect to the following matters. At the first trial it appeared that the person whose duty it was to look after the bank of the shale pit, while engaged in that work saw a boulder or lump sticking out from the wall at a place three or four feet below the top, which he could not get down with the tools he was using. At the last trial the person charged with this duty testified : “I did n’t see any boulder but it stuck out there. There was never any bo.ulder there, there was some clay stuck out and I worked hard and I got it down until I thought it was safe.” Another witness testified: “The place where the boy was injured looked worse than any place close around about there. I saw it before the boy was killed, but don’t know just when; don’t, know how long I had noticed it, but had noticed it after we had passed it.. The difference was that the place stuck out worse than other places. Yes, I saw this after Mr. Shea had been up there, it stuck out more after it was pried off; right in this particular place than it did right around close to it.” And another said: “You have got to be careful because that clay sits on that shale and between the clay and the shale is smooth, if there is a pitch between the two; then it is liable to slide in there.” The evidence showed that the condition of the bank could be better observed, from the top than from the bottom, and cracks usually appeared at the surface above before a fall, and such cracks served as indications of danger. Following such indications there would be what were termed “cave-ins” or “tumbles over,” these terms indicating a slide of material from the face of the bank or fall from the surface. The cracks referred to were of frequent occurrence and considerable evidence was given of their appearance. The difference in 'the evidence at the two trials respecting the appearance of the wall appears to be in its positiveness only. The testimony at both trials tended to-prove the same fact. It was a question of fact whether from the appearance of the bank at that place where, as testified to, it “stuck out worse than other places,” and from the cracks above and the entire appearance, the company exercised reasonable care in making inspections and in making the place reasonably safe for its employees. In passing upon the demurrer to the evidence the court could not say as matter of law that reasonable diligence-had been shown. It was a question of fact for the jury. A projection of the material was observed after the bank had been barred down at the point from which it afterwards fell. It is true that the person whose duty it was to do this work testified that he thought the bank was safe. Still he left the protuberance there and it held the fatal rock. By its fall the young man working immediately at the foot of the bank lost his life without any fault on his part. While, as said in ■the former opinion, there was much to indicate that-the inspector was not at fault, the protuberance was apparent; and whether it was a menace, which, in connection with other circumstances shown, required further attention and action by the defendant for the reasonable safety of its laborers, was a question of fact for the jury. Complaint is made of the admission in evidence of photographs taken after the casualty occurred. Testimony of the photographer was taken but is not abstracted. Neither are the photographs presented. The •objection was that a sufficient foundation was not laid, and that the conditions were .not the same when they were taken as existed at the time of the accident. It must be presumed that the preliminary proof was sufficient in the absence of anything appearing to the contrary. The fact that the photographs were taken after the occurrence would not destroy their utility as an aid to the jury in understanding the evidence relating to the situation and surroundings. The fact that witnesses for the defendant testified that the picture did not show the bank in question, or the bank at the place •of the accident, affected the weight of the evidence afforded by the photographs, but not its admissibility. That part of an instruction relating to the measure •of damages was objected to which informed the jury that if it should be found from the evidence that the deceased in his lifetime contributed to the support of his parents then they might allow such sum as the evidence discloses he might reasonably have been expected to contribute after arriving at the age of twenty-one years. The young man was seventeen years of age in June preceding his death, strong and in good health, a graduate of the common schools, and preparing for a business college in which he had paid for a .scholarship. He had worked in his father’s store, and in a smelter and gas plant, and was earning $1.50 per day in the brick plant. In the' light of these facts no just ground for complaint is found in the instruction concerning damages, a part of which has been referred to. (Railway Co. v. Fajardo, 74 Kan. 314, 86 Pac. 301.) The finding of negligence being supported by competent evidence, and no erroneous rulings being found, the judgment is affirmed.	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