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Allen, J.
The’contention on behalf of the plaintiff is, that he was not a party to the contract and is not bound by its terms; that the defendant is a corporation enjoying corporate privileges derived from the public, and charged with the performance of certain public services; that by reason of its relations to the public it was bound to correctly transmit, and promptly deliver the message to him. The claim of liability because of a failure to perform a public duty, independent of any contract, finds some support in the authorities. 25 Am. & Eng. Encyc. Law, 826 ; Thompson, Electricity, §427. It will be noticed that this is not an action to recover damages for delivering a changed message whereby the receiver was misled. In such a case it may well be argued that a liability arises from the wrongful act of the defendant in delivering to him a false message whereby he is misled to his injury, and that this liability is wholly independent of any contract made by the sender of the message without authority of the receiver. In this case, however, the plaintiff was not niisled by any act of the defendant. The defendant, at most, merely failed to perform its undertaking to promptly transmit and deliver the message. Just how a liability to perform that service can arise independently of any contract with the sender of the message, we are unable to perceive. A telegraph company certainly is under no obligation to transmit messages except when employed by some person to do so. Perhaps, because of the public nature of its business, it may not refuse the employment, nor impose unreasonable conditions for undertaking it; but can it be doubted that, whenever it receives a message for transmission, there is either an express or implied contract on its-part that it will transmit and deliver it ? This Court has heretofore consistently maintained the right of a-person, for whose benefit a contract has been made by another, to accept and adopt the terms of the contract and maintain an action on it in his own name. Anthony v. Herman, 14 Kan. 494; Burton v. Larkin, 36 id. 246; Rouse v. Bartholomew, 51 id. 425. And this rule has been applied in actions brought by the addressee of a telegram against the telegraph company. West v. Telegraph Co., 39 Kan. 93; Telegraph Co. v. Woods, 56 id. 737. We are satisfied with the rule heretofore maintained by this Court, and, under it, the liability of the-defendant must be determined by the contract made with the sender of the message, of which contract the plaintiff was entitled to the benefit.
While it is held that a common carrier may not impose a condition exempting him from liability for his own negligence, and while this rule has been held to apply equally to a telegraph company as engaged in a business substantially like that of a common carrier, a stipulation in the contract made with the sender of the message, that a claim for damages shall be presented within a specified time, has been generally regarded as reasonable and valid ; and where such a contract is made, the great majority of the courts hold that if the claim is not presented within the-time limited, where a reasonable time is fixed, the-plaintiff cannot recover. Sixty days has been held. a reasonable time after delivery of the message. Sherrill v. Telegraph Company, 109 N. C. 527; Wolf v. Western U. Tel. Co., 62 Pa. St. 83; Manier & Co. v. Western U. Tel. Co., 94 Tenn. 442; Lester v. Western U. Tel. Co., 84 Tex. 313; Young et al. v. Western U. Tel. Co., 65 N. Y. 163; Heimann and others v. Western U. Tel. Co., 57 Wis. 562; 25 Am. & Eng. Encyc. Law. 798; Thompson, Electricity, § 247. In this case the message was delivered on October 13, 1889. The claim was first presented by the commencement of this action on the 6th of August, 1890. The plaintiff had no cause of action independent of the contract made for his benefit by the sender of the message. Having failed to present his claim within the time required by that contract, he has lost whatever right of action the contract gave him.
The judgment is affirmed.
All the Justices concurring. | [
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Martin, C. J,
I. The Court erred in sustaining the motion of the defendant for judgment in its favor upon the findings of the jury notwithstanding their general verdict. The findings show that the defend-' ant was guilty of ordinary negligence in starting its-train before the plaintiff had time to alight therefrom, and that she exercised due care in attempting-to leave it and in stepping therefrom just as it was-starting and before she had knowledge that it was in motion. The care of her babe and the entry and departure of other passengers-retarded her egress, but the jury must have found that she was not at fault for the delays occasioned thereby.
It is the duty of a railroad company to afford a sufficient time to passengers to alight in safety by the* exercise of reasonable care and diligence on their part. Jeffersonville Rld. Co. v. Hendricks, Adm’r, 26 Ind. 228; J. M. & I. Rld. Co. v. Parmalee, Adm’r, 51 id. 42; Pennsylvania Rld. Co. v. Kilgore, 32 Pa. St. 292; Keller v. Sioux City & St. Paul Rld. Co., 27 Minn. 178, 181; Southern Rld. Co. v. Kendrick, 40 Miss. 374; Straus v. K. C. St. J. & C. B. Rld. Co., 75 Mo. 185. The mere fact that the train stopped the usual length of time is not sufficient to show negligence of the plaintiff nor due diligence of the defendant; for the circumstances may have required a longer stop on that day than usual, and it' was a question for the jury to determine whether the stop was reasonably sufficient or not. The rule is well stated by Chief Justice Gilrillan in the case above cited from 27 Minn., as follows : —
"When the cars stop at a passenger’s place of destination it is his duty to leave the car without unnecessary delay, and the company’s to give him a reasonable opportunity to do so with safety. The exact length of time to be given must depend very largely upon circumstances. ... It certainly would not be permissible for them to be so reckless of the lives and limbs of passengers as to start the trains when they know, or with reasonable care might know, that passengers are in the act of alighting.”
The defendant lays much stress upon question three submitted by it and answered by the jury as to the conduct of Walters. The evidence shows that Walters was a passenger whose destination was also Leona ; and although this fact does not appear in the findings, yet the answer to said question three is not inconsistent with the answer to question six submitted by the plaintiff, and Walters was perhaps only one of several who obstructed the plaintiff’s way and contributed to her detention. The defendant cites several cases where railroad companies have been exonerated from liability to passengers for injuries occasioned directly by the independent act or omission of a third person, but these are manifestly inapplicable.
II. The only other question in the case is -whether judgment should be entered in favor of the plaintiff or the case remanded for a new trial. The writer is of the opinion that the proceedings of the Court upon the motion for a new trial were erroneous and should be disregarded ; and that judgment should be entered for the plaintiff upon the general verdict, the same being in accord with the answers of the jury to the particular questions of fact. We all agree that a defendant may file a motion for a favorable judgment on the findings and a motion for a new trial at the same time ; but as both cannot be granted, the writer is of the opinion that the allowance of either ought to operate as a withdrawal of the other ; at least the court should not rule upon the latter. To sustain the defendant’s motion terminating the case in his favor, and then entertain another motion of the defendant to set aside the judgment just obtained and for a new trial, and allow the defendant the benefit of an exception on overruling it, is certainly a lowering of the dignity of a court that ought not to be encouraged. A party should not be permitted to rely in one breath upon findings of fact as true, and, obtaining a favorable ending of the case . _ on that assumption, m the next, chailenge them as false, and be allowed an exception when the court adheres to the former ruling in favor of the defendant by refusing to set it aside on such motion for a new trial. With the view entertained by the trial court the defendant should have been given an election to take a new trial, or stand upon the favorable judgment on the findings of fact. A court ought not to allow a party the benefit of two inconsistent and contradictory positions in the same lawsuit. Plow Co. v. Rodgers, 53 Kan. 743; National Bank v. National Bank, ante, p. 115. It may be maintained that a particular moment of time was noon or midnight, but when a party asserts that it was both, the court ought neither to listen to him nor grant him the benefit of each assumption as against the other.
The writer does not understand that his associates consider it proper practice for the court to rule upon a defendant’s motion for a new trial after it has already rendered judgment in his favor upon the findings of fact notwithstanding the general verdict; but they say the journal entry shows that the general verdict did not receive the approval of the trial court, and for this reason no judgment ought to be rendered thereon ; and that this principle is well established in this state. Richolson v. Freeman, 56 Kan. 463, and cases cited. In all these cases, however, the motions for a new trial required and demanded the consideration of the trial court; and the reasons for judicial action therein being stated in the record, and exceptions being properly taken and preserved, it became incumbent on this Court to consider them. If in any of these cases no motion for a new trial had been filed, or if the overruling of such motion had not been excepted to, then all alleged errors of law occurring at the trial for which a new trial might be granted would have been waived. City of Atchison v. Byrnes, 22 Kan. 65. The condemnation of the verdict by the trial judge, although appearing in the journal entry, would be disregarded by this Court; for it would constitute no legitimate part of the record. In the present case, the writer believes that the action of the Court in passing upon the motion for a new trial and in allowing an exception to the ruling was improper and unwarranted, and, therefore, the reasons for the action of the Court should be disregarded.
But the majority of the Court being of opinion that the reasons for the action of the trial court as stated in the journal entry should not be ignored, the judgment of the District Court will be reversed and the cause remanded for a new trial.
Allen, J. In this case the defendant contended that the verdict was not supported by the evidence, and also that under the law it was entitled to judgment against the plaintiff on the answers of the jury to the special questions submitted. These contentions are not necessarily inconsistent. Both may be sound. To present both questions to the trial court, the defendant filed two motions : one to set aside the verdict and grant a new trial, the other for a judgment in its favor on the special findings. If the case terminated in the District Court there would be no necessity for considering both motions if one should be sustained.
In this case the Court held that on the facts found the law was with the defendant, and rendered judgment accordingly. It is true that so far as that court was then concerned there was no occasion to pass on the motion for a new trial, for the defendant had obtained all that it could gain by a new trial without the trouble and expense attending one. But this Court holds against the defendant on the law, and it now becomes of vital importance whether the findings are right or wrong. Whether the trial court would have been warranted in requiring the defendant to elect on which motion it would rely, or in refusing to consider the motion for a new trial at all after granting the defendant’s motion for a judgment it is not necessary now to decide. The trial court saw fit to overrule the motion for a new trial and to state its reason for doing so, and in that connection has incorporated in the record a statement "that the general verdict in this cause is not sustained by sufficient evidence and is contrary to the evidence.” There is no instance that I am aware of in which it has been held that a reviewing court would direct a judgment to be entered on a verdict which the trial court has solemnly asserted is contrary to the evidence. This Court from the earliest days has steadily adhered to the rule that "if the verdict does not meet with the approval of the trial court it should be set aside and a new trial granted. ’ ’ Richolson v. Freeman, 56 Kan. 463.
While the jury are the triers of the facts, the judge who presides at the trial also hears the evidence and sees the witnesses. He has the power, and it. has often been declared to be his duty, to set the verdict aside if it is not in accord with the evidence. K. C. W. & N. W. Rld. Co. v. Ryan, 49 Kan. 1, and cases cited. To direct a judgment on the verdict in this case would be to require the rendition of a judgment against the defendant on a basis which the trial court has said is untruthful.
Whether the trial judge ought or ought not to have incorporated the statement in the journal entry, under the circumstances, does not seem to me a matter pf first importance. We are notified by the record that in his judgment the matters found by the jury are not facts but falsehoods. With such, a notification, whether formal or informal, the Court certainly ought to hesitate long before ordering a judgment on such a foundation. It is only “when it does not appear, by exception or otherwise, that such findings are against the evidence in the case ” that this Court is required to direct judgment to be entered on the facts found. §559, Code.
I am authorized to say that Mr. Justice Johnston concurs in these views. | [
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The opinion of the court was delivered by
Horton, C. J.:
The principal question in this case is whether T. E. Demaree was eligible to take the office of county commissioner of Seward county on the 9th day of January, 1893. He was elected on the 8th day of November, 1892. At that time he was the treasurer of the town ship of Fargo of his county. Paragraph 1622, General Statutes of 1889, reads:
“No person holding any state, county, township or city office, or any employer, officer or stockholder in any railroad in which the county owns stock, shall be eligible to the office of county commissioner.”
The contention is over the meaning that should be given to the word “eligible” in the statute. This word is determined by law and other standard lexicographers thus: Black : “Capable of being chosen;” “competency to hold office.” Bouvier and Anderson: “This term relates to the capacity of holding, as well as that of being elected to an office.” Abbott: “The term 'eligible to office’ relates to the capacity of holding as well as the capacity of being elected.” 19 Am. & Eng. Encyc. of Law, 397: “Capable of being chosen;” “implying competency to hold the office, if chosen.” Worcester: “Legally qualified;” “capable of being legally chosen.” Webster: “That may be selected;” “legally qualified to be elected and to hold office.” Some law writers define the word as “legally qualified; as, eligible to office;” “legally qualified to hold office;” “electible;” “proper to be chosen;” “qualified to be elected.”
Plaintiff contends that “legally qualified” is the proper definition of the word “ eligible,” as used in this statute. On the other hand, it is contended by the defendant that “eligible” means “proper to be chosen,” “qualified to be elected,” “ that may be elected; ” that is, the candidate for county commissioner must be eligible to the office at the time of the election.
It is a cardinal rule of construction that the words of a statute should be so construed as to carry out the purpose or intent of the lawmakers. Therefore, if a word in the statute has two or more definitions according to the standard lexicographers, that definition should be given in its construction that will best subserve the general purpose for which it was enacted. The literal or strict meaning of a word sometimes gives way to its general import. “ The sense and reason of the law are the soul of the law.” (Intoxicating-Liquor Cases, 25 Kas. 751.)
In Privett v. Bickford, 26 Kas. 52, there was construed the provision of our constitution ordaining that no person who has ever voluntarily borne arms against the government of the United States shall be qualified to hold office in this state until such disability is removed by a vote of two-thirds of all the members of both branches of the legislature. In that case it was said:
“ This provision operates upon the capacity of the person to take office, rather than as a disqualification to be elected to an office. So the disqualification is to the holding of the office, and not to the election. There is a marked distinction between a person who is ineligible or incapable of being elected, and one who may hold the office. ... If our constitution provided that the plaintiff was ineligible to be elected, instead of being ineligible to hold office, the contention of the defendant would be good; but as the ineligibility'is not as to the election, but only to the holding of the office, such ineligibility is cured by the subsequent removal of the disqualification.”
Although the statute under consideration uses the word “eligible” instead of the words “qualified to hold office,” contained in the provision of the constitution referred to, yet, if “legally qualified to hold office” is the meaning that may be given to “eligible,” the statute and the provision of the constitution may be construed alike, without difference; that is, as going only to the holding of the office. If the statute is a prohibition merely against any person holding any sj:ate, county, township or city office, or any employer, officer or stockholder in any railroad in which the county holds stock, from being elected to the office of county commissioner, then a person “eligible at the election,” that is, “capable of being legally chosen,” might be elected to the office of county commissioner, and afterwards accept a state, county, township or city office, or become a stockholder in a railroad in which the county has stock. If “eligible” is to be construed as to the capacity of being chosen or elected, the statute would be of no actual benefit. It would permit that to be done which it was evidently the purpose of the lawmakers to prevent. They did not desire a county commissioner to hold another office, or that he should be a stockholder in a railroad in which his county is interested. They evidently intended to prohibit a county commissioner, while holding that office, from being a state, county, township or city officer, and also intended to prohibit him, while holding such office, from being an employer, officer or stockholder in any railroad in which his county owned stock. This was the evil sought to be avoided by the statute. Therefore, to construe the word “eligible” as meaning “legally qualified to hold office,” seems to us to better subserve the spirit, as well as the letter, of the statute. Even if we should construe “eligible” as “electible,” or “proper to be chosen,” or “capable of being elected,” then, to carry out the purpose of the statute, as already stated, we must also give “eligible” the additional definition of “legally qualified,” 'or “capable of holding office,” or of “acting as a member,” because it will not comply with the spirit of the statute to rule that if a person is elected county commissioner, although eligible at the time of his election, he may, after his .election, accept the other offices referred to in the statute, or become connected with a railroad in which the county owns stock. To give these two different definitions to the word “eligible” in the same statute, and at the same time, would be an unusual construction. Generally, a word in the same statute is not construed in two different ways.
“It has been the constant practice of the congress of the United States since the rebellion to admit persons to seats in that body who were ineligible at the date of their election, but whose disabilities had been subsequently removed.” (MeCr. Elect., §311.)
A person may, therefore, hold the office of county commissioner even if, when elected, he is disqualified under the provisions of the statute. If he becomes qualified after the election and before the holding, it is sufficient. Among the authorities which are generally cited to support the definition of “eligible” as meaning “the capacity of being elected,” are Carson v. McPhetridge, 15 Ind. 327; Howard v. Shoemaker, 35 id. 111; and Jeffries v. Rowe, 63 id. 592. More recently (1883) these decisions have been carefully reexamined by the supreme court of Indiana, in Smith v. Moore, 90 Ind. 294. In that case, a provision of the constitution of Indiana was construed. That provision reads:
“No person elected to any judicial office shall, during the term for which he shall have been elected, be eligible to any office of trust or profit under the state, other than a judicial office.”
“Eligible” was defined as meaning “legally qualified,” and “eligible to any office,” as used in the provision of the constitution, was construed as having reference to the qualification to hold office, and not to the choosing or election to such office. One of the judges, Elliott, J., dissented; but that judge, in the case of Brown v. Goben, 122 Ind. 113 (1889), decided, under all the circumstances, it was best to adhere to the decision in Smith v. Moore, supra. He said in his opinion, among other things, that —
“ We conclude, therefore, that it must be held to be the settled law of this state that the disqualification must exist at the time the term of office begins, and that the right of the claimant is not affected by the fact that at the time of his election he was ineligible.”
The syllabus in that case reads:
“The disqualification must exist at the time the term of office begins, the right of the claimant not being affected by the fact that at the time of his election he was ineligible.”
In the case of Vogel v. The State, 107 Ind. 374 (1886), the judge writing the opinion (Zollars, J.), speaking for the court, said:
“The constitution provides that ‘no person elected to any judicial office shall, during the term for which he shall have been elected, be eligible to any office of trust or profit under the state, other than a judicial office/ (Rev. Stat. 1881, § 176.) That the office of justice of the peace is a judicial office, under our constitution and statutes, is well settled. It was held in the case of Smith v. Moore, 90 Ind. 294, that a judicial officer may be elected to an office not judicial, the term of which will begin after the expiration of the judicial term; in other words, that the disability imposed by the constitution has reference to the taking and holding of the office, and not to the election. That case has been followed and approved in subsequent cases. Marks was eligible to take and hold the office of township trustee, if the term began after the expiration of his term as justice of the peace, although such term may not have expired at the time of the election.”
A part of the syllabus reads:
“A judicial officer may be elected to an office not judicial, the term of which will begin after the expiration of the judicial term, the disability imposed by the constitution merely having reference to the taking and holding of the office.”
The court at that time consisted of five judges. The decision was unanimous. These decisions of Indiana referred to must be considered of greater force because the earlier decisions of that state construed “eligible to office” as relating “to the capacity of being elected.” A more thorough examination of the whole subject induced that court to change its former decisions, and to construe “eligible” as “going only to the holding of the office,” and not to mean “incapable of being chosen.”
The case of People v. Hamilton, 24 App. Ct. (Ill.) 609, is in line with the later Indiana cases, and “eligible to the office of alderman” is construed to mean “legally qualified.” The disqualification referred to in the statute in that case is construed to apply to the office and not the election.
In addition to the earlier Indiana cases, we are also cited to Searcy v. Grow, 15 Cal. 117, which was followed in People v. Leonard, 73 id. 230; The State, ex rel., v. Clarke, 3 Nev. 566; Taylor v. Sullivan, 45 Minn. 309; and In re Corliss, 11 R. I. 638. The decisions in California and Nevada are commented upon in Smith v. Moore, 90 Ind. 294, and the reasoning by which the conclusions were reached in those cases was not satisfactory to that court. The same may be said of the reasoning in Taylor v. Sullivan, 45 Minn. 309, as applied to the statute under consideration. In the Nevada case, which construes the word “eligible” as meaning “incapable of being legally chosen,” the judge writing the opinion says: “The etymology of the word and the meaning generally given to it by the best English authors would hardly justify this interpretation. But the word, as used in various state constitutions, seems to justify this broader and more comprehensive interpretation.” (The State, ex rel., v. Clarke, 3 Nev. 566.)
In the Rhode Island case, the language of the constitution is, “that no person holding an office of trust or profit under the United States shall be appointed an elector.” The supreme court of that state construed the election by the people as constituting an appointment. With this construction, the disqualification in the constitution of Rhode Island strikes at the beginning of the matter; that is, it forbids an appointment or the election of an ineligible candidate. That case is therefore not in conflict with the views of this court.
The other objections made to Demaree’s holding the office of county commissioner were not well taken.
In the case of Rogers v. Slonaker, 32 Kas. 191, Rogers’s term of office as coroner did not expire until January 14,1884. He attempted, while coroner, on January 12,1884, before the expiration of his term, to act as county commissioner. He tried to hold these two offices at the same time. This cannot be done.
In The State, ex rel., v. Plymell, 46 Kas. 294, Plymell was ineligible to the office of county commissioner because he continued to hold the office of city clerk. He attempted to discharge the duties of county commissioner. He also tried to hold two offices at the same time.
Forbes, who was elected to the office of township trustee to succeed Demaree, was notified of his election about the 18th of November, 1892. He qualified December 31,1892. The acts relating to township officers make no provision for any of the offices therein named becoming vacant on the refusal or neglect of the officer elected to give the official bond within the time prescribed by law. (Jones v. Gridley, 20 Kas. 584.) On the 9th of January, 1893, at the time that Demaree ap peared and demanded his office as a member of the board of county commissioners of Seward county from the third commissioners’ district he was “eligible;” that is, he was “legally qualified” to hold the office at that time. He had fully complied with all the provisions of the statute, and Seates should have surrendered to him the office.
The claim that Demaree offered to give a bribe to E. D. Haines, on the 8th of November, 1892, to procure his vote, we do not think is supported by the evidence. It is said that Demaree agreed with Haines to use his influence to relocate a schoolhouse near the center of his school district, in consideration that Haines would vote for him for county commissioner. Considering all the evidence, we do not think that Demaree bribed or attempted to bribe Haines by what he did about the relocation of the schoolhouse.
Judgment of ouster will be rendered against the defendant, with costs.
Johnston, J., concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
There was a recovery in this action for the wrongful conversion of live stock. The property alleged to have been converted consisted of hogs and cattle, and the trial court made a general finding in favor of the plaintiff below for all the hogs and cattle claimed by him, and judgment was accordingly entered. In the original opinion, it was decided that there was abundant evidence to sustain the finding as to the hogs, but not sufficient to support the finding as to the cattle. We are now asked to reexamine the record, and determine therefrom the number of animals for which the plaintiff below was entitled to recover, and to direct judgment accordingly.
It was said in the first opinion that, if there had been a special finding stating the number and value of the hogs con verted, the judgment to that extent might have been affirmed; but iu the absence of such a finding the reversal must be a general one. This court cannot, of course, retry the facts, nor can it determine the merits of the controversy, except to inquire whether the evidence sustains the findings and judgment of the trial court. Where special findings are made which are found to be supported by the evidence, judgment may be given upon them, although contrary to the general and some of the special findings. If there was error in the admission of testimony or in the charge of the court which enters into all of the findings, a complete reversal is required. Ordinarily, in cases where there is a general finding and judgment, and material error is found, there must be a reversal and a new trial. A reexamination of the record, however, shows that the live stock for which a recovery was sought in this action consisted of two distinct lots, one of hogs and another of cattle. The hogs are easily distinguishable from the cattle in respect to identity and value. As has been stated, the findings fully sustain the decision of the trial court as to the conversion of the hogs, and there is no difficulty in determining what should be the amount of recovery for them. While it is claimed there were 84 hogs wrongfully taken, it appears that the commission company took and shipped only 75 head of them. These were sold in the open market at Kansas City, and it is admitted by the commission company that the price received for them was $1,038.32. The charges and expenses of shipment are also conceded to be $31.50, which would leave a net value of $1,006.82. Possibly the commission company should be held liable for three other hogs which were not taken to Kansas City, but the right of recovery for these and the value of the same have not been so clearly shown as to warrant this court in directing a judgment for their value. The same may be said with reference to all the cattle for which a recovery is sought. As has already been shown, it cannot be determined from the testimony in the record what cattle, if any, were covered by the Guthrie mortgage; and hence the judgment awarded by the district court for a recovery for the cattle was, to that extent, excessive. As there was sufficient testimony to sustain the finding of the court as to the conversion of the hogs, and as there is practically no dispute in regard to the identity and value of the same, the finding and judgment of the court may be sustained to that extent, and treated as if the number and value of those converted had been specially found. Upon a reexamination of the record, we have determined to treat the finding as to the hogs the same as though it had been special. The errors sustained do not enter into the finding as to the hogs, and therefore permission will be given defendant in error to accept judgment for the net value of the hogs, $1,006.82, with interest thereon from the date of demand. (K. C. Ft. S. & G. Rld. Co. v. Kier, 41 Kas. 671; The State v. Durein, 46 id. 695, 700; Ft. S. W. & W. Rly. Co. v. Tubbs, 47 id. 630, 637.)
If Guthrie shall, within 30 days, remit all that portion of the judgment awarded which is in excess of the amount of recovery for the hogs, the judgment of the district court, to that extent, will be affirmed; and unless this remission is made the judgment of the district court will be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The question in this case is, whether the plaintiff upon his proof was entitled to go to the jury upon the question of the defendant’s negligence. It is contended that the railway company was guilty of negligence in not keeping its track clear of obstructions, and that the engineer in charge of the street motor or “dummy” negligently failed to discharge his duty in not keeping a proper lookout for obstructions upon or near the track. It has been frequently decided by this court that a railway company is bound to exercise reasonable and ordinary care in providing suitable machinery, instruments, means and appliances for the work of its servants and employés. (Railroad Co. v. Holt, 29 Kas. 149; Railroad Co. v. Fox, 31 id. 586; Railroad Co. v. Moore, 31 id. 197; Railroad Co. v. Wagner, 33 id. 660; Railway Co. v. Weaver, 35 id. 412; Railway Co. v. Dwyer, 36 id. 58.) If the accident in this case had resulted from a coal car owned or operated by the defendant, or from any defect in the construction or maintenance of the track upon which its trains were operated, and if the petition had charged that the railway company had failed to exercise reasonable care and diligence to provide Telle, the injured employé, with a reasonably safe track or place at which to work, it is probable that sufficient proof was offered to establish prima facie actionable negligence. (2 Thomp. Neg. [ed. 1880], 985-987; Blanton v. Dold, 18 S. W. [Mo. 1892] 1149; Mooney v. Lumber Co., 28 N. E. Rep. [Mass. 1891] 352; Donahue v. Drown, 27 id. [Mass. 1891] 675; Griffin v. B. & A. R. Co., 19 id. 166; Kelley v. Bridge Works, 17 Kas. 558; Jackson v. Railroad Co., 31 id. 761; Railroad Co. v. Ledbetter, 34 id. 334.) But this is not the case which is before us for consideration.
The allegation in the petition that the coal car on the spur or siding “moved towards the junction of the main track on account of the negligence and carelessness of the defendant, its agents or servants, in leaving the car without the brakes being securely set or secured,” was not sustained by any proof whatever. On the other hand, it affirmatively appeared that the motor or “ dummy,” with two cars attached, ran from the glucose works south to the soldiers’ home, about 2-J miles, over a single track owned by the Kansas City, Wyandotte* and Northwestern Railroad Company; that the spur or siding upon which the coal car was standing which collided with the motor or “dummy” was not owned or under the control or charge of the defendant. It was not placed upon the spur or siding by the defendant, and neither the defendant nor any of its agents or servants had anything to do with the side tracks or the location of the coal car. The petition specifically alleged that —
“The engineer in charge of the engine, and the conductor in charge of the train, negligently failed to keep a lookout to see if the track was clear and free from obstructions at said place, by reason of which they ran the engine into and collided with the coal car so standing on the spur or siding; that plaintiff was injured in consequence of the negligence of defendant and its engineer and conductor, in not keeping a lookout so as to see that the track was clear and free from obstructions; that if such lookout had been made, and the engineer and conductor had been looking out, as they were in duty bound to do, they would have seen the coal car, and could have avoided any collision with the same.”
The proof showed that the coal car stood upon a parallel side track, about four feet from the main track, for quite a long time. Five times the train upon which Telle was the fireman passed this coal car in safety, Telle sitting on the same side of the “dummy” or engine. The coal car was seen in the same position 15 or 20 minutes prior to the accident. When the “dummy” and train were about to pass the coal car for the sixth time, from some cause not explained, it had moved a few feet upon the spur or siding, so that it struck the-“dummy,” and injured Telle. The proof showed that the engineer could have stopped the train within 150 feet of the point of collision, but there was no proof offered showing or tending to show that the coal car had reached the point at which the collision took place when the “dummy” and train were 150 feet or more distant-. Eor aught that appears, the coal car may have moved down to the danger point after the train was less than 150 feet from it. Herley, the brakeman, who was standing on the rear step of the train on the west side, being the same side that the coal car stood ou, testified as follows:
“Ques. Where were you situated just before this collisiou? Ans. I was on the hind end of the two cars.
“Q,. What did you observe, and what did you do? A. Well, about the time the engine struck the car I was down on the steps of the car, and I looked ahead to see how the switch was, and I saw they were going to strike, and jumped off.
“Q,. You were on the hind coach, were you? A. Yes, sir.
“ Q. And you could see from the platform at the end of the coach that the engine was going to strike the coal car? A. Yes, sir.
“Q,. And then you jumped? A. Yes, sir.
“Q,. Now, as I understand your statement, Mr. Herley, it is this: That just at the time the cars were about to strike, just at that instant you happened to glance out and thought there was not room to pass, and you jumped off? A. Yes, sir.
“Q. From the time you saw it, did you not have time to do anything else? A.' That is all I had; I was down on the last step, and I had to get off.
“Q,. Hid you know how fast the car was running? A. The train we were on?
“Q,. Yes. A. Well, I suppose from 12 to 15 miles an hour; I do n’t know exactly how fast we were running.
“Q,. By looking, could you tell about how far back it would strike? A. No, sir; I couldn’t; the engine struck it just before I got off.”
Telle testified that the engineer “could have stopped the train within 150 feet.” The presumption is that the master has discharged his duty to the employé. (Railway Co. v. Millihen, 8 Kas. 647; Railway Co. v. Young, 8 id. 658; Railway Co. v. Salmon, 11 id. 83; Jaokson v. Railroad Co., 31 id. 761; Wood, Mast. & Serv. 368-382.) The petition charged negligence upon the engineer and conductor. They were not negligent unless they saw or could have seen the coal car in time to have stopped the train before the collision; therefore, unless proof was offered that the coal car wag landing at the point of collision, or could have been seen moving towards that point, within 150 feet therefrom, there would be no negligence in not stopping the train. This case, upon the pleadings and evidence, is very much as if a tree or a rock had suddenly fallen upon or near the track just before the train reached the place of accident. Negligence in such.a case could hardly be predicated upon the mere fact that an obstruction was upon the track undiscovered. The proof should go farther, and show, not only that the obstruction was upon the track at the time of the collision, but also upon or near the track long enough for the engineer to have seen the same and stopped the train. There was no proof when that coal car reached that dangerous position. As it was 15 or 20 minutes before in a safe position, it is as consistent to say that it moved to the place of danger just before the collision as to say that it moved there several minutes prior. Since the train could not have been stopped in less than 150 feet, it is manifest that if the coal car moved into the place of danger when the engine was within that distance, the engineer by no kind of a lookout could have discovered the danger in time to have avoided the injury. If iu fact the coal car moved so slowly down that it could have been seen by the engineer within 150 feet before reaching the point of collision, that should have been shown. As crowds of people lined the track watching the movements of the train, it being the first day of its operation on the road, there ought to have been no trouble in showing by some witness when the coal car reached the danger point, or whether it moved slowly down, and therefore could or ought to have been seen by the engineer in time to have prevented the collision. (Kelley v. Railroad Co., 75 Mo. 138; Moody v. Railroad, Co., 68 id. 470; Toner v. Railway Co., 69 Wis. 188; Murray v. Railroad Co., 11 Colo. 124; Carter v. Railway Co., 65 Iowa, 287; Railway Co. v. Haley, 25 Kas. 35.)
Of course, where a party charges a specific act of negligence, is concluded thereby and cannot recover upon matters not alleged. (Railroad Co. v. Irwin, 35 Kas. 286; Denton v. Railroad Co., 52 Iowa, 161; Carter v. Railway Co., supra; Price v. Railway Co., 72 Mo. 414.)
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
Valentine, J.:
This was an action brought in the district court of Haskell county, by the Bank of Santa Fé against the sheriff, treasurer and county board of said county, to perpetually enjoin the defendants from collecting or enforcing certain taxes levied against the plaintiff. The petition of the plaintiff, as filed in the district court, omitting title and signature, reads as follows:
“petition.
“ The Bank of Santa Fé, plaintiff in the above-entitled action, for its cause of action alleges: That plaintiff is, and at all times herein referred to has been, a corporation organized and existing under the laws of the state of Kansas, and doing business as a banking corporation in the city of Santa Fé, in .the county of Haskell, in the state of Kansas; that defendant John C. Buster is the sheriff of Haskell county, Kansas; that defendant John G. Michaels is the county treasurer of Haskell county, Kansas; that on the 3d day of May, 1890, J. L. Kennard, the cashier of said plaintiff, made a personal-property statement to W. P. Claybourn, the assessor of the township in which the said city of Santa Fé was situated, said city being a city of the third class, of the amount of personal property for which said bank was liable to be taxed; that in making such statement, said J. L. Kennard, through a mistake of law and of' fact, instead of making a statement of the names of the stockholders in said bank, and the amount of stock held by each, as required and provided by § 6868 of the General Statutes of Kansas, gave, as the total amount of personal property said bank was required to list for purposes óf taxation, the sum of $5,000; that the fair, just, legal and equitable sum on which said bank should have been taxed was not to exceed $2,000; that on the 7th day of May, 1890, said as sessor filed said statement in the office of the. county clerk of said Haskell county; that thereafter, in June, 1890, said J. L. Kennard, becoming aware of his said mistake, appeared before the board of county commissioners of said Haskell county, called their attention to such mistake, and requested that such mistake be corrected, and that the amount for which said bank was liable to be taxed should be reduced upon the records to the proper amount; that said board of county commissioners deferred and postponed action upon said application, and took no action with reference thereto until January, 1891, when their attention was again called to the matter by the affidavit of said J. L. Kennard, setting out the foregoing facts, and asking for a rebate on said assessment based on said amount of $5,000, but said board again refused to take action thereon; that the county clerk of said Haskell county, in making up the tax roll of said county, entered a tax against said bank based upon said erroneous return and statement, and the tax so entered against said bank was unjust, unfair, illegal, and excessive in the proportion of five to two; that said plaintiff has refused to pay said illegal tax, but has at all times been ready and willing to pay a fair, just, equitable and legal tax upon the personal property of said bank, and has tendered such an amount to the treasurer of said county, and to the sheriff of said county, and offered to pay such fair, just and legal amount; that upon refusal of plaintiff to pay such illegal tax, the said treasurer of said county issued to the sheriff of said county a tax warrant, commanding said sheriff to levy upon the goods and chattels of plaintiff to the amount of such illegal tax, and collect such illegal tax; that said sheriff, under authority of said warrant, has levied upon certain personal property of said bank, and is now threatening and is about to advertise and sell such property; and said tax warrant is wholly illegal.
“Wherefore plaintiff asks that said sheriff, defendant herein, be restrained and enjoined from proceeding further under such warrant, and from advertising or selling such personal property, and from collecting or attempting to collect such tax; and that said county treasurer and said board of county commissioners be restrained and enjoined from taking any steps toward the collection of said illegal tax; and that upon a full hearing such order and injunction be made perpetual; and for costs of this action, and for any proper equitable relief.”
The probate judge of said county granted to the plaintiff a temporary injunction as prayed for in its petition; but the judge of the district court, at chambers, upon a motion interposed by the defendants, vacated, set aside and dissolved such temporary injunction, and did so, as is shown by the order of such judge, upon the sole ground that the petition did not state facts sufficient to entitle the plaintiff to recover or to the relief prayed for; and to reverse this ruling and order of the district judge, the plaintiff, as' plaintiff in error, has brought the case to this court.
We think the decision of the judge of the district court is correct. Whatever mistake was made in the assessment of either the plaintiff’s or the stockholders’ property was made by J. L, Kennard, cashier and agent of the plaintiff, and the plaintiff is certainly bound by the statement made by its agent, unless the plaintiff, through that or some other agent or officer, resorted to the proper means to have such mistake corrected. It does not appear that any such thing was ever done; and therefore its agent’s “mistake of law and of fact,” whatever that might have been, has never been corrected. It does not appear that any list of the names of the stockholders of the plaintiff bank, or the amount or the value of such stock, or of any stock held by either the bank itself or the individual stockholders, or the value of any undivided profits or surplus remaining in the bank, has ever been furnished by the bank, or by any one of its agents or officers, to the assessor, or to the board of county commissioners, or to the board of equalization, or to any other board or officer having anything to do with the assessment of property or the levy or collection of taxes. This should have been done. (Gen. Stat. 1889, ¶¶ 6868, 6921, 6922.) It does not appear what the value of the stock held by the bank and its stockholders, or by the bank or any of its stockholders, was, or that the aggregate value, or even the value of the stock held by the bank itself, was less than $5,000, the amount of the assessment. It does not appear that the value of the taxable property of the bank, after • deducting the value of all its real estate, would be less than $5,000. The allegation “that the fair, just, legal and equitable sum on which said bank should have been taxed was not to exceed $2,000,” and other like allegations, without stating what the property was, or its value, are not sufficient. It does not appear that any of the stock of any one of the stockholders has ever been assessed in any other manner than by the assessment complained of in this action. No stockholder is complaining, and in all probability no stock has been assessed or taxed more than once, if at all. What the amount of the capital stock of the bank is, or what its value is, is not shown: and certainly the bank and its stockholders will not be required to pay more taxes on this assessment than they ought to pay. Even where the assessment is regular, and where the assessment is upon the individual stock separately of each of the individual stockholders, still the statute relating to banks like the present provides that “ said bank or banking association shall pay the tax assessed upon said stock and undivided profits or surplus, and shall hav4 a lien thereon until the same is satisfied.” (Gen. Stat. of 1889, ¶ 6868.) In fact, it can make but little difference, as a general rule, whether the assessment is made upon the stock of each stockholder separately or is made against the bank itself for the whole amount of the stock. And further, it does not appear that the plaintiff, or any agent for the plaintiff, ever appeared before the board of equalization to have the mistake made by its cashier and agent corrected. We think no equity is shown in this case in favor of the plaintiff. We think this case falls within the principles enunciated in the case of Winfield Bank v. Nipp, 47 Kas. 744, and not within the principles enunciated in the case of National Bank v. Fisher, 45 id. 726.
The order of the judge of the court below, vacating the temporary injunction, will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
On March 6, 1886, Gov. John A. Martin issued a proclamation declaring a consolidation of the cities of Wyandotte, Kansas City and Armourdale as one city of the first class, under the namg of Kansas City. This action was taken by him a3 goverspf ’n pursuance of the authority of “An act to provide few^he consolidation of cities,” and another which is amendatory thereof, being chapters 63 and 64 of the Laws of 1886, and also upon the certificate of the county clerk of Wyandotte county, stating that no one of the cities named was a city of the first class; that they were adjacent to each other, not more than three-fourths of a mile apart, and together had attained an aggregate population of more than 15,000. Since that time these cities have been treated as one municipality and conducted under a single government, and the validity of the consolidation was not challenged until December 3, 1891. On that day, the attorney general, in the name of the state, brought an original action in this court-against the city and its officers, in the nature of quo -warranto, to dissolve the consolidation; and the specific ground alleged is, that the laws under-which it was effected were unconstitutional and void. Answers were filed in behalf of the consolidated city and its officers, stating, in substance, that prior to the consolidation Kansas City, Kas., and Wyandotte were cities of the second class, while the city of Armourdale was a city of the third class, and together had a population of more than 15,000 inhabitants; that the city of Armourdale was not more than three-fourths of a mile from the cities of Kansas City and Wyandotte. It recites the certificate of the county clerk and the action of the governor in the consolidation of the cities, and that the first officers were elected and the consolidation completed. It is alleged that the three cities comprising the consolidation were adjacent to each other:
“That the separating line between old Kansas City and old Wyandotte was the middle of the Kansas river, from the point where the Kansas river empties into the Missouri, which line ran up the Kansas river to a point where it intersects the boundary of the city of Armourdale; that the city of Armourdale, previous to the consolidation, was adjacent to the city of Wyandotte on the south, the platted territory of the city of Wyandotte on the south boundary being within 750 feet of the platted territory of the city of Armourdale on the north boundary thereof, the intervening space being occupied by the tracks and right-of-way of the.Union Pacific Railway Company; that since the consolidation of said city as aforesaid, numerous additions have from time to time been added, by ordinances duly enacted and approved; that the territory comprising said additions amounts to about one-third of the present territory included within the boundary lines of said city.”
It is further alleged, that since the consolidation the whole territory comprising the same was divided into wards, and that, in each of the wards, councilmen and members of the board of education had been elected, and all of the qualified electors had participated in said election; that the city of Armourdale had been constituted the sixth ward; that the city had expended in public improvements in that ward alone the sum of $354,490.74, for which special-improvement bonds had been issued by the consolidated city, and that there had been expended, for school sites and buildings in the sixth ward, the sum of $27,000. It appears to be claimed that the opposition to the consolidation comes mostly from residents of the sixth ward. It is further alleged, that since the consolidation the city has been recognized as a city of the first class by the United States government, by the courts of Wyandotte county, the supreme court of thq state, by the state legislature, and by the governor and state officers of Kansas, and that from the time of the consolidation the several cities composing the same had voluntarily surrendered their respective local governments, and had acquiesced in the consolidation. It is finally averred, that the dissolution of the consolidation would cause irreparable injury to the people of the city, and also to the persons who own and hold the bonds and contracts of the city, and also to various persons and corporations who have received franchises for water, light and railways within the city-; that it would work confusion in the police regulation and control of the territory included in the city, and would give rise to much litigation both as to the contracts and debts outstanding, as well as in the matter of taxation, both past and future; and the defendants insist that, by reason of the premises, the state is es- topped from maintaining this action. A general demurrer to the answer was filed by the state, and upon that answer and the demurrer the case is submitted to this court.
The result of the controversy depends upon the validity of the statutes under which the consolidation was effected. Several grounds of invalidity are asserted, but the principal ground is that the acts confer corporate power, and, being of a special or local nature, they are repugnant to § 1 of article 12 of the state constitution, which forbids the legislature to pass any special act conferring corporate powers. That corporate power is conferred by the legislature, no one can deny; but is it special and local in its application, within the meaning of the constitution ? The statutes attacked are chapters 63 and 64 of the laws of 1886, and it is contended that the first section of chapter 63 discloses the local and special character of the legislation. It reads as follows:
“Section 1. Whenever two or more cities, neither of which is a .city of the first class, lying adjacent to each other, and not more than three-fourths of one mile apart, have attained, or shall hereafter attain, an aggregate population of 15,000 or upwards, such cities shall be consolidated and become one city, and. be governed and regulated by the laws relating to cities of the first class, except as to matters provided for in this act.”
All of the provisions of the acts relate to the consolidation, and prescribe the various steps to be taken in completing it, except, possibly, one in relation to the grading of streets, the validity of which has been questioned. (Simpson v. Kansas City, 46 Kas. 438.) The statute is general in form and prospective in its application, and upon its face it would appear to operate on all communities which came within its provisions for all time to come. The mere fact that it is general in form, however, will not save the statute, if its operation and effect are necessarily local and special. (City of Topeka v. Gillett, 32 Kas. 431.) In the case last cited, the following rule with reference to what constitutes general legislation, and which would be upheld, was stated: “If the act has room within its terms to operate upon all of a class of things, present and prospective, and not merely upon one particular thing, or upon a particular class of things existing at the time of its passage, the act is general.” In The State v. Hunter, 38 Kas. 590, it is said:
“ It is not necessary that a law should operate upon all cities of the state to be constitutional. If it is general and uniform throughout the state, operating upon all of a certain class, or upon all who are brought within the relations and circumstances provided in the act, it is not obnoxious to the limitations against special legislation.”
The principle of classification in legislation for cities has been approved in this court and is conceded by counsel for plaintiff. Heretofore, it has been based on population only, but it has been generally recognized that other classifications might be made without offending the constitution. (City of Topeka v. Gillett, supra.) It was said in The State v. Hunter, supra, that —
“It belongs to the legislature to make the classification, and while it cannot so classify them as to make the law special in its application and results, yet many classes may properly be made. It need not be restricted to the population of the municipality, but it would seem that it might be based on the conduct or condition of the people resident therein.”
The cities of Kansas have been arranged in three classes. When it is found that a city has 15,000 inhabitants, it becomes a city of the first class; those that have less than 15,-000 and more than 2,000 are placed in the second class; and' all incorporated municipalities not having more than 2,000 fall within the third class. As cities increase in population, they advance from one class to another by a simple procedure, when they adopt a different form of city government, and are made subject to a different code of municipal laws. The statute in question provides another method for organizing cities of the first class, and for advancing adjacent cities of the lower classes to the first class. No previous law was adequate for this purpose. Is the classification fair, and the distinction from other laws substantial and necessary? Can it have general application upon all municipalities which naturally come within its provisions? The act simply provides for the consolidation of adjacent cities of the lower classes into one of the first class. We are of opinion that the classification is not an unnatural one, and that the distinction is substantial and reasonable. In communities where only a few inhabitants reside, but few rules and regulations are required; but those which would be sufficient for them would be wholly inadequate for a densely-populated municipality; and hence the laws provided for cities of the first class differ materially from those provided for the lower classes. Cities which are adjacent to each other, of the lower grade, that, in the nature of things, cannot hope to reach the population which would bring them into the first class, are permitted by this act to unite, and thus obtain all the conveniences and benefits of the laws enacted for first-class cities. Consolidation, in such cases, would seem to be in the interest of economy and convenience. The maintaining of several independent, and perhaps conflicting, municipal organizations that, are near together, and which, all together, naturally constitute but one community, is unnecessary, inconvenient, and expensive. United, the expenses of government may be greatly reduced, better police control can be had, streets and sewers may be built more advantageously and economically, water and light can be distributed at much less expense; and all these advantages and conveniences can be enjoyed by a greater number of people than can obtain them under several municipal organizations. As there was no law in existence under which such organizations could consolidate, it would seem that there were substantial and reasonable grounds for bringing such municipalities into a single city government. Of course, a law cannot be enacted, even for beneficial purposes, which is so restricted and local in its application as to be special. It is objected that this law is special in that it applies only to cities of the second and third classes, and excludes from its operation those of the first class. But this objection is not good. As has been seen, it is not necessary that an act shall apply to all cities in order to be valid. The purpose of this act was to create cities of the first class from cities of other classes which needed, but could not otherwise obtain, first-class-city government. There is no reason nor necessity for the' application of the law to cities already in that class, and the fact that provision was being made for the creation of cities of that class no doubt determined the limitation of population at 15,000 people.
It is further contended, that the law is special because at the time of its passage it was only applicable to three cities, which have taken advantage of its provisions to consolidate into the defendant city. It is true that no other cities than those named have taken advantage of the provisions of this act, and it is probably true that no other cities similarly situated have at present the requisite population which would enable them to consolidate. The act, however, in form appears to be designed for the whole state, and to embrace all cities that come within the specified class. The fact that only one group of cities could have consolidated under the statute at the time it was enacted does not condemn it. If the classification is proper, and the. legislation is such as admits of the entry of all cities of like condition into that class, it is not invalid, although there may be at the time only one group of cities that comes within the class. If the provisions are such that other cities may enter the class, and in the nature of things probably will enter the class and come within the provisions of the statute, it may be regarded as a general law. (City of Topeka v. Gillett, supra; Bumsted v. Govern, 47 N. J. L. 372; Fellows v. Walker, 39 Fed. Rep. 651; The State v. Hudson, 44 Ohio St. 137.)
It is well known that in mining and manufacturing districts towns spring up which are near together, and where the conditions are favorable for growth and prosperity they soon develop into cities of- the lower classes. Our attention has been called to groups of cities in other portions of the state which give promise that some of them at least will soon attain the requisite population to avail themselves of the provisions of this act. Rosedale and Argentine, in Wyandotte county; Empire City and Galena, in Cherokee county; Hutchinson and South Hutchinson, in Reno county; Coffey - ville and Parker, in Montgomery county; and Strong City and Cottonwood Falls, in Chase county, are cited as examples of young and growing cities to which the law may be fairly expected to apply at some early time. The first-class-city act only applied to a single city for many years, but it was general in form and theory, and there was good reason to anticipate that other cities would come within the provisions of the act in the future. Although the act applied to but one city for a number of years, it was not held to be void, and the result anticipated has been realized, as there are now several other cities that fall within that class. The experiences of the past would fairly justify the expectation that some of the adjacent cities now in existence in different parts of the state will attain a sufficient population to consolidate under this act. This statute is very unlike the one condemned in City of Topeka v. Gillett, supra. That act was hampered with so many restrictions that it had no general application, and manifestly was not intended to have a general and uniform application throughout the state. It excluded all cities of the first and third classes, and, in fact, most of the cities of the second class. Indeed, it could not apply to any cities except Topeka, Lawrence, and Atchison, and not to them except for a few days after its passage. It could only apply to such of the three cities named as took certain steps within 14 days after the law was enacted, and had completed the action within 58 days. After that time, the law became ineffectual and defunct. The consolidation act may have operation for all future time and throughout the entire state; and hence the decision of City of Topeka v. Gillett, supra, condemning special legislation, is not controlling here. The validity of this act was brought to the attention of the court in Simpson v. Kansas City, 46 Kas. 453, where the right of the legislature to provide for the consolidation of cities was declared; and it was said that “We regard the act to provide for the consolidation of cities as a general law of uniform operation, that operates on the cities already in existence, and will operate on those that grow in the future.” The objection, therefore, that the act is invalid by reason of being special and local, cannot be sustained.
It is claimed also that the law is limited by the exceptions mentioned in the first section; but it appears that every provision relates to and is intended to effect consolidation except the fourteenth section, which relates to the grading of streets. As intimated in Simpson v. Kansas City, supra, this section is not fairly embraced within the title of the act, and is unconstitutional. When the consolidation has been completed, the laws relating to cities of the first class must control; and, as § 14 is an apparent attempt to provide a rule for the grading of streets after the consolidation has been effected, it does not come within the title of the act, and cannot be sustained. This section, however, is distinct and severable from the remainder of the act, and its invalidity will not render the whole statute void. (Turner v. Comm’rs of Woodson Co., 27 Kas. 314; C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., 28 id. 453; Berry v. Railroad Co., 20 Am. Rep. 69; Smith v. Mayor, etc., 45 N. W. Rep. [Mich.] 964; Cooley, Const. Lim. 177; 3 Am. & Eng. Encyc. of Law, 677.)
It is asserted that the act violates § 16 of article 2 of the constitution, which provides that “ No bill shall contain more than one subject, which shall be clearly expressed in the title.” The title of the act is: “An act to provide for the consolidation of cities.” We think, under the numerous decisions of this court, that the title, although general, fairly indicates the scope of the act, and that when § 14 is eliminated from it, no objection can be fairly urged against the title. (The State v. Barrett, 27 Kas. 213; Comm’rs of Cherokee Co. v. The State, 36 id. 337; The State v. Comm’rs of Haskell Co., 40 id. 65; Mo. Pac. Rly. Co. v. Merrill, 40 id. 404; The State, ex rel., v. Sanders, 42 id. 228.)
There is a further contention that the consolidation is illegal, because Armourdale was not contiguous to the- other two cities, but was separated by an intervening strip of land. It is alleged in the answer that the cities consolidated were-adjacent to each other, and that the boundary line of Wyandotte and Kansas City intersected the boundary of Armourdale, but that there was a strip of land about 750 feet wide occupied as a right-of-way of a railroad between Wyandotte and Armourdale, and that since the consolidation numerous additions to the cities had been made. It is not necessary, under the terms of the act, that the cities should have actually joined each other at the time of the consolidation; it is enough if they were “adjacent;” and that term has been defined as lying near to, but not actually touching. (Webster’s Unabridged Dictionary; Henderson v. Long, 1 Cooke, 128; Mayor, etc., v. Hart, 16 Hun, 380; United States v. Railroad Co., 29 Alb. L. J. 24.) We have, however, a legislative definition of the term in the act itself, where it provides that cities not more than three-fourths of a mile apart are to be deemed adjacent to each other. We have no constitutional provision prescribing a rule with reference to the territorial boundaries of cities, and in the absence of constitutional limitation, express or implied, the power of the legislature in respect to territorial limits is supreme and transcendent. (Dill. Mun. Corp., §§ 54, 183.) We have other statutory provisions which give full authority to annex contiguous territory,, with or without the consent of the persons residing on such territory, and there is conferred upon the mayor jurisdiction and authority over all places within five miles of the corporate limits of the city for the enforcement of certain police regulations. In view of these provisions, it would seem that, no serious objection could be urged against the consolidation because of the intervening strip between Wyandotte and Armourdale. Whenever a statute can be so construed as to avoid a conflict with the constitution, such construction should be adopted if possible; and, keeping in mind this rule, we have reached the conclusion that the statute in question must be held valid and the consolidation legal. The demurrer to the answers of the defendants will therefore be overruled, and judgment given in their favor.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
In December, 1890, Henry M. Weeks and Joel P. Weeks commenced an action against E. H. Sanford to “remove a cloud” from their title, Sanford setting up a prior contract of sale from their vendor, under which contract he claimed he was in possession, with valuable improvements. Upon the testimony of Henry- M. Weeks, alleging want of actual notice of the possession and rights of Sanford, the district court rendered judgment as prayed for. This judgment was afterwards affirmed by this court, upon the ground that the credibility of the witnesses and the weight of their testimony was with the trial court, not this court. This court, however, in its opinion, decided that the prior contract of sale held by Sanford was valid. (Sanford v. Weeks, 38 Kas. 319; Sanford v. Weeks, 39 id. 649.) Thereupon this court issued its mandate, on January 7, 1888, which was filed in the court below, January 17, 1888. On the 16th day of October, 1888, Sanford filed his amended motion for a new trial, based upon the affidavits of himself and Henry Rickel, alleging fraud and perjury in procuring the judgment. On account of a motion for a rehearing in the ease of Sanford v. Weeks in this court, the mandate originally issued was ordered stayed, pending the decision of the motion in this court. It does not appear, however, that any notice of the order of stay of this court was filed or presented to the district court before the 15th day of May, 1888, upon which day the order complained of was made.
It is now urged that, by a written stipulation between the parties, filed in the court below, the hearing of the motion for the new trial was passed until the 23d of May, 1888. As the amended motion was not filed until the 16th day of October, 1888, we do not understand how the stipulation that it should not be heard until the 23d of May, 1888, several months before it was filed, could have any effect whatever. Again, we do not understand how the amended motion, which was not filed until October, 1888, could have been disposed of on the 15th day of May, 1888—before it was filed. It is evident that the record presents such inconsistent dates that it is impossible to give any construction to it beneficial to the plaintiff in error.
On the evening of the 15th of May, 1888, Sanford not being present at the time, the mandate of this court was spread upon the record, and the motion for a new trial and to vacate the judgment of the district court was overruled. According to the record, on the 16th day of May, 1889, a motion was filed to vacate and set aside the order overruling the motion for a new trial and asking the motion to be reinstated for hearing. This was overruled, according to the record, on the 29th of May, 1889. The petition in error recites that the order and judgment complained of were rendered at the May term of the district court of Wabaunsee county for 1889. If the amended motion for a new trial was overruled, as shown by the record, on the 15th day of May, 1888, and if Sanford delayed his" objection to the disposition of the motion at that time until the 16th of May, 1889, about a year, as both the record and petition in error show, it is doubtful, on account of his laohes, whether his subsequent motion for vacation and reinstatement, of the 16th of May, 1889, has any merit whatever.
But further, there is an omission in the record which prevents us from considering the questions discussed. Attached to the petition in error is a case-made. It is not shown therein, excepting in the certificate of the trial judge, that the evidence is preserved in the record, and it does not affirmatively appear that no evidence was offered.' It has been frequently decided by this court that, “where a case is made and settled for the supreme court, and the party making it desires that it shall be shown that the case contains all the evidence that was introduced on the trial, a statement to that effect should be inserted in the case itself, and not in the certificate of the judge who settles the case.” (Eddy v. Weaver, 37 Kas. 540.)
In view of the record as presented, this court cannot do otherwise than affirm the judgment of the trial court.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action brought under the act providing. for the maintenance and support of ille gitimate children. Sidney Brewer, an unmarried woman, charged Thaddeus Stevens, the plaintiff in error, with being the father of her bastard child. A trial was had in the district court of Douglas county, and he was found to be the father of the child, and adjudged to pay the sum of $2,000 for securing the maintenance and education of such child. The plaintiff in error brings the case here, and relies upon two assignments of error for a reversal of the judgment.
It is first contended that the district court erred in excluding certain evidence offered by the defendant in the district court. John Heathman was produced as a witness for the defendant, and an effort was made to prove the contents of a letter claimed to have been written by the prosecutrix to Richard Heathman. It is urged that the proper foundation was laid for the introduction of secondary evidence. The prosecutrix stated upon her cross-examination that she had never written a letter to Richard Heathman in her life. Three witnesses, including John and- Richard Heathman, swore that they did not know the handwriting of the prosecutrix, and had never seen her write. This evidence, coupled with the further fact that a letter had passed through the post office at Sigel, directed to Richard Heathman and signed “Sid.,” was all the court had to authorize the admission of secondary evidence. The evidence did not establish the fact that the letter was in the handwriting of the prosecutrix or signed by her. It did not even appear that the evidence was competent or material. We are clearly of the opinion that the court committed no error in excluding secondary evidence as to the contents of this letter.
The second assignment of error is, that the district court erred in refusing to compel the witness Richard Heathman to give evidence as to his having had sexual intercourse with the prosecutrix. The witness declined to answer the question, for the reason that it might render him liable to a criminal prosecution. The record shows the following:
“Q,. State whether you ever had sexual intercourse with Sidney Brewer during the year 1886. A. No, sir.
“Q,. State whether you had sexual intercourse with her during the year 1887. A. I decline to answer that question.
“ Mr. Riggs: I ask upon behalf of the prosecuting witness that the witness be compelled to answer. I am perfectly willing that he should answer—within proper limits, of course.
“The Court: They are entirely willing that you should answer; you are at liberty to do so if you choose; the prosecuting witness is willing that you should answer.
“Q. State whether you had any intercourse with her during 1887. A. I decline to answer.
“ Q. Why do you decline to answer? A. I decline to answer for the reason that it might render me liable to a criminal prosecution.
“Q,. (By the Court): Are you a married man? A. No, sir.
“The Court: It is your privilege to refuse to answer, if you see fit to do so. The woman is willing you should answer, but it is for you' to say whether you will or not; you are not obliged to do so.
“Q,. I will ask you again to state whether you had sexual intercourse with the prosecuting witness during the month of May, 1887. A. I decline to answer.
“Mr. Hutchings: If the court pleases, I insist upon his being required to answer that question.
“The Court: I shall not require him to answer. I think it would be a violation of his constitutional privilege; I think it would be such error as would reverse the case most certainly. I may be wrong, and if I am, I may be set right; but, looking at it as I do now, I will overrule the motion.”
The right of a witness in such a case as this has been stated:
“A witness cannot be compelled to answer any question the answering of which may expose, or tend to expose, him to a criminal charge, or to any kind of punishment. He is exempted by his privilege from answering not only what will criminate him directly, but also what has any tendency to criminate him; and the reason is, because otherwise question might be put after question, and though no single question may be asked which directly criminates, yet enough might be got from him by successive questions whereon to found against him a criminal charge.” (2 Phil. Ev. 930; 1 Greenl. Ev., §451; Whar. Cr. Ev., §463.)
The rule, as we understand it, is to require the witness to answer when it is apparent to the court that an answer would not interfere with his legal right and privilege. If, however, the fact upon which he is interrogated forms but a single link in the chain of evidence which would lead to his conviction, he is protected. And this is a matter for the court to determine, under the facts and circumstances surrounding each case. The supreme court of Indiana stated the rule in the case of Ford v. The State, 29 Ind. 541:
“ Where a witness, called by the defendant in a prosecution for bastardy, declines to answer whether he has had intercourse with the relatrix, on the ground that his .answer would tend to criminate himself, the court cannot compel an answer, nor can the witness be required to answer questions tending to show that the intercourse, if any, was not under such circumstances as would constitute a crime under the statute.”
The court further holds that —
“After the witness claims his privilege, the defendant may show by other witnesses that the circumstances were such that the act of intercourse would not have been criminal, and when it is thus made clear that the right to be silent does not exist, the witness may be compelled to answer.”
There was no showing of the kind in this case, and the trial court must have been of the opinion that the answer might have exposed the witness to a criminal prosecution. The relatrix was under 21 years of age; hence the answer might have had a tendency to establish the fact that the witness had violated ¶2157 of the General Statutes of 1889, providing for the punishment of persons for obtaining illicit connection under promise of marriage, or ¶ 2369 of the same statute, fixing a penalty for open adultery.
We find no error in the record, and therefore recommend an affirmance of the judgment of the district court.
By the Court: It is so ordered.
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The opinion of the court was delivered by
Johnston, J.:
The validity of the judgment is to be determined from the findings, as none of the testimony has been preserved. From them it appears that the title of the land in controversy was in James Calloway, who died in North Carolina, and the executor of his will, who was vested with full power, sold the land in good faith and for a reasonable price, and accounted for the proceeds of the sale to the estate and heirs of the deceased. The Calloway heirs, without tendering or offering to restore the purchase price of the land, or any part of it, have brought this action to recover the land, contending that the sale was irregular and unauthorized. The will was executed and proved in North Carolina, and the executor, in pursuance of the authority conferred by chapter 102 of the Laws of 1879, brought a copy of it to Kansas and presented it for record in the probate court of Lyon county, where the land was situate. That court determined that it was a duly-authenticated copy of the will which had been executed, proved and admitted to probate according to the laws of North Carolina; that the authentication was in due form of law and entitled to full faith and credit; and, having found these facts, admitted it to record. The plaintiffs contest both the applicability and the validity of the statute mentioned, under which the foreign executor derived authority to sell the land. (Gen. Stat. of 1889, ¶2932.) It is claimed to be inapplicable, because it was enacted after the will had been executed and proved. It provides:
“Whenever, in any will, which heretofore has been or hereafter shall be executed and proved in any state or territory of the United States, power is given to the executor or administrator with the will annexed to sell or convey real estate of the testator, any executor of such will or administrator with the will annexed of the estate of the testator, duly appointed and qualified in any state or territory of the United States in which such will shall have been executed and proved, may sell,” etc.
Counsel for plaintiffs in error contend that “the obvious intent of the legislature was to make the statute operative as to wills already executed but which had not yet taken effect through the demise of the testator and the proving of the will, but not to wills where the testator was already dead, and his will had taken effect by being proved according to law, and all property rights thereunder, or that had passed by descent, had vested. The statute is to be read, ‘which heretofore has been or hereafter shall be executed, and proved/ and not ‘executed and proved.” The language of the statute appears to us to be so plain, and the intention of the legislature so obvious, that there is little room left for interpretation. It is clear that it was intended to apply to all wills which had been executed and proved prior to its enactment, as well as to those which were executed and proved afterwards, and fairly covers the will in controversy.
It is contended that the statute is obnoxious to § 16 of article 2 of the constitution, because the subject of the act is not clearly expressed in its title. The title is: “An act to authorize foreign executors and administrators with the will annexed to convey real estate in pursuance of power contained in the will." It is said that the act relates to executors and administrators in other of the states and territories of the United States, while the title indicates executors and administrators of other nations. The word “foreign" is frequently used as the opposite of “domestic." In the statutes and decisions, the judgments and wills of other states are generally spoken of as foreign judgments and wills. This was the sense in which it was used by the legislature, and as it will admit of a meaning such as was given it by the legislature, and broad enough to include the provisions of the act, it cannot be held invalid. (In re Pinkney, 47 Kas. 89.)
It is argued that it is obnoxious to § 17 of article 2 of the constitution, but we find nothing substantial in the claim, nor in any of the other objections made to the validity of the statute.
It is next contended that the authentication of the will was insufficient, and that therefore the plaintiffs' motion for judgment on the findings should have been allowed. The authentication appears to be substantially correct, but its sufficiency having already been adjudged by a competent tribunal, it is not before us for decision. It appears from the findings that an application was made in the probate court of Lyon county by the executor to have a copy of the will admitted to record in that court, and, upon a hearing duly had, it was found that the will presented was a duly-authenticated copy of the will of James Calloway, deceased; that it had been executed, proved and admitted to probate according to the laws of North Carolina, and that the authentication thereof is in due form of law; it was further found, that the will related to property in Lyon county, Kansas; and upon these findings an order was made that the authenticated copy of the will be admitted to record in that court and duly recorded. The probate court is vested with full power to inquire into the sufficiency of the authentication and to ascertain whether, under the proof offered, the will should be admitted to record. Being vested with jurisdiction, its finding and determination are final, unless corrected upon appeal or proceedings in error, and are not subject to collateral attack.
The statutes provide that the existence of certain facts are necessary before a will executed and proved in another state can be admitted to record in this state. One of the requisite fais, that the copy of such will presented for record shall be duly authenticated. This fact is to be determined upon proof, and the authority to determine it is conferred upon the probate court. (Gen. Stat. 1889, ¶¶ 2932, 7228.) Anything indicating a contrary view in Gemmell v. Wilson, 40 Kas. 764, is not controlling, as in that case the existence of the requisite facts for admission to the record were conceded. Under the statutes, these requisite facts must be determined' by the probate court; and it having exercised the jurisdiction, its determination, although it may have been erroneous, is conclusive upon all interested parties and all courts, until it is reversed or reviewed in some appropriate proceeding. (Stanley v. Morse, 26 Iowa, 454; Roberts v. Flanagan, 32 N. W. Rep. 563); Loring v. Arnold, 8 Atl. Rep. 335; In re Shoenberger’s Estate, 20 id. 1050; Goldtree v. McAlister, 23 Pac. Rep. 208; Dickey v.Vann, 8 South. Rep. 195; Holmes v. Railroad Co., 9 Fed. Rep. 229. See, also, Howbert v. Heyle, 47 Kas. 58; Higgins v. Reed, 48 id. 272.) A duly-authenticated copy of the will having been properly admitted to record, the executor was authorized to sell the property in controversy, and to confer a good title upon the purchaser. We are clearly of opinion that the purchaser from the executor acquired a good title, and that the plaintiffs in error suffered no injustice by reason of the conveyance.
The judgment of the district court will be affirmed.
Horton, C. J., concurring.
Allen, J., not sitting. | [
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The opinion of the court was delivered by
Horton, C. J.:
The Parkinson Sugar Company is, and has been for several years last past, a corporation organized and engaged in the manufacture of sugar and syrup from sorghum cane, at its factory near the city of Fort Scott, in this state. On the south side of its factory building, and attached thereto, the company has a trough or carrier, through which runs an endless chain, used to convey the stalks of sorghum cane into the building, to be subjected to the process of manufacture. This carrier extends south from the building, and is about 150 feet in length. As the sorghum cane is hauled in from the farm and delivered to the sugar company, it is thrown off in a long pile, parallel with, on the west side of, and a few feet from, this carrier. Immediately adjoining the foundation wall under the south side of the building, and about four feet west of the door leading into the building, there is a small cistern, about three feet in diameter, and four and a half feet in depth, constructed and used by the company to receive, and into which is discharged, steam and waste boiling water from the boilers and engines in the factory. On the 10th day of October, 1888, Jesse William Riley, then between 17 and 18 years of age, became an employé of the sugar company, and from that time until the early morning of the 20th of the same month continued to work for the company, principally in carrying the stalks of cane from the long pile and placing them in the carrier. While at work for the company, on the outside of its factory, about 4 o’clock in the morning of October 20, becoming very cold, he asked permission of Wagner, the foreman of the work in. which Riley was engaged, to go into the factory for the purpose of warming himself. Wagner gave the desired permission, and, while attempting to go into the door on the south side of the building, he fell into the uncovered cistern containing the waste boiling water, and was burned and scalded. Subse quently, Jesse William Eiley, by his father and next friend, William Eiley, commenced this action in the court below, alleging in his petition substantially that the sugar company was guilty of gross negligence in the construction and maintaining of the cistern, and that young Eiley, while engaged in its employment, and without any fault or negligence of his own, and without any knowledge of the cistern, fell into the same. Judgment was prayed for on account of the injuries received thereby, in the sum of $10,000. The jtiry returned a verdict in favor of the plaintiff for $1,000, and subsequently judgment was rendered thereon, together with costs. Material errors are alleged, and the more important of them we will refer to.
The jury specially found that young Eiley, “at the time of his injury, was engaged in the line of his duty to his employer.” On the part of the sugar company, it is contended-that the' finding of the jury is contrary to the evidence, because, “when Eiley left his place of work for the purpose of entering the building, he was pursuing his own comfort and pleasure, and had, at most, only the part of a licensee to go to that portion of the premises near the cistern, and that he, as a licensee only, took the risks of accident resulting from the use of the premises in the condition in which they were.” We think the evidence fully sustains the finding of the iury in this matter, because he was permitted by the foreman of the work to go into the factory for the purpose of warming himself. It was about 4 o’clock in the morning. Young Riley was cold. He was as much in line of his employment when going to warm himself as if he were going to the building to take his midnight meal, which he was accustomed to do; or if he had gone upon a call of nature to a water-closet in the building. (Ryan v. Fowler, 24 N. Y. 410; Marshall v. Stewart, 33 Eng. Law & Eq. 1.)
It is ruled that when an employé enters the service of a master he assumes all ordinary hazards incident to such service, and also other perils of which he has knowledge. But, between the master and the ernployé, the master assumes the duty toward the ernployé of exercising reasonable care and diligence to provide the ernployé with a reasonably safe place at which to work; and, where the service required of an ernployé is of a peculiarly dangerous character, it is the duty of the master jto make reasonable provision to protect him from dangers to which he is exposed while engaged in the discharge of his duty. (Railroad Co. v. Holt, 29 Kas. 149; Railroad Co. v. Moore, 31 id. 197; Railroad Co. v. Fox, 31 id. 586; Railroad Co. v. Wagner, 33 id. 660.) Therefore, upon the plaintiff’s petition and the evidence introduced, it was proper for the court below to submit to the jury, whether the sugar company was guilty of negligence in permitting a cistern containing hot water to be uncovered so near the door on the south side of the building; whether young Riley had any knowledge that the cistern was uncovered at the time of the injury, or could, by the exercise of ordinary care, have known of its existence; and whether, when he fell therein, he was in the exercise of ordinary care and diligence on his part.
The serious matter, however, which confronts u's in this case, is the special findings of the jury. The trial court charged the jury that if they found for the plaintiff below, there could not be any recovery for loss of time, as young Riley was a minor, nor for his board, care, nursing, or medical expenses or attendance. The jury specially found that they allowed nothing for loss of time, medical attendance, expenses for nursing and sickness, physical pain, mental suffering, permanent injury, or exemplary damages; yet they specially found “$1,000 as damages for injuries received.” When the special finding of facts is inconsistent with the general verdict, the former controls the latter. (Civil Code, § 287; Railroad Co. v. Maher, 23 Kas. 163.) If any reasonable basis or ground existed upon which the jury could give $1,000 damages for injuries received, in view of the other special findings, it might be said that the special findings were not inconsistent with the general verdict; but the only grounds upon which damages are allowed for personal injuries, in the absence of permanent injury and exemplary damages, are for loss of time and pain or suffering. All of these are eliminated from the general verdict by the special findings of the jury. It is suggested that the damages were allowed for temporary injury, or disability; but temporary injury or disability is no basis for damages unless there is loss of time, or pain, or suffering. The court ruled loss of time out of the case. The jury found nothing for either physical pain or mental suffering. If it be said that the $1,000 damages for injuries received included probable pain and suffering after the trial—in the future, but not in the past—this is a strained and unreasonable construction.
Young Riley was injured on the 20th of October, 1888; both of his legs were badly scalded four or five inches above his knees, and his arm up to the shoulder; he was in bed most of the time until April, 1889; he was attended by two physicians, and one of them continued to visit him to the last part of March. If the jury allowed nothing for pain and suffering from the 20th of October, 1888, to the 25th of October, 1889, the date of the commencement of the trial, it cannot be presumed that they intended to allow $1,000 for the injuries after the return of the verdict. Injury resulting from the acts or omissions of others may consist in some cases of the actual pecuniary loss directly sustained, of the indirect pecuniary loss sustained in consequence of the primary loss; of the physical and mental suffering produced by the act or omission in question; the value of the time consumed in establishing the contested right by process of law, if suit is necessary; the actual expenses incurred, and the sense of wrong or insult in the sufferer’s breast, resulting from fraud, malice, oppression, or willful wrong. (1 Sedgw. Dam., 8th ed., § 37.) Under the charge of the court and the special findings of the jury, there was nothing whereon to base the $1,000 allowed by the general verdict. Physical pain is always regarded as a subject for compensation; this compensation being its pecuniary equiva lent as measured by the jury. Mental suffering with bodily suffering is also a subject for compensation. If young Riley was entitled to any recovery, he should have had compensation for his physical pain and mental suffering during the many months he was confined at his home by his severe injuries.
Counsel for Riley criticise the special questions submitted by the trial court to the jury, and state that they objected to them. No motion for a new trial was made on the part of Riley, and no cross-petition is filed in this court; therefore, we cannot examine at any length, for any good purpose, the criticisms upon the questions submitted. This much, however, may be properly said: The trial court should have refused to submit questions to the jury which had no evidence to warrant them, or which related to points not in dispute, or upon elements of damages wholly withdrawn from the jury by the charge. Therefore, the questions about loss of time, expenses for medical attendance and nursing, ought never to have gone to the jury. These unnecessary questions undoubtedly confused and troubled the jury, when they had been specially charged not to allow any damages implied thereby. Being thus confused and possibly misled, it is not strange that the jury answered inconsistently. The trial court ought to have had the special findings corrected or explained before the jury were discharged. When physical pain is established, such pain and mental suffering are so clo3ely connected that a single finding as to the damages allowed therefor is all that is necessary. This court said, in Morrow v. Comm’rs of Saline Co., 21 Kas. 484, that “the main object of special questions is to bring out the various facts separately, in order to enable the court to apply the law accurately, and to guard against any misapplication of the law by the jury.”
(See, also, Wyandotte v. Gibson, 25 Kas. 236; Foster v. Turner, 31 id. 58; Fowler v. Hoffman, 31 Mich. 215; Davis v. Farmington, 42 Wis. 425.)
The special findings of the jury being in conflict with each other and also inconsistent with the general verdict, no judg ment can be entered thereon by this court. The judgment of the court below, however, must be reversed on account of the conflicting special findings and the inconsistency between such findings and the general verdict, and the cause remanded for a new trial.
All the Justices concurring. | [
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Opinion by
Green, C.:
Commissioners duly appointed to condemn a right-of-way over a public highway made the following report as to the land of the defendant in error:
“ Probable name of owner, W. H. Hoffman; description of land over which the road is located, west half of northeast quarter section 5, township 14, range 2 west; amount of land taken, 1.02 acres; value of land taken, $1; total, $1; all of the land lying within 40 feet of the right-of-way of the Union Pacific Railroad Company, on the south side of the Union Pacific railroad, and used as a public road.”
Hoffman appealed from this award to the district court of Saline county. It was admitted upon the trial that 1.02 acres were taken by the railroad company. In the examination of one of the witnesses, the following questions were asked and answers given:
“Q,ues. Do you know the value of the 1.02 acres of land occupied by the public highway prior to the condemnation of the right-of-way for this railroad — what it was worth, taken in connection with the farm, and considering that it was burdened with an easement or right of the public to use it as a public or county highway?
[Objection, as incompetent, irrelevant, and immaterial. Objection overruled, defendant excepting.]
“Q. And taking into consideration also the purpose for which that farm was used? [Same objection, ruling, and exception.] A. Yes, sir.
“Q. You may state what it was worth. [Same objection, ruling} and exception.] A. It was worth $30 per acre.
“Q. You may state, if you know, what that same acre and two-hundredths was worth immediately after the railroad condemned it for its right-of-way, taking into consideration that the railroad was constructed at that time as it is at the present time? [Same objection, ruling, and exception.] A. It was worth nothing.”
We are of the opinion that the questions complained of are subject to criticism, but are not prepared to say that they come within the rule laid down in the case of C. K. & W. Rld. Co. v. Woodward, 48 Kas. 599. The inquiry ordinarily should be made as to the market value of the property before and after the condemnation proceedings were had. In this case the damage was the additional burden imposed by the construction and operation of a railroad over the highway. If this was a damage to the farm, the measure of such damage would be the difference in the value of the farm before and after the construction of the road. Where the fee of the highway is in the owner, as in this case, the measure of damage is the same as in other cases of partial taking; that is, the value of the land taken subject to the easement for the highway, and damages to the remainder of the land by reason of taking a part for railroad purposes. The inquiry should have been made as to the value of the land actually occupied by the railroad, taking into consideration the fact that the public had a right thereon for a highway. This was not embraced in the last question. We do not, however, regard this as sufficient error to reverse this case.
The following evidence was given by the plaintiff, over the objection of the defendant:
“ Ques. After the location, about the 16th of September, taking into consideration that the railroads were built at that time as they are now, with that fence along the south side, and the gate, and no crossing there over the Santa Eé, what, in your judgment, was the market value of the place at that time? [Objection, as incompetent, irrelevant, and immaterial, and for the reason that it includes any damage that may be occasioned by the location, construction and operation of the Chicago, Kansas & Nebraska railroad. Objection overruled; to which ruling and decision of the court the defendant excepted.] Ans. I do not think it would be worth more than $72 or $73 per acre — say $73 per acre.”
Upon this feature of the case the court instructed the jury as follows:
“If you find from the evidence that the Chicago, Kansas & Nebraska Railway Company built its railroad upon defendant’s right-of-way through the plaintiff’s farm, without the plaintiff’s Consent, or by any right acquired by condemnation proceedings, and if you further find that said railroad was built upon such right-of-way with the defendant’s consent, then the defendant is liable to the plaintiff in damages, the same as though the defendant had built and operated said railroad itself.”
The court refused the following instruction requested by the defendant:
“The plaintiff is not entitled to recover in this ease for any damage to his land resulting from the location and operation of the Chicago, Kansas & Nebraska or the Union Pacific railways through his land.”
The admission of the evidence, the giving of the instruction and the refusal to give the instruction requested' were, in our opinion, error. The plaintiff below introduced in evidence a certified copy of the condemnation proceedings in the case of the Chicago, Kansas & Nebraska Railroad Company, doubtless for the purpose of showing that this company had not condemned a right-of-way over the highway through the plaintiff’s land, but this was not evidence that the plaintiff in error was in any way responsible for this or was to respond in damages for the other company. The question to be determined was the damages the plaintiff had sustained by reason of-the construction of a railroad by the plaintiff in error. It was the only issue to be tried. Hoffmau appealed from the award of the commissioners, and the inquiry was thereby limited to the mere matter of damages he had sustained by reason of the location of the railroad of the plaintiff in error, and the inquiry should have been confined to the damages naturally resulting from the construction of the Chicago, Kansas & Western railroad.
We recommend a reversal of the judgment of the district court, and that a new trial be granted.
By the Court: It is so ordered.
All the Justices concurring.
Per Curiam: The questions involved in the case of The Chicago, Kansas & Western Railroad Company v. Thomas Alley, from the district court of Saline county, are substantially the same as those in the case of C. K. & W. Rld. Co. v. Hoffman, just decided. Upon the authority of that ease, the judgment in this case will be reversed,.and remanded to the district court with instructions to grant a new trial. | [
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Opinion by
Strang, C.:
This was a proceeding by injunction, to restrain L. A. Bunker, the Valley State Bank, the National Bank of Commerce, and W. F. Mulkey as assignee, and the First National Bank, from obtaining executions and proceeding against A. J. Lusk, J. F. Greenlee, E. S. Handy, W. E. Hutchinson, and L. C. Welt on, stockholders in the Hutchinson Union Stock-Yards Company, and to restrain the said stockholders from paying to said defendants the several sums claimed by them against said stock-yards company until the rights and priorities of the plaintiff and the defendants seeking said executions be finally determined. The petition was demurred to. The court sustained the demurrer, and the case is brought here by the plaintiff below.
The petition in the court below alleges, that on the 4th day of October, 1890, in the district court of Reno county, the plaintiff obtained a judgment against the defendant, the Hutchinson Union Stock-Yards Company, for the sum of $9,790, which was by the court declared a first lien upon the property of said defendant therein described; and it was ordered that, after the expiration of six months, said property be sold, and the proceeds, after payment of costs, be applied to payment of said judgment; that after the six months stay had expired, the property was sold for $5,000, and the proceeds applied on said judgment, leaving a balance of said judgment unpaid; that after the confirmation of said sale, the plaintiff procured an execution to issue for the remainder of said judgment, which was levied upon other property of said stock-yards company, which was sold, and the proceeds applied upon said judgment, leaving a balance still due of $4,812; that plaintiff then caused another execution to issue on said judgment, which was returned “No property found;” and the plaintiff alleges in his petition that there was no prop erty whereon to levy this last execution; that on the 14th day of August, 1891, and after the return of said execution “No property found,” the plaintiff filed his motion to charge the stockholders of said stock-yards Company with the payment of the balance of said judgment, and served notice thereof upon certain of said stockholders, and that on the 15th day of September, 1891, said .motion was heard by the court, as to the stockholders made defendants in this case, and that the court ordered execution to issue against them; that the defendants, except the defendant the Hutchinson Union StockYards'Company, obtained judgments against said stock-yards company amounting, on the average, to about $2,000 each; that executions on some of them were levied upon the property of the stock-yards company, and the property was appraised at $5,000, but such executions were returned showing the property not sold for want of bidders; that afterwards executions were issued on all of said judgments, each of which was returned, “No property found whereon to levy this execution' sufficient to make the amount of the within judgment; ” that after said executions were so returned, the defendants L. A. Bunker as the People’s State Bank, the Valley .State Bank, and W. F. Mulkey as the National Bank of Commerce, filed motions and caused notices thereof to be served upon a large number of the stockholders of the said stock-yards company to appear and show cause why orders should not be allowed for executions to issue against them, as such stockholders, in favor of said defendants, for the amount of their judgments; that the said L. A. Bunker and the Valley State Bank have obtained orders against certain of the said stockholders, against whom this plaintiff is also proceeding, requiring them to pay over the amount of their liability on the judgments of said L. A. Bunker and the Valley State Bank, and that the defendants the First National Bank and the National Bank of Commerce are also proceeding against said stockholders.
With these allegations in the petition, did the court err in sustaining the demurrer thereto ? We think so. We believe the petition shows the existence of a state of facts, in connec tion with the litigation between the parties seeking to enforce their claims against the Hutchinson Union Stock-Yards Company that authorizes the court to enjoin the defendants from proceeding to enforce their claims against the stockholders of said corporation, and the stockholders themselves from paying over on the judgments of the other defendants herein, until the rights and priorities of the plaintiff and defendants are settled by the court. All the parties to the suit are seeking the enforcement of claims against the stockholders of their common judgment debtor, the Hutchinson Union Stock-Yards Company, and they are all moving under ¶ 1192, General Statutes of 1889. But it seems that the plaintiff proceeded strictly according to the provisions of that paragraph of our statutes, while it is alleged by him that the defendants seeking the enforcement of their claims did not, and that by reason of the fact that the plaintiff followed the directions of the statute, and such defendants did not, the plaintiff has acquired the first lien upon the funds in the hands of the stockholders of the corporation, though the defendants, moving in the same direction, filed their motions first in point of time. Since all the creditors of the defendant the Hutchinson Union Stock-Yards Company are pursuing their claims under the statute, we think they should proceed according to the provisions of such statute. A proper construction of ¶ 1192 requires the judgment creditor of a corporation to pursue the property of said corporation as long as any property thereof can be found upon which an execution can be levied, before resorting to the proceeding therein provided against the stockholders. In other words, the property of the corporation must be exhausted before the creditor may resort to the fund in the hands of the stockholders thereof. In this case the plaintiff, Hoyt, pursued the statute strictly. He sold, on an order of sale, the property of the corporation on which he had a lien, and applied the proceeds on his judgment. He then caused a general execution to issue, and had it levied .upon other property belonging to the corporation, which was sold, and the proceeds applied upon his judgment; and there being a balance still unpaid thereon, he procured still another execution to issue thereon, which was returned “ No property-found.” He then proceeded under the statute to enforce his remedy against the stockholders, but found the other defendants herein, who were also judgment creditors of the corporation, already moving against such stockholders, and that, too, without having first pursued the property of the corporation.
The record shows that some of the defendants obtained executions against the corporation, and levied upon property of the corporation which was appraised at $5,000, but that such executions were returned “Property not sold for want of bidders.” Want of bidders was not a sufficient excuse for an abandonment of the property levied on. It could have been advertised over and offered again, and then, if it was ascertained that the appraisement was too high, the court should have been asked to set aside the appraisement, and order the property reappraised, when it could again have been offered for sale. Nothing of this kind was done. Nor was there any attempt to levy upon the other property of the corporation subsequently levied upon and sold by the plaintiff; but all the defendant judgment creditors of the corporation, without any further pursuit of the corporate property, had executions issued and returned “No property found whereon to levy this execution sufficient to make the amount of the within judgment.” This proceeding not only did not exhaust the property of the corporation, but the return was so indefinite that it does not appear how much might have been made on each of the executions of the said defendants so returned. So far as the returns show, the bulk of each of such executions might have been made out of the corporate property. The plaintiff seems to have been the first creditor to proceed against the stockholders after the corporate property was exhausted, and the only one who pursued such property in good faith. We therefore think his right to the fund in the hands of the stockholders pursued by him should take precedence to the right of the defendants pursuing the same stockholders.
“ Even when not expressly provided by statute, it is the rule, according to the' weight of authority, that corporate creditors, before they can proceed against the shareholders upon their statutory liability, must first exhaust their remedy against the corporation and its assets.” (Cook, Stock and Stockholders, §219.)
“The liability of the stockholders, being secondary, cannot be enforced until the assets of the bank, which is the primary debtor, are exhausted.” (85 Pa. St. 75; Wright v. McCormick, 17 Ohio, 86.)
“After judgment is obtained against the corporation, if the execution issued thereon against its property be returned nullabona, then executions may issue against any of the stockholders to an extent equal in amount to stock owned by him or her, in accordance with the terms of §32, article 4, chapter 23, Comp. Laws 1879.” (Valley Bank v. Sewing Society, 28 Kas. 423.)
“The judgment creditor of an insolvent corporation who first moves, in conformity to the provisions of § 32, chapter 23, Gen. Stat. 1889, to charge a stockholder on his liability under the statute acquires a priority of right to recover against such stockholders with which a creditor subsequently moving cannot rightly interfere.” (Wells v. Robb, 43 Kas. 201.)
It is asserted by counsel for the defendants who have already obtained orders for executions against the stockholders of the corporation, that, if it be true that they had no right to proceed against such stockholders until they had first exhausted the corporate property, yet having done so, and obtained their orders, the plaintiff herein cannot raise the question of their right to do so; that if the stockholders are satisfied the plaintiff must be, and cannot attack their judgments in such collateral manner. We do not think the orders of the court authorizing the issuance of execution against the stockholders of the corporation are such judgments as to render the plaintiff in the case subject, in its full extent, to the rule relating to collateral attacks on judgments. Under the summary process authorized by the statute, the order of the court for execution to issue against stockholders does not possess all the qualities of an ordinary judgment, and is not so conclusive in all respects as such a judgment, and not so conclusive as a judgment obtained against a stockholder under, the last clause of the same paragraph. This court, in Hentig v. James, 22 Kas. 326, on this subject uses the following language:
“ The concluding provision of said § 32 (being the same as ¶ 1192) plainly prescribes that, if the creditor wishes to make the stockholder a judgment debtor, with all that term implies, he may proceed by action, and charge the stockholder with the amount of his judgment against the corporation. . . . We conclude that the proceeding to obtain an execution on a motion is a special proceeding, limited in its character, and does not convey with it all the powers of a judgment. It assimilates to proceedings of garnishment, but allows the execution, instead of an action, to recover the amount to be paid.”
But if such an order partook of all the characteristics of an ordinary judgment, still Hoyt might be said to be in a position to attack and set it aside in this proceeding.
“The rule that a judgment of a court of competent jurisdiction is conclusive until reversed, or in some manner set aside and annulled, and that it cannot be attacked collaterally by evidence tending to show that it was irregular or improperly obtained, only applies to parties and privies to the judgment, who may take proceedings for its reversal, and in no sense extends to strangers.” (12 Vt. 619; 33 N. W. Rep. 834; 28 Me. 222; 30 La. An. 947.)
In the case of Lindensparker v. Lindensparker, 52 Me. 52, it is stated —
“That a stranger whose rights are affected may impeach a judgment collaterally on three grounds: First, that the court rendering it had no jurisdiction of the cause; second, that the judgment was obtained by fraud or collusion; and third, that the judgment was irregularly or unlawfully rendered, to his prejudice.” (See, also, Lyles v. Bolles, 8 S. C. 258, and Boisse v. Dickson, 31 La. An. 741.)
It must certainly be conceded that Hoyt has an interest in the funds in the hands of the stockholders that will be prejudiced if the defendants seeking the same fund are held to be prior in right to him. Again, it is questionable whether, under the summary process of said paragraph, the court has any power to act until an execution issued against the corporation has been returned in accordance therewith.
The statute reads, “If any execution shall have been issued against the property or effects of a corporation, . . . and there cannot be found any property whereon to levy such execution,” then, upon motion in open court in which the judgment against the corporation is pending, and notice to the stockholders to be charged, execution may issue against such stockholders. The record of the judgment against the corporation should show an execution so returned as to show that the corporate property has been exhausted, before the court may entertain the proceeding to order execution against the stockholders. With records in each case showing that the corporate property had not been exhausted, had the court power to entertain motions for orders allowing executions to issue against the stockholders in favor of said defendants? If not, and it seems to us that it had not, then, under Pierce v. Carlton, 12 Ill. 54, orders so allowed are “unauthorized and void,” and the plaintiff can attack them collaterally. In that case the court held, that where the previous proceedings were “unauthorized and void” a garnishee might inquire into the previous proceedings on the attachment. See, also, Insurance Co. v. Cohen, 9 Mo. 421, and Schoppenhart v. Ballman, 21 Ind. 285.
We think the trial court erred in sustaining the demurrer to the petition in this case, and recommend that the case be reversed, and remanded for further proceedings.
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.:
An action of replevin was. begun by the Union Stove & Machine Works against Henry Fisher, to recover a stock of hardware, by which the plaintiff gained possession of goods valued at $1,500. A redelivery bond in the amount of $3,000 was'executed by Henry Bridenstein, M. H. Jenkenson, and J. E. Kein, and thereupon the sheriff returned the property to the defendant Fisher. That action proceeded to judgment, by which it was determined that the Union Stove & Machine Works was entitled to the possession of the stock of hardware, and, if a return thereof could not be had, to the value of the same, which was found to be $975. Subsequently this action was brought upon the redelivery bond, alleging that Fisher failed to return the goods, or any part of the same, but that he had paid upon the jndgment $381.30, and that there was still due and unpaid the sum of $593.70, for which judgment was asked. The defendant answered that the judgment had been fully satisfied, and that, after the judgment in the replevin action, Fisher had turned over a stock of goods, which had been accepted by the plaintiff as a full settlement of its claim against Fisher and the defendants in this action. A trial was had with a jury, and testimony was offered in behalf of both the plaintiff and the defendants. When the testimony was submitted, the court took the case from the jury, and directed a verdict in favor of the defendants. This ruling and action is the principal cause of complaint here.
It appears that, after the stock of goods was returned by the sheriff to Fisher, he continued in the retail business, and sold many of the goods which were returned to him and were mentioned in the redelivery bond. Other goods were purchased by him, and he contends that when the judgment in the replevin action was entered the stock on hand was as valuable as the stock that was returned to him by the sheriff. After judgment was given in the replevin action and an order or execution was placed in the hands of the sheriff, the stock which Fisher had on hand was turned over to the plaintiff in the presence of the sureties on the bond, and there was indorsed on the writ held by the sheriff a credit of $381.30. The defendants contended, and offered proof to show, that the stock of goods had been kept up and was of the same value at the time of delivery as when returned by the sheriff; and further, that the plaintiff accepted the same as the full equivalent in value of those mentioned in the bond, and discharged them from liability.
If there had been no contrary proof, no liability upon the redelivery bond would have been shown, and the ruling of the court in taking the case from the jury and directing a verdict for the defendants could have been sustained. The sureties had bound themselves that they would deliver the specific property named in the bond to the plaintiff if such delivery was adjudged, and that they would pay all costs and damages that might be awarded against the defendant. A return of the specified property to the plaintiff was adjudged, and to satisfy the conditions of the bond they were required to return the identical property named in the bond. However, if the plaintiff accepted the stock of goods which Fisher had on hand when the judgment was rendered as the equivalent of those returned, and as a full satisfaction of its claim against him, the sureties would be released from liability.
The difficulty, however, in sustaining the ruling of the court is, that testimony was offered by plaintiff tending to show that the goods turned over to plaintiff were accepted only as a partial satisfaction and payment of the judgment. There is proof to the effect that Fisher and the bondsmen agreed that the goods on hand were only of the value of $400, and that that amount was to be credited on the amount of $975. All of the parties in interest appear to have been present when the goods were turned over. Fisher signed an agreement in which it was stipulated that the goods were of the value of $400, and that that amount was to be credited on the judgment against him. At the same time the sureties made a written agreement stipulating that the stock of goods on hand at the time was of the value of $400, and that, if an arrangement was made by which the goods were sold or turned over to the plaintiff, they should be regarded as of the value of $400, and that the making of the arrangement would not in any way release them from liability upon the bond. This latter stipulation was offered in evidence, but was ex- eluded by the court. No reason is seen why it was not admissible in behalf of the plaintiff to show the purposes of the parties and the conditions under which the goods were turned over to the plaintiff. The testimony offered by plaintiff clearly tends to establish a liability on the part of the defendants to the extent of the difference between the value of the goods turned over to the plaintiff and the ascertained value of those which they agreed should be redelivered in tbe event of an adverse judgment. It may be that the great preponderance of the evidence was in favor of the claim of the defendants; but as there was evidence to establish the plaintiff^ claim, the case should have gone to the jury, as they are the exclusive judges of the weight of the testimony. (Sullivan v. Insurance Co., 34 Kas. 170.)
The judgment will be reversed, and the cause remanded for another trial.
All the Justices concurring. | [
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Per Curiam:
In accordance with the stipulation on file in this court, the decision in each and all the foregoing cases from Kingman district court will be the same as in the case of National Bank v. Gerson, No. 6539, just decided. | [
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The opinion of the court was delivered by
Johnston, J.:
The first point presented for decision is, that a demand was á prerequisite to the maintenance of the action, and that none was made. Proof of demand and refusal was not required. The findings show that the claim of title by the assignee was wholly inconsistent with the right of possession claimed by Jenkins. It appears that he knew all about the Jenkins mortgage, and that, after the assignment was made, an agent of hers complained of the action of the assignee, and then told him that Jenkins wanted the property. The assignee not only asserted a claim inconsistent with the right of possession of Jenkins, but in his answer he alleged title in himself, and that Jenkins had no valid claim against the property. Under these circumstances, the district court rightly held that proof of demand and refusal was unnecessary. (Shoemaker v. Simpson, 16 Kas. 43; Dickson v. Randal, 19 id. 212; Raper v. Harrison, 37 id. 243; Bank v. Bank, 46 id. 378; Cobbey, Repl., §§ 447-450; Wells, Repl., § 374.)
The invalidity of the chattel mortgage given by Dinklage to Jenkins is the next contention of the plaintiff in error. It was executed on March 2, 1889, upon property described as follows: “All his stock of confectionery, goods of all kinds, show cases, fixtures, tools, etc., situated at 207 Market street, in the city of Fort Scott, Kas.” It was not placed upon record, however, for more than five months after its execution, nor until about 30 minutes before the assignment was made. It contained the following provision: “Mortgagor to have the right to sell goods in the regular course of business, but to replace goods sold with new stock, and this mortgage is intended to cover goods bought to replace those sold in course of business.” There was no provision in the mortgage with reference to what should be done with the proceeds of the sales, and no requirement was made as to paying the proceeds on the mortgage debt. The stock which he was carrying was valued at about $1,500, and it is shown from the record that he owed at least $1,637.56, all of which indebtedness had accrued subsequent to the date of the mortgage, except the sum of $110. It thus appears that most, if not all, of the stock had been replaced by new goods while the mortgage was outstanding and unrecorded. By withholding the mortgage from record, and failing to take possession of the goods, Jenkins permitted the creditors to deal with Dinklage upon the theory that his property was unincumbered and subject to the payment of their debts. Dinklage was permitted to buy and sell goods as he had previously done, without accounting for the proceeds, or applying them upon the mortgage debt, or any other of his debts. In this way, all the property of Dinklage was tied up and withheld from the creditors, without providing for an accounting of the sales or provision for the payment of any debt. It operated to hinder and delay the creditors in the collection of their debts; and we think, under the facts and circumstances of the case, it rendered the mortgage void as against the creditors of Dinklage. (Leser v. Glaser, 32 Kas. 546; Rathbun v. Berry, 49 id. 735, and cases cited.)
The invalidity of the mortgage is not denied by defendant in error, but it is insisted that that fact is unimportant, for the reason that the assignee takes only such rights in the property as the assignor had at the time of the assignment, and that he cannot question the validity of the mortgage or complain of the acts and doings of the assignor before the assignment was made. May not the assignee defend against the foreclosure of a mortgage which is fraudulent and void ? And can he not protect the property of the estate committed to his trust against all unjust and adverse claims? In a general sense it is true that the assignee derives his title from his assignor, and takes the property as it is found, subject to the equities and incumbrances existing against it. It is also true that the mortgage, although void as to creditors, could not be im peached by the mortgagor who made the assignment. If the assignee obtains all his right, title and authority from the assignor, and represents him alone, then he cannot question the validity of the mortgage. If he succeeds only to the rights of the assignor, and stands in his shoes, he cannot impeach or set aside a conveyance which the assignor could not. There is much diversity of opinion with reference to the position occupied by the assignee, and his right to question a fraudulent conveyance made by the assignor prior to the assignment. In general, it is held that the title obtained by him is derivative, and that, in the absence of statutory power, he will occupy no better position than his assignor, and cannot take or set aside a conveyance made by his debtor on the ground of fraud and invalidity. Under our statute, however, the assignee is not merely a representative of the assignor. The theory of the statute throughout is, that he takes and holds the property as a trustee, for the benefit of the creditors of the assignor. He represents all of the creditors, and the property assigned must be managed and disposed of as the law directs and for the benefit of all. The assignment in the first instance is voluntary, and the assignee appointed is selected by the assignor. After the assignment is made, however, the assignor loses all control of the estate, and no direction or limitation which he may attempt to give or impose will be effective. His selection of an assignee is only a temporary appointment, and the person appointed can exercise no other power than the safe-keeping and control of the property which may come into his hands. A permanent assignee is chosen at once by the creditors themselves. (Gen. Stat. of 1889, ¶¶ 384, 386.) The person so chosen administers thfe trust under the direction of the court and for the benefit of all the creditors. No reservation can be made by the assignor, no preferences are allowed, and any direction of the assignor with reference to the manner of distributing the assets of the estate is inoperative. (Bank v. Sands, 47 Kas. 595.) In Brigham v. Jones, 48 Kas. 165, it is said that—
“The distribution is controlled by the statute, and any pro vision in an assignment inconsistent with the statute must be treated as a nullity. The assignment, however, is not avoided by such a direction, but it inures to the benefit of all the creditors. When the debtors in this instance made an absolute conveyance or assignment of their property to Eastman, their control over the same was ended. Then the statute comes in, and provides, in the interest of equity and justice, that the assignee is the trustee for all the creditors, and requires him to make a pro rata distribution among them. (Gen. Stat. of 1889, ¶ 342.)”
As the representative and trustee of these creditors, it is his duty to protect the estate and defend the property assigned against adverse and unjust claims. If he was bound by the fraudulent mortgages made upon the property by his assignor, he would illy comply with the purpose of his trust, which is a just _pro rata distribution of the estate of the debtor among all his creditors. We think that, under our statute, an assignee, as the representative of the creditors of the debtor, may defend in the interest of the creditors against a mortgage made in fraud of the creditors. (Hanes v. Tiffany, 25 Ohio St. 549; Kilbourne v. Keller, 29 id. 264; Schaller v. Wright, 70 Iowa, 667; Pillsbury v. Kingon, 33 N. J. Eq. 287; Waters v. Dashiell, 1 Md. 455; Tams v. Bullitt, 35 Pa. St. 308; Freeland v. Freeland, 102 Mass. 475; Southard v. Benner, 72 N. Y. 424. See, also, Manufacturing Co. v. Wright, 22 Fed. Rep. 631.)
There are decisions not in harmony with the view that we have taken, but many of them are based upon statutes unlike ours, or in cases where there is no statute making the assignee the representative of the creditors. In some cases it appears to be held that an assignor cannot attack a fraudulent claim or conveyance, but may defend against one, and protect the property against all unjust and fraudulent claims, so that the property may be applied to the payment of the just debts of the assignor. Here, the debtor assigned all of his property, and the statute contemplates that it shall be distributed pro rata among all the creditors. The assignee represents the creditors who became such while the mortgage was withheld from the record and in the pocket of the mortgagee. By the negligence of the mortgagee, these creditors were allowed to deal with the assignor on the theory and faith that there was no incumbrance upon his goods; but when the assignment is made they are confronted with a secret lien, which was uncovered about the time the assignment was made. One of the purposes of our statute making mortgages void that are not forthwith recorded, and where there is no change of possession, is to prevent the setting up of such secret liens and incumbrances as are disclosed in this instance. Not only was the lien a secret one, but by the agreement of the mortgagee the mortgagor was permitted to dispose of his stock in his discretion, and to do as he pleased with the proceeds of the same. He was not required to pay the mortgage debt nor the expenses of sale, nor yet to account to the mortgagor or to anyone else for the money derived from the sale. Clearly this was a fraud, at least as to all creditors who became such after the execution and before the filing of the mortgage; and the assignee, in behalf of the creditors for whom he acts, may dispute the justice and validity of such claims, and defend against them, when set up by the party through whose fault the fraud and invalidity arises. This right of the mortgagor to buy and sell at pleasure without accounting related only to the stock of merchandise, and probably most of the goods in existence when the mortgage was made were not in the stock when the assignment was made. The tools and fixtures, however, were not embraced within this provision, and hence what has been said as to the stock will not apply to them.The ruling of the court, however, that the mortgage being good as between mortgagor and mortgagee, it was also good between the mortgagor and the creditors represented by the assignee, and that the assignee would not be permitted to show fraud in the mortgage, is deemed to be erroneous, and therefore there must be a reversal of the judgment.
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The opinion of the court was delivered by
Johnston, J.:
On January 5,1885, Falk Bros, purchased from the Frick Company an Eclipse steam engine for $1,320, for the price of which they executed three promissory notes in the sum of $440 each, payable, respectively, December 1, 1885, December 1, 1886, and December 1, 1887. It was sold subject to a warranty, in which it was agreed that it was manufactured of good material, of good workmanship, and by proper management would perform well, if the rules and directions furnished by the manufacturers were intelligently followed. If it failed to operate according to the contract, written notice was to be given by the purchasers within 10 days, and reasonable time allowed for the seller to remedy the defects. If any defects were found, the sellers were required to remedy them, and if the fault was in the engine it was to be taken back, and any payments made were to be refunded.
The engine was operated by the purchasers during the years 1885, 1886, and 1887, and the notes due December 1, 1885, and December 1,1886, were paid by the purchasers. Default was made in the payment of the note due December 1, 1887, and on June 14, 1888, action was brought to recover upon that note. The defendants then alleged that the engine was not manufactured of good material and workmanship, and that it was unfit for the purposes for which it was purchased. They alleged that they had sustained damages in the amount of $720, for which they asked judgment. At the trial, the defendants claimed that the engine was defective in two particulars: one that the mud cleats furnished could not be properly fitted on the drive wheels, and another, that the spur pinion did not mesh deep enough in the gear of the machine. For these defects, the jury by their general verdict allowed the defendants $603.25 as damages. In answer to special questions, they stated that they allowed $444.50 for the defect in the spur pinion, and $158.75 on account of the defects in the mud cleats. The testimony is wholly insufficient to sustain these findings. The first two payments were made upon the engine without complaint or the claim of any credits on account of defects in the engine. No notice was given that the pinion was insufficient within the time required by the contract, nor until 1887. It appears that the defect was not discovered until the engine had been used through two threshing seasons. In respect to the mud cleats, it seems that this defect was discovered soon after the purchase of the engine, and an attempt was made to have it repaired. It appears that the holes in the wheels through which the mud cleats were to be fastened to the wheels were too wide apart. A chisel was obtained from the plaintiffs with which some of the holes were widened and about one-half of the cleats were fastened on. Altogether there were 32 holes necessary for fastening the cleats upon the wheels, and the testimony is that these could be drilled for 25 cents each. The limit of expense in remedying this defect would not exceed $20,*and one of the defendants, in estimating the cost of fitting them on the wheels, placed it at $2.50; and yet the jury, upon this testimony, awarded the defendants $158.75.
It is true these cleats were necessary to the successful operation of the engine, and without them it would not perform as well as it should; but the defendants could not, by neglecting to have the repairs made for several years, enhance the damages which they might recover. Damages cannot be awarded on the assumption that the defect is to continue indefinitely.
“It is the duty of a party who has suffered an injury for the nonperformance of a contract to take reasonable measures to make the injury or damages for which he intends to hold the other party liable as light as possible.” (Lumber Co. v. Sutton, 46 Kas. 192; Town Co. v. Leonard, 46 id. 354.)
It was shown that the repair could have been made at the neighboring shop for a trifling expense, and it was the duty of the defendants to have had the repair made at once, and the expense of the repair and any actual loss resulting from having it done, such as the loss of time, was the measure of their recovery. The actual loss shown by any of the testimony, however, is out of all proportion with that allowed by the jury. The testimony in respect to the liability of plaintiffs for the alleged defect in the pinion is not so clear, but if any liability was shown, it was only a fraction of that allowed by the jury. It is very clear that the findings are not sustained by the testimony, and therefore the judgment will be reversed, and the cause remanded for another trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
It is insisted by plaintiffs in error that, as Settle and Keith were dormant partners of the firm of John Y. Benfer, they are liable for the goods ordered during the existence of the partnership. It will be observed that while the goods were ordered during the continuance of the partnership, they were not to be shipped nor delivered until the partnership had expired. By agreement of the parties, the partnership was to be discontinued on the last day of February, 1888, and Benfer ordered the goods in his own name, to be shipped the day after the dissolution of the partnership occurred. It is true, as contended, that the persons who participate in the profits of a trade or business, ostensibly carried on by another, are liable for contracts made and credits given during the existence of the partnership. The credit is not presumed to have been given on the sole and separate responsibility of the ostensible partner, but binds all for whom the partner acts, if done in their business and for their benefit, to the same extent as though the partnership had been open and avowed. Here, however, no goods had been furnished, no sale made, nor was any credit given while the partnership existed.
Particular attention is called to the case of Bromley v. Elliott, 38 N. H. 287, as being on all fours with the case at bar. In that case the goods were furnished and the credit given while the dormant partner was a member of the firm. He received the benefits of the transaction, and, according to all the authorities, was equally liable with the ostensible partner. The distinction in this case is that the goods were not received while Settle and Keith were connected with the partnership, nor was it intended by Benfer that they should be shipped and delivered to the firm. Knowing that the partnership would expire with the month of February, Benfer ordered the goods in his own name, and particularly directed that they should not be shipped to him until the 1st of March, after the expiration of the partnership. It was evidently his intention that no sale or shipment would be made to the firm, and that delivery would be purposely deferred until he would have absolute control of the business. No benefits were received by Settle and Keith from the transaction, nor was there any credit given to the firm for these goods while they were members of it. A dormant partner when discovered is liable to the same extent as an ostensible partner, but no further, and if the partnership had been open and avowed in this case, and its duration known, and Benfer had ordered goods in his own name to be shipped and delivered after the dissolution of the partnership, Settle and Keith would not have been liable for the value of the same. Judge Story, in speaking of the liability of dormant partners, remarks that—
“ Of course, the retiring partner is not by his retirement exonerated from the prior debts and, liabilities of the firm. In the first place, then, a dormant partner is not liable for any debts or other contracts of the firm, except for those which are contracted during the period that he remains a dormant partner. Upon his retirement, his liability ceases, as it began, dejiire, only with his accession to the firm. The reason is that no credit is, in fact, in such case given to the dormant partner. His liability is created by operation of law, independent of his intention, from his mere participation in the profits of the business; and therefore it ceases by operation of law, as soon as such participation in the profits ceases, whether notice of his retirement be given or not.” (Story, Part., § 159.) .See, also, Pars. Part. (3d ed.), p. 451.
Here no liability was created until Settle and Keith had retired from the firm. The goods never came into the possession of the firm, nor was it the purpose that they should. They were sold to Benfer and came into his individual possession as his own property, and he sold them as such. We think the court correctly held that he alone was liable for the price of the same.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
On the 15th day of August, 1888, F. A. Waddle recovered a judgment before W. W. Warren, a justice of the peace of Franklin county, against the Pomona Creamery Company, for the sum of $260.17, and $6.25 costs. On the 3d day of November following, said judgment was duly assigned to the plaintiff in error, R. E. Porter, who commenced this action to enforce payment of said judgment against certain stockholders of the creamery company, that being a corporation organized under the laws of this state. John H. Whetstone, one of the corporators and one of the defendants, filed an answer in which it was alleged —
“That in a certain action pending in this court, wherein the said F. A. Waddle was plaintiff and jjhe] Whetstone was a defendant, it was, by the judgment of this court, on April 22, 1887, duly and solemnly adjudged aud determined that this defendant was not a stockholder in the said corporation known as the Pomona Creamery Company; all of which at full' length appears by reference to said judgment in said cause, found on page 444, journal ‘OF of the records of this court, hereby made a part of this pleading. The defendant Whetstone avers that said judgment is a full, complete and final adjudication of all and singular the issues in this cause between himself and the plaintiff.”
The reply was a general denial. At the trial the court made special findings of fact, and stated certain conclusions of law, as follows:
“findings of fact.
“1. On October 24, 1883, the several defendants in this action, together with several other citizens of this county, signed a written contract or proposition with John W. Hall & Co., of Iowa, whereby said Hall & Co. proposed to erect and put in operation a creamery at Pomona, of a certain capacity, and said subscribers agreed to pay therefor the sums set opposite their names; and when $5,800 should be subscribed the creamery to be erected in 120 days thereafter, and the subscribers then to incorporate under the laws of Kansas, fixing the capital stock at $6,800, to be divided into 136 shares of $50 each, Hall & Co. to have $5,800 in money for the creamery, and 20 shares of stock therein, to be issued to them for superintending the work. Said writing further provided, that ‘ in the articles of incorporation and in the by-laws thereof no assessment shall be made upon the stockholders for the indebtedness of the same, except to pay Hall & Co., as above specified. Neither shall the private property of said stockholders be liable for such subsequent indebtedness.’ It was further provided in said writing, ‘ that after said organization is completed, and said amount paid to Hall & Co., said corporation shall issue stock to each of the above-mentioned subscribers to the amount of his subcription hereto annexed; also issue 20 shares of stock to said Hall & Co., as full payment for superintending the manufacturing and marketing of the butter above mentioned.’ The defendants subscribed said paper as follows:
Amount
Names. P. O. address. subscribed..
L. Altman....................... Ottawa..................... <$100
J. Patton....................... Pomona.................... 100
E. A. Rice....................... Ransomville................ 300
J. H. Scoville.................... Pomona.................... 100
A. H. Sellers..................... “ 100
Philip Bledsoe.................. “ 100
Morg. Wickham................. " 200
J. 3. Whetstone.................. “ 200
3. H. Whetstone, per orders....... “ 750
“The paper was similarly subscribed by several others who are not made parties.
“2. In pursuance of said contract and proposition, John W. Hall & Co. erected and put in operation said creamery about March 1,1884, and about the same time said subscriptions were collected, to the amount of $5,800, and paid over to Hall & Co., except $250, which was never collected, being part of the $750 so subscribed by J. H. Whetstone, ‘per orders,’ which is hereafter again referred to.
“3. On January 1, 1884, 10 of said subscribers executed and acknowledged a charter for said ‘Pomona Creamery Company,’ and caused the same to be filed in the office of the secretary of state, as provided by law, whereby they undertook to, and did, become incorporated by said name under the laws of Kansas, as contemplated in said, contract or proposition referred to in the first finding; a copy of said charter, marked ‘A,’ is attached to the answer herein.
“4. After the filing of said charter certificates of stock were duly issued to said defendants and other subscribers thereto, as provided in said original contract, for the amounts so subscribed, except said J. H. Whetstone, which were duly paid in full by said defendants, and, thereupon, they became and were stockholders therein, holding paid-up stock for the amounts specified in their subscriptions, as stated in the first finding, and have ever since continued to and still do hold said stock.
“5. The subscription of J. H. Whetstone for $750 was made by him and understood by the other subscribers to be for other parties, and afterward $500 of said amount was taken and stock therefor issued to C. W. and O. L. Parkinson; but the balance thereof, to'wit, $250, was never taken by anyone, and never issued.
“ 6. Regular books were kept, showing the transactions of said corporation, and its board of directors, and the names of its stockholders and amounts of stock held. The corporation engaged in the business named in its charter and proposed in said original agreement, and continued therein from the spring of 1884 down to October 1, 1885, when it suspended business, and since that time has failed to resume its usual and ordinary business, and had wholly suspended business for more than one year prior to the commencement of this action.
“7. One week prior to June 1, 1885, the secretary of said corporation, by order of its president, and as provided by the by-laws, gave to each stockholder therein, including the defendants, a notice of a special meeting to be held at the creamery office, in Pomona, on June 1, 1885, for the purpose of changing the articles of incorporation. This notice was given by mail to each stockholder, by posting in three public places in Franklin county, and by advertisement in the Pomona Enterprise, a newspaper published at Pomona, and was in conformity to a by-law of the corporation providing for special meetings and the notice therefdr. Stockholders were present and acting at such meeting representing 79 shares of the capital stock. None of these defendants were present at such meeting. Prior to the call for the meeting, the 20 shares issued to Hall & Co. had been surrendered to the corporation and canceled, and the certificates burned. This was done in pursuance to a resolution of the stockholders at a stockholders’ meeting, authorizing any holders of stock to so surrender the same and have it canceled. The stock outstanding, excluding said Hall stock, on June 1, 1885,'was $5,350.
“8. At such special meeting of June 1, 1885, it was voted to adopt the second or amended charter, which had been executed May 18, 1885, by six of the original corporators, and thereupon- it was duly filed with the secretary of state. A copy of this amended charter is attached to the answer herein, marked ‘B.’ This was adopted in pursuance to the advice of counsel, for the reasons specified in the preamble thereto, and was intended as an amended charter for the same corporation, and was not intended to be the charter of a new corporation. The corporation continued to transact the same business, with the same property, using the same books and records, under the direction of the same officers, and with the same objects and purposes, and pursuing the same methods as before. On the day such amended charter was adopted, it was voted to execute a mortgage upon the creamery to certain stockholders to secure them for liabilities assumed as indorsers of the corporation paper, which mortgage was accordingly executed, and afterward foreclosed in this court.
“9. The defendants Patton, Scoville, Wickham and J. J. Whetstone traded with said corporation, delivered milk at the creamery and accepted checks therefor drawn by its treasurer after the change in said charter had been made, but none of the defendants had any actual knowledge of said change after it had been made until this suit was brought.
“ 10. In the month of January, 1886, the several judgment creditors mentioned in the petition duly recovered judgments before a justice of the peace of this county for the several sums, with costs, specified in the petition, whereof abstracts were duly filed and judgments docketed thereon in this court, as provided by law, and as alleged in the petition. After-wards, and on August 16, 1886, said judgments were, by the judgment creditors therein, severally duly assigned in writing, absolute in form, to the plaintiff. Cotemporaneous with such written assignments, it was agreed between the plaintiff (who is an attorney at law of this court) that he should proceed to collect said judgments in his own name', and when collected pay to said several judgment creditors 50 per cent, of the amount collected on each judgment, they, the judgment creditors, then advancing to plaintiff $30 as indemnity against costs. All the claims upon which said judgments were rendered accrued after said amended charter was adopted and filed.
“11. There is now due to the plaintiff, on the several judg ments so assigned to him, the sum of $477.25, debt, and $329.95, costs accrued upon said judgments, amounting, all together, to the sum of $807.20.
“12. None of the defendants have paid into the corporation, or for its use, anything more than the amount of their said stock subscriptions. Said J. J. Whetstone has, however, purchased several open accounts against the corporation, and holds the same by assignment, amounting to the sum of $110. He has, also, since the commencement of this action, had assigned to him a judgment against the corporation for $200, rendered in the foreclosure suit upon the mortgage referred to in the eighth finding. The corporation also owes the defendants, Scoville, $15, and Morg. Wickham, $24, balances due for milk furnished by them since June 1, 1885.”
“conclusions op law.
“1. The plaintiff may maintain this action, as he has undertaken to do, and that the defense of champerty cannot be sustained.
“2. That the corporation as organized under said charter ‘A.’ is the same corporation afterward continuing business under charter ‘B/ the last-named charter being an amendment merely of the former, and the liability of the stockholders remains the same.
“3. That by the provisions of §40 of the act concerning private corporations, as amended in 1883, the said corporation must be deemed dissolved at the commencement of this action, for the purpose of enabling creditors to enforce the individual liability of stockholders therein.
“4. That the several defendants named below are liable herein to an amount equal to the capital stock held by them respectively, to wit:
L. Altman, to the amount of................................. $100
J. P. Patton, to the amount of................................. 100
E. A. Bice, to the amount of................................... 300
J. H. Scoville, to the amount of............................... 100
A. H. Sellers, to the amount of................................100
P. Bledsoe, to the amount of................................... 100
Morg. Wickham, to the amount of. ........................... 200
J. J. Whetstone, to the amount of.............................. 200
and that the defendant, J. H. Whetstone, is not liable.
“5. The plaintiff is entitled to judgment for said sum of $807.20, due upon said judgments. The said several defendants to be released upon paying the amount of their respective liability, and when sufficient is paid to satisfy amount so due the plaintiff, with interest from this date, and costs of this action, the judgment will be released.
The settled rule is, that Porter, as assignee of the judgment, could have no greater rights in and was as much subject to all the defenses that might or could be made against it, as Waddle, the assignor. He succeeded to whatever rights Waddle had in the judgment by virtue of an assignment of it, and hence is a privy. If the plea of res adjudioata was good against Waddle, the judgment creditor, it is good against Porter, the assignee of the judgment creditor. The judgment that is pleaded as res adjudioata was rendered in an action brought by Waddle against various stockholders of the Pomona Creamery Company, including John H. Whetstone, on judgments in which he had an interest of 50 per cent. He was therefore a real party iu interest, and for that reason could maintain an action in his own name to enforce the stockholders’ liability to pay these judgments. So far as we know, or so far as the record discloses, the judgment on which this action is based was his personal property before he assigned it. He brought the suit in which it was rendered in his own name, and nothing is disclosed that would warrant an inference that he acted in any representative capacity. We think, therefore, that these are the same parties, and that there is identity of quality in the parties; that is to say, we think that Waddle, in both cases, sued in the same right; that he was a real party in interest in both cases, so far as the record of each case discloses.
In the first suit Waddle represented creditors to the extent of 50 per cent, of the value of judgments sought to be enforced by it. But he also represented a personal interest of his own to the extent of 50 per cent, of the amount of the judgments sued on. If he was a mere nominal party, the real ones he represented could not bring a second action against Whetstone; but he was more than nominal: he was one of the real parties in the litigation. We think the plea of res adjudioata was good, and that the trial court was right. The case of Executors of Tate v. Hunter, 3 Strobh. Eq. 139, so largely quoted from in the second chapter of Wells, strongly supports the decision below.
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action of mandamus to compel the board of state canvassers to convene and determine that Joseph Rosenthal has received the greatest number of votes cast in the 121st representative district for member of the house of representatives, and, after having declared him duly elected to that office, to issue to him a certificate. The facts in the case are as follows: Joseph Rosenthal, at the general election held on the 8th of November, 1892, being eligible thereto, was a candidate for the office of member of the house of representatives for the 121st district, being Haskell county, for the term commencing on the second Tuesday of January, 1893. A. W. Stubbs was also a candidate for the position at that election. Upon the face of the returns filed with W. H. Hussey, county clerk of Haskell county, after the election, as prescribed by the statute, Joseph Rosenthal received 156 votes, and A. W. Stubbs 123 only. Subsequently the board of county canvassers of Haskell county duly canvassed the returns in accordance with the face thereof, and such determination was reduced to writing, signed by the commissioners, and attested by the clerk, showing that Joseph Rosenthal had received the highest number of votes for the office of representative. Afterward, the county clerk made out and forwarded to the secretary of state an abstract of the votes for representative of Haskell county; but by accident or design, probably by gross negligence, he transposed in the abstract of votes the figures, so as to show that A. W. Stubbs received 156 votes, and Joseph Rosenthal 123 only. This abstract, certified to by Hussey as county clerk on the 12th day of November, 1892, was sealed up by him in an envelope, indorsed and addressed as required by law, and then transmitted to the secretary of state, who received and filed it in his office on the 16th day of November, 1892.
The state board of canvassers met for the purpose of canvassing the result of the election of November 8, 1892, as prescribed by the statute, on the 28th of November, 1892, and continued in sesssion from day to day until December 1,1892, when, having completed the canvass of all the returns on file with the secretary of state of the November election of 1892, it adjourned without day. The certified abstract of the votes given in Haskell county for representative was examined by the board, and thereon a statement was made by it, showing that A. W. Stubbs had received the greatest number of votes for representative, and was duly elected to that office. A certificate of such determination was ordered by the board, and was subsequently signed and issued. On the 19 th day of December, 1892, about three weeks after the board of state canvassers had discharged its duties and adjourned without day, an envelope addressed to him was received by the sec retary of state, without any indorsement to indicate that the same was an official communication, which contained what purported to be a correct abstract of the votes of Haskell county for representative, showing that Joseph Rosenthal received 156 votes, and A. W. Stubbs 123 only; and attached to the new or corrected returns was an affidavit of the county clerk stating that his former abstract was incorrect and erroneous, and also further stating that the new or supplemental returns were the correct abstract of the votes in Haskell county for representative, cast at the election on the 8th of November, 1892. At the time that the state board canvassed the abstract of the county clerk of the 12th of November, 1892, the members thereof had no notice from Joseph Rosenthal, or anyone else, that the returns were incorrect, or in any way defective. It seems to be conceded in this case that, in canvassing such returns, they acted in good faith. No misconduct is charged. After the supplemental returns were received by the secretary of state, on the 19th day of December, 1892, no request was made, before the commencement of this action, by Joseph Rosenthal, or anyone else, that the board should reconvene or examine the additional returns and affidavit of the county clerk.
It was urged upon the hearing of this case, upon the part of the defendants, that this court has no jurisdiction to inquire into the matters presented, because the constitution of the state ordains that “each house shall be judge of the elections, returns and qualifications of its own members.” This court is not, in a proceeding of this kind, a contest court, and, of course, cannot go behind the returns and hear’ and determine whether Rosenthal or Stubbs received legal or illegal votes, or whether any frauds were committed at the election to the prejudice of either candidate. But this court has jurisdiction in mandamus to control, in certain cases, a canvassing board, whether that board be a township, a city, a county or a state canvassing board. In case the board refuses to issue a certificate of election to the person receiving the highest number of votes, upon a duly-authenticated abstract on file in the office of the secretary of state, and the relief by mandamus is withheld, the party aggrieved can have no remedy whatever to obtain his certificate. The person who has, upon the certified abstract, the greatest number of votes, is entitled to a certificate, and this cannot be awarded by the legislature, or either branch thereof. A certificate of election has some value. It is the prima facie evidence of the election of the person holding it to the office claimed. (The State v. Carney, 3 Kas. 88; The State, ex rel., v. Buckland, 23 id. 259; McCr. Elect., § 509; Cush. Leg. Ass., § 229.) Where a canvassing board wrongfully neglects and refuses to canvass returns which are regular in form, as a general rule, the courts may, by mandamus, compel the board to canvass and declare the result upon the face of the returns; and if a canvass has been wrongfully or improperly made, and the board has adjourned sine die, this court may compel it to reassemble and make a correct canvass of all the returns before it at the time of the first canvass. (Lewis v. Comm’rs of Marshall Co., 16 Kas. 102.)
If a person, upon the face of the returns, is entitled to the certificate of his election, except in special instances, where wrong or injustice will be done, the courts have power to reach the officers composing the delinquent board by writ of mandamus and compel them to action, and, if necessary, may compel them to reconvene and recanvass. Therefore, if there was nothing in this case- but the question of jurisdiction of this court, the plaintiff would be entitled to the relief claimed by him. But it appears in this case, from the records of the board of state canvassers, that the board, on December 1,1892, long before what purported to be corrected returns from Haskell county were filed with the secretary of state, had completed its labors, declared the result against the plaintiff, and finally adjourned. A writ of mandamus “may be issued to compel the performance of any act which the law specially enjoins as a duty resulting from an office, trust, or station.” (Code, § 688.)
“A want of a ‘plain and adequate’ remedy in the ordinary course of the law is an essential prerequisite to the issuance of the writ in every case, but an equally essential prerequisite is an omission on the part of the defendant to perform the apt required of him. The writ, whether alternative or peremptory, must not only show the obligation of the defendant to perform the act, but must also show his omission to perform it.” (The State, ex rel., v. Carney, 3 Kas. 90.)
“ If the board may be compelled to reassemble and canvass the returns of the election, it would seem that it might voluntarily do so. Mandamus is employed to enforce the performance of a duty; and since it is a duty, it certainly may be performed by the officers without the command or compulsion of the court. It is held that mandamus will not lie to compel an officer to do an act which, without its command, it would not have been lawful for him to do.” (The State, ex rel., v. Comm’rs of Kearny Co., 42 Kas. 739.)
If the board of state canvassers had discharged all of its duties which the law especially enjoined upon it, before its final adjournment on the 1st day of December, 1892, then no writ of mandamus can issue, because there would be the performance of no duty to enforce.
“A canvassing board, having once counted the votes and declared the result according to law, has no power or authority to make a recount. When this duty is once fully performed, it is performed once and forever, au(j canno£ be repeated. To suppose that it could be renewed, that the canvass of one day could be repeated the next, and counter certificates be issued to different contestants as new light or influence was brought to bear upon the mind of the clerk, would render the whole proceeding a farce.” (McCr. Elect., 3d ed., §232; Bowen v. Hixon, 45 Mo. 340; Clark v. Buchanan, 2 Minn. 346; The State v. Donnewirth, 21 Ohio St. 216; The State v. Stewart, 26 id. 216.)
If a canvassing board, having concluded its labors and finally adjourned, has no power or authority to reconvene and recount, the courts, under the provisions of the statute, cannot by mandamus compel the board to reassemble or give it any power so to do. It is, however, contended upon the part of Rosenthal, that as the statute requires the county clerk of Haskell county to make out an abstract of the votes for representative, and, after having been signed and certified to by him, to deliver the same by mail to the secretary of state, and as the first returns were not true, because they incorrectly stated the votes of each of the candidates, no valid abstract was received from Haskell county prior to December 19, 1892, and, therefore, as no true abstract or returns were received, this court may compel the board of state canvassers to reassemble and complete its work by canvassing the later (or supplemental) returns. If no abstract from Haskell county had been received by the secretary of state before the final adjournment of the board, on December 1,1892, and if the state board had had no abstract or returns before it from Haskell county to act upon, it is possible that, under the decision of Lewis v. Comm’rs of Marshall Co., 16 Kas. 102, mandamus would lie, upon the ground that only a partial canvass had been made. But that is not this case. An abstract of the votes for a member of the house of representatives, signed and certified by the county clerk, properly indorsed and directed to the secretary of state, was received by him and placed before the state board of canvassers during its proceedings in November. That abstract was incorrect, but it came from the proper officer; it was signed and certified by the proper officer. It was duly authenticated. It was not challenged or objected to. The members of the state b'oard of canvassers had no notice or knowledge, at the time they were considering it, that it was incorrect or defective. Upon the face of the returns, they appeared to be in full compliance with the provisions of the statute. There was nothing in the returns, or in the manner in which they were transmitted or received, to cause suspicion, or to demand any other action thereon than usual and customary in such cases. The state board accepted the returns as truthful, passed upon them as such, and declared the result therefrom. It is well settled that the duties of canvassing officers are purely ministerial, and extend only to the counting up of the votes, and awarding the certificate to the person having the highest number. They have no judicial power. (The State, ex rel., v. Marston, 6 Kas. 524; McCr. Elect., 3d ed., §226.) As was said by Hoar, J., in Luce v. Mayhew, 13 Gray (9 Mass.), 83:
“They are not made a judicial tribunal, nor authorized to decide upon the validity or the fact of the election, in any other mode than by an examination of the ‘returns’ made to them according to law. They are not required or authorized to hear witnesses, or weigh evidence. They have no power to send for persons or papers. If one result appears upon the returns, and another is the real truth of the case, they can only act upon the former. If they have not done their duty, the remedy of the person actually elected to the office is not to be sought in a mandamus. This court has no power to direct public officers to do any more than their duty, or anything different from their duty.”
Considering all the facts and circumstances of this case presented upon the trial, as no fraud, wrong or other official misconduct is imputed to the members of the state board of canvassers, or either of them, in receiving and counting the returns complained of, we must hold that they did not improperly reject any returns, or refuse to canvass any returns. When the board adjourned on the 1st day of December, 1892, the members thereof had fully discharged all of their duties; and it is too late now to say that they can voluntarily, or by compulsion, meet again as canvassers, to examine and pass upon the returns of the election of November, 1892. As a body, the board of state canvassers is functus officio — officially dead. It has no power of resurrection soas to consider the returns of the election of No-vember, 1892, and this court cannot animate its dead body with the breath of life. Not only has its power in the premises ended, but its successors have no authority to reassemble or act again upon the election returns.
If it be said that this leaves Rosenthal without any remedy, and that the law in some way ought to furnish him a remedy for the wrong committed against him, we answer that, if this be true, it is the fault of the legislature, not the fault of the state board of canvassers, nor of the courts. But it is not wholly true. While Rosenthal may not obtain from the state board his certificate, yet he has a remedy before the house of representatives, even if not a complete one. The jurisdiction of each house to decide upon the elections, returns, and qualifications of its own members is clearly given by the constitution and the statutes. That body, with the general consent of its members, can admit him to his seat at once, or, if it so determines, it can delay his admission until full investigation is had of his claims. It may, it is true, act arbitrarily and refuse him his legal rights, but this is hardly probable. This proceeding, if successful, would have only given him the certificate— the prima facie written title to the office. The proceeding in this court is not a contest between Rosenthal and Stubbs, nor can we try the title to the office. The house of representatives has the exclusive power to decide who have been elected members to its body. Rosenthal has already commenced his contest before that tribunal. The house has full and ample jurisdiction over the office—the substance he is seeking—even if it cannot give him a certificate, the paper title. If he has been elected representative, as it seems to be conceded, it should be the wish and desire of every honest and patriotic citizen of the state that the will of the people of his county, as expressed by their ballots, should be carried out, and that, as speedily as possible, he be permitted to occupy his place as representative. No party desiring the support of the good people of the state can, for partisan or political purposes, refuse him his seat merely because the clerk of Haskell county has made a mistake in his abstract or returns. The clerk has attempted to make some reparation by filing with the secretary of state corrected returns, with his affidavit supporting the same. Most certainly, if we saw any way in which this court in this proceeding could properly and in accordance with legal principles grant Rosenthal a certificate, we would gladly do so. Under the limitations of the constitution and the provisions of the statutes, we are powerless. The board of state canvassers, having finally adjourned on December 1, 1892, is powerless, and its successors are equally so. The house of representatives can rectify the serious mistake of the county clerk which has deprived Rosenthal of his certificate. No other tribunal or body can now do so. That the house will act promptly and justly in the premises, we have the fullest confidence.
The peremptory writ of mandamus prayed for will be refused.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action to enjoin the sale or removal of corn which had been grown upon mortgaged premises. In April, 1886, Marcellus S. Updike, who was the owner of the land, mortgaged the same for the sum of $1,800. At the same time he executed a second mortgage for the sum of $180. The mortgage debt was payable in five years, and was to draw interest at the rate of 8 per cent., payable semi-annually. The mortgage provided that in case of default on the part of the mortgagor the mortgage should become absolute, and the holder of the mortgage would be at once entitled to the possession of the premises, and to receive all the rents and profits of the same. Subsequently Updike conveyed the land to one Nicholas Hyatt, and he in turn conveyed the same to one Frank P. Gildersleeve, and afterward, on April 20, 1887, Gildersleeve conveyed the land to the defendant J. J. Barwick. Each of these conveyances was made subsequent to the mortgage which had been given by Updike. Barwick at once took possession of the land, and has continued to occupy the same ever since, either by himself or tenant. No interest was ever paid upon the mortgage debt by any of the owners of the land, and in 1888 an action was begun by the Western Farm Mortgage Company, the owner of the second mortgage, to foreclose the same, and the defendant Barwick and his wife were joined as parties defendant. On December 22, 1888, a personal judgment was obtained against Updike and his wife, and a decree was entered foreclosing the mortgage and ordering the sale of the mortgaged premises, subject to the first mortgage, the sale not to be made until after the expiration of six months. In March, 1889, the defendant Barwick leased the premises for one year, the rental to be one-third of the crops raised thereon. In the succeeding April, the tenant Barwick planted the crop of corn over which this controversy arises. Afterward, on the 9th day of July, 1889, an order of sale was issued in pursuance of the judgment and decree of foreclosure, commanding the sheriff to sell the premises in question, but it made no reference to any growing crops upon the land. In pursuance of this order, the sheriff duly advertised the premises for sale, and sold the same on August 10,1889, to the Missouri Valley Land Company, which sale was confirmed by the district court on August 30, 1889, and the sheriff was directed to execute a deed to the purchaser. On November 21,1889, the sheriff’s deed was executed and delivered. The corn grown upon the premises matured, and became ready for harvesting on August 30, 1889, and at that time the greater part of it was standing in the field and ungathered. On September 1, 1889, the defendants were proceeding to gather and remove the corn when a temporary injunction restraining them was obtained.
The court found “that on the 30th day of August, 1889, the corn on said premises was mature and ready to be harvested ; that it had ceased to draw sustenance from the ground, and the only office performed by the ground was to furnish it a resting place;” and further found, that crops which mature and ripen between the time of sale and confirmation do not pass under the sheriff’s deed, and that the rights of a purchaser át the sheriff’s sale relate back to the time of confirmation, and not prior thereto. In this there was error. It is conceded that the crop in controversy was growing and immature when the sale occurred, and as there was no reservation of the crop at the sale, it passed with the soil to which it was united. (Beckman v. Sikes, 35 Kas. 120, and cases there cited. See, also, Goodwin v. Smith, 49 Kas. 351; 31 Pac. Rep. 153.) In this state there is no period of redemption given, and the purchaser is required to pay the purchase money at the time of the sale. His right to a conveyance of the premises is obtained by virtue of the sale, and when the conveyance is made it relates back, not to the confirmation, but to the sale itself. It is true the proceedings under the order of sale were not perfected until the court had examined them and sanctioned the sale, but when the confirmation occurs, and the deed is issued, they relate back to the date of the sale, and entitle the purchaser to the crops which were then unripe and growing upon the premises. (Galbreath v. Drought, 29 Kas. 711; Farlin v. Sook, 30 id. 402; Emerson v. Sansome, 41 Cal. 552; Frink v. Roe, 70 id. 296; Walker v. Hills, 22 N. J. Eq. 514; Morse v. Savings Bank, 20 Atl. Rep. 961; Ruggles v. National Bank, 43 Mich. 192; Insurance Co. v. Bigler, 79 N. Y. 568; 2 Jones, Mortg., §1658.)
Upon the facts found by the court, the Missouri Valley Land Company acquired a right to the crops in controversy, and hence the judgment of the court will be reversed, and the cause remanded with directions to enter judgment upon the findings in favor of that company.
All the Justices concurring. | [
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Opinion by
Strang, C.:
The plaintiff alleges that on the 16th day of September, 1887, through his agent, one S. Palmer, at Medicine Lodge, Kas., he sold to D. E. Sheldon and his wife a piano; that he received from them an organ, valued at $60, and $40 cash, as part payment therefor, leaving a balance of $200, for which he was to have the notes of said Sheldon and wife, payable $25 each quarter, until the whole amount was paid; that he delivered to the Sheldons, at their house in Medicine Lodge, the piano, and received the •organ and the $40 in cash, but did not then have the notes prepared; that soon afterward he prepared the notes and called on Sheldon 'to have them signed, when Sheldon informed him that he wanted to make his wife a present of the piano, and therefore did not want her to sign the notes, but would give notes signed by the firm of which he was a member. To that proposition, Palmer replied that he could not do that without the consent of the plaintiff; that he would take such notes, refer them to the plaintiff, with explanation, and, if satisfactory to him, all right; otherwise he would require Frances Sheldon to sign them. The notes were sent to the plaintiff, and he refused to accept them, and they were returned to Palmer, to be signed by Frances Sheldon. When presented to her she refused to sign the notes, but said she would pay them, and refused to surrender the piano. The defendants claim that the piano was sold to the firm of Ramsey & Sheldon; that the firm of Ramsey & Sheldon had in their possession and using a considerable sum of money belonging to Frances Sheldon; that she wanted a piano, and they purchased the one in question of Palmer, the plaintiff’s agent, and sold it to her.
This action was brought to recover the balance due and unpaid, $175, and interest. An attachment was issued in the case, which was levied upon some town lots, the title to which was in Frances Sheldon. The affidavit for the attachment alleged, among other things, that the debt was fraudulently contracted. The petition was challenged by demurrer, which was overruled. A motion to dissolve the attachment was then heard, and sustained. From the order dissolving the attachment the plaintiff brings the case here for review.
The first reason assigned for the reversal of this case is the alleged action of the court in taking up the motion to dissolve the attachment in the case at chambers, and without reasonable notice to the plaintiff. An examination of the record shows, we think, that' the motion to dissolve was heard in term time by the court, and not by the judge at chambers. When the motion was taken up the first recital in the record shows that the “petition in this case was read to the court.”And the journal entry recites that: “Now on the 2d day of January, 1890, the same being during the November term, 1889, of this court, the motion of the defendant, Frances A. Sheldon, verified by affidavit, heretofore filed by the said defendant herein, to dissolve and discharge the attachment in this action, and to discharge the property of the said defend ant, Frances A. Sheldon, attached herein and held under the order of attachment, is taken up and submitted to the court for trial.” The motion having been heard by the court, the objection that it was taken up by the judge at chambers without reasonable notice falls.
The second assignment of error complained of is, that the court required the plaintiff to introduce evidence to sustain his attachment when there had been no affidavit filed by the defendant traversing the grounds of the attachment as set forth in the plaintiff’s affidavit. The objection made, as shown by the record, is limited to a consideration of the motion by the court, because no such affidavit had been filed. The defendant had a right to have the motion taken up and considered by the court without such affidavit, on a simple denial of the grounds for the attachment laid in the attachment affidavit. On the bearing of the motion to dissolve an attachment, if the defendant desires to put the plaintiff upon proof to sustain his attachment by an affirmative showing, he can do so by denying the grounds for attachment as laid in the attachment affidavit under oath. The record does not show that the court required the plaintiff to assume the burden of proof on the hearing of the motion, nor does it show any objection on the part of the plaintiff to proceeding in that manner, and of course no exception to any ruling thereon. The plaintiff objected to the motion being taken up for hearing because there was no denial under oath, and when the court ruled against him on that point, he saved an exception, but immediately assumed, without objection, the burden of proof, by proceeding with his evidence in support of the grounds laid for his attachment.
The third contention of the plaintiff is, that the attachment was based on fraud, and upon the same fraud that the plaintiff’s cause of action was founded — the fraudulent contraction of the debt—and that, therefore, the court erred in entertaining a motion to dissolve before the main action was tried and determined. This position was not well taken. The defendant may at any tinie before judgment, upon rea sonable notice to the plaintiff, move to discharge an attachment, as to the whole or a part of the property attached. (Gen. Stat. of 1889, ¶ 4323; Quinlan v. Danford, 28 Kas. 507.)
It is also alleged that the court erred in discharging the attachment, under the evidence in the case. The testimony was oral. It is decidedly conflicting. This court will not, therefore, undertake to weigh the evidence and say whether the trial court erred in its estimate thereof.
We recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
On the 28th day of April, 1886, one Moses M. Chase and wife sold and conveyed to the plaintiff in error certain lands in Nemaha county, by a general warranty deed, for a consideration of about $8,000, which was duly paid. At the time of the conveyance there was a recorded mortgage on the land in favor of Bartlett Bros, for $300, the validity of which was disputed by Chase. For the purpose of indemnifying the purchaser of the lands against the payment of this mortgage, Chase as principal, and John Aulthouse as security, executed and delivered to the purchaser, Hammond Tarr, the following written instrument:
“Know all men by these presents, that we,' Moses M. Chase as principal, and John Aulthouse as security, are held and finally bound unto Hammond Tarr to the amount of $500, to the payment of which we hereby bind ourselves, our heirs, administrators, and assigns, firmly by these presents, if default be made herein. The condition of the above is such, that whereas, the firm of Bartlett Bros., of St. Joseph, Mo., have put upon the records of Nemaha county, Kansas, a pretended mortgage upon the lands sold by the said Moses M. Chase to the said Hammond Tarr: Now, if the said Moses M. Chase shall institute or defend (within a year) any suit that may be instituted to foreclose said mortgage, and shall pay any amount that may be adjudged, if any, due said Bartlett Bros, thereon, then the above to be void; otherwise, to remain in full force and effect. Witness our hands, this 21st day of May, A. D. 1887.
[Signed] M. M. Chase.
John Aulthouse.”
On the 26th of November, 1888, Bartlett Brothers commenced an action to foreclose their mortgage, and on the 11th day of March, 1889, a judgment for foreclosure was rendered in their favor for $413.15, including costs. This judgment Tarr paid to keep the land from being sold, and on the 15th day of June, 1889, Tarr brought this action on the written contract of indemnity against Aulthouse, the-security. Aulthouse demurred to the petition for the reason that the facts stated therein were not sufficient to constitute a cause of action, the theory of the demurrer being that, as no action had been brought by Bartlett Bros, to foreclose their mortgage within a year from the date of the written instrument, no liability was created against Aulthouse. The trial court sustained the demurrer, and the sole question here for review is the construction given the written contract of indemnity by such ruling. The ruling in effect is, that under its terms a suit to foreclose must have been commenced within a year from the 21st of May, 1887, in order to make Aulthouse liable. This is an erroneous construction. The written instrument under consideration was one executed by Chase as principal and Aulthouse as surety, for the benefit of Tarr. By the express terms of the writing, Chase agreed to do three things: Eirst, he bound himself to institute a suit (within a year) for the purpose of relieving the land of the lien of the mortgage; second, he bound himself to defend any suit instituted (within a year) to foreclose the mortgage; third, he bound himself to pay any amount that might be adjudged due Bartlett Bros. We do not think that the third obligation is limited by the words “within a year,” but if it is, it makes no difference. These three things he agreed to do within a year, according to the construction contended for by defendant in error, and if he did them, or, probably, if the performance of any or all of them had been commenced within the year, then the written obligation to be void; otherwise, to remain in full force and effect. In other words, Chase must act within the year next ensuing after the date of the contract, and must perform one of three conditions in order to absolve Aulthouse from liability. He must commence a suit, he must defend a suit for foreclosure commenced within a year, or he must pay Bartlett Bros., or in some way relieve the land from the burden of the real or apparent lien. This contract was made to indemnify Tarr. A reasonable construction, that accomplishes the evident intention of the parties, must be given the written instrument. The inducements stated in the petition are admitted by the demurrer. But apart from all these considerations, we give the written instrument its natural ■ construction, the only one that it is susceptible of, according to our view, and the result is that we recommend that the judgment be reversed, and the cause remanded, with instructions to overrule the demurrer.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by W. B. Cannon against N. Frankhouser and J. G. Ellis, to recover .the possession of two mares alleged to have been taken on execution as the property of his son, John P. Cannon. The mares were valued at $150, and $50 damages were claimed for the detention thereof. Trial before the court with a jury. A verdict was returned for the plaintiff below for the possession of the property, and $75 were allowed as damages for the detention of the same. Subsequently judgment was rendered thereon, and the defendants below bring the action here for review.
Various errors are alleged concerning the admission, the rejection of evidence and. the giving of instructions. We have examined all of the questions presented and discussed in the briefs, but most of the alleged errors are trivial and wholly unimportant. W. B. Cannon claimed the property under a purchase on the 19th of December, 1888. A written bill of sale of 12 horses and colts, from John P. Cannon to W. B. Cannon, was introduced in evidence, of that date. The amount paid for all this property by W. B. Cannon to John P., as testified to by them, was $800. Seventy-five dollars were paid in cash on the 19th of December, 1888. One hundred and eighty-eight dollars were acknowledged received on account of the payment of a security debt. Two hundred and seventy dollars were paid in labor, and $100 for the keeping of two children one year. On the 31st of December, 1888, $167, the balance due on the bill of sale, were settled with property. It is contended that judgment should have been rendered in favor of Frankhouser, upon the ground that there is no evidence connecting him with the wrongful possession of the goods, or with the transaction in any way. The petition alleged that the property in controversy was seized on the 5th day of February, 1889, by N. Frankhouser, sheriff of Osage county, by virtue of an execution issued out of the district court of that county. Upon the trial, it was admitted by the parties that the property was levied upon by John G. Ellis, acting as deputy sheriff of Osage county. In view of the provisions of §108 of the civil code, taking all allegations of authority as true unless denied upon oath, and the unverified answer filed in this case, and the admission of the parties, we think it may be fairly said that N. Frankhouser was the sheriff, and that J. G. Ellis made the levy as his deputy sheriff. The sheriff is the real party in interest, as the acts of the deputy sheriff levying an execution bind him. (McCracken v. Todd, 1 Kas. 148; Hoisington v. Brakey, 31 id. 560.) In this case, Frankhouser would not be benefited if he were released from the judgment, as Ellis was deputy sheriff only, and Frankhouser would be responsible for any orders to him. The bill of sale from John P. Cannon to W. B. Cannon, of December 19, 1888, was witnessed by Samuel Snow. Snow testified that after it had “just been written down and John Cannon was going away, it was read over to him and he made his mark; that the mark upon the bill of sale presented was his mark, and that he could read a little; that he knew his own name when he saw it written.” His evidence may not have been of much weight or value, but it was competent. It was sought by defendants below to show by John P. Cannon what he did with the $75 after receiving it. He stated “ that he received the money, never returned it to his father, and that he kept it and used it for himself.” It is immaterial what he did with the money after receiving it, if it was received in good faith and not in any way used for the benefit of his father. If any action had been commenced against John P. Cannon for the recovery of money before the purchase of the horses and colts by W. B. Cannon, the date of the commencement of such action ought to have been shown by the records of the justice of the peace or the court where the action was commenced.
One or two of the instructions given by the court are entitled to criticism, but there is so little evidence in the case impeaching the purchase of the property by W. B. Cannon that we do not think the errors in the instructions sufficiently erroneous or misleading to cause any reversal. The amount of damages allowed in the judgment for the detention of the property was $75. The petition asked $50 only; therefore, $25 of the judgment is excessive, and without authority under the pleadings or issues. (Loper v. The State, 48 Kas. 540.) The judgment must be modified. The case will be remanded to the court below, with direction to deduct $25 from the judgment heretofore rendered. The residue of the judgment is affirmed. The costs in this court will be divided.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
On March 17, 1891, Charles L. Botsford and Samuel D. D. Smith recovered a judgment against the plaintiffs in error for $5,426.66, and also an order for the sale of certain attached property. On February 25, 1892, a petition in error was filed in the supreme court, and a summons in error was issued on the same day, directed to the sheriff of Atchison county, for service on the defendants in error. Service was made upon Smith in due time, but no service was obtained upon Botsford until the early part of August, 1892, which was nearly 17 months after the rendition of the judgment in the district court. A motion has been made to dismiss the proceeding in error for the reason that Botsford and Smith had recovered a joint judgment based upon the violation of a contract jointly made by Bots-ford and Smith with the paving company, and that no service has been obtained upon Botsford nor any appearance entered in his behalf until the time for commencing proceedings in error and obtaining a summons had expired. The contract and the judgment recovered thereon are such that Botsford and Smith are both necessary parties to a review.
The absence of a party to a joint judgment who will necessarily be affected by a modification or reversal defeats the jurisdiction of the court, and there can be no review of any part of the judgment. (Ex parte Polster, 10 Kas. 204; Armstrong v. Durland, 11 id. 15; Hodgson v. Billson, 11 id. 357; Bassett v. Woodward, 13 id. 341; Richardson v. McKim, 20 id. 346; Thompson v. Manufacturing Co., 29 id. 480; Browne’s Appeal, 30 id. 331; 1 Pac. Rep. 78; Paper Co. v. Hentig, 31 id. 322; 1 Pac. Rep. 529; McPherson v. Storch, 49 id. 313; 30 Pac. Rep. 480.)
All parties to be affected by the proceedings in error must not only be brought before the court, but all must be brought in by actual or constructive notice before the expiration of the year within which actions may be brought to the supreme court. A proceeding in error must be commenced within one year after the rendition of the judgment or the making of the order complained of, except where the person entitled to the proceeding is under disability. (Civil Code, § 556.) Here there was no actual service upon Botsford until long after the period of limitation had elapsed. If he has not been brought within the jurisdiction of the court by the action previously taken, the motion to dismiss must be allowed. Plaintiff in error meet* this objection by the contention that, under § 20 of the code, a service upon Smith, who was a codefendant and united in interest with Botsford, was a service upon the latter. We think this contention must prevail. The code does not provide in terms when a proceeding in error shall be deemed commenced, but it does provide that, when a proceeding in error is filed, a summons shall be issued and served or publication made as in the commencement of an action. Provision is also made that a service upon the attorney of record in the original case shall be sufficient. (Civil Code, § 544.) Now, as defendants in error may be brought into court as in the commencement of an action, we may look to the provisions of the code with reference to the beginning of an action; and § 20 provides that—
“An action shall be deemed commenced within the meaning of this article as to each defendant at the date of the summons which is served on him or on a eodefendant who is a joint director or otherwise united in interest with him.”
The application of this provision to proceedings in error has not been determined by this court. Possibly the question was in some of the earlier Kansas cases cited herein, but it was not brought to the attention of the court, and has never before received consideration. It was determined in Thompson v. Manufacturing Co., supra, that the latter part of § 20 of the code, which provides what shall be deemed the commencement of an action where an attempt at service has been made, is applicable by analogy to proceedings in error; and no reason is seen why the first clause of the section is not equally applicable. The Ohio code contains a similar provision', and the supreme court of that state has decided that it is applicable by analogy to proceedings in error, and that a service upon one of two codefendants who are united in interest is, so far as the limitation is concerned, deemed a commencement of a proceeding against both. (Buckingham v. Bank, 21 Ohio St. 131; Sidener v. Hawes, 37 id. 532, 544; Secor v. Witter, 39 id. 218; Bank v. Green, 40 id. 438. See, also, Merritt v. Sawyer, 6 Thomp. & C. [N. Y.] 162; Shaw v. Cock, 78 N. Y. 194.)
In holding that the last clause of § 20 was applicable by analogy to proceedings in error, this court cited as an authority the decision of the Ohio supreme court wherein that court distinctly decides that the first clause of the section is equally applicable to such proceedings. We think that ruling is correct, and that § 20 furnishes by analogy a guide for determining when a proceeding in error is to be deemed commenced. Having decided, in Thompson v. Manufacturing Co., supra, that a portion of § 20 applies by analogy, it logically follows that the analogy should be carried a step farther, and that that clause of the section now under consideration shall also be held applicable.
We are referred to Wolf v. Murphy, 21 Neb. 472, and Curten v. Atkinson, 29 id. 612, as authorities against the view which has been taken. These decisions do not reach the question whether a service upon a codefendant who is united in interest with another is sufficient to bring both within the jurisdiction of the court, and probably for the reason that Nebraska has no such statutory provision as is found in § 20 of our code. There is such a unity of interest between Bots-ford and Smith that the service upon Smith was the commencement of the proceeding against Botsford, as well as Smith, and invested the court with jurisdiction over both. The motion to dismiss will therefore be denied.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On the 9th day of February, 1888, Caldwell & Peterson filed a petition for the purpose of settling the priorites of two chattel mortgages upon certain calves, one executed by W. K. Miller to Caldwell & Peterson, to secure the payment of $1,650, dated November 16, 1887, but not filed for record until after the execution of another mortgage by Miller to Neerman, dated December 6, 1887, to secure the payment of an old debt, amounting to $337.50, but filed for record on the day of its execution. The trial court held the Caldwell & Peterson mortgage a first lien on the calves, because Neerman had notice thereof prior to obtaining or accepting the chattel mortgage of December 6, 1887. Neerman’s contention is that there was no evidence to sustain the findings of the trial court.
We have carefully examined all the testimony preserved in the record, in connection with the comments of counsel thereon. In our opinion, we cannot reverse the judgment upon the ground that the findings and judgment were without any support. All the equities of the case favor Caldwell & Peterson. Miller agreed, when he borrowed the money from Caldwell & Peterson, to invest it in the purchase of the calves mortgaged to them. Neerman’s subsequent mortgage was taken to secure $337.50 on account of an old note that Miller had traded for with one Bean. The mortgage of Caldwell & Peterson, of the 16th of November, 1887, was valid against Neerman, who held the subsequent mortgage which was recorded first, if he had notice of the prior unrecorded mortgage at any time before obtaining or accepting a lien on the mortgaged property. Actual notice is as effectual as constructive notice by record as against a subsequent mortgagee. (Gen. Stat. of 1889, ¶3903; Corbin v. Kincaid, 33 Kas. 649; Jones, Ch. Mortg., §317.)
A new trial will not be granted by this court where the evidence is conflicting, if there is enough in the record, taken by itself, to sustain the findings and judgment. It is also the well-settled rule of practice in this court, that in civil cases the findings of a trial court will not be disturbed if there is sufficient evidence to support them. (Railroad Co. v. Kunkel, 17 Kas. 145.)
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
Johnston, J.:
E. H. Sanford brings this proceeding to reverse a judgment rendered against him, and in favor of Henry M. Weeks and Joel P. Weeks, in an action of forcible entry and detainer. The cause was tried in the district court, with a jury, upon the plaintiff’s bill of particulars, the defendants’ answer, and the plaintiff’s reply. When the plaintiff had produced his testimony, the court, on motion of defendants, held it to be insufficient, and directed a verdict in favor of the defendants. Error is assigned on this ruling.
We are unable to reach the question presented by plaintiff. The record brought to this court does not contain a copy of defendants’ answer, nor does it set forth any statement of the substance of the allegations of the answer. It does contain copies of the plaintiff’s bill and reply; and from the latter it appears that an answer was filed, and that plaintiff denied the allegation of certain counts contained in the answer, and further, that he makes no reply to other portions of the answer. We have, therefore, no means of determining what the defendants alleged in the answer, nor how much was admitted by the failure of the plaintiff to reply to a portion of the same. Without a knowledge of what were the issues between the parties, we cannot examine the sufficiency of the evidence. In such a case, full copies of the pleadings are not required, nor is anything more necessary than a succinct statement of the issues between the parties. In the absence of the pleadings and of any statement of the issues in controversy, the questions raised by the plaintiff cannot be considered or determined. (Transportation Co. v. Palmer, 19 Kas. 471; Shumaker v. O’Brien, 19 id. 476; Smith v. Moore, 21 id. 161; Neiswender v. James, 41 id. 463.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
John Stewart brought this action for damages against the plaintiff in error in the court of common pleas of Sedgwick county, Kansas, alleging as a cause of action, that he was, before and at the time of filing said suit, the owner of the southwest quarter of the southeast quarter of section 27, township 29, range 2 west, of Sedgwick. county, Kansas, also the northeast quarter of the southwest quarter of section 27, township 29, range 2 west, of Sedgwick county, Kansas; that the said railroad company, well knowing the premises, did, on the 15th day of April, 1886, and divers other days thereafter, unlawfully and with force break and enter said plaintiff’s above-described close, in said county and state, and make large cuts and ditches thereon, and did cut down and destroy plaintiff’s growing crops, and built, or caused to be built, a railroad track through the above-described lands the entire length thereof, and took possession and still hold a strip of land 200 feet wide the whole length of the first-described piece of land, and a strip of land 200 feet wide about half the length of the second-described piece of land, and a strip of land 100 feet wide across the remaining portion of the second-described piece of land; that Stewart owned the other tracts of improved land adjoining the above-described land; and that, by reason of the unlawful and wrongful acts and doings of the said railroad company in the premises, plaintiff was damaged in the sum of $2,000, for which said plaintiff prayed judgment.
To the petition the railroad company below filed a motion asking the court to require the plaintiff to separately state and number the causes set forth in the petition, to wit: To separately state the cause of action for trespass and damages therefor, and to separately state the cause of action for ejectment as claimed in the petition, which said motion was by the court sustained. The said plaintiff below filed his amended petition in said cause on the 26th day of February, 1887, in which the order of the court was complied with, by stating the causes of action as required; the said amended petition being substantially the same as the original petition, so far as the land in question is concerned, and the unlawful and wrongful entry upon the same by said defendant, and claiming damages in the sum of $2,000, as claimed in the original petition for the entry upon said land as therein described, and for the permanent appropriation and detention of the same from the plaintiff. The railroad company filed an answer and cross petition, in which it set up, first, a general denial; second, that on March 27, 1886, plaintiff executed and delivered to the Le Roy & Western Railroad Company a certain instrument in writing, a copy of which is attached, marked “Exhibit A,” and made a part of the answer; that the Le Roy & Western Railroad Company should construct, or cause to be constructed, its line of railroad across the land on which the trespasses are alleged to have been committed, on or before the 20th day of December, 1886, and that plaintiff should, on demand, by good and sufficient deed of conveyance, sell, assign and transfer to the railroad company a strip of land 50 feet in width on each side of and ¿long the center line of its railroad as then located; that thereupon the railroad company commenced and consolidated, and the consolidated company completed the construction of the railroad on July 1, 1886; that the Le Roy & Western Railroad Company, with other companies, became consolidated under the name of the Chicago, Kansas & Western Railroad Company; that one James Tracy was employed by the plaintiff and the Le Roy & Western Railroad Company in the execution of said instrument, a copy of which is attached, marked “ Exhibit A,” as a scribe in drawing .said instrument; that, by a mistake mutual to the plaintiff and the railroad company, Tracy wrote the words, “the 20th day of April, A. D. 1886,” instead of the 20th day of December, 1886, and left out of the description therein the following: The southwest quarter of the northeast quarter of section 27, township 29, range 2 west,” which mistake was not discovered by the parties thereto until after the construction of the railroad through the premises; that the defendant has an equitable title in the said strip'of land 50 feet in width on each side of the line of railroad as located; that on March 15, 1886, upon the application of the Le Roy & Western Railroad Company, commissioners were appointed to lay out a right-of-way not exceeding 100 feet in width, and that said commissioners duly condemned a right-of-way for the railroad company, and assessed the damages in the sum of $19.95, which amount was deposited with the county treasurer and the report filed, and a copy of the same recorded.
By way of cross petition, the' defendant asks the reformation of the bond, so as to change the date from the 20th day of April, 1886, to the 20th day of December, 1886, and also so as to require the northwest quarter of the southeast quarter of section 27, etc. It stipulates for a right-of-way over the east half of the southwest quarter of section 27, and the northwest quarter of the southeast quarter of said section. Plaintiff filed an amended reply, in which he admitted that the copy of the bond marked “Exhibit A,” attached to the answer, was a copy of the instrument referred to in the defendant’s answer, and also admits the consolidation. It, however, denied the other defenses.
Trial was had before a jury, which returned a verdict for the plaintiff for $842.81. Special interrogatories were answered, as follows:
“ 1. How many acres of land do you find were actually taken by the railway company as alleged in plaintiff’s petition, not including any land covered by condemnation? Ans. 7-36¡$r acres.
“2. Do you allow the plaintiff any damages by reason of the location and construction of that part of the road constructed through the part of the farm in the south half of section 27, and if so, how much? A. Yes; for 41 acres — $90.”
“4. Is the principal element of depreciation by reason of the construction of the road across the premises caused by cutting the pasture south of the railroad off from the stock water and tillable land north of the track? A. No.
“5. If you answer ‘Yes’ to the last question, how much do you find it has depreciated the value of the farm? A. [No answer.]
“6. What do you find was the value of the land actually taken? A. $153.80.”
“10. How much do you find the farm was depreciated in value by the location and construction of the railroad over and across the S.W. \ of the N. E. of 27, on plaintiff’s premises? A. $63.80.
“11. What was the value per acre of the plaintiff’s land south of the track just before the location and construction of the defendant’s railroad across the same as a part of the farm? A.. $20.
“12. What was the value of that part of plaintiff’s farm south of the track just after the location and construction of the railroad across the farm as a part of the farm? A. $1,664.79.
“13. Is it not a fact that the description, the E. \ of the S.W. ‡ and the W. J of the S.E.] of 27, covers all of the railroad on the lands described in plaintiff’s petition? A. Cannot say by above description.
“14. If you answer the last question ‘No,’ state what portion of the defendant’s railroad on plaintiff’s farm is not covered by said description? A. [No answer.]
“15. If you find from the evidence that the defendant, in constructing its embankment through the farm in question, diverted the natural water course from its ordinary channel, thereby causing a pond of water to accumulate north of the track, if you answer ‘Yes’ to the last question, please state how many acres of plaintiff’s farm would be injured by reason of overflowage? A. We do not consider it a natural water course.”
A motion for a new trial was made and overruled.
I. The first contention arises on the construction of the amended petition, but as it is largely controlled by the opinion of this court in the case of W. & W. Rld. Co. v. Fechheimer, 49 Kas. 643 (31 Pac. Rep. 127), .we will not discuss it in detail, but state, in the language of Mr. Justice "Valentine: “The amended petition states a cause of action, probably both for permanently taking and appropriating a portion of her land for railroad purposes, and also for trespasses thereon, although it is not clear;” but this much can be said emphatically, that the case was tried upon the theory, by both sides, that there was a permanent appropriation of the land, the railroad company relying for justification upon the bond for a deed set out in one of its answers. The instructions of the court to the jury were given on this theory. The claim for ejectment in the second count was abandoned. The verdict of the jury shows that they considered only the question of damages arising from the permanent appropriation of the land.
II. Á witness for the plaintiff testified as follows, against the repeated objections of the railroad company:
“Ques. You say you know the market value immediately after the construction of the road? Ans. No; I don’t know it.
“Q. What is your judgment as to the market value?
“Defendant objected, as incompetent, irrelevant, and immaterial, and calling for an opinion.
“Bx the Coubt: See if he knows what damage it was to the land.
“ Q. What damage was done to the land by reason of the construction of the road?
“Defendant objected, as incompetent, irrelevant, and immaterial.
“Overruled; to which the defendant excepted.
“A. I would estimate the value of the damage about $10 per acre to the farm.
“ Defendant objected, as incompetent, irrelevant, and immaterial, and calling for a conclusion and not of fact, and moved that the answer be stricken out and withdrawn from the jury.
“Bx the Coubt: Let it stand. To which ruling the defendant excepts.”
The same was substantially testified to by another witness. Of course the incompetency of the witnesses is shown by their own statements. In the case of C. K. & W. Rld. Co. v. Dill, 41 Kas. 736, in which a witness was permitted to testify that the land was worth one-third less after the appropriation, but who would not testify as to the market value of the land, the court say that the admission of the testimony, although it might be error, was not substantial or material error, because no other witness testified to a less amount of damages. But it is shown by this record that the witness McQuillan, who testified for the plaintiff, placed the damages at $5 per acre, and the witness Eoss, called by the plaintiff, also fixed the damages at $5 per acre. Other witnesses testified to a greater amount of damages than the witnesses whose evidence was objected, to. We conclude, therefore, as a deduction from the decision quoted above, that the evidence of this witness was material and prejudicial, and for this reason recommend a reversal of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
Action to recover the amount specified in the bond of a township treasurer. M. J. Gordon was elected treasurer of El Dorado township, Butler county, in February, 1885. He filed his oath of office and bond, with Ellet and Frazier as sureties, on the 18th day of February, but the bond was .not approved by the board of county commissioners until the 17th day of April, 1885. Gordon acted as treasurer until some time in December, 1886. At the fall election in November, 1886, Adams was elected as treasurer of said township. He filed his oath of office and bond on the 18th day of November, 1886, but his bond was not approved by the board of county commissioners until the 4th day of January, 1887. At a meeting of the township board in the month of October, 1886, a settlement was made with Gordon that showed a balance in favor of the township of $1,350.38. Adams, the succeeding treasurer, testified at the trial that in December, 1886, he made a demand on Gordon to pay over to him the balance due the township; and that subsequently, in January, 1887, he made another demand.
This action was commenced on the 1st day of January, 1892, by the filing of a petition and prceaipe, and summons was served on all of the defendants on the 2d day of January, 1892. Trial was had, and, after the township had introduced its evidence and rested, each of the defendants filed his separate demurrer, claiming that it failed to prove a cause of action in favor of the township against either of the defendants. The court sustained the demurrers. The defendants had pleaded the five-year statute of limitation. The township brings the case here for review.
The controlling question is whether the cause of action alleged in the petition of the township is barred by the five-year statute of limitation. Of course it was the duty of Gordon to pay over the money in his hands belonging to the township to his successor in office as soon as his successor was duly qualified; that is, as soon as he had taken the oath of office and filed his official bond. This he did not do. Adams filed his oath and bond on the 18th day of February, 1886, and on the succeeding 1st day of January, 1887, Adams was induced by Gordon to receipt to him for the full amount found due by the October settlement, to wit, $1,350.38; but of this amount Gordon only paid, at the time the receipt was given, the sum of $400, and made subsequent payments reducing the amount owing to the township to $747.10. The amount of the bond sued upon is $500. Adams had no legal right to receipt for the balance due the township from Gordon, unless it was actually paid in money. It follows from the evidence that the conditions of the bond were violated when the demand was made in December, 1886, and not complied with, and at that time a cause of action arose in favor of the- township, unless the contention of counsel for plaintiff in error, that Adams was not authorized to make demand or receive the moneys of the township until his bond was approved by the board of county commissioners, is good. The logic of the case of McCracken v. Todd, 1 Kas. 146, is against this contention of counsel.- This court says:
“Todd was sheriff from the date he accepted his commission, and his neglect, or that of the court, to have his bond approved, did not vacate the office. His official acts, notwithstanding such failure, were binding and effectual.”
If this question was presented under a different aspect, it might be a very serious one. Is an outgoing treasurer, who is responsible for a large amount of money, required to pay it over to his successor in office before the bond of the successor is approved by the proper authority? It may be that the approval relates back to the filing of the bondbut suppose the bond is not approved and other and different sureties are required, or the bond is rejected because its conditions do not conform to the requirements of the statute. But Gordon never made any objection to pay on that account, and we are now unable -to see how the township can take advantage of the fact that the bond of Adams, the successor of Gordon, was not approved until the 4th day of January, 1887. As a matter of fact, the identical bond filed by Adams on the 18th day of November, 1886, was approved on the 4th day of January, 1887, and as a matter of law probably that approval related to the filing of the bond, in the previous November. The contention of the township is, that Adams could not legally make a demand for, or was not entitled to receive, the township money until his bond was approved, and this approval being on the 4th day of January, 1887, the suit commenced on the 1st day of January, 1892, is in time. But, as we have seen, a liability on the bond occurred in December, 1886, and the cause of action being barred by the five-year statute of limitation, all other questions are immaterial, and we recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The plaintiff in error filed his petition in the court below, and the material allegations are as follows: That the said defendant, the Junction City Pressed Brick Company, is a corporation created by and existing under and by virtue of the laws of the state of Kansas, and engaged in the business of burning brick, at Junction City in said county; that said plaintiff is now and has been for a long period of time the owner and in the possession of the following-described real estate in the said county of Geary and described as follows, to wit: Special section number 9, and also lots numbered 7 and 8, all in township number 12 south, of range 6 east; that at the time and times hereinafter mentioned the said plaintiff was in possession of said real estate'except a small tract of about two acres leased to the said defendant company as hereinafter stated; that said land has been cultivated in fall wheat for several years last past, and was sowed to fall wheat, in the fall of 1888; that said plaintiff had growing upon said laud, in the season of 1888 and 1889,-acres in fall wheat which, in the spring of 1889, was growing and in good condition on said land owned and possessed by the said plaintiff; that on or about the 1st day of August, 1888, the said defendant brick company leased from the plaintiff about two acres of said land, for the period óf one year, with option to renew said lease from year to year for five years; said lease to commence on the 1st day of August, 1888; said defendant company was to have the use of the water power owned by the said plaintiff, and known as Fogarty’s mill, to run one Eureka brick press; the rental was of $100 per month; said lease was upon further condition, that said defendant company was to carefully and properly manage and control the power so to be supplied, and in no way to interfere with or injure the property rights of the said plaintiff, and to commit no injury on the said premises of the said plaintiff during the existence of said lease. A copy of said lease is hereto attached, marked “Exhibit A.”
At the time of making said lease, the plaintiff was unacquainted with the methods to be used by the said defendant brick company in burning brick, and was not informed by the said defendant company whether it would use bituminous coal or wood in burning its kilns. The said defendant company went into possession of said two acres of land and erected kilns thereon, and during the season of 1889 burned several kilns of brick thereon. In burning said kilns of brick, said defendant company, by its employés and agents, used bituminous coal in considerable quantities, placed in spaces left in the kilns among the unburned brick; and also in the flues left in said kilns for the purpose of burning said kilns. By the methods used by the said defendant company, and by the fuel used, to wit, bituminous coal, during the burning of said kilns a very considerable quantity of corrosive gas, called sulphuric acid gas, was generated, and, having been compressed to a certain degree, when allowed to escape from and above said kilns, was carried up by draft and disseminated above the kilns of the said defendant company and in the direction of the wind, for quite a distance, and over and upon the growing wheat of the plaintiff. Said sulphurous acid gas, so generated in the - burning of said brick kilns by the use of bituminous coal, was and is injurious to vegetation of all kinds, and particularly growing wheat. This poisonous gas, when carried upon the wind, falls upon plants in minute amounts, and, when the blades and leaves are damp, the gas is absorbed and vegetation blighted. During the months of April, May, and June, 1889, the smoke and poisonous gas from the kilns of the said defendant company, impregnated with sulphurous acid gas produced by the use of bituminous coal, was carried from the said kilns of the defendant company and settled over and upon the growing wheat of the said plaintiff upon the above-described premises, and thereby destroyed and injured the grain then forming on the stems of said wheat, and so blighting said wheat by said poisonous gas settling upon said crop, thereby destroying 40 acres of said wheat, of the value of $770. In addition to said 40 acres being destroyed so that it was a total loss, 60 acres of said wheat was greatly damaged and injured by said smoke and gas from said kilns, so that it was almost worthless, to the damage of the said plaintiff in the sum of $1,230, in the aggregate damages to plaintiff in the sum of$2,000, by means of and from the effects of the said poisonous gases, generated in and coming from the said defendant’s brick kiln. By reason of such acts of the defendant company in the use of bituminous coal in burning its said brick kilns, the plaintiff has suffered great damage in the loss of his crop of wheat. If the said defendant company continues the use of bituminous coal in burning its said kilns, as it threatens to do, it will work great and irreparable loss and damage to the said plaintiff, and to the nuisance of the said premises of the said plaintiff. On or about the 16th day of July, 1889, the plaintiff requested the defendant company to remove said brick kilns from said premises, and to abate said nuisance, but it has not done so; but said defendant company still maintains said brick kilns, and is still engaged in burning brick, by the use of bituminous coal as fuel, which, if continued, will kill vegetation and the crop which plaintiff is desirous of sowing upon said premises. If said defendant company continues the use of bituminous coal as fuel in burning its said kilns, the plaintiff- will be unable to cultivate said premises or derive any benefit therefrom; and if said nuisance is continued the plaintiff must inevitably suffer great and irreparable damages, and his property thereby be greatly depreciated in value. '
The plaintiff therefore prays for a judgment against the said defendant company for the sum of $2,000, his damages so as aforesaid sustained, and for a decree upon the final hearing of this case perpetually enjoining the defendant company from using bituminous coal or other combustible material which will generate poisonous gas injurious to vegetation and crops growing upon the plaintiff’s premises, while burning its said brick kilns, and for such other aud further relief as in equity he may be entitled to, and for the costs of suit.
EXHIBIT “A.”
“I, C. Fogarty, of Junction City, Kas., hereby lease to the Junction City Pressed Brick Company, of the same place, ior the term of one year, with the option on the part of said company to renew said lease from year to year for five years, said lease to commence on the 1st day of August, 1888, the following-described premises and right of water power, to wit: Two acres of land on the north side of the public road leading from Sixth street, Junction City, to the bridge over the Smoky Hill river, and on the west side of said river, near the banks thereof, as the same has been selected and staked off by said company; also the right of attachment to and use of the water power now owned by said C. Fogarty that is known as ‘Fogarty’s mill,’ on said Smoky Hill river, for running one Eureka brick press, the amount of power to run said press and machinery being estimated at 30 horse power; all expenses and costs of making such attachment to be paid by said company. And the said C. Fogarty furthei agrees to give the right-of-way for a railroad switch on and over any land owned by him from the line of the Union Pacific or Missouri Pacific railroads between Junction City and the plant of said company, near his mill, as aforesaid. The said Junction City Pressed Brick Company agrees to pay to the said C. Fogarty, for the rental of said premises and’ water power as aforesaid, at the rate of $100 per month for each and every month or part of month said water power is used; said rental to be paid on the first of each and every month, the first payment to commence on the 1st of September, 1888.
“ It is expressly agreed and understood by the parties hereto, that if, for any reason not the fault of the said C. Fogarty, the said water power should fail or become insufficient to supply the amount of power required by said company, that no claim for damages shall be incurred or maintained against the said C. Fogarty by said company. It is further agreed, that said company shall carefully and properly manage and control the power supplied as aforesaid, so as to in no way interfere with or injure the property or rights of said C. Fogarty, and to commit no injury or waste on his lands during the time of the existence of this lease. It is further expressly understood and agreed, that at any time it is so determined by said company it shall have the right to remove off said leased premises all the property and improvements placed thereon, and to leave the said premises and water power in the same condition as when it took possession thereof, usual wear and tear alone excepted.
“In witness whereof, the said parties hereunto set their hands and seal, this 30th day of July, 1888.
C. Fogarty.
Jno. K. Wright, Pres. P. B. CP
Afterward, the defendant in error filed a demurrer to the petition, for the reason that said petition does not contain sufficient facts to constitute a cause of action against said defendant. . Upon argument thereof in the court below, the demurrer was sustained, and the plaintiff not desiring to amend his petition, but being willing to stand upon the same, the court rendered a judgment in favor of the defendant for costs, and against the plaintiff, to which ruling of the court the plaintiff at that time excepted.
I. The question here is, Does the petition state a cause of action? Every allegation contained therein is admitted by the demurrer. The improper use of a certain kind of coal, that produced the destroying gas; that the business could be just as successfully carried on by the use of wood, or another kind of coal, that would not produce the noxious gas; the deadly effect of this peculiar gas on the growing wheat crop of the plaintiff; the ignorance of the plaintiff of the manner of conducting the business and the agencies to be employed; the destruction of the growing wheat by this gas generated in the burning kilns of the brickyard, and every other material fact necessary to constitute a cause of action, if one can legally exist, are all to be accepted as established facts for the purposes of this inquiry. There is a line of decisions of courts of last resort in this country and elsewhere, that hold that an action for damages can be maintained under the facts set forth in this petition. Many of the cases so holding are cited in Campbell v. Seaman, 63 N. Y. 568. The essence of the decision in that case is that—
“Where one manufacturing brick upon his lands uses a process in burning by which noxious gases are generated, which are borne by the winds upon the adjacent land of his neighbor, injuring and destroying trees and vegetation, this is a nuisance, and the party injured may maintain an action to recover damages, and to restrain the use of the process complained of.”
Early and modern English decisions are cited; the case of Huckenstine’s Appeal, 70 Pa. St. 102, is noticed; and the following cases in which useful industries, which produce smoke or noxious gases, or vapors or odors, were declared nuisances, are relied upon as being analogous: Catlin v. Valentine, 9 Paige, 575; Peck v. Elder, 3 Sandf. Ch. 129; Taylor v. The People, 6 Park. Cr. R. 352; Davis v. Lambertson, 56 Barb. 480; Hutchins v. Smith, 63 id. 251; Whitney v. Bartholomew, 21 Conn. 213; Cooper v. Randall, 53 Ill. 24; Rex v. White, 1 Burrows, 337; Cooke v. Forbes, L. R. 5 Eq. Cas. 166; Sampson v. Smith, 8 Sim. 272; Tipping v. Smelting Co., 4 B. & S. 608. The theory of all these decisions is, that every one is bound to make such a reasonable use of his own property as to not occasion unnecessary annoyance or damage to his neighbor. If he makes an unreasonable or unlawful use of it, so as to produce material injury or great annoyance to his neighbor, he will be guilty of a nuisance to his neighbor, and the law will hold him responsible for the consequent damage. Of course, all we now say is upon the assumption that the petition alleges the facts as they will appear at the trial. A different state of facts may call for the application of another and totally distinct rule of action.
II. The second contention in support of the ruling below is, that the plaintiff in error is estopped by the terms of his lease, and by his conduct, from maintaining this action; the line of argument being that the lease carried with it whatever was essential to its use for the purpose for which it was rented. And this is true to the extent of its reasonable and lawful use, consistent with the rights of the neighborhood; but the gist of the complaint is, that while burning brick is a lawful business, the burning is not being done in a reasonable manner, with reference to the rights of adjacent landowners. If, at the time he made the lease, the plaintiff in error knew the process of burning that would be employed, he would not be heard to complain of it; but he alleges in his petition that at the time he made the lease he was unacquainted with the methods to be used. He had a right to presume that these would be reasonable and lawful. See generally, upon this branch of the inquiry, the cases of Sturges v. Bridgman, Ch. Div. 865; Smith v. Phillips, 8 Phila. 10, and Central Rld. Co. v. English, 73 Ga. 366.
We recommend that the judgment be reversed, and the cause remanded, with instructions to overrule the demurrer to the petition.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The questions in this case are: (1) Was the property of plaintiffs below within the corporate limits of the city of Argentine and subject to taxation therein for the year 1891? (2) If the property was not within the corporate limits of the city, was such property within any territory which had been legally added or attached to the city for school purposes, so as to make it subject to the taxes levied by the board of education of the city for that year? (3) If the property was within the city limits and subject to any taxation therein, were the levies of taxes by the city for water, electric light and fire-department supplies legal?
The last question is answered in the negative by the case of Stewart v. Town Co., just decided. It is held, jn cage^ that “supplies of water, light and for the fire department are among the daily necessities of a city, and naturally fall within the class of expenses which are to be paid out of the general revenue fund.” Therefore the city of Argentine, a city of the second class, after levying 10 mills on the dollar for general revenue purposes in 1891, had no authority to levy in addition the taxes complained of for water, electric light, and fire-department supplies. The city of Argentine claims that the property upon which taxes were levied in 1891, was within the limits of the city under the provisions of either or both ordinances Nos. 115 and 217. Ordinance No. 115 was passed by the city on May 14, 1889, while Argentine was a city of the third class. Ordinance No. 217 was passed on July 29,1890, and published July 31, 1890, after Argentine had become a city of the second class. The attempted extended limits of Argentine included unplatted territory as follows: Within the limits established by ordinance No. 115: A tract of 20 acres, marked “A” upon the map; a tract of about eight acres, marked “ D; ” and three tracts, of about five acres each, marked respectively “ F,” “ H,” and “I.” Within the limits established by ordinance No. 217, and beyond those established by ordinance No. 115: A tract of about eight acres, marked “B;” a tract of about 10 acres, marked “Cj” and a tract of about 15 acres, marked “ J.” The charter provision for the extension of the limits of cities of the third class is in ¶ 1018, General Statutes of 1889, and provides —
“That whenever the city council of any city of the third class desire to enlarge the limits thereof from the territory adjacent thereto, said council shall, in the name of the city, present a petition to the board of commissioners of the county in which said city is situated, setting forth by metes and bounds the territory sought to be so added, and praying that such territory may be added thereto. Upon such petition being presented to said board, with proof that notice as to the time and place said petition shall be so presented has been published for three consecutive weeks in some newspaper published in said city, they shall proceed to hear testimony as to the advisability of making such addition, and upon such hearing, if they shall be satisfied that the adding of such territory to the city will be to its interests, and will cause no manifest injury to the persons owning real estate in the territory sought to be added, they shall make an order declaring said territory a part of the corporate limits thereof and subject to the laws and ordinances pertaining thereto: Provided, That no such proceeding shall be necessary when the territory sought to be added is subdivided into lots or parcels of five acres or less, but in such cases the city council of said city shall have power-to add such territory to said city .by ordinance.” (Laws of 1872, ch. 102, § 3, as amended by Laws of 1886, ch. 66, §4.)
The provisions for extending the limits of cities of the second class are sustantially the same as those for extending the limits of cities of the third class, except that the. petition for the second class must be presented to the judge of the district court instead of to the board of county commissoners, as in the third class; and except, also, that in cities of the second class an ordinance of the city council must follow the finding of the judge of the district court. (Gen. Stat. of 1889, ¶884; Laws of 1885, ch. 97, § 1, as amended by Laws of 1886, ch. 69, § 1.)
The trial court, in its opinion holding that ordinance No. 217 is void, said, among other things:
“The boundaries set out in the ordinance include a large territory of land, consisting of different tracts and descriptions not included within the prior limits of the city. A portion of the territory so included in the ordinance, and not included within the prior limits of said city, consists of lands which hád not been platted or subdivided into lots and blocks, while other portions of said territory had, prior to said time, been so platted and subdivided. No proceeding or action of any kind, either by petition to the judge of the district court or otherwise, as prescribed by said ¶ 884, was had in relation to adding the territory or any part thereof to the city, except the passage and publication of said ordinance. Granting that the ordinance is sufficient by its terms for the addition of territory to the city, that it is void so far as it affects land included within its boundaries not platted or subdivided into lots and blocks, is obvious. No authority was vested in the mayor and council of said city to extend the limits of the city to include unplatted territory, without first performing the requirements of said ¶ 884, in relation thereto. Then is said ordinance valid as to the platted territory included within the boundaries therein set out, and which was not included within the prior limits of said city? One portion of an act or ordinance may be void for want of authority in the body enacting it, and other portions of such act or ordinance may be valid and effectual for the purposes intended; but in order to constitute such portion valid and effectual, it must be capable of being separated from the invalid portion; and when the invalid portion is stricken out, that which remains must be complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which is rejected. The purpose of this ordinance, (if it can be construed to intend the addition of any territory to the limits of said city,) was to accomplish a single object only, viz., the addition of all the territory included within its boundaries not included within the prior limits of said city. This is attempted to be done in one section and under one description. A portion of this territory was unplatted, and beyond the authority of the mayor and council to add to the city by such ordinance. The platted and unplatted portions are inseparably connected with each other in said ordinance, and it cannot be presumed that the mayor and council would have added one without the other. Therefore, the whole must be held void.”
As to ordinance No. 115, the trial judge, in his opinion, stated that that ordinance is also void for the same reasons that ordinance No. 217 is void.
We think the reasons given by the trial judge are sufficient to show that the city council, in passing both ordinances -N°s- U5 and 217, acted without jurisdiction, as all the territory sought to be added was not subdivided into lots and blocks, as prescribed by the statutes; and that it cannot be said, considering the language of the ordinances, that either ordinance is valid as to the tracts or pieces oi land subdivided into lots and blocks, but not valid as to the tracts or pieces of land which were not subdivided or platted. In this case, the ordinances must all stand or fall together, because all of the parts are inseparably united.
The first question, as well as the third, presented for our determination, must be answered, for the foregoing reasons, in the negative. The second question presented may also be disposed of upon the opinion delivered by the trial judge. The part we refer to is as follows:
“The city of Argentine was, on July 20, 1889, by proclamation of the governor, declared a city of the second class. July 24, 1889, a petition of citizens of school district No. 41, in which the lands of plaintiffs were then situated, was presented to the school board of school district No. 40, which included the city of Argentine, as a city of the third class, asking to be annexed to district No. 40, the prayer of which petition was then granted by the school board of district No. 40, as shown by the records of the district. On July 26, 1889, the following entry was made by the county superintendent in the records of his office:
‘“Whereas, By proclamation of the governor of the state of Kansas, the city of Argentine was proclaimed a city of the second class, said proclamation bearing date of July 20, 1889; and
“‘Whereas, Application was duly made to the school board by the city of Argentine, by a majority of — all but one — the residents of school district No. 41, praying that school district No. 41 be attached to the city of Argentine for school purposes, and the application was duly received and accepted by the school board of the city of Argentine on the 24th day of July, school distriot No. 41, was and is hereby attached to the city of Argentine for school purposes, and ceases to exist as an independent and separate district. Dated July 26, 1889.
“ ‘Bdw. F. Taylor, County Superintendent.''
“No other action or proceeding was had in the matter of changing the school district, or attaching the territory to the city of Argentine for school purposes. Since the 24th day of July, 1889, the board of directors of school district No. 40, and the board of education of the city of Argentine, after its election and organization, has assumed control and jurisdiction for school purposes of the territory formerly known as district No. 41, and levied taxes for school purposes upon the property therein.
“The city of Argentine, as a city of the third class, was a part of district No. 40. School districts in this state, outside of cities of the first and second class, are created and changed by the county superintendent. Paragraph 5571, General Statutes of 1889, of the act relating to schools, provides: ‘ It shall be the duty of the county superintendent of public instruction to divide the county into a convenient number of school districts, and to change such districts when the interest of the inhabitants thereof require it; but only after 20 days’ notice thereof, by written notices posted in at least five public places in the district to be changed.’ (Laws of 1881, ch. 152, § 12.)
“There was no power vested in the board of directors of school district No. 40 to change the boundary of the district. This could be done only by the county superintendent, and by him only after public notice thereof, as required by ¶ 5571. (Laws of 1881, ch. 152, § 12.) No such notice thereof having been given, and no action taken therein by the county superintendent, except to record the action of the school board, said territory could not have been added to school district No. 40 by such proceedings under the provisions of ¶ 5571.
“Again, when the city of Argentine became a city of the second class, it became subject to different laws, both as a municipality and as a school district. The limits of the school district then became coextensive with the limits of the city, and territory outside the city limits could then be attached to such city for school purposes only in the manner prescribed by ¶ 5725, General Statutes of 1889. (Laws of 1876, ch. 122, art. 11, § 3, of the act relating to schools.) I think the city of Argentine, became a city of the second class at the time of the publication of the governor’s proclamation declaring it to be subject to the provisions of law governing cities of the second ciass, on July 20, 1889; (Gen. Stat. of 1889, ¶" 756; Laws of 1872, ch. 100, art. 1, § 1, as amended by Laws of 1889, ch. 99, §1;) and that, from and after that date, the school board of school district No. 40 could exercise no authority or perform any act therein other than what was necessary for the preservation of the school property and the maintenance of the schools, until the election and organization of the board of education for the city as a city of the second class, as provided by law.” (Ritchie v. City of South Topeka, 38 Kas. 371; Moser v. Shamleffer, 39 id. 635.)
One question only remains: Were the plaintiffs below es-topped by acquiescence? They are and have always been nonresidents; they neither petitioned nor voted. One tax only has been levied since the attempted extension of the limits of the city of Argentine, and the attempted union of school district No. 41 with school district No. 40, prior to the levies of 1891, which are complained of. It was said in Armstrong v. City of Topeka, 36 Kas. 432, by this court, that—
“ We do not believe that the payment of a tax, whether legally or illegally assessed, would be a ratification by plaintiff, or would in any manner estop him from denying that the land was a part of the city of Topeka. The plaintiff gains nothing thereby; the city loses nothing; on the contrary, the city obtains the advantage of the tax, and in this we fail to see any element of ratification, or anything that would estop the plaintiff in this matter.” (See, also, Railroad Co. v. Maquilkin, 12 Kas. 304; Jay v. Board of Education, 46 id. 527; City of Topeka v. Gillett, 32 id. 431.)
We think there was no acquiescence, especially no long acquiescence, which can be insisted upon to prevent plaintiffs below from being relieved of the taxes levied in 1891.
In the case of Ritchie v. Mulvane, 39 Kas. 241, the real estate was sold at tax sale, and under §142 of the tax laws the purchaser was permitted to recover the state, county and school-district taxes, but not the city taxes; but in this case there has been no tax sale, tax certificate, or tax deed issued for the levies of 1891.
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
Johnston, J.:
On August 1, 1885, Henry M. Weeks and Joel P. Weeks recovered a judgment against E. H. Sanford, decreeing that the Weekses were the owners of a certain tract of land, and quieting their title to the same as against Sanford. The cause was removed to the supreme court, and that judgment was affirmed in January, 1888. (Sanford v. Weeks, 38 Kas. 319.) A motion for a rehearing was filed in the supreme court, and was overruled by that court at its session in July, 1888. (Sanford v. Weeks, 39 Kas. 649.) Several motions and applications have since been made in the district court to obtain another trial of that cause, upon the ground that the testimony given by the defendants in error upon the original trial was untrue. These motions and applications having been overruled, plaintiff in error brought a proceeding in this court, on March 16, 1892, in which he seeks a review and a reversal of the orders made.
From the confusion in the record, it is difficult to determine the purpose of the plaintiff in error, or what were the proceedings in the court below. It appears that Sanford presented a petition for a new trial, upon the ground that the testimony given by the Weekses was untrue, and further, that he had since obtained newly-discovered evidence, corroborative of his own, that the testimony of the Weekses was false. A rehearing was had on this petition on May 28, 1890, and, upon an objection to the introduction of any evidence, it was determined by the court that the petition was insufficient in its statement of facts, and judgment was given in favor of the defendants for their costs. More than one year having elapsed since this order and judgment were entered, this court is without jurisdiction to examine or review the same. (Civil Code, § 556.)
Subsequently, and late in the year 1890, another petition was filed for the same purpose, which alleged the same grounds as were stated in the former petition for vacating and modifying the judgment of August 1, 1885. A demurrer, which challenged the sufficiency of the petition as to the facts alleged, was interposed by the defendants in error, and on May 12, 1889, it was sustained by the court, and judgment for costs was awarded to the defendants in error. A review of this judgment is also sought. We think the ruling must be sustained. It appeared from the allegations of the petition that the questions attempted to be raised had been fully considered and determined in the judgment of May 28, 1890. The petition itself was insufficient, in failing to set forth the pleadings in the original case and the defense upon which Sanford relied. The facts constituting the defense must not only be fully stated, but must show a legal and meritorious defense. (Mulvaney v. Lovejoy, 37 Kas. 305.) To supplement and sustain the petition, plaintiff in error requests us to take notice of what is contained in the record of other cases filed in this court; but this cannot be done. We can only look to the matters and things which have been properly brought into the present record. (C. B. U. P. Rld. Co. v. Andrews, 34 Kas. 563.) The petition under consideration was not filed in the dirtrict- court within the time prescribed by the statute. (Civil Code, §§ 568, 575.) And it does not appear that the plaintiff in error has been diligent in his attempt to vacate the judgment. The affidavit attached to his petition, stating the evidence upon which he would rely to sustain the grounds alleged in his petition, appears to have been made on October 18, 1888, while the petition itself was not filed in the district court until December 19, 1890.
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
Horton, C. J.:
Our attention has again been called, in a motion for a rehearing, to-the contents of the record in this case, and a careful examination of the same convinces us that the opinion heretofore handed down by Strang, C., does not declare the law upon the written covenant in the deed referred to. The name of the party who was to assume the payment of the Holcomb mortgage is omitted. It is attempted to make Thompson liable to pay $2,000, with interest thereon, on account of the written covenant in a deed of the 22d of April, 1887, executed to him by Money G. Miller and wife. The covenant reads as follows: “ Excepting note for $2,000, dated April 21, 1887, to M. C. Holcomb, with 8 per cent, interest from date, and with said mortgage for $2,000 the said -- assumes and--agrees to pay.” To create a personal liability for the payment of any prior mortgage or lien on the part of a grantee in a deed, the covenant or words used therein must clearly import that the mortgage or lien was intended to be stated by the one party, and knowingly assumed by the other party. In brief, to create a personal liability, the deed must in terms provide that the grantee assumes the mortgage or lien; otherwise, there is no personal liability. (15 Am. & Eng. Encyc. of Law, p. 832, and au thorities cited in note 1; Lewis v. Day, 53 Iowa, 575; Patton v. Adkins, 42 Ark. 197; Schmucker v. Sibert, 18 Kas. 104.)
The plaintiff below declared alone upon the written covenant or contract in the deed. There is no allegation of a parol contract or agreement on the part of Thompson to assume and pay the mortgage, or that the mortgage was any part of the purchase money. Hence, his liability is to be determined by the terms of the written covenant or contract. The plaintiff states the covenant of assumption was in writing, “in words and figures following,” then quotes the alleged covenant, and follows it up by the further allegation, “that by reason of said covenant and agreement [not by reason of that and some other parol agreement] the said Enoch P. Thompson became and is liable.” The plaintiff does not allege that the parties to the deed made any mistake, mutual or otherwise, or that they intended to insert any other or different covenant than the one actually set out in the deed, to make it conform to some other agreement or understanding of the parties. Thompson’s name is not mentioned or referred to in said covenant or contract. We might assume from the covenant, as it appears in the deed, that Miller’s name ought to have been inserted in the blank which is left in the covenant as well as to assume that Thompson’s name should have been written therein. The deed reads that the consideration thereof was $4,000, duly paid to the parties of the first part; that is, Money G. Miller and wife. There is no statement or recitation in the deed that'Thompson was to pay an additional sum of $2,000. It is true that, in a deed from Thompson and wife to John J. Hoss, of October 29, 1887, Hoss assumed and agreed to pay Holcomb his mortgage of $2,000, with interest. But this is no assumption or promise by Thompson. We therefore think that it is not shown by the deed of April 22, 1887, that Thompson assumed, agreed, or in any way promised to pay, the mortgage to Holcomb of $2,000, or any part thereof.
The judgment heretofore rendered in this court upon the opinion of Strang, C., will be vacated, and 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
Allen, J.:
On the 22d day of June, 1889, defendant in error obtained a judgment in the district court of Atchison county, Kansas, against T. J. Ingels and M. F. Ingels, for the sum of $906.90 and costs of suit. On the 9th day of August, 1889, execution was issued on said judgment to the sheriff of Atchison county. On the 19th of August, 1889, said sheriff levied the same on lot 11, and the west 40 feet of lot 12, block 11, in that part of the city of Atchison commonly known as “West Atchison.” The sheriff duly ad ver tised this property for sale, and on the 26th day of September, 1889, sold the same to the plaintiff below for the sum of $157. Motions were thereafter filed, both to confirm and set aside said sale.. These motions were heard at the same time. The motion to set aside the sale was overruled, and the motion to confirm was sustained. The defendants below excepted to the ruling of the court on these motions, and bring the case here for review.
Two points are urged by counsel for the plaintiffs in error. One is, that the appraisement is defective, because the appraisement fails to state that the appraisers made an estimate of the real value of the property. The appraisement does state that the appraisers, being first duly sworn impartially to appraise the said property upon actual view, had truly and impartially appraised said property, and that the particular property in controversy was appraised at $150. We think this a substantial compliance with the statute. It is not necessary that the precise language of the statute be used in the report of the appraisers. We think that the appraisement in this case fairly shows that the property was appraised at what the appraisers deemed its real value. This is a substantial compliance with the requirements of the statute.
The principal question presented for our consideration is, whether or not this property was a homestead, and.therefore exempt from levy and sale. The facts with reference to the matter, as appears from the record, are as follows: The plaintiffs in error formerly owned and occupied a homestead in west Atchison, which they sold in the year 1887, expecting and intending at the time to reinvest the proceeds in another homestead. Soon thereafter they invested a part of the proceeds of this sale in the property in controversy, for the purpose and with the intention of making it their permanent homestead. At the time of the purchase, there was no house or other building thereon, and the same was not inclosed. They inclosed the lots with a fence, and, as fast as they were able, proceeded to and had hauled on said lots materials, stone, lumber, etc., with which to build a dwelling house and building to occupy as a homestead. Milliard F. Ingels then took a contract at Valley Falls to bore for coal, and temporarily moved to Valley Falls to be near his work, and intending to return to his homestead, complete his dwelling house, and occupy the same as his permanent homestead. While he was still engaged on his contract at Valley Falls, and before he had completed the same, on the 19th day of August, 1889, the sheriff levied said execution on said property, and sold the same as before stated. The plaintiffs in error have no other homestead, and no other real estate of which to make a homestead. After the levy, the defendants below built a house on said lots, which they occupied at the time of the sale. The defendants never occupied the premises in question, from the time they were purchased by the defendants, in March, 1887, till after the making of the levy thereon; and at the time said judgment was rendered, and at the time the levy was made, the said premises were vacant and unoccupied, excepting that they were inclosed by an old fence. The facts in this case are to be gathered from the affidavit made by both plaintiffs in error, and also from an agreed statement of the facts made by both parties and included in the record. The statements with reference to the placing of building materials on the lots are contained in the affidavit. From the agreed statement, it appears that the defendants never occupied the premises in question, from the time they purchased them to the time of the levy, and that at the time the judgment was rendered and at the time of the levy the premises were vacant and unoccupied, except that they were inclosed by an old fence. We can only harmonize the facts gathered from the affidavit with those contained in the agreed statement of facts by concluding that whatever building materials had been placed on the lots were removed therefrom before the levy was made. It clearly appears from the whole record that the premises were never in fact occupied by the defendants as a homestead, and also that, at the time the judgment was rendered and the levy made, the lots were vacant and unoccupied.
The question is now presented for our consideration as to whether the purchase of this property for a homestead, and the intention in the minds of these parties to make it a homestead in the future, is sufficient to supply the requirement of occupancy contained in the constitution. Section 9 of article 15 of the constitution reads as follows:
“Sec. 9. A homestead to the extent of 160 acres of farming land, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted' from forced sale, under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon: Provided, The provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife.”
This section of the constitution has been considered and construed by this court in numerous cases. In the case of Edwards v. Fry, 9 Kas. 417, 425, Mr. Justice Brewer, speaking for the court, used the following language:
“We know the spirit which animates the people of Kansas, the makers of our constitution and laws, on this homestead question. We note the care with which they have sought to preserve the homestead inviolate to the family. We have no disposition to weaken or whittle away any of the beneficent constitutional or statutory provisions on the subject. We know that the purchase of a homestead, and the removal on to it, cannot be made momentarily contemporaneous. It takes time for a party in possession to move out, and then more time for the purchaser to move in. Repairs may have to be made, or buildings, partially or wholly erected. Now, the law does not wait till all this has been done, and the purchaser actually settled in his new home, before attaching to it the inviolability of a homestead. A purchase of a homestead with a view to occupancy, followed by occupancy within a reasonable time, may secure ab initio a homestead inviolability. Yet occupation is nevertheless an essential element to secure this inviolability.”
Again, in the case of Monroe v. May, 9 Kas. 466, it was held:
“A purchase of a homestead with a view to occupancy, followed by occupancy within a reasonable time, receives from the time of purchase a homestead exemption from seizure upon execution or attachment.”
The facts in that case, with reference to the occupancy, are briefly these: Monroe, the judgment debtor, owned a farm, which he sold in November, 1870, receiving in exchange a house and lot in Atchison, and $1,600 in notes. Possession, by agreement, was to be exchanged on the 1st of March following. The exchange was so made, and this city property was occupied and claimed by Monroe and wife as their homestead. The court in that case came to the conclusion that the Monroes became actual occupants of this property within a reasonable time after its purchase, and that it was exempt to them as a homestead. The time intervening between the purchase and taking possession was four months or less.
Again, in the case of Gilworth v. Cody, 21 Kas. 702, 705, it appeared that Cody, on December 1, 1877, purchased 80 acres of land for the purpose of present use as a residence. The land was vacant at the date of the purchase. Cody commenced at once to dig a cellar and haul stone for a dwelling house. On December 5, he started to a neighboring town to purchase materials out of which to erect a dwelling house. He made such purchase, and returned with the materials on December 7. He unloaded the materials adjoining the premises on the same day the premises were levied on under the order of attachment. Cody continued the construction of his dwelling house, and completed the same December 28, 1877, and moVed at once with his family into the dwelling, and occupied it as the residence of himself and family. Chief Justice Horton, in delivering the opinion of the court, used the following language, after having reviewed the authorities on the subject:
“These decisions clearly establish the doctrine that our homestead laws, beneficial in their operation and founded in a wise policy, should be liberally construed so as to carry out their spirit. Considered in this light, in this case there was such an actual purpose and intention of present occupancy, accompanied with such acts on the part of the defendant in error in the commencement and completion of his dwelling, together with his residence therein with his family, that this might reasonably be held to amount in substance to actual occupancy at the date of the levy. While therefore we hold, within the terms of the law, that occupation is an essential element to secure a homestead inviolability, under the exceptional circumstances which appear from the findings of the court, the intentions and acts of the purchaser of the land in controversy may be construed into a legal equivalent of actual occupancy of such premises. Law is entitled to and can command respect only when it is reasonable and adapted to the ordinary conduct of human affairs, and the construction we have given above to the provisions securing homestead exemptions is certainly within their spirit, and more in consonance with a reasonable interpretation thereof, than if we adopted the opposite conclusion.”
Counsel for the plaintiffs in error calls our attention to the case of Reske v. Reske, 51 Mich. 541. The opinion in that case was delivered by Justice Cooley, and carries the doctrine of constructive occupancy for a homestead to the furthest limit yet reached by any court, so far as we have been able to review the authorities. It appeared in that case that the defendant purchased the lot in controversy in Detroit in January, 1880. He was a single man at the time of the purchase, but soon thereafter married. He then fenced the lot and commenced making use of it. He built a barn and shed, dug a well, kept his horses, his hogs, and his poultry, and also piled wood which he kept for sale, on the lot. At first he lived at some considerable distance, but afterwards took board across the way, and remained there while building. In the spring of 1881 he obtained figures from a builder on the cost of a house, but not being able to go on, he did not then build. It was towards the end of 1882 before he was able to put up a house, and he and his family were not living in it till 1883. In November, 1882, judgment was taken against the defendant and execution levied on the lot. The court in that case comments on the fact that the defendant was all the time in the actual occupancy of the lot, and was from time to time doing various acts tending towards the construction of such buildings and conveniences as were required in order to make it a home. The period of time intervening between the purchase of the lot and the levy of the execution was a few months longer than in this case. It will be noted, however, that in this case it is expressly admitted that there was not at any time actual occupancy of the premises by the defendants from the time of the purchase till the date of the levy. In that case the defendant testified, and the court quotes from his testimony the following language: “I built every day as soon as I got a little money ahead.” The court evidently took the view of the case that the defendant’s delay in the construction of his dwelling house was due solely to his poverty, and that he was all the time making a determined effort to actually fit the premises for occupation by himself and family. He not merely had the purpose in his mind to make the lot his homestead, but was actually at work from time to time on the lot preparing it for a home.
In the case of Swenson v. Kiehl, 21 Kas. 533, the syllabus of the case is as follows:
“(1) Occupation, actual or constructive, is essential to give the character of homestead to premises. (2) While occupation need not always be instantaneously contemporaneous with purchase, to create a homestead, yet the purchase must always be with the intent of present, and not simply of future, occupancy.”
In that case the land was purchased by the execution debtor on November 13, 1876. The judgment on which the execution was issued was rendered in 1873. One execution was issued February 5, 1877, and another February 23, 1877. The sale was made under the latter execution. There was a house on the land, but the defendant failed to occupy it as a residence for more than a year after the purchase; and in that case Mr. Justice Brewer, in the opinion, says:
“‘Occupied as a residence by the family of the owner’ is the language of the constitution defining a homestead exemp tion. We are aware that occupancy is not always possible at the instant of purchase, and that, as we have heretofore said, a reasonable time is allowable in which to prepare for and to complete the removal and occupation of the intended homestead ; but the purchase must be for the purpose and with the intent of present, and not simply of future, use as a residence.”
In the case of Farlin v. Booh, 26 Kas. 398, it was held:
“Under the homestead-exemption laws, no person can hold property exempt from execution or forced sale, unless the property is ‘ occupied as a residence by the family of the owner.’ Therefore, where the owner of the property resides upon the same, but his family, consisting of a wife and children, have never been in Kansas, but reside in Illinois, and it is not and never has been the intention of the owner to bring them to Kansas, or to have them reside upon the property, held, that the owner cannot hold the property exempt from execution and forced sale under the homestead-exemption laws.”
In the case of Koons v. Rittenhause, 28 Kas. 359, it appeared that a husband and wife resided in New York in 1871. The husband, desiring to change his place of residence, came to Kansas and purchased real estate, and resided thereon for about four years, then sold the same, and executed a deed therefor, representing himself to be a single man. About a year afterward the wife came to Kansas, and thereafter resided upon the land with her husband, and it had been at all times the intention of the husband and wife that she should at some time come to Kansas, and reside upon the land with him. It was held that the land had never been occupied as a residence by the family of the owner in accordance with the exemption law, and that the deed from the husband alone was therefore not void. Again, in the case of Bradford v. Loan & Trust Co., 47 Kas. 587, in concluding the opinion Chief Justice Horton says: “Under the constitution, there must be occupancy as á residence by some one of the family of the owner to constitute a homestead.”
We do not think there is any real conflict in the authorities cited, nor do we think that the Michigan case goes to the limit which the plaintiffs in error ask us to reach in this case. Whatever our views might be as to the propriety of allowing a debtor to hold a tract of land for a homestead, whether occupied or not, we are bound to declare the law as we find it; and, while this court in the cases cited has given the constitutional provision a liberal construction, for the purpose of fully securing to needy debtors the beneficent exemption secured to them by the constitution, yet we may not wholly dispense with the requirement of occupancy. Can it be said that these lots, though vacant and wholly unoccupied for a period of more than two years, were in the constructive occupancy of the defendants because they were purchased with the proceeds of a former homestead, and the defendants intended, as soon as they should be able to build thereon, to occupy them? If we hold these lots to have been a homestead during all this time, by what course of reasoning can we ever fix a limit within which actual occupancy must take place? The admission contained in the record, that the defendants never occupied the lots or premises in question herein from the time they were purchased by the defendants, in March, 1887, up to the time subsequent to the making of the levy herein, (which was on August 19, 1889,) and that, at the time of the levy, the premises were vacant and unoccupied, seems to us to be decisive of this case; and that the defendants have admitted that occupancy by the family of the defendants did not exist, and therefore the defendants cannot claim the premises exempt to them as a homestead. The fact that the defendants took possession of the lots and constructed a house thereon after the levy of the execution cannot of itself defeat the lien of the judgment. (Bullene v. Hiatt, 12 Kas. 98.) The rights of the parties were fixed at the time of the levy, and no subsequent act of the debtor could change them.
We find no error in the rulings of the district court, and its orders will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J.:
This was a case heard before the commissioners, and an opinion filed in February by Green, C. Marion E. Beavers is plaintiff in this court. In the title of the case, both in the petition in error and the opinion heretofore filed, the defendants in error are named as plaintiffs, and the titles to the cases, which were tried together in the court below, are retained here. On the argument of the motion for a rehearing before the court, it is claimed that the position taken by the trial court and the grounds of its decision have been misapprehended, and that the questions discussed in the opinion are not in the case; that the plaintiffs below never maintained any such position, or urged as a rule of law any such proposition, as the opinion in the case discusses and assumes that the trial court sustained.
The question at issue is, whether or not the sale of a stock of goods from E. S. Beavers, the father, to M. E. Beavers, the son, was made for the purpose of hindering, delaying and defrauding the creditors of the father. The district court made very full findings of fact, only a very small portion of which were referred to in the opinion. With the law, as declared in the opinion by Green, C., we are entirely satisfied, and counsel for defendants in error expresses himself as entertaining no doubt of the correctness of the legal propositions as stated in the opinion, but contends that they are not involved in this case, and are by no means decisive of it. The transactions connected with the conveyance of the homestead by E. S. Beavers to M. E. Beavers, and the reconveyance by the son to the father, are important only as they bear on the question whether or not a certain $1,500 note, given by the father to the son, in fact evidenced a bona fide indebtedness, and could therefore be a valid consideration for the transfer of the stock of merchandise in controversy. The facts with reference to this particular transaction, as found by the trial court, are as follows: About the year 1880, E. S. Beavers entered the south half of the southeast quarter of section 21, and the west half of the northeast quarter of section 28, township 9, range 20, in Rooks county, under the homestead law, and perfected his title thereto prior to the 1st day of October, 1886. He was a traveling salesman, working on a salary. His two sons, Marion E. and Bruce W., resided on the homestead a part of the time, and attended school in Kansas City a portion of the time. On October 1, 1886, E. S. Beavers conveyed this land to M. E. Beavers, and ex pressed in the deed a cousideratiou of §1,0U0, but; in fact, no consideration was paid. Immediately after making said conveyance, E. S. Beavers made a preemption filing on another quarter section of government land, and made entry and payment therefor about six months thereafter, in the month of May, 1887. On the 28th day of May, 1887, M. E. Beavers reconveyed the homestead to his father, the expressed consideration in the deed being $1,500. The court then proceeds to state that there is offered in evidence a note of the date of May 30, 1887, executed by E. S. Beavers to M. E. Beavers, for $1,500, payable on or about the 9th of July, 1888, bearing 10 per cent, interest, which M. E. Beavers testifies was given to him in consideration of the purchase price of said land. E. S. Beavers, however, testifies that said note was given in consideration of an incumbrance of $1,500 which he, E. S. Beavers, had placed on said laud after it was re-conveyed to him. After continuing at length on other matters connected with the case, some of which will be hereafter mentioned, the court proceeds:
“On the question of intent to defraud the creditors of E. S. Beavers, I find that the conveyance of the homestead from E. S. Beavers to M. E. Beavers was in trust for the use and benefit of E. S. Beavers, and that the reconveyance was in execution of that trust, and that the $1,500 note does not represent an actual indebtedness from E. S. Beavers to M. E. Beavers.”
From this language it was assumed that the trial court found that a trust resulted by operation of law from the conveyance of the homestead from the father to the son. A careful examination of the findings of the court, and of the evidence in the case, convinces us that the court did not so find, but that the court, in fact, found that the conveyance from the father to the son was in trust in the strictest sense of the term, and was conveyed to him in confidence on the part of the father that the son would reconvey ou request, that the confidence of the father was well founded, and that the son, although under no legal obligation to do so, so far as the evidence in the case discloses, did execute the trust.
It is contended that the findings by the trial court are not supported by the evidence. The evidence with reference to the giving of this note is, to say the least, very unsatisfactory. The deed from son to father is dated May 28, the note is dated May 30. E. S. Beavers testified that he sold the land to his son. The deed expressed a consideration of $1,000, but he testifies that the son did not give him anything at all for it. As to the giving of the note, he was asked:
“ Ques. Was that note given on the same day that this deed was given? Ans. I do n’t know whether it was or not.”
The testimony of both father and son with reference to the time and place of the giving of this note was very indefinite. The conveyance of the homestead to the son was immediately followed by the filing of a preemption claim by the father on another quarter section of land; and he testifies that he was aware that he could not hold title to the homestead and also make the filing on the preemption claim. It was admitted that he proved up on the southwest quarter of section 21 on May 3, 1887, and the reconveyance from his son was on the 28th of that month. So the title to the homestead was vested in Marion E. less than a month more than the time required, and in fact taken, to secure title to the other piece of land. We think all these circumstances, when taken together, tended strongly to show that the homestead was conveyed by E. S. Beavers to his son in trust for the grantor, and that the fact that the son reconveyed so soon after the title to the other land had been perfected indicates that such a reconveyance was in execution of that trust.
We think the evidence sustains the findings of the court. This of itself would be sufficient to require the affirmance of the judgment, but a full and careful examination of the record leaves no doubt in our minds that this case was correctly decided by the district court. The court finds that E. S. Beavers transferred to his son' M. E. property as follows:
Stock, of merchandise.....................................$2,117 00
Book accounts.......................................... 143 22
Store building................................... 800 00
Town lots in Palco..................................... 300*00
With residence.......................................... 100 00
Other lots in Palco.................. 225 00
that Marion Beavers was married, had a furnished house, a team and buggy; that he had been away attending school at Kansas City; that the father and younger son lived during a portion of the time with Marion and his wife as one family. Marion E. Beavfers did not become of age until July 9,1888, and the alleged sale of the goods was made in the following December. The only property he had, aside from what he claims to have earned after he became of age, was that derived from his grandparents,' which amounted at the time of this transaction to $1,151.25, and such as his father may have given him. The alleged assumption by Marion E. Beavers of the indebtedness of the father to the minor son is hardly sustained by the evidence. With reference to that matter, the father testified that he had nothing to do with it—“that it is a matter fixed up between the boys themselves.” The mere giving of a note by Marion Beavers to his brother for the amount due him from their father could not operate to relieve the father from his indebtedness to his minor son; and the trial court found that this was not a legal assumption on the part of M. E. Beavers, and that it was not made in good faith.
Considering that the father was indebted to the amount of $3,000 for the very merchandise, in part at least, in controversy in this case; that he conveyed all the property he had that was of any considerable value to his son, and that the consideration for such conveyance is patched up in such manner as is shown in this case, we think the conclusion reached by the trial court entirely correct.
The rehearing will be granted and the judgment affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This is an action by Raud against Sterling and wife and the St. Louis, Fort Scott & Wichita Railway Company, to obtain a judgment for balance due on a promissory note, and to foreclose a mortgage securing said note on certain lots in Castle’s addition to the city of McPherson. It appearing that the St. Louis, Fort Scott & Wichita Railway Company had sold all its franchises to the Fort Scott, Wichita & Western Railway Company, the latter corporation was made a party, and filed an answer alleging that in September, 1886, the St. Louis, Fort Scott & Wichita Company condemned the right-of-way across the mortgaged lots, and paid the condemnation money as required by law, aud immediately thereafter constructed and operated its line of road; that in October, 1887, it purchased from John Sterling and wife, who conveyed by warranty deed, the fee to the right-of-way referred to. The ease was tried on the issues joined between the plaintiff in error and the St. Louis, Fort Scott & Western Railway Company, and the trial court found for the defendant, that it was the owner of the right-of-way across said lots, being a part of the mortgaged premises. Judgment was entered barring the plaintiff in error, or any purchaser under the foreclosure proceedings, from any .interest in said right-of-way across the lots. The mortgagee brings the case here for review.
The principal reasons given for reversal are, that the condemnation proceedings are invalid; that the mortgagee is an owner within the meaning of the provisions respecting condemnation, and that damages should be assessed upon his interest in the land as an owner; that the condemnation proceedings were abandoned and the railroad company took a warranty deed from Sterling and wife, and that this title was necessarily subject to the mortgage. The history of the condemnation proceedings is as follows: The St. Louis, Fort Scott & Wichita Railway Company presented a petition to the judge of the district court for the appointment of commissioners to lay off its right-of-way for the proposed railroad through McPherson county, and on June 25,1886, the judge appointed commissioners. Thes'é commissioners were sworn to honestly and faithfully discharge their duties and give notice “ to whom it may concern ” .of the time and place of their first meeting, when they would commence to lay off the right-of-way of the proposed railroad. Proof of the publication of this notice is shown. The report' of the commissioners-shows that they met at the time and place stated in the notice and proceeded with their duties; adjourning from time to time until Saturday, October 9, 1886,-and on the day last mentioned the commissioners say, “We, the commissioners met according to the adjournment of ihe previous day, and fully completed our duties as such commissioners in the condemnation of right-of-way, from, the-south line of section 31, township 21, range 1 west, to a point on the east line of section 30, township 19 south, of range 3 west,” and then adjourned to meet at McPherson October 25,1886. The report filed by the commissioners awarded John Sterling the sum of $1,000, and contained this marginal'nótei “The total award of $1,000 to John Sterling being an error, we, the commissioners, have awarded him an additional $1,000, and caused the same to be placed on our supplemental report filed October 26, 1886, making total award on Nos. 62, 63, 64, of $2,000.” Of the award, $1,000 was paid to the county treas urer. Sterling appealed from the award to the district court, and subsequently the railway company paid him $1,200, and Sterling received the $1,000 that had been deposited with the county treasurer and dismissed his appeal, and then Sterling and wife executed a deed to the railway company for the right-of-way.
I. Whatever may be said about the marginal note of the right-of-way commissioners and their subsequent failure to file a supplemental report, it is very clear that the award of $1,000 (this sum having been deposited with the county treasurer) is a valid one. The validity of the award is established by the fact that Sterling appealed to the district court, in addition to the regularity of the proceedings so far as the original report is concerned. It cannot be claimed that the commissioners acted without jurisdiction. At most, the-award was irregular, but not void. Any previous irregularity not jurisdictional was cured by the appeal.
II. The claim that the mortgagee is an owner within the meaning of the statutes regulating condemnation proceedings has been adjudicated against this view by this court in the very recent case of Goodrich v. Comm’rs of Atchison Co., 47 Kas. 355, wherein it is expressly held that the mortgagor in possession is the owner within the meaning of our statutes. The resulting logic of that case is, that after the condemnation money is deposited with the county treasurer, and possibly before, the mortgagee may take legal steps to protect his interest in the fund created out of the land subject to his mortgage.
III. It may well be doubted whether the plaintiff in error can challenge the regularity of the condemnation proceedings in this collateral way. If the amount of land appropriated was so large as to impair his security, or if for any other reason his interests were endangered, even under these circumstances he could not intervene in the proceedings themselves, but must enforce his rights by proceedings to have all or a part of the damages awarded held and finally appropriated to the satisfaction of his mortgage lien. It would seem, therefore, that in this collateral way he has no right to attack even the regularity of the condemnation proceedings. Of course, if they are absolutely void another question arises.
IY. The claim of the plaintiff in error, that if the condemnation proceedings are valid they were merged in the warranty deed made by Sterling and wife to the railroad company, cannot be sustained. Mergers are not favored, either in courts of law or equity. (Simonton v. Gray, 34 Me. 50.) As a rule, at law, when a greater and a lesser, or a legal and equitable estate coincide in the same person, the lesser merges in the greater or becomes annihilated. But this rule is not inflexible in equity; whether or not the merger takes place depends upon the intention of the parties and a variety of other circumstances. Equity will permit or prevent a merger, as will best subserve the purposes of justice and the actual and just intention of the parties. Applying these well-settled rules to the facts recited in this record, and having in mind the conduct and intention of the parties, we think it would be grossly inequitable to hold that the easement resulting from the condemnation proceedings was merged in the estate created by the deed from Sterling and wife to the railroad company, for the reason that we- have already held, in accordance with adjudicated cases, that the interest lien or right to damages of the mortgagee is transferred from the .condemned right-of-way to the fund deposited with the county treasurer; and to now hold that the easement is merged in the deed is to restore to the mortgagee his right to enforce his lien against the strip of land condemned for a right-of-way. This would violate legal rights, and outrage all equitable considerations. Merger is very largely a question of intention, and the court will always presume against it whenever it will operate to the disadvantage of a party. (Andrus v. Vreeland, 29 N. J. Eq. 394, and authorities cited in that case.)
This disposition of the more important and controlling questions leaves little else to be said. We are satisfied that the judgment rendered below gives substantial justice, and recommend that it 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 by Daniel J. Yadon against W. H. Mackey, jr., to recover the value of two horses, which the latter as sheriff had levied upon and sold, under an execution issued against Thomas H. Yadon.
The jury returned a verdict in favor of the defendant. The plaintiff in error brings the case to this court upon the one assignment of error, that the verdict is not supported by the evidence.
We are asked to read the entire record concerning the evidence, which we have done. The claimant of the property was the son of the judgment debtor. The father and son testified as to the son’s ownership of the property. One appeared personally in court, and the other gave his evidence in the form of a deposition. It was shown that the father mortgaged the property without disclosing the title of the son. We cannot tell just what testimony influenced the jury to return a verdict in favor of the defendant; neither can we say that the verdict has no evidence to support it. The jury may have concluded that the continued acts of ownership over the property by the father had greater weight than the statements of the witnesses as to the title. The verdict received the approval of the trial court, and we cannot say that the same is unsupported.
We recommend an affirmance of the judgment of the district court.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an appeal from an order of the probate court directing the sale of real property. A. B. Hyatt was the owner of a quarter section of farming land in Labette county, which was occupied by himself and family as a homestead. He died testate on July 17, 1887, and left surviving him a widow and several children, all of whom had reached majority, and were occupying homes of their own. By the terms of the will, there was devised to the widow such portion of the testate property as might be allowed by law, and to his son Sherman Hyatt the southwest 40 acres of the homestead. But the record fails to show what disposition was made of the remainder of the property. Claims were allowed against the estate to the amount of $612.13, and the personal property belonging to the estate was insufficient to pay the debts and costs of administration. The widow continued to occupy the farm as a homestead, and Sherman Hyatt, to whom the deceased had leased the farm on March 1, 1887, occupied a portion of the house on the real estate, and was in possession of the same as a tenant. On January 11, 1888, when the executor ascertained that the personal property was insufficient to pay the debts of the estate, he asked for authority to sell the southeast quarter of the homestead for the purpose of paying debts, and at a bearing had before the probate court on February 10, 1888, it was determined that the real estate was occupied as a homestead and could not be sold to pay the debts of the estate. On January 28, 1888, a judgment was entered in an action brought by the widow of the deceased, partitioning the homestead, under which the widow was allotted the north half of the homestead, Sherman Hyatt was awarded the southwest quarter of the homestead, and the other 40 acres were allotted to the remaining heirs. After partition was made, the widow sold her portion and delivered the possession of the same to the purchaser. Sherman Hyatt resides upon the 40 acres allotted to him, and the other 40 acres remain unsold and unoccupied by anyone. On May 12, 1888, the claim of P. W. Barbe against the estate of A. B. Hyatt, deceased, was allowed by the probate court in the sum of $298, and on February 13, 1889, he instituted a proceeding in the probate court to obtain an order for the sale of the real estate to satisfy his claim. On January 29,1889, the probate court ordered the sale of the southeast quarter of the homestead, for the purpose of paying debts and the costs of administration. An appeal was taken to the district court, where it was held that the whole of the real estate was exempt from the payment of the debts of the deceased, and that, by virtue of the proceedings in partition, it had become the absolute property in fee simple of the widow and the children of the deceased, according to their respective interests.
The order of the probate court directing the sale of the southeast 40 acres of the homestead should have been affirmed. It has been settled that the death of the owner of the homestead does not transfer the title absolutely and unconditionally to the widow and children. It descends to them the same as other real estate owned by the deceased, except that it is subject to the homestead interests. So long as it retains its homestead character it cannot be sold to pay ordinary debts, nor can there be a compulsory division and distribution. While it is so occupied it may be conveyed by the persons in whom the homestead interests vest, and the title to the property or any interest therein will pass free from any liability for the ordinary debts of the estate. Abandonment by them, however, will destroy the homestead interest, and when it is abandoned it becomes subject to the debts of the estate, the same as other lands which were never impressed with the homestead character. This homestead interest, however, only vests in the widow and such of the children as occupied the homestead at the time of the owner’s death. (Dayton v. Donart, 22 Kas. 270; Gatton v. Tolley, 22 id. 678; Stratton v. McCandliss, 33 id. 512; Hafer v. Hafer, 33 id. 449; Hafer v. Hafer, 36 id. 524; Vining v. Willis, 40 id. 609; Vandiver v. Vandiver, 20 id. 501.) In this-case, the children to whom the southeast 40 acres of the homestead were allotted were not occupants of the homestead at the time of the father’s death, and never did live upon it. As, has been seen, they had homes elsewhere, and therefore no homestead interest vested in them. When the property was apportioned, the sale by the widow transferred her interest in the part allotted to her, free from the debts of the estate; but when the distribution was made, and she removed from the premises, they were divested of the homestead quality, and the southeast forty acres, which were unsold and unoccupied, were subject to the debts of the estate that were not barred by the statute of limitations. Under the authorities cited, they had no homestead right in the tract which was ordered to be sold, and it descended to them subject to any debts existing against the deceased from whom they inherited. Their shares were protected from sale during the residence thereon of the widow, but when her occupancy ceased all that was unsold and unoccupied became subject to the debts of the estate. The rights of the plaintiff in this cas’e are not affected by the partition suit to which he was not a party. Nor is he es-topped by reason of the first order made by the probate court, holding that while it was occupied as a homestead it was exempt from sale for the debts of the estate.
As the case was tried in the district court upon an agreed statement of facts, this court is warranted in directing the judgment that shall be entered in the court below. The judgment complained of will therefore be reversed, and the cause remanded with directions to affirm the judgment rendered by the probate court.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On August 15, 1888, the discount committee of the Bank of Tescott accepted the note of the Kanopolis Creamery Company to the Western Creamery Building and Supply Company, of June 1, 1888, for $950, “as collateral.” F. F. Scidmore, F. L. Scidmore and M. B. Buell were partners, under the firm name of the Western Creamery Building and Supply Company. This company was also a stockholder in the Kanopolis Creamery Company, a corporation duly organized and existing under the laws of this state. F. L. Scidmore was a director of the Bank of Tescott. F. F. Scidmore was the cashier of the bank, and the discount committee of the bank consisted of F. F. Scidmore, T. E. Scidmore, and T. B. Seers. F. F. Scidmore was the person who secured the note sued on, and knew all the facts and circumstances under which it was executed and delivered, and was present with the discount committee of the bank when that committee acted upon and accepted the same. Under the rule in Mann v. National Bank, 30 Kas. 412, we must treat the note as if this action were between the original parties only, as if no assignment or transfer had been made. The trial court held that the note upon its face was the note of the Kanopolis Creamery Company, and that Waite and Wooley executed it in their official capacity only, but that the parties who signed upon the back were liable personally as guarantors. If extrinsic evidence were not admissible, the ruling of the trial court would be correct. Under the authorities, if the parties who signed the note on the back, and who composed the board of directors of the Kanopolis Creamery Company, had signed the note upon its face, they could show they made it only in their official capacity as directors of the corporation.
“Where individuals subscribe their proper names to a promissory note, prima faoie they are personally liable, though they add a description of the character in which the note is given; but such presumption of liability may be rebutted, as between the original parties, by proof that the note was in fact given by the makers as agents, with the payee’s knowledge.” (Byles, Bills, 27, n. 1; Haile v. Peirce, 2 Md. 327; McWhirt v. McKee, 6 Kas. 412; Talley v. Burtis, 45 id. 147.)
In this case, it is claimed that if extrinsic evidence had been received, it would have shown the directors of the Kanopolis Creamery Company—the corporation—signed their names at the instance of F. E. Scidmore, one of the members of the Western Creamery Building and Supply Company, on the back of the note as officers of the corporation, and for the corporation only. It is claimed that F. F. Scidmore assured these directors that the only way to make a corporation note was for the officers and directors of the corporation to sign their names and affix their official positions thereto, and that the note was thus signed under his direction to bind the corporation, but not the officers individually.. If the parties who wrote their names upon the back of the note as directors had signed their names upon the face thereof, they could have shown by extrinsic evidence that they were acting for the corporation only, and we perceive no reason why, as between the original parties or any subsequent holder of the note accepting the same as collateral, with full notice of all the facts and circumstances connected with the execution and delivery thereof, the same rule will not apply when such signatures are upon the back of the instrument before delivery.
In Fullerton v. Hill, 48 Kas. 558, (29 Pac. Rep. 583,) it was ruled that “A stranger to a promissory note, who writes his name across the back thereof before it is delivered to the payee, incurs prima facie the liability of the guarantor. But parol proof may be received to show the exact liability of such indorser, by showing the agreement and understanding of the parties at the time of such indorsement.” (Baker v. Chambels, 4 G. Greene, 428; Whitney v. Inhabitants of Stow, 111 Mass. 368; National Bank v. Boardman, 48 N.W. Rep. 1116; Metcalf v. Williams, 104 U. S. 93; Good v. Martin, 95 id. 90.)
“ Considerable diversity of decision, it must be admitted, is found in the reported cases where the record presents the case of a blank indorsement by a third party, made before the instrument is indorsed by the payee, and before it is delivered .to take effect, the question being whether the party is to be deemed an original promisor, guarantor, or indorser. Irreconcilable conflict exists in that regard; but there is one principle upon the subject almost universally admitted by them all, and that is, that the interpretation of the contract ought in every case to be such as will carry into effect the intention of the parties, and in most cases it is admitted that proofs of the facts and circumstances which took place at the time of the transaction are admissible to aid in the interpretation of the language employed.” (Denton v. Peters, Law Rep., 5 Q. B., 475; Good v. Martin, supra.)
We think that the parties who signed as directors had the right, at the trial, to give in evidence to the jury that the note in question was not their note as guarantors, but that it was the note of the Kanopolis Creamery Company only.
The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring. | [
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Opinion by
Strang, C.:
This was an action for damages for personal injuries sustained by the defendant in error by falling off the sidewalk in Kansas City, Kas., during the evening of August 17,1890. On that evening, the defendant and her daughter, Mrs. Ann Burke, with whom defendant was at the time living, left the house of Mrs. Burke, on Wood street in said city, to go to a bakery on James street. They went north on Wood street to Ohio avenue, and east on said avenue to James street, and turned south on James street towards the bakery. At the corner of Ohio and James streets there was a grocery store. Next to said store, and between it and a.barber shop, the next building south, was a vacant or unoccupied lot or piece of ground about seven feet wide. The land sloped from James street to the west towards Wood street, so that the west end of the sidewalk at that place was some four or five feet above the ground. James street is one of the principal thoroughfares of said city, and the main one connecting said city with Kansas City, Mo., which, together with the fact that the Armour’s and Fowler’s packing houses front said street, make it one of the most traveled streets in the city. The sidewalk at the point mentioned was about 12 feet wide, and abutted against the store and shop mentioned, and possibly lapped by the front of said buildings, a few inches over the space between them. There was an electric light one block north, and another one block south, of the intersection of Ohio avenue and James street, but none at said intersection. August 17, 1890, was Sunday. The sidewalks of James street were usually crowded with people passing to and fro thereon on Sunday evenings, and were on that evening. As the defendant and her daughter, passing south on James street that evening, reached the place on the sidewalk opposite the space between said grocery store and barber shop, they met an unusual number of people going north thereon, and the defendant, in attempting to pass around said crowd of people, stepped off the sidewalk, and fell to the ground between said buildings, and was seriously injured — suffering an impacted fracture of the hip. Action was brought by the defendant, as plaintiff below, to recover damages for such injury. The ease was tried by a jury, which returned a general verdict for the plaintiff below in the sum of $5,000. Motion for new trial was overruled, and the city brings the case here for review.
The first reason assigned for a reversal of the judgment is that the plaintiff below was guilty of contributory negligence in stepping off the sidewalk. The evidence shows that the injury occcurred just at dusk; that Mrs. Manning was unacquainted with the street at that place, and with the unprotected condition of the sidewalk. The space between the buildings was narrow, the buildings which furnished a guard, so far as the walk in front of them is concerned, being but a short distance— seven feet—apart. The plaintiff below, jostled by a passing crowd on the other side, to which her attention was attracted, could readily have stepped a little one side to let them pass without noting that there was a space between the buildings at all, or, that if there was, that there was no fence, railing or other guard to prevent her stepping off. She testifies that she stepped a little one side to let the crowd pass and stepped off the walk and fell to the ground between the build ings. Taking her evidence all together, and viewing it in the light of her surroundings at the time the injury occurred, and there does not seem to have been any want of care on her part. But the following finding of the jury upon ail the evidence in the case would seem to set this question at rest: “6th. Had the plaintiff an opportunity of avoiding the accident, if she had looked before stepping to the right? Ans. No.”
The next reason assigned for reversing the judgment of the court is, that the damages as found by the jury are excessive, under the evidence, and that the verdict was the result of passion and prejudice on part of the jury. The injury sustained by Mrs. Manning on account of her fall was not only one productive of great pain and suffering, both in the character of the injury and in the character of the necessary treatment, but it is a permanent one; an injury from which she can never recover, from which she loses the use of one limb for the remainder of her life, and on account of which she must suffer more or less pain as long as she lives. For four months she was confined to her bed. It is true she is an old lady, over 60 years old, but the evidence shows that she was a healthy, strong woman when injured. A woman of her age and condition of health might live 15 or 20 years, and, if so, the amount found by the jury would not be an extravagant sum for keeping and caring for her during the balance of her life, in her helpless condition. There is nothing in the record to indicate that the verdict of the jury was influenced in any degree by passion or prejudice. The answers of the jury to the special questions submitted by the city, we think, indicate that the action of the jury was wholly free from prejudice and passion. We think the jury were liberal in their allowance of damage, but we cannot say that the amount is so excessive, under the evidence, as to justify this court in reversing the judgment for that reason, especially as the verdict received the sanction of the court trying the case. (City of Kinsley v. Morse, 40 Ka. 577; S. K. Rly. Co. v. Walsh, 45 id. 654.)
We recommend that the judgment of the trial court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
Ordinance No. 115 was passed by the city of Argentine on May 14, 1889, while the city was a city of the third class. Ordinance 217 was passed on July 29, 1890, and published July 31,1890, after the city had become a city of the second class. No other action has been taken by the city as a city of the third class than the passage of ordinance No. 115, nor as a city of the second class than the passage of ordinance No. 217, having for its object the extension of the original city limits so as to bring the property of plaintiffs below within its jurisdiction. It is conceded that if the property taxed has been added to the city, it was so added under and by virtue of the provisions of either ordinance No. 115 or No. 217. Upon the motion for a rehearing, it was earnestly and forcibly contended that all territory sought to be added by these ordinances to the city of Argentine which was subdivided into lots or parcels of five acres or less was taken in and made a part of the city thereby, even if it were conceded that the tracts of land exceeding five acres in extent not subdivided into lots or parcels were not added to the city. The title of ordinance.No. 115 is as follows: “An ordinance extending the limits of the city of Argentine, Wyandotte county, Kansas, and declaring and defining the entire boundary thereof as changed by said extension.”
Section 1 of the ordinance reads: “That the boundary of the city of Argentine, Wyandotte county, Kansas, shall include the territory of the original city of Argentine, described as follows:” [Here is set out the boundary of the original city of Argentine.]
Section 2 reads: “That the limits of the city of Argentine are hereby extended so as to include all the territory, pieces and parcels of land lying, being and situated between the boundary of the following-described land:” [Here is described a boundary line around a portion of the prior city limits and other undescribed territory; this without regard to platted or unplatted tracts of land.] This section omits a tract of about 41 acres included within the original incorporated limits of the city of Argentine, by leaving it outside of the boundary line.
The title of ordinance No. 217 is as follows: “An ordinance reestablishing and extending the city limits of Argentine, Kas.” There are three sections only in this ordinance.
Section 1 reads: “That the limits of the city of Argentine are hereby reestablished according to the following description :” [Here follows a boundary line, but included therein are several unplatted tracts of land exceeding five acres in extent.]
Section 2 repeals .all ordinances in conflict therewith, and section 3 provides that the ordinance shall take effect upon its publication. The ordinance contains nothing more.
Under the provisions of the statute, when a town or village is incorporated as a city of the third class, the board of county commissioners of the county in which such town or village is situate declares, upon proper proceedings before it, that the town or village is incorporated by a certain name, designating in the order the metes and boundaries thereof; and “thenceforth the inhabitants within such bounds, and such further territory as from time to time may be lawfully added thereto, shall be a body politic and corporate by that name, and they and their successors (except such corporation be lawfully dissolved) shall have perpetual succession.” (Paragraph 923, Gen. Stat. of 1889.)
When cities of the second class are organized, the mayor and council of the city must make out and transmit to the governor an accurate description of the metes and boundaries of all lands in the city and additions thereto, and the boundary is thereby established. (Paragraph 756, Gen. Stat. of 1889.) Therefore the boundaries of cities of the second and third class are not to be altered or changed by the mayor and oity council, except authority is given by statute to add territory by ordinance “when the territory sought to be added is subdivided into lots or parcels of five acres or less.” Additional territory may also be added to cities of the second and third class upon proper proceedings had in the second class before a judge of the district court, and in the third class before the board of county commissioners.
In ordinance No. 115, the boundary line left outside of the limits of the city a large tract of land formerly belonging to it, which the mayor and council had no authority to do. The claim that this court may construe these ordinances to add only the territory subdivided into lots or parcels of five acres or less, and omit undivided tracts or parcels, cannot be sustained on account of the provisions of the ordinances fixing the boundary of the city of Argentine. If either ordinance had merely added to the city of Argentine, as originally bounded, certain described lots or parcels of land, as is usual in such cases, there would be much force in the contention that the subdivided lots or parcels of five acres or less were added or taken in, while the tracts of land exceeding five acres not subdivided were not affected or included.
We are urged to declare, in the first instance, that the mayor and city council of Argentine did not intend to take into the city the tracts of unplatted land exceeding five acres in extent, although the ordinances, in establishing the boundary line of the city, embraced these tracts of unplatted land; and then we are further urged to declare that, after the mayor and city council of Argentine have fixed the boundary line of the city by ordinances, they intended thereby to establish another and wholly different boundary line than as stated in the ordinances. To give the construction desired, we must give an interpretation to the ordinances different from what they read, and we must change the boundary line of the city of Argentine, as established by the ordinances, and make a new boundary line for the city. We do not think, in the form that the ordinances were drawn and passed, that we can make the changes suggested, by establishing a new and different boundary line. (Cooley, Const. Lim., § 230; County Commissioners v. Carter, 2 Kas. 115; Hulbert v. Mason, 29 Ohio St. 562; City of Wyandotte v. Zeitz, 21 Kas. 660; United States v. Reese, 92 U. S. 214; United States v. Harris, 106 id. 629; Sutherland, Stat. Constr. 238; Allen v. Louisiana, 103 U. S. 80; People v. Porter, 90 N. Y. 68; Hinz v. People, 92 Ill. 406.)
If we were to construe the ordinances as suggested, we would wipe them out and make a new one, establishing a new boundary line for the city, and by such boundary line leave out of the city large tracts of unplatted land included within the boundary line established by the ordinances. Instead of then having a regular boundary line as fixed by the ordinances, this court would declare a zigzag boundary line running in and out among various tracts of land, some platted and some unplatted, situated at different places within the boundary line originally fixed by the ordinances. This we cannot do. This would be legislation, not the exercise of judicial power.
The motion for rehearing will be denied.
Horton, C. J., and Allen, J., concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
W. L. Tanner was convicted of selling intoxicating liquors upon 12 counts and sentenced to pay a fine of $100 and to 30 days’ imprisonment on each count. He appeals. The information, containing various counts, was filed under the provisions of ¶ 2527, Gen. Stat. of 1889, which reads:
“Any person without taking out and having a permit to sell intoxicating liquors, as provided in this act, or any person not lawfully and in good faith engaged in the business of a druggist, who shall directly or indirectly sell or barter any spirituous, malt, vinous, fermented, or other intoxicating liquors, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than $100 nor more than $500, and be imprisoned in the county jail not less than 30 days nor more than 90 days.” (Crimes Act, Gen. Stat. of 1889, §386, p. 752.)
Each count alleged that W. L. Tanner, “being then and there a person not lawfully and in good faith engaged in the business of a druggist, did then and there unlawfully sell and barter spirituous, malt, vinous, fermented, and other intoxicating liquors.” The defendant filed a motion to require the information to be amended so as to show all the facts which made the sale charged in each count unlawful. This was overruled, and excepted to. Thereupon the defendant filed his motion to quash the information and each count thereof. This motion was overruled, and excepted to. Subsequently, the defendant objected to the introduction of any evidence under the information, because the same did not state a public offense. This was also overruled, and excepted to. Complaint is made of all these rulings, but we think without sufficient cause.
Paragraph 2527, referred to, creates two separate and distinct crimes in relation to the sale of intoxicating liquors. The one is, that “any person, without taking out and having a permit to sell intoxicating liquors as provided in this act, . . . who shall, directly or indirectly, sell or barter any spirituous, malt, vinous, fermented or other intoxicating liquors, shall be deemed guilty of a misdemeanor,” etc. The other is, “any person, not lawfully and in good faith engaged in the business of a druggist, who shall, directly or indirectly, sell or barter any spirituous, malt, vinous, fermented or other intoxicating liquors, shall' be deemed guilty of a misdemeanor.” The information is based upon the last provision, but charges the offense, in the language of the statute. This is generally sufficient in an information charging a misdemeanor. (The State v. Schweiter, 27 Kas. 499; The State v. Nickerson, 30 id. 545.) Under the first clause of the paragraph, a person is guilty, who, without having a permit to sell intoxicating liquors, directly or indirectly sells or barters the same. Under the other clause, a person having obtained a permit as a druggist, but who, at the time of selling the intoxicating li quors, is “not lawfully and in good faith engaged in the business of a druggist,” violates the statute. Under the last clause, evidence should be produced showing that the person charged is “not lawfully and in good faith engaged in the business of a druggist.” The legislature intended to punish that class of persons who would be likely to go into the drug business solely for the purpose of selling liquors, and to punish and prohibit, sales by such persons, even though they should succeed in obtaining permits to make sales. We do not think the clause referred to was intended to embrace druggists selling intoxicating liquors upon defective applications, or otherwise irregularly, in violation of ¶¶ 2524 and 2529, Gen. Stat. of 1889.
The next complaint against the rulings of the trial court is more serious. Upon the trial, the evidence tended to show from 30 to 40 or more sales by the defendant during the time embraced in the information. After all of the evidence of the prosecution had been introduced, the defendant moved the court upon each count to require the prosecution to elect on which sale or proof of sale it would stand in support of the count. Each of these motions was overruled. The prosecution finally offered, after the overruling of these motions, to elect 24 sales upon which it would rely for conviction, but did not otherwise elect or designate the sales. No further action was taken in that regard.
It has been frequently decided by this court: “Upon a criminal trial, that where the state has offered evidence tending to prove several distinct and substantive offenses, it is the duty of the court, upon the motion of the defendant, to require the prosecutor, before the defendant is put upon his defense, to elect upon which particular transaction the prosecutor will rely for a conviction.” (The State v. Schweiter, 27 Kas. 499; The State v. Crimmins, 31 id. 376; The State v. Guettler, 34 id. 582; The State v. Burns, 35 id. 387.) If an information is. verified upon belief, and the verified statements of witnesses examined by the county attorney are attached to and filed with the information, an instruction that the prose cution should be limited to the sales testified to in the affidavits filed should be given. (The State v. Whisner, 35 Kas. 271; The State v. Lawson, 45 id. 339.)
On account of the refusal of the court to require the prosecutor to elect on which sale or proof of sale it would stand in support of each count, the judgment is reversed, and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of ejectment, brought in the district court of Wyandotte county on October 27,1887, by Sallie O. Smith against J. N. Meyers, W. R. Malott, W. Gerding (really Henry Gerding), Henry Stockhoff, G. Rothert, and L. Brougham, to recover an undivided interest in certain real estate situated in said county. The defendants answered separately, and all except Brougham claimed separate interests in the real estate, and Brougham's answer was a general denial. The case was tried before the court without a jury, and the court found generally in favor of the plaintiff and against the defendants, and that she owned an undivided one-fourteenth interest in the real estate described in her petition and rendered j udgment accordingly; and all the defendants except Brougham united in bringing the case to this court on petition in error, making Sallie O. Smith the defendant in error.
All the parties claim title through and under a common source, namely, Isaac Johnnycake. He was a Delaware Indian, and also a member of the Cherokee nation of Indians. On March 1, 1872, and prior thereto, and up to the time of his death, which occurred on June 15, 1875, he resided in the Indian Territory, and was the owner of all the land described in the plaintiff's petition. At the time of his death he left a widow and seven children, one of which children is the plaintiff in this case; who, under the laws of Kansas, and as an heir of Johnnycake, is entitled to an undivided one- fourteenth interest in all the property left by Johnnycake in Kansas, unless she was divested of such interest by a supposed will claimed to have been executed by Johnnycake at his place of residence in the Indian Territory on March 1, 1872. The sole question, then, in this case is simply whether the evidence introduced on the trial of this case in the district court showed that any such will was ever executed aud probated or recorded so as to make it a valid and effective will or not. Under the statutes of Kansas, no will can pass title to any property unless it has first been duly probated or recorded; and it is claimed by the defendant in error, and tacitly admitted by the plaintiffs in error, that no will can properly be recorded in Kansas, so as to make it pass title to any property, real or personal, in Kansas, unless it has first been duly probated somewhere. Section 29 of the act relating to wills reads as follows:
“Sec. 29. No will shall be effectual to pass real or personal estate, unless it shall have been duly admitted to probate, or recorded as provided in this act.”
"With respect to wills executed in Kansas by persons residing and dying therein, §§ 16 and 18 o.f the act relating to wills read as follows:
“Sec. 16. Every will, when admitted to probate as above mentioned, shall be filed in the office of the probate court, and recorded, together with the testimony, in a book to be kept for that purpose.”
“Sec. 18. If real estate, devised by will, is situated in any other county than that in which the will is proved, an authenticated copy of the will and order of probate shall be admitted to record in the probate court of each county in which such real estate may be situated, upon the order of such probate judge, and shall have the same validity therein as if probate had been had in such county.”
With respect to wills executed in another state or territory of the United States, § 24 of the act relating to wills reads as follows:
“Sec. 24. Authenticated copies of wills, executed and proved according to the laws of any state or territory of the United States, relative to any property in this state, may be admitted to record in the probate court of any county in this state where any part of such property may be situated; and such authenticated copies, so recorded, shall have the same validity as wills made in this state, in conformity with the laws thereof. When any such will or authenticated copy has been or shall hereafter be admitted to record in the probate court of any county in this state, where any part of such property may be situated, a copy of such recorded will, with a copy of the order to record the same, annexed thereto, certified by the probate judge, under the seal of his court, may be filed and recorded in the office of the probate court of any other county in this state, where any part of such property is situated; and it shall be as effectual in all cases as the authenticated copy of said will would be if proved and admitted to record by the court.”
With respect to wills executed in some foreign state or country, § 25 of the act relating to wills reads as follows:
“Sec. 25. A will executed, proved and allowed in any state or country other than the United States and territories thereof, according to the laws of such foreign state or country, may be allowed and admitted to record in this state, in the manner and for the purpose mentioned in the following sections.”
All the other provisions of the statutes relating to wills, and providing how they may be probated or recorded, and all the provisions of the statutes relating to executors and administrators, seem to be in harmony with the foregoing sections. Also § 1 of the act relating to probate courts, so far as it is necessary to quote it, reads as follows:
“The probate courts shall be courts of record, and, within their respective counties, shall have original jurisdiction : First, To take the proof of last wills and testaments, and admit them to probate; and to admit to record authenticated copies of last wills and testaments executed, proved aüd admitted to probate in the courts of any other state, territory, or country.”
On the trial of this case, the following stipulation between the parties was introduced in evidence, to wit:
“STIPULATION.
“If is hereby agreed by and between the parties plaintiff and defendants herein:
“1. That the record of the instrument purporting to be the last will and testament of Isaac Johnnycake, deceased, in the'probate court of this county, is a true copy of the record of such instrument as the same appears in the book of wills in the office of the clerk of the district court of the Coo-weescoo-wee district, Cherokee nation, in the Indian Territory.
“2. That on March 1, 1872, and at the time of his death, Isaac Johnnycake owned a single tract of land in Wyandotte county, of which the land in controversy is a part; and that he owned no other land in said county.
“3. That Isaac Johnnycake died June 15, 1875, in the Coo-wee-scoo-wee district, Cherokee nation, Indian Territory, owning the land in .controversy, and leaving the plaintiff and six other children, who together with Jane Johnnycake, the wife of said Johnnycake, were his sole heirs.
“4. That the defendants are in possession and have whatever title could have been conveyed to them by said wife and the persons named in said instrument, as legatees, and hold the same under a direct line of conveyances from the said parties.
“ 5. That Johnnycake was a member of the Delaware tribe of Indians, and one of the members of said tribe who after-wards became incorporated into and became members of the Cherokee nation, in the Indian Territory, under the agreement between said Cherokees and Delawares, and at the time of his death was a resident and citizen of the Coo-wee-scoowee district, Cherokee nation, Indian Territory.”
The defendants below also introduced in evidence a portion of the records of the probate court of Wyandotte county, which reads as follows:
“LAST "WILL AND TESTAMENT OE ISAAC JOHNNYCAKE, DECEASED.
“Lightning Cheek, I. T., March 1, 1872.
“Last will and testament of Isaac Johnnycake, deceased.
“Considering the uncertainty of this mortal life, and being of sound mind and memory (blessed be the Almighty God for the same), do make and publish this, my last will and testament, in the manner and form following, to wit, that is to say:
“I give and devise to my sons, Joseph and Isaac Johnny cake, jr., their heirs and assigns, all that tract or parcel of land situated, lying and being in the state of Kansas, Wyandotte oounty, together with all improvements, houses, etc., and appurtenances belonging thereto, or in any wise appertaining : To have and to hold the premises above described, to the said Joseph and Isaac Johnnycake, jr., their heirs and assigns forever, ,to be divided equally between them, share and share alike.
“In witness whereof, I have hereunto set my hand and seal, this the 1st day of March, in the year of our Lord one thousand eight hundred and seventy-two.
[Signed] Isaac Johnnycake. [l. s.]”
“The foregoing instrument was at the time thereof signed and sealed, published and declared, by the said Isaac Johnnycake, as for his last will and testament, in presence of us, at his request and in his presence, and in presence of each other, have subscribed our names, as witnesses thereto.
[Signed] Sam. D. Loye,
Wm. E. Ketchum.
“Subscribed in my presence and sworn to before me, this the 4th day of May, 1877. In witness whereof, I have hereunto signed my name and affixed my official signature, the day and year last above written.
[Signed] Wm. E. Ketchum. '[l. s.]
“Chakdes Rogebs,
“Judge District Court Coo-wee-scoo-wee District, Cherokee Nation. .
“Subscribed in my presence and sworn to before me, this the 17th day of July, 1877. Witness whereof, I have hereunto signed my name and affixed my official signature.
“Chas. Rogebs, [Signed] Sam. D. LOVE.
“ Judge District Court, Coo-wee-scoo-wee District.”
“I Hereby Certify, That the foregoing is a correct and true copy of the last will and testament of the late Isaac Johnnycake, (deceased,) as recorded in this office.
“ Given from under my hand and seal of office, this the 23d day of August, A. D. 1877. D. W. Lipe,
[seal.] Clerk Coo-wee-scoo-wee, District, Cherokee Nation.”
“in THE MATTEB 03? THE ESTATE OE ISAAO J0HNNY0A3IE, DECEASED.
“July Term, A.D. 1887.—September 27, A.D. 1887.
“Now, This day appears in open court, Jane Johnnycake, the widow of the late Isaac Johnnycake, deceased, who died on or about the — day- A. D. 1875, leaving a last will and testament, a copy of said last will and testament duly certified to by D. W. Lipe, clerk of the district court of Coo-wee-scoo-wee district, Cherokee nation, as recorded in the district clerk’s office of said district, having been filed in this court, and recorded as the last will and testament of Isaac Johnnycake (deceased). And Jane Johnnycake, the widow of said deceased, being requested to make her election whether she will accept the provisions of said last will and testament or take what she is entitled to under the provisions of law concerning descents and distributions, the said Jane Johnnycake, widow aforesaid, then and there elected not to accept the provisions of said last will, but to take under the provisions of law concerning descents and distributions.
“Whereupon, it is ordered and adjudged by the court that said Jane Johnnycake, widow of the said Isaac Johnnycake, deceased, be, and she is, entitled to one-half of the property of the testator in the state of Kansas, after the payment of all just debts of said' testator and the expenses incident to the administration of said estate.
“Ordered, that said will be and the same is approved, except as to the interest of said Jane Johnnycake as herein stated. [Signed] D. R. Churchill, Prohate Judge.”
The defendants below also introduced in evidence a duly certified transcript of certain matters appearing of record in the office of the clerk of the district court within and for Coo-weescoo-wee district, Cherokee nation, Indian Territory, which matters were certified to be “a full, true and correct copy of all the proceedings in the matter of the filing, probating and recording of the last'will and testament of Isaac Johnnycake, deceased, as the same appears in my (the clerk’s) office.” All that there is of substance in this certified transcript is what purports to be a copy of the last will and testament of Isaac Johnnycake, deceased, which in words and figures is the same as that contained in the records of the probate court of Wyandotte county above given. There is no finding or order or judgment of any court or judge contained in such transcript. It appears from the evidence introduced on the trial that under the laws of the Cherokee nation a will may be recorded before it is probated. Such laws also contain the following provision:
“ Each clerk shall keep a set of books, one of which shall be separately devoted to each of the following matters of record, to wit: . . . 4th. Wills purporting to be of deceased persons, verbal or written, as proven or attempted to be proven to the satisfaction of the district judge, with a certificate attached to the record that the will has been so proven or not, as the case may be.”
No such certificate as is contemplated in the foregoing provision can be found in the record in the present case, and there is nothing else in the record tending to show that the will was ever probated in the Indian Territory or anywhere else outside of Kansas; but as the plaintiffs in error, defendants below, do not seem to claim that the will was ever probated in the Indian Territory or anywhere else outside of Kansas, nothing further need to be said upon this subject.
The plaintiffs in error, defendants below, now claim that the will was probated in the probate court of Wyandotte county in this state. They do not claim that this was an ancillary probate of the will, founded upon an original probate thereof at the place of the testator’s domicile in the Indian country where the will had been executed, and where the testator died; but it is claimed that the probate was an original probate in Wyandotte county, and such a probate as might have taken place in that county if the testator had all his lifetime resided in that county, had executed the will there, and had died there. There are many objections urged against this view of the case. (1) It is objected that the probate court of Wyandotte county had no jurisdiction to grant an original probate of a will executed outside of Kansas, as this will was; and it is also objected that such probate court never intended or attempted to grant any such probate, and did not do so. (See the statutes already cited, and the order of the probate court.) (2) The probate court of Wyandotte county did not have jurisdiction or custody of the original instrument called a will, and had no power to procure the legal custody of the same; for it does not appear that the will has ever been in Kansas. The action of such probate court upon this matter was founded merely upon a certified transcript of a foreign record of such supposed will — merely upon a copy of a copy thereof. And it is not claimed that the original was lost, spoliated, or destroyed. (See §§45 to 49 of the act relating to wills.) (3) The probate court of Wyandotte county had no jurisdiction of the witnesses to the will and no power to procure their attendance; for it does not appear that any one of such witnesses has ever been in Kansas. (4) When the supposed probate of this supposed will took place in Wyandotte county, no one appeared as a party or a witness, or otherwise, except Mrs. Jane Johnnycake, who appeared for the purpose of repudiating the will and to elect to take her interest in the property of her deceased husband in opposition to the will, and under the statutes relating to descents and distributions; and no other person was cited, summoned or subpoenaed; and no one asked that the will should be probated or approved. (5) There was in fact no such hearing before the probate court as is required for the original probating of a will, and no hearing at all except that the probate court heard Mrs. Johnnycake’s election and her rejection of the will. Nothing was said or done by the probate court at this time or at any other time that can be claimed to mean the original probating of a will except the use of the following words, to wit: “ Ordered, that said will be and the same is approved, except as to the interest of said Jane Johnnycake as herein stated.”
Evidently the probate court did not intend or believe that this order or any order made by such court was an original probating of the supposed will; and we do not think that it was. (See all the statutes upon this subject, including the act relating to wills, §§ 3 to 16.) We might here say that there is no statute in Kansas which in terms would authorize a will, not executed in Kansas nor by a person residing therein nor dying therein, to be probated originally in Kansas, and all the implications of the statutes are against any such probat ing of any such will. Under the statutes of Kansas, a will may be deposited in the office of the probate judge during the testator’s lifetime, but only “in the county in which the testator lives.” (Act relating to Wills, §3.) If, when the will is opened by the probate court after the testator’s death, it appears that “the jurisdiction belongs to any other court,” such will, the original instrument, must be taken to such other court, and “be presented for probate in such other court.” (Ibid. § 6.) And original letters testamentary can be granted only in the county of which the testator was “ an inhabitant or resident at the time of his death,” (Act relating to Executors and Administrators, § 1,) except perhaps in cases where the probate, if we call it a probate, is only a second or ancillary probate of the will. (Act relating to Wills, § 28.) If the will has been deposited in the office of the probate judge during the testator’s lifetime, aud the probate court on opening it after the testator’s death finds that the jurisdiction to probate it belongs to the court opening it, then the executors named in the will, or, if none are named therein, then two other persons immediately interested in the will, must be notified. (Ibid. § 6.) If the will has not been deposited in the probate court during the testator’s lifetime, then the first and essential prerequisite to any valid act for the purpose of admitting the will to probate is to get the original instrument into court; and for this purpose the court is given the power to resort to attachment, arrest, imprisonment and other summary remedies. (Ibid. §§7-14. See, also, §30.) After obtaining the possession of the original will, “ the court shall cause the witnesses to such will, and such other witnesses or any person interested in having the same admitted to probate as may desire, to come before such court, and said witnesses shall be examined in open court, and their testimony reduced to writing and subscribed by them and filed.” (Ibid. §12.) But “if it shall appear to the court, when the will is offered for probate, that any witness thereto has gone to parts unknown,” the will may be probated upon other satisfactory proof. (Ibid. §13.) And upon the whole of the evidence, “ if it shall appear that such will was duly attested and executed, and that the testator at the time of executing the same was of full age and sound mind and memory, and not under any restraint, the court shall admit the will to probate.” (Ibid. §15.) And the will, the original instrument, “when admitted to probate as above mentioned, shall be filed in the office of the probate court and recorded, together with the testimony, in a book to be kept for that purpose.” (Ibid. § 16.) And if it should be desired to use the will in any other jurisdiction, “a copy of such recorded will, with a copy of the order of probate annexed thereto,” or “an authenticated copy of the will and order of probate,” and not in any case the original instrument itself, may be used. (Ibid. §§17; 18.) The original will must remain where it is originally probated. In all proceedings for the original probating of a will, it is contemplated by law, as follows from unavoidable implication, that the will itself, the original instrument, must be presented to and filed in the probate court. If, however, the will has been lost or spoliated or destroyed, a different procedure is had. (Ibid. §§ 45-49.) In such a case different and additional proof is offered, and “if the court, upon such proof, shall be satisfied that such last will and testament was duly executed in the mode provided by the law in force at the time of its execution, that the contents thereof are substantially proven, and that the same was unrevoked at the death of the testator, and has been lost, spoliated or destroyed subsequently to the death of such testator, such court shall find and establish the contents of such will as near as the same can be ascertained, and cause the same and the testimony taken in the case to be recorded in said court.” (Ibid. §48.) In all cases where the will has been executed outside of Kansas, by a non-resident of Kansas, both at the date of the execution of the will and at the date of his death, a still different procedure is contemplated by the statute relating to wills. (Ibid. §§24-28.) In such a case the statutes of Kansas contemplate that the will shall be originally probated at the foreign domicile of the testator; and shall, afterward, upon a duly-authenticated copy of the will and of the foreign probate, and upon other proper proof presented to the probate court in any county in Kansas where any property left by the testator may be situated, be there recorded • and be made effectual to pass the title to such property. Such a proceeding, however, in Kansas, if it can be called a probate at all, is only an ancillary probate and not an original one.
Mr. Redfield, in his work on Wills, (vol. 3, § 2, subdiv. 1,) uses the following language:
“The jurisdiction of the probate of wills, and everything pertaining to the settlement of estates, is, primarily, exclusive in the probate court for the district in which the testator is domiciled at the time of his decease. This general rule is of such universal acceptance in all the American states as scarcely to require any authority in its confirmation.”
(See, also, Ror. Int. St. L., p. 248; and In re Capper’s Will, decided by the supreme court of Iowa, May 13, 1892, 52 N. W. Rep. 6.)
It must be remembered that in this case no proof of the execution or existence of the will in question was introduced in the district court of Wyandotte county except a portion of the records of the probate court of such county and a certified transcript of a portion of the records of the district court of the Coo-wee-scoo-wee district, Cherokee nation, Indian country. No original will was produced, and it does not appear that the original will was ever in Kansas, and no witness testified that he ever saw the original will. The proof of the will furnished by the records of the probate court of Wyandotte county is founded solely upon the records of the district court of Coo-wee-scoo-wee district, Cherokee nation, Indian Territory, and the only proof of the will furnished by these last-mentioned records is that a copy of the supposed will is found recorded in such records; but no certificate is attached to the record, as is required by the laws of the Cherokee nation, showing whether such supposed will was ever “proven or not, as the case may be.”
Upon all the facts of this case, we think it must be held that the will was not sufficiently probated or proved to make it effectual to pass title to property situated in Wyandotte county; and therefore yje judgment of the court below was right, and it will be affirmed.
All the Justices concurring. | [
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Opinion by
Strang, C.:
This was an action to recover a balance due on the following contract:
“ Know all men by these presents, that we, H. G. Snyder and E. F. Odie, of Chapman, Dickinson county, Kansas, do hereby agree to furnish and deliver all the stone for county high school, on high-school grounds, in Chapman, Kas., convenient to the building, for 85 cents per perch, architect's measurement in the wall, to be paid as per architect's estimate to the contractors, viz., 90 .per cent, monthly.”
The action was begun before a justice of the peace, where the plaintiffs below obtained a judgment against the defendants for the sum of $300. An appeal was taken to the district court and the case was there tried by the court and a jury, resulting in a verdict and judgment for the plaintiffs below, for the sum of $258. A motion for new trial was overruled, and the case is brought here for review.
The plaintiffs in error first allege that there was nothing due the plaintiffs below when this suit was begun, and, therefore, that the court should have sustained the demurrer to the evidence of the plaintiffs below. This contention is based upon the theory of the defendants below that under the contract nothing was due until the. architect had made his estimate, and that such estimate had not yet been made when the suit was brought. Upon the question as to whether or not the estimate had been made when the action was begun, there is a conflict in the evidence. Mr. Snyder testifies that-there had been a measurement of the stone in the building by the architect from Topeka before the action was begun, while Mr. Fellows, examined by the other side, says there had been no estimate by the architect. This evidence, however, was submitted to the jury and passed upon by it, and its finding thereon is against plaintiffs in error. The evidence shows that all the stone was furnished and in the wall some weeks before the action was begun. With such evidence, and our view of the construction to be put upon the contract, we do not think the court erred in its instructions relating to this question.
Nor do counsel for plaintiffs in error lay much stress upon this question, as they say in their brief that the real controversy in the case is, whether the walls of this building should be measured without any deductions for openings, and double the corners, or by deducting the openings and measuring the corners singly. This question involves, to a certain extent, the construction to be put upon the written contract of the parties. If we construe the contract to mean that both the monthly and final measurements of the stone in the wall were to be submitted to the arbitrary determination of the architect employed by the county to look after the construction of the school building mentioned in the contract, then the contention of the plaintiffs in error is correct, and the case should be reversed, as the parties had the right to submit the measurement to the arbitrary determination of any person whom they should select, and agree to be bound by it. On the other hand, if we construe the language of the contract to mean that the parties agreed to be governed by a measurement known as “architect’s measurement,” and the evidence discloses the fact that there is no such system of measurement for the determination of the amount of material in the walls-of a building, then we think the court below was right in holding that the customary measurement must be employed to determine the quantity of stone in the walls of the building, and that what is the customary measurement was properly submitted to the jury, and particularly so in view of the fact that there is evidence tending to prove that, at the time the contract was signed, the plaintiffs here contemplated the final measurement of the walls of the building by the same system as that adopted by the jury.
We think, however, that the contract may be construed to mean, so far as the question of measurement is concerned, that the monthly measurements, or the measurements to be made as the work progressed, were to be made by the architect, to enable the contractors to receive 90 per cent, of their pay as the work progressed, but that the final measurements of the walls is not provided for in the contract. Looking to the contract between the county and the builders, we find no method for final measurement therein pointed out, which we think strengthens our construction of the contract under consideration. This construction necessarily leaves the final measurement of the walls of the building to be made according to the custom of such measurements in the community where the building was erected. That custom must be ascertained by the jury from the evidence. The evidence shows that different customs prevail in different communities, so that one method of measurements might be adopted by custom in Topeka, and another in Abilene. With this view of the contract, the refusal of the trial court to receive the builders’ contract with the county in evidence cannot constitute material error.
It follows, then, that the judgment of the court below must be affirmed, unless we ratify the construction placed upon the contract by the plaintiffs in error, which we are unwilling to do. We do not think the parties to the contract intended to submit the final measurement of the walls of the building to the arbitrary measurement of the architect.
We therefore recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
In this action R. H. Cooper seeks to recover $10,000 as damages from H. T. Dodson, for the alleged wrongful conversion of á stock of goods. Cooper claims to have purchased the goods from Horace Blakely on the night of December 25, 1884, and they were seized by Dodson, as sheriff, on December 27, 1884, upon attachments, at the instance of Blakely’s creditors, and as Blakely’s property. This is the second time the case has been here, and the nature of the transaction and the facts of the case were quite fully disclosed in the first consideration of the case. (37 Kas. 346.)
It is claimed by Dodson that the sale was made in bad faith, and for the purpose of defrauding the creditors of Blakely. To sustain this claim, testimony was offered tending to show that Blakely was insolvent; that the sale was made in the night-time, without an inventory, to a person who was unac quainted with the business, or the value of the stock of goods; that Blakely accepted land as a part consideration, which he had not seen, and that one tract offered by Cooper in payment was shown to Blakeley in the night-time. Dodson further attempted to show that the consideration claimed to have been paid was very inadequate, and that even the cash payment claimed to have been paid on the sale was turned over to the relatives of Blakely, instead of to his creditors. Cooper offered testimony tending to show that the sale was made in good faith, and without any intention to defraud anyone, or to delay the creditors of Blakely in the collection of their debts. The honesty of the sale was the main question in the case for decision, and while the jury sustained the bonafides of the transaction it is contended by Dodson that the result was reached through the misdirection of the jury. He asserts that the insolvency of Blakely and the inadequacy of the consideration claimed to have been paid for the goods, both of which were calculated to throw suspicion on the transaction, and were elements for the consideration of the jury, were taken out of the case by the instruction of the court. The following instructions were embraced in the charge of the court:
“A person, though insolvent or in failing circumstances, had a right to sell the whole of his property,- or any portion thereof, if done in good faith, and without any purpose or intention to thereby cheat or defraud his creditors, or hinder or delay them in the collection of their debts. And in order to make a valid sale as against his creditors, it is not necessary that such sale should be for money only, or for all cash down, but it may be made in exchange for other property, or partly for money and partly in exchange for other property, or partly on credit, and still be valid; it may be unwise as a business transaction, and still be a valid transfer as to creditors; nor does the fact of insolvency of the seller, or that he is in failing circumstances, raise any presumption of an intention on the part of such seller to cheat or defraud or hinder or delay his creditors in the collection of their debts.
“Every person, whether he has experience as a merchant or not, has the lawful right to buy or trade for a stock of goods, and may buy or trade for such stock from a person whom he knows to be insolvent, or in failing circumstances; and in so doing he may make the best bargain he can for his own interests, provided he does so in good faith, without intent to aid the seller to cheat or defraud his creditors, or hinder or delay them in the collection of their debts, and without knowledge of any intent to defraud creditors by means of the sale on the part of the seller; or, if such intent existed on the part of the seller, then without knowledge of facts or circumstances which would lead a reasonably prudent man to make inquiry into the purpose and intention of the seller in making such sale; and the fact that the value of the consideration paid or exchanged is considerably less than the value of the goods purchased or traded for is not, of itself, sufficient to raise the presumption that the seller thereby intended to cheat or defraud his creditors, or hinder or delay them in the collection of their demands, or that the purchaser intended to aid him to do so, or had knowledge of such intent.”
The correctness of these instructions was challenged by an objection made at the time the charge was given. It was overruled, however, and the giving of these is the principal error complained of. There is good reason for the complaint made against these instructions in respect to insolvency and the inadequacy of the consideration paid. Whatever may be the actual fact as to the honesty of the sale, it was charged to be fraudulent, and evidence tending to sustain the charge was offered. It is not often that fraud can be shown by direct evidence, and hence the suspicious circumstances developed by the testimony which tend to show a fraudulent purpose should be properly submitted to and considered by the jury. The law recognizes certain circumstances and conduct as marks of fraud, and whether those relied on in this case were of much or little consequence was a question for the jury themselves. Insolvency is an element of proof entitled to consideration in canvassing • the badges of fraud in order to determine the honesty of the transaction. Proof of insolvency does not necessarily establish fraud, but a sale of all his property by one insolvent is a circumstance which, in connection with others, may be sufficient to awaken suspicion and create a presumption of a fraudulent design. So, too, in respect to the inadequacy of consideration. It cannot always be held to be a fraud as a matter of law, but where a sale is made for much’ less than the actual value it is such an indication of fraudulent intention as requires explanation. If the inadequacy was slight, it would only be weak evidence, but, if it was considerable, it might, when coupled with other facts, be controlling proof of dishonesty and fraud. Whether or not there is such a disparity between the real value and the consideration paid as to justify an inference of fraud, is for the jury to determine. But the ruling of the court in practically eliminating this element from the case, as well as the insolvency of the debtor, cannot be upheld. (Lewis v. Hughs, 49 Kas. 23; same case, 30 Pac. Rep. 177; Davidson v. Little, 22 Pa. St. 245; Shelton v. Church, 38 Conn. 416; Bartles v. Gibson, 17 Fed. Rep. 293; Commission Co. v. Mason, 16 Mo. App. 473; Brown v. Hedge Co., 64 Tex. 396; Rhoads v. Blatt, 84 Pa. St. 31; Fisher v. Shelver, 53 Wis. 493; Wilson v. Jordan, 3 Woods, 642; In re Alexander, 4 N. B. R. 181; Wait, Fraud. Convey., §§ 231, 239, and cases there cited.)
By the charge of the court, the fact that the consideration was considerably less than the actual value was treated by the court as of little or no consequence, and that insolvency was a matter of no importance in determining the fairness and good faith of the parties to the transaction. The defendant in error does not contend that the instructions are correct, but he argues that other portions of the charge are such as to eliminate the error from these. We find nothing, however, which, cures the vice in the instructions quoted, nor which would justify us. in holding the error harmless. There are' some facts and circumstances calculated to excite suspicion as to the fairness and honesty of the sale. Other facts in the case may be sufficient, however, to show that they are not inconsistent with honesty and fair dealing; but all important elements of proof should be fairly submitted to the jury and given proper weight.
We are unable to say that the error in the instructions did not mislead the jury, and hence there must be a reversal of the judgment and a new trial of the cause.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action by the Kansas Town Company and other owners of real estate situate within the limits of the city of Argentine, to enjoin the collection of taxes levied by the officers of the city of Argentine for the year 1891. The case was tried upon an agreed statement of facts, from which it appears that Argentine is a city of the second class, and that the property of the parties complaining was situate within the limits of the city during the year for which the taxes were levied. At the proper time for the levying of taxes for the year 1891, an ordinance was passed by the city making the following levies, to wit: 10 mills on the dollar for general revenue purposes; 5 mills on the dollar for general improvement purposes; 1-|- mills on the dollar for interest on bonded indebtedness; 8 mills on the dollar for water; 8 mills on the dollar for electric light; 2 mills on the dollar for supplies for fire department.
These levies were all charged against the property within the limits of the city for the year 1891; but none of the charges are complained of by the defendants in error, except the levies for water, electric light, and for fire-department supplies. As to these, it is contended that they are illegal, and in excess of the power of the mayor and council of cities of the second class to levy. The right of such a city to contract for water, electric light and supplies for the fire department is not disputed, but it is argued that it must be paid out of the general revenue fund, and that, under § 32 of the act authorizing the levy of taxes, .cities of the second class are limited to a levy of 10 mills on the dollar for such purposes. (Gen. Stat. of 1889, ¶788.) It provides that a city of the second class is authorized “to levy and collect taxes for general revenue purposes not to exceed 10 mills on the dollar in any one year,” etc. The plaintiffs- in error contend that the city is authorized to contract for both water and light; that authority to contract for these implies the authority to pay for the same; and that, as no special provision has been made for the payment of these necessities, it is implied that it is to be done in the ordinary way, by the levy and collection of taxes. They further argue, that the only statutory limitation is to be found in §40 of the act governing cities of the second class, which provides that “at no .time shall the levy of all city taxes of the current year for general purposes, exclusive of school taxes, exceed 4 per cent, of the taxable property of the city, as shown by the assessment books of the preceding year.” (Gen. Stat. of 1889, ¶ 796.) It appears that the total of the levies made by the city of Argentine was 3 cents and 4 mills, and therefore came within the limitation of §40. It is conceded, however, that this section grants no power to levy taxes for any purpose; and it must also be conceded that the only express authority to levy taxes for these purposes is found in § 32 of the act, which distinctly limits the total levy for general' purposes to 10 mills on the dollar. The power to levy taxes must be expressly granted, and we think that the authority to levy the taxes in question, if it exists at all, must be found in § 32. The limitation in that section is 10 mills on the dollar, while § 40 places a limit of 40 mills upon the aggregate levies for the current year for general purposes, exclusive of school taxes. We think there is no real inconsistency between these two provisions. The first is a limitation upon the levy to meet the current and ordinary expenses of the city. Supplies of water, light and for the fire department are among the daily necessities of the city, and naturally fall within the class of expenses which are to be paid out of the general revenue fund. The limitation of § 40 not only covers this levy, but all other levies of city taxes for general purposes, exclusive of school taxes. The city is authorized to levy and collect taxes for the payment of bonded indebtedness and the interest on the same, as well as to pay off and discharge any judgment obtained against the city; and the levies for these purposes, including that for general revenue, must not in the aggregate exceed 40 mills on the dollar. (Weber v. Traubel, 95 Ill. 427.) So construed, there is no inconsistency between these provisions; but, if they were held to be inconsistent, the limitation in § 32 would necessarily prevail, as it is the latest legislative expression. Section 32, as it now stands, was enacted in 1881, while the provisions of §40 were enacted in 1872. In holding the taxes to be excessive, and in allowing an injunction against the same, the learned judge of the district court stated the following, among other cogent reasons for his judgment:
“ The furnishing of water, light, and proper facilities for the control and extinguishment of fires, is an exercise of authority for the public use, and is necessary for the public welfare and protection of such city and its inhabitants; and, in my opinion, is a proper item of expenditure from the fund provided for general revenue purposes, and comes within the provisions for levying taxes for general revenue purposes.
“ In the absence of any other provision for raising revenue therefor, I think the expenditure to be made for these purposes and the contracting power of said cities therefor, is limited to the amount of revenue provided by law to be raised for such fund. It therefore follows that a levy of 10 mills on the dollar having been made by said city for general revenue purposes, the authority of said city to levy taxes for such purpose was thereby exhausted, and the further levy of 8 mills for water and 8 mills for light and 2 mills for fire department was without authority of law, illegal, and void. (City of Leavenworth v. Norton, 1 Kas. 432; Burnes v. City of Atchison, 2 id. 454; Railroad Co. v. Woodcock, 18 id. 20; Comm’rs of Osborne Co. v. Blake, 25 id. 356.)
“It is claimed by counsel for the defendants that the limitation upon the authority of said city to levy taxes for these purposes is contained in § 40 of the act relating to cities of the second class, and that the authority of said city to contract for supplying the city with water and light, and to organize and maintain fire companies and furnish the necessary supplies therefor, necessarily carries with it the authority to levy such taxes as may be required to pay therefor, within the limit fixed by said § 40, notwithstanding the fact that there is no provision of the statute which in terms authorizes the levy of taxes for such purposes.
“As above stated, in my opinion, under the provisions of the constitution above referred to, there can be no implied power of taxation vested in the officers of said city, and such taxes can only be levied in pursuance of some law, distinctly stating the object of the same; that no provision of law exists under which such taxes can be levied except the statute authorizing the levy for general revenue purposes, and that such levies necessarily came within the limitation fixed by such statute.
“In the case of Manley v. Emlen, 46 Kas. 655, cited by counsel for defendants, the levy complained of was within the limit for general revenue purposes; and for that reason was held to be valid. In the case of Waterworks Co. v. City of Columbus, 46 Kas. 666, the only question decided was as to the validity of the contract between the waterworks company and the city, which the court held to be valid, and ordered that a peremptory writ of mandamus issue, commanding the mayor and council of said city to levy a tax to pay for Avater furnished thereunder. It does not appear what taxes had been levied by said city; but I think it must be presumed that the limit for general purposes had not previously been exceeded.
‘‘The limitation prescribed' by said §40, was obviously intended to apply to the levy of taxes provided for in the preceding sections, and which are authorized by law to be levied.”
We think the court correctly interpreted the statute, and that its judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
It was decided in Shelden v. Comm’rs of Butler Co., 48 Kas. 356, that—
“On the second Monday of January after each general election at which a commissioner has been elected, the board of county commissioners as an organized body is dissolved, and the office of chairman is vacant, and, before the commissioners can transact any county business other than to elect a chairman, or fill a vacancy in the office of a commissioner, the board must be again organized, and the hands of such new board or organization, as to the designation of the official newspaper of the county, are not tied by a prior order of the preceding board of county commissioners.”
It logically follows, from the opinion filed in that case, that the board of county commissioners of Coffey county, which was about to be dissolved under operation of law, did not have authority, on the 7th day of January, 1892, to enter into a contract with C. O. Smith concerning the official newspaper of the county and the county printing thereof for another year, so as to tie the hands of the new board of county commissioners, which met and organized on the second Monday of January of that year, being only four days after the 7th of January, the date of the contract complained of.
It is a matter of general publicity, that in the election of county commissioners the selection of the official newspaper of the county enters more or less into the contest. The views of the candidates for commissioners as to what newspaper shall be designated the official paper of the county often determine the result. When the result of the election is legally declared, the will of the majority ought to be promptly and cheerfully acquiesced in. It does not seem fair or just for the old board, just as it is going out of office, to forestall the new board in the designation of the official newspaper of the county. There are no good' reasons why the old board should be permitted to tie the hands of the new board in such a matter, and there are manifold and manifest reasons why they should not have that power. The same reasons for limiting contracts for general county expenditures do not exist as in designating the official paper of the county. We repeat what we said in Shelden v. Comm’rs of Butler County, supra: “To avoid complications or other troubles, the designation of the official newspaper should be made as early in each January, after the board is organized, as is convenient for action to be had.”
In the case of Comm’rs of Harper Co. v. The State, ex rel., 47 Kas. 283, (27 Pac. 997,) the only material question decided was, that a board of county commissioners had the power, in the absence of fraud or collusion, to make a contract to pay for the county printing at legal rates, although other parties offered to do the printing at less than legal rates.
The judgment will be reversed, and the cause remanded, with direction to the court below to sustain the demurrer filed to the petition.
All the Justices concurring. | [
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Opinion by
Strang, C.:
On September 15, 1888, the plaintiff, W. D. Burke, leased certain premises of the defendant, J. K. Finley, situate in Emporia, Lyon county, Kansas. Said lease contained a waiver of the benefit of the exemption laws of Kansas. Afterward, rent became due on said lease, and suit was brought against the plaintiff therefor, and on the 7th of October, 1889, a judgment was had against him for quite a large sum of money. November 23, thereafter, execution was issued thereon, and garnishment proceedings were run against the A. T. & S. F. Rld. Co. Said company answered that it was indebted to said Burke in the sum of $54. Thereafter, on December 30, 1889, the defendant, Burke, filed in said cause his motion to discharge said garnishment proceedings, and supported the same by an affidavit showing that he was a citizen of Kansas and had been for a year or more; that he had a family consisting of a wife and three small children, who were wholly dependent upon his labor and earnings for support; and that the money garnished in the hands of said company was wholly due for personal services rendered by him to said company between September 26, 1889, and October 27,1889; and that all of the said sum was needed for the support of his said family. There was no evidence to rebut this showing in any way, and the only question decided by the court below was whether the defendant, Burke, had waived the exemption guaranteed to him and his family under ¶ 4589, General Statutes of 1889, by reason of the exemption clause in said lease. The court below re fused to discharge said garnishment proceedings, thereby. holding that Burke had waived the exemption guaranteed by said ¶4589, General Statutes of 1889. The only question for this court to decide is, whether the trial court erred in refusing to discharge said garnishment proceedings.
We do not think the waiver -of the exemption laws of Kansas, contained in the lease upon which the judgment against Burke was obtained, operates as a waiver of the exemption of wages provided in ¶ 4589, General Statutes of 1889. The waiver contained in the lease aforesaid must be limited to the property rights of the debtor under the general exemption laws of the state. In creating the exemption under ¶ 4589, the legislature did not intend to create a new and additional personal privilege in the debtor, that he might claim or waive at his option, but to create an exemption in the interest and for the benefit of the family of the debtor. This exemption is not given to every debtor. It is limited to those debtors who have families dependent upon their earnings for support. Being created for the benefit of the debtor’s family, he cannot waive it. It follows therefore that this case should be reversed and sent back for further proceedings.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J.:
This case was first heard before the commission, and at the February session an opinion was filed by Strang, commissioner. On the argument for a rehearing, our attention is directed to various matters which seem to have been overlooked, and, for a clear understanding of the case, it is necessary to state more fully and accurately the facts as they are shown by the record. This action was commenced in the district court of Kingman county on December 27, 1889, by the plaintiff against George Gerson & Co., for $300, on anote dated October 22, 1889, due in 60 days. An affidavit and bond for attachment were filed, and an attachment issued, and levied on a portion of the stock of merchandise of Gerson & Co. Thereafter, Joseph Gerson filed a motion to discharge said goods from attachment, claiming the same as mortgagee from George Gerson & Co. Joseph Gerson also claimed that these goods were not subject to attachment because of the following proceedings: That on December 17, 1889, an action was brought in the district court of Kingman county by George W. Rodgers v. George Gerson & Co., on two promissory notes, one dated July 29, 1889, due five months' after date, for $500, executed by George Gerson and Isaac Levy, payable to order of Joseph Gerson, and the other dated July 13, 1889, due three months after date, for $212, signed by George Gerson & Co., also payable to the order of Joseph Gerson, both of these notes being indorsed by Joseph Gerson in blank. An affidavit for an attachment sworn to by George W. Rodgers was filed in that action, in which George Ger-son & Co., it was alleged, were about to dispose of their property with intent to defraud, hinder and delay their creditors. An order of attachment was issued in that action, and the whole stock of goods was levied on by the sheriff. On' the same day Joseph Gerson commenced an action against the sheriff to recover the immediate possession of the goods. In his affidavit filed to obtain an order of replevin, he alleges that the stock of merchandise was worth $5,000. In his petition in that action he alleges that he is entitled to the posession of said goods under a chattel mortgage executed by George Gerson and Isaac Levy to him, dated November 26, 1889, given to secure two promissory notes for $1,600 each, both dated November 26, 1889, due, respectively, in three and six months from date, and ibearing interest at the rate of 10 per cent, per annum, payable to the order of Joseph Ger-son & Co. The chattel mortgage covers the entire stock of merchandise, consisting of drugs, patent medicines, toilet articles, paints, oils, liquors, cigars, glass, and stationery, perfumes, and all other goods, including fixtures, show cases, safes, etc.; also, soda fountain, generator, three copper founts, etc. A writ of replevin was issued, served by the coroner, and under that Joseph Gerson obtained possession of the entire stock, and he claims that by reason of these proceedings the property, became in custodia legis, and therefore not subject to attachment.
On the other hand, it is contended that these proceedings were collusive, and instituted and carried on by Rodgers on the one hand, and Gerson on the other, for the express purpose of withdrawing the entire property of George Gerson & Co. from the reach of their creditors. This claim is not considered or mentioned in the opinion heretofore filed. In order to fully understand the grounds of the plaintiff’s claim in this respect, it is necessary to state some further facts. Joseph Gerson and George W. Rodgers both resided in the city of Newton, in Harvey county. The stock of goods in controversy in this action was kept in Kingman county. Joseph Gerson and George W. Rodgers both went from Newton to Kingman oh the same train on December 17, 1889. The $500 note sued on by Rodgers had been discounted by the Citizens’ Bank of Newton, of which Rodgers was the cashier, and Rodgers, after it became due, and about the 27th of November, took the note up from the bank, as he testifies. Joseph Gerson, who indorsed both of these notes sued on by Rodgers, was, according to his own statement, worth from $50,000 to $75,000, and according to Rodgers’ testimony was well off. Immediately on his arrival at Kingman, Rodgers went to the hotel, registered, left his overcoat, and from there went to the drug store of Gerson & Co. and demanded immediate payment of his note. He then went back to the hotel and got his dinner. After dinner he went to the store and saw a paper on the window, stating that the store had been closed under a chattel mortgage given to Joseph Gerson, and found the door locked. He says that was the first information he had that Joseph Gerson had a chattel mortgage. He then went in search of a lawyer, and in that search found the office of Lydecker & Cooper—Joseph Gerson’s attorneys. They informed him that they were busy, but that they could refer him to an attorney in a few minutes who could serve him, and shortly thereafter John W. Cooper, a young attorney who stayed in the same office, came in and was introduced to Rodgers, and by Rodgers employed to commence the attachment suit. A replevin action was commenced almost simultaneously on the same day, and was brought by Lydecker & Cooper, as attorneys for Joseph Gerson. On the 26th day of November, 1889, being the same date as that of the chattel mortgage, Isaac Levy conveyed to Abram Cole, who resided also in Newton, and who was a son-in-law of Joseph Gerson, all of the real estate owned by Levy, and being all of the real estate of any considerable value owned by any member of the firm of George Gerson & Co.
Neither the deed nor the chattel mortgage was placed on record until the 17th of December, the date of these suits. Both of them were taken from Newton to Kingman by Joseph Gerson on that day, and filed for record. Charles Bucher, an attorney at Newton, testified that about the middle of July, 1889, Joseph Gerson called him into the store of A. Cole, in Newton, and said that times were a little close, and he did not know just how business was going, and thought of taking in George’s store at Kingman, and wanted to know the best way of standing the creditors of George off; that Joseph Ger-son also asked him, if an attachment were levied upon the stock and then he should replevy, if any other judgments could be levied upon the goods after that; that he (Bucher) told Gerson that if that was what he wanted to do, that it was as good a way as any; and then added, that he (Gerson) ought not to do such business with his own son. Bucher was not employed by Gerson, nor paid for his counsel. These statements of Bucher are not denied. It is true that Rodgers and Joseph Gerson deny having any conversation with each other while or before going on the train about the business they were going on, and Joseph Gerson gave Rodgers a false reason for his trip, viz., that he was going to look at a farm. It appears clearly from the evidence, that in the stock of goods included in the mortgage there were intoxicating liquors of the value of $500 or $600. After the replevin suit, Rodgers gave no redelivery bond; and, if mere change from his testimony in the case repudiates the claim made in his affidavit, that Gerson & Co. were disposing of their property to defraud their creditors, he repudiated that claim. Rodgers’s undertaking in attachment is signed by R. W. Hodgson, whose name also appears as a surety on Gerson’s replevin bond. Rodgers testified as follows:
“Ques. On what facts did you act in procuring the attachment against Gerson & Cq.? Ans. The fact that they owed me the money past due and did not pay it, and considered it best, on finding that the store had just been locked up under a chattel mortgage; it looked to me as though it were time I was looking out for myself.
“Q. You considered this chattel mortgage to Gerson as being a fraudulent business to defraud creditors? A. No, sir; I did not consider it any such thing.
“Q. Well, how did you consider it, if you considered it at all? A. Well, as far as that was concerned, the only thing that I took into consideration was this: that is, I saw there— I believe there was stock enough there, after paying Joseph Gerson’s mortgage off, to pay me off.
“Q,. How much was Joseph Gerson’s mortgage? A. I did not know at that time; I have been told since it was, I believe, $3,000. I believe I heard it was.
“ Q,. If you did not know at that time, how did you consider that there was enough for both of you? A. I know that Joseph Gerson was slick enough not to loan money on goods unless he had good security. He always gets good security.”
There are 14 eases pending in this court, brought by various attaching creditors, all depending on the same state of facts.
It has already been held by this court that a chattel mortgage upon intoxicating liquors is void, and that, where other property besides intoxicating liquors is included in the mortgage, that it is void in toto, both as to the liquors and as to the other property. (Flersheim v. Cary, 39 Kas. 179.) The foundation of Joseph Gerson’s claim was therefore void.
It is contended that Joseph Gerson had obtained possession of the mortgaged property prior to the levy of the attachment, and that this cured the illegality in the mortgage; but in the replevin action Joseph Gerson claimed these goods, not because of a delivery to him as a pledge, but in his petition he bases his rights solely on this chattel mortgage. Probably an ill-founded claim prosecuted in good faith might be held sufficient to place the property in the custody of the law; but what did the undisputed facts in this case show? Gerson claims a stock of goods much in excess of the amount of his mortgage in value, under a mortgage void in law. George W. Rodgers, a friend of Gerson’s, living at a considerable distance from the place where Geo. Gerson & Co. live, takes up two notes which had been originally given to Joseph Gerson, on which Joseph Gerson, a man of wealth, living in the same town, was indorser, and goes in company with Joseph Gerson to a town distant from his home, and there employs a lawyer from the same office occupied by Ger-son’s lawyers to commence an attachment suit, procures the same person as surety on his bond that Gerson has on his replevin bond, then attaches not merely a sufficient amount of goods to satisfy his claim and costs, as a creditor acting in good faith would ordinarily do, but the entire stock of goods held by Gerson & Co., which the evidence shows to be worth somewhere from $5,000 to $6,500.
This court ordinarily will not weigh conflicting testimony, but where any ‘evidence was before the trial court to sustain its findings, will uphold them. The undisputed facts in this case, as they appear in the record presented for our consideration, force us to the conclusion that this action was collusive. A bona fide controversy did not exist between Rodgers and Joseph Gerson, under which each party claimed this entire stock of goods in good faith. Rodgers’s claim, on the one hand, was but for $712, interest, and costs, and Joseph Ger-son’s claim, even if legal and well founded, was but for $3,200. Upon the facts here presented, we must hold that these suits were collusive, and, therefore, the property was not in the custody of the law. Gerson’s chattel mortgage being void for the reasons stated, of course affords no ground for discharging the attached property. It follows, therefore, that a rehearing should be granted, and' that the order of the district court discharging the attached property must be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On the 25th day of March, 1891, William M. Mitchell was elected railroad commissioner of the state, as provided by § 2, chapter 124, Laws of 1883, for the term commencing April 1,1891. (Gen. Stat. of 1889, ¶ 1326.) Mitchell qualified and entered upon the duties of his office. On the 8th day of February, 1893, at a regular session of the executive council of the state, Mitchell was removed from the office as such commissioner, and John Hall was elected to fill the vacancy caused by the removal.
On the part of the plaintiff, the contention is, that the executive council, under the statute, has the power to remove the commissioners, or any of them, at its discretion, and elect others to fill their places. On the other hand, the defendant claims that his term of office has been declared by the statute to be three years; that his term has not expired; that he does not hold the office subject to the order of the executive council, and, therefore, under the provisions of the constitution, that he has not been legally removed. Section 1 of article 15 of the state constitution ordains that —
“All officers whose election or appointment is not otherwise provided for, shall be chosen or appointed as may be prescribed by law.”
Section 2 ordains that—
“The tenure of any office not herein provided for may be declared by law; when not so declared, such office shall be held during the pleasure of the authority making the appointment; but the legislature shall not create any office the tenure of which shall be longer than four years.”
The office of railroad commissioner is created by the legislature, by the statute. It is not an office specifically provided for in the constitution. The legislature might have devolved the duties of such an office upon the executive council, or any member thereof. It is conceded that the legislature, in creating the office, had the right to declare the term or tenure thereof) and also that if the term or tenure of the office is not fixed by the statute, the office is held during the pleasure of the executive council, the authority making the appointment. Therefore the question in this case is over the construction of § 2, chapter 124, Laws of 1883. (Gen. Stat. of 1889, ¶ 1326.) The part we are called upon to consider reads:
“The executive council shall, before the first day of April next, elect three competent persons, who shall constitute a board of railroad commissioners, and who shall hold their offices from the date of their respective elections for the terms of one, two and three years from the first day of April next. The executive council shall, in like manner, before the first day of April in each year thereafter, elect a commissioner, to continue in office for the term of three years from said date; and in case any vacancy occurs in said board, by resignation or otherwise, shall, in the same manner, elect a commissioner to serve for the residue of the term. The executive council may at any time remove such commissioners, or any of them, and elect others to fill the vacancy; and all votes cast by each member of the executive council for the election of any person to the office of railroad commissioner, or removal from the same, shall be recorded in a journal kept by them for that purpose, which journal shall be kept open at all times to public inspection.” (Gen. Stat. of 1889, ¶ 1326.)
We are not to pass upon the wisdom or folly of the statute, but to construe its language:
“It is only when all other means of ascertaining the legislative intention fail that a court may look to the effect of a law; then their interpretation becomes a sort of judicial legislation.” (Dudley v. Reynolds, 1 Kas. 285.)
A court may not refuse to language its ordinary import, when construing a statute:
“ It is a uniform rule of construction that one part of a statute should be construed by other parts of the same statute, so that, if possible, no clause or part shall be treated as superfluous, and especially when the two are parts of the same section.” (Judd v. Driver, 1 Kas. 464.)
“A statute should be so construed that effect be given, if possible, to every clause and section of it.” (Bridge Co. v. K. P. Rly. Co., 12 Kas. 413.)
“Statutes must be so construed as to harmonize their various provisions, and, so far as possible, to give reasonable effect to all.” (Gardenhire v. Mitchell, 21 Kas. 88.)
With these rules of construction, we can no more strike from the statute the clause, “The executive council may at any time remove such commissioners, or any of them, and elect others to fill the vacancy,” than we can eliminate the words “to continue in office for the term of three years.” If possible, we must give effect to all the language, and, if possible, the statute must be construed to harmonize. The statute, in our opinion, may be construed to read “as continuing in office the commissioners for the term of three years, unless sooner removed by the executive council.” If the statute be construed in this way, some operation is given to all of its provisions; that is, the term of office of railroad commissioner is for three years, unless removed before the expiration of the term by the executive council, but if there is no removal or resignation, the term expires in three years. (The State v. Stevenson, 46 N. J. L. 344; The State v. Hawkins, 44 Ohio St. 98; Ex parte Hemnen, 13 Pet. 258.) The legislature, in creating the office, it is conceded, had the right to provide that the office should be held during the pleasure of the authority making the appointment, and if the legislature, in creating the office, had not intended to permit the executive council to remove the commissioners at its discretion, the clause, “the executive council may at any time remove such commissioners or any of them,” would have been omitted. The provision concerning “the term of three years” is no more operative than the provision, “the executive council may at any time remove.”
It is contended that there was a fixed intention upon the part of the legislature to declare the term of office of a railroad commissioner to be for three years, and nothing less, and no removal before that time. A strained and unusual construction will be given to the words of the statute to carry out such a meaning, because, to do so, a part thereof must be eliminated. If it be suggested that in giving operation to the clause, “the executive council may at any time remove such commissioners,” it will limit or qualify the prior clause in the statute, “to continue in office for the term of three years,” we answer that these words exist in the same statute, and not only in the same statute but in the same section. Therefore they must not be overlooked. Such a construction ought to be given to these later words of the section of the statute referred to as will not suffer their operation to be defeated. (Reyburn v. Brackett, 2 Kas. 227.) These later words in the section of the statute ought and must prevail as much as the other words, and therefore the necessity of harmonizing the language or clauses of the statute. That the clause, “ the executive council may at any time remove such commissioners, or any of them,” was fully considered and intended to have effect, is apparent from an examination of the journals of the senate and house of the session of the legislature of 1883. Upon the first day of the session of that legislature, bills were introduced relating to the subject of state control of railroads. The senate and house had their separate bills and each included a separate measure. Day after day, for several weeks, the committee of the whole consulted upon this subject. Upon the disagreement of the two houses, a conference committee was appointed and the bill containing the power of removal “for. good cause shown” was defeated upon the disagreement of the two houses and the report of a conference committee. Subsequently, a second conference committee was appointed and its members reported a substitute for 10 different bills, which was finally adopted in the closing days of the session, and is the statute referred to. The second conference report, which was accepted, provided that “ the executive council may at any time remove such commissioners, or any of them,” and the words, “for good cause shown,” were omitted. It is clearly evident, therefore, that the words, “for good cause shown,” after being fully considered, were intentionally rejected from the proposed act, and the statute as passed, purposely and after much contention, included the clause permitting the removal of the commissioners at the discretion of the executive council. The proceedings of the two houses of the legislature upon this subject as reported in the journals are very significant in support of the conclusion reached by this court. (House Journal, 1883, pp. 805-984, et seq.; Senate Journal, 1883, pp. 628-776.)
If it be insisted that the clause, “the executive council may at any time remove such commissioners,” refers to the removal after a trial and conviction for misfeasance or malfeasance in office by a competent legal tribunal, then the words in this clause have no operation, as the tribunal would remove, not the executive council. If it be urged that this clause must be construed to mean a removal for cause, or upon charges after notice, then, to give such a construction, we must judicially interpolate into the statute words to change its meaning; and, to do so, we must add language expressly rejected by the legislature, after great deliberation upon the subject. The statute, as we think it must be construed, makes the term of office of a railroad commissioner three years, subject to the discretion of the executive council, who may remove the com missioners at any time: and when the council, in j ) i its discretion, determine to remove a commissionerj the courts, under the statute, cannot prevent or interfere. “The office was created by the legislature, and that body might abridge its-term by express words, or specify an event upon the happening of which it should end.” (People v. Whitlock, 92 N. Y. 191; Conner v. Mayor, etc., 5 id. 285; Long v. Mayor, etc., 81 id. 425.) In this case, the event specified by the legislature is removal by the executive council.
In New York, a law has recently been enacted by the legislature, the fifty-fifth section of which reads: “The term of office of each county engineer shall be three years, unless sooner removed, and his salary shall be fixed by the board of supervisors and be a county charge.” (N. Y. Session Laws, 1893.) Section 3, article 10, of the constitution of New York, is similar to the provisions of the constitution of this state under consideration. (See ¶ 123, p. 646, vol. 1, Rev. Stat. of New York [Birdseye], 1889; 46 N. Y. 61; 34 id. 398; 94 id. 591; 30 Hun, 438.) The lawmakers of that state evidently did not suppose that, in providing that the term of office of county engineer “ shall be three years, unless sooner removed,” they were declaring the term of such office to be definitely for three years without the power of removal. That statute is very similar to § 2, chapter 124, Laws of 1883.
In the course of the argument, it was suggested that the question before the court was somewhat tinged with a political aspect. The political significance to this case, if any, is slight—merely transitory. The rule declared will apply to the newly-appointed commissioners as well as to the defendant ; hence, if the present executive council should desire, it may remove the newly-appointed commissioners at any time; or, if this council shall be succeeded by other members at the next election for state officers, such new executive council may remove at any time the railroad commissioners appointed by the present council. But even if the question raised in this case has a political significance, that will not prevent this court from a prompt and just discharge of its duty. Inter ests growing out of personal or party polities are frequently involved in the courts, and although the court rendering a decision in such a case can hardly escape having its judgment criticised or its motives impugned, nevertheless, a duty imposed by the statute, however delicate or responsible, cannot be declined. Official obligation and fealty to the constitution, with an upright judge, are above and beyond personal friendships or party interests. (The State v. Kennon, 7 Ohio St. 546.) “The courts are for the people, not for a party, and every person should confidently apply to them with the assurance that his rights, and not his politics, will be considered and adjudicated. A free government is best subserved when based upon equitable and just laws, with fair and impartial courts, open and ready, as far as possible, to redress all grievances.” (The State v. Christy, S. C. Neb. [MSS.])
A judgment of ouster against the defendant, Mitchell, will be entered, with costs.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action brought by James Watson against Michael and Anna Knauber in the district court of Johnson county, to correct a mutual mistake in a deed to 40 acres of land. The plaintiff asked that the deed be reformed so as to make it the joint deed of the grantors. To this petition the defendants first interposed a demurrer, which was overruled. The defendants afterwards filed a verified answer, denying the general allegations of the petition. The case was docketed for trial on the 24th day of September, 1888. The defendants and their attorneys lived at Council Grove, in Morris county. The case was called for trial between the hours of 11 and 12 o’clock of the day upon which it had been assigned for trial. No one appeared for the defendants and judgment was rendered against them. It seems that on the 21st day of September, 1888, the defendants prepared an application for a continuance at Council Grove. This application was supported by the affidavit of the family physician, showing the condition of Anna Knauber; that she had been under his immediate care for four weeks; that it was impossible for her to leave her bed, and that she could not give evidence in court. The husbaud made an affidavit showing the wife’s sickness and the materiality of her evidence. One of the attorneys for the defendants made an affidavit establishing the fact that since he had learned of Mrs. Knauber’s sickness he had attempted to get a statement from her as to what her evidence would be, but that she had been too sick to furnish such evidence, and he could not, therefore, take her deposition. The application and affidavits were all prepared on the 21st day of September. By the affidavit of J. W. Parker, an attorney at Olathe, it appears that the application and affidavits, addressed to the firm of which he was a member, were taken by him out of the post office about 1 o’clock p. m. ; that at the same time he received a letter employing him as attorney in this case; that he filed the application and affidavits for a continuance, upon the opening of court at 2 o’clock in the afternoon of the same day the judgment was rendered; that he then first learned that the case had been disposed of. The defendants thereupon filed a motion for a new trial, upon the following grounds: First, accident and surprise which ordinary prudence could not have guarded against; second, that the judgment and decree are not sustained by sufficient evidence. The court overruled the motion, and the plaintiffs in error bring the case here upon the two assignments of error.
It is contended by the plaintiffs in error that the record shows that they were diligent in their preparation of their application for a continuance. We are of the opinion that the showing made was sufficient to entitle them to a continuance. But the real question for us to decide is whether the defendants were diligent in making their application. The case was one of sickness, which would naturally appeal to the judgment of the court. According to the affidavit of the family physician, Mrs. Knauber had been sick at least four weeks. The attorney does not state when he first learned of her sickness. It would seem that her sickness was of such a character that it must have been known to the husband or her attorney that she would not be able to attend court or to have her deposition taken. Upon such a state of facts, it was clearly the duty of her attorney to have made a showing for a continuance in proper time. The September term of court in Johnson county commenced on the first Monday. Applications for continuance should not ordinarily be made so late in the term, unless the cause for such continuance arose subsequent to the commencement of the term. There is no showing made as to when the application and affidavits were mailed at Council Grove. If mailed, as stated by counsel for plaintiffs in error in their brief, at once after they were sworn to, on the 21st, they should by due course of mail have reached Olathe before noon of the 24th. We are of the opinion that the plaintiffs in error did not show such diligence as to make it an abuse of discretion in the trial court to refuse to grant a new trial on the ground of accident and surprise which ordinary prudence could not guard against.
Upon the second assignment of error, that the judgment is not sustained by the evidence, the record fails to show that the evidence is all here; hence we cannot determine that question.
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The petition in error in this ease ought to be dismissed from this court for reasons not necessary to state, as, upon the merits of the case, as presented by the plaintiff in error itself, the judgment of the court below must be affirmed. It appears that the case was first instituted before a justice of the peace of Barber county, and afterward on appeal taken to the district court of that county, where the plaintiffs, George N. Neff and Mary E. Neff, his wife, with leave of the court, filed an amended bill of particulars. The defendant, the Bank of Sun City, demurred to this amended bill of particulars, for the reasons, (1) that the district court had no jurisdiction; and (2) that the bill of particulars did not state facts sufficient to constitute a cause of action. Thfe demurrer was overruled, and the case was then tried before the court and a. jury, and the jury found in favor.of the.plaintiffs and against the defendant, and assessed the plaintiffs’ damages at $110, and .the court rendered judgment accordingly; and to reverse this judgment, the defendant, as plaintiff in error, brings the case to this court. ....
The plaintiff in error, defendant below, relies for a reversal in this court upon the one ground only, that the amended bill of particulars of the defendants in error, plaintiffs below, did not state facta sufficient to constitute a cause of action. One of the allegations of the bill of particulars reads as follows;
“ The Bank of Sun City, one of the above-named defendants, was, on the 10th day of June, 1887, and ever since said date until the institution of this suit has been, a private corporation, organized and existing as such under and by virtue of the provisions of the laws of the state of Kansas.”
It is now claimed by the plaintiff in error that this allegation is not a sufficient statement. that the . Bank of Sun City was a corporation at the time of the institution of this action. We think, however, that the allegation is sufficient in this respect.
The bill of particulars further alleged, that the plaintiffs owned a certain building in Sun City; that the defendant bank used and occupied the same for a certain period of time with the permission of the plaintiffs; that the use and occupation of the same for that period of time was reasonably worth $137.50; “that said defendant has not. paid the same or any part thereof, except the sum of $27.48, as. per exhibit A, filed in this case;” “that there is due said plaintiffs for the use and occupancy of said building, after .allowing all just credits and set-offs, the sum of $110.02, with interest,” etc. It is claimed that, notwithstanding the foregoing allegations, no contract, either expressed or implied, is stated in the bill of particulars. We think differently, however. We think the bill of particulars fairly stated an implied contract, and a cause of action in favor of the plaintiff below and against the defendant, the Bank of Sun City, and we therefore think that the decision of the court below was correct.
Its judgment will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
In the opinion handed down by Strang, C., the judgment of the trial court was affirmed, upon the ground that the plaintiff failed to show that Jacob Dold, the party desiring to buy the farm of Starr, was ready at any time to comply with the terms of his contract. It was also remarked in the opinion that the plaintiff was not ready to close the trade, because he was not in possession of $2,000 to make the cash payment. The trial court sustained a demurrer to the plaintiff’s evidence. Such a demurrer admits every fact and conclusion which the evidence most favorable to the opposing party tends to prove. (Christie v. Barnes, 33 Kas. 317; Railroad Co. v. Foster, 39 id. 329.) A reexamination of the record shows that evidence was introduced tending to prove that Jacob Dold ms not only willing and able to buy, but was ready to do so. George Dold, the son of Jacob, in his direct examination, testified positively that his father was able to buy the farm; that he authorized him to pay Starr the money in accordance with the terms of the contract, and that his father had sufficient money on deposit in a bank at Wichita, which George was authorized to use, to make the cash payment. In his cross-examination he seems to have been confused, and his evidence is indefinite and conflicting;. but the court should have permitted the jury to pass upon the conflicting evidence. That is the province of the jury. (Railroad Co. v. Foster, supra.)
If Starr had ceased all further negotiations about making a trade or sale of his farm after he and his wife crossed out their names from the written contract, then plaintiff would have had no claim for commission; but Starr stated to plaintiff after this that “When the papers came around, we will come here and fix it up.” The testimony shows that the plaintiff was engaged in the real-estate business, and that, before he saw Dold, Starr’s farm was on his books for sale. It also appears that after Jacob Dold was ready, according to some of the evidence, to comply with the contract, Starr said “he didn’t want to trade; that he didn’t propose to close it.”
Some exceptions are taken to the execution of the notes and mortgage by Jacob Dold, but Starr made no such objections as presented in this court, and it is apparent that the trial court did not dispose of the demurrer upon any such ground. The case of Stewart v. Fowler, 37 Kas. 677, is commented upon in Betz v. Land & Loan Co. 46 id. 45, and is limited to the facts of that case. If the plaintiff, under a contract with Starr to sell his land, produced to him a person ready, willing and able to buy, and Starr refused to make a sale upon the terms agreed upon by him with his agent, the plaintiff is entitled to his commission, having earned the same. If a real-estate agent fully performs his contract with a landowner, he cannot be prevented from recovering his commission because the owner subsequently changes his mind about making a sale or trade of. his property.
The evidence before the trial court was conflicting, and all that we decide in the case is, that the demurrer to the evidence should have been overruled. The facts should have gone to the jury for their consideration.
The judgment heretofore rendered in this court will be set aside, and the cause remanded, with direction to the district court to grant a new trial.
All th'e Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The facts in this case are as follows: Robert Kenworthy and A. E. Kenworthy, partners as Robert Kenworthy & Co., on the 9th of September, 1887, were the owners of a small, one-story, frame, store building, located on the northeast corner of the northeast quarter of the northwest quarter of section 34, township 7, range 15, together with a stock of general merchandise kept by them in the store. The land was owned by A. W. Bailes. He gave Kenworthy & Co. permission or license to occupy the corner- with the store building. On the 9th of September, 1887, the Rockford Insurance Company, of Rockford, 111., issued to Kenworthy & Co. its policy of insurance upon the store building, furniture, and the stock of merchandise therein, divided as follows: $50 on the store building, $25 on the furniture, and $775 on the stock of merchandise, aggregating in all $850. On the 11th of October, 1887, while the policy of insurance was in full force, the store, furniture and merchandise were destroyed by fire. On the 15th of October, 1887, Kenworthy & Co., being indebted to the Farmers’ State Bank for $805.62, with interest, transferred and assigned the insurance policy, together with all their title and interest therein. On the 20th of March, 1888, the Farmers’ State Bank and Robert Kenworthy & Co. brought their action against the Rockford Insurance Company upon the policy of insurance, to recover $850, with interest thereon from the 12th of March, 1888. The joining of Kenworthy & Co. with the bank as plaintiffs was upon the theory that the amount of the indebtedness of Kenworthy & Co. to the bank was less than the amount due upon the policy, and therefore that both parties were interested in the action. The policy had among its provisions the following:
“If the-interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property, for the use and benefit of the assured, or if the building insured stands on leased ground, or if there be a mortgage or other incumbrance on any of the property insured, it must be so represented to the company, and so expressed in the written portion of this policy; otherwise the policy shall be void.”
Upon the trial, the Farmers’ State Bank recovered judgment for $844.50. The jury found that the total value of the stock destroyed by the fire was $950. Complaint is made because Kenworthy & Co. and the Farmers’ State Bank were joined as plaintiffs The written transfer or assignment on the back of the policy showed that the Farmers’ State Bank was the real party in interest and was entitled to recover, as alleged in the petition. The execution of the written assignment was not denied under oath, and therefore was admitted. The Farmers’ State Bank is the only party that recovered, any judgment, and there was no material error prejudicial in any way to the insurance company in joining Kenworthy & Co. with the bank as plaintiffs, or in sustaining the demurrer-to the defense which alleged that Kenworthy & Co. “ were not the real parties in interest as to the whole controversy.”
All of the other errors, except the one referred to, occurred upon the trial, and concerned the reception and rejection of evidence and the giving and refusing instructions. It is doubtful, in view of the grounds alleged in the motion for a new trial, whether any errors of law occurring on the trial can be considered in this court, because it is not clearly shown in the motion that they were excepted to by the insurance company. But waiving all this, we will consider the more important questions discussed.
The deposition of A. E. Kenworthy was properly received in evidence. This deposition was taken under a notice specifying that the taking would be adjourned from day to day from 8 A. M. to 6 p. M. There was no appearance by the defendant between these hours. At the conclusion of the taking of the deposition on the first day, an adjournment was had until the next day at 11 o’clock A. M. On the trial, the insurance company objected to the deposition on that account. This objection was properly overruled. The deposition was taken pursuant to the statute and the notice given. Again, the objection was made orally, and not in writing. No exceptions, other than that of incompetency or irrelevancy, can be regarded, unless in writing and filed with the papers in the cause before the trial. (Civil Code, §§ 363, 364.)
L. E. Campbell was the general agent of the insurance company. He accepted the premium and delivered the policy after he had signed the same as agent. Upon the trial, he was asked if he had any belief with Deference to the land upon which the store was situated being owned by Ken worthy & Co. at the date of the policy. This question was improperly stated to the witness. He should have been asked his knowledge, not his belief. His answer, however, was, that he “supposed the land to be the claim of A. W. Bailes.” He further answered that “he did not know whether it was government land or not,” and “that the title or ownership of the land did not in any way influence him in writing or issuing the policy.” Any error in the inquiry or answer was imma terial, because it is clearly shown by the evidence that Campbell well knew at the time he issued the policy that the land upon which the building of Kenworthy & Co. was situated was not owned in fee by them. There were no misrepresentations, false statements or concealments by Ken worthy & Co. about the land or the title thereof, as alleged in the answer. Considering the knowledge Campbell, the agent, had about the title of the land, it cannot fairly be claimed that the insurance policy was void because of the provisions contained therein concerning “the interest of the assured in the property.” (Insurance Co. v. Pearce, 39 Kas. 396; Insurance Co. v. Gray, 43 id. 497; Insurance Co. v. Weeks, 45 id. 751.) Again, while the store building was located upon the corner of A. W. Bailes, with his permission, it was not alleged in the answer that the building stood upon “leased grounds, in violation of the policy.” Further than this, it clearly appears from the evidence that the interest of the insured in the building—not the land—.and the furniture and stock of merchandise was entire and unconditional.
It is intimated that there was evidence before the jury tending to prove that Kenworthy & Co. had set the store on fire. This was not established before the jury. The stock destroyed, as found by the jury, amounted to $950. The recovery was $844.50 only. The court charged the jury as follows: t
“If Ken worthy & Co. set that building on fire, there can be no recovery in this case; if they authorized anyone to do so, there can be no recovery; or if they knew that a fire would occur and removed any portion of the stock from the building in expectancy of a fire occurring, there can be no recovery in this action.”
The questions raised concerning the fire being started by Ken worthy & Co. were properly submitted to the jury, and the jury found upon this issue against the insurance company. The jury and the trial court were the proper judges of the credibility of the witnesses and the weight of their testimony upon this matter.
We have examined the other alleged errors, but in view of the evidence of W. H. Bryning and the personal findings of the jury, such errors, if any, were wholly immaterial.
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
Valentine, J.:
This was a criminal prosecution upon information instituted by the county attorney in the district court of Lyon county, in which the defendant, John M. Campbell, was charged in 81 separate counts with 81 separate violations of the prohibitory liquor law. As to some of these counts a nolle prosequi was entered; and as to the others a trial was had before the court and a jury, and the jury found the defendant guilty as charged in the first count, and not guilty as charged in the others, and the defendant was sentenced to pay a fine of $100, and to be imprisoned in the county jail for the period of 30 days, and to pay the costs of suit, and from this sentence he now appeals to this court.
The first count charges in substance that the defendant owned, kept and maintained a house where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage, and it was drawn under §13 of the prohibitory liquor law, as amended in 1887, (Laws of 1887, ch. 165, § 15, Gen. Stat. of 1889, ¶ 2533,) which section provides, among other things, that “all places . . . where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage . . . are hereby declared to be common nuisances, . . . and the owner or keeper thereof, shall, upon conviction, be adjudged guilty of maintaining a common nuisance, and shall be punished by a fine of not less than $100 nor more than $500, and by imprisonment in the county jail not less than 30 days nor more than 90 days.” It is claimed that this provision of the statute is unconstitutional and void, for the reason that it is not contained in or covered by the title to the act. (Const, art. 2 § 16.) The title to the act, as well as the act itself, was amended in 1887 (Laws of 1887, ch. 165), and the title to the act, as thus amended, reads as follows:
“An act relating to intoxicating liquors, and amendatory of and supplemental to chapter one hundred and forty-nine of the Session Laws of 1885, being an act entitled ‘An act amendatory of and supplemental to chapter one hundred and twenty-eight of the Session Laws of 1881, being an act entitled “An act to prohibit the manufacture and sale of intoxicating liquors, except for medical; scientific, and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes,” ’ and amendatory of and supplemental to chapter one hundred and twenty-eight of the Session Laws of 1881, being an act entitled ‘An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific, and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes.’ ”
We think this title is broad enough to cover that provision of the statute under which the first count of the information in this case was drawn. That part of the title which says “An act relating to intoxicating liquors” is certainly broad enough to cover the provision in question. Upon this subject, see the case of The State v. Barrett, 27 Kas. 213, 215, 219, cited in the defendant’s brief. That decision was rendered in 1882, under the original prohibitory liquor law, as it was first enacted, and when the title to the act read very differently from what the title to the present prohibitory liquor law now reads; but the principles enunciated iu that decision control this case, and will require us to hold that the provision of the statute now in question, and the one under, which the first count of the present information was drawn, is constitutional and valid.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
M. O. Fernald, the plaintiff in error, commenced this action in the district court of Kingman county, on the 16th day of August, 1888, against William C. Winch and Lydia Winch, to foreclose a mortgage executed by them on certain lands in Kingman county. To this action Henry Fieser and Amelia Fieser were made parties, and it was alleged in the petition that they had, or claimed to have, the title to, or some interest in, or lien upon said land, or a part thereof, which they acquired subsequent to the lien of the mortgagee. Winch and wife made default, but Fieser and wife filed an answer, in which it was alleged that their title to the land covered by the mortgage executed by Winch and wife was derived directly from the United States under the preemption laws. They denied having executed any mortgage upon said land, and allege that the mortgage executed by Winch and wife is a cloud upon their title, and pray that it be declared null and void as against them. To this answer the plaintiff in error replied that Winch procured title to said land by preemption from the government, by a full compliance with all the requirements of the land laws, and that Winch and wife executed the notes and mortgage sued upon; and that subsequent to the execution of the mortgage, and without the knowledge of Winch, and without notice to him, some officers connected with the land department of the government pretended to cancel the entry of Winch and set aside his final receipt, and that said acts of said officers were and are null and void, being without authority.
At the trial, it was stipulated by the parties that the following may be introduced and considered as the facts in the case: That under the date of August 15, 1883, Adolph C. Husey made cash entry of the south half of the southeast quarter and the south half of the southwest quarter of section 13, township 30 south, of range 6 west of the sixth principal meridian, in Kingman county, Kansas, in the United States land office at Wichita, Kas., and made full payment for said lands and took the receiver’s final receipt therefor; that under date of September 12, 1883, the defendant, William C. Winch, made cash entry of the north half of the southeast quarter and the north half of the southwest quarter of section 13, township 30 south, of range 6 west of the sixth principal meridian, in Kingman county, Kansas, in the United States land office at Wichita, Kas., and made full pay ment for said lands and took the receiver’s final receipt therefor; that subsequent to the time of said original entries by Adolph C. Husey and William C. Winch, respectively, and prior to the cancellation of said entries and the order opening up said lands for settlement, the said J. B. Watkins and M. C. Fernald, plaintiffs herein, for full consideration, accepted conveyances of the southwest quarter of said section 13, township 30, range 6, by the mortgages set forth in the petitions herein, respectively, and that such conveyances were accepted by them, they supposing and believing that the law governing such entries had been fully complied with by said preemptors, Husey and Winch.
It is further agreed, that the records of the United States land office at Wichita, Kas., show the following state of facts, but plaintiffs object to the introduction of the same in evidence in the ease, on the grounds of ineompetency, irrelevancy and immateriality to the issues joined in these actions: That on the 14th day of June, 1886, one George Scheuerman filed his application at the said United States land office at Wichita, Kas., to contest said original entries by said Adolph C. Husey and William C. Winch, preemptors; and that thereafter, on the 2d, day of July, 1886, the United States commissioner of the general land office, acting upon said application, directed the register and receiver of the said land office at Wichita, Kas., to order a hearing to determine the character of said entries by Husey and Winch as above said; that thereafter, as so directed, a hearing was ordered by the said register and and receiver, and due and legal notice was given to the said Adolph O. Husey and said William C. Winch, original preemptors, at which hearing they, the said Adolph C. Husey and William G. Winch, made default; at which hearing, so ordered, the testimony showed, and it was so found' by said register and receiver, that the defendants Adolph C. Husey and William C. Winch never established a residence upon the lands by them entered as above said; that upon said finding, immediately thereafter, the said defendants Adolph C. Husey and William C. Winch were duly and legally notified •thereof, but that they, the said defendants, failed to appear, ;and thereafter, on the 28th day of February, 1887, the said United States commissioner of the general land office, by order, canceled both of said original entries by said defendants made; that subsequent to the dates (August 15 and. September 12,1883) of said entries, and prior to the date (February 28,1887) of the cancellation thereof, that is, on the 10th day •of October, 1883, said Adolph C. Husey deeded the south half of the southwest quarter of said section to William C. Winch; and said William C. Winch on the same date deeded the north half of the southeast quarter of said section to Adolph C. Husey; that subsequent to the date (February 28, 1887) of said cancellation the said lands were, by order of the commissioner of the general land office, opened up for settlement; and that, under date of September 5, 1887, one •George Scheuerman made cash entry of the southeast quarter, and one Henry Fieser, under same date, made cash entry of the southwest quarter of said section 13, township 30, range 6, and that each of them made full payment for said lands, and took the receiver’s final receipt therefor; that said original entries were not canceled as a result of conflicting preemption rights, existing and tried prior to the issuance of said final receipts to said original preemptors, and reviewed thereafter, but upon charges of fraud charged to them, the said original preemptors; that said Watkins and Fernald, plaintiffs herein, are chargeable with the notice they might have or should have received by operation of law, but that they had no actual or personal notice.
The trial court rendered the following judgment:
“And now, this 4th day of March, 1889, the same being a day of the regular December term of said court, the above-entitled cause coming on to be heard before the court upon the petition of the said plaintiff, and the answer thereto of the said defendants Henry Fieser and Amelia Fieser, plaintiff appearing by his attorney, W. J. Patterson, and defendants Henry Fieser and Amelia Fieser, his wife, appearing by their attorneys, Gillett Bros. & Co., and the said defendants William C. Winch and Lydia Winch, his wife, appearing not, either in person or by attorney, though the plaintiffs show the-court, and the court finds, that service of summons has been, duly and regularly made upon said defendants William C.. Winch and Lydia Winch, personally, who have failed to appear, and still fail to appear and plead in anywise to plaintiff’s petition herein, though the time for so doing had fully expired before the trial hereof; and this cause coming on to be heard, a trial by jury is waived, and a trial by the court is thereupon had upon the pleadings in the case and evidence adduced. It is thereupon found by the court, that the allegations in plaintiff’s petition are true, and that there is now due the plaintiff, by reason of the premises, from said defendants William C. Winch and Lydia Winch, the sum of $500, as principal, and $122.25, as interest thereon; in the aggregate, $622.25. It is therefore ordered and adjudged by the court, that plaintiff do have and recover of and from said defendants William C. Winch and Lydia Winch the said sum of $622.25, and costs of this action, and that said judgment bear interest from date at the rate of 12 per cent, per annum.”
The troublesome question in this case arises from the fact that on the 15th of August, 1883, Husey entered the south half of the two quarter sections, and on the 12th day of the following September, Winch entered the north half of the two quarter sections. .On the 10th day of October, 1883, Husey deeded the south half of the southwest quarter to Winch, and Winch deeded the north half of the southeast quarter to Husey. Winch and wife executed the promissory notes and mortgage sued on on the 1st day of September, 1886. Subsequent to all this, and on the 14th day of June, 1886, application was made at the local land office to contest the entries of Husey and Winch. This application was heard, notice being given to Husey and Winch, who defaulted, and on the 28th day of February, 1887, the commissioner of the general land office, by order, canceled the entries. The controlling question in the case, the solution of which settles the rights of these parties to the land, and overshadows and dwarfs all contentions about the sufficiency of the answer or the regularity of the made case, is, had the commissioner of the general land office the power and authority to cancel the entries of Husey and Winch, before the issuance of the patent, by reason of their noncompliance with any or all of the requirements of the preemption act? In this court this is not now an open question; it has been settled, in accordance with the great weight of authority, both by the supreme court of the United States and of many final state tribunals, that the commissioner has such power. (See the very recent case of Swigart v. Walker, 49 Kas. 100.) It holds expressly that the commissioner of the general land office of the United States has authority to cancel a final homestead receipt, and set aside the entry at any time before the patent issues, and a purchaser from the entry man, after a final receipt is given and before the issuance of the patent, takes the land subject to this supervisory power of the commissioner and secretary of the interior. The opinion cites many cases in support. It is binding and conclusive in this case, and 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.:
The Phcenix Insurance Company of Hartford, Conn., brought this action to recover on a promissory note executed by Thomas D. Kerns and wife in favor of James H. Tallman for $250, and the interest thereon, and also to foreclose a mortgage given by them to secure the same on a house and lot in Howard. The note and mortgage were assigned to the insurance company, and default having been made in the payment, this action was brought against the makers and also against William Dolan, who had purchased the mortgaged property and assumed the payment of the mortgage debt. Dolan answered that when he purchased the real estate it had upon it a frame house, which was insured by the plaintiff against loss by fire to the amount of $250. He stated that after the house had been insured, and after he became the owner thereof, it was destroyed by fire, and he also alleged that the company had refused to pay for the loss as they had agreed to do, and had refused to give the defendant any credit on account of the loss. The cause was tried with a jury, and, as no question was raised upon the validity of the note and mortgage, it was ruled that the burden of proof was upon the defendant. He offered in evidence the insurance policy, which showed the insurance of the house in favor of Thomas D. Kerns for $250. It contained a provision that the “loss, if any, under this policy, payable to James H. Tallman, mortgagee, or his assigns, as interest may appear.” There was pasted on the back of the policy what purported to be a receipt from the insurance company, signed by James H. Tallman, the mortgagee, of the payment of $250 for a loss under the policy. No other testimony was offered by the defendant, nor were any admissions made except that the title of the mortgaged property had passed to William Dolan, and that he had assumed the payment of the mortgage debt. The court instructed the jury to give Dolan a credit upon the mortgage debt of $250, and by their verdict this was done.
The evidence was wholly insufficient to warrant the ruling of the court or the verdict that the jury were instructed to return. If a liability had arisen against the company on the policy, and it had passed to Dolan he is entitled to a credit of the amount of the loss on the mortgage debt which he assumed. The burden, however, was upon him to show that a loss had occurred and a liability had arisen of which he might avail himself in this action, before any credit could be given. He failed to show that the property had been destroyed, and, if there was any loss, that proofs had been made and steps taken by him to entitle him to any amount of the insurance contracted for. The policy introduced was sufficient to show the original contract of insurance, but the receipt is not identified nor its authenticity shown by anyone. There is nothing to show where it was found or by whom it was written or signed. It fails to establish that any loss had occurred or any liability had accrued in favor of Dolan. If there was an actual loss during the lifetime of the policy, the right to which accrued in favor of the plaintiff, the insurance company cannot avoid the liability for the loss by the purchase of the note and mortgage. (Insurance Co. v. Marshall, 48 Kas. 235.) If the liability is shown by competent proof, and the facts are such as to bring it within the cited case, the amount due upon the policy should be applied as a payment upon the debt secured by the mortgage. Because of the insufficiency of the proof, the ruling of the court in directing a verdict in favor of the defendant was erroneous. Its judgment will, therefore, be reversed and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
C. W. Averill brought this action to recover a balance due for building material furnished to R. P. Adams for the construction of a building for H. McGarry, and also to foreclose a mechanic’s lien which he had filed against the building. He obtained a judgment against Adams for $158.05, and a decree foreclosing the mechanic’s lien. McGarry contended that there was not as much due as was claimed by Averill, and, further, that the material claimed to have been furnished was not actually used in the construction of the building.
Only two errors are assigned. McGarry complains that the court permitted Averill to testify that the account which he had filed for a mechanic’s lien was correct, and insists that the books in which the accounts were kept should have been produced. There appears to be little cause for complaint. Averill was examined, and stated, without objection, that he furnished the lumber for which suit was brought, and that the prices charged in the account were the ordinary and reasonable charges. If he actually sold the lumber, and was able to state the amount and the price of the same, there was no occasion for the use of the books. It appears, however, that a few of the sales had been made by a salesman in his employment, and that he had to rely upon the books to some extent. It would have been a more orderly and correct practice to have produced the books in establishing his account. The books, however, were brought into court and used by the plaintiff in error in his cross-examination, and they corresponded exactly with the proof which had been made. Although not formally introduced in evidence, they were in the hands of the adverse party, and sufficiently before the court to enable it to reach a correct conclusion. It does not appear that the plaintiff in error was prejudiced by the method of proof, or that there was any substantial error in this ruling of the court.
The second complaint is more serious. McGarry offered to prove that a portion of the lumber which had been delivered on the lot where the building was erected, and for which suit was brought, was taken away, and not used in the construction of the building. This offer was refused by the court. From other testimony, it appears that some of the lumber delivered was not satisfactory, and was taken away and replaced with other and suitable material. It is possible that if the question had been allowed it would have been shown that, if any lumber delivered there was taken away, that other lumber was substituted for it. Plaintiff in error, however, should have been permitted to produce the proof which he offered. It is not enough that the material was sold to the contractor with the design that it should be used in the construction of the building, but it must in fact be used in the building before a lien will attach or the owner can be charged for the material furnished. It was held in Hill v. Bowers, 45 Kas. 592, that—
“To entitle a person to a lien upon land for material furnished for fencing, it must appear, not only that such material was purchased to be used for that purpose, but it must also appear that the same was in fact so used as to become a part of the realty.”
It is argued that if the material man must show that every article purchased is placed in the building, the law will afford little protection to him. As will appear from Rice v. Hodge, 26 Kas. 184, strict proof in this respect is seldom required. In ordinary cases it is enough to show that the materials were sold to be used in the building, and delivered to the builder, and there is some testimony showing that material of that character was actually used. In the absence of any proof or circumstance tending to show that material so furnished was moved or taken away, or that an unnecessary amount was used in the construction of the building, it will be presumed that that furnished was actually used. Here, however, there was a direct offer to prove that the material furnished was not used, and the exclusion of this testimony requires a new trial. For this purpose the judgment will be reversed, and the cause remanded to the district court.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was originally a condemnation proceeding instituted by the St. Louis, Kansas & Southwestern Railway Company to condemn a right-of-way for its railroad through Harper county. The commissioners, among other awards to landowners through whose lands the right-of-way was to be established, awarded to Joseph Morse $600 as damages to his property, and he attempted to take an appeal from such award to the district court; and the principal question in the case is, whether the district court obtained jurisdiction to hear and determine the case by virtue of the attempted appeal, or from any other source. The district court, on motion to dismiss, held that the appeal was sufficient to give the court jurisdiction. Afterward a trial was had before the court and a jury, and the jury assessed Morse’s damages at $2,030.57; and the railroad company, as plaintiff in error, has brought the case to this court.
It is contended on the part of the railroad company that the supposed appeal from the award of the commissioners was wholly insufficient; while on the part of Morse it is claimed that the appeal was sufficient, or at most that no insufficiency is shown by the record brought to this court, and that the railroad company, by making certain appearances in the district court, waived all irregularities in the manner of taking the appeal. An appeal from an award of damages by commissioners in railroad condemnation proceedings is taken to the district court in the same manner as appeals are taken from judgments of justices of the peace to the district court. (Gen. Stat. of 1889, ¶¶ 1395, 1396 ) And an appeal from a judgment of a justice of the peace to the district court is taken under § 121 of the justices’ act, which reads, so far as it is necessary to quote it, as follows:
“Sec. 121. The party appealing shall, within 10 days from the rendition of 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 $50 in any case, nor less than double the amount of the judgment and costs, conditioned, first, that the appellant will prosecute the appeal to effect and without unnecessary delay; and, second, that if judgment be rendered against him on the appeal, he will satisfy such judgment and costs; said undertaking need not be signed by the appellant.”
Nothing more nor less than is required by this section is required to perfect the appeal; and § 122 of the justices’ act provides, among other things, as follows:
“Sec. 122. The appeal shall be complete upon the filing and approval of the undertaking, as provided in section 121.”
In the present case, an appeal bond was filed with and approved by the county clerk. It was signed by Lew. Sargent, the surety, and was not signed by the principals or by any one else. The binding part of the bond, with the condition, reads as follows:
“Noiv, therefore, Joseph Morse and Lucy A. Morse, as principals, and Lew. Sargent and-, as sureties, are held and firmly bound unto the St. Louis, Kansas & Southwestern Railroad Company in the sum of $-. Now, if the said Joseph Morse and Lucy A. Morse shall well and truly prosecute their appeal to effect and without any unnecessary delay, and, if judgment be rendered against them, to satisfy such judgment and costs, then this bond to be void; otherwise, to remain in full force and effect.”
The first thing appearing in the record of the proceedings of the district court is a motion made by the railroad company, the defendant in that court, to dismiss the appeal, on the grounds that the district court had no jurisdiction; that no amount was stated in the appeal bond, and that the bond was not such as is required by law. This motion was filed on June 5, 1889. The next thing contained in the record reads, omitting title, as follows:
“Now, on this 12th day of April, 1889, the same being one of the days of the regular March, 1889, term of said court for said year, this cause came on for hearing. By agreement of counsel and consent of the court, this cause is continued to the June term, 1889, of said court.”
This was indorsed as follows:
“Filed June 18, 1889. W. R. Rowell, clerk of the district court, by J. P. Horton, deputy.”
Afterward, and on October 1, 1889, Morse, who was the plaintiff in the district court, filed a motion for leave to amend the appeal bond by inserting an amount therein, and on the same day, but afterward, the court overruled the motion of the defendant railroad company to dismiss the appeal, and sustained the motion of the plaintiff, Morse, permitting him to insert an amount in the appeal bond, and he, with the consent of his surety, Lew. Sargent, inserted the amount of $300. Afterward, and on October 24, 1889, the case was tried before the court and a jury with the result aforesaid. In the district court, besides what is shown above, the defendant railroad company made the following appearances: First, it objected to the trial of the case for various reasons, including those set forth in its aforesaid motion to dismiss the appeal, which objection was overruled by the court; second, it introduced evidence on the trial to rebut the plaintiff Morse’s evidence; third, it asked for special findings from the jury; and fourth, after the verdict of the jury it moved for a new trial upon various grounds, which motion was overruled by the court.
The objection to the appeal bond is that the obligor, Lew. Sargent, who is and was rherely a surety, did not agree to do anything. He did not agree that he would prosecute the appeal to effect or pay or satisfy the judgment, o^' any judgment, or that he would pay or satisfy or do anything else, and he did not bind or obligate himself in any amount whatever. His agreement was, in effect, that Morse should prosecute the appeal and should satisfy any judgment that might be rendered against him, and virtually, that in the event that Morse should not do these things, then he, Sargent, bound himself in no amount, and did not agree to clo anything whatever. It is a general rule that a surety on a penal bond is never held to be liable for any amount greater than the penalty mentioned in the bond. And as no one but the surety signed the bond in the present case, and as it mentions no amount whatever and is therefore void as to the surety, it must be held to be void absolutely as £0 aq persons; and if the bond is absolutely void, then it must necessarily follow, under our statutes, that the appeal itself is void. (Lovitt v. W & W. Rld. Co., 26 Kas. 297; Beckwith v. K. C. & O. Rld. Co., 28 id. 484.) For, as has already been seen, the appeal bond is the foundation for the appeal, and the appeal cannot come into existence without it. Nothing further than the giving of the bond is required by the statutes of. the appellant,.and nothing less; and nothing can be substituted for the bond. (Justices’ Act, §§121, 122.) Probably if an appeal bond, when executed and filed, has any validity at all, it would sustain an appeal, so that the bond could be perfected with the leave of the court to which the appeal is taken. If the bond were sufficient in every respect, except that the amount stated in the bond was insufficient, then the amount might be increased to a sufficient amount, with leave of the appellate court. (C. K. & W. Rld. Co. v. Town Site Co., 42 Kas. 97, 104; McClelland v. Allison, 34 id. 155.) This would certainly be true if the amount mentioned in the bond were as much as $50, the least amount authorized by the statute. (Justices’ Act, § 121.) And it might be true even if any amount, one dollar or less, were mentioned in the bond; for a bond in any amount could hardly be considered as a void bond, and an appeal bond not absolutely void would probably carry the case to the district court, however irregular it might be, and would probably constitute such an appeal as to enable the appellate court to take jurisdiction of the case and to do whatever might be right and proper in the case.
The award of the commissioners in the present case seems to have been made on June 12, 1888, apd the foregoing appeal bond, such as it is, was filed with the county clerk on June 18, 1888, and the time for giving a sufficient bond under the statute elapsed on June 22,1888,10 days after the award of the commissioners; but no sufficient bond was given within that time, and the amendment of the bond by leave of the court by inserting the amount of $300 therein was not made until October 1, 1889. But will the appearances on the part of the railroad company dispense with the giving of a good and sufficient bond? The first appearance on the part of the railroad company was not made earlier than April 12, 1889, and perhaps not earlier than June 5, 1889, either of which dates was a long time after the expiration of the 10 days given by statute for filing a bond. These 10 days, as we have seen, expired on June 22, 1888; hence, if these appearances had the effect, to give to the court any jurisdiction at all, they must have given to the court original jurisdiction and not appellate jurisdiction; for, as we have before seen, the time for an appeal had expired long before any appearance was made in the district court on the part of the railroad company. A voluntary appearance will of course give a court jurisdiction of the parties, and of the case, in all cases where the court can take original jurisdiction of the subject-matter of the action. (Civil Code, § 67.) But can such an appearance give jurisdiction in a case where the court can take only appellate jurisdiction, or jurisdiction only by virtue of an appeal from some other court or tribunal? In a case like the present, the court can take jurisdiction by virtue of the statutes only by virtue of an appeal from an award of condemnation commissioners, and cannot take original jurisdiction.
In the present case it may also be questioned whether any of the appearances were voluntary. Certainly none of them were, after the overruling of the defendant’s motion to dismiss the appeal; but supposing they were, then did the court obtain jurisdiction to hear and determine the case as upon an appeal or otherwise? An action giving to the district court original jurisdiction can be commenced only “ by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon.” (Civil Code, § 57.) But no petition or other pleading was ever filed in the present case in any court; and no summons was ever issued. And nothing was done in the district court to get the case into that court except to execute the aforesaid appeal bond and to file in the district court a record of the condemnation proceedings. Hence it would seem that the district court did not get jurisdiction of the subject-matter of this action either by an appeal from the award of the condemna- / % it tion commissioners or by the filing of pleadings, the making up of issues, or the issuing of a summons. In other words, the district court did not obtain either appellate or original jurisdiction. But as before stated, the district court cannot obtain original iurisdict t tion in condemnation proceedings, but only appella te jurisdiction. This case is of course unlike a case where a party has done something which will estop him from raising the question of a want of jurisdiction in the court to hear and determine the case. If the defendant railroad company, for instance, had taken the chances of a trial in the district court before raising any question of a want of jurisdiction, and had caused or permitted by its silence a large amount of costs to accrue, and after being defeated in the action, had then for the first time raised the question, it might perhaps be held that the defendant would be estopped from then raising the question of a want of jurisdiction in the appellate court to hear and determine the case; but nothing of that kind occurred in the present case. The defendant in this case raised the question of a want of jurisdiction in the district court to hear and determine the case, and gave its reasons therefor before any trial was had, and indeed before any action of any kind or character on the part of the court had been taken, and before any costs had accrued except those which had accrued on account of the filing of the condemnation proceedings, for which the defendant was not responsible. This case is also unlike a case where the obligor on a bond has obtained some benefit from the bond or by reason of the giving of the same, and then seeks to repudiate the bond and to avoid all obligation thereon by claiming that it is invalid. The railroad company in the present case was not the obligor on the bond and obtained no benefit therefrom, and of course is not estopped because of any such reason from claiming that the bond is void.
The judgment of the court below will' be reversed, and the cause remanded with the order that the appeal be dismissed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution upon information, in which the defendant, Vollie L. Smith, was charged with committing murder in the first degree in the. killing of George Allen Wilson, on January 24, 1892. The defendant was tried, and convicted of murder in the second degree, and was sentenced to imprisonment and hard labor in the penitentiary for the term of 13 years; and from this sentence he now appeals to this court.
The first complaint on the part of the defendant is that the court below erred in overruling the defendant’s plea in abatement. By this plea, the defendant urges that he has never had any preliminary examination with regard to the offense charged in the information or the offense of which he was convicted; and this upon the ground that the original warrant, upon which he was arrested and upon which he had his preliminary examination, was not sufficient; and this upon the ground, as stated in his brief, that the killing “is not charged as having been 'willfully' done. The word ‘ willfully ’ is not used or any equivalent word,” and “the word ‘malicious’ is not used in the warrant.” The warrant in fact, however, charges among other things as follows:
“One Yollie L. Smith did then and there unlawfully, feloniously, premeditatedly, and deliberately, with malice aforethought, with a pistol loaded with powder and leaden bullets, assault, shoot and wound one George Allen Wilson, then and there being, with the intent him, the said George Allen Wilson, then and there to feloniously kill, then and there giving to the said George Allen Wilson one mortal wound, from which mortal wound the said George Allen Wilson did then and there die.”
Upon this warrant, the justice of the peace who issued it heard the evidence, and required the defendant to answer in the district court to the charge of murder in the first degree. The defendant then obtained a writ of habeas corpus from the judge of the district court, and such judge, upon the hearing, as the record shows, made the following finding and order:
“And the said judge, after having heard the evidence and the arguments of counsel, and being fully advised in the premises, finds, that the crime of murder in the first degree has been committed, and that there is probable cause for believing that the defendant, Yollie L. Smith, committed said crime. It is further ordered, that the said Vollie L. Smith be committed to the county jail of Ottawa county without bail, to answer at the district court of said county for said crime.”
None of the evidence introduced on the preliminary examination or on the hearing of the habeas corpus proceeding has, been brought to this court. It is hardly necessary to state anything further or any other facts with regard to this matter, or to make any comment. (See the cases of The State v. Bailey, 32 Kas. 83; The State v. Tennison, 39 id. 726.)
It is next claimed by the defendant that the whole proceeding in the district court was irregular and erroneous, for the reason that the prosecution was not instituted, carried on or conducted by any proper prosecuting officer. The information was filed and the prosecution carried on and conducted by E. A. Haldeman, as the county attorney of Ottawa county; and he was assisted at the trial by R. A. Lovitt, a regularly-admitted attorney at law. It is admitted by both parties that at the general election in 1890 Haldeman was duly elected county attorney of that county; that he duly qualified as such by taking the oath of office and giving bond, and that he took the possession of the office and has continued in the quiet and peaceable possession thereof ever since, and is generally recognized as the county attorney of Ottawa county. But it is claimed and admitted that Haldeman is not an attorney at law, and that he has never been admitted to practice as such in any of the courts of Kansas or elsewhere. Then is he a county attorney? Is he such defacto or dejure, or both or neither? And if he is a county attorney at all or in any sense or for any purpose, is he such or can he be such for the purposes of this prosecution? Can he perform all the duties of a county attorney, or may he perform only such of such duties as may be performed by county attorneys outside of all courts, and having no reference to judicial proceedings? Or, waiving all other questions, did the district court commit material and reversible error by recognizing Haldeman as the county attorney, having full power and authority as such in this case?
The statutes providing for the election or appointment of county attorneys do not prescribe their qualifications for the purposes of the election or appointment, nor specify who shall be eligible or ineligible to be elected or appointed. There is no statute requiring that the person elected or appointed shall be an attorney at law; and many of the duties required of the county attorney have no reference whatever to courts or to judicial proceedings. Many of his duties consist in giving advice to the other officers of his county, and in enabling them to legally perform their duties. The only statutes which might, even by inference, seem to require that a county attorney should be an attorney at law are those statutes which provide for the admission of attorneys at law to practice in the courts. But these statutes do not mention county attorneys. These statutes provide for the admission of persons as attorneys at law who have read law for two years, the last year in a regularly practicing attorney’s office, or who have been admitted as attorneys at law in some other state or territory. And when a person is admitted to practice law in any one of the district courts of the state, he is an admitted attorney at law in every other district court of the state and in all the inferior courts of the state, although no record of his admission exists anywhere except in the court where he was first admitted. Ordinarily, however, the courts will take judicial notice as to who are attorneys at law, wherever admitted in the state, and also as to who is the county attorney.
The statutes relating to county attorneys provide that it shall be their duty to appear in the several courts of their respective counties and prosecute or defend on behalf of the people all suits, applications, or motions, civil or criminal, arising under the laws of the state, in which the state or their respective counties are parties or interested. Now, what is the effect of these statutes? Will they have the effect to authorize a county attorney who is not an attorney at law to rightfully appear in the courts and prosecute or defend for his county? Or will they have the effect to absolutely vacate his office for the reason that he cannot so appear in the courts, and therefore cannot perform all the duties required of him by statute? Or may he perform all the duties of county at torney until the question is properly raised by quo warranto, or by some other direct proceeding? It has been the law in this state for many years, that if a county attorney shall neglect to perform any of the duties of his office he will forfeit his office. (The State v. Foster, 32 Kas. 14, 38; act relating to counties and county officers, § 180.) If a person is county attorney at all, it would seem that he should have the power to perform all the duties of his office. It is also provided by the statutes that a county attorney may appoint a deputy, and in the absence, sickness or disability of the county attorney and his deputy, the court may appoint an attorney to act as county attorney; and in case of a vacancy the judge of the district court may appoint a county attorney. May a county attorney, who is not an attorney at law, appoint a' deputy who is an attorney at law, and give to such deputy full power and authority to perform all the duties of the office of county attorney in the courts and elsewhere? Or, where the county attorney is not an attorney at law, may the court consider that there is a “disability” on the part of the county attorney to perform his duties, and appoint an attorney to act as county attorney?
In the present case, the county attorney had an assistant who was a regularly-admitted attorney at law, who assisted the county attorney in the entire conduct of the case. The court permitted this assistant to act. Now may this assistant be considered as a deputy, appointed by the county attorney, with full power to act in the case, or as an attorney appointed by the court, with full power to act for the county attorney? It is claimed on the part of the prosecution that any person holding the office of county attorney, and recognized by the court and others as such, whether he is a regularly-admitted attorney at law or not, may institute and conduct any proceeding in the courts which, under the statutes defining the duties of county attorneys, a county attorney may lawfully institute or conduct. Is this correct? It is said that in the year 1890, in other counties than Ottawa, persons were elected to the office of county attorney who were not attorneys at law; and it is also said that in the same year and the succeeding year one or more of the judges of the district courts of this state were elected who are not attorneys at law, and have not the requisite legal learning or qualifications to be admitted as attorneys at law, and yet that they are holding their respective offices, and performing the duties of judges of such district courts. We shall not decide all the questions which have been suggested or might be suggested with respect to the eligibility or power of county attorneys, who are not regularly-admitted attorneys at law, to appear and prosecute or defend for the public in the courts; but we shall simply decide the question whether any material and reversible error has been committed in this case upon the facts of the case. It is our opinion that where a person has been regularly elected and has qualified as county attorney, and is *n possession and control of the office, and the district court recognizes him as such county attorney, and permits him to institute, carry on and conduct a criminal prosecution in such court, assisted, however, by a regularly-admitted attorney at law, and the defendant is convicted and sentenced, his sentence should not be set aside or reversed in the supreme court upon the ground merely that the county attorney was not a regularly-admitted attorney at law.
The next objection urged by the defendant is, that the closing argument to the jury on the trial in this case was made by private counsel. Now it is a fact that the closing argument to the jury was made by an attorney at law who assisted the county attorney in the prosecution, and who was not the county attorney or his deputy, but we do not think that there was any error in this. (The State v. Wilson, 24 Kas. 189.) Such is a very common practice in Kansas in important criminal cases.
It is next claimed that the court below erred in overruling the defendant’s motion for a new trial based upon the alleged ground of newly-discovered evidence. There are many objections to this supposed newly-discovered evidence, and among them are these: It was either not newly-discovered evidence, or the defense was culpably negligent in not discovering it, and it was cumulative.
It is next claimed that the court below erred in giving and in refusing instructions to the jury. It is admitted by the defendant that he fired the fatal shot that killed the deceased, George Allen Wilson, but it is claimed by him that all that he did was done in self-defense, and that the firing of the fatal shot and the killing were purely accidental. Now the court below amply instructed the jury with respect to all these matters, and we think no substantial error was committed. We also think that the court below sufficiently instructed the jury upon every aspect and phase of the case. It is claimed, however, that the court below erred in refusing to give a certain instruction with regard to the defendant’s character; but as the prosecution did not attempt to attack the defendant’s general character, and as no evidence was introduced with regard to his general character, and as the instructions of the court with regard to presumptions of innocence were so ample and complete, we do not think that any material error was committed by such refusal. Besides, the instruction . , ~ , . . was *00 s^ong in saying that “the character of every defendant in a criminal case is con-clusively presumed to be good.”
We think we have now commented upon everything that requires comment. 'The original warrant upon which the defendant was arrested fairly indicated to him the offense with which he was charged. ' He had a preliminary examination,. at which evidence was introduced. He had another hearing, upon an application made by him to be released upon a writ of habeas corpus; and he was again informed what he had to meet. The information filed in the district court was ample, and gave him full notice of the charge against him, and he had a fair trial in the district court. The evidence introduced on the trial justified the verdict; and the conflicting and contradictory evidence introduced on the motion for a new trial will not require that the verdict of the jury or the sentence of the trial court should be set aside, nor even give excuse for such a thing.
We think no substantial error was committed in the case, and the judgment of the court below will therefore 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 in the district court of Wyandotte county by the Midland Elevator Company against M. W. Stewart, county treasurer, S. S. Peterson, sheriff, and the board of county commissioners of said county, to recover the sum of $241.44, alleged to have been illegally levied against the plaintiff as taxes for the year 1891, and paid by the plaintiff involuntarily and under protest, and to prevent a seizure of its property. A demurrer to the plaintiff’s petition was sustained by the court, on the ground that it did not state facts sufficient to constitute a cause of action, and plaintiff brings the case to this court.
It appears from the allegations of the plaintiff’s petition that the taxable property in Wyandotte county for the year 1891 exceeded $13,000,000; that the county board for that year, and under provisions of chapter 134 of the Laws of 1887, levied a tax for general county purposes to the amount of 10 mills on the dollar of the valuation of the taxable property of that county, although, as claimed by the plaintiff, the county board would have no authority, under § 220 (or more properly § 181) of the act relating to counties and county officers. (Gen. Stat. of 1889, ¶ 1886,) to levy more than 5 mills on the dollar of such valuation. The plaintiff admits that a levy of 5 mills on the dollar of the valuation is legal and valid, and claims that the excess over and above that amount is illegal and invalid, and it attempts to recover only the excess which it paid over and above 5 mills on the valuation ; or, to state the question in other words, it is this: It is admitted by both parties that if said chapter 134 is constitutional and valid, then that the entire tax levied by the officers and paid by the plaintiff is legal and valid; but if said chapter 134 is void, and if §220 (or more properly §181) of the act relating to counties and county officers governs, then the excess of the tax levied over and above 5 mills on the dollar of the valuation is illegal and void, and the plaintiff may recover the same back in this action. The sole question, then, as is admitted by the parties, is whether chapter 134 of the Laws of 1887 is valid or void. It reads as follows:
“An Act authorizing the boards of oounty commissioners of Cowley and Wyandotte counties to levy and collect a tax of not exceeding 10 mills on the taxable property of said counties, for general county purposes.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. The boards of county commissioners of Cowley and Wyandotte counties are hereby authorized and empowered to levy and collect annually a tax of not exceeding 10 mills on the dollar on the taxable property of said counties, for general county purposes.
“Sec. 2. Such levy when so made by said boards shall be extended on the duplicate tax rolls, and shall be collected as other taxes, and shall be in lieu of all taxes of general county purposes.
“Sec. 3. This act shall take effect and be in force from and after its publication in the official state paper.” Approved March 1, and published March 2, 1887.
Said § 220 (or more properly § 181) of the act relating to counties and county officers, so far as it is necessary to quote it, reads as follows:
“Sec. 220. The board of county commissioners of any county shall not levy upon the taxable property of such county a tax for current expenses of said county of any one year, in excess of the following amounts: Upon a valuation of . . . over nine millions, one-half of one per cent.: Provided, That the electors of the county, by a direct vote, may order an increase in such levies.”
It is claimed by the plaintiff that the said act of 1887 is unconstitutional and void, for the following reasons: First, it is in contravention of § 16, article 2, of the constitution, for the reason that it is in effect an amendment of said § 220, having the effect to change and alter its provisions, and yet it does not contain the entire section as amended, nor repeal the original section, nor even mention it. Second, the new act is in contravention of §1, article 11, of the constitution, which provides that “the legislature shall provide for a uniform and equal rate of assessment and taxation.” Third, the new act is in contravention of § 17, article 2, of the constitution, for the reasons, (1) that it attempts by a separate act to limit or defeat the uniform operation throughout the state of a general law; (2) that it is itself a general law or a law of a general nature, and yet it is not to have a uniform operation throughout the state.
It can make but very little difference what might be the views of the individual members of this court, as the court is now constituted, if the questions now. presented by counsel were original questions presented to them for the first time now; for we think they have all been heretofore settled by numerous prior decisions of this court. (The State, ex rel. v. Hitchcock, 1 Kas. 178; Beach v. Leahy, 11 id. 23; and many other cases which will be hereafter cited.)
The first question presented by counsel for the plaintiff with regard to the new legislative enactment (said chapter 134), amending, changing or modifying the old one (said § 220), without embodying in the new act all the provisions of the old one that are to remain the law, and without repealing the old one, is in effect settled against the views of the present plaintiff by the decision of this court rendered in the case of The State, ex rel., v. Cross, 38 Kas. 670, 696, 699. See also the cases there cited.
The second contention of counsel for the plaintiff, that the new act is in contravention of § 1, article 11, of the constitution, which provides that “the legislature shall provide for a uniform and equal rate of assessment and taxation,” is wholly untenable. That provision of the constitution, as we have many times decided, requires merely that there shall be “a uniform and equal rate of assessment and taxation” only in each separate taxing district of the state. (Hines v. City of Leavenworth, 3 Kas. 186, 201.) In the case of Comm’rs of Ottawa Co. v. Nelson, 19 Kas. 234, et seq., will be found an elaborate discussion with regard to the question when an assessment or a tax is at a uniform and equal rate. Now, the county of Wyandotte, for all taxes levied for county purposes, is a separate and distinct taxing district, and a rate of taxation of 10 mills on the dollar of the valuation of all the taxable property in that county is certainly a uniform and equal rate of taxation for that county, or, in other words, for that taxing district.
The third contention of the plaintiff, that the new act is in contravention of § 17, article 2, of the constitution, we think is also untenable. Some good reasons may be urged in favor of the plaintiff’s contention, and two decisions of this court seemingly to some extent favor it. (Darling v. Rodgers, 7 Kas. 592; Robinson v. Perry, 17 id. 248.) But some good reasons and many decisions of this court are against his contention. (Comm’rs of Norton Co. v. Shoemaker, 27 Kas. 77; Harvey v. Comm’rs of Rush Co., 32 id. 159; Weyand v. Stover, 35 id. 545, 551; City of Wichita v. Burleigh, 36 id. 34; The State v. Sanders, 42 id. 228; Hughes v. Milligan, 42 id. 396; Comm’rs of Linn Co. v. Snyder, 45 id. 636; Comm’rs of Barber Co. v. Smith, 48 Kas. 332.) It will be seen from an inspection of the decisions of this court, commencing with the case of The State, ex rel., v. Hitchcock, 1 Kas. 178, that this court has uniformly held that the legislature has the power in its discretion to pass special laws, although adequate general laws upon the same subject might be enacted, and although in fact such general laws have already been enacted and are at the time in full force and effect, and although such special acts might have the effect to limit the operation of existing general laws or existing laws of a general nature then having a uniform operation throughout the state. We think the statute now in question is a special law, and is not either a general law or a law of a general nature, for it relates to taxes in the counties of Wyandotte and Cowley alone. It is probably well known that the taxes of two different counties are seldom, if ever, levied upon the taxable property of such counties at the same rate. The rate is generally different in all the different counties of the state, being levied rightfully and legally under said §220, for any amount, from any small amount up to p the amount of 5, 5|-, 6J, 7J, 8J, and in some counties 10 mills on the dollar, and hence the particular rate for any particular county is special as to that county. It is never necessary that the rate should be the same in any two counties, and generally it is not. In all counties of the state, however, in which the valuation of the taxable property in the county does not exceed $5,000,000, the county board may rightfully and legally, under said § 220, levy a tax for current county purposes at the rate of 10 mills on the dollar, the same as the tax in the present case. It is not necessary to repeat the reasons given for the various decisions heretofore rendered by this court. We shall simply follow them, and, following them, we must hold that the statute in question is not void because in contravention of § 17, article 2, of the constitution • nor is it void at all.
With the views herein expressed, it follows that the decision of the court below was correct, and its judgment will therefore be affirmed.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action brought by Susan A. Monden, administratrix of the estate of John R. Monden, in the district court of Douglas county, against the Union Pacific Railway Company, to recover $10,000 damages for the death of the decedent, caused, as is alleged, by the negligence of the railway company. A trial was had before the court and a jury, and a verdict was returned in favor of the plaintiff for the sum of $9,000. Judgment was entered upon the verdict and special findings. The case is brought to this court to reverse such judgment.
The decedent was a locomotive engineer, and had been in the employ of the railway company for three years prior to September 2, 1887, and lived at Wamego. On the morning of the date mentioned he came home from a run about the hour of 4 o’clock, and sometime in the forenoon of the same day he was summoned by the regular caller to go out on another run. He was informed that he was wanted to go to Lansing for a train of coal. The engineer replied that he was not acquainted with the Leavenworth branch; that he had never been over that road, and that he would not go; that he had no right on that branch. The decedent left his home, and started from Wamego with an engine, caboose, and a train crew consisting of a conductor, fireman, and two brakemen, about 2 o’clock in the afternoon of the same day, and arrived at Lansing about 5 o’clock in the evening. The train was made up of 12 loaded coal cars, an engine, and caboose, and started back from Lansing about dusk. The five cars next to the engine were controlled by air brakes. On the return trip, stops were made at Pairmount, Big Stranger, and Tonganoxie. The train passed Reno, about six miles from the junction with the main line, without stopping. There is a descending grade from the latter station to the junction. The conductor, with the aid of the rear brakeman, set the cupola brake in the caboose about a mile east of the junction, and gave a signal with his lantern to the engineer to stop about a quarter of a mile from the junction. The air brakes were set by the engineer about three car lengths from the junction. No signals were given by the engineer. The engine and cars ran off the track at the junction, and the engineer, fireman and head brakeman were killed. The accident occurred about 9 o’clock, and the night was very dark.
The special questions and answers returned by the jury are as follows:
“ 1. Was John R. Monden, at the time he came to his death, exercising ordinary care under the circumstances which surrounded him? A. Yes.
- “ 2. Was the Union Pacific Railway Company, defendant, guilty of negligence in not providing a junction marker, or some other signal, to indicate the approach of trains to the junction at which the accident occurred? A. Yes.
“3. Was the defendant, the Union Pacific Railway Company, guilty of negligence toward the said John R. Monden on the 2d day of September, 1887, aside from the failure to provide junction markers? A. Yes.
“4. Was the death of John R. Monden, on the 2d day of September, caused by the negligence of the defendant, the Union Pacific Railway Company? A. Yes.”
Questions submitted by defendant:
“1. Had not John R. Monden been running as an engineer for defendant about three years at the time he was killed ? A. Yes.
“2. Had not John R. Monden run as engineer during those three years on defendant’s main line, between Kansas City and Wamego, and between Wamego and Brookville, and also on the Manhattan & Blue Valley branch, the Junction City & Fort Kearney branch, the Solomon branch, the McPherson branch, and the Salina, Lincoln & Western branch ? If you find that he had not run over the main line and branches above mentioned, state which ones he had and which he had not run over. A. Yes; as we remember the testimony.
“3. On the day before Monden was killed, did he not run as engineer on defendant’s main line between Kansas City and Wamego, passing over the switch where he was after-wards killed? A. Yes.
“4. Were not stub switches in general use all over the part of defendant’s railroad upon which Monden run, with the exception of at Topeka, all the time Monden was running upon the road ? A. Yes.
“5. Did the defendant have switch lights ,at any of its junctions of the branches with the main line while Monden was running upon defendant’s road? A. Yes.
“6. If you answer the preceding question in the affirmative, state at what junction points the defendant had such switch lights. A. At Manhattan.
“ 7. Did the defendant, at any of the time when Monden was running on its road, have junction markers on any of its branches to indicate to an engineer that he was approaching a junction? A. No; unless there was one at or near the northeast end of the Leavenworth branch.
“8. If you answer the preceding question in the affirmative, name all of the branches upon which the defendant had such markers, and state the junctions near which they were located. [Not answered.]
“9. Was not the rule, ‘first in, first out/ applicable to engineers, and in force on defendant’s railroad for a considerable time before Monden was killed ? A. Yes.
“10. Was not Monden running an extra freight at the time he was killed ? A. Yes.'
“11. About how many miles an hour was Monden running at the time, and immediately before he was killed ? A. About 18 miles.
“12. Did not Monden, at the time he was killed, have in his possession a time tablé, showing the time of the trains on the Kansas division of the defendant’s railroad? A. Yes.
“13. Was there not in the back of said time table general regulations personal to employés? A. Yes.
“14. By one of said regulations was it not provided that extra freight trains must not exceed a speed of 18 miles an hour on any portion of the road, without special order from the superintendent? A. Yes.
“15. Did not Monden, on the day he was killed, go from Wamego to Lansing, passing over the Leavenworth branch in the daytime? A. Yes.
“16. If there had been a suitable junction marker, properly located, on the Leavenworth branch, ápproaching Lawrence junction, when Monden was killed, would he have seen it as he went toward the junction on that trip? A. Yes.”
The plaintiff relied upon four alleged acts of negligence upon the part of the railway company: First, that the defendant did not have a board at some distance from the junction of the' Leavenworth branch indicating the distance to the junction; second, that the railway company did not have a switch light at the junction; third, that the company had a stub switch at the junction; and, fourth, the company had a rule in regard to its engineers, firemen, and brákemen, by which it might happen that the employés would be called to go over parts of the company’s road with which they were unacquainted. The court, in its instructions to the jury, virtually eliminated all of the grounds of negligence from the case except the first. In relation to the stub switch, the court said, in its instructions to the jury:
“As to the ‘ stub switch,’ so called, the evidence shows such switches were in common use on the whole line when Mon-den entered the employment, and if you find that he knew that fact, or in the performance of his duties must have known it, then, entering upon and continuing in the service knowing of such appliance, even though you find it one not reasonably safe, would defeat the plaintiff’s claim to recover for an injury happening to Mr. Monden through that agency alone.”
As to the fourth ground of negligence, the court said:
“With regard to the rule ‘first in, first out,’ as it is termed, it is for you to say, upon all the evidence, whether it was a reasonable one, within the power to make such reasonable rules as I have before stated. But whether reasonable or not, if he procured it to be made, or assented to it, while acting in behalf of the other engineers, and in his own behalf, he could not complain of its operation, and of course the plaintiff can have no greater rights than he could himself. Or, if he did not so assent to it, and yet knew of its existence and continued in the service without objection, knowing that be was subject to its operation, and had full knowledge of its effect, then the injury happening because of such operation and effect of the rule alone could not be the basis of an action for damages against the company.”
Upon the controlling ground of negligence, the court said:
“With respect to the signs or marks to designate the approach to a junction and switch, it is submitted to you as a matter of fact, upon all the evidence: First, whether it was reasonably necessary, within the rules stated, to have such marks or signs — in other words, whether it was reasonably safe to operate the road without them, and the company was negligent in not providing them — and especially, whether it was negligent in not having such mark or sign at or near the Lawrence junction as claimed; and, second, if it was negligent in that respect, did Monden’s injuries result directly therefrom; and, third, if you so find, then did he, previous to going out upon that trip, have knowledge that there were no such marks or signs, and consequent danger, and so voluntarily assumed the risk? You should consider, in this connection, his course of employment with the company; his knowledge of the defendant’s railroad and appliances; his experience upon the other branches as well as upon the main line, and what knowledge he had acquired, or probably had acquired, as to the absence of such signs or marks; and then you must say, as a matter of fact, whether he had a reasonable right, in view of all the facts proven, to rely upon finding such marks or signs in time to stop the train before reaching the junction. If he did, and observed due care otherwise, there may be a recovery, if the absence of such mark caused the injury; otherwise, there can be no recovery on that ground. If on a track with which he was not acquainted, in the night, and uncertain as to his whereabouts, he was bound to use his senses, and the means at hand, and adopt such precautions for his own safety, and that of the crew and train, as engineers of ordinary and reasonable prudence would have taken in the same situation. If he failed in this, and this contributed to the injury, then, of course, there can be no re-* covery. You should consider the rate of speed he was running, his knowledge to be derived from the time card, from the surrounding objects, from the operation of his engine, and all the evidence bearing upon the matter, and then say, as a matter of fact, whether he was exercising proper care; in other words, whether he did what a reasonably prudent man in the same employment would have done in the same circumstances.”
This instruction was duly excepted to, and complaint is particularly made of it. In overruling the motion of the defendant for a new trial, the court said:
“Had the argument that has just been made been heard when the charge was written, some expressions in it would have been changed. It is exceedingly difficult in framing instructions to use language upon every proposition submitted not subject to criticism. The supreme court, however, recognizes the fact that some inaccuracy will occur; and unless the error, if error it be, affects the substantial rights of the party complaining, it is disregarded. It is urged that when the court undertook to define the rule with respect to an employé entering upon or continuing in the service, knowing of defective appliances, or of the failure to provide such as are reasonably necessary, it should have been also stated that if the employé, in the exercise of reasonable care, ought to have known, etc., the same rule would apply; ánd the proposition is correct. The defendant presented several requests, in substance the same, referring to this matter of knowledge, one of which was given, and which, I believe, did not contain the clause the omission of which is complained of. I do not think this would cure an error in refusing to give another pertinent request containing such clause, when such error is material, but it may serve to explain the omission. I think, however, in this case, that it is not material.
“As'to the stub switch, and the rule ‘first in, first out/ complained of in the petition, there was no question of the actual knowledge of the deceased, and these matters were substantially withdrawn from the jury. And as to the want of junction markers on the Leavenworth branch, there can be no claim that he had any knowledge about it, and the only question about that is, whether the absence of such markers on the main line and other branches is sufficient in law to charge him with knowledge of their absence here. Now, as to the main line, it must be remembered that the switches were never left open connecting with the branches, so as to break the continuity of the track. When a train passed from the main line to a branch, or vice versa, the switch was immediately turned so as to leave the main track continuous; hence, markers to designate junctions were not necessary to operatives running on the main line. As to the other branches, the evidence shows that they made connections with the main line at cities or towns, running partly through the same (and in one ease there was a bridge); thus the junctions were sufficiently marked without specific signs. The necessity of such a mark must be considered with reference to the location and surroundings. In this case, unlike other junctions on this road, there was nothing but some adjacent farm houses, and trees and lights, which, however, were'distant, in Lawrence, and the distance to which might not be correctly judged by an engineer for the first time.
“In answer to the plaintiff’s third question, the jury say that defendant was guilty of negligence besides its failure to provide junction markers. Now if this stood alone, the verdict could not be sustained. The Rush case, whatever may be decisions elsewhere, precludes a recovery on account of any supposed negligence growing out of the use of the stub switch, for it was well known to the deceased. Coupled, however, with the principal matter complained of, (the neglect to provide such markers,) should be considered the fact that a crew unused to the branch was sent out with an engineer who had never been over it, and that there was no switch light at the junction where, as we have seen, there were no other marks or signs to denote its presence. The absence of switch lights on the road generally was, it is true, well known; but the question is—and I think it was fairly presented — whether it was negligence to send out a raw crew to go over such a branch and junction under just these circumstances, with no junction marker or switch light or other objects or signs to give notice of the approach to the junction. I do not think the absence of switch lights will authorize a recovery, alone, when the employ é knows the fact; nor is the sending out of a crew unused to the road of itself negligence; but I am inclined to think that these matters being combined with the absence of all signs, is sufficient to submit to a jury and to authorize a recovery, and that, under the circumstances of this particular case, the deceased was not chargeable with such knowledge as will necessarily preclude a recovery. Without pursuing the subject further—and much more might be said — I am constrained to hold that the verdict should stand. The motions are therefore overruled, and judgment will be entered upon the general verdict.”
It is contended by the plaintiff in error that the court made a distinction between the junction marker and the stub switch when it said to the jury, that if when Monden entered the employment' he knew that the stub switch was in common use on the whole line, or in the performance of his duties must have known it, then entering upon and continuing in the service, knowing of such appliance, even though it was found to be one not reasonably safe, would defeat the plaintiff’s right to recover for any injury happening to Monden through that agency alone, while it did not apply the same rule to the junction marker. The contention is, that the court should have said to the jury:
“Third, if you so find, then did he, previous to going out upon that trip, have knowledge, or in the exercise of reasonable care ought to have known, that there were no such marks or signs, and consequent danger, and so voluntarily assumed the risk ? ”
It was established by the evidence that an engineer running a train, especially if he was going oyer a new road, should pay attention to the landmarks, and should be looking for them; that a junction marker is the best kind of a landmark, and that nothing can fully take the place of it; that an engineer in passing over a railroad once in the daytime might, if he was very particular, detect landmarks by which he could be safely guided on his return trip at night. While it would hardly be practicable, still an engineer might, if he was very particular, select objects by which he could be guided. It is an engineer’s duty to be particular in running over a railroad that he knows nothing about; it is his business to be more particular than where he knows the road. The question presents itself, then, whether under the evidence the defendant was entitled to have the same rule applied with reference to the switch marker that was given in regard to the stub switch. It was in evidence that Monden had been over the main line a number of times. In the performance of his duties as an engineer, he had passed over the Leavenworth branch the same afternoon he was killed. The instruction complained of contemplates a knowledge of the markers, or the want of them, before Monden started on the trip. Should not the instructions have gone further, and required the exercise of reasonable care in the observance of markers or the want of them during the trip? He should have exercised his faculties as he passed over the road for the first time. The jury found that if there had been a suitable junction marker properly located on the Leavenworth branch, approaching the Lawrence junction, when Monden was killed, he could have seen it as he went towards the junction. He could have observed the same as he passed over the branch going to Lansing. It was said by this court, in the case of Rush v. Mo. Pac. Rly. Co., 36 Kas. 136:
“If the servant has full knowledge of the danger, and continues in the master’s employment without complaint, recov ering from the master full pay for his services, he assumes the risk himself of the known danger, and waives any negligence that might otherwise be imputable to the master.”
The rule has been stated by the supreme court of Connecticut, in Hayden v. Manufacturing Co., 29 Conn. 552:
“Knowledge of the condition of things on the part of the-servant, and his continuance in the service after such knowledge, exempts the master in every case from all liability to the servant for an injury growing out of the condition of things. This general proposition is fully sustained by the authorities.”
Applying these principles to the case under consideration, when and how should knowledge of the existence of such danger be obtained ? The court said to the jury that if the deceased, “previous to going out upon the trip when he was hilled, had knowledge that there was no marks or signs, and consequent danger, and so voluntarily assumed the risk.” Should not the court have instructed further: “Or in the performance of his duties must have known that there were no markers?” We think the instruction is subject to the criticism that it limited the knowledge of the decedent to the time previous to the trip upon which he was killed. Under the evidence in this case, such a limitation should not have been applied. If he obtained such knowledge in the performance of his duties at any time before the accident, it would be the same. The evidence established the fact that Monden was a competent engineer; that he had been over the main line, and all of the branches except the one upon which he was killed. He had run on the road for three years. The engineers who testified agreed that it was the duty of an engineer in going over a railroad for the first time to observe objects and select marks to guide him in returning. This was a part of his duty, and in the performance of it he must obtain knowledge as to the landmarks along the same. Under the facts of this case, we are of the opinion that the court should have applied the same rule in regard to the switch markers that was given in regard to the stub switch.
The court instructed the jury:
“But when the defect is one to which he is not exposed in the ordinary course of his employment, but is one which he is required at the time to immediately encounter by a special command of the employer or superior, without time for reflection or choice, he may obey the order without forfeiting his right to recover in case injury results; and so if the danger is not obvious, but is unknown to the employé and is known to the company.”
While perhaps not material error, we do not think the instruction is applicable to the facts in this case. Monden was not obliged to go out on the run. He had several hours to consider the matter before he started on the trip, and he made no objection to his superior officers.
Complaint is made of the giving of other instructions and the refusal to give certain instructions requested, but we are of the opinion that with the exceptions noted the instructions-need not be commented upon.
It is recommended that the judgment of the district court be reversed, and that a new trial be granted.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action of replevin, brought by T. A. Vaughn, claiming to be the owner of certain goods, wares, and merchandise,, of the alleged value of $1,000, located in Fargo Springs, in this state. The property had previously been attached in an action instituted by Smith, Heddens & Co., against Mills Bros.; and, while the property was in the possession of the sheriff, the goods were replevied. The action was originally brought in Seward county, but was afterward taken on change of venue to Haskell county, and subsequently, by agreement of parties, was transferred to Meade county, where, on the 17th day of September, 1889, the case was tried by the court, a jury being waived, and judgment rendered for the defendants. Plaintiff below excepted to the rulings and judgment of the trial court and brings the case here.
It is contended that there were no sufficient reasons presented to the district court of Seward county to grant a change of venue. The change having been granted, this court will not interfere. The granting of a change of venue in a civil action is to a great extent within the discretion of the trial court; and where it does not appear that such discretion was abused, or that any substantial right of the objecting party was materially affected by the change, this court will not reverse an order of the district court granting the change, although it may not appear that the district court was clearly bound to do so. (Civil Code, § 56; Waterman v. Kirkwood, 17 Kas. 9.) Further, the record shows that after the venue was changed to Haskell county the parties agreed in open court for the trial of the action to take place in Meade county. The trial took place, by consent, in that county.
It is next contended that the district court erred in overruling the motion for a new trial, because of a want or failure of evidence to sustain the judgment. The trial court made a general finding that the plaintiff was not the owner of the goods, wares and merchandise in controversy at the commencement of the action, and that he was not entitled to the possession thereof; that his pretended purchase of the stock of goods was without valuable consideration, and that the pretended sale to him by Mills Bros, was fraudulent. The court made the further finding that the defendants were in the lawful possession of the stock of goods at the commencement of the action, under the attachment proceedings commenced in the district court of Seward county, and that the value of the stock of goods at the commencement of the action was $1,000. The important question of fact for the trial court in this case was, whether the sale by Mills Bros, to Vaughn was a bona fide transaction, made in good faith,. or made only for the fraudulent purpose of defeating creditors in the collection of their debts. Upon that question, after hearing the testimony, the court found for the defendants, and against the plaintiff. The evidence was conflicting, but the court saw the witnesses, heard what they had to say, and we think that there is sufficient in the record, under the general rule, to prevent this court from interfering. (Railway Co. v. Kunkel, 17 Kas. 145.) In cases brought here on error from a trial upon oral testimony, this court is not a trier of questions of fact. Counsel admit this, but claim there was no evidence whatever to sustain the verdict. We cannot agree with this conclusion.
It is further contended, as Vaughn accepted an order from Mills Bros, to Smith, Heddens & Co. to pay their debt, or a part thereof, from the proceeds of the sale, defendants were estopped from questioning the validity of the»sale by Mills Bros, to Vaughn, even though it were originally fraudulent. This, perhaps, would be true, if Smith, Heddens & Co. accepted the order with full knowledge of all the facts subsequently claimed by Vaughn and Mills Bros. At the time the order was obtained, Smith, Heddens & Co. believed, from the statement of the parties, that the stock would invoice from $900 to $1,000, and that $225 only had been paid. When the delayed inventory was finally produced, it only showed $473 worth of goods on hand. Therefore, under the circumstances, we do not think Smith, Heddens & Co. were estopped. If Smith, Heddens & Co. were induced by the fraud of the parties to take the order accepted by Vaughn, they ought not to be bound thereby. By commencing their attachment proceedings, they have repudiated that order, and cannot recover thereon. In order to apply the doctrine of estoppel, the party in whose favor it is invoked must himself act in good faith. The case was tried before the district judge without the intervention of a jury, and we do not find any exceptions taken to the admission of the evidence complained of. A motion was made to strike out some of the evidence after it had been received. The court allowed the motion in part, and refused it as to other matters. If any error occurred in this, we do not think it sufficiently material to reverse the judgment.
Finally, it is contended that there was error in assessing damages. The court rendered judgment for $1,170.50. On the 9th of March, 1887, Mills Bros, were indebted to Smith, Heddens & Co. for $1,137.27. The attachment proceedings were for the recovery of that amount. The value of the goods replevied was $1,000, and the court found that the return of the goods could not be had, because the plaintiff had sold and disposed of the same. The replevin proceedings were commenced on the 3d of November, 1887. Five per cent, interest was allowed from the 1st of December, 1887, amounting to $107.50. The court committed no error in the amount of the recovery, if the judgment was otherwise correct. »
We have examined all of the other alleged errors, but perceive nothing sufficient therein to require a reversal.
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
Allen, J.:
This action is brought by the plaintiff to recover from the defendant damages which she claims to have sustained by reason of the defendant having certified on the abstract of title to a certain lot in Paola, as follows :
“I Hereby Certify, That there are no judgments, mechanics’ liens, foreign executions, or suits pending, on the records of this court, against any of the above-named grantors or grantees, affecting the title of the above-described real estate, except as above stated. Dated this 8th day of April, 1885. D. M. Ferguson,
Clerk of the District Court, Miami County, Kansas.”
Plaintiff alleges, in substance, that, relying upon this certificate, she purchased the property described in the abstract, and paid therefor, in cash, the sum of $5,000; that, in truth and in fact, there was a suit then pending in said district court, wherein one Sutton S. Clover was plaintiff, and William G. Oakman, Hattie E. Oakman and others were defendants, in which said Clover claimed to own an equitable interest in said lands, and sought to recover the same. Plaintiff further alleges, that said suit, last mentioned, was tried in said district court, and that said Clover was by said court adjudged to be the owner of the undivided one-fourth of said property; that plaintiff was compelled to pay $1,000 to buy in the interest of said Clover, and that she paid attorney fees and expenses in defending said action to the amount of $385; that she had demanded payment from the defendant and that he refused. The defendant admits that he was clerk of the district court, and that he signed the certificate set up in the petition. The defendant denies that he was engaged in the business of making abstracts. The defendant alleges that said abstract was made by one C. W. Chandler, who was engaged in the business of making abstracts of title, and that said defendant signed the same as an accommodation to the said Chandler. He alleges that, before signing the certificate, he made a diligent, thorough and careful examination of the records in his office, and, as a result of said search and examination, was satisfied of the truth of said certificate. He alleges that he examined all the records and papers in said suit of Clover v. Oakman, and was convinced that the title to said real estate was not involved in said suit of Clover v. Oakman. The defendant also alleges that the party for whom said abstract was made was unknown to him at the time he signed said certificate, and that he signed it for the sole advantage and profit of said C. W. Chandler. The undisputed evidence shows that the defendant was paid 25 cents for this certificate. It also shows that the title to the land mentioned in the abstract was in dispute in said suit of Clover v. Oakman; that Clover obtained judgment for one-fourth interest therein; that the plaintiff bought in said interest and paid $1,000 for it; and that she paid attorney’s fees amounting to $310 in defending against the claim' of said Clover in that action, she having been made party defendant to the action subsequent to the purchase from Oakman and wife of the property described in the abstract. This case was tried before the court without a jury, and a general finding was made in favor of the defendant, and judgment rendered against the plaintiff for costs.
There is no showing that Mrs. Mallory, the plaintiff, or her husband, C. H. Mallory, whom the evidence shows was her general agent in making the purchase of the property, had any conversation directly with the defendant. The evidence does show that Mallory employed said C. W. Chnadler to make the abstract. It also shows that Mallory paid to Chandler 50 cents in addition to Chandler’s own charges for the certificates of the clerk of the district court aud the treasurer. The defendant claims that his understanding of the matter was that the abstract was made for Oakman, and upon this question the testimony is not entirely clear. On cross-examination, C. H. Mallory was asked this question:
“Ques. You may state if you recognize that paper—you examine there [handing witness paper], and did n’t you answer in reply to that question this: ‘ That is the abstract that Mr. Oakman presented to us, made by Mr. Chandler?’ Ans. Well, that was part of the papers; yes, sir.”
C. W. Chandler, on cross-examination, testified as follows :
“ Q. What did Mr. Mallory say to you about what he wanted that abstract of title for? A. When he first came to the office he said he wanted it for Mr. Oakman —that is, Mr. Oakman wanted the abstract, and he spoke to us for it.
“ Q,. You told him you would not make the abstract for Mr. Oakman unless Mr. Mallory would pay for it? A. Yes, sir.
“Q,. Then, he told you to go on and make it and he would pay for it.? A. Yes, sir; he said he would see it was paid for.
“Q. Then you went on and made it? A. I did.”
The defendant testified, among other things:
“Ques. Did Mr. Mallory ever say anything to you in connection with the matter? Ans. I don’t recollect Mr. Mallory saying anything.
“ Q. Did he ever have anything to say to you on the subject? A. No, sir.
“Q,. You say you signed this certificate at the request of Mr. Chandler? A. Yes sir; C. W. Chandler. I examined the record for Mr. Chandler, at his request.
“Q,. What was Mr. Chandler’s business at that time? A. He was in the loan business and the abstract business.
“Q. Before you signed that certificate at that time, you may state whether you made a careful examination of the records. A. I did make a careful examination of the records.
“ Q,. And you may state what, if any, conclusion you came to with reference to anything in that suit affecting the title to that property — the property alleged to be described in that so-called abstract of title. A. My opinion, according to the best of my judgment, was, that it did not affect the title; of course, it was a complicated case. It was my understanding I was simply to exercise my judgment as best I could.”
And again:
“Q,. Was there any talk in your office, at the time this certificate was certified to, as to who was the owner of this property, or as to whom this abstract was for? A. I understood Mr. Chandler to say he was making it for Mr. Oakman through Mr. Mallory, at the request of Mr. Mallory; that Mr. Mallory was going to purchase the property.
“Q,. There was something said about Mr. Mallory in connection with it? A. In the talk, that Mr. Mallory was going to purchase.”
The evidence shows that the defendant frequently made similar certificates on abstracts, for which he charged and received the uniform fee of 25 cents. He testifies, however, that he frequently made such certificates without receiving any fee therefor. There is no pretense on the part of the plaintiff that the defendant was either an attorney at law, or engaged in the business of making abstracts of title, except so far as such certificates relate to an abstract. There was no special contract or agreement with reference to this particular-certificate, but it was made by the defendant, as he claims,. with the understanding on his part that it was his official duty to make such certificates, and that the law allowed him a fee of 25 cents therefor.
It is important to determine—first, whether there was any undertaking on the part of the defendant to perform any services whatever for the plaintiff in this case; second, if there was such undertaking, what services did the plaintiff undertake to perform? There having been a general finding by the trial court in favor of the defendant, all doubts as to the weight of the evidence must be resolved in his favor.
We are not prepared to say that the uncontradicted evidence shows that the defendant was employed by Mrs. Mallory, through her agent, to make this certificate, and, if we were forced to decide this case on this point alone, we should have to hold that the general finding of the trial court in favor of the defendant included a finding that the defendant was not employed by the plaintiff to make the certificate. We do not, however, rest our decision on this point alone, but will consider the second proposition also. If the making of the certificate on the abstract was not done under an employment from the plaintiff, can she recover in this case? the great weight of authority is to the effect that the party making the examination an(] certificate is liable only to his employer, and never to a stranger or third party. (Investment Co. v. Hughes, 20 Fed. Rep. 39.) In the case of Houseman v. G. M. B. & L. Ass’n, 81 Pa. St. 262, Mr. Justice Sharswood, in delivering the opinion of the court, says: “It was decided by the present chief justice at nisi prius, in the case of Commonwealth v. Kellogg, 6 Phila. Rep. 90, that this liability is to the party who asks and pays for the search, and does not extend to his assignee or alienee. The decision in the case of P. B. & L. Ass’n v. Houseman, 89 Pa. St. 261, seems to be somewhat in conflict with the doctrine as stated by Justice Sharswood in the case above cited. We think that the rule as stated is sustained both by the weight of reason . . . . and authority, that there must be privity of contract to create liability.
In the case of Savings Bank v. Ward, 100 U. S. 105, the supreme court of the United States holds:
“ Where A., an attorney at law employed and paid solely by B. to examine and report on the title of the latter to a certain lot of ground, gave, over his own signature, this certificate: ‘B/s title to the lot [describing it] is good, and the property unincumbered/ C., with whom A. had no contract or communication, relied upon this certificate as true, and loaned money to B., upon the latter executing, by way of security therefor, a deed of trust for the lot. B., before employing A., had transferred the lot in fee, by a duly-recorded conveyance, a fact which A., on examining the records, could have ascertained had he exercised a reasonable degree of care. The money loaned was not paid and B. is insolvent. Held, First, there being neither fraud, collusion or falsehood by A. nor privity of contract between him and C., he is not liable to the latter for any loss sustained by reason of the certificate; second, that usage cannot make a contract where none was made by the parties.”
We think that the judgment of the district court might be upheld on the ground that there was evidence tending to show that the employment of the defendant was made in behalf of a person other than the plaintiff. We shall proceed, however, with the consideration of the more important question involved in the case — whether, conceding the existence of such employment by the plaintiff, the nature of the employment renders the defendant liable in this action. The defendant was clerk of the district court of Miami.county, Kansas. He testifies that in making this certificate he supposed he was merely performing a duty imposed on him by law. It is nowhere made the duty of the clerk of the district court to search the records in his office for judgments, ^ j o 7 liens, and suits pending, nor does the statute provide any fee for any such service. It is not contended in this case that there was any special contract or agreement between the parties as to the particular service he was to perform, but it is contended on the part of the plaintiff that the- defendant was in the habit of making such certificates for pay, for the -uniform fee of 25 cents, and that because of such practice he was liable for any error in such certificate. The law does allow the clerk of the district court a fee of 25 cents for his certificate and seal. Can it be said that, because the defendant was in the habit of making certificates of the character of this one, and charging therefor the sum of 25 cents, that he is liable for any error or misstatement contained therein? Ordinarily the certificate of the clerk of the district court is attached to copies of records, or to other written instruments, for which, if made by the clerk himself, he is also entitled to payment. If the defendant had been called upon to make a full transcript of all the records in the case of Clover v. Oakman, over his certificate of the correctness thereof, and had he made what purported to be such transcript, to the correctness of which he appended his certificate, we do not doubt that he would have been liable for any error or omission in the transcript through which the party receiving and paying therefor was injured. In this case, however, the clerk certifies not to the correctness of a transcript which he has made, but to the legal effect of the whole volume of all the records in his office on the title to this laud.
Authorities are cited by counsel for the plaintiff in error, which, he contends, hold the defendant liable. These authorities must be considered with reference to the statutes which were construed by the courts in making their decisions. In the case of Zeigler v. Commonwealth, 12 Pa. St. 228, the court says:
“ In Pennsylvania it has ever been a portion of the duty of the prothonotary to make searches. It is an incident of his office as a keeper of the records of the county. The fee bill gives him compensation for his services and for his certificates.”
In the case of Lusk v. Carlin, 5 Ill. 395, which was an action on the official bond of the recorder of deeds for failing to note a mortgage in his certificate of search, the court says:
“It is contended that it is.not a duty of the recorder to examine and give information whether land is incumbered, as it would frequently involve a question as to the legal effect of the conveyance of record. In this sense of examination, he is not bound to make it; but we are of the opinion that he is bound to search and give information of the fact whether there are deeds, mortgages or writings concerning the land, and refer the party to them, so he may be enabled to judge for himself, and take counsel as to the manner in which the title is affected, or the estate incumbered by them. The search should be diligent and his information true, as for it he is entitled to compensation.”
The court refers to various provisions of the statutes of Illinois, relating to the duty of the recorder, and says:
“The whole scope and spirit of these provisions seem to me to point out this service as an official duty of the recorder, and I think the fees, perquisites and emoluments of his office a good, continuing and valuable consideration to charge the suretv in the bond, within the principle laid down in the case of United States v. Linn, 15 Pet. 311.”
In New York and other states it is made the duty of certain officials having the custody of public records to make searches and certify the result thereof, and it is held that the officer is liable for any error or misstatement in such certificate. We have not been able, however, to find any case, nor has counsel called our attention to any, where the officer has been held liable on a certificate which the law did not require him to make, and where he received no compensation for making the search. In Warvelle on Abstracts, page 66, the author says:
“ It is frequently the custom of the examiner to append to an abstract of this character certificates of the officers having the custody of records examined, yet in the majority of cases the said certificates do not materially enhance the value of the examination as evidence, and, unless forming a part of their official duty, create no responsibility on the part of the certifying officer.”
This case is in itself a strong illustration of the hardship of a rule which should hold the clerk of the district court liable for any error in such a certificate for the .sum of 25 cents, which he would be entitled to have for making any formal certificate whatever. Under the plaintiff’s theory of this case, he would be held bound to examine every record in his office which in anywise affected the title to these lands, and to state over his signature correctly the legal effect of every record which in any manner affected the title. There is nothing in this case tending to show that the defendant was called on to make any transcripts of any records in his possession. Had the plaintiff obtained a transcript of the pleadings in the Oakman case, in the exercise of ordinary business prudence,.she would have submitted such transcripts to a counselor learned in the law for his opinion as to their effect on the title to this property and as to the risks she would incur by purchasing the property, pending such litigation. Many authorities are cited by counsel as to the liability of attorneys, physicians and other persons who fail to use care and skill in their employment. These authorities cast but little light on this case. The general doctrine we think is correctly stated in Story on Bailments, § 435:
“Where the particular business or employment requires skill, if the bailee is known not to possess it, or he does not exercise the particular art or employment to which it belongs, and he makes no pretension to skill in it, there, if the bailor^ with full notice, trusts him with the undertaking, the bailee is bound only for a reasonable exercise of the skill which he possesses, or of the judgment which he can employ; and, if any loss ensues from his want of due skill, he is not chargeable.”
There is no evidence in this case tending to show that the defendant held himself out to the public as skilled in the examination of public records, or in determining their legal effect. He himself testifies that he used such care and judgment as he possessed, and that it was his opinion that the title to the property described in the abstract was not affected by the Clover suit. If the plaintiff employed the defendant at all to pass his opinion,, or to certify as to the effect of the records in that case, she certainly employed him for a very meager consideration. We are not prepared to say that any consideration whatever was paid in this case' for a search'. The defendant did not claim to be a lawyer, nor was there auy evidence that he claimed to have skill. We think the plaintiff was not entitled to the benefit of any higher order of judgment than the defendant in fact possessed, and that, in relying on such a certificate so obtained, if lo3s occurs, she must herself bear it, under all the circumstances as they are shown by the record in this case, Certainly there is a wide difference between the liability of a lawyer, or other person claiming to have especial qualifications for determining questions affecting the title to land, and that of a layman, who neither has, nor professes to have, any. We conclude, then, that the defendant is not liable for any error in judgment as to the condition of the title to the land described in the abstract, even though such error be a gross one, and it may well be doubted whether he would be liable where he receives merely the fee allowed by law for a certificate, unless guilty of fraud or willful mistatement.
We think the judgment of the trial court was right, and it will be affirmed.
All the Justices concurring. | [
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Opinion by
Strang, C.:
This case was submitted to this court some time ago, and reversed. (See opinion, 46 Kas. 264.) It is here now on a motion for a rehearing. The question now raised was not presented in the Oral argument of counsel at that time, nor is it argued in the brief, though it is mentioned indirectly therein; but a reexamination of the record, since the argument on the motion for rehearing, discloses the fact that the question now presented is in the record, and was overlooked when the former opinion was written. The attention of the court is now called to the fact that the amount of the assessment against each piece of property has been ascertained, and notice thereof given. When these steps have been taken by the city authorities, injunction proceedings will lie, if begun in 30 days from the time the amount of the assessment is ascertained. (City of Topeka v. Gage, 44 Kas. 87; Wahlgren v. Kansas City, 42 id. 243.) It is therefore recommended that the motion for rehearing be granted; that the judgment for reversal heretofore entered be set aside, and that the judgment of the district court allowing the injunction be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Strang, C.:
On the 4th of April, 1888, a petition was presented to the board of county commissioners of Neosho county, praying for the opening of a certain highway across the land of the plaintiff in error and other lands. Viewers were appointed to view and lay out said road. When they met to assess- the damages to the different landowners, the plaintiff in error duly presented his claim for damages, which was entirely disallowed by said viewers. July 5, 1888, said board being in session, the road was ordered opened, and the plaintiff’s claim for damages was dis allowed. The plaintiff then appealed to the district court. At the April meeting of the board in 1889, the commissioners reconsidered their action of July 5, 1888, in ordering said road opened, and then filed a disclaimer in the district court to said road, and asked the said court to dismiss the case at their costs, which was done, over the objection of the plaintiff. The plaintiff is here .alleging that the court erred in dismissing the case over his objection.
We think the contention of the plaintiff in error is just. The board of county commissioners, on July 5, 1888, .confirmed the report of the viewers in respect to the road complained of by the plaintiff, and ordered it opened. It also disallowed the plaintiff’s claim for damages. The plaintiff then had a right to appeal to the district court, and there have his claims for damages heard. There is nothing in the record that authorized the court below to dismiss plaintiff’s appeal, against his wishes and over his objection. Paragraph 5474, General Statutes 1889, provides for laying out highways, and also for vacating the same; and from this and subsequent paragraphs of the same chapter it will be seen that a petition and notice are necessary jurisdictional factors in the process of either securing or vacating a public road, and these jurisdictional steps are as necessary in order to vacate a road as to lay one out. (Troy v. Comm’rs of Doniphan Co., 32 Kas. 507.) In this case the board reconsidered its action in ordering a public road opened and vacated the same at a session subsequent to the one at which the road was ordered opened, and after one full session had intervened, without any petition asking the vacation of the road having been filed, and without any notice to the public or any person interested. This action of the commissioners was unauthorized and void.
“ The order of the county board declaring a section line to be a public highway, or establishing a line of road thereon, and ordering it to be opened by survey of the county surveyor, is an establishment of a public highway on such line which can only be vacated by pursuing the course designated in said chapter. Therefore an order of a county board after-wards made declaring such highways ‘ no road/ without any proceedings by petition or otherwise by which they could obtain jurisdiction, held void.” (McNair v. The State, 41 N. W. Rep. [Neb.] 1099.)
“ Where the road records show that the board had reconsidered its action in establishing such road, but no authority therefor was shown, and no notice thereof given, and a regular meeting had intervened since the one at which such road had been established, such action was in the nature of a new and independent proceeding to vacate a road, which, being without notice, was unauthorized and ineffectual.” (Miller v. Schenck, 43 N. W. Rep. [Iowa] 225.)
The action of the board in reconsidering the establishment of the road, at a subsequent session of that body, without any petition praying such action, and without 'any notice thereof, being ineffectual, was unavailing in the form of a disclaimer, or otherwise, on the part of the board, to authorize the court to dismiss the appeal of the plaintiff.
We therefore think the court erred in dismissing said appeal, and recommend that the order of the court so doing be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This was an appeal in condemnation proceedings for the right-of-way for a railroad, taken to the district court of Cowley county, with the venue changed to Butler county. The railroad company brings the case here for review. The defendant in error recovered for land taken, for depreciation in value of the balance of the farm, and for the destruction of a bridge. The special findings of the jury itemize the elements of damages and award him $242 for land taken, $400 for depreciation of the balance, $258 as -damages for the destruction of the bridge. These sums aggregate $900, and, with interest, constitute the amount of the verdict and judgment. Two complaints are made and discussed in the brief of counsel for plaintiff in error that deserve notice. The first is, that the trial court erred in its instructions to the jury as to the damages that the landowner was entitled to recover. The burden of this complaint is that the jury were instructed that the defendant below had the right to recover for the consequential lessening in value of the remaining portion of his farm, irrespective of any benefit which may be derived from the construction of the railroad through the land. This contention is effectually disposed of by the case of L. & W. Rld. Co. v. Ross, 40 Kas. 598, and the cases cited and followed.
It is said that the verdict of the jury is excessive. It was for $900 and interest. Every item of damage was supported by some evidence, and there is nothing in the record from which one could fairly suspect, much less adjudge, that the verdict was excessive.
Again, it is claimed that certain special findings are evasive. It can be said that the jury might, by making a nice calculation, have answered more definitely several of the special interrogatories, and yet no effort was made by the railroad company to have them do so. The trial court was not asked to send them back, or no objection was made to the reception of the special verdict.
We think that substantial justice has been done, and recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Wabaunsee county on November 6, 1889, by Oberlin College, a corporation organized under the laws of Ohio, against J. W. Clark and Eleanora Clark, his wife, and Ephraim H. Sanford and others, to foreclose a mortgage of $5,000 given by the Clarks to C. W. Lane, and transferred by Lane to G. W. Shurtleff, the treasurer and agent of the plaintiff. A trial was had before the court without a jury, and judgment was rendered in favor of the plaintiff, foreclosing the mortgage for the amount of the principal and interest due thereon, aggregating $6,569, and for costs of suit; and Sanford, as plaintiff in error, brings the case to this court for review. Service of summons in this court was waived by Oberlin College. It does not appear .that any summons has been served upon any of the other parties, or that they have waived service.
It appears that originally the title to the mortgaged property was in Sarah E. Bartholomew; that she, on September 27, 1880, conveyed the same to Henry M. Weeks and Joel P. Weeks; that they conveyed the same to John W. Clark; that Clark and wife mortgaged the same to C. W. Lane for $5,000; that Lane assigned the mortgage to G. W. Shurtleff, the treasurer and agent of the plaintiff, Oberlin College, and that, after the mortgage became due, Oberlin College brought this action against the Clarks and Sanford and others, as aforesaid. Sanford filed an answer in the action, setting up and claiming paramount title in himself; first, under a contract in writing between Sarah E. Bartholomew and himself, executed on December 8, 1879, and before she conveyed the property to the Weekses, wherein she agreed to convey the property, upon certain conditions, to Sanford; second, under a tax deed executed by the county clerk of Wabaunsee county to himself, and recorded on September 8, 1884. The plaintiff replied, denying generally all the allegations of Sanford’s answer, and alleging that all the matters and things with regard to the alleged contract between Sarah E. Bartholomew and Sanford, and all other matters material to this case, had been determined and adjudicated against Sanford in other actions, and that Sanford’s tax deed was absolutely void upon its face and otherwise, and that the statute of limitations had run against it and barred any recovery upon it; and while the record brought to this court is very imperfect, and it is difficult to ascertain just what was done in the court below, yet we are inclined to think that the original cause of action of Oberlin College was fully established by the admissions and findings, that Sanford’s defenses and counterclaims were not established, and that the reply of Oberlin College to Sanford’s answer was shown to be entirely true, and that all the rights and interests of Sanford, founded upon his contract with Sarah E. Bartholomew, or upon anything else, were shown to have been adjudicated against Sanford in other actions. With reference to all these matters, and for a fuller statement of the facts in some particulars, see Sanford v. Bartholomew, 33 Kas. 38; Sanford v. Weeks, 38 id. 319, and Sanford v. Weeks, 39 id. 649. See, also, the following cases just decided: Sanford v. Weeks, No. 6589; Sanford v. Weeks, No. 6590; and Sanford v. Weeks, No. 8218. We also think that it was fully shown that Sanford’s tax deed was void upon its face, and also that the statute of limitations had completely run against it and barred any right to recover under it or upon it. But these questions are hardly in the case. The paper brought to this court, consisting of about 126 pages, and called a “ case made,” does not show that we have all the pleadings, evidence, motions, rulings or decisions of the court below. It shows, however, as follows:
“These are so much of all the pleadings, motions, proceedings, evidénce, rulings, decisions, decrees, orders, judgments, exceptions, journal entries, and constitute the complete and so much of entire record as is necessary to truly present the points complained of as error.”
At the time of settling this “ case-made ” no petition in error had been filed in the supreme court, and no notice had then been given to the opposite party as to what points would be complained of as error in the supreme court, and no such points have anywhere been mentioned except in the petition in error afterward filed in the supreme court. It is true exceptions were taken to some of the rulings of the court below, and it is possible that these are the points of supposed error intended to be complained of in the supreme court; but it can hardly be said that proper notice to that effect was given to the opposite party. But we shall attempt to decide this case upon its merits, and upon the record brought to this court we do not tbink that any material error was committed by any ruling of the court below. Upon the merits, we think the judgment of the court below was correct, and upon this single principle, independent of all others: a final judgment rendered in an action is final and conclusive between the parties and their privies upon all matters litigated or necessarily involved in the action in which the judgment was rendered.
The judgment of the court below will be affirmed.
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The opinion of the court was delivered by
Horton, C. J.:
On the 15th of February of the present year, L. C. Gunn was arrested by C. C. Clevenger, and soon thereafter he presented his petition to one of the justices of this court, asking to be discharged from restraint, upon the ground that Clevenger had no authority to arrest or detain him. He alleged that Clevenger was acting as the sergeant-at-arms of an alleged house of representatives which had no authority to act. The warrant issued to Clevenger as sergeant-at-arms for the arrest of Gunn was signed by George L. Douglass, as speaker, and attested by Frank L. Brown, as chief clerk, and was attached to the application. Subsequently a return was filed by Clevenger, as sergeant-at-arms, justifying the arrest of Gunn, and alleging that his detention was lawful, upon the ground that he (Clevenger) was the sergeant-at-arms of the constitutional house of representatives of the state of Kansas, duly organized by the election of Douglass as speaker, Brown as chief clerk, with other proper officers, and that Gunn refused' to obey a subpoena personally served upon him to appear before the committee on elections, and testify as a witness in a proper investigation then pending before such committee. Tp a part of the return, a traverse has been filed by the petitioner, who has associated with his attorney, counsel representing the governor of the'state. Upon the allegations of the pleadings thus framed, this court has a proper matter before it to hear and deter- • , n , . , . mine, ihe constitution of the state gives this & court original jurisdiction in habeas corpus, and this is a proceeding of that character.
The liberty of a citizen is in controversy. But a statute of this state provides that no court or judge shall inquire into the legality of any judgment or process whereby a party is in custody, or discharge him, when the term of commitment has not expired, in the following case, among others: “Third. For any contempt of any court, officer or body having authority to commit.” Therefore we have before us, necessary for our determiuation, question whether the body or the house authorized Clevenger as sergeant-at-arms to arrest and detain Gunn had any legal or constitutional authority so to do. If there were one house only, or the proceedings of one house only, to consider, our duty in this matter would be plain and easy; but it appears from the journals presented to us that on January 10, 1893, (the day appointed for the organization of the house of representatives of the state of Kansas,) there met and attempted to organize at the capítol, in representative hall, two houses, which since that time have acted separately and independently of each other.
We may remark in this connection that oral evidence was offered upon the trial concerning various matters, which was objected to by the petitioner. In deciding this case and declaring the law thereon, we have sustained the objections to the evidence as to all matters occurring after the organization of the two houses referred to, except the evidence of Hon. J. M. Dunsmore in regard to the hall or room where the two bodies held their sessions and transacted business, the evidence that the two bodies or houses acted separately and independently of each other, the journals of the state senate, of the Douglass house and of the Duusmore house, and the official records of the office of the secretary of state concerning the returns of the election and the issuance of certificates to members of the house for 1893.
Before referring to the organization, or attempted organization, of the two alleged houses, it is best to understand how a house of representatives may be legally organized. Judge McCrary, in his work upon Elections, in § 509,' says:
“It is to be observed in the outset, that when a number of persons come together, claiming to be members of a legislative body, those persons who hold the usual credentials of membership are alone entitled to participate in that organization; for it is, as we have had occasion several times to repeat, a well-settled rule, that where there has been an authorized election for an office, the certificate of election, which is sanctioned by law or usage, is the prima fade written title to that office.”
Judge McCrary, the writer of these, words, occupied for several terms a seat in the house of representatives at Washington. He was chairman for many years in that body of the committee upon elections. Subsequently, he was a member of President Hayes’s cabinet, and later he was the honored judge of the United States circuit court for the eighth circuit, embracing Kansas. His book, both from his ability and experience, is acknowledged to be the leading authority in this country upon the questions therein discussed.
But, again, we have what is known as a “standard, work” on parlimentary or legislative practice. It is found in almost every public library, is examined and referred to by every legislative assembly and every congressional body. Its title is “Cushing’s Law and Practice of Legislative Assemblies.” Section 229 reads:
“ The right to assume the functions of a member in the first-instance, and to participate in the preliminary proceedings and organization, depends wholly and exclusively upon the returns or certificates of election.”
And in section 240 it is said:
“The principles of parlimentary law applicable to the question are perfectly simple and plain, founded in the very nature of things, established by the uniform practice and authority of parliament, confirmed by reason and analogy. These principles are as follows: First, that every person duly returned is a member, whether legally elected or not, until his election is set aside; second, that no person who is not duly returned is a member, although legally elected, until his election is established ; third, that conflicting claimants, both in form legally returned, [that would be where two persons had equal certificates,] are neither of them entitled to be considered as members until the question between them has been settled; fourth, that those members who are duly returned, and they alone—the members whose rights are to be determined being excluded—constitute the judicial tribunal for the decision of all questions of this nature.”
Upon this question of certificates, we also cite the contest in the United States senate from Montana, which is the latest utterance of the highest legislative body in this land. In the report of the committee it is said:
“The majority of the committee are of the opinion that, if this body of persons had lawful and constitutional certificates of their election, that title is a good title against all the world, governing their associates in that body, governing the senate, governing everybody who has a lawful duty to determine who are lawfully elected representatives, until there can be an adjudication by the house itself to the contrary; and that nobody can be heard to say, and that no authority can be permitted to inquire into or determine, the actual facts of. the election as against that title.” (51st Cong. 1st Sess., 21 Cong. Record, pt. 3, pp. 2906-2910.)
The majority of the committee were all republican members of the United States senate; but Senator Gray, from Delaware, one of the most distinguished lawyers and democrats of that body, made a minority report, and in such report admitted the rule proclaimed by the majority of the committee concerning certificates of election issued to members of a legislature. In his report he stated:
“I may say, for the minority of the committee, that we accept as a postulate the proposition laid down by the senator from Massachusetts, and do not differ at all, in considering this case, from him in the position, that we should seek here, in the first place, to discover the lawful body clothed with legislative power who has chosen a senator, and that, to determine whether it be such lawful body, we shall be bound, in the first instance, by the fact that such body is composed of members who hold credentials from an officer or board clothed with authority in the premises to make such credentials.”
The American and English Encyclopedia of Law summarizes the law of the worth of a certificate of election as follows:
“It is settled that when it is made the duty of certain officers to canvass the votes, and issue a certificate of election in favor of the successful candidate, a certificate of such officers, regular upon its face, is sufficient to entitle the person holding it to the possession of the office during an action to contest the right.” (Vol. 6, p. 373, c. 17; Clough v. Curtis, 134 U. S. 367; 10 Sup. Ct. Rep. 573; The State, ex rel., v. Buckland, 23 Kas. 259.)
This subject has also received the recent attention of the supreme court of Nebraska, in a case in which the opinion was handed down as late as the 17th of January of the present year, upon a matter involving the certificate of the election of a member of the legislature. The court say:
“ It is contemplated that each house of the legislature shall be organized by the persons who are prima faoie members thereof. It requires no argument to prove the disastrous consequences of a different construction of the constitution.” (The State v. Van Camp, 54 N. W. Rep. 114.)
We may add that the scenes which have occurred in this capitol during the past four weeks are sufficient justification for the view of the supreme court of Nebraska. But, more than this, our own statutes clearly provide that the legislature—that the senate and the house of representatives, when they convene — shall, in the first instance, be constituted only of those members who have certificates of election. They provide that, after an election is held, in November, speedy steps shall be taken for the returns of the county canvassing boards. Then the clerks of these boards shall, make returns to the state board of canvassers; and then, after a certain length of time, the state board of canvassers shall make an examination of these returns, and order certificates to the persons appearing to be elected. Further, the state of Kansas has been in existence over 30 years. It is recognized everywhere that practice and usage are to be considered upon’ questions of this character. It has been the universal practice and usage of the legislative houses of Kansas to be organized by the admission, in the first instance, of persons holding certificates of election. This has been the practice. Now, against this, what can be said, and what authorities are brought?
A case is cited from Maine (70 Me. 609), and, in our view, with the exception of a few words in the opinion, we concur in all that is said by the supreme court of that state. In that state the returns were made to the state canvassing board. Under the authority of the constitution, the state officials submitted certain questions to the supreme court as to their duty concerning the canvass of those returns. The supreme court of Maine gave advice, which in substance was, that the state board should canvass those returns as they appeared upon their face; that they were ministerial officers only, and had no authority whatever to go back of the returns, or to hear and act upon other evidence. In violation of the constitution of that state, in violation of the statutes of the state, and contrary to the express advice of the supreme court of the state, the board of canvassers refused to accept the returns duly filed with them. Under such a condition of affairs, the supreme court of Maine ruled that those returns were better evidence than the fraudulent certificates issued by the state board of canvassers, in violation of the constitution, in violation of the statutes, and contrary to the advice of the supreme court. The language of that court is to be applied to the facts of that case—to fraudulent certificates. All else is really obiter.
In this case no such condition of affairs appears. There has been offered in evidence, the certified list of members who appear to have been elected. Accompanying that certificate is a statement of the returns on file in the office of the secretary.of state, with the number of votes each member received. We may here say that, while there has been much discussion about what fraudulent canvassing boards might do, and what frauds canvassing boards might commit, there has not been presented in this case any evidence showing that the returns of election on file in the office of the secretary of state could have been canvassed in any manner other than they were canvassed and declared.
But, more than this, there has been presented what is known as the “Revised Journal of the Dunsmore House.” We suppose that this journal has been carefully prepared, and that it is attempted therein to state fully what occurred, according to the views of the parties or of the body under whose order it, was prepared and approved; yet the journal, day after day, seems to recognize that only certified members have authority to act. We read: “ On the call of the roll received from the secretary of state, the following members were present, and answered to their names.” And it gives the names of 58. “ The following members were present, and did not respond to the call of the roll,” 57. Then it says: “Total number of members present, 115;” being more than a constitutional quorum. Therefore this journal counts only the members who appear upon the roll of the secretary of state. It says the number was 115 — “58 voting, answering the call, and 57 not answering the call.” It then states: “ The following-named contestants for seats were present;” but it does not include them in the quorum or in the number of 115. It says they numbered 10.
Again, on the second day of the meeting of what is known as the “Dunsmore House,” we read: “The house met pursuant to adjournment; Speaker Dunsmore in the chair. The roll was called, and the following-named members answered to their names; ” and the number is 57. That is all that answered. Then it says: “The following members were present, but did not answer to the roll call; ” and they were 16. And then it says: “The whole number of members present was 73”—16 and 57, being 10 more than a constitutional quorum; and every day of this journal the same-record is kept up, until after the report of the committee on elections, when certain other persons were admitted. So, not only do the authorities hold that the persons having the certificates of election are the ones to participate in the organization of the house of representatives, but the revised journal of the Dunsmore house shows that its members recognized that rule, if this revision is correct. We know that Mr. Rich has made some different statements. We know that a certain journal presented here, of the samé body, reads differently. In that journal, contestants are reported as voting before any examination of their claims to seats. This is probably the truth in the early organization of the Duns-more house, for the protests of senators, coincident with such orgánization, refer to 10 persons having no credentials as participating in that body; but reference to this has been omitted in the “doctored” or revised journal prepared in the place of the one originally kept by Mr. Rich, the chief clerk of the Dunsmore house.
We accept the revised journal as the true statement of the condition of affairs in the Dunsmore house. Of course, the petitioner cannot object to that journal, as he introduced it in evidence. So we say, not only do the authorities, parliamentary and legislative, sustain the theory that the persons having certificates are the ones to organize; not only do the practice and the usage prevailing in Kansas since its admission as a state sustain that rule, but the newly-prepared journal of the Dunsmore house recognizes this, and states, not that the contestants voted, not that the contestants appeared for the purpose of being counted, but excludes them all the time, until after they were admitted upon a report of the election committee, and it counts only those who answered the roll call, and then counts several who did not answer. It seems that while 10 contestants are marked in the Dunsmore journal as present but not voting, 10 names on the certified roll are wholly omitted. Any rightful reason for such omission does not appear. We cannot perceive any valid reason for such omission, even if 10 certified members had their seats contested. Every person duly returned to a house of representatives, and having a certificate, is a member thereof, whether elected or not, whether eligible or not, until his election is set aside. And this must be set aside by the house, not by the individual members before organization, not by any one member, not by any contestant, not by a mob. Before organization, a few members properly elected, meeting in caucus or otherwise, cannot pass upon the “elections, returns and qualifications” of the members of the house to be thereafter organized. If one member, before organization, can object to any other member duly returned and having a certificate, then all members can be objected to, and there could be no one left to organize a house. In Mc-Crary on Elections (2d ed., § 204), the practice is thus stated:
“Where two or more persons claim the same office, and where a judicial investigation is required to settle the contest upon the merits, is is often necessary to determine which of the claimants shall be permitted to qualify and exercise the functions of the office pending such investigation. If the office were to remain vacant pending the contest, it might frequently happen that the greater part of the term would expire before it could be filled; and thus the interests of the people might suffer for the want of a public officer. Besides, if the mere institution of a contest were deemed sufficient to prevent the swearing in of the person holding the usual credentials, it is easy to see that very great and serious injustice might be done. If this were the rule, it would only be necessary for an evil-disposed person to contest the right of his successful rival, and to protract the contest as long as possible, in order to deprive the latter of his office for at least a part of the term; and this might be done by a contest having little or no merit on his side, for it would be impossible to discover in advance of an investigation the absence of merit. And, again, if the party holding the ordinary credentials to an office could be kept out of the office by the mere institution of a contest, the organization of a legislative body— such,' for example, as the house of representatives of. the United States—might be altogether prevented by instituting contests against a majority of the members; or, what is more to be apprehended, the relative strength of political parties in such a body might be changed by instituting contests against members of one or the other of such parties. These considerations have made it necessary to adopt and to adhere to the rule that the person holding the ordinary credentials shall be qualified, and allowed to act pending a contest and until a decision can be had on the merits.”
Now, why should not this principle be followed ? Why should not this rule, which is universal throughout the states of this union, and which is accepted and adopted by congress, be followed in the state of Kansas? It has history to sustain it. It has the wisdom of long years of legislative experience to sustain it. It has reason to sustain it. And let us here remark that in every state of this union where, through political excitement or personal contests, a different rule has been adopted, disturbance, violence and almost bloodshed have always occurred. In Alabama, it was attempted to hold two independent houses, and disastrous consequences followed, until public opinion compelled those two bodies to meet together and act in harmony. In Montana, where an attempt was made to disregard this well-settled rule, disturbance and conflict occurred. In Maine, where the state board of canvassers refused to canvass the returns on file in the office of the secretary of state as required by the statute, bloodshed seemed at times imminent; but public opinion in that state compelled those two separate bodies to nnite and act together for the benefit of the state, and not for the benefit of any party. If we consider the disturbed condition at the capital of this state for the past three or four weeks, will anyone declare that the variation of this well-settled rule or recognized practice of all legislative assemblies has conduced to the peace, the quiet and the good order of the citizens of Kansas, or to the peace and good order of the legislative assembly? Then, why, if this court has the power—and we will come to that hereafter—why, if this court has the power, shall it not recognize that house which has a quorum and which has followed the usual and ordinary practice of all legislative assemblies in organizing? The reasons are stronger in this state for permitting only those persons -having certificates of election to participate in-the organization of either house of the legislature because» under the rule declared by this court, a board of canvassers cannot act arbitrarily or fraudulently, if prompt proceedings are taken in the courts to compel them to discharge their duty properly.
“Where a canvassing board wrongfully neglects or refuses to canvass returns which are regular in form, the courts may, by mandamus, compel the board to canvass and declare the result from the face of the returns; and if a canvass has been wrongfully or improperly made, and the board has adjourned sine die, the courts may compel it to reassemble and make a correct canvass of all the returns before it at the time of the first canvass.” (Lewis v. Comm’rs of Marshall Co., 16 Kas. 102; Rosenthal v. State Board of Canvassers, ante, p. 129; 32 Pac. Rep. 129.)
In some of the states a contrary doctrine prevails; but the rule in this state affords protection against any canvassing board acting corruptly, fraudulently, or wrongfully. It may seem plausible, without full consideration, to say that only those members of the legislature who are actually elected, whether having certificates or not, are the persons that should organize either house. But some method of organization is necessary; some written evidence of title must be created or exhibited before any person can be regarded as having a prima facie right to a seat in the legislature. Those persons having certificates, and only those, must be permitted to organize, and no authority can change or overthrow that right or prima facie written evidence of title of a member except the house itself; and the members of the house cannot be regarded as a legal or constitutio nal house until there is some temporary or permanent organization by a majority thereof; that is, by 63 members having certificates of election. The certificates of election give a title to the members holding the same, which must govern their associates until there can be an adjudication by the house itself to the contrary; that is, by a constitutional house having a quorum.
The journal of the Dunsmore house states the number of •persons who were present and answered the roll call, and then states how many persons were present who did not answer, and the quorum is made up by a very peculiar method. First, by counting the persons who answered to the roll call — that is right—sometimes 55, sometimes 57, and sometimes 58; and then by counting, in addition, as the journal says, persons upon the roll who were present but did not answer. Can this be lawfully done?
We know that very much has been asserted about the prevailing practice in Washington in the house of representatives, under what is known as the “Reed rule,” and many persons who have not taken time to examine this question have said that, under the Reed rule, in any assembly, or in any legislature, or in any convention, if persons are present and do not vote or answer to their names, the speaker or the clerk may count them in order to make a quorum. It would seem that what is known as the “Dunsmore house,” or the persons who prepared this revised journal, acted upon this theory, because in no other way could they count a quorum. But an examination of what is known as the “Reed rule” permits no such thing to be done. The Reed rule was a subject of investigation before the supreme court of the United States upon the “tariff bill.” It is reported in United States v. Ballin, 144 U. S. 1; 12 Sup. Ct. Rep. 507. It appears from the decision that before the speaker or the clerk counted anyone present, not voting, the house of representatives had expressly adopted a rule upon that question, and the rule is as follows:
“On the demand of any member, or at the suggestion of the speaker, names of members sufficient to make a quorum in the hall of the house, who do not vote, shall be noted by the clerk, and recorded in the journal, and reported to the speaker, with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business.”
The supreme court says that after the house adopts such a rule, under the authority of the house itself, the speaker may order persons present and not voting to be counted to consti tute a quorum; but that court did not hold, in the absence of an express rule, that the speaker or the clerk, or any other person, could assume that those persons, present in a house,, who do not answer to their names on the roll call, or who do-not vote, shall, for the purpose of a quorum, be counted as-present. There is no pretense that such a rule as the Reed rule was adopted by either of the houses. There is no claim-that the speaker of the Dunsmore house had any authority from the house to do what was done in this ease. But, more than that, the persons who were called and counted as present and voting, in order to constitute a quorum in the Dunsmore house, were never members of the Dunsmore house—never recognized Mr. Dunsmore as speaker. According to the evidence of Mr. Dunsmore, each one of the bodies or houses, after organizing, acted separately, and had nothing whatever to do with the other. Speaker Reed never called, in order to constitute a quorum, the name of any person in the house of representatives who was not a member of his house, or any one who refused to recognize him as speaker. Even under such a rule as was adopted by congress, he would not have called the name of any person who had not- recognized that body as the constitutional body—the legal house. Therefore, the counting of such votes in the journal of the Duns-more house has no foundation to rest upon.
Something was said upon the'argument of the admission in the Douglass house of persons not eligible to seats in the legislature. That matter is wholly immaterial in-this case. The house, after it is organized, “is the judge of the elections, returns and qualifications of its own members;” but, before organizing, the persons having certificates, whether eligible or not, are the members to organize. Before organizing, there is no one—no house—to reject or oust a member holding a sufficient certificate. There is no one—no house —to pass upon his eligibility or election. Until the house is organized, the certificate is the evidence of the lawful title that controls.
But in the case of Privett v. Bickford, 23 Kas. 52, this court said:
“Upon this question [eligibility] the weight of authority -seems to be, and, in our opinion, is the better doctrine, that where the disability concerns the holding of the office, and is not merely a disqualification to be elected to an office, a person who is ineligible at the election will be entitled to enter upon and hold the office, if his disability be removed or cured before the issuance of the certificate, and before entering upon the discharge of the duties of the office for which he is elected. .. . . If a person may hold the office, he may be elected while he is under disqualification; and if he becomes qualified after the election, and before the holding, it is ¡=hfficient. In the one case the disqualification strikes at the beginning of the mattter—that is, it prohibits the election of an ineligible candidate; in the other case the disqualification relates only to the holding of the office. The constitution expressly provides that the disability may be removed by a vote of two-thirds of all the members of both branches of the legislature. AVhen the electors of Harper county voted for the plaintiff, they had the right to look at, and to build their expectations upon, this provision, because, although at the election the plaintiff was ineligible to hold office, yet they knew that the legislature had the right to remove the disability, and, if removed, he was entitled to the possession of the office to which he was preferred by the majority of the electors. If our constitution provided that the plaintiff was ineligible to be elected, instead of being ineligible to hold office, the contention of the defendant would be good; but as the ineligibility is not as to the election, but only the holding of the office, sncli ineligibility is cured by the subsequent removal of the disqualification.” (Smith v. Moore, 90 Ind. 299, 1883; Vogel v. The State, 122 id. 113, 1889; Brown v. Cohen, 122 id. 113, 1889; People v. Hamilton, 25 Ill. App. 609, 1886.)
The conclusion reached by us also fits the intimation in Wood v. Bartling, 16 Kas. 109, that where a majority of the electors vote for an ineligible candidate, the minority candidate, even if eligible, is not elected. In England, it has been held, that where electors have personal and direct knowledge of the ineligibility of the majority candidate, the votes cast for such candidate are void, and the minority candidate is elected. In this country, the great current of authorities sustains the doctrine that the ineligibility of the majority candidate does not elect the minority candidate; and this without reference to the question as to whether the voters knew of the ineligibility of the person for whom they voted. It is considered that in such a case the votes, for the ineligible candidate do not elect him, because of his ineligibility; but the other or minority candidate cannot be considered as elected. There is a failure to elect. (In re Corliss, 11 R. I. 638; McCr. Elect., § 292.)
Let us examine the organization of the two alleged houses. First, the Douglass house. There can be no reasonable question but that George L. Douglass, the speaker who signed the warrant of arrest, Frank L. Brown, who attested the warrant as chief clerk, and C. C. Clevenger, the sergeant-at-arms who made the arrest we are now investigating, were elected to their several positions by 64 members of the house of representatives holding certificates of election, and that a majority of the 125 members voting for them held certificates in accordance with the returns on file in the office of the secretary of state. Mr. Justice Brewer, in delivering the opinion in United States v. Ballin, supra, said:
“The constitution provides that ‘a majority of each [house] shall constitute a quorum to do business.’ In other words, when a majority are present, the house is in a position to do business. Its capacity to transact business is then established — created by the mere presence of a majority — and does not depend upon the disposition or assent or action of any single member or fraction of the majority present. All that the constitution requires is the presence of a majority; and, when that majority are present, the power of the house arises.”
The constitution of our state ordains that a majority of each house shall constitute a quorum. The house of representatives consists of 125 members; 63 is a majority and a quorum. When a majority or quorum are present, the house can do business; not otherwise. A quorum possesses all the powers of the whole body, a majority of which quorum must, of course govern. If less than 63 members are present in the house, there is no quorum. The body may ad journ from day to day, but cannot elect officers, transact business, or admit new members. Less than a quorum cannot “judge of the elections, returns and qualifications” of the members of the house. A major part of the whole of a house is necessary to constitute a quorum, and a majority of the quorum, of course, as we have said, may act; but if the major part withdraw so as to leave no quorum, the power of the minority to act ceases. (Brown v. District of Columbia, 127 U. S. 579; 8 Sup. Ct. Rep. 1314.) Then, under the usual forms of law, under the universal practice adopted in this state, and in all the legislative bodies of all the states of the union, the Douglass house was organized by a legal and constitutional majority, as evidenced by the certificates of election.
There has been some contention that there were irregularities in the organization of the Douglass house. Now, what was the irregularity, if any? The statute of this state provides that, when the house of representatives convenes, the secretary of state shall lay before it a roll. Of what? A roll of the certified members of the house according to the returns in his office. Upon the day that the house of representatives met, Secretary of State Osborn went into the hall about an hour and 20 minutes after the members had assembled, with a roll. The statute says he might have brought that in and left it. It does not declare that he shall preside or who shall preside. There seems to have been a contention whether he should preside, and the secretary of state, probably desiring no trouble with these conflicting interests, stepped out. All that Secretary Osborn had was a certified list of members from his office. When he stepped out, a member presented another. Somebody has said that that was dated the day before. It was a duplicate of the other roll. Secretary Osborn read his roll in this court, and it was compared, in the presence of the court, with the roll certified to the day before. There was no difference between these rolls. The provision requiring the secretary of state to lay the list before the members is only directory. It does not prevent a legislative body from organizing. Of course, there' might have been a little more formality about this matter. There might have been a little' more order. There might have been less excitement. But, when Secretary Osborn withdrew, another roll was produced— a roll which all admit was a duplicate of his roll. The house organized upon that roll.
We have said that Speaker Douglass and the other officers received more than a majority of the duly-certified members of the house. The speaker of the house known as the “Duns-more house” received no votes from the 64 members. There does not seem to be any contention about that. How many Mr. Dunsmore did receive it is impossible to tell, because his was a viva voce vote. The two houses organized about the same hour, nearly simultaneously, but the elections of the temporary and permanent speakers of the Douglass house were prior in time to the election of officers of the Dunsmore house. The complete organization of the former was prior to that of the latter. After the Dunsmore house had elected a temporary speaker by a vivaVoce vote, Secretary Osborn returned to the hall of the house of representatives, and passed to such person the certified roll from his office of members of the house holding certificates of election; but, at the instance of some one in the Dunsmore house, all the names on this roll were not called. Ten members were omitted—not counted. After there was a temporary organization of the Douglass house, Joseph Rosenthal, of Haskell county, by general consent, was voted in as a member in the place of A. W. Stubbs, but he did not appear and answer as a member until after its permanent organization. He, therefore, was not admitted until after the permanent organization. On January 12, Joseph Rosenthal, Stephen Meagher, and T. G. Chambers, (all Democrats,) appeared in the Douglass house, filed their oaths of office, and recognized the Douglass house as the legal house of representatives of the state. At this time, both Meagher and Chambers held certificates of election. The returns in the office of the secretary of state showed that they were elected. Therefore, since January 12, the Douglass house has been composed of 66 members with certificates of election, and also Joseph Rosenthal, who was admitted after the organization, making 67 members— more than a majority of the house, and more than a “quorum/ as defined by the constitution of the state. All concede that Rosenthal was duly elected. The Douglass house, having more than a quorum of members with lawful certificates, could properly admit Rosenthal, or any other contestant, but the Dunsmore house, having less than a quorum, could not lawfully admit a contestant, or add, lawfully, anyone to its number. Under these circumstances, why was not the Douglass house a legally-organized house of representatives on the 10th and 11th days of January, 1893?
In this connection it is significant that the governor did not recognize the Dunsmore house until January 12, the third day of the session, and the senate did not formally recognize the Dunsmore house until January 14, the fifth day of the session. If the Douglass house was organized on the 10th of January, and was in session on the 11th day of January, before either house had' been recognized, why was not that house at that time the properly-organized house? The constitution says that the legislature shall consist of a house of representatives and a senate. On the 10th the governor had not recognized the Dunsmore house; on the 11th the governor had not recognized the Dunsmore house; neither had the senate recognized either house; neither had the governor recognized either house. It is conceded that a house of representatives has other duties than mere legislative ones. Before it sends its communication to the governor, before it sends its communication to the senate, if it legally meets and organizes, is it not a house? Has it not the right to protect itself? Has it not the right to issue subpoenas? Has it not the right to examine those things which pertain solely and exclusively to the house itself? Supposing in this case there was no recognition of the Dunsmore house by the governor or the senate, and the Douglass house had issued its warrant upon proper resolutions: could it be said the Douglass house was not the constitutional house because it had not received recognition from the governor, or because it had not yet received recognition from the senate? Up to this time, everybody admits that there might be some little delay about such things. It often occurs in legislative experience that one body is organized some days before the other. There may be conflicting interests about organization, sometimes in the senate, but more often, of course, in the lower house. Now, the point we desire to make is this, and it seems to us unanswerable: If the Douglass house had a constitutional majority of the certified members upon the 10th and 11th days of January, then during those two days it was the house, it was the legal house, it was the constitutional house, and had the right to do all those things necessary, outside of legislative matters, for its protection, for preventing disturbance, for purging itself of illegal members. It had the right, then, to punish parties for contempt, if they disobeyed its orders. Let us take an illustration: 125 members of the legislature meet together, and there is no conflict. They organize the house, and the senate is delayed in its organization, and the governor delays in answering its communications. Has not that house during the time of this delay all the rights of the legal and constitutional house of representatives? Has it not the right, the moment it is legally organized, to require order within its body? Has it not the right, the very minute it is organized, to say to any person within its hall who attempts to insult.its speaker or disturb a member, “We will lay hands on you, because inhering in this body is the power of its own protection?” It was decided in The State, ex rel., v. Hillyer, 2 Kas. 17, that—
“ There is no constitutional inhibition of the session of one branch of the legislature when the other is not in session"; and, semble, the separate action of one body .may be valid in the absence or non-organization of the other.”
It was said by Kingman, J., in that case :
“ If it be admitted, as claimed, that, when acting in their legislative capacity, the proceedings of one house, when the other is not in session, have no validity, it can only be upon the ground that their legislative power is a unit, though dis tributed, and the parts can only act in unison, and neither the reason nor principle would apply to this case; but the principle contended for cannot be admitted. If, at the commencement of the regular session of the legislature, the senate for any cause should fail for weeks to organize, there can be no doubt that it would be perfectly competent for the house to perfect its organization, appoint its committees, and initiate legislation.”
Then, if the Douglass house was legally organized, and had a constitutional majority, it had the right to keep a journal before the governor recognized it ; it had the right to keep a journal before the senate recognized it. The journal of a legislative body commences at its very organization. The journal of a legislative house does not commence with the recognition from the governor; it does not commence with the recognition from the senate. If the Douglass house was legally and constitutionally organized, and was legally and constitutionally in session, is not the journal of the Douglass house, made on the 10th and 11th days of January, binding and conclusive upon this court? This court has ruled that a journal properly made by the legislature is such evidence. (Division of Howard Co., 15 Kas. 194.) We are now referring to the journal of the Douglass house made on the 10th and 11th days of January, before any recognition of either body; before the recognition from the senate or governor of any house. Either we must say that the house of representatives depends for its existence upon recognition from the governor, or depends for its existence upon recognition from the senate, or depends for its existence upon the recognition from both of these, or else we must hold that the journal kept by the house that is organized is the conclusive journal to this court up to the time of the recognition of the other house. Then it seems to us that thus far in the case there ought to be no disagreement.
The Douglass house having been legally organized, and having made a journal for a day or two before any recognition of either house, it seems that this journal, for those days, must be received as evidence for all it recites. As the Doug lass house has continued in existence ever since it was legally and constitutionally organized, its journal must import absolute verity, not only for the two days before the recognition of the Dunsmore house, but during all of the time of its existence, unless it has in some way been ousted, destroyed, or dissolved. Clearly, if its legislative journal is good for January 10th and 11th, it is good for all time, if the Douglass house was legally organized, and continued during the days of its journal to be a legal and constitutional house. At this time, without going extensively into the transactions of the two bodies, it is sufficient to say that the Douglass house has always met in the hall of representatives in the capítol, where it has been usual and customary, since the erection of that hall, for the house of representatives to meet and transact business. It is true that another body, called the “Dunsmore house,” with 58 members having certificates, met in a portion of the same hall; and hence there were two alleged houses in the same hall, doing or attempting to transact business. The two alleged houses are the real cause of the contention now before us. If there were not, there would be no trouble in this case, and there probably would not be this case for the'court to hear and decide. It is also clear that, so far as it could do business, the Douglass house has kept in session and carried on business.
At this point, it is urged with great ability and zeal that this court has no jurisdiction to pass upon the question of the legality of either of these two houses, as it appears that there were two alleged houses. Its right to do so is denied by the petitioner, and by the able counsel who represent the governor. As was said by Chief Justice Marshall, in Cohens v. Virginia, 6 Wheat. 264, 404: “It is most true that this court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should.” The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful—because it is unpleasant. With what .ever doubts or with whatever difficulties a case may be attended, we must decide it as best we can, if it be brought before us. We have no more right to decline to exercise the jurisdiction, thus given than to usurp that which is not given.
Let us see what the authorities are upon this point. We refer again to the able work of Judge McCrary. He says:
“The cases in which the official acts or votes of members of a legislative body who are such defacto only, and not de jure, have been held valid are all cases in which there has been no question as to the legality of the body in which they sat. They are cases in which the body admitting such persons was, in doing so, acting within its admitted jurisdiction, and in such cases, the courts will not inquire into the title of such members to their seats. The courts in such cases will go no further than to inquire as to the legal status and the authority of the body as a whole; but where there are two bodies, each claiming to be the legislature, then the court, whose duty it is to respect and execute the acts of such legislature, must of necessity decide which is the legislature.” (Section 517.)
Then, again, under the constitution of Maine, the legislature could propound questions to the supreme court of that state, and in a certain case they did propound questions, and this is what the supreme court of Maine said :
“ When different bodies of men, each claiming to be and to exercise the functions of the legislative department of the state, appear, each asserting their title to be regarded as the lawgivers for the people, it is the obvious duty of the judicial department, which must inevitably, at no distant day, take up the question, and pass upon the validity of the laws that may be enacted by the respective claimants to legislative authority, to inquire and ascertain for themselves, with or without questions presented by the claimants, which of them lawfully represent the people, from whom they derive their power. There can be but one lawful legislature, and the court must know for itself whose enactments it will recognize as laws of binding force when brought judicially before it. In á thousand ways it becomes essential that the court should forthwith ascertain and take judicial cognizance of the question which is the true legislature.” (70 Me. 609.)
In a Maine case concerning an office, not upon questions submitted, but upon a case concerning an office, which was brought before the court in the regular way, the court repeats the identical language used in the advice given upon the former occasion. (Prince v. Skillin, 71 Me. 361.) If it is the obvious duty of the judicial department to pass upon the claims of two legislative bodies or assemblies, then it is much more the duty of the judicial department to pass upon the legality of two different houses, both claiming to be the house of representatives. A house is not the legislature. In 1859, George P. Burnham was imprisoned and restrained of his liberty by John Morrissey, at Boston, who justified such restraint upon the ground that he was the sergeant-at-arms, and that he had arrested and detained Burnham by virtue of a warrant from the speaker of the house of representatives, to answer for a contempt in refusing to comply with an order of a special committee of the house. Proceeedings in habeas corpus were commenced by Burnham before the supreme court of Massachusetts for his discharge, and, after a hearing of the case, that court held that Burnham was lawfully in the custody of the sergeant-at-arms, by virtue of the warrant of the house of representatives. Hoar, J., speaking for the court, said, among other things:
“The house of representatives is not the final judge of its own powers and privileges in cases in which the rights and liberties of the subject are concerned; but the legality of its action may be examined and determined by this court. That house is not the legislature, but only a part of it, and is therefore subject in its action to the laws, in common with all other bodies, officers and tribunals within the commonwealth. Especially is it competent and proper for this court to consider whether its proceedings are in conformity with the constitution and laws, because, living under a written constitution, no branch or department of the government is supreme; and it is the province and duty of the judicial department to determine, in cases regularly brought before them, whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity with the constitution, and, if they have not been, to treat their acts as null and void.” (Burnham v. Morrissey, 14 Gray, 226; The State v. Kenney, 23 Pac. Rep. [Mont.] 733; The State v. Meadows, 1 Kas. 91; The State v. Barker, 4 id. 436; Graham v. Horton, 6 id. 343.)
It has been said that there are some views the other way, and cases from Pennsylvania and Georgia are cited. (Kerr v. Trego, 47 Pa. St. 292; Gormly v. Taylor, 44 Ga. 76; Railroad Co. v. Little, 45 id. 370-407.) In the Pennsylvania case, the exact question as to the division of the legislature was not before the court. If the court intended to say in that case an injunction would not be granted against the supreme legislature, this court would readily concur with it. If it intended to go further than that, this court then calls attention to the fact that upon “political questions,” as they are denominated in Pennsylvania and Georgia and some other states, this court has heretofore differed from the courts of those states.
In the case which involved the late Governor Martin, (38 Kas. 641), the question was raised whether he could be compelled by writ of this court to organize a county in this state. Governor Martin had been advised that, under the decisions of Georgia and Pennsylvania and other states, this court had no authority by writ of mandamus or other proceedings to give him advice or direct him in a ministerial matter. He- came before this court saying the court had no authority to inquire into any matter against him as governor. This court examined the matter patiently and carefully. There were no politics in that case. The governor believed his duty to be one way, and this court, after examining the matter, said that the rule laid down in Pennsylvania and Georgia andin other states was not the correct rule, and was not the one which should be recognized. We referred directly to some Pennsylvania and Georgia decisions upon this question. (Appeal of Hartranft, 85 Pa. St. 433; Low v. Towns, 8 Ga. 372.) The latter were to the effect that the court cannot compel the governor to perform a ministerial act; that it cannot touch' anywhere his domain of duties of any kind or character. It is true dissenting opinions were filed in one or two of those cases; but it is the majority of the court that always rules. A majority of the court in Pennsylvania, and Georgia held that neither the supreme court nor any other court had any right to inquire about the duty of the governor concerning any matter, whether ministerial or discretionary. In the case of Martin v. Ingham, found in 38 Kas. 641, the decisions are cited. They are all gone over, and in a most learned and able opinion by Mr. Justice Valentine this- whole question is examined, and the particular question disdussed therein was then settled. This court differed from the supreme courts of the states of Pennsylvania and Georgia; and although the governor of this state said, “You have no right to give me advice,” and although it was said the governor was beyond the power of this court, and we should hesitate before we attempted to enforce his duties, this court unanimously went upon the discharge of its work in the best way it could, and, in response to the suggestion that the governor would not obey, replied:
“It is said that, if the governor opposes the order or judgment of the court, it cannot be enforced, for he has entire control of the militia. But are the courts to anticipate that the governor will not perform his duties? Should not the courts rather presume, that when a controversy is determined by the courts—the only tribunals authorized by the constitution or the statutes to construe the laws and determine controversies by way of judicial determination—that the governor, as the chief executive officer of the state, would see that such determination should be carried into full effect? Such would be his duty, and no one should suppose that he would fail to perform his duty when his duty is made manifest by judicial determination of the courts. No department should ever cease to perform its functions for fear some other department may render its acts nugatory, or for fear that its acts may in some manner affect the conduct or the status of some other department.”
In the Martin case the first point of the syllabus reads:
“Where purely ministerial duties are by statute imposed upon the governor, and such duties are only such as might be devolved upon any other officer or agent, the performance of such duties may be controlled by mandamus or injunction.” (Martin v. Ingham, 38 Kas. 641.)
In the Pennsylvania case, parts one and two of the syllabus read:
“1. The governor is the absolute judge of what official communications, to himself or his department, may'or may not be revealed, and is the sole judge not only of what his official duties are, but also of the time when they should be .performed.
“2. The governor is exempt from the process of the courts whenever engaged in any duty pertaining to his office, and his immunity extends to his subordinates and agents, when acting in their official capacity.” (85 Pa. St. 433.)
In the Georgia case, the third part of the syllabus reads:
“However clear it may be, as a general legal proposition, that when a mere- ministerial act is required to be performed, by law, on the part of an executive officer, and individual rights depend on the performance of that act, that the proper tribunals of the county have no jurisdiction to compel its performance; yet, for political reasons alone, the chief magistrate of the state cannot be compelled, by mandamus, to perform such ministerial act.” (Low v. Towns, 8 Ga. 360.)
Warner, J., in delivering the opinion, among other things, said:
“ If, as has already been remarked, it was competent for the legislature to impose this ministerial duty of issuing a commission to a clerk on the executive office of the government, wholly independent of and in addition to the other functions devolved upon that officer by the constitution,-why may he not, when the performance of this ministerial act, so required by law, is essential to the completion and enjoyment of individual rights, be considered, quoad hoo, not as an executive, but as a merely ministerial officer, and, therefore, liable tobe directed and compelled to perform the act by mandamus f
“ Viewed as strictly a legal question, we cannot offer any satisfactory reason why he should not, according to the general principles of the law; and it was in this point of view alone this question was considered by this court in Bonner v. Pitts. Indeed, no other view of it was presented for our consideration on the argument of that case; but while we are unable to give a satisfactory legal reason why the remedy sought should be denied to the citizen, yet we are satisfied that, for political reasons alone, the remedy by mandamus ought not to be enforced against the chief executive officer of the state. The ultimate effect of this remedy, in case of refusal by the governor to obey the laws of the land, would be to deprive the people of the state of the head of one of the departments of the government. This ministerial act, required by the law, is to be performed by the same officer who is by the constitution placed at the head of one of the departments of the government, and is required by the constitution to perform certain other duties of which the people may not be deprived.”
In the case of Martin v. Ingham, supra, a part of the opinion was quoted to show how the question should be viewed strictly as a legal question, and how the question was viewed by the supreme court of Georgia as a legal question. But the supreme court of Georgia, after admitting that it-“was unable to give a satisfactory legal reason why the remedy [mandamus] sought [in that case against the governor] should be denied to the citizen,” said “that, for political reasons alone, the remedy by mandamus ought not to be enforced against the chief executive of the state.” The supreme court of Georgia, therefore, upon the ground that the question was a political one, decided that the remedy by mandamus does not exist in that state to compel the performance of piorely ministerial duties imposed by statute upon the governor. In Kansas, the supreme court, differing from the Georgia supreme court, held, that where purely ministerial duties are imposed by statute upon the governor, the performance of such duties may be controlled by mandamus or injunction. (38 Kas. 641.)
In the Martin case, although this court held that it had the power to control the governor as to purely ministerial acts, it gave no direction, because the facts disclosed warranted no interference. But this court asserted its, power, if a case justifying its action were ever presented. The cases now cited were not then examined, and we only incidentally refer to that opinion^ and the decisions from Pennsylvania and Georgia therein stated, as showing the difference between this court and those courts in regard to the official acts of a governor. But if full force be given to all the language employed in Kerr v. Trego, supra, whether obiter or not, that decision is no authority in.this case, because “the supreme legislature” is not involved. No supreme legislature is under review. In the Georgia cases, the supreme legislature was also under consideration; not one house, or only a part of the legislature, as in this case. As observed by the Massachusetts court, “The house is not the legislature, but only a part of it. It is not the final judge of its own powers.” The constitution is controlling, and a member of a house cannot overstep its mandatory provisions; nor can 58 members do so.
In this case we are not called upon to make any order concerning the governor. In this case we are not called upon to make any order concerning' the state senate. We are simply called upon to exercise our judicial judgment as to which is the legally-organized and constitutional house of representatives. There can be no conflict; there should be no conflict. The court is answerable to‘ the people of this state. The governor is answerable to the people of this state. The house is answerable to the people of.this state.
But again: In 1879 the house of representatives of this state associated with itself some persons above the number of 125. An act was passed by the legislature. It was passed by what was called the “house.” It was passed by the senate, and approved by the governor. It was published in the state paper. And yet, when that act of the legislature came before this court for examination, it decided “that the house of representatives had no lawful authority to pass the act,” by means of the votes of certain illegal members; and it wiped it out of existence. There was no conflict between the governor and the senate or the house in doing this. Supposing the legislature of 1879 had passed every act by votes of that character, and they had been proclaimed and published, this court would have declared all the acts void.
It is insisted that we cannot find a line in the constitution giving this court authority to pass upon this question of organization. It is.the' acknowledged power of this court to finally pass upon every act of the legislature. It is the acknowledged power of this court to declare acts of the legislature void. In the case in 26 Kas. 724 (the Francis case), there was nothing upon the face of the act to show but that it was a legal enactment. It was properly signed. It was properly enrolled. It was properly published. But this court went into the house of representatives, and examined its journal, and ascertained that the house included four illegal members, not authorized to hold seats or vote, and it stamped out the so-called “act.” It had the power to do it, and that decision has been followed ever since. Mr. Justice Valentine, speak-' ing for the court in that case, said:
“Now, generally, under affirmative and mandatory constitutional provisions, the legislature may do more than is required; but it cannot do less, if it does its duty. Under negative and prohibitory constitutional provisions, however, the legislature may often refrain from doing things which are not prohibited; but it can never do what is prohibited. Under this negative and prohibitory clause of the section, the legislature may fix the number of representatives at less than 125, but it can never fix it at more; and there is no power in the state which can fix it at more. Therefore, whenever the house of representatives consists of more than 125 members, some of such members must be there illegally. Such was the case in 1879. The house of representatives at that time consisted of 129 members. Four of these members, to wit, the four from Rooks, Rush, Harper and Kingman counties, who were not provided for by law, and being the last members admitted, were not entitled to their seats. And the act in controversy was passed only by the assistance of their votes. Except for their votes, or at least three of their votes, the act would not have received a constitutional majority of the votes of the members of the house; and, not counting their votes, the act did not receive a constitutional majority. Now, we do not think that their votes should be counted, and therefore we think the act in controversy must be held as not having passed the house of representatives, and as void.”
It is asserted that the court cannot inquire by quo warranto into the right of membership of these respective bodies. This court so ruled in the Tomlinson case, in 20 Kas. 692; but when this court has the ultimate right and duty to pass upon acts of the legislature, it has also the right to pass upon the organization of the legislature, or either or both houses, although it has no right whatever, after the legislature is organized, to deal with any question concerning “ the elections, returns and qualifications of its own members.” Clearly, it has, in any event, the right to pass upon the powers of a house—only a part of a legislature. This proceeding is not a collateral attack, but a direct attack on the Douglass house. (Vase v. Morton, 4 Cush. 31.) Necessarily involved is the status of the Dunsmore house.
Whether Gunn is rightfully restrained of his liberty by a legal house of representatives is not a political, but a judicial, question, and this court, therefore, must have authority to inquire and determine whether the house has been properly organized, and is such a house as is authorized by the constitution of the state to establish its own rules, to keep and publish a journal, etc. (Burnham v. Morrissey, 14 Gray, 226; The State v. Cunningham, 53 N. W. Rep. [Wis.] 35; id. 51 N. W. Rep. 735; Giddings v. Blacker, 52 N. W. Rep. [Mich.] 914; The State v. Kenney, 23 Pac. Rep. [Mont.] 733; Rice v. The State, 7 Ind. 334; Campbell v. Dwiggins, 83 Ind. 473; Cooley, Const. Lim., 45.)
In Prouty v. Stover, 11 Kas. 235, Mr. Justice Brewer, speaking for the court, said:
“Three questions are presented, two of which,.at least, must be decided in favor of the plaintiff before he will be entitled to the relief sought: First, could a majority of members present 'in the joint session, and voting, elect, or did it require a majority of all the members elected to the two houses? Second, did the house of representatives consist of more than 90 members?- Third, can this court look back of the final declaration of the result by the joint convention, to see whether, upon either of the votes, anyone other than the one declared elected was in fact elected? These questions, as can readily be seen, are, so far as this court is concerned, of a delicate nature, for they concern the regularity of the proceedings of the legislative branch of the government; and they are also questions of great moment, for they involve the rightfuluess of the organization of at least one body of the legislature.”
In that case this court decided:
“Where the legislature is made an electoral body, and a proceeding is had to contest the validity of an election by such body, the courts are not precluded by the action of the house in admitting members from inquiring into the legality of certain representative districts, and the rights of the members from those districts to vote at such election.”
But it is claimed that the Douglass house has been destroyed, ousted or dissolved by the recognition of the Dunsmore house from the governor and the senate. The governor did not recognize the Dunsmore house until January 12, the third day of the session; and the senate did not formally recognize the Dunsmore house until the 14th day of January, the fifth day of the session. It is true that it appears the secretary of the senate went to the Dunsmore house and presented communications before that date, but that it was not by order of the senate. Taking the journals before us, the house that the governor recognized consisted of 58 members—not a constitutional quorum, not a constitutional majority; the house that the senate recognized consisted of 58 members—not a constitutional quorum, not a constitutional majority. It has been said that as the governor must act in this matter, and as the senate must act in this matter, should not their actions be final and conclusive? That seems to be one theory. If that were the correct view, the court’s connection with the case would be very brief. All we would have to do would be to ask, “What did the governor do? What did the senate do?” We admit that for certain purposes recognition from the governor should be considered. We admit that for certain purposes recognition from the senate should be considered. All departments of the government should pay all proper respect to the acts of all other departments. The governor, overwhelmed with business, perplexed with the duties surrounding him, not having time to investigate, recognized a body which is not a constitutional body. The senate passed a resolution to investigate; but, examining the journal, we cannot find any report upon that resolution. It recognized a body not a constitutional body. Is such a recognition final? Is it conclusive? Does it bind this court? Is the end of the duty of this court to simply inquire what are the records in the office of the governor and the state senate? Where two alleged houses are in contention, may we not go to the office of the secretary of state and ascertain from the official returns and certificates the names of the members who hold credentials to organize a house? May we not ascertain from the journals of these houses which house a constitutional majority organized? We think so. The constitution is paramount to the action of any governor. The constitution is paramount to the action of any senate. The governor and the senate are to yield obedience to the statute, when valid. They are not above the law. We admit if, after such recognition, the Douglass house had voluntarily departed from its room, and its members had gone their several ways to their homes, and the 58 members of the Dunsmore house had increased its membership in any way it pleased—by lawyers, by doctors, by anybody — and they had gone on and continued business without interference and without challenge, such recognition would have weight. But that is not the case presented here.
On January 13, Senator Baker presented to the state senate, of which he is a member, the following protest of himself and 13 other members, and asked to have it spread upon the journal:
“Whereas, At the general election held in the state of Kansas on the 8th day of November, 1892, there were chosen, by the electors participating therein, 125 members of the house of representatives of the state, each of whom received a plurality of the votes cast in their respective districts; that certificates thereof from the county clerks of the districts, certifying that, upon a canvass duly and legally made in their respective districts, said certain 125 representatives received certain votes, were filed with the secretary of state, as provided by law; that the state board of canvassers of Kansas, as provided by law, duly met on November 28, 1892, canvassed the returns, and determined that said 125 certain persons had been duly elected to the office of representative in their respective districts, and .a record was made of such determination by said board, and is now in the custody of the secretary of state of Kansas; that after making said full and complete canvass of said returns, and having fully and completely discharged its duties according to law, said state board of canvassers, on December 1, 1892, adjourned sine die; that, after said adjournment, the secretary of state, who was ex officio a member of said board, issued certificates of election to those ascertained by said canvass to have been elected members of said house of representatives; and
“Whereas, On Wednesday, January 4,1893, the supreme court of Kansas, the same being the highest judicial tribunal in the state, in an action then and therein pending, wherein one Joseph Rosenthal was relator and. the state board of canvassers was respondent, after carefully considering said case, decided, that after the state board of canvassers had once convened and duly canvassed the returns of all the votes before them and on file in the office of the secretary of state aforesaid, and had fully and completely discharged its duties, and had adjourned sine die, that the state board of canvassers could not on its own order reconvene for the purpose of making any different or further canvass of said returns, and that the court had no power or authority, under the statutes, to order the state board of canvassers to meet and further canvass the returns, so that other and different certificates of election might be issued, or for any other purpose; and
“Whereas, On Tuesday, January 10, 1893, at the time appointed by law for the assembling and organization of the state senate and the house of representatives of the state of Kansas, that said certain 125 persons, excepting Mr. A. W. Stubbs, the republican opponent of said Rosenthal, who declined to meet and act, met in representative hall, in the statehouse, at Topeka, Kas.; that upon a call of the roll prepared by the secretary of state of the state of Kansas, containing a list of all those holding certificates of election, according to the determination of the state board of canvassers, it was ascertained that said 125 persons, excepting said Stubbs, were present at said time and place, and thereupon each of said persons, to the number of 64, whose names are hereinafter set forth, took the oath of office required by the constitution and laws of the state of Kansas, and duly qualified as representatives of said state; that thereafter'said 64 proceeded to organize by the election of a temporary speaker, and, after a temporary organization had been effected, not .only said 64, but at least three others, recognized the organization; and said 64 participated in the election of a speaker for said house of representatives; and that 64, being a legal majority of all those holding certificates as aforesaid, voted for and elected the Hon. Geo. L. Douglass as speaker of said house of representatives, the names, numbers of district and politics of those participating in the election of Speaker Douglass being as follows, to wit: [Here the districts and names, etc., were copied]; and
“Whereas, Notwithstanding the above and foregoing facts, other persons of the said 124, and independent of said 64, together with some persons not holding certificates of election of said state board of Kansas, participated in selecting one J. M. Dunsmore as a pretended speaker, in violation of both statute and parliamentary law :
“Noto, Therefore, We, the undersigned, being members of this senate, in the name of law, order, decency, and constitutional government, the good name and credit of the state of Kansas, most emphatically protest and object to recognizing the alleged house of representatives presided over by said Dunsmore as a lawful body.
Milton Brown.
S. T. Danner.
James D. Williamson. E. T. Metcalf.
Jno. C. Carpenter.
K. E. Willcockson.
Lucien Baker.
D. McTaggart.
W. A. Morgan.
H. F. Robbins.
S. O Thacher.
W. E. Sterne.
J. W. Parker.
Chas. F. Scott.’;
Senator Taylor presented the following protest, and asked that it be spread upon the journal of the senate:
“To the President of the Senate: I hereby formally protest against the the recognition of the alleged secretary of the house, now claiming recognition on this floor, because it virtually decides the most important question that ever came before this senate without investigation and without debate.
Edwin Taylor.”
Senator O’Bryan presented the following protest, and asked that it be spread upon the journal of the senate:
“I, Ed. O’Bryan, senator from the 29th senatorial district, do hereby enter my protest against the action of the president of this body in recognizing Ben. C. Rich as chief clerk of a house of representatives of the state of Kansas, as I believe the said house of representatives to be illegally organized, and is not the legal body, and should not be recognized.
Ed. O’Bryan.”
Subsequently Senator Brown filed a further protest in the state senate, which concluded as follows:
“To recognize the Dunsmore house will be to defeat needed legislation, as that house is illegal and unconstitutional.”
On January 14, Senator Parker filed a protest in the state senate against recognizing Mr. Rich as chief clerk and Hon. J. M. Dunsmore as speaker. On the same day, Senator Baker, with 13 of his associates, also filed a further protest in the state senate, which, among other things, stated:
“It will not, nor can it be, denied that on the 10th day of this month, at 12 o’clock noon, being the usual hour for organization of the legislature of Kansas, there assembled in the hall of the house of representatives 64 persons, constituting a constitutional majority of such house, each holding from the state board of canvassers a duly-authenticated certificate of election issued by such board; nor can it be denied that then and there, in a lawful and regular manner, these 64 members organized the house of representatives, by the election of George L. Douglass as speaker, and the choice of the other usual and necessary officers. It is also a fact that, prior to that time, the supreme court of the state of Kansas had, in a proper case before it, decided that no person not holding a certificate of election was entitled to participate in the organization of the house of representatives. At the same time there assembled in the hall 58 persons, each holding a certificate of election, who withdrew and separated themselves from the majority of the house above mentioned, and refused to and did not participate in the proceedings of the organization. Thereupon these 58 persons, being a minority of the house of representatives, unlawfully introduced among their own number 10 persons who held no certificates of election, and who were defeated at the polls in opposition to 10 of those constituting the majority. The minority of the legislature then assumed to produce and have qualified these 10 persons as members, and, in connection with them, assumed and pretended to organize the house of representatives. The names of these persons unlawfully introduced as members, and the majorities by which they were respectively defeated, is hereto appended: J. W. Howard, beaten by 1,050 votes; D. M. Howard (Shawnee), beaten by 444 votes; Ed. Shellabarger, beaten by 193 votes; V. Gleason, beaten by 26 votes; W. H. White, beaten by 8 votes; H. Hellstrom, beaten by 8 votes; I. N. Goodvin, beaten by 5 votes; F. B. Brown, beaten by 42 votes; John Morrison, beaten by 15 votes; O. M. Rice, against whom a tie was decided in accordance with the law; that thereupon these 58 persons, acting together with the 10-persons who then and there respectively usurped the offices of representatives, without any form of trial or right thereto, or without submitting their claims of right to any tribunal, then and there unlawfully pretended to organize themselves as the house of representatives of the state of Kansas, and from that time up to the present the revolutionary body so organized has riotously and tumultuously seized and held the hall of the house of representatives, and has obstructed the lawfully-organized house of representatives in the transaction of any business.”
Senator Taylor followed with a protest of his own, which stated, among other things, that —
“ Previous to such organization it appears clear to me that no person or persons, however connected, have the right or the power to say that certain persons holding certificates are not elected, and certain other persons not holding certificates are elected. No matter how great a wrong may have been done to any individual by means of the mistaken or fraudu-' lent issuance of a certificate of election, a greater wrong would inure to society itself if the contestee or his friends, acting not as a legally-constituted tribunal, were themselves in advance of organization to pass upon the issues joined, and set such certificates aside without due process of law. To whatever extent such irregular proceedings are countenanced or encouraged, to that extent the orderly course of society is jeopardized. The forms of law are a part of the law, and it appears clear to me, that if the forms of law had been adhered to in the organization of the house of representatives, there would be no question as to who constituted its membership. It may be that strict justice would have seated contestants, but the injustice of irregular ways of getting at justice would be intolerable.”
Thereupon the following protest was presented to the state senate:
“I, W. P. Dillard, senator from the 8th district,'do hereby protest against the action of the senate this 14th day of January, 1893, in passing the resolution called ‘ House Concurrent Resolution No. 1,’ and for the reason that I am satisfied that said resolution was not passed and transmitted to the senate by a legally-constituted or constitutionally-organized house of representatives. W. P. Dillard, Senator.”
All of these protests appear in the journal of the state senate, presented in evidence on the part of the petitioner. Senators Taylor, O’Bryan, and Dillard, who filed the foregoing protests, are not republicans, and were not elected as republicans. They are not members of the minority party of the senate, or of the majority party of the house presided over by Hon. Geo. L. Douglass. The journal of the Douglass house also shows that on January 10, before any recognition of the Duns-more house, a committee, appointed to prepare a written address from the members of the Douglass house to the governor, called upon and presented the same to him. This was signed by 64 members of the house of representatives having certificates of election, setting forth the organization and officers of the Douglass house, and asking recognition. The members of that committee were Hon. W. M. Glenn, Hon. C. E. Lob-dell, and Hon. J. K. Cubbison. Subsequently, and before any recognition of any house, the Douglass house appointed a special committee to prepare an address to the governor, which was presented in writing to him. That committee consisted of Hon. E. W. Hoch, Hon. J. B. Remington, Hon. J.- K. Cubbison; Hon. James A. Troutman, and Hon. C. E. Lobdell. The address was signed by 64 members of the house of representatives having certificates of election, and concluded as follows:
“We, therefore, in behalf of the people of the state of Kansas, and on behalf of the good name and credit of our state, and in the name of law, order, decency, and good government, call upon you, as the governor of the state of Kansas, to recognize the Hon. George L. Douglass as the legal and qualified speaker of the house of representatives of the state of Kansas, and ask that the protection of the law be thrown around him in exercising the duties of his office. We present to your excellency this memorial, because we believe it to be our duty that the governor and the good people of the state should be informed of the true condition of affairs now existing in the hall of the house of representatives, and be informed of the illegal and revolutionary actions of a portion of our fellow-citizens.”
The state senate has 40 members. At the time of these protests, one John M. Price, a republican, was absent. The house of representative has 125 members. Therefore it appears from the journals of the senate and house of representatives that 17 senators having certificates of election, and 64 members having certificates of election, making a total of 81 members, objected to recognizing the Dunsmore house as the house of representatives, and subsequently, on January 12, 1893, with the 64 members of the Douglass having certificates of election, two others, Hon. Stephen Meagher and Hon. T. G. Chambers, also having certificates of election, and Hon. Joseph Rosenthal, admitted by motion in the Douglass house, united, making in all, with the senate protesting members, 84 members, being more than a majority of the entire membership of the legislature, as opposed to the recognition of the Dunsmore house as the house of representatives.
We refer to these matters in the journals as showing the vigorous opposition of the members of the legislature to the recognition of the Dunsmore house, and the official and public challenges to which that house was incessantly and continuously subjected. The constitution ordains, as before stated, that it takes a majority of each house to constitute a quorum. If 58 members—a minority of the house—with lawful certificates, acting with 10 men who have not any credentials, but who claim that they were really elected, may, before or after an organization, go behind the written credentials or prima facie title of the members duly declared elected to make up a quorum or house, then a dozen members, or any number less than a quorum, can do the same thing, and it would be impossible to organize or conduct a legislative government according to constitutional or orderly methods. Any person can set up the claim that he has been elected to the' house, regardless of the truth of the matter; and if a certificate of election does not clothe the person who receives it with the lawful and rightful authority to act as a member, subject only to the judgment of the house after there is an organization of the members having certificates into an actual and acting house, the organization and control of the house must be in the hands of those who, by physical force, have the superior power to seat themselves as members, whether elected or not. The ballots, the votes, the returns, the certificates in such a ease, would count for naught. The governor cannot lawfully recognize as a house a body which has no quorum, which is not a constitutional house. The governor cannot create a house out of an unorganized or unconstitutional body, at his own will. He cannot abolish or destroy by his order any legal or constitutional house of representatives. The senate cannot create .or abolish a house of representatives. It cannot recognize an unorganized or an unconstitutional body as a legal or constitutional house. Neither can the governor and the senate together create, at their own will, a legal or constitutional house. Neither can they both abolish or destroy a legal or constitutional house. The house of representatives is a body authorized by the constitution of the state, and for certain purposes is independent aud separate from the senate or the governor. Each house keeps and publishes its own journal; each house establishes its own rules; and each house is the judge or the ' CJ elections, returns and qualifications of its own members. The legislative power of this state is vested in a house of representatives and senate, not in the governor and senate alone.
But again: It is claimed that the Dunsmore house has become a defacto house by the recognition from the senaté, the governor, the executive officers, and others. As has been said, if the house known as the “Dunsmore house” had full and unlimited possession of the hall of representatives, and the rival party had ceased its existence, the question of a de fado legislature would have strong force in this case. There often comes a time in the conduct of all bodies and officers when, on account of public interests, irregularities and even wrongs are cured. There comes a time when usurpation is successful. There comes a time when revolution is accomplished, and must be recognized; but a de fado house, a de fado government, usurpation of power and unlawful methods are not accepted if a constitutional house, a constitutional government, rightful auth'ority and legal methods are existing, transacting business, as against defective, irregular, unwarranted acts, and unconstitutional exercise of power. But here is a valid and constitutional house attempting to carry on business. Every day of its session, so far as its journals show, the Douglass house challenged the rightfulness of the Duns-more house. It challenged the action of the governor. It challenged the action of the state senate, and the very first act of the senate and the Dunsmore house was seized by a court of this state and throttled. Although the temporary order of injunction was made by the district court of Shawnee county, until it is reversed or vacated by proper proceedings in this court it is as valid and binding between the parties as the order of the supreme court of the state. This court must take knowledge of all the usual and ordinary incidents which are transacted around it, and it is unnecessary to say that the challenges have been so successful that various bodies divided upon this question, and there has been no acquiescence and no general agreement among the people that the Dunsmore house is the house of representatives. “An officer de fado must be in the actual possession of the office, and have the same under his control. If the officer de jure is in possession of the office—if the officer de jure is also the officer de faeto—then no other person can be an officer de fado for that office. Two persons.cannot be officers de fado for the same office at the same time.” (McCahon v. Comm’rs of Leavenworth Co., 8 Kas. 438.) This court subsequently reaffirmed this rule in the case of Braidy v. Theritt, 17 Kas. 468, using the following language: “We have already held that two persons cannot be officers defacto for the same office at the same time.” (McCahon v. Comm’rs Leavenworth Co., supra.) Practically it was again stated in the case of The State v. Durkee, 12 Kas. 309. The supreme court of Nevada, in the case of The State v. Blossom, reported in 10 Pac. Rep. 430, states the rule in this way: “ If an office is filled, and the duties pertaining thereto are performed by the officer de jure, another person, although claiming the office under color of title, cannot become an officer de facto.” Leonard, J., in delivering the opinion of the court in the above case, used the following language:
“The principal ground urged by relator in support of his petition is, that Harris and others were the de facto board, and that their acts as such were good and binding in law as to the public and third parties. The general principle stated by counsel for relator, that, as to the public and third parties, the acts of de facto officers are binding, is well-settled and admitted. . . . There were two boards, each claiming that the other was unlawful, each urging and maintaining the validity of its own.acts, each proceeding as though the other did not exist in the matter of employing teachers, etc. . . . It is undoubtedly true, as claimed by counsel for relator, that the new trustees would have become a de facto board, if the old ones had not acted as such; but, since they did, as above stated, were they not the de faeto board ? Two physical bodies cannot occupy the same place at the same time, and two persons cannot be officers de facto for the same office at the same time. If the office is filled, and the duties appertaining thereto are. performed by an officer de jure, another person, although claiming the office under color of title, cannot become an officer defacto.” (McCahon v. Comm’rs of Leavenworth Co., 8 Kas. 441; Boardman v. Halliday, 10 Paige, 232; Morgan v. Quackenbush, 22 Barb. 80; Cohn v. Beal, 61 Miss. 399.)
In the case of The State v. Comm’rs of Ford Co., 12 Kas. 441, it was ruled, that “ where the legislature has seemingly recognized the existence of a county organization of a certain county by passing an act providing for the holding of terms of the district court therein, but where such county, up to the time of such seeming recognition, never had any organization, de fado or otherwise, such recognition does not have the effect to create an organization.” In Murphy v. Moies, 25 Atl. Rep. (R. I.) 977, which cites the leading cases upon the recognition of de fado officers, the law is thus stated: “ Eeputation and acquiescence are controlling elements in determining the validity of official acts as those of an officer de fado.”
The Douglass house is the body or house de jure; is in possession of the office; is in possession of the hall — at least, it is holding its sessions and transacting its business in representative hall. Then the other body, the Dunsmore house— the minority, the so-called “de fado house”—has not the exclusive possession of the hall; has not the exclusive possession of the office; and has not ousted, destroyed or dissolved the Douglass house.
The reference to the two Georgia cases—Gormly v. Taylor, 44 Ga. 76, and Railroad Co. v. Little, 45 id. 370—is not pertinent to the issues of this case. In both of those cases the principal question for decision was the validity of acts of the general assembly of Georgia under a section of the constitution of that state, which provides that “ no session of the general assembly, after the second under this constitution shall continue longer than 40 days, unless prolonged by a vote of two-thirds of each branch thereof.” Both decisions were rendered by a divided court, but in neither case were there two rival legislatures or houses in dispute. In neither case, was the house only the subject of the contention, but in both cases reference was had to the “general assembly”—to the supreme legislature. If we had a case like Railroad Co. v. Little, supra, before us, the question of a defacto law would be very strong. After going over all the matters connected with it, the court, among other things, says: “In this case there was a hot dispute over the matter. Men honestly differed as to the truth of the case, and the decision was made. It has been acted upon for two years by the people, by the executive, and by this court, until it has become an accomplished fact.” (45 Ga. 370.) Whenever an act of the legislature is brought into this court, not in violation of the constitution, which has been acted upon by the people of the state for two years, and which has been acted upon by this court as a completed and binding enactment, a defacto law may come into existence. When such a case comes, we will decide. But there is no such case presented by the journals. There is no such case presented by the argument. There is no such case for us to pass upon. The Dunsmore house never had but 58 constitutional members. It never had the legal power to create any more members. It therefore never had the legal power to enlarge its numbers. So long as there is a legal and constitutional house of representatives carrying on business in the identical hall where it is usual and customary for its business to be transacted, it seems to us that this question of a de facto house of representatives has not arisen to that reputation or acquiescence worthy of serious consideration. Is it possible that a body consisting of less than a quorum—less than a majority—can be a constitutional house of representatives under any circumstances, whether by recognition or otherwise? We say not. A majority of members elected to each house, voting in the affirmative, is necessary to pass any bill or joint resolution. No act not having received a constitutional majority of the votes of the members of the house can ever become a law. It is immaterial what the senate may do, what the governor may do. A constitutional majority of the votes of the house of representatives is necessary for legislative action in any case.
The case of The State v. Smith, 44 Ohio St. 348, (7 N. E. Rep. 447, and 12 id. 829,) has been cited to establish the doctrine that certain persons may be de facto members of the house to which they belong, although not de jure members. That case, and similar cases from Michigan and other states, have no application. There were not two houses or two legislatures in session in Ohio. In that case the senate was legally organized, and for a time, it is conceded, a quorum was present, and its journal properly made. Subsequently, about 20 members, being a majority, left the'senate chamber; and it is asserted that 17 members, less than a quorum, proceeded to transact business—admitting other members, and continuing its journal as showing that a majority of the senate was present and acting. The supreme court held, under the circumstances, that the journal or record of the senate imported absolute verity, and could not be impeached by parol testimony tending to show less than a quorum was present. Whether that decision would be good law in this state, in view of the decision in The State, ex rel., v. Francis, 26 Kas. 724, we need not now inquire; but it is a case different from the one we are investigating, because the Dunsmore house never legally organized, never had a legal majority, never had a constitutional quorum, and therefore never had a legal journal to conclusively import anything. But even in the Ohio case the chief justice vigorously dissented, and, among other things, said:
“By the averments of this reply, there was no senate — simply a number of its members wholly without power to act. There was no senate journal, but a false and fraudulent pretense of one; and, for' aught that appears in this case, this pretended journal might, if offered in evidence, or brought before us, be relied upon to establish, in part, the facts averred. . . . The attempt to sustain the act in question by the rule relating to officers cle facto is a palpable misapplication of a familiar doctrine; . . . but, in the case before us, there was not the slightest color of authority to constitute the persons members of the senate who are relied upon to give vitality to the act. Their title to their seats has never risen higher than a deliberate plot to circumvent a plain command of the constitution. But it must be remembered that the averment of the reply is that less than a quorum (17 members) were present when this act was passed. There is another principle which is fatal to the view here contended for and adopted by the majority. There is no form of direct attack upon the authority of these pretended senators to act recognized by the law. The present is the only available form of attack upon their proceedings. Quo warranto would not lie to call in question their authority to exercise the functions of senators. The present is to be treated as a direct attack, for the reason that no other form of attack can be made. The principle is well established, that where a direct attack upon a proceeding cannot for any reason be made, it may be collaterally questioned. (Vose v. Morton, 4 Cush. 31, and cases there cited.)”
The Georgia, Ohio, Michigan and other similar cases are of the class referred to by McCrary on Elections (2d ed.), § 517: “The cases in which the official acts or votes of members of a legislative body who are such defacto only, and not de jure, have been held valid are all cases in which there was no question as to the legality of the body in which they sat.” At least, those cases are of that class when there is only one body, or house—not two.
From all that we have said, our conclusion is, and must imperatively be, that the house known as the “Douglass house” is the legal and constitutional house of representatives of the state of Kansas, and, being such house it has the power to compel witnesses to appear.and testify before it or one of its committees in election contests arising in that body. It has full power to punish for contempt any witness who refuses to appear when personally subpoenaed in an elecfcion contest, or other proper proceedings pending. It has also the power to protect itself from disorder, disturbance, or violence. It has never been destroyed, ousted or dissolved since its organization. It is a body or house “having authority to commit.” [Anderson v. Dunn, 6 Wheat. 204; Burnham v. Morrissey, 14 Gray, 226; In re Falvey, 7 Wis. 630; People v. Keeler, 99 N. Y. 463; 2 N. E. Rep. 615; Rap. Cont., § 2.)
It has been suggested that we should hesitate to give an opinion in this ease upon the legality of either of the contending bodies claiming to be the house of representatives, because unpleasant complications might arise therefrom; and it has been even suggested that the governor and the senate will not find, their way clear, after what has passed, to communicate and act with the legal house, known as the “Douglass house,” and therefore, as a result, that appropriations may fail; that the governor’s office, and all the other departments of the government, including the judiciary, will have no funds with which to transact public business. More unfortunate still, it has been suggested that the educational, charitable and penal institutions of the state will be closed and the inmates discharged for want of money with which to operate them. We ’trust that such will not be the result. We assume that the governor of the state is honest and patriotic. We assume that >the members of both houses and the senate are honest, and actuated by worthy motives; and we trust that in the end there may be some way, as in Alabama, as in Maine, by which the legal bodies and the governor can act harmoniously and unitedly. The questions involved in this case are above partisanship. They concern the public; they concern the state; and party and partisanship should be wholly disregarded by each and by all. Let the mistakes pf the past be corrected, and the unfortunate differences pass without further comment into oblivion. Let mutual concessions prevail, and then, perhaps, amicable relations between the'belligerent and discordant elements may be restored. “He serves his party best who serves his country most.” The gravity of the subject we fully understand. Cértainly no constitutional or public question can be more solemn than that arising from the present contention respecting the organization of the house of representatives. While we deplore the occasion which compels us to hear and determine this case, we feel constrained by the imperative command of the constitution, and by our own conscientious discharge of public duty, to declare these views, irrespective of policy or expediency. Entertaining the views we do, we cannot consent to rob the highest judicial tribunal of this state of its constitutional rights; nor can we consent to exalt the executive or the senate of the state above the demands of justice, of safety, or the welfare of the people.
But if all the unfortunate circumstances should arise which have been predicted, disastrous and fearful as they may be, we believe the consequences will be more unfortunate to the people of this state, and put all the people in greater peril, if this court shall, by a majority of its members, declare and proclaim that the refusal of the governor or the senate, or of both, to recognize the constitutional house of representatives wipes the house out of existence, when it is attempting to carry on its duties in a legal and lawful way; wipes out the house, and takes from the people their most popular branch of the legislature, that body which is closest and dearest to their hearts. In all history, at all times, in a representative government, the lower house, or the “popular branch,” as it is called, has been generally regarded as more in touch with the people—with the voters — and therefore more closely the representative of the people, than the senatorial or the longer-term body of the legislature. If the senate, consisting of 40 members, may, with the governor, decide by recognition what persons, whether elected or not, are members of the house of representatives, and what body, whether elected or not, is the house of representatives, then a majority of the senate, with the governor, being only 22 officials, may overthrow the constitutional house of representatives, and abolish 125 officials, such officials being the members of the larger body or branch of the legislative assembly. If the action of the governor and the senate can do that now, then two years ago Governor Humphrey and the senate, which was almost unanimously of his own political party, might have recognized a minority of the other house, and with such recognition could have reelected Senator John J. Ingalls to the United States senate, and defeated Senator Peffer, and could have carried on all business, under the rule of recognition. If the present governor and senate may do this now, another governor and another senate may follow the example; and hereafter, for all time, with the sanction of this court, the legislature will be composed of the governor and one house, recognizing and communicating with some other body, whether lawfully elected or not. The election of the second body will then be useless, unnecessary, abortive. Under such a practice, we would have two houses in name, but one only in fact; the one subservient to those that recognized it, but not inde pendent, and not representing fully all the people. Either we would have such an anomalous condition of affairs, or else, at every organization of the legislature or of either house, we would have at the capital of the state the clash of resounding arms, and the contention of armed forces. In such a case, force, and force only, would rule, and not law. At such a condition we stand appalled; and, if a doctrine contrary to that here announced be maintained, such a condition of affairs will follow. In this country, in this state, the law, not physical force, governs. Loyalty to law is the first—the paramount — duty of every citizen.
It is argued on behalf of the doctrine giving the governor and senate the arbitrary determination, beyond judicial control, as to what body is the house or de faoto house of representatives, that power must be lodged somewhere; and as officials, and especially superior officials, are presumed to do their duty, it is unjust to apprehend serious consequences from unusual, fraudulent or illegal methods which such officers might pursue. .Yet this rule, so declared, is not willingly applied in the same argument to boards of canvassers, (who have been designated in contemptuous language as “returning boards merely,”) although such boards of canvassers, within the decisions of this court, are subject to judicial supervision and control. If we may presume that officials will fully perform their duty, then such presumption favors boards of canvassers, as much as other officials, and therefore the certificates issued by such boards, especially by a state board of canvassers, composed of state officers, ought to be looked upon in the first instance as having been issued rightfully and lawfully. It is inconsistent and illogical, especially without proof, to suppose that a state board of canvassers, in issuing certificates to the members elected to the legislature, have not acted honestly, impartially, and legally. We commend to all suggesting that force or men shall rule, rather than law, the acts and words of the historic Agesilaus. When that Spartan general, renowned for all time, was, after years of desperate effort, upon the very threshold of success over his ancient enemies, the Persians, he was suddenly recalled to Sparta, to the defense of that nation against threatened assault of new enemies, but recently friends. Upon the instant, he answered, obedient to the call of his country, and, leaving a field of operations pregnant with victory, he returned, to meet the call of duty. He sent this message:
.“Agesilaus to the Ephori, greeting: We have reduced part of Asia, put the barbarians to flight, and made great preparations for the w;ar in Ionia; but, as you order me to return, I am not far behind this letter, and would anticipate it, if possible. I received the command, not for myself, but for my country and its allies. I know that a general does not deserve or really fulfill the duties of that name but when he suffers himself to be guided by the laws and the ephori, and obeys the magistrates.”
And by this obedience, the historian declares, he demonstrated the truth of what was said: “ That at Sparta the laws ruled men, and not men the laws.”
In conclusion, speaking for myself alone, and not for my brethren on the bench, I adopt substantially the language of Chief Justice Agnew, of the supreme court of Pennsylvania, when, with a courage and firmness worthy of John Hampden, in upholding the dignity and independence of his court, he said:
“On no ground of the constitution, law, public justice, state policy, or sound reason, can I discover any exemption of any officer in the state, high or low, from the common duty all citizens owe to the due administration of justice. I cannot abnegate a power intrusted to me by the people, and will return to them my commission, unsullied by any dereliction of duty, rather than abase this court, and pay obeisance at the shrine of unwarranted power or unconstitutional authority.”
The petitioner will be remanded.
Johnston, J., concurring. | [
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Opinion by
Green, C.:
This was an action brought by Elizabeth A. Platt, to recover from W. H. Tennison the sum of $1,750. The petition contained two counts. The first charged the indebtedness against the defendant as administrator of the estate of J. D. Tennison, deceased, to Lucy Ten nison, widow and heir at law of the decedent, being part of her distributive share of the estate which had been ordered paid to her by the probate court of Johnson county, which indebtedness was alleged to have been assigned to the plaintiff. The second count charged the same indebtedness against the defendant personally. The answer was a general denial) and the plea of full payment to the widow before the assignment. At the close of the evidence, the court required the plaintiff to elect upon which count she would rely for a recovery, and the plaintiff asked for judgment upon the first count of the petition, charging the indebtedness against the defendant as administrator. The defendant then asked the court to give the following instruction:
“ If you find from the evidence that W. H. Tennison, administrator, paid Lucy Tennison the $1,750, and afterwards she repaid said sum to W. H. Tennison, to be returned to her when she was acquitted of the crime with which she was charged, then I charge you W. H. Tennison, and not W. H. Tennison as administrator, would be liable, and you must find for the defendant.”
The court refused the instruction. This is claimed as error. The record of the probate court of Johnson county established the fact that an order of distribution was made on the 23d day of September, 1887, by which the administrator was directed to pay Lucy Tennison the sum of $1,750. W. H. Tennison testified that he gave to Lucy Tennison a cheek for that amount and took her receipt for the same, on the 30th day of September following; that she immediately indorsed and delivered the check to him individually, and he deposited it to his own credit in the bank the same day. Upon the question of the execution of the receipt and the delivery and indorsement of the check, the court instructed the jury as follows:
“The fact that after the execution of the receipt that has been offered in evidence and the transfer of the check for $1,750 from Lucy Tennison to the defendant, that he transferred moneys which he before had held as administrator and had credited to his account as administrator—the fact that he transferred those funds to his individual account wouldn’t avoid his liability as administrator. That is, any moneys that were in his hands and were properly due Lucy Tennison as her part of this estate would be due her from the administrator, and she would have a right to recover against him as administrator; and the plaintiff here, under this assignment, would have a right to recover against him as administrator for all those moneys, wherever he might have deposited them in his own name or have them put in his individual account. The only question for you to pass on is, whether or not he held moneys as administrator at the time of the commencement of this suit, in which Lucy Tennison would have been entitled if she had n’t made this assignment under which the plaintiff was entitled as the assignee of LucTennison, in this written article set out in the petition and which has been read in evidence.” •
The pleadings in this case fairly raised the question of payment to Lucy Tennison of said sum of $1,750. The evidence tended to show that she had had delivered to her a check for that amount, which she indorsed and delivered to the defendant below at the same time that she receipted for the amount named. We are of the opinion that this, or a similar instruction, should have been given to the jury.
The defendant in error contends that the making and delivery of a check and the taking a receipt for the sum of $1,750, unexplained, only amounted to prima faoie evidence of payment. Suppose we admit the correctness of this proposition; still the defendant below would have the right to have the question of payment submitted to the jury. The court did not do this. The instruction the court did give virtually took that question from the jury. The question of payment by the defendant as administrator, and repayment by Lucy Tennison to him individually, of the amount in controversy was a question of fact for the jury, and should have been submitted to them under proper instructions. (Stadel v. Stadel, 40 Kas. 646.)
The refusal to give the instruction is such error as-requires a reversal of the judgment.
It is recommended that the judgment be reversed, and that a new trial be granted.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action instituted by Dennis Ward in the district court of Franklin county, upon a policy of insurance against fire issued by the Continental Insurance Company, of New York, for $2,500, distributed as follows: $150 on barn No. 1; $200 on wagons, buggies, harness, robes, and saddles, while on premises of assured; $300 on stallion “Bashaw;” $300 on a jack, and $1,300 on horses, mules, and colts; $250 on cattle, while in barn and on the farm, and against lightning on or off the premises. The fire destroyed barn No. 1, the stallion, jack, and some other personal property, covered by the policy, in the barn. The plaintiff asked judgment for $850. A trial was had by the court and a jury, which resulted in a judgment in favor of the plaintiff for $518.70 for the personal property destroyed. The court instructed the jury that there could be no recovery for the loss of the barn, because foreclosure proceedings had been commenced and prosecuted until the plaintiff had been divested of all title to the same.
Certain questions were asked and answered in the application for the insurance by the insured, as follows:
“ Have you a warranty deed to the land herein described and referred to? Ans. Yes.
“ Is the land incumbered? A. No.
“If so, what amount? A. $800.
“When due? A. 1887.”
As to the incumbrance upon the personal property, there was no answer. It seems from the evidence that the land was incumbered for more than $800. The personal property was also incumbered. The agent taking the policy, however, had knowledge of such incumbrance. After the policy of insurance had been issued, and before the fire, the holder of the chattel mortgage sold the property under the mortgage, and the property which was afterward destroyed by the fire was bid in by the plaintiff.
The only question presented is the liability of the insurance company for the loss of the personal property. The trial court said, among other things, to the jury: “I hold further, gentlemen, that as the policy itself specifies certain separate amounts, upon different classes of property, it is divisible, and the fact that the policy was void as to the barn does not make it void as to the personal property.” This the plaintiff in error insists was erroneous; that the court should have told the jury that the policy was void ab initio. This court in a very recent case has held, that where separate valuations have been placed upon different subjects of insurance, the contract is severable. (Insurance Co. v. York, 48 Kas. 488.) Upon the authority of that case and the cases there cited, the instruction was proper.
The contention of the plaintiff in error that the policy was annulled, if not by the false statements as to the incumbrance upon the land, at any rate by the giving of a mortgage upon the personal property, is not tenable, because the agent taking the application and consummating the contract of insurance must have known the real condition of the title or ownership of the chattel property. (Insurance Co. v. Barnes, 41 Kas. 161; Am. Cent. Ins. Co. v. McLanathan, 11 id. 533.)
It is contended that the sale of the insured personal property under the chattel mortgage to the plaintiff avoided the policy. We fail to see wherein the risk was increased. Before the sale the plaintiff only had a contingent interest in the property; after the sale his title became absolute. A change of title which increases the interest of the insured, whether the same be by sale under judicial decree or by voluntary conveyance, will not defeat the insurance. (Bailey v. Am. Cent. Ins. Co., 13 Fed. Rep. 250; Esch Bros. v. Home Ins. Co., 78 Iowa, 334; Bell v. Insurance Co., 39 Am. Dec. 542.)
We recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action brought by W. W. Guthrie against the George R. Barse Live Stock and Commission Company, J. H. Simcock, and the Emporia National Bank, to recover for the wrongful conversion of 60 head of steers, of the alleged value of $2,500, and 84 hogs, valued at $1,050. The plaintiff below based his claim to the cattle and hogs upon a chattel mortgage executed by Anson Elliott on September 11, 1888, and which was filed for record two days later. Elliott was then engaged in the business of farming and feeding cattle and hogs, in Morris county, and was in possession of two farms, one known as his “home place,” and the other as the “ R. J. Millard farm.” About two years before that time, Elliott became indebted to Guthrie for cattle purchased from him; and about the 9th of September, 1888, Guthrié, learning that Elliott’s financial affairs were in bad condition, proceeded to Morris county, and obtained from Elliott, as security upon the indebtedness, a mortgage on horses, mules, cattle, hogs, crops, and feed, which Elliott claimed to own, and most of which were then in his possession. The indebtedness amounted at that time to the sum of $3,364.50, and it was then extended, and made payable in installments—$500 October 1, 1888; $1,000 January 1, 1889; $1,000 February 1, 1889; and $864.50 May 1, 1889. Among other chattels described in the mortgage were 84 head of feeding hogs, then “in the corral on the R. J. Millard farm,” and also “102 head of feeding steers, two and three years old, 52 head being on the home place and 50 on the Millard place.” At the time the mortgage was executed, the hogs were actually upon the R. J. Millard place, and in the possession of Elliott; but there were no steers upon the Millard place at that time, nor for several days afterward. The George R. Barse Live Stock and Commission Company, claiming to be the absolute owner of the steers and hogs, took possession of the same about the 17th of November, 1888, and, a few days afterward, sold the same and appropriated the proceeds to their own use. Guthrie then began this action, and in his petition set forth the indebtedness of Elliott to himself, the execution of the mortgage, and made a copy of the same a part of his petition. He averred that the 84 hogs were actually owned by Elliott, and were in fact on the Millard place on September 11,1888, but that the “ 60 head of steers at said time had not been acquired by said Anson Elliott, but were so acquired by him on and after, and between September 1 and 11, 1888, by purchase thereof by said Elliott and for his account as the owner thereof.” As to the steers mentioned in the mortgage, he alleged that —
“The said 50 head of steers were not in fact at said time on said farm, but had been bargained for and purchased, and were in fact owned by said Elliott, and he was then entitled to and in fact in the possession thereof, by virtue of his contracts for purchase thereof, and then having in fact the equitable title thereto to the extent of the value thereof, and which was the case in fact as to the certain 60 head of such steers between said time and September 17, 1888, in fact by said Elliott placed on said R. J. Millard farm as the owner thereof, and then and thereafter in possession as such owner, until as hereinafter stated; but on said September 11, 1888, said Elliott represented to the plaintiff that such steers to the amount of 50 head thereof were on said Millard farm, and others thereof to the amount of 60 head in all belonged to him and would be gathered up and placed on said Millard farm within a few days, and as soon as the same could be reasonably done; and upon which representations the plaintiff had the right to and did rely in accepting such chattel mortgage and thereon extending credit to said Elliott, and which said 60 head of steers were then and thereafter worth fully the sum of $2,500; . . . and the plaintiff, by virtue of such chattel mortgage, had the first and valid chattel-mortgage lien thereon, and thereby, a legal title thereto.”
The petition further sets forth an agreement between the live stock commission company and Elliott, made on September 17, 1888, which recites that the company is the owner of the cattle and hogs placed upon the Millard farm, and that they were to be fed and cared for by Elliott without any expense to the company, and that all profits over and above the purchase price, and interest on the same at the rate of 12 per cent, per annum, together with the commission for buying and selling the stock, should be applied on the indebtedness of Elliott to the company. The agreement was filed for record in the office of the register of deeds on September 28, 1888, and it is alleged that the agreement was in fact a security in the Eature of a chattel mortgage upon the cattle and hogs, and was drawn up in the form mentioned with the fraudulent intent of defeating the plaintiff below, and that instead of its being an evidence of the ownership of the company it was —
“ In fact at the most but chattel-mortgage security to said George R. Barse Live Stock Commission Company, subordinate to the plaintiff’s chattel-mortgage security.”
The defendants below denied any fraudulent purpose or any attempt to conceal from plaintiff the real character of the transaction between Elliott and itself, and alleged that the steers and hogs were the absolute property of the company before Guthrie’s mortgage was executed. A trial was had without a jury, and the court made a general finding in favor of Guthrie, and awarded him judgment against the George R. Barse Live Stock Commission Company and J. H. Simcock for $3,528, the full value of the steers and hogs alleged to have been wrongfully converted.
It is contended by plaintiffs in error that the testimony does not sustain the finding and judgment of the court. As to the sufficiency of the evidence to sustain the finding of Guthrie’s right to recover for the hogs, there can be little question. It is true that the plaintiffs in error show that Elliott was largely indebted to them, and they offer considerable evidence tending to show that a settlement was had between the company and Elliott in May, 1888, in which Elliott gave the company a mortgage on his real estate, and also upon his growing crops, and provided, that when the crops were matured the company was to place upon Elliott’s premises cattle and hogs, to which the crops should be fed, and when they were fattened the company was to sell them, take out the money paid for the stock, and allow it on Elliott’s indebtedness; and that in pursuance of this arrangement the hogs were purchased for the company, and the price of the same was paid to Elliott by Simcock about the time the hogs were put on the Millard place. The written agreement made on September 17, 1888, when all the hogs and cattle had been brought in and placed on the Millard place, was substantially what was claimed to have been agreed upon in the preceding May, and tends to confirm the theory of the company. On the other hand, it appears that the hogs were purchased by Elliott, and he testified that he purchased them for himself, and paid for them with his own money, and that the'$1,000 handed him by Simcock on September 10 was a loan to him, to make good his hank account, which was then overdrawn. The company had previously loaned money to Elliott with which to purchase stock and allowed him to retain the title to the same in himself, and he testified that he understood the money was furnished to him in this instance the same as before. A portion of the hogs which he purchased and shipped to Dunlap were sold by him before they were placed on the Millard farm, and as they were on that farm and in his possession when he executed the mortgage to Guthrie, it is clear that there is abundant evidence to sustain the finding of the court that there had been a wrongful conversion of the hogs.
The finding and judgment awarding a recovery for the conversion of 60 steers cannot be sustained. If the plaintiff below is entitled to recover for the steers fed on the Millard farm, such recovery must be limited to those described in the mortgage upon which he bases his right. "While there were 102 head of steers described in the mortgage, 52 of them were described as being at the home place of Elliott, and these formed no part of the 60 for which a recovery is sought in this action. They had been previously mortgaged to the Emporia National Bank, and it appears from both the pleadings and the evidence that none of them are involved in this controversy. It appears that Elliott did not undertake to give a mortgage to the plaintiff below on more than 50 cattle in addition to those at the home place, and we find nothing in the record which would in any event warrant a recovery for more than 50 head of the steers in controversy. No portion of the 60 head of steers fed upon the Millard place were taken from the home place, and in fact none of the steers were upon the Millard place or in the possession of Elliott at the time the mortgage was executed. Of the 60 head that were placed on the Millard farm, 30 head were purchased from J. B. Moffat, for $1,100, on the 6th day of September; éight of them were bought on the following day from W. W. Ray, for $265; on the 8th of September, six of them were purchased from Andrew Yokel, for $222; and on the 14th of September, 16 of them were purchased from F. M. Chase. J. H. Simcock, who was the agent of the company, gave checks to each of the owners from whom the cattle were purchased in payment for the same, and the cattle were gathered up by Elliott and placed on the Millard farm about the 15th of September, four days after the execution of the Guthrie mortgage. The Chase cattle had not been bargained for by either Elliott or Simcock at the time the mortgage was executed, and Elliott was not present when the Ray and Yokel cattle were purchased, and had no connection with them until they were gathered up to be placed on the Millard farm. He testified, however, that Simcock was acting for him in the purchase of these cattle, and that the money advanced for the payment of the same was a loan to him, to be repaid when the cattle were fed out and marketed. He stated that he negotiated the purchase of the Moffat cattle and the Chase cattle, but it appears that the Chase cattle were not bargained for by either Elliott or Simcock until several days after the execution of the mortgage.
The question respecting the ownership of the cattle is very contradictory, and the district judge has settled the conflict so far as the evidence tends to support the ownership of Elliott and his right to mortgage such as he then owned. If Elliott owned the cattle when the mortgage was executed, Guthrie acquired a lien on as many of them as were sufficiently described, and from such description could be identified. Elliott, of course, could not execute a valid mortgage upon the property of the company nor upon property which was not then owned by him. A contract to convey or mortgage cattle to which he had no title, but which were afterward acquired by him, although not constituting a chattel mortgage under the law, might become of equal force as between the mortgagor and mortgagee after the mortgagor had acquired title. Such a transfer might also be valid as to third persons, if the mortgagee obtained possession of the property before such persons acquired any specific lien or interest therein. (Cameron v. Marvin, 26 Kas. 612; Long v. Hines, 40 id. 220.) Elliott, however, did not attempt to convey more than 50 of the steers on the Millard farm, and, under the pleadings and evidence, the plaintiff below was not entitled to recover for a greater number. For this reason there must be a reversal of the judgment.
As there will be another trial, we will not undertake to determine upon the evidence in this record as to whether the company was an owner or a mere mortgagee of the stock in question, nor as to whether the knowledge, purpose and conduct of the parties were such as to give Guthrie a valid lien on the stock mentioned in his mortgage. The question whether the steers mentioned in the mortgage are sufficiently described, and as to how many of them can be identified under the description given, must be settled by the testimony received on the new trial, and cannot with propriety be discussed here. If there had been special findings stating the number and. value of the hogs alleged to have been converted, the judgment to that extént might have been affirmed; but no special findings were made, and, as the judgment was a general one, there must be a complete reversal, and a new trial.
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Opinion by
Strang, C.:
The defendants employed the plaintiff to procure for them a loan upon their preemption filing, which they agreed to secure by mortgage thereon, and authorized it to pay any incumbrance thereon, and also agreed to pay their said agent the sum of $14 as commission for procuring said loan and the expense of examining said land. The company secured the loan, paid the purchase price of the land to the government, amounting to $191, and $10 expense of examining the land, and tendered the defendants the balance of the loan and demanded of them a mortgage for the whole amount of said loan, which they refused to give. The plaintiff then brought suit against the defendants in the court below to recover the amount of money expended by it for the use of said defendants, and for its commission, and asked the court to declare the amount recovered a lien upon the land of the defendants. Answer was filed, but when the case was called for trial the defendants did not appear, nor did any one appear for them. Judgment was taken in the absence of the defendants for $233.33, and costs of suit, which judgment was by the court declared a lien upon the land upon which the mortgage was to have been given to secure the loan. Afterward, but on the same day the judgment was rendered, William O’Connor appeared as attorney for the defendants, and moved the court to set aside the judgment and grant a new trial. Such motion was supported by the affidavit of said O’Connor. The motion was sustained by the court, to which the plaintiff objected, and now brings the case to this court for review, and alleges that the court erred in granting a new trial.
The contention of the plaintiff here is, that the application for a new trial was not sufficient, under any provision of the statute. We do not think the application for a new trial was very formal. It was made, however, immediately after the judgment was rendered, and while the plaintiff below was still in court and present, and w'hile the whole proceeding was still fresh in the mind of the trial court; and, although it may properly be said that the showing was not sufficient to fully comply with any of the provisions of the statute, and not such as would justify this court in reversing the ruling of the court below in that respect if it had overruled said motion, yet we think the court had power to set aside the judgment it had just rendered and grant a new trial; and, having exercised that power, this court will not reverse its action unless satisfied that the court below had abused its discretion in so doing. Trial courts are permitted a good deal of latitude in the exercise of judicial discretion. Not being satisfied that the court below abused its discretion in this case, it is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
Per Curiam: The case of Wilson & Toms Investment Company v. John G. Hillyer, from the district court of Stevens county, is like the case of Investment Co. v. Hillyer, just decided. The same questions involved in this case were involved in that, and they are identical. This case is therefore affirmed on the strength of that. | [
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The opinion of the court was delivered by
Prager, J.:
This is an action brought by stockholders against the president-managing officer of a corporation to rescind a sale of corporate stock or in the alternative to recover damages. The plaintiffs-appellees are Sherman H. Sampson, LaFaye Sampson, his wife, and their two children, Weston Sampson and Karen Sampson Ward. They collectively owned 50% of the stock in Bonanza, Inc. The defendant-appellant is Jack R. Hunt, president of Bonanza, Inc., and the owner of the remaining 50% of the corporate stock. The theory of the action is that Hunt, in violation of a fiduciary obligation to the other stockholders, induced them to sign an agreement to sell their stock to him for substantially less than its true value by withholding from them important information affecting the financial status of the corporation and the value of the stock. The trial was hotly contested. Hunt denied withholding material information from the Sampsons and, on the contrary, testified that a full disclosure had been made.
The essential facts as found by the trial court are as follows: Bonanza, Inc. was originally organized in 1965 by Sherman H. Sampson, Jack R. Hunt, and Howard Scott. Howard Scott’s shares were later purchased by the corporation, which left ten shares of outstanding stock, five shares of which were owned by Sherman R. Sampson, and five shares of which were owned by Jack R. Hunt. In 1968 Sherman H. Sampson placed one share of stock each in the name of his wife and two children, retaining the right to vote for all stock held by the Sampson family. Thereafter Hunt served as president and Sampson served as secretary of the corporation. Both were directors of the corporation. The primary activity of Bonanza, Inc., was the development of the Sweetbriar Shopping Center in Wichita. The center was developed in three phases. The first phase involved the forming of the corporation and the initial construction of the center. Howard Scott was responsible for the leasing of space; Hunt was responsible for the construction; and Sampson was responsible for the financing of the corporation. Scott discontinued all activity in the venture when he sold his stock back to the corporation. Financing for phase one was obtained by a loan from the Prudential Savings Bank of New York. The amount of this loan was $810,000. Bank documents listed Bonanza, Inc., Hunt and Sampson as “owner-builder.” At this stage the bank documents also indicated the owners had successfully obtained numerous lease commitments.
The second phase of development involved obtaining additional financing and the construction of space in the center for a large discount department store. For this construction an additional loan in the amount of $500,000 was obtained from Prudential Savings Bank. Both Hunt’s and Sampson’s names were contained on the loan request.
The third phase of the development began in early 1970. It was during this phase that the dispute in the instant case arose. The third phase involved the obtaining of additional financing and the negotiation of additional leases. Application for the additional financing was formally made to Prudential Savings Bank on June 25, 1970. Unlike previous dealings with the bank, this application was made solely by Hunt. Sampson testified that he had no knowledge this application had been made, was pending, or had been approved by the Prudential Savings Bank. In addition Hunt on behalf of the corporation negotiated for new leases and the expansion of old leases. Sampson testified that he was not informed by Hunt and had no knowledge of these new leases. Sampson testified categorically that he was specifically told by Hunt that no new leases could be obtained. At about this same time Hunt on his own agreed to sell a 7Vk% interest in the corporation to three doctors. This sale was contingent upon Hunt’s buying Sampson’s stock. Such sale of' stock served to add some $45,000 additional capital to the corporation. Hunt did not disclose the sale of this stock to Sampson.
On July 5, 1970, Hunt delivered a letter to Sampson in which Hunt offered to sell his five shares of stock in Bonanza, Inc. to Sampson or in the alternative to purchase the stock of the Sampson family for the amount of $75,000. On September 8, 1970, an agreement was executed whereby Sampson and his family sold their stock in Bonanza to Hunt for $75,000 plus the payment of certain debts owed Sampson by the corporation. It was after the payment of the purchase price that Sampson first learned of the additional leases obtained by Hunt, the additional financing obtained from Prudential Savings Bank, and the sale of corporate stock to the three doctors mentioned above. This action by the Sampsons against Hunt was then filed.
The case was tried to the court sitting without a jury in 1974. After a full hearing on the merits the district court entered judgment in favor of the Sampsons in the amount of $93,000 based upon the difference between the actual value of the stock sold and the amount received in the sale with interest from the sale date. The court made extensive findings of fact and conclusions of law. The court found that Hunt alone was the moving force behind the activities of the third phase of the development; that Hunt had an intimate and working knowledge of the affairs of Bonanza; that he worked in the capacity of manager, promoter, and leasing agent; and that he prepared the buy or sell agreement. The court also found that although Sampson was secretary and a director of the corporation and was custodian of the corporation records, he had in fact withdrawn from the active management of Bonanza, Inc. and was essentially in the position of an investor. The court further found that Hunt had a superior knowledge of the affairs of Bonanza and that Hunt withheld from Sampson material information as to the new loan commitment by Prudential Savings Bank and as to the successful negotiation of new leases for space in the shopping center. The court concluded that Sampson had relied upon Hunt and made no independent investigation of the true financial position of Bonanza, Inc.
As his first point on this appeal Hunt maintains that the court’s findings of fact are not supported by the evidence contained in the record. The monumental record in this case contains ample evidence to support the trial court’s findings. The trial court had before it two conflicting versions of the events leading up to the sale. It chose to believe Sampson’s testimony that Hunt withheld from Sampson material information affecting the value of the corporate stock and found that as a result Hunt was able to purchase Sampson’s stock for approximately one-half its actual value. Hunt also questions the court’s finding as to the actual value of the stock of the corporation. The court determined the value of the stock by the use of estimates taken from Hunt’s own financial statements in which Hunt listed the value of his 50% interest to be worth $150,000. He purchased Sampson’s 50% interest for $75,000. The trial court’s award of damages in the amount of $75,000 plus interest was thus supported by the record.
Hunt’s other point on this appeal raises a question of law involving the duty of a director or managing officer of a corporation to disclose to another stockholder material information as to the status of the corporation’s affairs prior to a sale and purchase of corporate stock. It is the established rule in this state that a director of a corporation owes a high fiduciary duty to the other stockholders of the corporation. The Kansas rule is exemplified by Stewart v. Harris, 69 Kan. 498, 77 Pac. 277 (1904), where we held:
“The managing officers of a corporation are not only trustees of the corporate entity and the corporate property, but they are to some extent, and in many respects, trustees for the corporate shareholders.
“When two parties occupy to each other a confidential or fiduciary relation, and a sale is made by one to the other, equity raises a presumption against the validity of the transaction. To sustain it the buyer must show affirmatively that the transaction was conducted in good faith, without pressure or influence on his part, and with express knowledge of the circumstances and entire freedom of action on the part of the seller.
“A director or managing officer of a corporation having knowledge of the condition of its affairs, because of the trust relation and the superior opportunities afforded for acquiring information must inform a stockholder not actively en gaged in the management of the true condition of the corporation before he can rightfully purchase his stock.” (Syl. 1, 2, 3.)
This position has recently been reaffirmed by this court and by the United States Court of Appeals for the 10th Circuit interpreting Kansas law. (Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 256, 531 P. 2d 428; Delano v. Kitch, 542 F. 2d 550 [10th Cir. 1976].) (For a commentary on the Kansas cases see Nazar, Corporations: A Strict Fiduciary Standard for Officers and Directors, 16 Washburn L. J. 755 [Spring 1977].)
The defendant Hunt on this appeal concedes that such a fiduciary relationship exists where a director or managing officer of a corporation seeks to purchase the corporate shares of a stockholder not actively engaged in the management of a corporation. He maintains, however, that such a fiduciary relationship does not exist where the stockholder who sold his shares is another director or officer of the corporation as is true in the present case where the plaintiff Sherman Sampson was both a director and secretary of Bonanza, Inc. Although the majority of the earlier cases held to the contrary, the more recent cases hold that in a closely held corporation where one director or officer has a superior knowledge of corporate affairs because he is intimately involved in the daily operations of the corporation while the other director or officer has only a limited role in corporate management, the fiduciary duty is the same as if the latter were a stockholder not actively engaged in corporate affairs. (Helms v. Duckworth, 249 F. 2d 482 [D.C. Cir. 1957]; Childs v. RIC Group, Inc., 331 F. Supp. 1078 [N.D. Ga. 1970]; Kardon v. National Gypsum Co., 73 F. Supp. 798 [E.D. Pa. 1947].)
We hold that the rule of law to be followed in Kansas is that where knowledge of facts affecting the value or price of stock comes to an officer or director of a corporation by virtue of his office or position, he is under a fiduciary duty to disclose such facts to other stockholders before dealing in company stock with them, even if they too are directors or officers, and regardless of whether these facts pertain to intracompany matters, such as the value of assets, or relate to events “outside” the corporation, such as the existence of favorable contracts, the availability of additional financing, or any other matters which would tend to increase the value of the corporation’s stock. Applying this rule to the facts and circumstances of the present case we must conclude that the defendant Hunt, as president and director of Bonanza, Inc., breached his fiduciary duty to the plaintiff Sampson, a director and secretary of the corporation, by Hunt’s failure to disclose material information affecting the value of the stock of Bonanza, Inc. before contracting to purchase Sampson’s shares.
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Per Curiam:
Reversed and remanded with directions. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from a jury verdict which found Jesse Hutchinson (defendant-appellant) guilty of two counts of unlawful sale of marihuana (K.S.A. 65-4105 [d] [10] and K.S.A. 1976 Supp. 65-4127b [b] [3]) and two counts of unlawful sale of LSD (K.S.A. 65-4105 [d] [9] and K.S.A. 1976 Supp. 65-4127b [b] [3]).
Two issues are raised on appeal. The appellant challenges his identification at an alleged lineup at which he was not afforded counsel and the trial court’s refusal to allow him to inquire as to the residence of undercover narcotics agents.
During the summer of 1975, three undercover narcotics agents of the Kansas Bureau of Investigation, Richard Cheatum, Michael Lyman and John Washington, came to Independence, Kansas, and purchased various illegal drugs.
On September 18, 1975, a drug raid was conducted. The de fendant and some fifteen other persons were arrested and jailed. Undercover narcotics agents Michael Lyman and John Washington went to the jail to identify the parties involved in the narcotics cases so there would not be a mistake as to the persons arrested.
On December 16, 1975, an information was filed. On January 20, 1976, the defendant moved to suppress evidence and for dismissal which was heard on February 13, 1976. On March 9, 1976, the jury found the appellant guilty of the four counts charged. Appeal was duly perfected.
A conviction in a companion case involving a person identified as the defendant’s brother was affirmed by this court. (State v. Holt, 221 Kan. 696, 561 P. 2d 435.)
On appeal it is alleged the jailer called Jesse Hutchinson, the only black male in the cell, forward to the bars where he was identified by agents Lyman and Washington without an opportunity to have a lawyer present. The agents then identified the defendant at the preliminary hearing and trial. The appellant now contends the trial court erred in refusing to suppress evidence following his identification at a lineup in which he was not afforded counsel and other constitutionally protected privileges.
Agent Washington’s trial testimony disputed the appellant’s testimony. At the trial Mr. Washington identified the defendant and testified at the time he went to the jail he knew the defendant well, having seen him five times. He testified he had no problem with his identification and could have identified Mr. Hutchinson without having gone to the jail on September 18, 1975. Mr. Washington said 95% of the people in the defendant’s cell were black. Mr. Washington further testified when the jailer called the defendant’s name to have him come forward:
“. . . [BJefore Mr. Hutchinson could come forward, I said, Mr. Hutchinson is on the bed over there, just stay where you are.”
Agent Michael Lyman gave similar testimony.
After reviewing the record we find no error in the identification process. The identification in this case by undercover narcotics agents cannot be considered a lineup. The identification occurred before adversary judicial criminal proceedings were initiated. The constitutional right to counsel does not attach until judicial criminal proceedings are initiated, and the exclusionary rule relating to out-of-court identifications in the absence of counsel does not apply to identification testimony based upon a police station showup which takes place before the accused has been indicted or otherwise formally charged with any criminal offense. (Kirby v. Illinois, 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877; State v. McCollum, 211 Kan. 631, Syl. 3, 507 P. 2d 196; State v. Jackson, 212 Kan. 473, 510 P. 2d 1219; State v. Osbey, 213 Kan. 564, 568, 517 P. 2d 141; and State v. Wheeler, 215 Kan. 94, 97, 523 P. 2d 722.) (See Comment, 12 Washburn L.J. 115 [1972].)
There is no evidence the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification in view of the agents repeated contacts with the appellant. (Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375; and State v. Mitchell, 220 Kan. 700, 705, 556 P. 2d 874.)
Even if it be assumed the identification procedure was prejudicially tainted, the in-court identification by agents Washington and Lyman provides an independent identification of the appellant. (State v. Mitchell, supra at 706; State v. Bey, 217 Kan. 251, 259, 535 P. 2d 881; and State v. Estes, 216 Kan. 382, 386, 532 P. 2d 1283.)
The appellant next contends the trial court abused its discretion in denying him reasonable latitude in cross-examination of the witnesses against him by refusing to allow him to inquire as to the residences of the witnesses.
During the cross-examination of the KBI undercover agents, the appellant’s counsel attempted to obtain the addresses of agents Cheatum and Lyman. Mr. Cheatum responded in answer to a question he lived in Topeka, Kansas. The trial court sustained objections to further questions on the ground they lacked relevancy. Mr. Lyman indicated he could be subpoenaed at 3420 Van Burén, Topeka, Kansas. (KBI headquarters.) An objection to the question as to where Mr. Lyman lived was also sustained. There is no showing that any other testimony was excluded, and the appellant does not explain why he thought this evidence was relevant.
It is a general rule of law that the proper scope of cross-examination is within the sound discretion of the trial court. (State v. Laughlin, 216 Kan. 54, 56, 530 P. 2d 1220; State v. Guffey, 205 Kan. 9, 17, 468 P. 2d 254; and authorities cited therein.) It is also a general rule of law that one has the right to require a witness to give his name and address to aid the defendant in his right of confrontation. (81 Am. Jur. 2d, Witnesses, Sec. 485, pp. 492-493; Smith v. Illinois, 390 U.S. 129, 19 L. Ed. 2d 956, 88 S. Ct. 748; and Alford v. United States, 282 U.S. 687, 75 L. Ed. 624, 51 S. Ct. 218.) Such a right, however, is not absolute. (Smith v. Illinois, supra at 133-134 [Justice White, concurring]; State v. Hill, 211 Kan. 287, 299, 507 P. 2d 342; and United States v. Penick, 496 F. 2d 1105, 1108-1109 [7th Cir. 1974], cert. denied, 419 U.S. 897, 42 L. Ed. 2d 141, 95 S. Ct. 177.)
It is well known that undercover work, particularly in the narcotics area, is a dangerous business. (United States v. Alston, 460 F. 2d 48 [5th Cir. 1972], cert. denied, 409 U.S. 871, 34 L. Ed. 2d 122, 93 S. Ct. 200; and People v. Pleasant, 69 Mich. App. 322, 244 N.W. 2d 464 [1976].) Under the facts and circumstances of this case, the trial court held the questions of residency irrelevant. Under the facts and circumstances of this case we hold the trial court was within its discretionary powers when it sustained objections to the questions of the undercover narcotics agents regarding their residences. (State v. Hill, supra at 299; United States v. Alston, supra; United States v. Penick, supra; United States v. McKinley, 493 F. 2d 547 [5th Cir. 1974]; and Salas v. State, 481 S.W. 2d 825 [Tex. Crim. App. 1972].) (See Annot., 37 A.L.R. 2d 737 [1954].)
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Bert Heath was convicted by a jury of burglary (K.S.A. 21-3715) and felony theft (K.S.A. 21-3701). He appeals from these convictions.
No question is raised concerning the sufficiency of thé evidence so a brief recitation of facts will be sufficient. On October 26, 1974, Jack McGee parked and locked his car in the Capitol Square Apartment parking lot in Topeka, Kansas. The car contained various articles of personal property. On returning to the parking lot with a friend he noticed Michael Jackson in the vicinity of his car carrying some items which appeared to be cassette tapes. In response to a query Jackson asked, “Is that your car?” On being advised that it was, Jackson voluntarily returned the items he was carrying to the automobile. Jackson then got into an orange Volkswagon automobile bearing Atchison license tag B690 and drove away. There was a passenger in the Volkswagon. McGee testified at the trial the passenger was Bert Heath. He observed Heath from a distance of approximately 30 feet as the orange Volkswagon was leaving the parking lot. After this incident McGee returned to his car and noticed a glass wing had been broken and the car had been entered by force. A shaver, hot comb, and several other articles, including clothing, were missing. He immediately notified the police.
Five days later a patrolman in the Topeka Police Department located the orange Volkswagon automobile bearing an Atchison B690 license tag. He stopped the vehicle. Michael Jackson was the driver. The defendant, Bert Heath, was a passenger in the front seat. A second police officer was called to the scene and Jackson and Heath were placed under arrest. They were advised of their rights. A written consent to search the automobile was obtained from Michael Jackson. This written consent form was later introduced at the trial. On searching the vehicle the officers found a Norelco electric shaver in the back seat of the automobile behind the driver’s seat. This and other items found in the car were introduced at the trial. These were identified by Mr. McGee as being his property taken from the automobile on October 26th.
The defendant, Bert Heath, raises three points. The first concerns the admission in evidence of the articles obtained in the search of the orange Volkswagon. The contention is made that the officer did not obtain a search warrant or a consent to search the automobile from the defendant Heath. The orange Volkswagon was owned by Brenda Boldredge and she testified that it had been loaned to Michael Jackson. She further testified that she knew the defendant Heath vaguely. She had consented to Michael Jackson’s use of the automobile.
One who is neither an owner nor in possession of an automobile has no standing to challenge a search of the automobile. In State v. Boster, 217 Kan. 618, 539 P. 2d 294, this court stated:
“On numerous occasions we have applied this principle to the search of an automobile and held that one who is neither an owner nor in possession of an automobile lacks standing to invoke the constitutional guarantee of immunity from unreasonable search and seizure. (State v. Edwards, 197 Kan. 146, 415 P.2d 231; State v. Roberts, 210 Kan. 786, 504 P.2d 242.) . . .
“Similarly, we denied a motion to suppress for lack of standing in Roberts, where the defendant was only a passenger in the car that was searched and he claimed no ownership or interest in it.” (p. 621.)
The defendant now asks this court to reconsider its holdings in Boster, Edwards and Roberts. We have done so and see no reason to change the rule of law stated in those cases. In the present case Jackson was in possession of the car owned by his girl friend. The defendant Heath was neither the owner nor in possession of the automobile. Heath lacks standing to invoke the constitutional guarantee of immunity from unreasonable search and seizure. The consent given by Jackson was valid and the articles seized were properly admitted in evidence.
The defendant’s second and third points on appeal relate to improper impeachment of the defendant on cross-examination by the prosecutor concerning Heath’s pre-trial silence after receiving Miranda warnings, and improper comment by the prosecutor during closing argument. We will treat these two matters together. It should be noted that the present case was tried in March, 1975, prior to the decision in Doyle v. Ohio, 426 U. S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, and prior to our decision in State v. Mims, 220 Kan. 726, 556 P.2d 387. The prosecution did not have the benefit of those two cases at the time the defendant was tried. In Mims we held:
“The use for impeachment purposes of a defendant’s silence at the time of his arrest and after receiving Miranda warnings, violates the dué process clause of the Fourteenth Amendment to the United States Constitution. (Following Doyle v. Ohio, 426 U. S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240.)” (Syl. 1.)
In Mims it is stated:
“We interpret the decision of the United States Supreme Court in Doyle to settle the question so as to make it constitutionally impermissible for a state prosecutor to impeach a defendant’s exculpatory story told for the first time at the trial by cross-examining him as to his post-arrest silence after receiving the warnings required by Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A. L. R. 3d 974. We specifically overrule syllabus eight and corresponding portions of the opinion in State v. Bly, supra, insofar as they are in conflict with Doyle v. Ohio, supra. . . .” (p. 730.)
It is constitutionally impermissible for a state prosecutor to impeach a defendant’s exculpatory story told for the first time at the trial by cross-examining him as to his post-arrest silence after receiving the Miranda warning, and comment on his post-arrest silence during the state’s closing argument should not be permitted.
There can be little doubt the rule in Doyle and Mims was violated in the present case. On cross-examination the following colloquy occurred between the prosecutor and the defendant while defendant was on the stand:
“Q. Over four months has elapsed in this interim since October 31, 1974, and this is the first time that this explanation has come forth, is that correct?
“A. Has been brought besides to my lawyer, besides talking to my lawyer about it.
“Q. I don’t know what you said to your lawyer—
“A. (Interrupting) The first time it has been out in court, yeah.
“Q. The first time that the State has been aware of it, isn’t that right?
“A. Yeah, I guess.
“Q. Well, if you had an alibi, if you had a person that would corroborate what you are now testifying to, why is it that you decided that you didn’t want to tell the State about it?
“A. The State never asked me.
“Q. Never asked you?
“A. No.
“Q. Well, didn’t you tell the police you were not involved in the crime?
“A. Yeah, I told them that.
“Q. What was that in response to?
“A. What?
“Q. What was that in response to?
“A. They asked me, they wanted to read my rights.
“Q. And at that time you said, ‘I’m not involved in the crime’?
“Q. Yeah, I told them I didn’t have nothing to do with it, you know, whatever it is.
“Q. But at the same time you decided that it would not be in your best interest to tell them that, in fact, at that time you had an alibi?
“A. No.”
In addition, during closing argument the prosecutor commented on defendant’s pre-trial silence as follows:
“Just put yourself in this situation, please. You walk out of this courtroom today and out on the street, and lo and behold the police pull up behind you and stop you and put you in jail. Bam, you are under arrest. Why, because you are a suspect in a burglary-theft case. You say, T didn’t commit a burglary-theft’, you know darn good and well that you never did it, and, in fact, you say. ‘What burglary and theft, when did it occur’. You say, T was not there’. Isn’t that a natural response, or do you wait literally months later and then say, ‘Hey, you have got the wrong person. I was not there. I was here’. Do you wait four months later and then all of a sudden tell the State for the first time that you were with your girlfriend on that date?”
The defendant’s objection to this argument was noted by the trial court but no action was taken.
The state now urges this court to apply the Kansas harmless error rule as declared in K. S. A. 60-2105 and recognized in State v. Thompson, 221 Kan. 176, 558 P. 2d 93. However, in the present case the defendant Heath was a passenger in the car and there was no testimony indicating his actual participation in the burglary and theft other than his presence and participation as an aider and abettor. The cross-examination and closing argument was a direct attack upon defendant’s defense of alibi. Due to the persistence of the prosecutor we are not able to say that these errors had little, if any, likelihood of having changed the result of the trial. The court cannot declare such a belief beyond a reasonable doubt.
The state further argues that our holding in Mims should be given only prospective application from the date on which the verdict was returned in that case, March 7, 1975. In support of this argument the state cites Johnson v. New Jersey, 384 U. S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772; Linkletter v. Walker, 381 U. S. 618, 14 L. Ed. 2d 601, 85 S. Ct. 1731; Tehan v. Shott, 382 U. S. 406, 15 L. Ed. 2d 453, 86 S. Ct. 459, reh. den. 383 U. S. 931, 15 L. Ed. 2d 850, 86 S. Ct. 925; and other related cases.
We note that in Doyle v. Ohio, supra, the United States Supreme Court reversed and remanded the cases to the Ohio state court for new trials. The cases had been directly appealed and the cases affirmed by the Ohio appellate courts. The convictions were reversed on writs of certiorari. So the convictions in Doyle had not become final when the high court spoke. We are unable to find where the United States Supreme Court has passed on the question of retroactive-prospective operation of the new rule declared in Doyle.
A conviction is generally not considered “final” until (1) the judgment of conviction has been rendered, (2) the availability of an appeal has been exhausted, and (3) the time for any rehearing or final review has passed. (Linkletter v. Walker, supra; see Anno., Overruling Decision — Application, 10 A.L.R. 3d sec. 8 [d], p. 1403.) In the present case the ruling questioned at the trial was appealed directly to this court. Defendant’s convictions were not final and under the rule as applied in Johnson v. New Jersey, supra; Linkletter v. Walker, supra; and Tehan v. Shott, supra, we feel the circumstances are such that prospective operation of the Doyle and Mims rule should not be declared in the present case.
The judgment and convictions are reversed and the case is remanded for a new trial. | [
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Per Curiam:
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The opinion of the court was delivered by
Kaul, J.:
This is an interlocutory appeal from an order of the trial court sustaining a motion to suppress evidence obtained as a result of authorized eavesdropping. (K. S. A. 22-2514, et seq., [Laws of 1974, Ch. 150], [Secs. 22-2514, 22-2515, 22-2516 and 22-2517 were amended by Laws of 1976, Ch. 165, now K. S. A. 1976 Supp.].) The staters appeal is specifically authorized by K. S. A. 22-2516 (9) (b) (i), now 1976 Supp.
The central issue involved is whether the Kansas authorized eavesdropping act, in effect at the time (1975), is more permissive than the wiretap authorization provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U. S. C. Secs. 2510-2520), thus rendering our act unconstitutional and any wiretaps authorized thereunder fatally defective and necessitating the suppression of any evidence obtained thereby.
As a result of evidence obtained by a court ordered wiretap, Brenda Dowdy and Keith Banks were arrested and charged with conspiracy to sell heroin. An additional charge of possession with the intent to sell heroin was made against Brenda Dowdy. Both of these defendants filed motions to suppress the wiretap evidence, challenging the constitutionality of 22-2514, et seq. These motions were heard and initially denied by the trial court. The case against Dowdy and Banks thereafter proceeded to a jury trial in which the defendants were convicted as charged.
In the investigation of an entirely separate case, another court order authorizing electronic surveillance was granted. As a result of interceptions made in executing this later order, Danny Hanson, Sydney Scanlon, John T. Finlay, Judy Finlay, Larry Haith, Myron Haith, Ted Bryant, Alfred Hill, Leo J. McMahon and Michael J. Broadfoot were all charged with conspiracy to sell marijuana. Additionally, John T. Finlay was charged with possession of amphetamines and Sydney Scanlon with possession of cocaine. The connection of the remaining person named as de fendant in these cases, Boyd Douglas Ransom, is not disclosed in the record.
All of the defendants in the marijuana conspiracy case also filed suppression motions challenging the constitutionality of 22-2514, et seq. During this same time period the defendants in the heroin conspiracy case filed motions for a new trial, asking for a rehearing on the constitutionality of the above mentioned act.
Upon the motion of the district attorney these constitutional challenges were consolidated for hearing. After hearing evidence on these motions, on February 27, 1976, the trial court, reversing its prior decision, declared the act unconstitutional because of the omission in the Kansas statutes of the 90-day inventory notice provision of 18 U. S. C. Sec. 2518(8)(d). Accordingly, the court suppressed all wiretap evidence obtained in both of these cases and sustained the heroin conspiracy defendants’ motions for a new trial. The trial court rested its ruling on our decision in State v. Farha, 218 Kan. 394, 544 P. 2d 341, which was filed December 13, 1975. Thereafter the state perfected this appeal.
In rendering its decision, the trial court made a comprehensive analysis of our opinion in Farha and concluded that the failure of our 1974 act to include a 90-day inventory notice provision comparable to 18 U.S.C. Sec. 2518(8)(d), made it more permissive than the federal act thereby rendering it unconstitutional, which, in turn, compelled the suppression of the evidence in question. The trial court took a second look at the constitutional issue on the state’s motion for a rehearing, but reaffirmed its previous ruling. We are informed that in response to the trial court’s first decision on February 27, 1976, the legislature, then in session, along with other amendments to the 1974 act, added subsection (d) to K. S. A. 22-2516(7). (See Ch. 165, Laws of 1976.) The language of the new subsection (d) closely follows the language of 18 U. S. C. Sec. 2518(8)(d), the corresponding subsection of the federal act.
In attacking the trial court’s suppression order, the state specifies three interrelated points on appeal. The state first contends our 1974 act is not more permissive than the federal act; secondly, that even if the 90-day inventory notice provision is a central or functional safeguard in the federal statutory scheme, suppression is not automatically required because of the omission of a similar provision in our act. In its third point the state claims error by the trial court in ordering suppression in the absence of a finding that defendants had been prejudiced by the omission of the provision of the Kansas act.
While we were not ruling on the specific points raised by the state herein, our analysis of federal — state interaction with respect to eavesdropping in In re Olander, 213 Kan. 282, 515 P. 2d 1211, and State v. Farha, supra, to a large extent settles the issues raised herein.
The constitutionality of the 1971 Kansas act, in effect at the time, was not challenged in Olander, but in disposing of the issue therein we recognized that the federal statutes established minimum standards for the states as well as for the federal government. We said:
“The limitations set by the federal statute are to be observed by state authorities, but we do not understand that a state is prohibited from imposing even more restrictive requirements than are set out in the federal law.” (p. 286.)
Two years after Olander we were confronted with a constitutional challenge to the 1971 act in Farha even though the act had been repealed and replaced by the 1974 act before the case reached us. Farha involved numerous eavesdropping orders or electronic search warrants issued under the 1971 act in Shawnee and Sedgwick counties and one order issued in Sedgwick under the 1974 act. We noted that the constitutional requirements of Berger v. New York, 388 U. S. 41, 18 L. Ed. 2d 1040, 87 S. Ct. 1873, were embodied in the federal act and proceeded to compare our 1971 act with 18 U. S. C. Secs. 2510-2520. We found our 1971 act to be deficient in numerous respects in its conformance to the mandate of the federal statutes. We held the 1971 act to be unconstitutional and further that the evidence obtained in the intercept must be suppressed. We reaffirmed what had previously been said in Olander concerning state compliance with minimum federal statutory guidelines. We said in Farha:
“. . . [Ajlthough a state may adopt a statute with standards more stringent than the requirements of the federal law (Alderman v. United States, 394 U. S. 165, 22 L. Ed. 2d 176, 89 S. Ct. 961; Cooper v. California, 386 U. S. 58, 17 L. Ed. 2d 730, 87 S. Ct. 788), a state may not adopt a statute with standards more permissive than those set forth in Title III (In re Olander, 213 Kan. 282, 515 P. 2d 1211). ‘A State statute would be preempted where the State law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress’ (Commonwealth v. Vitello, Mass., 327 N. E. 2d 819, 835). If a state wiretap statute is more permissive than the federal act, any wiretap authorized thereunder is fatally defective and the evidence thereby obtained is inadmissible under 18 U. S. C. Sec. 2515.” (p. 400.) (Emphasis supplied.)
We recognized in Olander and Farha that as a result of the decision in Berger v. New York, supra, and the response of Congress thereto, the only discretion left to a state in the eavesdropping area was whether to enact eavesdropping legislation more restrictive than the provisions of the federal act. However, since the federal act was not self-executing, if a state desired authorized eavesdropping, the enactment of state legislation was necessary. Our legislature responded by enacting the 1971 law, followed by the 1974 law (in question here) and the 1976 amendments thereto.
We turn then to the question whether our 1974 act was more permissive than the federal act by reason of the omission of the 90-day inventory notice provision appearing in 18 U. S. C. Sec. 2518(8)(d) which reads:
“(d) Within a reasonable time but not later than ninety days after the filing of an application for an order of approval under section 2518(7) (b) which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which shall include notice of—
“(1) the fact of the entry of the order or the application;
“(2) the date of the entry and the period of authorized, approved or disapproved interception, or the denial of the application; and
“(3) the fact that during the period wire or oral communications were or were not intercepted. The judge, upon the filing of a motion, may in his discretion make available to such person or his counsel for inspection such portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge of competent jurisdiction the serving of the inventory required by this subsection may be postponed.”
Immediately following this provision in the federal statute is Sec. 2518(9) which provides:
“(9) The contents of any intercepted wire or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a Federal or State court unless each party, not less than ten days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved. This ten-day period may be waived by the judge if he finds that it was not possible to furnish the party with the above information ten days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving such information.”
These two provisions of the federal statute deal with post-use of intercepts. The first, (8)(d), is commonly referred to as the 90-day inventory notice provision and by its terms may be postponed, for good cause shown, but not waived.
As previously indicated 2518(8)(d) of the federal act was omitted in our 1974 act. However, 2518(9) was enacted verbatim by the Kansas legislature and was codified as K. S. A. 1976 Supp. 22-2516(8). In an attempt to avoid the effect of the “more permissive” rule adhered to in Olander and Farha the state now argues that the Kansas act, by omitting the 90-day inventory notice provision, but including the ten-day period notice provision, cannot be said to be more permissive than the federal act. The state’s argument is without merit. It is clear that these two postintercept notice provisions were intended to and do provide protection for entirely different groups of people. The ten-day proviso does not afford the same protection to the general public provided by 2518(8)(d), for only those persons charged with crime or otherwise afforded a hearing are encompassed within its mandate. Under such circumstances, to agree that the provision which is more strict in its protection of persons charged with crime thereby provides parallel protection for the general community is illogical. The statute provides that in addition to persons named in the order, the judge may, in the interest of justice, cause the prescribed inventory to be served on such other parties to the intercepted communications as the judge, in his discretion, may determine to be in the interest of justice. In other words, some protection is afforded those parties unnamed, but overheard in the intercepted communications. In United States v. Chun, 503 F. 2d 533 (9th Cir. 1974), the provision in question was held to be a central or at least a functional safeguard in the statutory scheme. The court carefully explains that 2518(8)(d) requires not only a proper inventory notice to those persons named in the wiretap order, but also to those persons overheard, but not named. The court points out that this provision was incorporated into the act by an amendment by Senator Hart and that the purpose and intent thereof is shown by the legislative history. The construction placed on 2518(8)(d) by the Ninth Circuit Court of Appeals in Chun was adopted by the United States Supreme Court in the recent case of United States v. Donovan, 429 U. S. 413, 50 L. Ed. 2d 652, 97 S. Ct. _ 1977).
We hold that the failure of K. S. A. 22-2514 [now 1976 Supp.] to include a 90-day inventory notice provision comparable to 18 U. S. C. Sec. 2518(8)(d), causes the Kansas act to be more permissive than the federal statutory scheme.
In its second point, the state argues that even assuming 2518(8)(d) is a central or functional safeguard in the federal statutory scheme, suppression is not automatically required. In United States v. Eastman, 465 F. 2d 1057 (3rd Cir. 1972), the government appealed from a suppression order entered because the 90-day inventory notice was not filed by reason of a waiver. On appeal the government, as does the state at bar, argued that suppression was improper because no prejudice to defendant was shown. In rejecting the government’s argument the Eastman court said:
“We cannot agree with the Government’s position for two reasons:
“(1) 18 U. S. C. Sec. 2518(10) (a) states inter alia, ‘Any aggrieved person in any trial . . . may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that — (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval.’ (Emphasis added). As is pointed out in the admirable opinion of Judge Becker in United States v. Narducci in a closely analogous situation, an exclusionary rule has been written into the Act by Sec. 2515, which states, inter alia: ‘Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial. . . . before any court ... if the disclosure of that information would be in violation of this chapter.’ (Emphasis added). That Section 2515 is exclusionary is now settled beyond all doubt in Gelbard v. United States, and United States v. Egan, 408 U. S. 41, 92 S. Ct. 2357, 33 L. Ed. 2d 179 (1972).” (p. 1061.)
Further in the opinion, the Eastman court pointed out that in view of the legislative history of the act, the 90-day notice provision of the act must, of course, be read in the light of Sec. 2518 (10) (a), which was said to be an integral part of the act. K. S. A. 22-2516 (9) (a) [now 1976 Supp.] is identical to Sec. 2518(10)(a). The Eastman court concluded:
“We construe the statutes, 18 U. S. C. Sec. 2518(8)(d) and 18 U. S. C. Sec. 2518(10)(a)(i), as requiring the exclusion of wiretaps secured in violation of their wording which implements the Fourth Amendment. . . .” (p. 1063.)
In its brief on appeal, the state cites cases such as United States v. Chun, supra; United States v. Giordano, 416 U. S. 505, 40 L. Ed. 2d 341, 94 S. Ct. 1820; and United States v. Chavez, 416 U. S. 562, 40 L. Ed. 2d 380, 94 S. Ct. 1849, wherein language appears indicating that unsubstantial or inadvertent violations of the act may be cured if the underlying statutory purpose of 2518(8)(d) has been satisfied. (See also United States v. Civella, 533 F. 2d 1395 [8th Cir. 1976.]) However, we believe the holding in Eastman must control where the provision has been ignored in proceedings under the act or omitted from the statute as in the case at bar.
The state further contends that since 22-2516 has since been amended to include the 90-day inventory notice provision, the exclusionary rule should not be applied, citing Stone v. Powell (1976), 428 U.S. 465, 49 L.Ed.2d 1067, 96 S.Ct. 3037. The case is a habeas corpus proceeding involving a state prisoner. Application of the exclusionary rule to state proceedings was modified, but the decision was specifically limited to habeas corpus relief. In this connection, the Powell court said:
“. . . [WJhere the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. . . .” (96 S. Ct. p. 3052.)
Secondly, as pointed out in Eastman, the specific intention of Congress to make the exclusionary rule applicable in the area of wiretaps is clearly demonstrated by the enactment of 18 U. S. C. Sec. 2518(10)(a). Our legislature followed by enacting K. S. A. 22-2516(9)(a), now 1976 Supp. The availability of the suppression remedy for violations of the statutory scheme of Title III, as distinguished from constitutional violations, turns on the provisions of the act itself rather than on the judicially fashioned exclusionary rule aimed at deterring violations of the Fourth Amendment rights. (United States v. Giordano, supra.)
We find no merit in the state’s exclusionary rule argument.
Finally, the state claims the trial court erred in suppressing evidence without making a finding that defendants had been prejudiced by the failure of 22-2516 to include the 90-day inventory notice provision. The state cites no additional authorities in support of this point.
The trial court concluded that prejudice was irrelevant since the Kansas statute was more permissive than the federal act. The trial court’s conclusion accords with what was said by this court in State v. Farha, supra. The state’s argument with respect to prejudice flies in the face of the holding in Eastman concerning the application of 18 U. S. C. Sec. 2518 (10) (a) (i).
The judgment is affirmed.
Fatzer, C. J., dissenting from Syl. 5 and corresponding portion of the opinion. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
This is a Workmen’s Compensation proceeding commenced by the dependents of the deceased workman, Dennis Raymond Baker, against his employer, List and Clark Construction Company, and its insurance carrier, Travelers Insurance Company. For reasons hereafter stated, we affirm.
On October 29, 1974, Dennis Raymond Baker sustained personal injury by accident resulting in his death while employed by appellee, List and Clark Construction Company, at the construction site of the Clinton Reservoir in Douglas County. He was survived by his wife and two children, ages six and eight.
A hearing on this matter was had before a Workmen’s Compensation Examiner, on September 15, 1975. All required stipulations under the Kansas Workmen’s Compensation Act were made in the affirmative by the appellees. Only two issues remained to be decided: (1) the constitutionality of K.S.A. 1975 Supp. 44-510b (j); (2) appellant’s right to attorney’s fees to be assessed against the appellees.
On November 14,1975, the Workmen’s Compensation Director rendered his findings and award. He found the constitutional question raised by the appellant could not be decided at the administrative level; hence, an award for the maximum allowable benefits under K.S.A. 1975 Supp. 44-510b, subject to the credit provisions of (j) thereof, was made in favor of the dependents of the deceased worker. The appellant’s request for attorney fees to be assessed to the appellees was denied. The appellant’s contract of employment with her attorney as read into the record at the hearing on September 15, 1975, was approved.
The Director’s award was appealed to the district court of Douglas County. That court ruled K.S.A. 1975 Supp. 44-510b (j) was constitutional and affirmed the award in all respects. This appeal followed.
K.S.A. 1975 Supp. 44-510b (j) provides:
“When any benefits are being paid under the federal social security act because of the death of an employee whose dependents are entitled to compensation under this section, the amount of compensation due under this section shall be reduced by an amount equal to one-half (%) of the amount of such social security payments during the time such social security payments are being made to the workman’s dependents. The employer shall receive credit on the payment of future compensation otherwise due under the workmen’s conpensation act for an amount equal to one-half (%) of the total amount of social security payments made subsequent to a period during which compensation payments were made by the employer, but which are attributable to such period.”
The statute under attack is a “set-off” provision which provides that workmen’s compensation benefits due the dependents of a deceased employee shall be reduced by a specified formula if such dependents are also being paid under the Social Security Act because of the death of the employee. The set-off provision in the Kansas Act applies only to death benefits. A workman’s disability benefits under the Kansas Act are not reduced if the workman is also receiving disability benefits under the Social Security Act. However, the Social Security Act has a “setoff” provision which applies to disability benefits. Under 42 U.S.C.A., Sec. 424a, social security disability benefits are reduced by a specified formula if the individual entitled to such benefits is also entitled to disability benefits under a state workmen’s compensation law.
The combined effect of the set-off provisions of the Social Security Act and Kansas Workmen’s Compensation Act, as they presently exist, is that if an employee or his dependents are entitled to benefits under the one act, but not the other, he or they simply receive those benefits. If they are entitled to benefits under both acts, the combined total benefits are reduced. Under the present statutory scheme, no person or persons entitled to benefits receive the maximum allowable benefits under both acts.
If K.S.A. 1975 Supp. 44-510b (j) is held unconstitutional, as appellant urges it should be, the appellant and her children will receive the maximum benefits under both acts. The social security death benefits will be paid regardless of what benefits appellant receives under the Workmen’s Compensation Act.
The appellant contends K.S.A. 1975 Supp. 44-510b (j) is unconstitutional on three grounds. Where the statute is applied to the decedent’s widow and two children, the appellant argues it is a denial of their right to due process and equal protection under the law as guaranteed by the constitutions of the United States and the State of Kansas. The appellant further contends the legislature’s passage of K.S.A. 1975 Supp. 44-510b (j) abrogated the deceased’s contractual rights in violation of Article I, Section 10, of the United States Constitution which forbids the impairment of contracts.
Long-standing and well-established rules govern this court’s review of the constitutionality of a statute. In Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 408 P.2d 877, we said:
“This court is by the Constitution not made the critic of the legislature, but rather, the guardian of the Constitution; and every legislative act comes before this court surrounded with the presumption of constitutionality. That presumption continues until the Act under review clearly appears to contravene some provision of the Constitution. All doubts of invalidity must be resolved in favor of the law. It is not in our province to weigh the desirability of social or economic policy underlying the statute or to question its wisdom; those are purely legislative matters. . . .” (Id. 760)
In Brown v. Wichita State University, 219 Kan. 2, Syl. 3, 547 P.2d 1015, we held:
“It is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done.”
Guided by these principles, and based on the following reasoning, we have concluded the statute under attack is constitutional.
The appellant’s equal protection argument is essentially that the classification created by K.S.A. 1975 Supp. 44-510b (j) is arbitrary and unreasonable. She contends the “set-off” provision which reduces payments under the Workmen’s Compensation Act to widows with minor children, but not to widows without minor children or recipients of disability benefits, constitutes a denial of her right to equal protection under the law.
A state may create a statutory classification of persons within the scope of its police power. Classification necessarily involves discrimination. Yet it is only invidious discrimination with no rational basis for the statutory classification that offends the equal protection guarantee. Dandridge v. Williams, 397 U. S. 471, 25 L. Ed. 2d 491, 90 S. Ct. 1153.
Reed v. Reed, 404 U. S. 71, 30 L. Ed. 2d 225, 92 S. Ct. 251, teaches that a classification:
“. . . ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ ” Id. at 76.
Accord, Henry v. Bauder, 213 Kan. 751, 518 P. 2d 362.
The statutory classification created by K. S. A. 1975 Supp. 44-510b (j) includes dependents of a deceased workman who are entitled to payments under both the Workmen’s Compensation Act and the Social Security Act as a result of the workman’s death. This class of persons could include the minor children (42 U.S.C.A. Sec. 402 [d]), mothers or fathers of minor children (Sec. 402 [g]) (see, Weinberger v. Wiesenfeld, 420 U. S. 636, 43 L. Ed. 2d 514, 95 S. Ct. 1225), widows or widowers over sixty or over fifty with a disability (Sec. 402 [e] [f]), and parents (Sec. 402 [h]) of a deceased person covered by the Social Security Act.
As previously noted, the existing statutory scheme operates to prevent duplication of benefits under the Workmen’s Compensation Act and the Social Security Act. We note in passing that the existence of other statutes may be taken into consideration in determining the constitutional validity of a particular statute. 16 Am. Jur. 2d Constitutional Law, Sec. 497 (1964). This statutory scheme appears to be consistent with a leading treatise on workmen’s compensation:
“Once it is recognized that workmen’s compensation is one unit in an overall system of wage-loss protection, rather than something resembling a recovery in tort or on a private accident policy, the conclusion follows that duplication of benefits from different parts of the system should not ordinarily be allowed. Since most social legislation in the United States has appeared in unrelated fragments, lack of coordination resulting in cumulation of benefits is quite common; but newer legislation, including the Social Security compensation offset provision, is more carefully drawn to prevent this result.” 4 A. Larson, The Law of Workmen’s Compensation, Sec. 97.00 (1976).
The treatise goes on to state:
“Wage-loss legislation is designed to restore to the worker a portion, such as one-half to two-thirds, of wages lost due to the three major causes of wage-loss: physical disability, economic unemployment, and old age. The crucial operative fact is that of wage loss; the cause of the wage loss merely dictates the category of legislation applicable. Now if a workman undergoes a period of wage loss due to all three conditions, it does not follow that he should receive three sets of benefits simultaneously and thereby recover more than his actual wage. He is experiencing only one wage loss and, in any logical system, should receive only one wage-loss benefit. This conclusion is inevitable, once it is recognized that workmen’s compensation, unemployment compensation, nonoccupational sickness and disability insurance, and old age and survivors’ insurance are all parts of a system based upon a common principle. If this is denied, then all coordination becomes impossible and social legislation becomes a grab-bag of assorted unrelated benefits.” Id. at Sec. 97.10.
Resort to the legislative history of K.S.A. 1975 Supp. 44-510b (j) sheds some light on the basis for the statutory classification. This statute was part of House Bill 1715 enacted in the 1974 Legislative Session (1974 Kan. Sess. Laws, Ch. 203). House Bill 1715 was a result of recommendations by the Special Committee on Employer-Employee Relations, which conducted a general review of Kansas Workmen’s Compensation Law toward the end of updating and improving the statutes. See Report on Kansas Legislative Interim Studies to the 1974 Legislature 3-1-18 (part 1). In the course of its extensive study, the Special Committee gave specific consideration to the recommendations of the President’s National Commission on State Workmen’s Compensation Laws. The provisions of Section 11 (j) of House Bill 1715 (now K. S. A. 1975 Supp. 44-510b [/]) parallel recommendation 3.27 of that Report:
“We recommend that workmen’s compensation death benefits be reduced by the amount of any payments received from Social Security by the deceased worker’s family.” The Report of the National Commission on State Workmen’s Compensation Laws 73 (July, 1972).
The basis for this recommendation is explained in part as follows:
“This offset provision, in conjunction with our other recommendations for death benefits, would provide substantial protection at a lower cost to the employer than if workmen’s compensation benefits were to duplicate Social Security benefits. More important, the offset would add equity to the workmen’s compensation system because two families would not receive different benefits merely because only one was eligible for the Social Security benefits. Moreover, all surviving families would be assured of a continuing income of the same general magnitude, rather than being subject to wide swings in family income resulting from the in-and-out characteristics of Social Security benefits.” Id.
Based on the foregoing, we conclude K. S. A. 1975 Supp. 44-510b (j) does not offend the equal protection guarantee. When the system of wage-loss protection is viewed as a whole, avoiding duplication or overlapping of benefits appears to be a reasonable legislative objective. It may be said that the classification created by the statute has a rational basis, is not arbitrary, and affords like treatment to persons similarly situated.
The appellant next contends her right to receive workmen’s compensation benefits is a vested property right which cannot be taken away without the safeguards of procedural due process. We do not agree.
In Richardson v. Belcher, 404 U. S. 78, 30 L. Ed. 2d 231, 92 S. Ct. 254, the United States Supreme Court determined a person covered by the Social Security Act did not have a vested right in the accrued benefits:
“In our last consideration of a challenge to the constitutionality of a classification created under the Social Security Act, we held that ‘a person covered by the Act has not such a right in benefit payments as would make every defeasance of “accrued” interests violative of the Due Process Clause of the Fifth Amendment.’ Flemming v. Nestor, 363 U. S. 603, 611 (4 L. Ed. 2d 1435, 1444, 80 S. Ct. 1367). The fact that social security benefits are financed in part by taxes on an employee’s wages does not in itself limit the power of Congress to fix the levels of benefits under the Act or the conditions upon which they may be paid. Nor does an expectation of public benefits confer a contractual right to receive the expected amounts. Our decision in Goldberg v. Kelly, 397 U. S. 254 (25 L. Ed. 2d 287, 90 S. Ct. 1011), upon which the District Court relied, held that as a matter of procedural due process the interest of a welfare recipient in the continued payment of benefits is sufficiently fundamental to prohibit the termination of those benefits without a prior evidentiary hearing. But there is no controversy over procedure in the present case, and the analogy drawn in Goldberg between social welfare and ‘property,’ 397 U. S., at 262 n. 8 [(25 L. Ed. 2d at 295)], cannot be stretched to impose a constitutional limitation on the power of Congress to make substantive changes in the law of entitlement to public benefits.” Id. at 80-81.
We think the nature of workmen’s compensation benefits is substantially the same as the nature of social security benefits. Richardson v. Belcher, supra, characterized social security benefits as “public benefits.” Professor Larson views workmen’s compensation benefits as also being of the nature of public benefits — another unit in an overall system of wage-loss protection. See, 4 A. Larson, The Law of Workmen’s Compensation, Secs. 97.00, 97.32 n. 24 (1976). “Both Social Security and Workmen’s Compensation are social welfare legislation.” Lofty v. Richardson, 440 F.2d 1144, 1151 (6th Cir. 1971).
A distinction can be made between social security and workmen’s compensation benefits. The liability of an employer to an injured or deceased employee arises out of the contract between them; the terms of the workmen’s compensation statute are embodied in the contract. The substantive rights between the parties are determined by the law in effect on the date of the injury. See, Lyon v. Wilson, 201 Kan. 768, 443 P.2d 314. However, the rights under the contract vest when the cause of action accrues, and the cause of action accrues on the date of injury or death. Id.
Prior to the date of injury or death, the right to workmen’s compensation benefits is substantially the same as the right to social security benefits. Before the cause of action accrues, the expectation of workmen’s compensation benefits does not amount to a vested property right which cannot be taken away without a prior notice and hearing. In the case at bar, a set-off provision became effective July 1, 1974; the cause of action accrued on October 29, 1974. The appellant never had a vested right to benefits not allowed by the set-off provision.
The foregoing conclusion does not mean the legislature is subject to no constitutional restraint in modifying the Workmen’s Compensation Act. We think the due process clause protects the recipient of workmen’s compensation benefits from arbitrary governmental action as surely as it protects the interests of an employee covered by the Social Security Act from such arbitrary action. Flemming v. Nestor, 363 U.S. 603, 4 L. Ed. 2d 1435, 80 S. Ct. 1367.
The Workmen’s Compensation Act is the appellant’s exclusive remedy for the death of her husband. K.S.A. 44-501. The appellant asserts that but for the Workmen’s Compensation Act she would have a cause of action for wrongful death. Through application of the set-off provision, she not only loses her cause of action, but also loses her right to compensation under her exclusive remedy. This, she contends, is a denial of due process.
Protection from arbitrary governmental action is the essence of due process. 16 Am. Jur. 2d Constitutional Law, Sec. 550 (1964). In Richardson v. Belcher, supra, it was said:
“. . . If the goals sought are legitimate, and the classification adopted is rationally related to the achievement of those goals, then the action of Congress is not so arbitrary as to violate the Due Process Clause of the Fifth Amendment.” (404 U. S. at 84)
As we noted in discussing the appellant’s equal protection argument, a desire to avoid duplication of payment of public benefits seems a permissible legislative objective. The set-off provision seems rationally related to the achievement of this goal. We cannot say K.S.A. 1975 Supp. 44-510b (J) manifests a patently arbitrary classification lacking in rational justification so as to violate the due process clause.
The appellant next contends the Legislature’s passage of K.S.A. 1975 Supp. 44-510b (j) abrogated the deceased’s contractual rights in violation of Article I, Section 10, of the United States Constitution. We disagree.
Article I, Section 10, of the United States Constitution provides that no state shall pass any law impairing the obligation of contracts. This constitutional prohibition applies only to laws enacted after the making of the contract.
“. . . The obligation of a contract cannot properly be said to be impaired by a statute in force when the contract was made . . .” 16 Am. Jur. 2d Constitutional Law, Sec. 440, at 787.
“. . . [Tjhe legislature has the power to take away by statute that which has been given by statute except when to do so would obviously amount to the impairment of a vested right. The recall of such a privilege is not an impairment of the obligation of contracts.” Id. Sec. 443, at 792.
The terms of the workmen’s compensation statute are embodied in the contract of employment between the employer and employee. The substantive rights between the parties are determined by the law in effect on the date of the injury. Rights under the contract vest when the cause of action accrues; the cause of action accrues on the date of injury or death. Lyon v. Wilson, supra. Changes made in the workmen’s compensation law prior to the date of vesting are not an impairment of contract.
The appellant’s final contention is that the district court erred in failing to assess attorney’s fees against the appellee as required under the provisions of K.S.A. 1975 Supp. 44-536 (h). Again, we conclude the ruling below was not in error.
Sections (a) and (b) of K. S. A. 1975 Supp. 44-536 provide that all attorney’s fees in connection with the initial or original claim for compensation shall be fixed pursuant to a written contract between the attorney and the employee or his dependents, and that the fee with respect to any and all proceedings in connection with any initial or original claim for compensation shall not exceed twenty-five percent of the amount of compensation recovered and paid, in addition to actual expenses incurred. The contract must be filed with the Director; the Director will approve the contract only if it is in accordance with all provisions of 44-536.
Counsel for the appellant has not seen fit to include his contract of employment in the record. The contract was approved by the Director, so he was satisfied it was consistent with all the provisions of 44-536. The appellee’s brief states that the contract between the appellant and her attorney calls for no payment of attorney’s fees should the court uphold the set-off provision under attack as constitutional. This was confirmed at oral argument.
The appellant’s attorney contends he is due an attorney’s fee payable by the appellee under K.S.A. 1975 Supp. 44-536 (h) regardless of the terms of his contract of employment with his client. We do not agree. The contract of employment controls attorney’s fees through the ultimate disposition of the original claim, including appeal to the Supreme Court. Section (h) merely provides an alternate source for payment of attorney’s fees allowable under the contract when the social security set-off provision operates. Section (h) appears to be designed to ensure that attorney’s fees allowable under the contract of employment will not be reduced when the social security set-off provision operates. The section cannot be read to allow the attorney greater fees when the set-off provision applies than would otherwise be allowed under the contract of employment. The Director and the district court did not err in denying the appellant’s request that attorney’s fees be assessed against the appellee.
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The opinion of the court was delivered by
Owsley, J.:
This is a direct appeal from a conviction for aggravated juvenile delinquency, as defined by K.S.A. 21-3611 (1) (J) (now K.S.A. 1976 Supp. 21-3611 [1] [f¡).
Defendant was adjudicated a delinquent child on November 14,1975, by the Phillips County juvenile court and was admitted to the youth center at Topeka on December 9, 1975. He ran away from the facility on January 1,1976. Because of medical problems defendant was transferred to St. Francis Hospital in Topeka on March 9, 1976, for care and treatment. While there he left the facility without permission.
The only issue on appeal is whether defendant was in the custody of a facility or institution, as set forth in K.S.A. 21-3611 (1) (f), when he ran away. The statute states:
“(1) Aggravated juvenile delinquency is any of the following acts committed by any person confined in the state industrial school for boys or in the state industrial school for girls or by any delinquent child or miscreant child, as such terms are defined by K.S.A. 1971 Supp. 38-802, who is confined in any training or rehabilitation facility under the jurisdiction and control of the state department of social welfare:
“(f) Running away or escaping from any of such institutions or facilities after having previously run away or escaped therefrom one or more times.”
The thrust of defendant’s argument is that he was not under the control or jurisdiction of the State Department of Social Welfare after he was placed in St. Francis Hospital; thus, he couldn’t escape.
In United States v. Rudinsky, 439 F.2d 1074 (6th Cir. 1971), a prisoner was confined to a federal treatment center after conviction for mail theft. While there he was placed on a work release program which allowed him to leave the facility during the day and return at night. When he failed to return on time and did not account for his whereabouts, he was hunted, apprehended and convicted for his waywardness. The appellate court turned aside the argument that he was not in custody of prison officials when he disappeared. (See also, State v. Furlong, 110 R.I. 174, 291 A.2d 267 [1972].)
A similar argument was made and rejected in Commonwealth v. Hughes, 364 Mass. 426, 305 N.E.2d 117 (1973), where a prisoner failed to return from a furlough.
It has been held that a prisoner who walked away from a work detail on a dock or a firefighting brigade had escaped even though he was already beyond the physical confines of the correctional facility. (Giles v. United States, 157 F.2d 588 [9th Cir. 1946]; People v. Owens, 236 Cal. App. 2d 403, 46 Cal. Rptr. 91 [1965].)
In Tucker v. United States, 251 F.2d 794 (9th Cir. 1958), a federal prisoner was being held in a Los Angeles jail awaiting appearance in another matter. While in the jail the prisoner became ill and had to be transferred to a private hospital for treatment. While he was being wheeled to an examination room the prisoner leaped from his gurney and escaped. On appeal defendant argued he was not in “custody” when he left; therefore, he could not be guilty of escape. The court declared his argument to be “so outlandish as to be void of a semblance of merit or common sense.” (Tucker v. United States, supra at 799.)
The common thread which runs through these cases is the idea that custody contemplates an intent on the part of prison officials to exercise actual or constructive control of the prisoner and that in some manner the prisoner’s liberty is restrained. (Jones v. Cunningham, 371 U.S. 236, 242, 9 L.Ed. 2d 285, 83 S.Ct. 373, 92 A.L.R. 2d 675.) There is no requirement that the prisoner be constantly supervised or watched over by prison officials. (United States v. Rudinsky, supra at 1076.) The key factor is that prison officials have not evidenced an intent to abandon or give up their prisoner, leaving him free to go on his way.
We conclude that a boy confined in the youth center, who runs away or escapes the second time, is guilty of aggravated juvenile delinquency. The fact the second escape is from a hospital where he has been placed for medical treatment without any of the youth center personnel in attendance is not a defense to the charge. (See, State v. Doolin, 216 Kan. 291, 532 P.2d 1080; Seibert v. Ferguson, 167 Kan. 128, 205 P.2d 484.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendant-appellant, Fred Green, was convicted of burglary (K.S.A. 21-3715) and theft of property of a value of over $50 (K.S.A. 21-3701).
The facts of the case are not greatly in dispute. On March 12, 1975, the home of Robert Williams in Wyandotte county was burglarized. The unlawful entry took place while Williams and his wife were at work during the daylight hours. A number of items were taken, including a shotgun and a rifle. Both weapons were recovered the same day and were admitted into evidence as exhibits at the trial following their identification by Williams. Williams testified that he had paid $89 for the rifle and $190 for the shotgun. This was the only testimony concerning the value of the stolen items.
In regard to the identity of the burglar, Officer Ken Allen testified that he was patrolling the area at about 9:45 a.m. that morning when he observed two men hiding something in the snow in an area close to where the burglary had occurred. He proceeded to chase them but they split up and he was able to follow only one of the men. This person was later identified by Allen as the defendant Green. Officer Allen eventually lost sight of the defendant and returned to the area where he had first seen the two men. There he discovered hidden in the snow the rifle and shotgun which were later identified by Robert Williams as property stolen from his home. Since there was fresh snow on the ground, Officer Allen was able to follow a set of footprints left by one of the men to the house of the defendant, Fred Green. Allen was informed that the defendant was not at home at the time. He returned the next day for the purpose of arresting defendant Green on a traffic warrant. The defendant opened the door in response to Officer Allen’s knock and the officer immediately recognized Green as one of the men he had observed hiding the items in the snow the day before. The defendant Green was then arrested, charged, and tried for burglary and felony theft. The defendant’s companion was never apprehended or identified.
The only real issue raised at the trial was the identity of the person who burglarized the Williams home. On this appeal the defendant raises three points, all of which involve the court’s instructions. The first point/concerns the trial court’s failure to instruct the jury specifically on the lesser included offense of theft of property of a value of less than $50, which is a Class A misdemeanor. Closely related to this point is the defendant’s second point that the trial court’s instruction defining theft was insufficient, since it did not include the element of value as one of the essential elements of the crime of felony theft. These points may be discussed together. In instructing on Count 2 which charged the defendant with the crime of theft, the trial court used as a pattern PIK Criminal 59.01 as it appears in the original volume and instructed the jury as follows:
“The defendant is charged in two separate counts with the following crimes: :......./■ ■.........
In Count II, the defendant is charged with the crime of theft. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“(a) That Robert Williams was the owner of the property, to-wit: One 20-gauge automatic Sears Shotgun and one .22 automatic Rifle;
“(b) That the defendant obtained or exerted unauthorized control over the property;
“(c) That the defendant intended to deprive Robert Williams permanently of the use and benefit of the property; and
“(d) That this act occurred on or about the I2th day of March, 1975, in Wyandotte County, Kansas.”
It should be noted that the value of the property was not included as one of the elements of the offense in this instruction. However, the verdict form on the charge of theft, patterned after PIK Criminal 68.11, required the jury to determine the value of the property taken. The verdict form pertaining to Count II was as follows:
“Verdict
“We, the jury, find the defendant, Fred Green, guilty of theft as charged in Count II and find the value of the property to be:
“Fifty Dollars or more X
“Less than Fifty Dollars_
“(Place an X on the appropriate line to indicate value)
“/s/ Emmett J. Tuttle, Foreman”
It is the position of the defendant that the trial court committed reversible error because it failed to instruct the jury on the lesser included offense of theft of property of a value under $50 as required by K.S.A. 21-3107 (3). That statute provides that, in cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to. We have concluded that the instruction setting forth the elements of theft coupled with the verdict form used here were sufficient to satisfy the requirements of K.S.A. 21-3107 (3). The record discloses that on voir dire examination and again in his opening statement and closing argument the prosecutor informed the jury that the defendant was charged with the offense of theft of property of a value of over $50. Furthermore it is clear that the value of the property taken in the burglary was not substantially in issue. The victim of the burglary testified that the rifle and shotgun cost $89 and $190 respectively, and both the rifle and shotgun were admitted into evidence before the jury and were available for their examination. The defendant did not cross-examine any witness on this issue, nor did he present any evidence of the value of the stolen firearms to contradict the state’s evidence. The only real issue at the trial was the identity of the burglar-thief. Furthermore defense counsel did not object to the instruction defining theft or to the verdict form, nor did he request another instruction covering the subject.
The procedure which.the'court followed here in instructing on the statutory elements of theft and submitting to the jury in the verdict form the question of the value of the property taken was sufficient to satisfy the requirements of K.SA. 21-3107 (3), although it is a better practice to instruct the jury with respect to the element of value. (State v. Nesmith, 220 Kan. 146, 551 P. 2d 896.) From all the circumstances we have concluded that, since the jury was instructed on all of the statutory elements of theft and was required by the verdict form to determine the value of the property taken, the defendant’s rights were fully protected. The jury could have brought in a verdict for misdemeanor theft had it chosen to do so. The omission of the element of value in the court’s instruction under these circumstances was not so clearly erroneous as to require a reversal in this case.
The final point presented on the appeal is that the trial court erred in instructing the jury on aiding and abetting. The defendant lodged a timely objection to this instruction. The defendant’s contention is that, since he was charged as a principal and there was very little evidence of a second participant, he was denied due process by having the jury consider this alternative theory. Here the evidence showed that Officer Allen saw two men hiding the weapons in the snow and then fleeing. There was a real question whether the defendant was the person who actually entered the Williams home and committed the burglary and theft. This evidence was sufficient to justify the court in instructing on aiding and abetting. It is well established that a person who counsels, aids, or abets in the commission of any offense may be charged, tried, and convicted in the same manner as if he were a principal. (State v. Pierson, 222 Kan. 498, 565 P.2d 270; State v. Smolin, 221 Kan. 149, 557 P.2d 1241.)
The judgment of the district court is affirmed. | [
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Fatzer, C. J.
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Fatzer, C. J.
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal from a conviction of criminal damage to property with a value of moré than $50 and two counts of temporary deprivation of property, contrary to the provisions of K.S.A. 21-3720 and K.S.A. 21-3705, respectively.
The facts pertaining to the questions raised on appeal are not in serious dispute.
In the early morning hours of November 9,1975, officers of the Hiawatha Police Department were alerted of a possible burglary at Town and Country Motors, an automobile dealership located in Hiawatha, Kansas. Upon arriving at the scene, they found a door at Town and Country Motors had been smashed in. There were pieces of broken wood and glass around the door. Upon entering the building, officers found a cutting torch lying by the safe, and the safe appeared to have been tampered with.
The chief of police of the Hiawatha Police Department soon arrived at the scene to investigate the occurrence. While there, Chief Shaver observed a white pickup drive by on two occasions; he noted the driver seemed particularly interested in the activities around Town and Country Motors. The chief left the dealership a short time later in his private car and shortly thereafter found himself behind the white pickup he had seen earlier. Following the pickup as they approached an intersection, the chief noted a patrol car to the left of the intersection and observed the driver of the pickup appear to become nervous about the patrol car. The chief stopped and talked to the officer in the patrol car briefly, and then they both proceeded together. They soon observed the white pickup parked in a parking lot beside the Hiawatha Savings and Loan. They pulled in to investigate.
As the two officers approached the parked pickup, they could see no one inside. Upon drawing closer, they could see the driver had scooted down in the seat. The driver was asked for his driver’s license, and he produced it. He was the defendant, Donald L. Holthaus. The defendant was asked why he was there, and he replied he had stashed some beer earlier and had come back to pick it up. Chief Shaver observed two bottles of beer in the front seat of the pickup which, in his opinion, was a violation of a city ordinance. A sign on the door of the pickup indicated it belonged to the Hiawatha Implement Company, the local John Deere dealer. When asked why he was driving the pickup, the defendant said the security guard at Wilde’s Tool Factory had authorized him to use the vehicle. The defendant further stated he was going to borrow the Moore car, but could not and had been loaned the pickup instead. Chief Shaver thought this sounded a little peculiar and instructed an officer who was there to take the defendant to the police station until such time as they could determine what was going on. The defendant was taken to the police station and placed in the chief’s office.
The chief dispatched an officer to check with the guard at Wilde’s Tool Factory. He returned to report that the guard knew nothing of the defendant or the vehicle that he was driving. Another officer reported that a car parked near Town and Country Motors appeared to have been used to knock down the door. The rear of the car was damaged and had paint and broken glass on it, indicating it had crashed into the door. The car was subsequently identified as belonging to Harry Moore. Another officer stated that he had seen the defendant driving the Moore car earlier in the evening.
With this information, Chief Shaver proceeded to his office, advised the defendant of his rights and placed him under arrest. The defendant stated he understood his rights and signed a statement to that effect.
It should also be noted that an extemporaneous statement was made by the defendant as he was being taken to the police station to the effect, “It was all a mistake, I had just taken the truck for a joy ride.” The State did not attempt to introduce this statement in evidence.
A coat and a pair of shoes were taken from Mr. Holthaus and sent to the KBI lab to determine if any evidence could be found on the clothing which would place Mr. Holthaus near the scene of the burglary.
At trial, a KBI laboratory technician identified the shoes as being a pair examined by him. He ran a microscopic examination of both of the shoes, particularly around the soles, and they were found to be fairly clean. There were small bits of crushed glass and bits and pieces of sand and a small amount of soil on them, and small fragments of glass were present. The glass fragments were too small for comparison.
The shoes were not received in evidence, but the testimony was permitted to stand.
The defendant, Holthaus, was charged with one count of burglary under K.S.A. 21-3715, one count of criminal damage to property with the value of more than $50 under K.S.A. 21-3720 and two counts of temporary deprivation of property under K.S.A. 21-3705. After trial to a jury, the defendant was found guilty of one count of criminal destruction of property of a value of more than $50 and guilty on two counts of temporary deprivation of property. He was acquitted on the charge of burglary. The defendant has appealed.
The appellant’s entire claim of error is based on the contention the district court erred in failing to suppress evidence which was obtained from the appellant following his arrest without a warrant and without reasonable grounds to believe he had committed a crime.
Although the appellant’s counsel has labored diligently, we are unable to find merit in the contention.
In State v. Boone, 220 Kan. 758, 556 P. 2d 864, we held in paragraph three of the syllabus:
“Under appropriate circumstances, a police officer may approach and stop a person in an appropriate manner for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.”
We also stated at page 764 of the opinion in Boone, supra:
“The appellant contends that when the officers confronted him with guns drawn, his freedom to leave was restrained and he was under arrest. Since at that moment the officers had only a reasonable suspicion of his involvement in a crime, but not probable cause to arrest, the appellant asserts his arrest was illegal and all fruits of the subsequent search tainted. We do not agree.
“When a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person. City of Garden City v. Mesa, [215 Kan. 674, 527 P.2d 1036 ]. There can be a ‘seizure’ of a person in the Fourth Amendment sense even where there is no formal arrest. Terry v. Ohio, [392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 ].
“ ‘Arrest’ as defined in the Kansas Code of Criminal Procedure contemplates more than the temporary restraint of a person by a law enforcement officer. Rather, it is the restraint of a person in order that he or she may be forthcoming to answer for the commission of a crime. See K.S.A. 22-2202 (3) (1975 Supp.) and K.S.A. 22-2202 (7) (1975 Supp.).”
There is no claim made by the State that when the chief of police sent the appellant to the police station there was probable cause for arrest. He was simply being detained until his story of how he came in possession of the truck could be checked out. When his story was proved untrue, he was arrested. At that time the arresting officer had the information heretofore set out, including the fact that the appellant had no authority to drive the truck.
We conclude the facts and circumstances known to the arresting officer were sufficient to warrant a man of reasonable caution to believe that an offense had been committed by the appellant.
We refrain from considering matters of evidence involved in the motion to suppress which were never submitted to the trier of fact and could not have in any way affected the verdict.
The conviction is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
Defendant-appellant, David L. Mims, appeals from convictions by a jury of aggravated battery (K. S. A. 21-3414) and attempted aggravated robbery (K. S. A. 21-3301 and 21-3427).
The state’s evidence disclosed that on December 6, 1974, at approximately 11 p.m., defendant entered a tavern known as Harry’s Place in Kansas City, demanded money and shot the bartender, David Harris, in the face at close range with a handgun. Defendant’s first trial ended in a mistrial resulting from a hung jury. At his second trial defendant was convicted on both counts charged in the information and thereafter perfected this appeal.
For his first point on appeal defendant claims error in the denial of his motion for a mistrial based on a statement made by Detective Richard Delich during his direct examination as a Witness for the state in its case in chief. Detective Delich arrived at the scene shortly after the shooting. When asked concerning his investigation, Delich testified as follows:
“Mr. Miller: As a result of your investigation at the scene, who or what did you begin looking for in connection with the shooting?
“Mr. Delich: We began looking for an orange Volkswagen.
“Mr. Miller: Did you have anybody in mind at that time?
“Mr. Delich: I did.
“Mr. Miller: And who was that?
“Mr. Delich: Pertaining to some time before this incident, we had several occasions of holdups where an orange Volkswagen was used. I was informed by
At this point defendant’s counsel approached the bench and requested a mistrial for the reason the detective’s reference to the orange Volkswagen was an attempt to link defendant with several unsolved crimes. At the conference before the bench, the prosecutor stated that he was surprised by the detective’s unsolicited statement. The court overruled defendant’s motion, struck the objectionable testimony and admonished the jury to disregard it.
In his brief on appeal defendant argues that the fact evidence was introduced by mistake does not cure the defect and further that it was not cured by the court’s admonition to the jury. We cannot agree with defendant’s position. It is clear from the record the objectionable evidence came as an inadvertent statement of a witness and was an unforeseeable and unresponsive answer to a proper question. The occurrence here is almost identical with that occurring in State v. Mitchell, 220 Kan. 700, 556 P. 2d 874, wherein Detective Rainey, in testifying for the state, inadvertently referred to a prior arrest of defendant for an unrelated offense. In disposing of the issue in Mitchell we said:
“If any error was committed by Detective Rainey’s remark, we hold the unsolicited and unresponsive remark constituted harmless error under the circumstances. (State v. Robinson, 219 Kan. 218, 547 P. 2d 335; State v. Bradford, 219 Kan. 336, 548 P. 2d 812; and State v. Childs, 198 Kan. 4, 11, 422 P. 2d 898.). These cases dealt with an unforeseeable and unresponsive answer to a proper question. The cases recognize it is impossible for the court in advance to exclude an improper answer to a proper question. Therefore, the cases seem to turn on whether a limiting instruction was given and the degree of prejudice. In the case at bar any possible prejudice to the appellant was cured by the court’s admonition to the jury. (State v. Bradford, supra at 338; State v. Holsey, 204 Kan. 407, 464 P. 2d 12.)” (p. 703.)
In the case at bar Detective Delich’s statement was inadvertent. Any possible prejudice to the defendant was cured by the court’s admonition to the jury.
Defendant’s next contention concerns the prosecutor’s comment on the fact that defendant failed to call more witnesses in support of his alibi defense. Defendant testified that on the night of the crime he was in the company of a number of friends and relatives. However, defendant caused no subpoenas to be served to compel the attendance of these alibi witnesses and, with the exception of his wife, had made no attempt to contact them. Under these circumstances the prosecution was not outside- the bounds of fair comment in pointing out to the jury that none of these persons had been called to the stand by defendant.
A similar question was presented in State v. Wilkins, 215 Kan. 145, 523 P. 2d 728, wherein we stated:
“When the theory of the defense is based upon facts within the personal knowledge of a particular person or persons available as witnesses and no attempt to secure their testimony is made the failure to produce available evidence may give rise to an inference that it would be adverse to the party who could have produced it. . . .” (pp. 150-151.)
See, also, State v. Wilson & Wentworth, 221 Kan. 359, 559 P. 2d 347; State v. Robinson, 219 Kan. 218, 547 P. 2d 335; and State v. Austin, 209 Kan. 4, 495 P. 2d 960.
For his third point on appeal defendant claims the trial court erred in refusing to permit him to read to the jury the transcript testimony of his witness, Damon Harlan, given at defendant’s first trial. Harlan’s testimony at the first trial had been offered in support of defendant’s alibi defense. “Unavailable as a witness” is defined in K. S. A. 60-459 (g). Under the statute, the controlling test of unavailability established by our several cases dealing with the subject is the so-called reasonable diligence rule. In the recent case of State v. Steward, 219 Kan. 256, 547 P. 2d 773, we held:
“The inability of a witness to appear must be established by a ruling of the trial court or by agreement of counsel. The sufficiency of proof of unavailability is a question for the trial court within its discretion and its ruling will not be disturbed unless an abuse of discretion is shown.” (Syl. 6.)
In the case at bar defendant informed the trial court that prior to the trial he had left messages for the witness, stating that he wished to have the witness testify again and that he was under the impression the witness would appear. Defendant further stated that it was not until the time had come for Mr. Harlan to testify that he became aware that the witness would not attend. Defendant concedes that no subpoena was ever served upon the witness. In support of his position defendant cites State v. Ford, 210 Kan. 491, 502 P. 2d 786; and State v. Bey, 217 Kan. 251, 535 P. 2d 881. However, neither case supports defendant on the showing made here. In both cases subpoenas for the attendance of the witnesses in question had been issued. In Ford there was evidence indicating that the witness had knowingly evaded the process of service. In Bey there was evidence that the witness had actually moved to another county without informing the district attorney who had attempted to locate the witness in the county where he had moved through the county officials and relatives of the witness, all of whom failed to locate the witness.
Whether the defendant waited until the day of trial before attempting to ascertain the whereabouts of Harlan or whether defendant realized long before trial there might be. a problem in securing his attendance and then neglected to use compulsory process, either case falls short of reasonable diligence. Applying the test stated in State v. Steward, supra, we cannot say the trial court abused its discretion in finding that defendant’s efforts to secure the attendance of Harlan did not rise to the level of reasonable diligence.
Defendant next contends the court erred in continuing with the trial after it was brought to the court’s attention that one of the jurors was acquainted with a witness for the state. We are in formed by defendant’s brief that this relationship consisted merely of the fact that the witness had worked with the juror as a coemployee of an aircraft company some fifteen years prior to the trial.
If it be assumed the customary and usual voir dire questions were asked concerning each juror’s acquaintance with the parties, witnesses, and counsel the failure of a juror to recall a past relationship with a witness until after he testified would not mandate the declaration of a mistrial. In this connection the following statement appears in State v. Collins, 215 Kan. 789, 528 P. 2d 1221:
. . Under K. S. A. 1973 Supp. 22-3423 the trial court ‘may’ order a mistrial if false statements of a juror on voir dire prevent a fair trial. The determination is left to the discretion of the trial court and failure to grant a mistrial due to misstatements of a juror on voir dire will not constitute reversible error unless an abuse of discretion is shown. . . (pp. 790-791.)
In such a situation it is the defendant’s burden to affirmatively demonstrate that error was committed and that it was prejudicial to his rights. (State v. Freeman, 216 Kan. 653, 533 P. 2d 1236.) Defendant has made no showing that his remote association had any effect on the juror’s qualifications. No abuse of discretion is shown and the contention must be rejected.
Defendant’s next contention concerns an exchange of notes between the court and jury in the absence of counsel. During the jury’s deliberations, and while the defendant and his counsel were absent from the court, the foreman sent a note to the judge stating they were unable to reach a decision. Without consulting defendant’s counsel, the trial court sent a note back instructing the jury, “Continue to consider your verdict.” All three cases cited by defendant (State v. Troy, 215 Kan. 369, 524 P. 2d 1121; State v. Boyd, 206 Kan. 597, 481 P. 2d 1015; and Jackson v. State, 204 Kan. 841, 466 P. 2d 305) deal with the coercion “Allen type” instruction which has been disapproved by this court. The instruction in question contained none of the coercive attributes apparent on the face of an “Allen type” instruction. Thus, the cases relied upon by defendant are inapposite to this appeal. However, even assuming error in the giving of this instruction, it does not approach prejudicial proportions in a case such as the one at bar. In view of the fact that a number of eyewitnesses identified defendant as the man who committed these crimes, K.S.A. 60-2105 requires this court to disregard such irregularities which do not affect the substantial right of the accused.
The final two points raised in the statement of points on appeal are not briefed by defendant. Unless argued orally, they must be deemed abandoned. (State, ex rel., v. Unified School District, 218 Kan. 47, 542 P. 2d 664; and Basker v. State, 202 Kan. 177, 446 P. 2d 780.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
Major F. White, serving a life sentence for first-degree murder imposed upon him in 1970 by the district court of Harvey County, filed a motion in 1976 to vacate his sentence under K.S.A. 60-1507. The trial court denied relief and petitioner appeals.
He contends that the sentence should be vacated because the sentencing court erred: (1) in failing to comply with K.S.A. 22-3210; and (2) in failing to hear evidence before imposing sentence as required by K.S.A. 21-4501 (a).
Petitioner did not take a direct appeal from his conviction, and this is the first time this matter has been before us. The state neither briefed nor argued this appeal.
Briefly, the facts disclosed by the record are these: White appeared before the district court on September 18, 1970, with retained counsel, Charles S. Scott, of Topeka. The information charged White with the premeditated killing of Charmayne Claudia Griffin during the perpetration of a robbery on January 29, 1970. It also charged him with three other offenses, one of which appears to have been aggravated robbery. The information is not included in the record before us.
The trial court had previously appointed a commission to examine White to determine his mental competency. The commission’s report had been received and a copy had been furnished counsel. There was no challenge to the report and the court found the defendant competent to stand trial.
Mr. Scott announced that “we would waive a formal reading of the information and enter a plea of not guilty, and . . . we have a stipulation that will be submitted to the Court ... I think Mr. Sizemore has a motion to make.”
County Attorney Sizemore moved the court to strike counts 2, 3 and 4 of the information, and that motion was sustained. The court then had count 1 of the information read, and White entered a plea of not guilty and waived a jury trial. The county attorney then presented the written stipulation, signed by the defendant, his attorney, and the county attorney, which was read into the record. The stipulation is as follows:
“STIPULATION OF EVIDENCE
“NOW ON THIS 18th day of September, 1970, the following Stipulation of Evidence is offered in the above captioned matter, such Stipulation being presented in its present form to the Court with copies to the defendant, Major F. White, a/k/a Major Bell, and to his attorney, Charles S. Scott, and to the State of Kansas and said Stipulation also being read into the record. At the time of hearing the defendant, Major F. White, being present along with his attorney of record, Charles S. Scott, the defendant having been advised of his constitutional and statutory rights and having waived his right to trial by jury and having elected to try this matter to the Court forthwith.
“It is hereby stipulated by and between the parties hereto that the evidence of the State of Kansas, Case No. 2785, State of Kansas vs. Major F. White, a/k/a Major Bell, is as follows:
“That on or about the 29th day of January, 1970, within the City of Newton and County of Harvey, State of Kansas, Major F. White, a/k/a Major Bell, being one and the same as the defendant here appearing in court, did, by use of an unknown make .22 caliber pistol, shoot and kill one Charmayne Claudia Griffin.
“The evidence would further show that the defendant, Major F. White, a/k/a Major Bell, fired two bullets, at close range, into the head of Charmayne Claudia Griffin, firing through a pillow, which he had placed over the head of the victim.
“The evidence would further show, through the testimony of one James Tate, that the victim did not die until the second shot was fired and that, in fact, she moved her head after the first shot was fired. The coroner’s testimony would also tend to show that the victim died as a result of the second wound, in that, upon the basis of his medical expertise, he is able to show that the second shot passed upward through the chin and through the base of the skull into the brain.
“The evidence would further show that there was an eyewitness to the shooting, which witness, James Tate, was present at all times and was, in fact, held at gun and knife point prior to, during, and after the shooting occurred and that the said witness, James Tate, was the resident of the property wherein such shooting occurred and that he was robbed of a small amount of money and some beer at the approximate time of the shooting and that the shooting was incident thereto.
“The evidence would also show that neither the witness, James Tate, nor the Victim, Charmayne Claudia Griffin, offered any resistance to Mr. White or his accomplice and that neither Mr. Tate or the deceased possessed any weapons. It is also stipulated that there would be no evidence justifying the acts of the defendant, nor any evidence of self defense.
“It is stipulated hereby that any evidence of a robbery, or offenses other than the murder, is not intended by the State to include these offenses to be considered by the Court at this time, but merely to show just cause for the invocation of the felony murder rule.
“It is stipulated that all of the elements of the crime of murder in the first degree would be proved through testimony and physical evidence at the disposal of the State if offered in the formal manner.
“Witnesses available are as follows:
“James Tate.......Eye Witness
“Chief of Police, Charles Patterson . . Investigatory Officer
“Captain Paul Hastings . . . Investigatory Officer
“Police Officers:
Sgt. Hanke
Officer Anderson
Officer Hind
Deputy Sheriff Kleiman
“Carl O. Tompkins . . . Coroner
“F.B.I. Crime Laboratory expert in Blood Analysis.
“Physical evidence would include:
“1. Photographs taken by Chief Patterson of the scene of the offense.
“2. Pillow and bedding found at the scene.
“3. A sales slip found at the scene of the offense purportedly signed by ‘Major White’ and dated as of the day before the occurrence.
“It is also stipulated that these acts occurred in Harvey County, thus giving this court jurisdiction and that such offenses took place prior to the enactment of the new Criminal Code.
“In summary it is stipulated by and between the parties that each and every element of the offense of first degree murder, as contained in K.S.A. 21-401, is considered proved by this Stipulation and that the Court in its deliberation on this matter may consider these stipulations and the statements contained therein as evidence.
“THE COURT: Mr. Scott and Mr. White, you have heard a reading of the Stipulation and I note that you had a copy before you, and also Mr. White. The original before the Court bears the signatures as mentioned by the County Attorney, Mr. Sizemore. Is this all correct?
“MR. SCOTT: That is correct, Your Honor.
“THE COURT: Is this correct, Mr. White?
“THE DEFENDANT: Yes.”
The court then accepted the stipulation into evidence and made findings as set forth therein. Counsel and the defendant indicated that there was no further evidence and that they knew of no legal cause why judgment should not be rendered. The court addressed the defendant individually and asked if he wished to make a statement on his own behalf or present any evidence in mitigation of punishment. Thereafter, the court imposed sentence and advised the defendant of his right to appeal, and his right to have an attorney appointed for him in the event he did not have funds to hire one. Throughout the proceeding the court addressed the defendant at various times and offered him opportunities to speak if he wished to do so.
The matters which petitioner here raises may properly be classified as “trial errors.” Our rule 183 (220 Kan. LXVIIl), relating to proceedings under K.S.A. 60-1507 provides in part that:
. . Mere trial erors are to be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided there were exceptional circumstances excusing the failure to appeal.” (183 [c] [3].)
Exceptional circumstances are most often found when it is shown that there have been intervening changes in substantive or procedural law, and that the earlier law or procedure prevented petitioner from being aware of or raising in an earlier proceeding the points now presented. Dunlap v. State, 221 Kan. 268, 559 P.2d 788. For a thorough discussion of our exceptional circumstances rule, see Meyer and Yackle, Collateral Challenges to Criminal Convictions, 21 Kan. Law Rev. 259, 306.
Petitioner here cites no such changes. He simply states that “at the time I was unaware I could make these arguments on appeal,” and that these points were not previously presented because of the “unavailability of legal assistance.” Neither of these is a reason which might be classified as an exceptional circumstance; however, in view of the fact that petitioner did not take a direct appeal, we conclude that the ends of justice will best be served by reaching the merits of his motion.
We turn first to his claim that the sentencing court erred in not proceeding under K.S.A. 22-3210. The gist of this contention is that his plea of not guilty, followed by the stipulation, in effect constituted the entry of a plea of guilty and thus the court was required to inform him of the consequences of his “plea” and of the maximum penalty provided by law which might be imposed upon him, and that the court should have determined that the “plea” was made voluntarily with understanding of the nature of the charge and the consequences of the “plea”; and that the court should have determined that there was a factual basis for the “plea.”
Before a plea of guilty may be accepted, K.S.A. 22-3210 requires the trial court to inform the defendant of the consequences of a plea of guilty and the maximum penalty provided by law which may be imposed upon the acceptance of such a plea, and to address the defendant personally and determine that the guilty plea is made voluntarily and with understanding of the nature of the charge and the consequences of the plea. The court must also determine that there is a factual basis for the plea. Basically, this procedure follows rule 11, F.R. Crim. P., compliance with which is held to be mandatory upon the federal courts in McCarthy v. United States, 394 U.S. 459, 22 L.Ed. 2d 418, 89 S.Ct. 1166, and which procedure is fastened upon the state courts as a requirement of due process. Boykin v. Alabama, 395 U.S. 238, 23 L.Ed. 2d 274, 89 S.Ct. 1709. The enactment of K.S.A. 22-3210 followed Boykin. See Widener v. State, 210 Kan. 234, 237, 238, 499 P.2d 1123.
We have no quarrel with the rule but we conclude that it is inapplicable here. White entered a plea of not guilty, and thus he retained all of the rights of such a plea, including the right to appeal upon conviction. The duty of the trial court to advise him of the effects of a possible guilty plea terminated upon his entry of a plea of not guilty.
The mere fact that White stipulated as to the evidence did not amount to the entry of a plea of guilty. Stipulations between trial counsel — even without’ the written consent of the parties — are commonplace, and are binding upon the parties represented. Stipulations as to the evidence in criminal cases, waiving jury trial and consenting to trial to the court, are permissible under our statutes. State v. Kinnell, 197 Kan. 456, 419 P.2d 870; and see State v. Teeslink, 177 Kan. 268, 278 P.2d 591.
We know of no case or statute holding that a trial court must interrogate and advise a defendant, who is represented by counsel, before accepting and approving stipulations as to the evidence, and we are not prepared to initiate such a requirement. The stipulation in this case was in writing. It was prepared and was signed by the defendant and his attorney prior to its presentation to the trial court. It was read aloud to the defendant in the presence of his attorney, Mr. Charles C. Scott, a capable and experienced practitioner of this bar. If petitioner had any objec tion to that stipulation, the time for complaint was then, not now.
We note that even now, petitioner is not contending that he misunderstood the stipulation, or that he had insufficient time to discuss it with counsel, or that he was unaware of its effect, or that he entered into it other than freely, understandingly and voluntarily. He does not contend that he was uninformed, overreached, coerced, defrauded, or victimized in any way. We conclude that the trial court did not err in approving the stipulation and that K.S.A. 22-3210 has no application here.
Finally, petitioner contends that the trial court erred in failing to hear evidence before imposing sentence as required by K.S.A. 21-4501. On the contrary, the court had before it the stipulated evidence, which constituted all of the evidence in the case, and which petitioner stipulated was sufficient to establish each and all of the elements of murder in the first degree. There is no merit in this contention.
We agree with the trial court that the record in this case conclusively shows that petitioner is entitled to no relief. The judgment is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This action was brought by the insurance company to cancel a life insurance policy on the ground of fraud. Plaintiff alleged this particular policy was issued and delivered without a medical examination and on the strength of the statements contained in the application proper and those contained in a health certificate executed by the applicant. Defendant, beneficiary and wife of the deceased, filed an answer and cross petition, in Which she denied the fraud and sought recovery for $2,000, the face value of the, policy, and interest. She prevailed, and plaintiff appeals. ,
A word concerning the practice of the plaintiff insurance company as to the issuance of policies similar to' the instant one, without a previous medical examination, may be helpful. The plaintiff company had adopted a plan of issuing additional insurance policies upon the life of its policyholders whose existing policies were in good standing and whose previous records showed a good medical history, without requiring an additional medical examination, where the new application of the insured and the new health certificate, signed by the applicant, disclosed certain desired information, which information or representations formed the basis for the new contract of insurance.
The deceased had previously, in 1921, been insured by the plaintiff company in a $5,000 policy, which was in good standing. Plaintiff elected the insured as a proper prospect for such insurance. Plaintiff’s petition alleged, and it contends:
“VIII. The plaintiff issued its contract of insurance upon the life of Joseph J. Boyle in reliance upon the statements and representations made by the said Boyle, now deceased, with particular reference as to the sound and good health of said Boyle. In truth and in fact the said Boyle was not in good and sound health at the time of making the application and the issuance and delivery of the policy, and said statements contained in the application and in the health certificate aforesaid were false and untrue and known by the said Boyle to be false and untrue. Had the plaintiff known that said statements were false and untrue and that said Boyle was not in good health, it would not have issued its policy of insurance'.
“Plaintiff issued its contract of insurance upon the life of Joseph J. Boyle in reliance upon the statements and representations made by the said Boyle in his health certificate, and with particular reference to his sound and good health and the fact that he had not undergone medical treatment since the date of his last medical examination upon which a policy of insurance had been issued. Li truth and in fact Boyle was not in good health at the time of the issuance and delivery of the policy and at the time he made the health certificate, and in truth and in fact he had previously undergone medical treatment at the date of his last medical examination upon which a policy of insurance had been issued on his life, which fact was known to him at the time he signed the declaration of health, and said statement and representation with reference thereto as contained in the health certificate was false and untrue' and known by the said Boyle to be false and untrue. Had the plaintiff known of the falsity and untruthfulness of the representations contained in the health certificate, and particularly with reference to previous medical treatment and the condition of good health, it would not have issued its policy of insurance.”
“XI. On account of the false and fraudulent representations made by the deceased Boyle and relied upon by plaintiff in issuing its contract of insurance and because it has no adequate remedy at law, the plaintiff is entitled to have said contract canceled and set aside.”
“XII. On or about April 2, 1934, the defendant, Jennie A. Boyle, furnished written proof of death to the plaintiff company, which proof of death disclosed that Joseph J. Boyle, the deceased policyholder, was not in sound and good health at the' time of the making of said application for insurance in the plaintiff company, or on July 26, 1933, when he executed the health certificate and accepted delivery of the policy in controversy. Said proofs of death also disclosed that the said Boyle had undergone medical and surgical treatment prior to the issuance of said policy and prior to the execution of said health certificate on July 26, 1933, and subsequent to the date of his last medical examination, which was on November 20, 1921. The plaintiff company had no previous knowledge of the actual condition of deceased’s health and the fact that he had undergone medical treatment and the falsity of his statements and representations as made in the application and health certificate, and the fraud of the deceased was first discovered when the proof of death was furnished to it as aforesaid.”
The policy was issued June 17,1933. The insured died March 25, 1934. The present action was filed July 2,1934, and hence was filed within the two-year contestable period provided in the policy. The action was tried without a jury. The complaints pertain to orders overruling plaintiff’s motion to set aside findings of fact and conclu sions of law, and the overruling of the motion for a new trial. The findings of fact made were:
“I. Joseph J. Boyle, deceased, was insured in the plaintiff company under policy No. 1883, in the face amount of five thousand (85,000) dollars, the policy being dated the 30th of November, 1921, registered in the office of the insurance department of the state of Kansas on December 16, 1921, payable on its face to his wife, Jennie Boyle, at which time Boyle gave his age as thirty-five years. The application is dated the same date of the policy, and the medical examination is attached as part two of the policy, dated the same date of the policy, and recites, among other things, that he had had a right shoulder broken in a wreck in 1909; that he had had typhoid fever in 1900, and that his father had died of apoplexy at the age of sixty-nine. This policy was kept in force until Boyle’s death on March 26, 1934, and upon proof of death submitted, the plaintiff company paid the full face of that policy to Boyle’s mother, Julia Boyle, the then beneficiary.
“II. On the 3d of June, 1933, an application was executed by Joseph J. Boyle for an additional contract of insurance on his life in the sum of two thousand (82,000) dollars, and at the same time, on the 3d of June, 1933, a premium note or loan agreement was signed by the said Joseph J. Boyle and delivered to the company’s agent, E. J. Newbegin, which loan agreement provided in substance that the National Reserve Life Insurance Company of Topeka, Kan., on the 3d of June, 1933, had made a loan to Joseph J. Boyle of sixty-five dollars and twenty-six cents ($65.26) on policy No. 1883, and the said Boyle assigned the benefits of that policy, No. 1883, to secure the payment of this loan of sixty-five dollars and twenty-six cents ($65.26). This loan agreement is dated the' 3d of June, 1933, and signed by Joseph J. Boyle and witnessed and delivered in the presence of E. J. Newbegin, as of that date. On the back of this loan agreement appears in writing, among other things, ‘Paid to 6-17-34.’
“Contract of insurance No. 20775, for two thousand ($2,000) dollars, was issued to Joseph J. Boyle, of Osawatomie, Kan., payable to his mother, Julia Boyle, with the right to change beneficiary. The policy was issued the 17th of June, 1933, registered in the insurance department on the said date and delivered as of the same date at Osawatomie, Kan., to the said Joseph J. Boyle, at which time and on which date the said E. J. Newbegin changed the typewritten figure ‘3,’ date of the application, to the 17th of June, 1933, to correspond with the date of the issuance of the policy, the registration thereof, in the office of the insurance department and the delivery of policy to Joseph J. Boyle, and at said time and on June 17, 1933, the health certificate bearing date of July 26, 1933, was not a part of said contract. That the contract of insurance, No. 20775, was and is in full force and effect as, of and from the date of June 17, 1933.
“That said policy provided on its face, among other things, ‘the benefits and provisions printed or written bjr the company on the following pages are a part of this policy as fully as if they were recited at length over signatures hereto affixed.’ Part of the application in printed form on back of the policy was not filled out at the time of the execution and delivery of the policy. That part one of the application attached to said contract of insurance, the subject of this lawsuit, provided, among other things:
“‘I hereby declare and agree: 1. That the foregoing statements, together with the declaration and my statements and answers, and also those made in part 2 hereto, if required, shall constitute my application for insurance on applicant. The statements and answers are full, complete and true and are offered by me as the basis for the proposed contract for insurance. 2. That, except as otherwise stated in the form of receipt hereto attached, there shall be no contract of insurance until a policy shall have been issued and delivered to me and the first premium paid thereon during applicant’s lifetime and continued good health, and-that such delivery and payments shall constitute acceptance of the policy as issued.’
“.Section ten of the contract of insurance provided:
“ ‘This policy, and the application h&refbr constitute the entire contract between the parties hereto. All statements made by the insured as the basis for the contract shall, in the absence of fraud, be deemed ^representations and not. warranties, and no such statements shall avoid this policy or be used in defense to a claim hereunder, unless it be contained in the written application herefor and unless a copy of the application be endorsed hereon or attached hereto when this policy is issued.’
“Section eighteen of the contract of insurance provided:
“ ‘This policy is issued in consideration of the payment in advance' of sixty-. five dollars and twenty-six cents, and in further consideration of the payment in advance of a like amount on or before the seventeenth day of June, nineteen hundred thirty-four, and each year thereafter during the continuance of this policy until death of the insured. Upon payment of the first premium' this policy takes effect as of the seventeenth day of June, nineteen hundred thirty-three.’
“That on July 26, 1933, Joseph J. Boyle executed a health certificate which was received by the National Reserve Life Insurance Company on July 29, 1933, and stated, among other things, first, that applicant has not undergone any medical or surgical treatment since the date of my last statement, and/or medical examination in connection with insurance on the life of Joseph J. Boyle in the National Reserve Life Insurance Company, Topeka, Kan.
“2. That so far as I know or believe applicant now is in sound health.
“3. If, at any time, the foregoing statements shall be found to be untrue in any respect, the company shall 'have the right to declare null, void and of no effect such action as it may have taken upon said application.
“III. Joseph J. Boyle died on March 26, 1934. Proofs of death were submitted and filed with the plaintiff company on or about April 2, 1934’, and said claimant’s statement or proof of death was sworn to by Jennie A. Boyle, the widow of Joseph J. Boyle, insured, under the contract No. 20,775, for two thousand ($2,000) dollars, and disclosed, among other things, in her proof of death that Joseph J. Boyle died of a hemorrhage. That his health first became affected in 1930. The attending physician’s statement indicated that he had attended Joseph J. Boyle in September, 1931, for haemophagir,, chronic constipation and hypertension from 1931 to 1934. Cause of death was hemorrhage from lung, primary hypertension.
“The plaintiff company would not have issued the policy sued on herein to Joseph J. Boyle, deceased, had it known that said Joseph J. Boyle, deceased, was not in good health, either on June 17, 1933, or had it known that the said Boyle was, at the time of the delivery of the policy in question, suffering from the diseases as shown by the doctor’s statements contained in the proofs of death, and the plaintiff company issued the contract of insurance in reliance upon the representations, statements and warranties made by the deceased Boyle in his application made of June 17, 1933, and delivered same in reliance upon said application. ' •
“IV. That the proofs of death by Jennie A. Boyle, the then beneficiary, were executed on the form provided by the company and duly and properly made and executed and received by the company.
“V. The deceased, Joseph J. Boyle, died of an internal hemorrhage near the arch of the aorta. An aneurysm is a weakened condition of the articular tree, something comparable to a sand blister on an innertube of an automobile tire. The constant pumping of the blood and the pressure- injures this weakened vessel until it ruptures. That is what happened to Boyle, resulting in a stroke, so called, causing his death. This may be caused from a blow or develop gradually, and the deceased Boyle was not conscious of this condition and the plaintiff has failed to prove by the evidence that deceased Boyle was conscious of this fact or misrepresented any conditions of his health in the health certificate executed on the 26th of July, 1933.
“VI. The plaintiff rested its case without having proven a surrender of the premium note or a tender of the same to Jennie Boyle, the defendant herein.
“VII. That the original beneficiary in the policy, No. 20,775, was named Julia Boyle, mother oi the deceased. The name of the beneficiary, howeveT, was agreeably changed by the parties to Jennie A. Boyle, the defendant, wife of Joseph J. Boyle, deceased, before his death. That, by an order of this court, based on stipulation of the parties, all proceedings in this cause were ordered to be entitled, ‘The National Reserve Life Insurance Company, a Corporation, Plaintiff, v. Jennie Boyle Jeffries, Defendant.’
“VIII. The court further finds that the contract of insurance No. 20,775, for two thousand ($2,000) dollars, payable to the defendant on the death of Joseph J. Boyle, was in full force and effect at the date of the death of said Joseph J. Boyle on March 26, 1934, and that due proof has been made by the defendant above named, as provided by the contract.
“IX. The court finds that the plaintiff has failed to prove the fraud alleged in its petition.
“X. The plaintiff has failed to prove that the health certificate was attached to the policy at the time of the issuance and delivery of the same.”
Conclusions of law were made in conformity with these findings. We need not set forth the detailed findings requested by the plaintiff. Their contentions will be fully treated in the course of the opinion.
Appellant contends the trial court erred in finding the health certificate was no part of the contract of insurance. (Finding No. 2.) Appellant also insists that finding No. 5, with reference to the provisions of the health certificate, completely ignores the express representation therein contained that the insured had undergone no medi cal treatment since his last statements and/or medical examination in connection with insurance in this company. Appellant is entirely correct in that respect as to finding No. 5. If, however, the health certificate formed no part of the insurance contract, then that particular objection to finding No. 5 becomes immaterial.
Under the circumstances in the instant case, was the trial court warranted in finding the health certificate was no part of the contract? Appellant insists the application discloses on its face that it was approved on June 1, 1933, subject to a health certificate, and that the health certificate provided that the statements therein contained should constitute an addition to and be a part of the application, and that the policy itself provided that it and the application therefor constituted the entire contract. The trial court, however, found that the health certificate was not attached to the policy on the date it was issued, to wit, June 17,1933. That it was necessary the health certificate should be attached to the policy at the time of its issuance clearly appears from the express terms of paragraph ten of the policy contained in finding of fact No. 2. It is well to note that paragraph of the policy is made mandatory by G. S. 1935, 40-420 (2). That the policy was issued and registered in the office of the state superintendent of insurance on June 17,1933, is conceded. That the health certificate was executed on July 26,1933, is likewise conceded. Obviously it was not attached to the policy on the date the policy was issued.
Appellant further contends the trial court erred in finding the policy was delivered on June 17,1933 (finding No. 2.), and that finding No. 3 concedes the issuance and delivery were on different dates. It insists that according to the uncontradicted testimony of the agent who took the application and delivered the policy, the policy was delivered on July 26, and that the health certificate was attached on that date. We are not permitted to alter the plain language of the statute, which was made a part of the contract and written into the policy. It follows we cannot substitute the word “delivered,” .for the word “issued.” Moreover, the record presents a further barrier to the contention that the health certificate was even attached to and became a part of the policy on its delivery. The beneficiary offered the policy in evidence, without the health certificate being attached thereto, and it was received in evidence, in that condition, without objection by appellant that it did not constitute the entire contract of insurance. Under these various circumstances we cannot disturb the finding that the health certificate was not made a part of the contract.
But what about the other representation of applicant’s good health contained in the application which was attached to the policy when it was issued, and which according to the express terms of the policy constituted a material part of the contract of insurance? The representation as to good health contained therein was likewise expressly alleged to have been fraudulently made. The portion thereof which pertains to the health of the applicant is contained in two statements. They read:
“I hereby declare and agree: 1. That the foregoing statements, together with the declaration and my statements and answers, and also those made in part 2 hereto, if required, shall constitute my application for insurance on applicant. The statements and answers are full, complete and true, and are offered by me as the basis for the proposed contract for insurance.
“2. That, except as otherwise stated in the form of receipt hereto attached, there shall be no contract of insurance until a policy shall have been issued and delivered to me and the first premium paid thereon during applicant’s lifetime and continued good health, and that such delivery and payments shall constitute acceptance of the policy as issued.”
Under the ordinary or usual kind of policy in which a medical examination is required, and which investigation thus becomes the basis on which the policy is issued, the applicant is required to give a history of the previous condition of his health, medical examination, treatment, etc. This information enables the insurer to better investigate the risk. It is these statements to which No. .1 of the quoted portion of the application applies, where a medical examination is had. As previously stated, no medical examination was required of the applicant under this particular kind of policy, in the event he represented his health to be good. The information to which paragraph No. 1 of the application referred, was therefore not required to be supplied in the instant case. The provisions of paragraph No. 2, however, contain a definite and express representation concerning the applicant’s good health. Without making this specific representation the applicant knew he could not obtain the new $2,000 policy without subjecting himself to a medical examination. He made the representation, and on the strength of it, together with the representations contained in the health certificate, the policy was issued without requiring such examination. The fact he also executed a health certificate which contained representations in addition to good health, obviously does not relieve him of the representa tions as to good health contained in portion No. 2 of the application. It appears that provision No. 2, above quoted, has by some courts been held to apply only to a new element of risk, due to a change of physical condition arising after the company’s investigation has been made. Such a restricted construction has not been, adhered to by this court, as being'applicable irrespective of the particular circumstances involved. In the case of Klein v. Farmers and Bankers Life Ins. Co., 132 Kan. 748, 297 Pac. 730, the same contention was made, and the case of Priest: v. Life Insurance Co., 116 Kan. 421, 227 Pac. 538, was cited in support of the contention. This court in a unanimous opinion refused to uphold the contention. The late Chief Justice Johnston, writing the opinion, in no uncertain terms - expressed the views of'this court on the subject as follows:
“An ingenious argument is, presented that he was in as good health a-t the time of the demand as he was when the application was accepted, and that the applicant should be regarded as still in good health unless there has been a change in the condition of his health between the date of his medical examination and the delivery of the,policy. It is true the evidence was that there was no noticeable difference in the' applicant’s health between the ma-king of the application and the refusal to deliver the policy. Reference is made to a statement in Priest v. Insurance Co., 116 Kan. 421, 227 Pac. 538, in which it was said:
“ ‘The effect of a clause that a life insurance policy shall not take effect unless the applicant is in good health at the time of its delivery is to protect the company against a new element of risk through a change in the applicant’s condition arising after the company’s investigation had been made.’ (S'yl. If 5.)
“In that case the policy had been delivered and the premium paid, and it was held that:
“ ‘Where false answers concerning his health were knowingly made by an applicant for life insurance, the fact that the agent through whom the application was made, but who was not authorized to decide whether the policy should be issued, knew of their falsity does not prevent the company from successfully resisting payment on the ground of such fraud.’ (Syl. ft 4.)
“While it is said that the term is one for the protection of the company against a new element of risk, it is not necessarily the only one.” (p. 752.) (Italics inserted.)
While the general rule was correctly stated in the syllabus (paragraph 5) in the Priest case, the opinion clearly indicates it was not intended to apply to a situation where there had been actual misrepresentation concerning a fact of which the applicant was conscious at the time of making the application, and where the insurance company made no investigation of its own. It was there said:
“The policy contained the familiar provision that it should not take effect ‘unless the applicant is in good health at the time of its delivery.' We do not interpret this to mean that no contract of insurance results if the insured at the time he made his application suffered from an ailment of which he was not conscious and which still existed when he received the policy. Where, without misrepresentation on the part of the applicant, an insurance company after due investigation accepts the risk, and a post-mortem examination reveals that the seeds of a fatal disease existed before the acceptance, the clause referred to will not avail to defeat the collection of the policy.” (p. 428.) (Italics inserted.)
The rule announced in the Klein case, that the representation concerning good health does not always apply only to a changed condition which involves a new element of risk, is especially applicable in the instant case. Here no medical examination was made. Where the insurer has actually obtained the information resulting from a medical examination it of course stands in a less favorable position to demand a forfeiture. In Van Ross v. Metropolitan Life Ins. Co., 134 Kan. 479, 7 P. 2d 41, this principle was clearly recognized. It was there stated:
“It has also been held that sound health is a comparative term, and where the insurance company makes a medical examination of the applicant before issuing the policy, as was done in this case, exactions under the forfeiture provision are not so great.” (p. 488.)
In the instant case, however, the issuance of the policy, without a medical examination, depended solely upon the truthfulness concerning the representation as to good health. That representation was known by the insured to be the sole condition upon which he obtained the policy. Had the representation not been made, a medical examination would have been required which would have revealed the fact that the applicant over a period of years had been suffering with, and had been treated for, the identical ailment of which he died within about nine months after he had represented his health to be good. The ailment was hypertension, commonly known as high blood pressure. The matter misrepresented having actually contributed to the contingency or event on which the policy was to become due and payable, the misrepresentation was a material one and rendered the policy void. (G. S. 1935, 40-418; National Reserve Life Ins. Co. v. Humphreys, 145 Kan. 373, 376, 65 P. 2d 296, and cases there cited.) The fact that his health first became affected about three years before he made the misrepresentation as to his good health, and the fact that he died of a hemorrhage of the lungs, was disclosed by the proof of death furnished by the beneficiary. That portion of the proof of death signed by the attending physician disclosed the insured had suffered from hemophagia, a stroke, in 1931, and had been treated for hypertension from 1931 to 1934, and that hypertension was the primary cause of his death on March 26, 1934. The proof of death was furnished to the insurer by the beneficiary as a basis for recovery as provided by statute. (G. S. 1935, 40-420, [10].) The proof of death was competent to show the existence of the ailment and the fact that the insured had been treated therefor. (8 Couch on Insurance, § 2200, pp. 7116, 7117, §2227; 7 Cooley’s Briefs on Insurance (2d ed.), §10 (b), p. 5928; 4, Id., § 20 (h), p. 3403; National Life & Accident Ins. Co. v. Puckett, 217 Ala. 110, 115 So. 12; Stephens v. Met. Life Ins. Co., 190 Mo. App. 673, 176 S. W. 253; Smiley v. John Hancock Mut. Life Ins. Co. of Boston, Mass., [Mo. App. decided 1932] 52 S. W. 2d 12.) For conclusiveness where not controverted, see annotation 93 A. L. R. 1349.
In view of the authorities cited, it seems clear the facts contained in the proof of death established at least a prima facie case of the ailment of the insured and that he had been receiving treatment therefor. These facts were in no wise attempted to be rebutted.
What is good health? In the Klein case, supra, it was said:
“What is good health as used in the insurance contract like the one in question? It is not apparent good health, nor yet a belief of the applicant that he is in good health, but it is that he is in actual good health. Of course, slight troubles or temporary indisposition which will not usually result in serious consequences, and which do not seriously impair or weaken his constitution, do not establish the absence of good health, but if the illness is of a serious nature, such as to weaken and impair the constitution and shorten life, the applicant cannot be held to be in good health. (Miller v. Knights and Ladies of Security, 103 Kan. 579, 175 Pac. 397; Pickens v. Security Benefit Association, 117 Kan. 475, 231 Pac. 1016.)” (p. 753.) (To the same effect see, also, note at 40 A. L. R. 662, and Van Ross v. Metropolitan Life Ins. Co., supra.)
The trial court expressly found the evidence disclosed that the health of the insured first became affected in 1930, and that he had been attended by his physician for hemophagia, chronic constipation and hypertension from 1931 to 1934, and that the primary cause for the hemorrhage which occasioned his death was hypertension. (Finding No. 3.) Notwithstanding such finding, the trial court denied cancellation of the contract on the ground the plaintiff failed to prove the insured was conscious of his ill health. In other words, cancellation was denied and recovery was allowed on a contract although the sole representation and condition upon which it was entered into did not exist. Let us pursue the subject a step further. It may readily be conceded that a person afflicted with hypertension might not be conscious of his ailment without having consulted a physician. The evidence disclosed that men with this affliction frequently continue their active duties while suffering therefrom. How can it, however, be maintained with reason that a person is not conscious of that condition when his doctor expressly continued to tell him “he was in bad health.” Such was the evidence in the instant case. True, the evidence of physicians, called by both plaintiff and defendant, was to the effect that patients suffering from this particular ailment frequently disbelieve such advice and continue to ignore it. So in the instant case the evidence of the attending physician who signed the proof of death and who was called as a witness by the appellant, revealed that he continued to tell the insured he was in poor health and that the insured insisted he was in good health. Yet, notwithstanding such avowed disbelief of his doctor’s advice, he continued to call upon him for treatment. Clearly, we cannot proclaim the doctrine that notwithstanding the advice of the insured’s physician, and the active and affirmative compliance therewith in returning for treatments, the insured was not conscious of the fact he was not in good health. It must be remembered the findings of the trial court are not based on conflicting medical testimony. There was no evidence that any other doctor had ever advised the insured he was in good health. Appellee suggests there was no evidence that hypertension was a permanent affliction, and that the evidence disclosed the insured was only incapacitated for about four or five weeks from the ailment in 1931, which the doctor identified as a slight stroke. It is also urged the beneficiary denied that the doctor had'in 1931 identified the illness as a stroke. The doctor’s testimony did disclose that the clot from the 1931 stroke might have been entirely absorbed, but his evidence was also definite that, in his opinion, the clot on the brain in 1931 was absolutely caused by hypertension, and that nature itself would increase the hypertension with age. In view of the entire record, the insured clearly was not in good health and was conscious of that fact when he signed the application.
The defendant urges the testimony of the insured’s physician constituted a privileged communication, and that the waiver clause contained in the application was not executed. As to that identical question, this court, in the Priest case, supra, said:
“The weight of authority appears to be that declarations made by the insured concerning his health are not admissible against the beneficiary to show the falsity of representations made in the application. (25 Cyc. 936; 14 R. C. L. 1438.) But a distinction is made, which we regard as sound, in favor of their admissibility upon the issue of the insured having knowledge of such falsity. (See texts just cited, and notes.)” (p. 427.)
The contents of the proof of death, being unrebutted, showed the existence of the ailment and the' fact that the insured had been treated therefor. The evidence of the physician was competent to show the insured had knowledge of the falsity of the representation concerning his good health.
The trial court further found, “the plaintiff rested its case without having proven a surrender of the premium note or a tender of the same to. Jennie Boyle, the defendant herein.”
The appellant was not only a plaintiff, but also a defendant in the instant case. Shortly before the beneficiary rested her case, and near the end of the trial, she testified to the effect that appellant had not returned the premium note. The former $5,000 policy, which had been pledged as security for the premium note in the instant policy, had been paid in full. Appellant, at the time of this remark by the beneficiary, searched its files and discovered the note. The record discloses it was then presented in court. Counsel for the beneficiary in fact introduced it in evidence. After counsel for the beneficiary had finished his redirect examination of the beneficiary he announced, “defendant rests.” Appellant immediately presented the note to the beneficiary in person. The finding of the trial court under these circumstances cannot be sustained.
The judgment must be reversed with directions to enter judgment for the appellant. It is so ordered.
HaRVey, J., dissenting. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an order overruling defendants’ demurrers to plaintiff’s petition. The legal question presented is whether the board of directors of the Fort Scott public library or the governing body of the city of Fort Scott has authority to levy the tax for the maintenance of the library.
The Fort Scott public library was organized under section 12-1201, G. S. 1935, and functions under the subsequent sections of that article. It is managed by a board of nine directors, of which the mayor of the city, ex officio, is one, and the others are appointed by the mayor with the approval of the city council. The statute (G. S. 1935, 12-1201) provides, if the vote for the establishment of the library is favorable, “the governing body [of the city] shall annually thereafter levy a tax in such sum as may be by resolution of the directors of the free library designated, not to exceed one mill on the dollar on all taxable property in such city subject to tax, to be levied and collected in a like manner with the other taxes of said city and to be known as the library fund.” It is the duty of the directors of the library to elect a treasurer of the library board (G. S. 1935, 12-1211), and when that fact is certified to the city treasurer, and bond given, it is the duty of the city treasurer to pay over the moneys in the library fund to the treasurer of the library board (G. S. 1935, 12-1212), and his duties are prescribed (G. S. 1935, 12-1213). For many years the library tax had been levied by the governing body of the city of Fort Scott, and the money collected therefrom received and placed in the library fund by the city treasurer, and by him paid to the treasurer of the library board, all as provided for in the statutes just mentioned.
In 1933 the legislature enacted what is commonly known as the budget law (Laws 1933, ch. 316). The first section of this act (as amended, Laws 1933, ch. 121, Special-Session, now G. S. 1935, 79-2925), so far as here pertinent, reads:
■‘This act shall apply to all taxing subdivisions or municipalities of the state, including counties, cities of the first, second and third class, townships, . . . school districts of all types, rural high-school districts, community high-school districts, drainage districts and library boards.”
The language of this section follows the language of the title of the bill, except that the words “library boards” are not in the title. While our constitution (art. 2, § 16) requires the subject of a bill to be clearly expressed in its title, it is not contended the inclusion of the words “library boards” in the body of the bill and not in the title renders the act unconstitutional as to library boards. We think this position is correct, for it is clear the act was made to apply “to all taxing subdivisions ... of the state,” meaning by that term all divisions of the state authorized by law to levy taxes and use the money collected thereby for the lawful purposes of the subdivisions. The fact these words were followed by “including . . .” and the names of all, or most, of the taxing subdivisions of the state, does not indicate a limitation of the act to the taxing subdivisions so named. The act applies to taxing subdivisions of the state, whether named in the enumeration or not.
Conceiving the use of the words “library boards” in the act (G. S. 1935, 79-2925) caused the board of directors of the Fort Scott public library to become a “taxing subdivision” of the state (and the governing body of the city desiring to levy all the taxes it could, ten mills on the dollar [G. S. 1935, 79-1951], without levying any tax for library purposes), plaintiff proceeded to prepare its budget, gave notice, and held a hearing thereon, and determined the amount of money needed to maintain the library and the rate of tax levy for the year 1935 to be six tenths of a mill on the dollar, and certified this to the county clerk, all in the time and in conformity to the budget law (G. S. 1935, 79-2925 et seq.). The county clerk entered this levy on the tax roll and the county treasurer collected it as he collected other taxes.
Certain taxpayers paid this tax under protest, on the ground the library board had no legal authority to levy a tax and certify a tax rate to the county clerk for the raising of library funds, but that the governing body of the city is the duly constituted authority to make a levy for library purposes. Thereafter these protesting taxpayers duly presented their protest to the state tax commission, which gave notice to all parties interested and held a hearing, and determined plaintiff had no authority to levy the tax and that the levy was void, and made an order that the county treasurer refund the money collected from the protesting taxpayers.
This action is to enjoin the county treasurer from obeying the order of the tax commission and to require it to pay to plaintiff the tax money paid by the protesting taxpayers.
The specific question for our determination is whether the inclusion of the words “library boards” in the first section of the budget law (G. S. 1935, 79-2925) made plaintiff a “taxing subdivision” of the state. We feel confident in holding that it did not. Prior to that time plaintiff did not have authority to levy taxes, hence was not a taxing subdivision of the state. It was not the purpose of the budget law to create new taxing subdivisions of the state. It did not attempt to do so. The status of plaintiff as to being or not being a taxing subdivision of the state was not changed by the budget law. Section 12-1201, G. S. 1935, requiring the governing body of the city to levy a tax annually for the support of the library, was not amended, or attempted to be amended, or repealed, by the budget law. (See Const., art. 2, § 16.) The trial court expressed the view that since the libraries in some cities are managed directly by the governing body of the city, and some are managed through library boards, it was the intention of the legislature in enacting the budget law to make all those managed through library boards taxing subdivisions of the state irrespective of their previous status in that respect. We cannot agree with that view.
The judgment of the trial court is reversed, with directions to sustain the demurrers to the petition. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action under the workmen’s compensation act. The district court rendered judgment in favor of the claimant, and respondent appeals.
The question presented is whether the activity in which respondent was engaged when claimant was injured was of such a nature and extent as to bring respondent within the trade or business of “building work,” as that term is defined in the workmen’s compensation act.
Claimant suffered the loss of the thumb on his right hand. He also suffered a five-percent disability in the use of his right hand. Respondent had been a farmer. Seventeen years ago he moved to the city of Wichita. At the time of the trial he owned a farm in Oklahoma. About seven years ago he built an apartment house in the city of Wichita, consisting of eight apartments. The apartments were rented. It appears the contract for the construction of this apartment was let to a contractor. In March of 1936 he commenced the erection of a duplex which was. completed in the month of June. In July of 1936 he sold his home, and in September of the same year started to build a new home. It was completed about January 1, 1937. Claimant started working for respondent on this home in September, 1936. He helped shingle the house, lay the floors and assisted in the painting of the inside of the house. About the middle of January, 1937, respondent started the remodeling of basement apartments in the duplex. That work was completed about February 1, 1937. It was in the remodeling work of the duplex and on January 20, 1937, that claimant was injured. He had been employed directly by respondent to assist a carpenter who acted in the capacity of a foreman. Claimant was employed to do anything which might be necessary to assist the carpenter in getting the remodeling job completed. A motor-operated saw was in need of adjustment and plaintiff was injured while assisting the carpenter in the work of adjusting the saw. The work of both the claimant and the carpenter appears to have been performed as day labor. Respondent owned other vacant lots, and on April 15, 1937, obtained a permit from the city to build another duplex. This duplex was to consist of a family residence and was to be constructed at a cost of approximately $4,000.
That the remodeling work at which claimant was employed constituted “building work,” is clear. G. S. 1935, 44-508 (/), provides:
“ ‘Building work’ means any work in the erection, construction, extension, decoration, alteration, repair or demolition of any buildings or structural appurtenances.” (Italics inserted.)
Where the work is “building work” the act applies regardless of the number of employees (G. S. 1935, 44-507) if the facts otherwise bring the matter within the terms of the act. In order to bring an employer within the act it is not enough that the work at which the laborer is employed is covered by the act, but it is also necessary that the work shall be a part of his employer’s trade or business. (G. S. 1935, 44-503, 44-505; Setter v. Wilson, 140 Kan. 447, 449, 37 P. 2d 50.) In other words, it is the purpose of workmen’s compensation acts to place the burden of compensation for accidents to employees upon the industry rather than upon the individual employer.
What was respondent’s trade or business? He insists he was a farmer. Claimant contends respondent’s activity in the repair of his various buildings, the alteration and remodeling thereof, and the time and attention involved in the initial construction thereof, was sufficiently extensive to characterize respondent’s trade or business as that of a builder. These properties, except his residence, were rental properties. As to the time respondent devoted to repairs, collection of rents after their completion, and whatever might be necessary for their management, his testimony varied. The early part of the record discloses the following:
"Q. How much of your time do you spend on the farm? A. Half of my time, when I ain’t got nothing else here in town.
“Q. The other half you spend looking after your properties ... is that right? A. Just whatever happens to come up.”.
Later he testified to the effect that the management, operation and repairs of the city properties did not require one half of his time, but the exact portion thereof was not definitely fixed. The record, however, discloses that about eight months of the year 1936 were occupied with the actual construction of buildings. The work in 1936 was done by a foreman and day laborers, all of whom were employed directly by respondent. While respondent did not specifi cally state he was the supervisor of the work, his testimony was subject to that interpretation.
Can it fairly be said respondent’s trade or business was that of a farmer and that he was outside of the act irrespective of his activity in the building trade? Or would it be more nearly in keeping with reason and fairness to say his activity in “building work” was sufficiently extensive to bring him within the act as one who was also engaged in the building trade? Does it follow from the mere fact he owned a farm and gave of his time to its supervision th$,t he was necessarily precluded from having another trade or business? We think not. Our act in no wise requires that his activity be limited exclusively to a hazardous trade or business in order that he might be amenable to the act. Where the act does not so limit an employer’s trade or business he may come within the act as to certain of his trades or businesses, and not as to others. In other words, he may have more than one trade or business. (Davis v. Industrial Com., 297 Ill. 29, 130 N. E. 333.) Supposing respondent had also been extensively engaged in the drilling of oil or gas wells and had divided his time equally between the three activities, and claimant had been injured in the latter, instead of in the work of remodeling the duplex, could respondent reasonably have contended he did not come within the act on the theory he was a farmer or a builder? We think not. Supposing respondent had done the same amount of building and remodeling in the year 1936, and until the middle of February of 1937, for other owners of property rather than for himself, would it be logical or reasonable to say his trade or business during such period had not been that of a builder? Obviously not. The fact he was the owner of these buildings and received his compensation in the form of rents rather than in the form of other compensation, would not relieve him from liability under the act. (Storrs v. Industrial Comm., 285 Ill. 595, 597, 121 N. E. 267.)
What constitutes one’s trade or business? The answer must of necessity depend upon the facts and circumstances in each particular case. It must be obvious that in the very nature of the situation no arbitrary or definite line of demarcation can be drawn in order to determine precisely what an individual’s trade or business may bfe where he is engaged in more than one enterprise. For this reason it is only natural that complete harmony in the decisions is not to be expected. And this would be true if the provisions of the various compensation acts were identical, which of course they are not. In 50 A. L. R. 1176, is contained an annotation on the subject, “Owner ship of leased or rented property as constituting business, trade, occupation, etc., within Workmen's Compensation Acts.” That annotation was carefully considered by this court in the case of Setter v. Wilson, 140 Kan. 447, 37 P. 2d 50, and in commenting thereon we said :
“It would appear therefrom that the weight of authority is that the mere owning of a house, maintaining it and keeping it in repair so that it may produce an income, is not sufficient to constitute a trade or business, but such transactions, at most, amount only to a trade or business, within the meaning of the compensation act, when they are carried on to such an extent as to require a substantial and habitual devotion of time and labor to their management and operation.” (p. 450.) (Italics inserted.)
Respondent insists the decision in the Setter case precludes a recovery in the instant case. In that view we are unable to concur. The facts are strikingly dissimilar. In the Setter case, Mrs. Wilson owned a two-story building in the city of Humboldt, which was in the process of being repaired when the employee was killed. The owner derived a part of her income from a portion of the building. It was simply being repaired to maintain it. In that case a distinction was clearly indicated which is pertinent in the instant case. It was there said:
“In the case under consideration there is no evidence that the owner of the property was engaged in thet business of acquiring, impi'oving and holding real estate as a means of livelihood, for the evidence went no further than that she derived a part of her income from the leased premises, and that when it needed repairs she had them made.” (p. 450.) (Italics inserted.)
In the case before us respondent was not merely engaged in the collection of rents and the repair of buildings which he owned and which had been constructed prior to the time he left the farm. Nor had he been engaged only in remodeling work. True, claimant was injured during the remodeling work on one of the buildings, but respondent’s entire building activity must be considered in determining his trade or business. He had been actively engaged in the enterprise of having buildings constructed as a means of investment for revenue. He was preparing to build another. The actual construction work in 1936 covered a period of approximately eight 'months. The operation and management of the properties, after completion, required a substantial and habitual devotion of time and labor. Under all these circumstances we cannot say the evidence was insufficient to support the ruling of the trial court.
Respondent cites Kaplan v. Gaskill, 108 Neb. 455, 187 N. W. 943; Billmayer v. Sanford, 177 Minn. 465, 225 N. W. 426, and Dancy v. Abraham Bros. Packing (Tenn.), 102 S. W. (2d) 526. The facts in the Kaplan case were more nearly similar to those in our Setter case. The cases cited are all clearly distinguishable from the instant case on several grounds. It is sufficient to say that the first two cases cited involved small repair jobs, while the latter involved the erection of a small shelter house around a sprinkling system. In none of them was the employer as extensively engaged in building work as was respondent in the instant case. In none of them had the employer constructed buildings for rental purposes. It is noteworthy that in the Billmayer case the importance of the extent of an employer’s activity in simply owning, letting and repairing of properties, was recognized. It was said:
“Did the relator have a business or occupation other than that of a housewife? A person may engage in more than one business or occupation. The compensation act does not contemplate that one can be engaged in' only one usual business. But did the owning and letting of these houses constitute a business or occupation?
“We have held to the contrary, under similar circumstances, where only one building was involved. Sink v. Pharoah, 170 Minn. 137, 212 N. W. 192, 50 A. L. R. 1173. Such conduct may reach such proportions as to require an affirmative conclusion (Storrs v. Industrial Comm., 285 Ill. 595, 121 N.E. 267) . . . (p. 466.)” (Italics inserted.)
The judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action, brought in February, 1937, to have a certain deed and contract to reconvey adjudged to be a mortgage, and for appropriate relief. The trial court sustained a demurrer to plaintiffs’ evidence, and they have appealed.
Aside from testimony tending to show the real property in controversy was of the value of $1,500, as a tract, or of the value of $1,800 to $3,000 if sold as lots, the other facts were stipulated, and these may be summarized as follows: In April, 1930, plaintiffs were the owners of the real property in controversy, which consisted of a designated portion of a certain addition to Topeka. Its area was such that it could be, or had been, divided into six lots, each fifty feet wide. Plaintiffs owed a building and loan association $592.78, secured by a mortgage on the property, and also owed the Karlan Furniture Company $212.84. They went to the defendant bank to arrange to get the money to pay those items, and transacted their business with Mr. John E. Kirk, vice-president and trust officer of defendant. At his direction, and as a result of their talk, two instruments were drawn and executed. One was a general warranty deed from plaintiffs to defendant for the real property, which was duly recorded. The other instrument reads as follows:
OPTION
“Know all men by these presents, That J. O. McGill, of Pretty Prairie, Kan., party of the first part, in consideration of the payment to him of eight hundred five and 62/100 dollars, has this day sold and delivered to the National Bank of Topeka, Topeka, Kan., a general warranty deed conveying the following-described property, to wit:
“Lot number eight (8), block number five (5), College Hill addition, located on a part of the southeast quarter (SE%) of section number two (2), township number twelve (12), south, range fifteen (15), east of the sixth P. M., Shawnee county, Kansas.
“In consideration of said sale the National Bank of Topeka, Topeka, Kan., does hereby give unto the said J. C. McGill the option to repurchase said property within four years from this date upon the said J. C. McGill making the payments hereinafter to be made and complying strictly with the terms of this contract.
“First. The said J. C. McGill hereby covenants and agrees that he will pay the sum of two hundred dollars ($200), together with six percent (6%) interest from April 1, 1930, to date of payment, payment to be made on or before April 1, 1932.
“Second. The said J. C. McGill hereby covenants and agrees that he will pay the balance of six hundred five and 62/100 dollars, together with six percent (6%) interest from April 1, 1930, to date of payment, on or before April 1, 1934.
“Third. The National Bank of Topeka on its part hereby covenants and agrees that when said J. C. McGill has made the payments as the same become due and payable that it will reconvey said property hereinbefore described.
“Fourth. The said J. C. McGill hereby agrees to pay the taxes on said property each and every year during the term of this option agreement.
“Fifth. Upon default in any of the payments due under this contract for a period of sixty (60) days after due date this option shall become void and the National Bank of Topeka shall not be required at any future date to reconvey said property.
“In witness whereof the parties have hereunto subscribed their names this 30th day of April, 1930. J. C. McGill.
Thelma McGill.
National Bank of Topeka,
By John E. Kirk,
Vice Pres. & Tr. Officer.”
Upon the execution of these instruments, at the direction of plaintiffs, defendant paid the sums due the building and loan association and the furniture company. Thereafter plaintiffs paid defendant $24, April.14, 1931; $26.25, June 22, 1931; and $10, March 16, 1932. On December 27, 1933, defendant conveyed one of the lots to Ralph D. Combest for $300 and on August 6,1935, conveyed another lot to Combest for $300, and on August 6, 1935, conveyed another one of the lots to Combest for $400.
It was stipulated that at the time these instruments were made, in 1930, defendant charged up $805.62 to the account of the A. C. Karlan trust estate, and that the money which plaintiffs later paid the bank, and which it received for the sale of lots, was credited to that account, but that plaintiffs were not informed of those facts. They had no dealings with the A. C. Karlan trust estate.
As was well said in McNamara v. Culver, 22 Kan. 661, 668:
“Now that a deed and an agreement to reconvey, though separate instruments, may operate as simply a mortgage, is clear, and that they do not necessarily create one is equally clear, the test is the existence or nonexistence of a debt. And equity looks behind the form to the fact. If the transaction was intended as a loan, if there remains a debt for which the conveyance is only a security, and the collection of which may be enforced independent of the security, equity will hold it a mortgage, no matter whether the transaction is evidenced by one or two instruments.”
There are many other cases to the same effect. (See Calhoun v. Anderson, 78 Kan. 746, 98 Pac. 274, and Handrub v. Griffin, 127 Kan. 732, syl. ¶ 4, 275 Pac. 196, and cases cited, p. 740.) See, also, authorities collected in the annotation in 79 A. L. R. 937, 941.
In this case, whether a debt existed depends almost entirely upon the construction to be given to the instrument executed by the parties and denominated “option.” The trial court was of the opinion that plaintiffs, by this instrument, did not obligate themselves to pay defendant any specific sum at any definite time. We cannot agree with that construction. The paragraph designated first in the instrument contains a definite agreement on the part of J. C. McGill to pay $200, with six percent interest, by a date named, and the next paragraph contains a similar definite agreement to pay $605.62, with interest by a date named. We see nothing in the instrument to have prevented defendant from suing on these covenants.
In addition to that, the record indicates that the deed to the bank was not made for any indebtedness plaintiffs owed to the bank. It was made to obtain money to enable plaintiffs to pay debts owed to other parties. The statutes under which the defendant bank was incorporated and does business do not permit it to buy real property other than that needed in its banking business, or in payments of debts due the bank. (12 U. S. C. A. § 29.) It is not contended it purchased this property for any of those purposes, and it will not be presumed the bank intended to transact the business in a manner in violation of the statutes. We give weight to this fact as a matter of law in determining the intent of the parties. Defendant contends we should not do so because of the fact that it handled the matter through the A. C. Karlan trust estate. That fact was unknown to plaintiffs. They dealt with defendant alone. How it handled the matter, unknown to them, does not affect their rights.
Defendant argues plaintiffs are barred by their laches. Lapse of time alone does not create laches which will defeat an action unless there has been some change in the condition or relation of the property or the parties which would prejudice the rights of the adverse party. (Spradling v. Hawk, 133 Kan. 545, 1 P. 2d 268.) Here there has been no change of that character. Defendant paid out $805.62 and has received payments from plaintiffs, and from the sale of the three lots, of $1,060.25. Three of the lots remain. Since the contract to reconvey was not recorded, this action should not be permitted to affect the title to the lots conveyed by defendant to Combest. There was no evidence as to which of the parties was in the actual possession of the property when this action was brought, or when it was tried. It appears to be unimproved lots. Neither was there any evidence as to who has paid the taxes on the property since the deeds and the contract were made.
Upon the record before us, there should be a computation of the balance, if any, due defendant in view of the money it has paid out and the amount received, and .an appropriate decree should be entered.
The judgment of the court below is reversed, with directions to proceed in harmony with this opinion. | [
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The opinion of the court was delivered by
Allen, J.:
This case involves a claim for compensation under the workmen’s compensation act. Orville C. Stapleton, an employee of the state highway commission, suffered an injury on January 16, 1937, which resulted in his death. This is an appeal from a judgment of the district court of Finney county sustaining an award in favor of the claimants, Pansy Stapleton, widow and guardian of Willard R. Stapleton, minor dependent.
There was no serious conflict in the testimony. The deceased had been employed in the maintenance department of the state highway commission since 1929. During the time of his employment it was his custom to move his residence from town to town to be near his work. When first employed he was sent to Sublette; later he moved •to Garden City and from there to Kalvesta. At the time of his death, under the direction of his superior he was moving from Kalvesta to Garden City to be near his work on highway 83 north.
Lyle S. Munn, maintenance supervisor, testified that the deceased was under his direction and supervision; that he requested Stapleton to move to Garden City. There was a new road there, and he wanted Stapleton on the road machine. He requested the deceased to make the move to be closer to his work; he was to live as close to the machine as he could find a residence; he was requested to be there Monday to take over the machine. Ordinarily a maintenance man lives where the machine is stored, so he can be available if an emergency arises. No deduction was made from his salary while engaged in moving. The supervisor further stated that a maintenance man has no definite set hours; it might be early in the morning or late at night. The minimum is supposed to be eight hours a day. It is not checked. He would be supposed to work any time during an emergency, a full day if necessary.
Stapleton was an oil section man. He patched breaks in the mat surface, the shoulders and ditches and signs. This type of work sometimes requires longer hours of work than others.
Mrs. Pansy Stapleton testified that on January 16 the deceased came to town and got a trailer to move the household goods to Garden City. He started out a little before eight — that was during his working hours, and at the direction of the supervisor. “There were no eyewitnesses to the accident, he was alone, but he said it was the dust. The dust hit the trailer, it was blowing badly that day. . . . He started to make the move as ordered and his car overturned on the highway.” The main part of the goods was transported by a “regular mover” in a transfer truck, and the balance in a trailer. The transfer truck did not belong to the highway commission and “the trailer was borrowed from McCoy’s garage.”
Did the accident resulting in the death of Stapleton arise out of and in the course of his employment?
In Tierney v. Telephone Co., 114 Kan. 706, 220 Pac. 190, a youth seventeen years of age was employed by defendant. His duties were the charging of batteries in various towns in Crawford county. One morning he was directed by his superior to go to Weir City and charge the batteries at the central exchange, and was told he could ride with a lineman who was going to that place. He was directed to assist the lineman along the way. In so doing he broke his arm while cranking a car. In upholding an award for compensation it was said:
“But it is urged that the accident did not occur on, in or about defendant’s electric work or telephone business — not within the zone of danger, but happened on the public highway. What is the zone of danger of a telephone business? A telephone business is not like a factory or mine which has a circumscribed and definite situs; a telephone business radiates its wires far and wide along the public highways of a township, county or state. But its employees in the discharge of their duties string the wires, inspect them, and repair them on the public highways, and they may get hurt in so doing, and may meet with accidents incidental thereto, so the court has no misgiving in holding that as to telephone-line employees the zone of danger includes every place, including highways, where their duties, reasonably require them to go, and thus construed the plaintiff’s injury was sustained on, in and about premises occupied and used by the defendant in the pursuit of its business.” (p. 710.)
In Kennedy v. Hull & Dillon Packing Co., 130 Kan. 191, 285 Pac. 536, a traveling salesman for a packing house was employed to solicit orders for goods and make collections from customers in allotted territory, covering several counties, and to travel over the territory in an automobile in the performance of his duties. While traveling over a highway he came in contact with an electric wire which had been thrown across the road during a storm, and was killed. In answer to the contention that he was not at the time in his allotted territory, this court said:
“If his duties as traveling salesman required him to travel over the highway where he was killed, with its well-known hazards, one of which he encountered, the action should be regarded to be in his working place and in the course of his employment.” (p. 193.)
In Kearns v. Reed, 136 Kan. 36, 12 P. 2d 820, the duties of a workman at a coal chute were to keep the coal chute full of coal, and to coal the engines brought to the chute for that purpose. For several years prior to his death his hours of labor had been from 7 o’clock in the evening until 8 o’clock in the morning. It was customary for him to go to the depot to learn what trains would arrive. He was found dead near the railroad track under circumstances that would indicate he was on his way to the depot to secure information as to the arrival of the trains. The court found that the workman met his death by accident as defined in Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793; Barker v. Shell Petroleum Corp., 132 Kan. 776, 297 Pac. 418, and that at the time he was acting in the course of his employment, under the rules announced in Thomas v. Manufacturing Co., 104 Kan. 432, 179 Pac. 372; White v. Stock Yards Co., 104 Kan. 90, 177 Pac. 522; Corpora v. Kansas City Public Service Co., 129 Kan. 690, 284 Pac. 818, and Taylor v. Hogan Milling Co., 129 Kan. 370, 282 Pac. 729. (The court noted the fact that some of the cases turned on the words “on, in or about” which were formerly in the statute, but which were eliminated by the amendment of 1927.) See, also, McDonald v. Swift & Co., 124 Kan. 327, 259 Pac. 695; Fairchild v. Prairie Oil & Gas Co., 138 Kan. 651, 27 P. 2d 209.
In the case at bar it is argued that the workman was on his way to assume the duties of his employment and therefore the injury which caused his death did not arise out of and was not in the course of his employment. In Kennedy v. Hull & Dillon Packing Co., supra, the traveling salesman was on his road to the town where his work began when the accident occurred, and it was held that the highway over which he was required to travel was to be regarded as his working place. It was further stated: “Under the circumstances of the case, we think Kennedy should be regarded as within his territory and in the course of his employment when the accident occurred. His employment differs from one employed in the factory who might have been injured on his way to the factory where his work was to be performed.” (p. 195.)
In Woods v. Jacob Dold Packing Co., 141 Kan. 363, 41 P. 2d 748, a traveling salesman, while off his usual route, was killed in an automobile accident. It was contended that he was on an errand of his own when he was killed, and that his death did not arise out of or in the course of his employment. As there was evidence to support the trial court’s finding, the award was sustained.
In Mann v. Board of Education, 266 Mich. 271, 253 N. W. 294, a high-school principal was killed when traveling to the state university in response to an invitation from the registrar of that institution. He was under no duty to attend, but his superior was willing that he should go on school time, but at his own expense. The supreme court of Michigan in affirming an award said:
“At the time of the accident Mr. Mann was not exercising a personal privilege wholly apart from his employment or his employer’s interest, but was about the performance of an act, incident to and recognized as of value by his superior in connection with high-school purposes.” (p. 273.)'
And in Lasear v. Anderson, 99 Ind. App. 428, 192 N. E. 762, it was held that the accident arose out of and in the course of his employment, where a long-distance truck driver, who was responsible for the merchandise on his truck, with the drivers of two other trucks, hired a cabin at night at a tourist camp, parking their trucks within twenty-five feet of the cabin, and was asphyxiated during the night by the fumes from a gas stove. The court held he was performing the duties imposed upon him at the time of his death.
In Industrial Commission v. Aetna Co., 64 Colo. 480, 174 Pac. 589, 3 A. L. R. 1336, a foreman of construction work, going from one job to another, was injured by the overturning of a private conveyance in which he was riding. In holding that injury arose out of and in the course of his employment, the court said:
“In the case at bar it was an essential part of his employment that the deceased should travel from the place where he had installed one plant to the place where he was to install another. It is also clear that he adopted a reasonable, and apparently the only facility for such travel under the circumstances, and as safe as any other that may have been available. No case is cited that adopts a different rule, and we know of none, as applied to workmen’s compensation statutes. ... He was traveling on his employer’s business, which by his contract he was bound to do, and for which it is reasonably assumed he was being paid to do, for it is not to be presumed that he was, under the circumstances, traveling such distances upon his own time. It may be safely said that he was doing that which was incidental to the character of the business, and not independent of the relation of master and servant, but rather had its origin in the risk connected with the employment. ...” (p. 487.)
In the case before us the superior officer of the deceased had requested that he move from Kalvesta to be near the road machine. He was an emergency man, “on call” day or night. He was required to move to any place where the services of an expert road maintainer were required, and in the course of his employment had made several such moves. Moving his household goods was as essential in the performance of his duties as moving his road machine. It was a necessary act to carry on the work entrusted to him. We think it is clear that the fatal injury arose out of and in the course of his employment.
It is also suggested there was no causal connection between the injury and the employment. For the reasons stated in Kennedy v. Hull & Dillon Packing Co., supra, and other Kansas cases cited above, we think there is no merit in this contention. (See, also, Harper on Torts, § 213.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action under the workmen’s compensation act. The commissioner of workmen’s compensation awarded compensation to the claimant. This award was approved on appeal by the district court. Respondent appeals from that judgment.
The only point in issue is whether the claimant met with personal injury by accident arising out of and in the course of his employment.
The facts are as follows: Claimant was employed on May 28, 1987, by respondent as a cupola tender. On that day while he was putting up the bottom doors on a furnace (the doors weighed between 350 and 400 pounds) one of these doors fell down and caught claimant on the groin, and scraped on down his leg. After a few days a knot came in the left groin. He talked to Doctor Bagby, and about July 13,1937, went to Doctor Dickinson. On August 11,1937, he went to the hospital and Doctor Hughbanks performed an operation on his left groin. He left the hospital about August 17, 1937. Prior to the time the cupola door struck him there was nothing the matter with his groin. In the spring of 1936 he had an operation on his left leg and a little knot was removed. The knot had been there a week or two. It was removed from about three and one half to four inches above his left ankle. The foregoing is substantially the story as told by claimant.
Doctor Dickinson testified for claimant. He testified that when he examined claimant after the door fell on him he found two or three lumps in his left groin and that in his opinion they were sarcoma; that sarcoma is a malignant, tumor which arises from connective tissue and that there are several different kinds of sarcoma. Doctor Dickinson also testified that while many things might cause sarcoma he thought it was pretty generally recognized that trauma bore some relation to the actual cause. He testified as follows:
“Q. From the history you got of his case, do you have an opinion whether or not the condition was the result of trauma? A. I wouldn’t say wás the result of trauma. I think it has something to do with the injury, but whether it is produced by it, I don’t think anybody can definitely state, but I think it has something to do with trauma; I think trauma had something to do with the production of this mass or aggravation of it; further than that, I don’t think I could say with any certainty. That is just an opinion of mine.
“Q. Do you have an opinion whether his disability is permanent or not? A. I don’t think he will recover from it. That is my opinion.”
On cross-examination he testified that about a year before, he took a projection off of claimant about the size of the end of his finger and about an eighth of an inch long. Later in his examination he testified that he had a microscopic section made of the lump he removed from the left leg of claimant and it was melanosarcoma. In answer to questions by the examiner Doctor Dickinson testified as follows:
“Q. Doctor, if a person was predisposed to sarcoma, but not having it developed at any particular point and received a very severe injury to that, would that likely cause or revive or aggravate a condition like that? A. That is what leading authorities state.
“Q. Did you hear the description of the injury this man received? A. I understood he had a door of the cupola drop on his leg.
“Q. The evidence is that the door weighed from 350 to 400 pounds? A. Yes.
“Q. With a weight like that falling on a person, the testimony is from the lower part of the groin to below his knee, if a man was predisposed to such a condition you have described here, would that injury likely cause or revive or aggravate that condition? A. All I can say is that leading authorities state that.”
He further testified that when he took the lump off of the left leg of claimant he examined him carefully for any signs of its spreading, but could find none. This concluded the testimony on the part of the claimant.
Doctor Hughbanks testified that he removed a lump from the left groin of claimant; that there was no evidence of trauma about the mass removed; that he sent this to a pathologist for study, and that in his opinion claimant would never pursue a gainful occupation.
Doctor Hellwig testified that he was a pathologist; that he made a microscopic study of the lump taken out of the groin of claimant; that he found it to be a neurogenic type of sarcoma and formed the opinion that it came from some other part of the body. He further testified that he would expect a melanotic sarcoma such as that removed by Doctor Dickinson to appear later in the groin. He stated that neurogenic sarcoma is never caused by trauma. This witness and counsel then engaged in a discussion of statements by medical authorities as to whether a single blow ever caused neurogenic sarcoma. The witness insisted to the end that the more up-to-date and better authorities held that it did not. The impression that a layman gets from the record is that the doctors were in good faith, but that the study of sarcoma is in its infancy, and doctors are learning something about it every day.
After hearing this evidence the commissioner stated the history of the case about as it has been given here, and found that the injury to the groin of claimant “aggravated and activated and set in motion” an existing condition which resulted in the sarcomatous mass in claimant’s left groin, and that claimant was entitled to compensation for permanent total disability. He was awarded compensation accordingly.
On appeal the district court found the issues in favor of the claimant and gave judgment accordingly. The appeal is from that judgment.
The argument of respondent is that all the evidence was to the effect that the sarcoma in question was neurogenic and that trauma never caused neurogenic sarcoma, and hence there was a complete failure of proof that the sarcoma in the grpin of claimant was caused by the door falling on him.
The question cannot be disposed of that easily. On appeal to this court in a workmen’s compensation case we consider on reviewing the court’s findings only the evidence which supports or tends to support the findings of the trial court. (See Evans v. Western Terra Cotta Co., 145 Kan. 924, 67 P. 2d 426.)
The award in this case was made on the theory that the accident to the claimant when the door fell on him “aggravated, activated and set in motion an existing condition which resulted in the sar-comatous mass in claimant’s left groin.”
This court has approved awards of compensation based on such a theory. (See Blackburn v. Brick & Tile Co., 107 Kan. 722, 193 Pac. 351; also, Farmer v. Oklahoma Natural Gas Corp., 134 Kan. 629, 7 P. 2d 60.)
In this case some of the doctors testified that a neurogenic sarcoma could not result from trauma. The doctor who testified for the claimant stated that in his opinion and from a consultation of thé authorities the blow on the groin of claimant had something to do with the production of this mass or aggravation of it. He then referred to some cases he had treated and to medical works on sarcoma. Subsequently in answer to questions by the examiner he testified that leading authorities state that an injury such as claimant sustained would likely revive or aggravate a condition such as claimant was suffering from. Such an answer is about as definite a statement of an opinion as a doctor can make as to the cause of sarcoma. They all must be guided by what cases have come under their observation and what they read. There is testimony in this record disputing the evidence given by the doctors who testified for claimant. Medical works are referred to which hold contrary to those relied on by claimant. We are not concerned with what conclusions this court would have reached had the questions of fact been submitted to us in the first place. We are not the triers of the facts. It was the function of the trial court to consider the evidence and draw reasonable inferences and conclusions therefrom. (See Evans v. Western Terra Cotta Co., supra.)
We have concluded that there was sufficient evidence in this record to sustain the award of-compensation.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
Don Y. Meyer was convicted of the crime of obtaining property by false pretenses, and appeals to this court. His sole contention is that the state’s evidence, all taken as true, did not prove facts sufficient to sustain the charge contained in the information.
The information charged that one Dreiling and the appellant, Don Y. Meyer, went to the home of James Larsen and represented they were buyers of Woods Brothers stock and had heard Larsen owned some of it; that they would have to inspect it before purchasing ; they induced Larsen to go to a bank and get his certificates; that with that stock Larsen also showed them stock in United Telephone Company; that Dreiling and Meyer informed Larsen they could not use the Woods Brothers stock unless he assigned the telephone stock; that they would pay Larsen $1,000 for the telephone stock and $2,750 for the Woods Brothers stock at the rate of $110 per month; that each of them had oil royalties coming in and they would give him a sufficient and bankable guaranty in writing that the payments would be made; that if Larsen would let them have the stock certificates, they would be back with the guaranty in writing, during which time they would hold the stock certificates, and if the guaranty was not satisfactory they would return the certificates to Larsen; that Larsen, believing the representations and pretenses to be true, assigned and delivered the stock certificates to Dreiling and Meyer; that Dreiling and Meyer took the certificates of stock, did not return with the guaranty, did not return the stocks, did not pay anything for them, and on the same day they got possession sold the telephone stock, and shortly thereafter sold the Woods Brothers stock; that all representations made by Dreiling and Meyer were false and fraudulent and designedly made to cheat and defraud Larsen; that Dreiling and Meyer did not come to Larsen for the purpose of buying the stocks, and did not intend to pay him for them; that the acts and words of Dreiling and Meyer were done and spoken without any intention on their part to perform, but to cheat and defraud Larsen, etc., and by reason thereof they did cheat and defraud him of the certificates of stock.
The state offered its evidence, and at the conclusion thereof appellant moved the court that he be discharged for the reason the evidence failed to establish facts sufficient to sustain the charge contained in the information. In this court the complaint is that the claimed statements made by Dreiling and Meyer, which induced Larsen to part with his property, did not refer to past or present facts, but to future transactions and events, and therefore were not the basis of a criminal action.
We need not detail fully the evidence which supported the charges in the information. Dreiling and Meyer came to Larsen’s place and inquired about the Woods Brothers stock, and persuaded him to meet them in town, and to get the stock from the bank where he kept it. Larsen got an envelope containing the stock and handed it to Meyer, who opened it. With the certificate for Woods Brothers stock was the telephone stock. Larsen was immediately informed that Dreiling and Meyer could not buy the Woods Brothers stock unless they also got the telephone stock. Larsen was persuaded to go to the post office and execute assignments, where the postmaster could witness his signature, and to surrender possession to Meyer, who was to return with bankable security that Dreiling and Meyer would perform their agreement to pay him therefor in the manner indicated hereafter. Appellant singles out the statement that he and Dreiling were to pay Larsen for the stock in the future out of oil royalties, and some argument is predicated on the fact that Larsen did not inquire where the royalties were located and ascertain there was an assured income from which he could be paid, and that it was all a promise as to something to be done in the future. The evi dence showed that Dreiling and Meyer obtained possession of the stock certificates on their promise the stock would be held until they returned that day with bankable security; that they stated they had oil royalties and a sure income; that four or five days later Larsen signed the contract relying on the fact he was to get the guaranty; thereafter, he learned from them they had no oil royalties; that he did not get the guaranty; that he later learned the telephone stock was sold the day he delivered it to Dreiling and Meyer.
Appellant recognizes that the question is: What induced Larsen to part with his property? The evidence warrants a conclusion that he did so because he relied on representations by Dreiling and Meyer that they would take his stock at an agreed price; that they had oil royalties and an assured income from which to pay, and that they would give him a bankable guaranty they would perform. Those representations were of present existing facts; they were not expressions of opinion or of future promises. It was not incumbent on Larsen to make an independent investigation to determine whether Dreiling and Meyer did have the oil royalties and income they said they had. (State v. Nash, 110 Kan. 550, 204 Pac. 736.) And even if it be said that some of the representations constituted future promises, their being coupled with representations as to present facts and circumstances did not relieve Dreiling and Meyer. (State v. Beezley, 119 Kan. 300, 239 Pac. 998.) And it is a fair inference from the testimony that Dreiling and Meyer, at the time the representations were made, had no intention of performing once they obtained possession of the stock certificates.
In State v. Clark, 46 Kan. 65, 26 Pac. 481, it was said:
“To constitute the offense charged in the information, under section 94 of the crimes act, four elements must concur, which should be averred and proved: (1) There must be an intent to defraud; (2) there must be an actual fraud committed; (3) false pretenses must have been used for the purpose of perpetrating the fraud, and (4) the fraud must be accomplished by means of the false pretenses made use of for the purpose, viz.: They must be the cause, in whole or in part, which induced the owner to part with his property (citing cases).” (p. 66.)
Applying that test to the evidence here, it must be held that each of the four elements has been shown. And having been shown, it must follow the trial court properly denied appellant’s motion that he be discharged.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Hutohison, J.:
The two cases above entitled are entirely separate and distinct and never were consolidated, but because the same law points were involved in each of them one opinion was written to cover both cases, which opinion was handed down November 6,1937, and reported in 146 Kan. 634, 73 P. 2d 29. Rehearings were granted in these cases on January 4, 1938, and the cases were reargued on January 27, 1938. At the same time the argument was made and briefs were submitted in the case of Glover v. State Highway Comm.
All three were eminent-domain cases under G. S. 1935, 26-101 and 26-102, and the proceedings in each of them were the same until they reached this court on appeal, except- that in the Glover case the highway commission had filed its objection to the appeal bond given by the landowner at once and before the trial of the case on the appeal to the district court from the award made by the appointed commissioners, whereas in the Russell and Stephens cases such objections were first made after the trial was over. The majority opinion rendered in the Russell and Stephens cases, as filed November 6, 1937, held that the appeal bond given by the landowner in each case to appeal to the district court from the award of the commissioners did not comply with the requirement of the statute (G. S. 1935, 26-102) and therefore did not confer on the district court jurisdiction of the subject matter. Upon the rehearing the court reached a different conclusion as to the bond giving jurisdiction to the district court. This conclusion has been ably and forcibly expressed in the opinion written by Mr. Justice Harvey in the Glover case, this day decided, and that opinion has been approved and adopted as the proper decision in these two cases on the point of the appeal bonds given by the landowners in the. Russell and Stephens cases conferring jurisdiction on the district court on appeal from the award, and reference is herein made to the decision in the Glover case on that point as stating the law and decision in these two cases, which overrules the former decision as to that point. The second paragraph of the syllabus in the Russell and Stephens cases (146 Kan. 634) is therefore overruled and the second paragraph- of the syllabus in the Glover case, this day decided, is adopted and substituted therefor, and the corresponding part of the opinion in the Glover case is approved.
Because of holding there was a want of jurisdiction in the former opinion (146 Kan. 634), no consideration was given there to the evidence introduced to establish in the district court the amount of damages sustained by these two landowners for the taking of land to widen the highway and damages to the land not taken. In the Russell case the land consists of 96 acres four miles west of Kansas City, Kan., with 1,600 feet fronting on the south side of thh Reidy Road. The state highway commission widened the road by taking a strip 40 feet wide and 1,600 feet in length, also a strip 20 feet wide and 152 feet long for a channel, also a construction easement 50 feet square, making a total of 2.1 acres taken. The condemnation commissioners made an award of $750.75 for the land taken and damages to that not taken. On appeal the jury rendered, a verdict for $3,502.
The highway commission objected to much of the evidence introduced to establish the value and damages, and now assign as error the overruling of such objections. Only about 15 acres of the land was in cultivation. The rest of it was timber land and pasture, and was used for a riding academy. There was a spring on the land, and formerly a lake, but there is no lake there now. It has been filled up. The grade of the road liad been raised from about one foot above the general level to about six feet, and the channel for the draw or stream has been widened and extended.
One witness estimated the land taken at $500 per acre because “ground fronting on the road is always worth more,” although it “is no better than that immediately in the rear of it.” Another witness took into consideration the fact of there having been formerly a lake on the land, and several platted lots around it which had sold for $400 to $600 each. Another witness arrived at his estimate of the value by considering the superior value of frontage ground above other ground in the same tract, and also because of the former existence of the lake on the premises. Neither this extra value of frontage ground nor the earlier existence of a lake, now dry, are proper elements in arriving at the present value of land taken or depreciation in value of land not taken, and because they were taken into consideration in making the estimates the verdict doubtless was based thereon. Evidence based upon such estimates is improper and erroneous and necessitates a new trial.
In the Stephens case the land involved consists of 80 acres on the south side of the Reidy road, which was widened through this land, with a frontage of 1,320 feet, so that the land taken was .96 of an acre. It was about five miles west of Kansas City, Kan. The grade was changed part of the way. The fill was raised, and in another part the cut was deepened. A small part of the land taken was for a construction easement, and the driveway was changed. The land was used for farming, except about 15 acres in timber; besides there were many shade and fruit trees on the premises. The amount of the award was $810.25 and the verdict rendered at the close of the trial in the district court was $5,479.01.
One of the witnesses in this case used a difference in frontage value of four times as much for the front land taken as that which was the value of the new frontage land. This was an improper discrimination and basis of valuation. The same witness took into consideration his judgment that this land was an ideal tract for platting purposes, although it had never been used for that purpose, which was rather speculative: Especially for the reason of the improper estimate of frontage in this case, as in the Russell case, there was error in this character of proof of value and it necessitates a reversal.
Both cases are reversed, with directions to grant a new trial in each. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action to recover damages for personal injuries alleged to have been sustained by plaintiff, a customer in defendant’s store, as a result of a fall on a slippery floor. The jury was unable to agree, and a mistrial was declared. The defendants, S. H. Kress & Co., and Vern Decker, its general manager, filed separate general demurrers to plaintiff’s evidence,-which were overruled. From those rulings the defendants appeal.
The defendants contend plaintiff’s evidence was insufficient to establish the charge of negligence. The material allegations of negligence were:
“That said floor at said time and place had been recently covered with a thick coating of oil, making the floor, at the place where she slipped and fell, slippery and dangerous . . .
“That said injuries and her consequent physical condition are the direct and proximate result of the carelessness and negligence of the defendants and each of them concurring therein, in placing on said floor large quantities of oil and rendering said floor and aisle in said store slick, slippery and dangerous to the life and limb of the customers of said store, including this plaintiff, and knowing said aisle to be in such dangerous condition, negligently and with wanton disregard for the safety of persons, including this plaintiff, trading in or entering said store, permitted them to use said aisle notwithstanding the danger which they knew, or in the exercise of due diligence could have known, was involved in the use thereof.”
The answer admitted the defendant, Decker, was the general manager of S. H. Kress & CÓ.; it contained a general denial, and alleged the proximate cause of plaintiff’s injury was her own negligence.
Was the evidence sufficient to take the case to the jury? Plaintiff was accompanied to the store by her daughter, Lorene Walker. The material portion of her daughter’s testimony was in substance as follows: She lived at Weir, and was deputy clerk of the district court of Cherokee county; she and her mother entered defendant’s store at about eight o’clock in the evening of October 12, 1935, to purchase a dog collar; they entered the store from the east and walked west in the second aisle from the south; she preceded her mother by probably three or four feet; they were in no rush; they had passed the first section of counters when she heard somebody slip and when she turned around, her mother was lying in the middle of the aisle on her back with her head to the west; she did not see her mother fall, but immediately went back to help her; a man standing in the aisle helped her mother to a sitting position; a girl who worked in the store also helped her mother; she first saw the defendant, Decker, the manager of the Kress store, that evening in the anteroom; her mother was assisted to the back part of the store; she had a conversation with Mr. Decker, the pertinent portion of which, was:
“A. Well, I didn’t know who he was at the time, but he asked me what happened and I said ‘my mother slipped on the floor.’ He said, ‘She did?’ and I says, ‘Yes, your floors are oiled,’ and he said, ‘Yes’ — I don’t know whether he said, ‘They were heavily oiled’ or ‘freshly oiled,’ but he made the remark that they were oiled floors.
“Q. Did he make any further statement in regard to the floor there? A. Yes, he told my brother that they were oiled.
“Q. Did he say anything about when they were oiled? A. No, if he said ‘freshly oiled’ I presume he said they were just oiled, but I don’t recall whether he said ‘freshly’ or ‘heavily.’
“Q. He said either ‘freshly oiled’ or ‘heavily oiled’? A. Yes, sir.”
The witness returned to the place where her mother had fallen and observed a streak about three quarters of an inch wide and possibly eighteen inches or two feet long; her mother was wearing Red Cross shoes; they were walking shoes and the heel was possibly a little more than an inch in height; her mother wore a blue spring coat; after the fall there were dirty spots on the back of her coat, nearly up to her shoulder; she felt of the spotted places on the coat; in her judgment the dirty spots on the coat were oil; her mother’s hat had the same kind of dirt on it.
On cross-examination the same witness testified in substance: When she first saw her mother she was prone on the floor; at the time she had the conversation with Mr. Decker there were present, her mother, Mr. Decker, Rachel Walker, her sister-in-law, and one of the employees; she returned to the spot where her mother had fallen within about ten minutes after the fall, to see whether she had dropped any packages; her mother’s heels contained leather heel caps; the aisle was open for traffic and she saw nothing which prevented anyone from using it.
Mrs. Rachel Walker, a daughter-in-law of plaintiff, testified in substance: She did not see the accident; Lorene, the daughter of plaintiff, came to Short's Bootery Store to tell the witness’ husband about her mother’s fall, and the witness went to the Kress store where she found the manager, another girl and the plaintiff; Lorene, the daughter, went back with her; she had a conversation with the manager, which was related as follows:
“Q. Will you just relate what was said in that conversation? A. Well, we were talking about the accident and he made the remark that the floor had been freshly oiled, and he said it was very slick.”
On cross-examination the same witness testified in substance: She came to the Kress store between eight and eight-thirty, which was near closing time; the store closed at eight-thirty; her husband accompanied her and they went to the back entrance; at the time of the conversation there were present Mr. Decker, her husband, Lorene and the plaintiff; this conversation was between her and Mr. Decker.
Mrs. George Redell, a customer in the store, stated in substance: She did not see Mrs. Walker fall, but she heard her fall; she thought plaintiff had fallen forward on her face, but she would not say just how she fell.
W. S. Lyerla, a teacher in the College at Pittsburg, testified in substance: Plaintiff had started to fall before he saw her; she fell between the counters and he did not see the impact, but it seemed to him she had fallen slightly backward.
The material portion of plaintiff’s testimony in substance was: She did not know exactly how she fell, but while walking in the aisle she suddenly slipped and fell; she was facing almost directly toward the front of the store when they picked her up; she did not see anything which caused her to fall; she fell full length and hit the back of her head; it was her head which hurt her most; she was taken to the rear of the room and a doctor was called who gave her emergency treatment; she was then taken to Mt. Carmel Hospital.
■ On cross-examination she testified in substance: She thought she had been in the store as frequently as two or three times a month over a period of several years; she had paid no particular attention to the floor; she knew it was a board floor, but she had not given it any thought; she supposed it was an oiled floor, but she did not know what was on it; she was facing east after she fell; Doctor Rush came to attend her; she heard people talking all around her, but she did not remember any of the conversation.
Defendants do not contend there was no evidence of injury, but insist negligence was not shown. They claim it is not negligence per se to oil a floor, and- that a storekeeper is not an insurer of the safety of his customers. • In support of th'e;rulé they cite Thogmartin v. Koppel, 145 Kan. 347, 65 P. 2d 571; Relahan v. F. W. Woolworth Co., 145 Kan. 884, 67 P. 2d 538, and other authorities. Plaintiff concedes that to be the rule. Defendants, in effect, urge that notwithstanding the floor was shown to have been very slippery it was nevertheless imperative that plaintiff further show in what particular defendants failed to exercise due care in oiling the floor. They contend it was in no wise shown an improper method of oiling was employed, or that the wrong mechanism was erüployed, or that unsuitable oil was used, or that it was applied in excessive quantities. In support of that doctrine our attention is directed to decisions from foreign jurisdictions, among which are Spickernagle v. Woolworth, 236 Pa. St. 496, 84 Atl. 909; Tenbrink v. F. W. Woolworth Co., (R. I.) 153 Atl. 245; McCann v. Gordon, 315 Pa. St. 367, 172 Atl. 644; Ilgenfritz v. Missouri Power & Light Co., (Mo.) 101 S. W. 2d 723; Smith v. Union & New Haven Trust Co., 121 Conn. 369, 185 Atl. 81; Bonawitt v. Sisters of Charity, 43 Ohio App. 347, 182 N. E. 661; Kipp v. F. W. Woolworth & Co., 150 App. Div. 283, 134 N. Y. S. 646; J. C. Penney Co. v. Robison, 128 Ohio St. 626, 193 N. E. 401, and Dimarco v. Cupp Grocery Co., 88 Pa. Superior Ct. 449.
;■ The list contains well-reasoned cases, but we do not find that they support á statement of principle quite so sweeping and general in its application as that urged by; defendants. Can it seriously be contended plaintiff’s action must fail, notwithstanding-she-has shown a dangerous condition to exist at the time of the fall, simply because she did not see or know the exact method employed by defendants in. oiling the-floor and hence was unable to show an improper method had been used? Does an injured customer have the burden of showing the exact quality or quantity of oil which properly should have been applied to a wooden floor, without knowing the previous condition of the floor, after actually having shown the floor to be very slippery? We think not; Circumstances may arise under which proof of some of the factors suggested, or all of them, may become material, but such is not the rule where the condition of the floor has been established as dangerous. In the Thogmartin case, supra, it was said:
“Defendant’s argument on its demurrer is'-limited to the contention the evidence does not show negligence;, that there was no evidence as to the manner in which the janitor mopped die. floor and ,in the absence thereof it will be presumed due care was used; that mopping of a floor is not negligence per se and therefore plaintiff’s evidence does not warrant recovery. ... It may be conceded that mopping a floor is not negligence per se, and it is true there was no direct evidence the mopping was not being properly done, but there was evidence that it was being so done that the floor was wet and slippery when plaintiff entered and fell, and that the condition was not observable to her until she had fallen. If there was any defect in her proof as to the slippery condition of the floor, it may be remarked- that it was corroborated in part by defendant’s janitor, who, as a witness for his employer, testified that after she had gone about five or six feet she slipped or skidded.
“We cannot say as a matter of law that plaintiff’s proof showed there was not a latent defect in the floor caused by the acts of the janitor in mopping the linoleum covering.
“From what has been said it follows the trial court did not err in denying defendant’s request for a peremptory instruction.” (p. 350.) (See, also, Bury v. Woolworth Co., 129 Kan. 514, 283 Pac. 917.)
In the instant case the necessary testimony was supplied by the evidence introduced on behalf of the plaintiff. Assuming, however, that some such proof as defendants urge, was in fact necessary, in the instant case, was not the record evidence some proof in itself that the oiling had not been properly done? The evidence was the manager had not only said “the floor had been ‘freshly oiled,’ or ‘heavily oiled,’” but he had also said “the floor had been freshly oiled and it was very slick.” I: the floor was very slick, can we say there was no evidence the oiling had been done in an unreasonable or improper manner? Obviously not. For the purpose of the demurrer, the trial court was obliged to accept that description as the manager’s own estimate of the condition of the floor. The manager’s statement further disclosed knowledge by defendants of that condition. (Bury v. Woolworth Co., supra.) The evidence showed the aisle was open for use and that plaintiff was using it in an ordinary manner. There is nothing in plaintiff’s evidence to indicate she observed, or in the exercise of reasonable care should have observed, its slippery condition. She was not warned concerning its condition. She wore walking shoes. The mark where she slipped was from eighteen inches to two feet in length. There was oil on her coat nearly to her shoulders, and also on her hat. The length of the marks on the floor tend to indicate she may not only have slipped but that she may have slid. These various facts, when considered as a whole, indicate or at least tend to indicate, the floor was not oiled in a reasonably careful manner.
In passing upon the demurrers the court was, of course, required to view plaintiff’s evidence in the light most favorable to her and to allow all reasonable inferences in her favor. (Prewett v. Sholl, 120 Kan. 158, 242 Pac. 149; Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53 P. 2d 923.) It follows the demurrers were properly overruled.
This brings us to a consideration of plaintiff’s cross-appeal. That appeal was perfected from several rulings, but plaintiff now urges only the alleged error in orders excluding portions of her testimony. Defendants assert she is not entitled to have the alleged errors reviewed. They contend she filed no motion for a new trial and that such motion is a prerequisite for a cross-appeal as well as for an original appeal. In support of their contention they cite Wheeler v. Caldwell, 68 Kan. 776, 74 Pac. 1031; King v. Stephens, 113 Kan. 558, 563, 215 Pac. 311; Bolinger v. Giles, 125 Kan. 53, 57, 262 Pac. 1022. In those cases a judgment had been rendered. In the instant case a mistrial was declared and hence no issue of fact had been examined and determined. There was no occasion for a motion for a new trial by the plaintiff, in order to obtain a reexamination of a fact concerning which there had been no previous examination. G. S. 1935, 60-3001, defines a new trial as follows:
“A new trial is a reexamination in the same court of an issue of fact after a verdict by a jury, report of a referee or a decision by the court.”
See, also, Wagner v. Railway Co., 73 Kan. 283, 284 Pac. 299.
Defendants next urge that if evidence was erroneously excluded such ruling constituted a trial error, and since a mistrial was declared, the question of its exclusion is moot and cannot be reviewed at this time. In support of that contention we are referred to the case of Israel v. Lawrence, 126 Kan. 586, 270 Pac. 602, in which a mistrial was declared, and where it was said:
“At the close of all the evidence defendant moved for a directed verdict in his favor. That was overruled, and an appeal was attempted to be made from that ruling. This is not an appealable order. It is simply a request for an instruction, and error, if any, in refusing it can be questioned on appeal only after the case itself has reached judgment and a motion for a new trial has been filed and overruled.” (p. 589.)
That portion of the appeal in the Israel case constituted an attempt to perfect an original, a direct appeal from a nonappealable order. Obviously that could not be done. That is not the question in the instant cross-appeal. In this case the original appeal by defendants is from the ruling on their demurrers. That is a final order and hence appealable. (G. S. 1935, 60-3302; Israel v. Lawrence, supra.) The exact question before us is therefore not whether plaintiff, prior to a verdict and judgment, could perfect an original or direct appeal from a ruling excluding evidence. The real question is whether, after a final order, to wit, the overruling of a demurrer to evidence, and an appeal from such order, the appellee shall be denied the right to a review of an order excluding testimony, which testimony is not involved in the ruling on the demurrer, but the competency of which will again become an issue in the trial, simply because appellee filed no motion for a new trial, when under the circumstances she in fact never had an opportunity to file such a motion. We think not. In Berg v. Citizens State Bank, 127 Kan. 354, 273 Pac. 462, it was said:
“The plaintiffs complain of the exclusion of evidence. Defendants reply that the excluded evidence offered by the plaintiffs was not reproduced on the motion for a new trial, so that the alleged error is not available on review. (R. S. 60-3004, Robinson v. Sullivan, ante, p. 248.) The rule invoked by the defendant does not apply because the court sustained a demurrer to plaintiffs’ evidence and no verdict or decision.was rendered. (Wagner v. Railway Co., 73 Kan. 283, 85 Pac. 299; City of McPherson v. Stucker, 122 Kan. 595, 256 Pac. 963.)” (p. 357.)
It is further our opinion the statute on cross-appeals, applicable to the instant appeal (Laws 1937, ch. 268, § 4), contemplates such right of review. The pertinent portion thereof reads:
“When notice of appeal has been served in a case and the appellee desires to have a review of rulings and decisions of which he complains, he shall, within twenty days after the notice of appeal is filed with the clerk of the trial court, give notice to the adverse party, or his attorney of record, of his cross-appeal and file the same with the clerk of the trial court, who shall forthwith forward a duly attested copy of it to the clerk of the supreme court.”
It is not contended plaintiff has failed to comply with the procedure prescribed by the statute for obtaining such review.
This brings us to a consideration of the excluded evidence. As to a portion of such evidence we are obliged to first inquire whether the ’mere fact that plaintiff has a right of review, relieves her from the, c[uty of presenting the excluded evidence to the trial court in such form as to enable that court and this court to intelligently pass upon its admissibility. Obviously it does not. The evidence of the witness must, either be contained in the record of the trial, or be produced in support of a motion for -a new trial by affidavit of the witness or by an oral examination-j^f...the, ivitness unless the evidence be documentary or by deposition! (Bank v. Seaunier, 104 Kan. 7, 8, 178 Pac. 239 ; Cole v. Drum, 109 Kan. 148, 150, 197 Pac. 1105.) In the instant case we do not have before us the examination of the witness, Roundtree, together with the rulings thereon, nor do we have her affidavit of what her testimony would have been had she been permitted to testify. We simply have a statement of her counsel to the court of what he hoped to prove by the witness. Such general proffer is not a sufficient basis for appellate review in criminal or civil cases. (Elliott v. Oil Co., 106 Kan. 248, 251, 187 Pac. 692; State v. Ball, 110 Kan. 428, 432, 204 Pac. 701; State, ex rel., v. Wright, 140 Kan. 679, 683, 684, 38 P. 2d 125.)
What about the excluded testimony of the witness, Coxie? His testimony was stricken, but his examination is a part of the record and we can therefore reach the alleged error. The witness may, perhaps, properly be called a wood expert. He was also familiar with the effect of oil upon various kinds of floors. There was no objection to his qualifications in these respects. His testimony as to when, in his opinion, the floor had last been-oiled, was proper and should not have been stricken. His testimony to the effect that some of the boards in this particular aisle were much newer boards and that they had been replaced within the last few years was also competent.
Plaintiff’s accident occurred on October 12, 1935. The witness, Coxie, was in the Kress store only once, which was on January 1, 1937, the day he examined the floor. The case was tried 'January 14, 1937. The testimony complained of most was the answer to the following question:
“Q. Could you tell whether or not the wood was thoroughly saturated with oil so that it would spew up, as you say? A. From the looks of it, it was.”
According to the witness, that was the condition of the floor on January 1, 1937. The question to be determined was what was its condition, as to being oily, on October 12,1935? The court overruled defendants’ objection upon the condition that plaintiff would connect this testimony with the condition of the floor on the date of the accident. The connection as to'.'the oily condition was never made and the court later properly struck that'testimony. It also clearly appears plaintiff did not hope by .this witness to show, the oily condition on the date of the accident, as her counsel 'said, “I said I would show it was the same flooring.”/. It was,.however, necessary to show similarity not only of th^ floqring, büt of the oily condition of the flooring to make the" above testimony concerning the “spewing." up of oil” on January' 1, 1937, competent. {Headington v. Central Building Co., 141 Kan. 338, 340, 41 P. 2d 1040.) In view of the foregoing, it follows that aside from the rulings excluding certain testimony of the witness, Coxie, the judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action on a promissory note, executed by defendant, payable to the order of L. A. Savidge, and by him endorsed, which plaintiff alleged it held in due course. The answer alleged fraud which induced the execution of the note, and further alleged that the payee, plaintiff, and another engaged in a fraudulent conspiracy, as a result of which the note was executed. A jury trial resulted in a verdict and judgment for defendant. Plaintiff has appealed.
Appellant’s principal argument in this court relates to the conspiracy branch of the defense, and it is contended that the evidence is insufficient to establish the conspiracy alleged, and that some of it was improperly received. While we regard these points as not well taken, it is not necessary to state the evidence bearing upon them in detail, or to analyze them with care. There is an abundance of evidence to sustain a finding of fraud on the part of the payee which induced the execution of the note. Appellant does.not seriously contend otherwise. In that situation, our statute (G. S. 1935, 52-509) placed the burden of proof on plaintiff to show that it was a holder in due course. (Beachy v. Jones, 108 Kan. 236, 241, 195 Pac. 184; Bank v. Birch, 111 Kan. 283, 286, 207 Pac. 191; Security Co. v. Low, 112 Kan. 153, 155, 210 Pac. 190; Trust Co. v. Gill, 113 Kan. 261, 270, 214 Pac. 413; Weisendanger v. Lind, 114 Kan. 523, 526, 220 Pac. 263; Coney v. Caldwell, 116 Kan. 354, 356, 226 Pac. 783; Smith v. Jones, 145 Kan. 892, 67 P. 2d 506.) While plaintiff offered evidence which, standing alone, would have justified a finding that it was a holder in due course, there was much in the evidence to weaken that view. Indeed, had the burden been on defendant to show that plaintiff was not a holder in due course the evidence would have sustained a finding for defendant.
This was primarily a fact case. The issue, whether plaintiff was a holder in due course, was for the jury and trial court. There is no new or unusual question of law involved. There is nothing to indicate plaintiff did not have a fair trial.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to contest a will, and from an adverse judgment plaintiffs appeal.
Esther Anderson, the deceased testatrix, was the youngest of ten children, one of whom had predeceased her. The plaintiffs were her five oldest brothers, and the defendants were her two youngest brothers and a sister. The father, who died in 1913, owned about 3,000 acres of land in the vicinity of his home place. Whether by will or by division among the children does not appear, but this estate was divided, and at her death Esther owned about 400 acres of land, also personal property consisting of an automobile, a large number of chickens, money in a bank, and other personal property, the value of any specific item not being shown. In addition to her lands individually owned, she had an interest in what was called the Peter Gust farm.
The will of Esther Anderson gave all her property to the younger brothers, Oscar and Elmer, and to the sister Hannah, in equal shares, and appointed Oscar as executor. There was no,contention that the will was not executed in manner and form as required by statute. The grounds for contest as alleged in the petition were that at the time of execution of the will Esther was not of sound mind and memory; that she was mentally and physically incapable of making a will; that the will was prepared at the direction of Hannah, one of the beneficiaries, and that Hannah was the confidential agent and adviser of Esther; that Esther did not read and did not know the contents of the will and did not have independent advice with reference to it, and further that all the beneficiaries exercised undue influence on Esther to procure the making of the will.
At the trial there were fifteen witnesses whose testimony tended to support plaintiffs’ claims, and about the same number whose testimony was to the contrary.
The trial court made findings of fact', which are summarized and quoted as follows: After reciting the family history, and that after the death of the father in 1913 and the mother in 1922 Esther and her brothers, Oscar and Elmer, continued to occupy the old family homestead as their residence, a statement is made as to the property owned by Esther and — ■
“4. That during her entire life Esther Anderson was eccentric, timid, backward and of a retiring nature; that she talked but little and was especially timid in the presence of strangers; that she had but very little education, but was able to write her name; that she entrusted most of her business of looking after her farm land to her brother, Oscar, although there is some evidence that she dictated to her brother the terms upon which said land should be rented or leased. That she was hardworking and thrifty and always had a large flock of chickens. That she never had any intimate friends outside of the family and went but little, and then usually in the company of some of her brothers or of her sister.”
After stating the will was executed and made disposition of her property, the court further found:
“6. That prior to the execution of said will and testament the said will was drawn by one B. C. Pickering, an attorney at law, and that prior to signing the same said will was discussed in its entirety, and paragraph by paragraph, by the said B. C. Pickering to and in the presence of the said Esther Anderson, and that thereafter said Esther Anderson affixed her signature to said last will and testament by making her mark thereon in the presence of B. C. Pickering and Jack Plummer, the witnesses to said will.
“7. That at the time of the execution of said last will and testament the defendants, Oscar Anderson and Elmer Anderson, were not present, and that the defendant, Hannah Nyquist, was in the house, but in and out of the room of Esther Anderson, and that there is no evidence of undue influence by Elmer Anderson, Oscar Anderson, Hannah Nyquist, or either of them upon the said Esther Anderson.
“8. That at the time of the execution of said last will and testament the said Esther Anderson was confined to her bed suffering with cancer of the uterus and that she had been afflicted with such disease in its various stages since about October, 1934, and at the time of the execution of said will she was in a weakened condition physically.
“9. That at times during her last illness said Esther Anderson suffered severe pain and was near unconsciousness to such extent that she did not recognize her relatives and friends; that at other times during her last illness the said Esther Anderson was perfectly rational and possessed the same mental capacity and reasoning power which she had had throughout her entire life, and the evidence discloses that said last will and testament was executed at a time when the said Esther Anderson was sane and rational.
“11. That at the time of the execution of said last will and testament by Esther Anderson she was of sound mind and mentally competent to make said last will and testament, that she was mentally competent to appreciate and know the property which she owned and to know and understand who her relatives were and that said last will and testament should be upheld and sustained.”
The court also found that the will had been duly admitted to probate. It concluded, as a matter of law, that Esther Anderson had mental capacity to make the will and that it should be upheld.
The specifications of error are in effect that the trial court erred because the evidence conclusively proved the various grounds of plaintiff’s petition, and that the trial court erred in finding to the contrary, and in overruling plaintiffs’ motion for a new trial. As presented in the brief, the argument, at least in large part, is predicated on the proposition the trial court did not have the benefit of a jury, and that the evidence should be carefully scrutinized to determine whether the trial court reached a true and proper conclusion, it being said:
“Therefore, in the ease at bar, we ask the court to carefully review the evidence and render its opinion in this case, uninfluenced by the fact that the trial court decided the case in the lower court adversely to the five brothers who have seen fit to attack the will of the maiden sister.”
What we are here asked to do cannot be done.
Contest of a will was under consideration in Evans v. Evans, 109 Kan. 608, 612, 201 Pac. 60, and it was there said:
“It is said the findings of fact were not sustained by sufficient evidence. The evidence was conflicting, the credibility of testimony was involved, and this court is precluded, by well-understood rules, from disturbing the findings.” (p. 612.)
Another action to contest a will was considered in Geopfert v. Geopfert, 141 Kan. 454, 41 P. 2d 741, and it was there held:
“In an action as above outlined, where defendant’s evidence controverted plaintiff’s evidence, a question of fact was presented for the determination of the- trial court, and that finding is conclusive on appeal.” (Syl. ¶ 2.)
And many other decisions of like effect might be cited.
The function of the appellate court is to determine whether or not there is evidence which supports the findings of the trial court. It would extend this opinion to undue length to set out in detail specific statements of witnesses, but there was ample evidence to show that whilé the testatrix had always been rather timid and diffident in meeting strangers, and had never mixed much in the activities of the community, she did look after her own affairs rather successfully.
In an action to contest a will, the burden is on the proponents of the will to make a prima facie showing of capacity to make a will. H'ere the execution of the will and its admission to probate is alleged in the petition, and that made a prima facie case. The test of mental capacity to make a will is that the testator know the property he has, know those persons who are the natural objects of his bounty, and be able to make a reasonable and understandable disposition of such property. (See Klose v. Collins, 137 Kan. 321, 20 P. 2d 494, and cases cited.) Where it is admitted or the proof shows the will was duly admitted to probate, and an effort is made to contest it on the ground its terms were procured by undue influence, the burden of proof is upon the contestors. And to be sufficient to destroy the will, the proof must show that the claimed undue influence amounts to coercion, compulsion and restraint which destroys the testator’s free agency, and by overcoming his power of resistance obliges or causes him to adopt the will of another rather than ex ercise his own. (See Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634, and cases cited.)
Owing to objections made by appellants, there is no specific testimony leading up to the drafting of the will by the attorney who attended to it, but he testified that he prepared the will and went to the Anderson home, where he asked the testatrix if she had directed him to prepare a will and she stated she had. He then went over the will, item by item, with her, and she stated that it was the way she wanted it; that she understood it and that she wanted no changes made in it as drawn. Thereafter she executed it. On cross-examination he stated that she was intelligent and knew what she was doing, and that after the will was drawn she directed that a check be drawn upon her bank to pay him. Other witnesses testified to their acquaintance with the testatrix and their opportunities to form an opinion as to her mental capacity and that she was of sound mind. No purpose can be served in detailing that evidence nor evidence to the contrary.
Insofar as exercise of undue influence is concerned, there is no direct evidence. Such contention as is made with respect thereto is coupled with the claim that appellees were the confidential advisers of the testatrix, a phase of the matter which will be mentioned later. The evidence disclosed that neither Esther, the testatrix, nor her brothers, Elmer and Oscar, had ever married, and that Esther, the youngest, was 44 years old at the time of her death, and that they constituted a remnant of the original family of their father and mother and lived on the old home place, and that Hannah, although married, spent a great deal of time at the home place. It would not be surprising that Esther would feel closer to her two brothers at the home and her only living sister than she would to the older brothers, all of whom had long since left and established homes of their own. The fact Elmer, Oscar, and Hannah might be in position to unduly influence Esther does not establish the fact they did so. It was said in Klose v. Collins, supra, that:
“Natural human desire, motive and opportunity to exercise undue influence, will not alone authorize the inference that it was in fact exercised, nor will suspicion or possibility of parties having induced the making of a will favorable to them as beneficiaries be enough to justify a finding of undue influence.” (Syl. If4.)
And in Ginter v. Ginter, supra, the syllabus states:
“When a contested will appears to have been duly executed and attested according to the statute of wills the law presumes it to be valid. This presump tion must be overcome by proof, and the burden of proof rests upon whoever alleges it to be the product of undue influence or fraud.
“In all such cases the proof must be substantial, so that the judges of fact, having a proper understanding of what undue influence is, may perceive by whom and in what manner it has been exercised, and what effect it has had upon the will.” (Syl. JJ 3, 4.)
Measured by the standards established by the above cases, the proof here.falls far short of showing that either of the three beneficiaries under Esther’s will exercised any undue influence on her to procure her to make a will in their favor.
It is contended, however, that the beneficiaries under the will were confidential agents and advisers of the testatrix and that she did not have independent advice concerning her will. It may here be noted that in the petition such a charge was leveled only at Hannah. There is little evidence to warrant any conclusion that either of the two brothers or the sister were confidential advisers of the testatrix, and there is evidence to warrant a conclusion they were not. There is no evidence that Oscar or Hannah had anything whatever to do with the preparation of the will. While not entirely clear, it seems that Esther sent Elmer to her attorney with instructions as to how she wanted the will drawn. There is no evidence that Elmer did anything except to see the attorney and deliver the instructions. Thereafter the attorney prepared the will and personally took it to the home of the testatrix, where he went over it with her as detailed above. During the attorney’s conversation with Esther, neither of the two brothers nor the sister were present. There is no ground for holding the will invalid by reason of G. S. 1935, 22-214.
No error has been made to appear, and the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to foreclose a mortgage. Judgment was for plaintiff. On the motion to confirm the sale the period of redemption was fixed at six months. ’Defendants appeal from the order fixing the period of redemption.
There was evidence pro and con, both oral and documentary. The essential facts, however, are not in dispute. On October 26, 1926, defendants entered into a contract with Carl and Virginia Ziegler for the purchase of the real estate in question. At the time of the execution of the contract defendants made a down payment of $6,000 cash; the balance was to be paid in yearly payments. The Zieglers executed their deed to the property and placed it in escrow to be delivered to defendants after they had made certain payments. The purchase price named in the deed was $29,500. Subsequently, due to difficulty in finding a tenant for the building, additional transactions were had between the Zieglers and defendants. One W. E. Ziegler agreed to spend $14,000 on repairs for the building. Under this agreement Ziegler spent $14,000, and defendants, $7,227, making $21,227 spent on repairs. At the same time a supplemental contract was entered into between Carl and Virginia, on one hand, and defendants on the other. This contract recited that W. E. Ziegler had furnished $14,000 for these repairs; that defendants had given their promissory note to W. E. Ziegler for this amount and had agreed to pay this at the rate of $500 a month until the entire amount had been paid; that to secure this note defendants had given W. E. Ziegler a mortgage on their home and had assigned the rentals on the property in question to W. E. Ziegler. In this contract Carl and Virginia Ziegler agreed to defer the date of the payment due under the original contract on September 18, 1927, and the one due September 18, 1928, until September 18, 1936 and 1937, respectively. It was also provided that after the $14,000 note was paid to W. E. Ziegler the rentals accruing from the real estate should be deposited in a bank to the credit of Carl and Virginia Ziegler until the purchase price was paid. This $14,000 note was entirely paid by defendants from the rentals received from the property. It is clear that while the real estate in question was in the name of Carl and Virginia Ziegler it, as a matter of fact, belonged to a sister of Carl as part of the estate of their grandmother, and that the $14,000 furnished by W. E. Ziegler was derived from the same estate. The original contract between Carl and Virginia, on one hand, and defendants on the other, and the subsequent contract between the same parties and the contract between W. E. Ziegler and defendants were all parts of the same transaction and entered into for the common benefit of all parties. On September 22, 1930, defendants borrowed $27,400 from the Monarch Investment Company. This loan was evidenced by two notes, one for $1,400 and one for $26,000. Both these notes were secured by a mortgage on the property. The latter sum was paid to the Zieglers upon the original contract of purchase. Of this $26,000 note, $1,950 was paid upon the principal and $7,952 was paid upon the interest. This note and mortgage were subsequently transferred to the plaintiff in this case. When the mortgage became in default it was foreclosed with the result that has been noted. On the hearing of the motion to confirm the sale the court made findings of fact and conclusions of law. In these findings the court treated the purchase price as set out in the original contract, the down payment of $6,000, the amount of the mortgage, and the payments on its principal as the only elements to be considered. If that theory be the correct one, then one third of the purchase price of $29,400 is $9,800, and since $¡6,000 plus $1,950 equals only $7,950, one third of the purchase price was not paid, and if the mortgage be held to be a purchase-money mortgage then the trial court was correct.
Defendants argue here that more than one third of the purchase price was paid and that the mortgage was not given to secure the purchase price of the real estate. After the court made its findings of fact and conclusions of law defendants made a motion to set them aside. This motion was overruled. Judgment was entered for plaintiff fixing the period of redemption at six months. The appeal is from that order.
Plaintiff raises the point that defendants did not file any motion for a new trial — hence cannot raise in this court on appeal any question touching on the sufficiency of the evidence, the propriety of the findings made and those refused. It is not necessary for the defendants to file a motion for a new trial after a hearing on a motion to confirm. (See Federal Land Bank v. Richardson, 146 Kan. 803, 73 Pac. 1005.) Such a hearing is not a trial such as requires the filing of a motion for a new trial in order to enable this court to consider the correctness of the result reached.
This is a case where there is but little difference in the evidence. The difficulty is as to the effect to be given the proven facts. There is no dispute but that the purchase price of the property, as named in the deed and in the original contract, was $29,500. There is no dispute but that $6,000 was paid in cash at the time the parties entered into the contract. There is no dispute but that defendants borrowed $14,000 and put it into the building. There is no dispute but that this $14,000 was paid by defendants before the mortgage here foreclosed was given. The supplemental contract between the Zieglers and defendants recited all the facts as to the $14,000 payment. The original contract cannot be considered separately from the supplemental one. When this is done we have no trouble in reaching the conclusion that the trial court should have found that the purchase price of this property was $43,500. Once this conclusion is reached, we are led to a further conclusion that the $14,000 spoken of in the evidence was paid on the purchase price. This with the $6,000 paid at the time the contract was entered into makes $20,000 paid on the purchase price. One third of $43,500 is $14,500, hence much more than one third of the purchase price of the property was paid. The period of redemption should have been fixed at eighteen months rather than six.
The judgment of the trial court is reversed with directions to fix the period of redemption at eighteen months. | [
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The opinion of the court was delivered by
Hutchison, J.:
This was an injunction action brought in the district court of Greenwood county by a building and loan association, with office and place of business in that county, against the sheriff, treasurer and board of county commissioners of that county to enjoin and restrain them from collecting from or enforcing payment by plaintiff for its tax liability on its shares of stock for the year 1935 any amount in excess of $433.43, alleging that the assessment of the shares was excessive by reason of an inadvertent and erroneous statement made by the secretary of the association to the county assessor in giving the book value of certain real estate instead of the actual fair cash value of real estate held and owned by it — the book value being $177,579.32, the actual fair cash value being $155,-200 and the difference being $22,379.
The petition alleged that the association made timely application to the county board of equalization for a correction of the error and irregularity in the statement, which was denied, and prior to July 30, 1936, plaintiff filed with the state tax commission its complaint of tax grievance under G. S. 1935, 79-1702, which complaint, it was alleged, the state tax commission arbitrarily and without just cause refused to consider. It was further alleged that the amount tendered was the correct amount of taxes on the shares of stock with interest and that plaintiff had no adequate remedy except by injunction. A corrected statement as to the value of said shares was attached to the petition as an exhibit.
After the overruling of a demurrer to the petition the defendants filed an answer claiming that the statement filed with the county assessor by the plaintiff as to the value of its property was a true and correct statement, that the valuation, assessment and levies made by the commissioners of the county and the state tax commission was a fair and reasonable assessment and that the valuations, assessments and levies so made are final and plaintiff is precluded from being granted the relief for which it pleaded. The answer admitted the other allegations of the petition.
Evidence was introduced concerning the use of the book value of real property and other items of assets and deductions as well as the statement filed by the plaintiff with the county assessor. A stipulation was also made and correspondence with the state tax commission was introduced. The stipulation was to the effect that the secretary of the association had filed with the county assessor on March 25,1935, a sworn statement of the valuation of its shares, which under the heading of assets was the sum of $177,579.32 as the value of the real estate of the association; that such amount was offset and balanced in the financial statement with various liabilities, and the total value of the shares was shown in line 20 of the statement as being $67,521.32; that the association in July, 1936, filed a complaint and tax grievance with the state tax commission seeldng a reduction of the assessed value of its shares on the ground of a clerical error in the return in that the real estate owned had been reported at a value of $22,379 in excess of its actual value, and that the state tax com mission had granted no relief; that the real estate of the association as of March 1, 1935, had been assessed at $71,455; that the sum of $177,579.32, above mentioned as the reported value of the real estate of the association, represents the total amount of the investment of the association in its real estate on March 1,1935, and that a tender was made by the association to the county treasurer on July 20,1937, of the sum of $433.43 as payment in full of all taxes on the shares of the association and interest thereon for the year 1935, which tender was refused by the county treasurer.
Djuring the trial of the cause, which was commenced and concluded on the 25th day of October, 1937, the following language was added to the sixth paragraph of the petition with the consent of the trial court:
“The conduct of the county and state taxing officers in refusing as aforesaid to permit correction of said error and irregularity was arbitrary, oppressive and capricious, amounting to fraud as to plaintiff’s rights.”
The trial court in its journal entry or decree included findings of fact and conclusions of law, although they were not denominated as such, some of which will be later cited or quoted. The decision was in favor of the plaintiff granting an injunction and after the overruling of a motion for a new trial the defendants appealed.
As to the preliminary efforts of the plaintiff to correct this alleged error in the value of the shares of plaintiff association on March 1, 1935, as inadvertently given in the tax statement filed March 25, 1935, by its secretary, the court found:
“That plaintiff made timely application to the appropriate taxing officers of the county and state for correction of the error aforesaid, and for reduction of the stated assessed value of its shares, and that each and all of said taxing officers arbitrarily, oppressively and capriciously failed and refused to consider properly plaintiff’s applications and complaints, or to make or permit any correction of said error.”
The court used the word “timely” as to the making of the application to the taxing officers of the county and state for the correction desired. This was the exact word used by the only witness who mentioned any time as to the application made to the county board of equalization. The county board of equalization is only authorized to consider such matters between the third Monday of May and the 20th day of June each year (G. S. 1935, 79-1602), and an appeal can be taken from the decision of such county board to the state board of equalization within thirty days from the date of the de- cisión, and the state board meets on the second Wednesday of July for the purpose of hearing such appeals. (G. S. 1935, 79-1409.) The first application that the record shows was made'to the state tax commission was in February, 1936, then again on July 21, 1936, and another was made nine days later, on July 30, 1936. So, apparently, nothing whatever was done by the plaintiff to correct this alleged error after its failure before the county board of equalization by way of appeal or otherwise until several months later, and still later, in July, 1936, an original application was filed with the state tax commission as a “tax grievance,” in which it was alleged that the assessor inadvertently and erroneously took from the books of the association the amounts actually invested in its real estate instead of the fair cash value thereof as determined by the assistant building and loan supervisor of Kansas, which was $22,379 less.
It is argued that this application for relief from this tax grievance was made under G. S. 1935, 79-1702. The application was denied by the state tax commission, stating a reason for its action and also directing the $39,968 be transferred from the tangible to the intangible list. A complete copy of the letter written by the state tax commission on August 6, 1936, to the attorney for the association is as follows : ,
“The full commission has gone over and considered the application of the Eureka Building and Loan Association, for a further equalization of its assessed value for 1935. We have examined our records, and letter files. While our independent recollection is somewhat clouded we are quite sure that a representative of this association, accompanied by the superintendent of building and loan associations, came to see us regarding this assessment last February. It occurs to us that the adjustment then made was satisfactory to the association.
“As a result of that conference we find our letter of February 10, 1936, to Mr. Brookover, your county clerk. In this letter to him we advised him to so correct his tax rolls with relation to this association, so there would show $39,968 intangible and $27,533 tangible valuation. A letter we have just received from Mr. Brookover confirms these figures. This commission is now of the opinion that this assessment should not be disturbed. To refer back to 1936 and open up this matter for a reequalization, would really amount to a rebate of taxes.
“It is our opinion that Benn v. Slaymaker, in 93 Kansas, page 64, is directly in point. Another thought occurs to us. The association made this return and we have accepted the figures as furnished by the association. It seems rather late now for the association to press its claim that the figures are not correct. Mr. McCue seems to have the idea that if the value of the real estate as shown was reduced it would automatically reduce the amount shown at line 8. We do not believe that that necessarily follows. The first part of this report is quite independent of the second part. The first part is simply a financial statement. The second part relates to the value of shares.
“This commission is satisfied that this assessment should not be disturbed.”
Line 8 is the last line and total of the assets, and reads as follows:
“Total amount to credit all shares, $315,758.94.”
This letter of the state tax commission not only gives a reason for its declining to grant the relief requested, but it also transfers a substantial amount of the valuation from the tangible to the intangible list, which would make quite a saving in rate and amount of taxes imposed. The only act of this commission or of the county board we can get from the record is a failure and refusal to grant the application of the association by way of correcting the value of the real property. There is no fact found that makes such acts arbitrary, oppressive or capricious.
“Arbitrary” is defined to be “without adequate determining principles; . . . not done or acting according to reason or judgment.” (4 C. J. 1476.)
“Oppressive” is defined as “harsh, rigorous, or severe.” (46 C. J. 1121.)
“Capricious” is “changing apparently without regard to any laws.” (Webster’s New International Dictionary, 2d ed.)
The case cited in the letter above quoted not only gives reasons for refusing to grant the request but cites a decision in support of such reason. The case is Benn v. Slaymaker, 93 Kan. 64, 143 Pac. 503, the syllabus of which is as follows:
“On April 12, 1912, the managing partner of a firm returned its personal property for taxation. No steps were taken to correct the valuation which he placed on the property until April 22, 1913, when the passive partner filed a petition with the tax commission to reduce the valuation, alleging that the valuation was excessive and was made so with intent on the part of the managing partner to defraud him. The tax commission ruled that it had no authority to grant the desired relief. Held, the' ruling was correct.
“The decision in the case of Finney County v. Bullard, 77 Kan. 349, 94 Pac. 129, that an assessment is not deemed fraudulent merely because it is excessive, and that a court of equity has no jurisdiction under its general power to correct an unequal and unjust assessment when a statutory board has been provided for that purpose, approved and followed.”
The rule therein.stated has not been modified, but was cited in the case of State, ex rel., v. Mowry, 119 Kan. 74, 237 Pac. 1032. In that case extensive findings of facts were made which unmistakably showed fraud, and it was there held that- — ■
“Conduct of an officer which is so oppressive, arbitrary and capricious as to amount to fraud will vitiate his official acts, and courts within their equity jurisdiction have power to relieve against all injuries that would result therefrom.” (Syl.1l 1.)
In the Benn case, supra, the case of Finney County v. Bullard, 77 Kan. 349, 94 Pac. 129, was followed, where it was held that—
“Injunction will not be awarded to prevent the collection of a tax on the ground of a-n irregular or excessive assessment unless the case comes clearly under some acknowledged head of equity jurisdiction.
“In the absence of fraud, or conduct which is equivalent to fraud, an overvaluation of property will not of itself justify an injunction against the collection of taxes, especially where it would operate to invalidate the whole tax levy.
“The statute provides that irregular and excessive assessments may be corrected before a board of equalization, and in the absence of grounds justifying a resort to a court of equity the decision of the statutory board on valuation is plenary and final.” (Syl. ¶¶ 1, 2, 4.)
In 61 C. J. 1077 it is said:
“Injunction will not lie to restrain the collection of a tax merely on an allegation that the valuation of the property assessed is excessive; and to obtain the relief it is not sufficient that the' tax officials made a mistake in their valuation, that the court might reach a different conclusion, or that there is a difference of opinion regarding the reasonableness of the valuation; the courts will not, in the absence of illegal or fraudulent exercise thereof, control the administrative discretion of taxing officers.” (See also, National Bank v. Fisher, 45 Kan. 726, 26 Pac. 482; Winfield Bank v. Nipp, 47 Kan. 744, 28 Pac. 1015; Bank of Santa Fe v. Buster, 50 Kan. 356, 31 Pac. 1094; Dowell v. Railway Co., 83 Kan. 562, 112 Pac. 152.)
We do not think that the failure and refusal of the county board or the state tax commission to grant the relief for which the plaintiff applied was such as to justify a conclusion that such failure and refusal was arbitrary, oppressive or capricious. Unless it was such, or the assessment was void, or the matter involved was not administrative, but judicial, or such as would involve an interpretation of a law, the court would not have the right, power or authority to enjoin the collection of the tax.
As stated before, the matter involved before the state tax commission was a tax grievance under G. S'. 1935, 79-1702, and as claimed by the plaintiff, if it had been permitted to correct the alleged error in the item of value of its real estate owned, it would have affected the assessed valuation of the shares. There are involved here three distinct values to be considered: first, there is the assessed value of the real estate owned by the association, which assessed valuation was placed thereon by the proper assessing officers without consulting with the owner, and upon which the association in this case would have to pay the regular tax imposed; then there is the book value of the real estate taken in by the association partly by foreclosure proceedings, which includes the unpaid part of the mortgage, the court costs and the unpaid taxes and insurance, which may make this book value much more than it is actually worth, but that is what it has cost the association. This is the item of $177,-579.32 in this case. The third item under consideration is the actual fair, cash value of this real estate, which is neither the amount at which it was assessed nor the cost of it, but what it is really worth, which in this case the association Claims to be $155,200. The county board and the state tax commission have both failed and refused to correct this alleged error and reduce the value of this real estate from $177,579.32 to $155,200, and thereby reduce the assessed value of the shares of the association by $22,379. The trial court made the following finding:
“That the total actual, fair, cash value of all plaintiff’s real estate as of March 1, 1935, did not exceed the sum of $155,200, which sum had been determined by impartial appraisal to be the actual, fair, cash value of all plaintiff’s real estate shortly prior to the 1st day of March, 1935.”
This was not, strictly speaking, an assessed valuation, but the difference between it and the value given by the association in its return was $22,379, and that amount was deducted by the court from the assessed valuation of $67,521.32 to give the proper assessed valuation of the shares for taxation. The purpose of this proceeding is in effect the same as that before the county board and the state tax commission, viz., to reduce the assessed valuation of the shares of the building and loan association.
It was said in Symns v. Graves, 65 Kan. 628, 70 Pac. 591:
“Matters of assessment and taxation are administrative in their character and not judicial, and an interference by judges who are not elected for that purpose with the discharge' of their duties by those officers who are invested with the sole authority to make and estimate value is unwarranted by the law. The district court could not substitute its judgment for that of the board of equalization, and this court cannot impose its notion of value on either. These are fundamental principles in the law of taxation and cannot be waived aside to meet the exigencies of any particular case.” (p. 636.)
The court in the case at bar did not substitute its own judgment for that of the assessor, but it accepted and adopted the judgment of the assistant building and loan supervisor of Kansas in preference to that of the assessor, the determination of which was the same in effect and was certainly an administrative function rather than a judicial one.
In the case of Hodgins v. Shawnee County Comm’rs, 123 Kan. 246, 255 Pac. 46, the plaintiff did not bring the matter of the alleged error in the assessment to the attention of the board of equalization, but it was there said in the opinion that — •
“An incomplete statement was made by the company, a valuation was placed upon the property by the assessor, and although it may have been excessive to some extent, the valuation fixed by the assessor must be regarded as an exercise of his best judgment, as it was done in good faith. The real value of property is a matter of judgment, and for taxing purposes the duty of exercising this judgment is placed upon the assessor, and a court may not usurp his functions nor substitute its opinion of value for his.” (p. 251.)
A clear distinction was made between the act of fixing an assessment on property ’and the matter of allowing an exemption in the recent case of State, ex rel., v. Davis, 144 Kan. 708, 62 P. 2d 893, the former being held to be an administrative function and the latter judicial.
It is urged that this case is concerned with the assessed value of the shares of the association and not with that of the real estate which had already and independently been assessed, but it is pleaded and urged by the plaintiff that this excess value of the real estate, $22,379, should be deducted from the assessed value of the shares for taxation, thus reducing that amount of $67,521.32 by $22,379, so that the claimed excess is the same in both places and in that way it does involve and concern the assessed value of the shares.
Appellee cites Kaw Valley Drainage Dist. v. Zimmer, 141 Kan. 620, 42 P. 2d 936; State, ex rel., v. Riley County Comm’rs, 142 Kan. 388, 47 P. 2d 449, and Allen v. Burke, 143 Kan. 257, 53 P. 2d 894, which treat of the rights and privileges of a taxpayer under G. S. 1935, 79-1702, but the case at bar is an independent injunction action and not an action under the tax-grievance statute.
We conclude that the facts alleged, proved and found as to the failure and refusal of the county board of equalization and the state tax commission to correct the alleged error in assessment of the shares of the plaintiff were not such as to make such acts arbitrary, oppressive or capricious, and that the matter involved was administrative rather than judicial, especially when the assessment was not void and the action was not one calling for an interpretation of a law.
The judgment is reversed and the injunction is denied. | [
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