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The opinion of the court was delivered by
Martin, C. J. :
I. The original action was commenced by said Henry Lardner against Francis Yahn and others on certain promissory notes, and to foreclose two mortgages given to secure the same ; and Henry Keys, plaintiff in error, was made a party defendant as claiming some interest in the mortgaged premises, alleged to be inferior and subject to the liens of said mortgages. The premises were described in the mortgages and in the petition as follows :
“ Commencing on the center line of section four (4), township nineteen (19), range eleven (11) east, 11 chains north of the center of said section four (4) ; thence north 33£ degrees, east chains ; thence north 48 degrees, east l-jW chains ; thence north 67i degrees, east 3-jYít chains ; thence north 79 degrees, east I-tVo chains; thence north 78 degrees, east to the center of the Neosho river; thence down -the center of said river to the east line of said section four (4) ; thence south on said line until it intersects the center of said river; thence down the center of said river to first ravine, to land owned by Albert Childres ; thence south in the center of said ravine to the south line of the northeast quarter of said section 4; thence west on said line to the place of beginning — containing 68 acres, more or less, all in the northeast quarter of section 4, township 19, range 11. ”
Keys filed a motion to require the plaintiff to make his petition more definite and certain, by giving a good and sufficient description of the real estate on which he claimed mortgage liens. This motion was overruled, Keys excepting. Keys also filed a general demurrer which was overruled, and he excepted. He then filed an answer stating, among other things, that he was the legal owner in fee simple of the following-described real estate, lying and situated in the northeast quarter of said section 4, township 19, range 11, in Lyon county, Kansas, described more particularly as follows : “Commencing at the southwest corner of the northeast quarter of said section four (4) ; thence east eight hundred and ninety-eight (898) feet; thence north to the middle of the Neosho river; thence up said river to the first ravine on the west side thereof; thence angle left 29° 34' until it strikes the end of said ravine ; thence due west one hundred and eighty-seven (187) feet, to a stone ; thence south 25° 39'west, four hundred and eighty-seven (487) feet, to a stone on the west line of said northeast quarter of said section ; thence south on said line, eight hundred and four feet, to place of beginning — containing 20 acres more or less;” and that he did not own or have any right, title or interest.in or to any other part or parcel of said quarter-section ; and that the description contained in the petition and in the two mortgages does not embrace and describe the land owned by him or any part thereof. Attached to the answer was a diagram showing the quarter-section with the Neosho river flowing first eastwardly across it north of the center, and, returning again, crossing the southerly part of the east line, and flowing -westerly and southeaster 1}T out on the south line about 40 rods west of ‘ the southeast corner of the quarter-section, and showing also the Keys land. No reply was filed to this answer, but on October 16, 1890, the cause came on for hearing on the pleadings, no evidence being introduced by either party, and the court found, among other things, that said Henry Keys disclaimed any interest in the mortgaged premises, and he was discharged with his costs.
We think the court erred in treating the answer of Keys as a disclaimer, for it very plainly appeared that Keys did claim part of the land which the court found to be included in the mortgages. The answer attacked the sufficiency of the description in the petition and the mortgages to include the land claimed by Keys. This description had been before challenged by motion. It was at least defective, so much so that the court did not follow it in the decree of foreclosure as to the south and west lines. Instead of one course from the point of reaching the south line direct to the place of beginning, the court made it read to the southwest corner of said quarter section, thence north to the place of beginning. When attention was called to the defective description by motion, the plaintiff ought to have amended his petition by giving a better description, or showing why he could not do so, or setting up some cause for reformation, so that the court might properly make the amendment in the decree. As to motion to make more definite and certain, see Water Power Co. v. McMurray, 24 Kas. 62 ; A. T. & S. F. Rld. Co. v. O’Neill, 49 id. 367. We think the description sufficient as to the place of beginning and the north and east lines, but the remainder is very defective, so as to render plausible the contention of Keys that it did not include his land or all of it.
II. Keys claims that the judgment was too large on both notes, but as to the first or $1,200 note he labors under a misapprehension of fact. He says this note was executed June 30, 1884, and became due June 30, 1889. When it became due it was extended for five years, to bear interest at the same rate. The statute regulating interest was amended May 25,1889, the rate being lowered, and Keys contends that under the extension the interest was usurious. But the note and the mortgage were executed January 30, 1884, and became due January 30, 1889, and so the extension was made under the law in force when the note was executed. The second, or $700 note, bearing interest at 7 per cent., contained a clause to the effect that upon default of payment of any interest the entire principal and interest should, at the option of the legal holder, become at once due and payable without further notice, and should bear interest at 12 per cent, after maturity, and the mortgage provided that in case of default interest should be computed at 12 per cent, from the date of the note until paid; and Keys contends that interest was computed from date of default of interest, and not from maturity. If this was so, it was erroneous, for the note is the principal obligation, and the mortgage is only an incident, and the former governs the latter. (Hutchinson v. Benedict, 49 Kas. 545, 551, and cases cited.) But on a note like the foregoing the option of declaring the whole amount due, so as to draw 12 per cent, interest thereafter, may be exercised by bringing suit therefor. (Shattuck v. Rogers, 54 Kas. 266; same case, 38 Pac. Rep. 280.)
The judgment will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Allen, J.
The plaintiff in error, as Sheriff of Crawford County, levied certain attachments on a stock of merchandise in Pittsburg as the property of C. A. Patmor. The Bank brought this action to recover the property, claiming it under a chattel mortgage given to secure divers notes aggregating $8,302.67. The Sheriff answered, justifying his possession of the property under the attachments, and alleging generally that the mortgage was fraudulent. After the conclusion of the testimony the Court' instructed the jury to find for the plaintiff, and to determine the value of the plaintiff’s right of possession at the time the property was taken by the Sheriff and add six per cent, interest from that dale. Prior to the commencement of the trial, both parties had requested the Court to instruct the jury ’in writing. This was 'not done, and the defendant excepted to the giving of oral instructions. It is insisted by the plaintiff in error that there was evidence of fraud which should have been submitted to the jury, and that the statute gives a party an absolute right to have the instructions in writing when he so requests ; that the Court erred in taking the main case away from the jury, and also erred in orally giving' instructions as to the measure of damages after having been requested to instruct in writing.
We have carefully read all the testimony, and find nothing indicating fraud on the part -of the Bank There is no question as to the validity of the indebtedness to the Bank, nor is it clear that all of the security taken is sufficient to pay the debt. The only question which the jury were required to determine for themselves, under the testimony, was the value of the goods in controversy. With reference to this they were told, in substance, to find the value of the plaintiff’s right of possession at the time they were taken. This, of course, could not exceed the value of the property, and, as the value found was much less than the balance still due the plaintiff under its mortgage, the instruction was clearly correct.
It was doubtless error for the Court to refuse to instruct in writing on any proposition of law necessary for the guidance of the jury, but we are only authorized to reverse when errors committed by the trial court affect the substantial rights of a party. §140, Code. Unless we can see that the defendant might have been prejudiced by the action of the Court we cannot reverse because the Court refused to comply with the defendant’s request to instruct in writing. Street Rly. Co. v. Stone, 54 Kan. 83. Even in criminal cases an oral direction by the judge to the jury with reference to their conduct will not necessarily compel a reversal of the judgment. The State v. Garrett, ante, p. 132. We are clearly of the opinion that where all the evidence offered is favorable to one party, and is sufficient to require a verdict in his favor, the court may orally give such direction. Where it is necessary to instruct with reference to the measure of damages, if duly requested so to do, the instructions ought to be reduced to writing before they are given ; but, unless there is some question as to the correctness of the rule declared by the court, or some doubt as to whether the rule announced could have been misunderstood by the counsel who argued the case, or by the jury, we do not think the error committed by instructing orally can fairly be said to be one affecting the substantial rights of a party. In this case there could hardly have been more room for misapprehending the instruction given with reference to the measure of damages than with reference to the party entitled to recover. The jury were told to find the value of the property, and to add thereto interest from the time of the taking to the date of their verdict. No request was made for any further or different instructions, and none appear to have been necessary. The verdict actually returned was much less than might have been found under the evidence, and there is nothing indicating mistake or unfairness on the part of the jury. Under these circumstances it seems us that substantial justice requires us to permit the verdict to stand rather than to prolong the litigation by granting a new trial.
The judgment is affirmed.
All the Justices concurring. | [
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Martin, C. J.
The original action was brought by the National Bank of Commerce against the Bank of Lakin to recover the balance due upon two promissory notes of $4,000 and $8,000 respectively, which were signed by the Bank of Lakin, by S. H. Carr, cashier. It was averred in the petition that the notes were issued with the authority of the defendant; that the 4th by-law of the Bank of Lakin was as follows, —“This bank shall be responsible for the official acts of the officers elected by the Board of Directors ’' ; and, further, that the proceeds of the discount of the two notes were used in behalf and for the benefit of the Bank of Lakin in the regular and ordinary way of conducting the banking business. It was admitted in the answer that Carr executed the notes, but his authority to do so was denied, although not under oath ; and this was followed by a general denial of all other matters. The answer also contained a counterclaim charging that the National Bank of Commerce had obtained assets of the Bank to the amount of $18,000, and judgment was prayed for that sum. The reply admitted that certain evidences of indebtedness had been deposited with the National Bank of Commerce as collateral security for said two promissory notes, but alleged that nothing had been collected thereon.
A trial by the Court at the November term, 1891, resulted in a judgment in favor of the National Bank of Commerce against the Bank of Lakin for $15,024.30 ; and of this the latter complains. The Court found that Carr, claiming to act as cashier, borrowed the money for which the notes were given without the knowledge of the Board of Directors or of any one of them ; that without any authority from the Board he delivered certain assets of the Bank, of the face value of $18,000, as collateral security for said two promissory notes ; that the National Bank of Commerce had collected thereon the sum of $2,508.45, and applied the same as credits on the notes, and that no other payments had been made. But the Court further found that the Bank actually received the money borrowed on said notes, and had never repaid the same, except in so far as the collaterals were collected and applied. The Bank of Lakin excepted to this last finding, and now claims that the same is not supported by the evidence. The Cashier of the National Bank of Commerce testified that the two promissory notes came from Lakin by mail; that the proceeds were credited to the Bank on current account in the regular course of business, and that the credit was not extended to Carr, but to the Bank of which he was cashier ; and L. F. Wilson, Vice President of the National Bank of Commerce, testified that the notes were discounted in the regular course of business, atid that the money was either expressed upon the order of the Bank of Lakin, paid out upon 'its drafts, or forwarded to its eastern correspondents to its credit. There is a suggestion that Carr had used part of the money by investing in property in his own name; but we think the evidence supports the finding of the Court that the Bank of Lakin actually received the money borrowed on said notes, and, if so, it -would make no difference that the Cashier appropriated a part of the same to his own use.
A principal cannot receive and retain the benefits of a transaction, and at the same time deny the authority of the agent by whom it was consummated. Elwell et al. v. Chamberlin, 31 N. Y. 611, 619; Busch v. Wilcox, 82 Mich. 315; Morse v. Ryan, 26 Wis. 356, 362; Mundorff v. Wickersham, 63 Pa. St. 87.
The judgment of the District Court must be affirmed.
All the Justices concurring. | [
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Martin, C. J.
I. The finding of the Court being general in favor of the defendant, the judgment based thereon must be affirmed if there is any evidence in the record fairly tending to impeach the validity of the mortgage executed by Latsbaugh to Clement, Bane & Co. ; otherwise it must be reversed. Counsel for the plaintiffs argue at length that the value of the property securing their claim was not excessive, and even if so, the validity of their chattel mortgage would not be affected by reason thereof. Counsel for defendant say that the question of excessive security was considered by the trial court only incidentally, and they do not seem to rely upon this point. It appears to be well settled that a chattel mortgage is not rendered per se either void or voidable because it covers more property than enough to secure the debt, in the present case Earhart supposed the value of the mortgaged property to be about double the amount of the past-due indebtedness upon the account and the promissory note just maturing; but, as the mortgage was intended also to secure the amount of the order for spring goods, placed at about $1,800, it could scarcely be contended that the security was excessive. It is a matter of common knowledge that a stock of goods closed out at a mortgagee’s or a sheriff’s sale will not generally bring anything near its cost price, and before the trial of this case the goods had been sold, presumably to the best advantage, for $4,040; a sum not greatly in excess of the past-due indebtednss to Clement, Bane & Co. after the payment of costs and expenses, and not nearly sufficient to secure them if the order for the spring goods had been filled as contemplated at the time the chattel mortgage was executed. In Miller v. Krueger, 36 Kan. 344, 348, the mortgagee supposed that the value of the property mortgaged was about double the amount of the indebtedness secured thereby, although on the trial the jury found the value of the property to be less than the amount of the debt; and it was held that the fact that the mortgagee overestimated tlie value of the property did not render the mortgage void. The mere fact that the security given is more than necessary does not of itself establish fraud. Some of the cases hold that it is not even a badge or indication of fraud; yet we are not prepared to say that the security might not be so excessive as to cast suspicion upon the good faith of the transaction to the extent of requiring an explanation. Downs v. Kissam, 10 How. 102, 108; Grand Island Banking Co. v. Costello, 45 Neb. 119, 140; Kilpatrick-Koch Dry Goods Co. v. Strauss, 45 id. 793.
II. It is said in the brief of the defendant’s counsel :
"The real contention by the defendant was that the giving of the mortgage for $1,800 of debt which did not exist, the concealment of such fact from plaintiff’s own attorney, and from Richardson and Stallard, officers of the Sedan National Bank, in connection with many other material facts and circumstances surrounding the transaction, showed bad faith on the part of the parties to the mortgage, and proved that Latsbaugh and Earhart cooperated and conspired together to hinder, delay and defraud the Sedan National Bank, and all other creditors of Latsbaugh.”
The principal point relied upon by the defendant is that the chattel mortgage was given for a sum about $1,800 greater than the existing indebtedness. If the proof tended to show inclusion of this extra sum was fraudulent on the part of the plaintiff, and for the purpose of covering up Latsbaugh’s property with a pretended claim in order to hinder or delay other creditors, this would render the mortgage void as against him. Wallach v. Wylie, as Sheriff, 28 Kan. 138, 152, 153; Winstead, Sheriff, v. Hulme, 32 id. 568, 575. We fail, however, to find in the record any evidence of such fraudulent intent. The spring goods appear to have been ordered in good faith, and presumably would have been forwarded soon had it not been for the action of other creditors in pressing their claims. The fact that a mortgage given by an insolvent person secures a greater sum than is actually due is not conclusive evidence of fraud, but is subject to explanation (Bush v. T. G. Bush & Co., 33 Kan. 556, 567; Corbin v. Kincaid, 33 id. 649, 652); and a chattel mortgage may be lawfully given to secure future advances. Jones, Chat. Mort. §94, and cases cited. It cannot be extended as against a creditor of such mortgagor to cover advances not contemplated at the time of its execution (Sims v. Mead, 29 Kan. 124); but a mortgage on a stock of goods for $1,500 was sustained by this Court although the sum of $1,000 only was advanced at the execution of the mortgage, the remainder being paid soon thereafter. Mercantile Co. v. Burson, 38 Kan. 278. And in another case it was held by this Court that the giving of a mortgage for a larger sum than was loaned thereon and with a view of covering future loans up to the amount of the mortgage, is not conclusive evidence of fraud, but is open to explanation as to the good or bad faith of the parties to the transaction. Allen v. Fuget, 42 Kan. 672. And where a chattel mortgage was made to secure in part a valid debt and in part money advanced upon an illegal contract, this Court held that it might be enforced to the extent of the valid debt although void as to the residue, the illegal part being separable from that which was unobjectionable (Rathbone v. Boyd, 30 Kan. 485, 489); and, this being so, we see no good reason against the securing of an existing debt and a contingent liability by the same chattel mortgage.
Considerations of much weight have been suggested against the validity of chattel mortgages given to secure future advances without truly disclosing the nature of the transaction, or under an appearance of an existing indebtedness, as in this case. Doubtless much trouble and litigation would be avoided if chattel mortgages were so drawn as to state fully and explicitly the nature of the obligations that they are given to secure; but the weight of authority appears to establish the doctrine that it is only necessary that the debts secured be described with such certainty as to enable creditors to ascertain, either from the condition of the mortgage or by inquiry aliunde, the extent of the incumbrance; and that the mortgage may be in the form of a security for the payment of a certain sum, leaving the true nature of the transaction to be shown by parol proof. Jones, Chat. Mort., §96 and authorities cited; Berry v. O’Connor, 33 Minn. 29; Griffin v. New Jersey Oil Co., 3 Stock. (N. J. Eq.) 49. The Supreme Court of California held, in Tully v. Harloe, 35 Cal. 302, that a note and mortgage given in good faith for a greater sum than is due by the mortgagor to the mortgagee, to secure both a present indebtedness and future advances to be made by the mortgagee, is not fraudulent in law as to the creditors of the mortgagor because given for a greater sum than is due, even though the mortgage does not express upon its face that the excess is for future advances ; and that such mortgage need not express its object upon its face although it would be better that it do so.
III. The knowledge of Earhart that Latsbaugh was largely indebted to the Sedan National Bank and others is imputable to the plaintiffs ; but it was permissible for them to secure a preference over all other creditors, and_ this they did by obtaining a chattel mortgage and having it filed for record. National Bank v. Ridenour, 46 Kan. 718. They were under no obligation to disclose to their attorney anything more than was necessary for his information in drawing the notes and the mortgage, nor to tell the officers of the Sedan National Bank what they had done or what they were going to do. No relation whatever existed between the plaintiffs and the Bank requiring any disclosure by the former to the latter. If the Bank had relied upon its chattel mortgage, it may be that Earhart had sufficient notice of its existence to put him and the plaintiffs upon inquiry as to its terms and thus cure its want of registry, and so the claim of the Bank might have been entitled to priority over that of the plaintiffs; but the Bank chose to rely upon an attachment lien of a later date than that conferred by the chattel mortgage of the plaintiffs, and we cannot consider what rights the Bank might have obtained under its chattel mortgage. This disposes of the only specific objections raised against the validity of the chattel mortgage given to the plaintiffs, and we need not. consider any other. We will say, however, that the evidence affirmatively shows that the indebtedness of Latsbaugh to the plaintiffs was bona fide, the order taken for the spring goods was in the usual course of business, and we see nothing whatever indicating any other purpose on the part of the plaintiffs than to secure the past indebtedness and that which would accrue by the filling of the order for spring goods.
IV. The plaintiffs replevied, with the other goods, 437 pairs of men’s, boys’, women’s and children’s boots, shoes, slippers, rubbers and arctics, and some other articles perhaps not covered by the plaintiffs’ chattel mortgage. Earhart testified that boots axxd shoes did not come within the description of clothing or furnishing goods. The description of the stock in the mortgage is restrictive, and the plaintiffs obtained no right to goods not within its terms. On another trial this branch of the case will no doubt receive the further consideration of the trial court.
The judgment must be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Martin, C. J. :
I. The court correctly ruled that the highway was legally established, and this was prior to the construction of the railroad. It was therefore the duty of the company to restore the highway “ to its former state, or to such state as to have not necessarily impaired its usefulness," and also to construct and keep in repair “ a good and substantial crosssing, by securing on each side of each rail a board not less than 12 feet long, and not less than 10 inches wide and two inches thick, and . . . fill the space between the two inside boards with gravel or broken stones, or . . . floor the space with boards not less than two inches thick and 12 feet long." (¶ ¶ 1207, 1262, Gen. Stat. 1889.) These statutory provisions were under consideration by this court in M. K. & T. Rly. Co. v. Long, 27 Kan. 684, and A. T. & S. F. Rld. Co. v. Miller, 39 id. 419, but this case presents questions not raised in either. It seems probable that the jury interpreted the additional instruction as authorizing them to find that it was the duty of the railroad company to plank the crossing the full width of the highway in order that it might be restored to its former state of usefulness. We think the clause cited from paragraph 1207 means that the company must so restore the highway that its use by the public shall not be materially interfered with, nor the highway be rendered less safe and convenient to persons, vehicles, and teams passing over it, except so far as diminished safety and convenience are inseparable from any crossing of the highway by a railroad; and whether this requirement is fulfilled in any particular case is a question of fact for the jury to determine, upon' the evidence under proper instructions. It is unusual, and generally unnecessary, to construct such crossings of the full width of a country road, although it''may be requisite as to some of the streets in a city. The location of the crossing, whether in a city or- other populous district or in the country, the extent of the use of the highway, the expense of the work, and otl^er circumstances may properly be considered in deciding whether the duty of the railroad company has been discharged or not. So, also, a crossing adequate wíien built may, by the growth of business, or change iii the width or character of the vehicles used -or -drawn upon it, become inadequate for the public, accommodation. In such case it is the duty of the railway company to widen the crossing so as to be reasonably safe for the increased traffic and the widened ^vehicles drawn in the usual and proper manner. The planks used for this crossing were longer, wider', and thicker than the minimum requirement of said ‘paragraph 1262, and yet it seems that the crossing was not wide enough for the harvester-binder to pass over in safety when drawn by three horses abreast. It is necessary to go upon the highways for the purpose of taking farm machinery from one place to another, and railroad companies must take notice of this, and widen their crossings, when necessary for the public convenience. The evidence does not show whether'the machine in question was of unusual width or not, and, if its width was exceptional, and it was an uncommon occurrence for a vehicle or'machine requiring so much breadth of crossing for its accommodation when drawn in the usual manner, it would be unfair to charge the railroad company with notice that a crossing of greater width was necessary. These principles are deducible from numerous authorities. (Elliott, Roads and Streets, 599, 600; State v. St. P. M. & M. Rly. Co., 35 Minn. 131, 135; Roberts v. Chicago & N. W. Rly. Co., 35 Wis. 679; The People v. N. Y. N. H. & H. Rld. Co., 89 N. Y. 266, 270; Cooke v. Boston & L. Rld., 133 Mass. 185; Wellcome v. Inhabitants of Leeds, 51 Me. 313; Manley v. St. Helens C. & R., 2 Hurl. & N. 840.) In the following cases railroad companies have been held liable for defective crossings: Wasmer v. D. L. & W. Rld. Co., 80 N. Y. 212; Payne v. Troy & B. Rld. Co., 83 N. Y. 572; P. F. W. & C. Rly. Co. v. Dunn, 56 Pa. St. 280; I. & St. L. Rld. Co. v. Stout, 53 Ind. 143; O’Connor v. Boston & L. Rld., 135 Mass. 352. The instructions of the court, however, as probably understood by the jury, left no middle ground for the requirement as to the crossing between that existing and one the full width of the highway, and in this we hold that the court erred.
II. Instructions 7 and 10 were erroneous as originally given, the doctrine of comparative negligence not obtaining in this court. All reference to gross negligence in the instructions should have been omitted, unless as applied to the failure of McDonald to set the brakes. It is true that many of the ties west of the crossing were rotten, yet it is hardly possible that the engine would have held to the rails or remained upright if they had been sound. The strain upon the track caused by the collision with the -machine was so great that either the rails or the ties were almost sure to give way, and such an unusual event could not have reasonably been within the contemplation of the railroad company. It may be that, if McDonald had set the brakes when the signal was given, the force of the collision would have been lessened to the extent of preventing the derailment and overturning of the engine ; but even this is improbable, for the application of the air-brake on the engine and tender and of the hand-brake upon the coach seemed to have retarded the speed of the train only about three miles per hour, according to the evidence. The primary cause of the casualty was the obstruction of'the track by the machine, and if the railroad company did not exercise ordinary care in having a crossing at that point wide enough for the accommodation of such vehicles as might be reasonably expected upon the highway, and the injury complained of resulted therefrom, then the company is liable. The, negligence of McDonald, or the failure of the company to have a better track, or both, would be sufficient to justify a recovery if the injury were directly traceable* thereto ; but the evidence adduced seems to us insufficient to warrant a recovery upon either or both of those grounds.
III. As the case must, be tried again, we think it best to refer to some other questions, whether raised by the petition in error or not. We think that instructions 30 and 41, respectively, should not have been givén. It would be exacting more . than ordinary care oí an engineer to require him to decide'at his peril whether a crossing was sufficient for the use of all vehicles that might pass upon the highway, or even to know whether the track over which he was running was sufficient to endure an extraordinary strain upon it; and whether he should have jumped from the engine-should not be made to depend upon his own safety in so doing. The safety of the crew and the passengers, on board should be of first importance in the mind of' an engineer, and the highest considerations of duty may require him to remain at his post to the last ex tremity. Hemy may have supposed that the collision would result in throwing the machine from the track, and that his engine would hold fast to it. But it should have been left to the jury to determine whether under all the circumstances it was negligence on the part of the engineer to remain on his engine. This court held, in Condiff v. K.C. Ft. S. & G. Rld. Co., 45 Kan. 256, 261, that when the exposure is for the purpose of saving human life, it is for the jury to say, from all the circumstances of the case, whether the conduct of the person injured is to be deemed rash and reckless. See, also, as to an engineer remaining at his post: Cottrill v. C. M. & St. P. Rly. Co., 47 Wis. 634, 638; Central Rld. Co. v. Crosby, 74 Ga. 738, 748; The Pennsylvania Co. v. Roney, Adm’x, 89 Ind. 453, 455.
Stredder was allowed to testify to his opinion as to the safety of the crossing, and said that he considered it, like other railroad crossings through the country, too narrow for safety, and the court refused to strike out his answer on the ground of incompetency. It was a question for the jury to determine as to the sufficiency of the crossing, after being informed of its width and of the character of the vehicles passing over it as usually drawn, and opinion evidence as to its safety was incompetent.
Many of the questions submitted to the jury were leading and negative in form, and others grouped together several questions in one. These faults should be avoided hereafter. .
For the several errors referred to, the judgment will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J. :
There is an elaborate discussion in the briefs of the question whether the firm of Corner & Farnum was a general or special partnership, and, if a special partnership, whether Corner and Farnum alone, as the general partners, had authority to execute an assignment of all the property of the firm for the benefit of their creditors. A further'question is presented, however, which we deem decisive of the case, and which renders a consideration of other questions unnecessary. The business of the firm was carried on at Wichita by Corner and Farnum only. Hanscome resided at Denver'. The firm became insolvent and gave a chattel mortgage on their property to the Wichita National Bank to secure their indebtedness to it,, amounting to about $24,000. Hanscome had no personal charge of the business. He was notified by telegraph of the assignment, and went to Wichita, and was there on July 5.- He testified by deposition that he did not express to Corner and Farnum his affirmation of their making the assignment; that he did not know the extent of their liabilities; that he did not authorize them to execute the assignment, aiid would have opposed it if he had been consulted; that he told them that he thought that they had made a mistake.
It was shown that an action was brought in the county court of Arapahoe county, Colorado, by Roth, Bruner & Feist against Hanscome to recover a large snm of money claimed to be due them from the firm of Corner & Farnum. Hanscome employed attorneys, who, after being fully informed by him of all of the facts in relation to the matter, on the 8th day of September, 1891, filed an answer in that action alleging that said firm of Corner & Farnum did, on the 3d day of July, 1891, make, execute and deliver their deed of voluntary assignment for the benefit of all their creditors; that such assignment was duly acknowledged and recorded in Sedgwick county, Kansas, and that everything necessary and proper to be done under the laws of the state of Kansas relative to assignments was done ; that a majority of the creditors of Corner & Farnum accepted said assignee, and that the matter of said assignment was still pending and undisposed of; that the plaintiffs in said suit were parties thereto, and had received or would receive a greater portion, if not all, of their claim out of the assets of the firm in the hands of the assignee. While Hanscome, in his testimony, says that he expressed disapproval of the action of Corner & Farnum in making the assignment, he at no time denied its validity, nor did he take any steps whatever to avoid it. The answer above mentioned was filed long before this action was commenced by F. Cannon & Co. In it he expressly recognized the validity of the assignment.
That an assignment executed by one or more partners without authority from another may be ratified and confirmed by the partner who does not execute it, is clear both upon reason and authority. In the case of Hodenpuhl et al. v. Hines et al., Appellants, 160 Pa. St. 466, it was held that a person who, with sufficient notice that his copartner, the manager of the business, has made a formal assignment for the benefit of creditors, fails to dissent therefrom within a reasonable time is deemed to have ratified it, and it will stand against subsequent executions against the firm. In Adee v. Cornell et al., 93 N. Y. 572, where an assignment was attacked by creditors on the ground that there were partners who did not join in it, it was held that the alleged partners, having acquiesced in the assignment, no one else could complain, and that an assignment could be ratified by members of the firm who did not join in it. To the same effect are Matthews v. Smelser, 26 S. W. Rep. (Tex.) 872; Farwell and others v. Webster, Garnishee, etc., 71 Wis. 485; Tischler v. Kurtz, 17 S. Rep. (Fla.) 661; Williams v. Frost, 27 Minn. 255; Rumery v. McCulloch, Garnishee, etc., 54 Wis. 565; Hooper et al. v. Baillie et al., 118 N. Y. 413. Probably the failure of Hanscome to take any action inconsistent with the assignment, or to express his dissent otherwise than by saying that he deemed it unwise and a mistake, ought to be held a tacit ratification ; but we need not rest on this alone, for in his answer to the suit against him in Colorado he expressly affirmed the validity of the assignment, and expressly avei’red the right of the assignee to the possession of the firm property for the purpose of distributing it to the creditors. The district court erred in holding thfe assignment void, under the testimony in the case.
The judgment is reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring. | [
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Martin, C. J.
I. When the policy was written J. O. Johnston was the agent of the Insurance Company, the Cashier of the Bank of Chanute and the President of the First National Bank of Erie. The assured was indebted to these Banks in a sum exceeding the value of all the grain and seeds in store, and these were substantially covered by the warehouse receipts held by the Banks. This condition of affairs was not disclosed to the Insurance Company by its agent. So far as it related to the grain and seeds, the policy was issued for the use and benefit of these Banks. It is an elementary doctrine, subject to certain exceptions not applicable here, that an agent cannot in the same transaction represent two principals whose interests are conflicting or antagonistic. The law has too much regard for the infirmities of human nature to sanction such a double relation. When an insurance company employs an agent to solicit business for it in a particular locality it has a right to expect that he will act only in its interest in that business. He would not be authorized to write a policy upon his own property, for as to this he would not be the agent of the company, and it would not be bound thereby unless, being fully informed of the facts, the principal officers of the company should accept the risk. Story, Agency, §§ 10, 210; May, Ins. § 125. In New York Central Ins. Co. v. National Protection Ins. Co., 14 N. Y. 85, 91, it is said : “It is not necessary for a party seeking to avoid a contract on this ground to show that an improper advantage has been gained over him. It is at his option to repudiate or to affirm the contract irrespective of any proof of actual fraud.” The purpose of the doctrine is to remove the temptation to fraud and imposition on the part of those occupying fiduciary relations by divesting them of the legal power to make such fraud or imposition effective. In this case the Insurance Company declined the risk, but the assured was not advised of the declination until after the’ loss, and this may have been the result of the negligence of the Company in misdirecting the letter. Fiad Johnston been the agent of the Company in fact and in law as to this transaction, the result of the delay in notification should have been visited upon the Company; but, as to this insurance, Johnston did not sustain that relation, and the Company, not accepting but declining the risk, was not bound by the terms of the policy. See, further, Bentley v. Columbia Ins. Co., 19 Barb. 595; Spare v. Home Mut. Ins. Co., 19 Fed. Rep. 14; Zim mermann v. Divelling House Ins. Co., ( Mich.) 68 N. W. Rep. 215.
II. It was the duty of the assured under the policy to make proofs of her loss substantially as prescribed therein, and this she failed to do, although she had ample time after the receipt of the letter of date February 6, and before the expiration of the 30 days from the loss. Indeed, she brought suit within less time, although the policy provided that the loss should be payable 60 days after the proofs should be received at the office of the Company. The letter distinctly informed the assured that the statement presented was not sufficient and could not be accepted, and that the special agent waived none of the conditions of the policy but would expect a strict compliance with the printed conditions thereof ; yet the assured did nothing further toward a compliance with the terms of the policy and the demands of the Insurance Company. The reasons assigned by the assured for noncompliance are deemed insufficient by a majority of this Court, although the evidence tends to show, and for the purpose of sustaining the judgment should be held to prove, that the special agent declined to consider the loss unless the claim for the Prange implements and machinery should be detached or eliminated, and a compliance with the requirements specially pressed in the letter was impracticable if not entirely impossible. The writer is of opinion that the claim of the assured ought not to be defeated upon this ground. The special agents called to investigate and adjust the loss within little more than a week after the fire, and before they had any right to expect formal proofs' of loss. They then required an itemized statement which was made during the investiga tion. It was not verified and there was no certificate of a local magistrate. If the assured had been able to give the information requested in the letter as to purchases and shipments for 1891 and up to the time of the fire, yet this would have been of no value without knowing the quantities and the kinds of grain and seeds in the warehouse at the beginning of 1891. The ultimate fact was the amount of each kind of grain and seeds in store at the time of the fire, and not when or how it was placed there; and partial information as to the facts requested would tend to obscure rather than to disclose the truth. In respect to the verification and the certification the statement of loss was informal; but as the special agents had investigated the matter on the ground during the greater part of a week, and in writing the letter made no special objection for these reasons, but, on the contrary, required information which the assured could not give, and as they refused to consider the loss unless the claim for the greater part of it was abandoned, the writer is of opinion that formal proofs should be held to be waived and that the rights of the assured ought not to be sacrificed upon a technical insistence devoid of substantial merit.
The judgment must be reversed, and the cause remanded for a new trial.
Johnston, J., and Allen, J., concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
W. H. Garrett was convicted in the district court of Ford county upon a charge of stealing 47 head of cattle, and the punishment adjudged was imprisonment at hard labor for a term of six years. Til his appeal it is insisted that he never was in fact legally arrested and that the trial court never acquired jurisdiction. A warrant for his arrest was issued by a justice of the peace of Ford county, and placed in the hands of the sheriff of that county, who found the defendant near the south line of Kansas, in the territory of Oklahoma. Upon meeting Garrett, the sheriff talked with him for a few minutes concerning the cattle transaction and inquired with reference to a young man named Smith, who is alleged to have been a confederate of Garrett in the commission of the offense. He finally informed Garrett that he had a warrant for his arrest, and, upon request, read it distinctly to him. Garrett was acquainted with the sheriff, knew that he was an officer of Ford county, Kansas, and that the warrant had been issued by a justice of the peace of that county. Nothing was said about a requisition, nor did he make any objection to accompanying the officer. He suggested to the officer that they should wait until morning before going to Dodge City, and, upon being informed by the officer that he desired to'go to Dodge City that evening, he requested permission to speak to his wife and to change his clothes, after which he would be ready to accompany him. Within a few minutes the preparation was made, and taking his own horse he rode off to Dodge City with the officer, without making any objection or resistance whatever.
It seems that no force was used nor any deception practiced by the officer to induce Garrett to accompany him. It is evident from the testimony that both the sheriff and Garrett fully understood that they were outside of Kansas, and both had knowledge that the warrant had no force within the limits of Oklahoma. If any force, or threats of force, had been used to bring him into the state, as there was in the cited case of The State v. Simmons, 39 Kan. 262, the arrest would have been illegal, and the court without jurisdiction, or if he had been inveigled into the state by deceit or fraud, the result would have been the same. It was competent, however, for Garrett to waive the issuance of extradition papers, and voluntarily surrender himself to the jurisdiction of the state. While there was no explicit declaration that he did make such a surrender, everything he stated indicated a willingness to accompany the officer. There was no display of weapons, nor any attempt at coercion by the officer. With a full knowledge of the situation, Garrett stated that he was ready to go to Dodge City to meet his accusers, and he furnished the facilities for going. Under the circumstances, we think he came into the state voluntarily, and that the court acquired jurisdiction of his person. .
Complaint is made of the refusal of an offer to show the statements made between Garrett and Smith, who was also charged with the theft of the cattle. Garrett claimed that he knew nothing of the stealing but only acted as an employee of Smith in driving the cattle into the state, and the statements offered in testimony related to that matter. A part of the testimony offered was of a self-serving character, and was not admissible. Some of it was too indefinite to be received, and, so far as it was competent, it was supplied by other testimony which was-received without objection. We think no material error was committed by the refusal of the offer.
The remaining assignment of error is based upon remarks made by the judge to the jury after the submission of the case. After deliberating for about 24 hours the jury were called into court, and in the presence of the defendant the inquiry was made as to the probability of arriving at a verdict. Some of them replied that an agreement might be reached, and others thought that it was impossible. The court then, in a few words, admonished them that it was important that they should agree upon a verdict if it was possible for their minds to come together upon the question of the innocence or guilt of the defendant; that they should fairly and frankly consider the testimony and the instructions given them by the court, and if, upon a further consideration of the same, anj?- of them became satisfied that the position first taken by them was wrong, they should not hesitate to yield. • The jury then retired, and several hours afterward they were returned into court, and upon an inquiry from the judge the foreman of the jury stated that he thought that an agreement would be reached. The court directed them to return to the jury-room for further deliberation, and added that they should read over the instructions of" the court which had been given them, and apply them to the facts of the case, and, if possible, agree upon a verdict. It was a considerable time after the admoni tion was given before an agreement was reached and a verdict returned. Although the practice of lecturing a jury or urgently pressing them to an agreement is of doubtful propriety, we think the defendant suffered no prejudice from the oral remarks of the judge. There was no attempt to coerce the will or judgment of any juror, and outside of the mere declaration that an agreement was desirable and important, the statements made substantially corresponded with what was embraced in the written charge.
We think that no material error was committed, and therefore the judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J. :
This was an action brought by Rosanna Cook against H. Mathias and F. J. Mathias to recover judgment on certain promissory notes. The case was tried by the court without a jury, and a judgment was rendered in favor of the defendants. Plaintiff filed a motion for a new trial, which was continued by consent of both parties to be heard at Kinsley, in Edwards county, on the 28th day of January, 1892. The record shows that both parties appeared, and that the motion was argued on the 6th day of February, 1892, and a new trial granted. The order granting the new trial was entered on the journal of the district court of Pawnee county as an order of that court, and the contention here is that it is, in fact, an order of the district court of Edwards county, made without jurisdiction, and erroneous. Pawnee and Edwards counties are in the same judicial district, but it is argued that the district court is a court of the county,- and that the fact that the same judge presides in both counties does not confer any jurisdiction on the district court of Edwards county to hear a motion in a case pending in Pawnee county. With this contention we agree. But does the record show that the order we are called upon to review is an order made by the district court of Edwards county? The fact that the parties agree to and do argue a motion before the judge at a place outside the county cannot affect the power of the court to make a proper order within the county. (In re Watson, Petitioner, 30 Kan. 753.) The only order the plaintiff seeks to review in this case is an order of the district court of Pawnee county. We find no order of the district court of Edwards county in the record. The mere fact that the argument was had by consent at Kinsley, or even that the conclusion of the court was announced at Kinsley, does not necessarily invalidate the order. The journal entry brought to this court shows that the district court of Pawnee county granted a new trial. It had jurisdiction and power to do so. Its order, and not any order of the district court of Edwards county, is brought here for review, and no other ground of error is alleged than that the proceedings were had in Edwards county. We find nothing in the record to show that the order granting the new trial was not in fact made by the district court of Pawnee county, as stated in the journal entry.
The order of the court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
On October 5, 1889, P. T. Bolinger entered into a written contract with John Risse to construct a building upon certain lots belonging to Risse in Kansas City, Kas., and to furnish all the material and labor therefor. The work was to be done according to certain plans and specifications prepared by an architect, which were made a part of the contract, and it was provided that the architect was to determine all questions of doubt as to the meaning of the drawings or specifications, and that his decision should be final and conclusive. There was a further provi sion that if any alteration of the work was required, a fair and reasonable valuation of the work added or omitted should be made by the architect, and the sum agreed to be paid for the work should be accordingly increased or diminished; and in case they were unable to agree as to the valuation, arbitrators were to be chosen, and their decision with reference to the valuation of the work added or omitted was to become final and binding. It was agreed that the sum to be paid for the material and labor should be $3,275, subject to additions or deductions on account of alterations. On the same day, and in pursuance of the mechanics’ lien law of 1889, Bolinger, as contractor, executed a bond to the state of Kansas, with A. J. Hibbs and F. G. Husson, as sureties, which bond was on October 11,1889, duly approved by the clerk of the district court of Wyan-dotte county. The bond recited that it was given in pursuance of the mechanics’ lien law, and to secure compliance with the provisions of the contract between Bolinger and Risse; and provided that if Bolinger
“shall pay all claims which might be the basis of liens upon said described real estate and improvements for materials furnished, labor, or otherwise arising, or which may arise or grow out of said contract and the performance of and completion of said' work thereunder or connected therewith, under the provisions of said act, then this obligation is to be null and void; otherwise, to be and remain in full force and effect.”
Material was furnished and labor performed, in pursuance of the contract, for which payment was not made by Bolinger, and several of the parties who had furnished material and labor endeavored to obtain mechanics’ liens upon the premises; and among others, Hibbs and Husson, who were sureties upon the bond, sought to obtain a lien upon the premises, as subcontractors, for material furnished by them. The Hopkins Planing Mill Company, which had an unpaid claim for material furnished, brought an action upon the bond, making the contractor and the sureties thereon parties defendant; and it also asked that it be adjudged to have a lien upon the premises in the event that the court should hold that it could not recover upon the bond. Other persons who had claims for material and labor were also made defendants, who set up other claims under the bond and upon the premises for labor and material furnished by them. On the trial, testimony was offered to the effect that during the construction of the building some alterations were made and some work done not provided for in the plans and specifications, and that the added work and material were of the value of about $300. The court found that by reason of these changes and alterations, without the knowledge and consent of the sureties upon the bond, such sureties were discharged from any liability thereon. The unpaid claims of the several claimants amounted to $2,-103.46, and .they were adjudged to be liens upon the property and improvements of Risse, and a foreclosure of the same was decreed. The statute under which the bond, was given is as follows :
' “The contractor or owner mentioned in section 1 of this act may execute a bond to the state of Kansas for the use of all persons in whose favor liens might accrue by virtue of this act, conditioned for the payment of all claims which might be the basis of liens ; which bond shall be in a sum not less than the contract-price, and with good and sufficient sureties, whose qualifications shall be verified in accordance with § 723 of the code of civil procedure, such surety as shall be approved by the clerk of the district court of the county in which the property is situated, and may file such bond in the office of said clerk; and when such bond is so approved and filed, no lien shall attach under this act, and if when such bond is filed liens have already been filed, such lien shall be discharged. Suits may be brought on said bond by any person interested.” (Gen. Stat. of 1889, ¶ 4745.)
While this bond runs to the state, it is given for the protection of those who contribute labor or material to the building or improvement contracted to be built or made, as well as for the benefit of the owner of such building or improvement. When -the bond is given as the statute prescribes, no lien can attach, and any lien 'which may have been filed is discharged. It takes the place of the statutory liens to which laborers and material-men are entitled when no bond is given. When it is given the material-men and laborers may rely upon the same and thus avoid the trouble and expense of perfecting liens, and the owner is relieved from any care as to whether the money advanced by him upon the contract is applied upon the claims for material and labor furnished under the contract. A bond given for such purpose should not be lightly set aside by any act or omission of the contractor, who is the principal obligor upon the bond, or by the owner, who is not a party to the same.
The sureties claim to be released from liability by reason of the alterations and additions .that were made in the plans and specifications, and the increase of the of the contract-price without their knowledge and consent. This contention cannot be sustained, for the reason that the contract itself contemplated that changes and additions might be made which would increase or diminish the amount to be paid for the complete work. It has been held that “the sureties on a bond to secure the performance of a building contract are discharged by any substantial change or alteration of the plan of the work, unless the right to make such change or alteration is expressly given in the bond itself or the contract which it secures.” (Morgan Co. v. McRae, 53 Kas. 358.) As the contract specifically provided that changes might be made with the concurrence of the architect, the sureties cannot claim a release because the alterations were made without their knowledge or consent. The provisions of the contract did not require that the consent of the sureties upon the bond should be obtained, and as the owner had reserved the right to make changes, and which was expressly provided for in the contract, the sureties who signed the bond for the performance of the contract are not in a position to complain of the changes made. The departures from the original plan and specifications 'were not very important, nor were the alterations expensive. The location of a window was changed; two of the rooms that were to have been separated by a partition wall were connected by an opening or archway ; one of the rooms was ceiled with lumber instead of being plastered; an inexpensive ventilator was put in the roof; and some other minor changes not particularly mentioned in the specifications were made; and these alterations Were made with the concurrence of the architect, the owner, and the contractor. It is not easy to have plans and specifications so prepared that some changes will not be found necessary as the work progresses, and it appears that no more changes were made in this instance than are likely to be required in the construction of a building of the character described in the plans. We think the changes were made substantially as the contract contemplated, and that there was no such departure as will release the sureties from liability upon the bond.' (McLennan v. Wellington, 48 Kas. 756; Building Ass’n. v. Fitzmaurice, 7 Mo. App. 283 ; Bohn v. McCarthy, 29 Minn. 23 ; Steffen v. Lemke, 40 id. 27 ; Abbott v. Morrissette, 46 id. 10 ; Robinson v. Hagenkamp, 52 id. 101; Swift v. Martin, 20 Ill. App. 515; Martin v. Swift, 120 Ill. 488 ; Moore v. Fountain, 8 S.Rep. 509 ; Dorsey v. McGee, 46 N. W. Rep. 1018.)
It is contended that, because the principal upon t-he bond represented to one of the sureties that if he would sign the bond he would obtain the signature of another party, and upon such representation he signed the same, relying upon the promise that the name of the other surety would be obtained, and that, as this was not done, the surety was relieved from liability thereon. The judgment of the court below” was not based upon this contention, nor can it be sustained. .(Carter v. Moulton, 51 Kas. 9.)
An objection was made to a review of the case, on the ground that Bolinger, the principal contractor, was not a party to the proceeding in this court. We are unable to see, however, that he is a necessary party to the proceeding, or that the sureties will necessarily be affected by his absence. He was not held to be discharged from liability upon the bond, and a judgment for the full amount of the claims‘was rendered against him.
The judgment of the district court will be reversed, and the cause remanded for a new” trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
In July, 1886, John Golding, who was about 17 years of age, resided with his father and mother in Rosedale, and worked in a packing house in Armourdale. On one of the principal streets of Rosedale there was a bridge which spanned Turkey creek, and the boy passed over this bridge iii going to and from his work. On the evening of July 1, 1886, while riding a pony over the bridge on his way home, he met a team, and, in passing, a trace or some other part of the harness of the team touched the pony, causing him to flinch and jump aside so as to precipitate the boy and pony off the edge of the bridge down into the creek, a distance of about 12 feet. The boy suffered severe and permanent injury from the fall. An action was brought by his father, Patrick Golding, to recover for medical and surgical attendance, hospital charges, loss of the pony, and for the loss of the services of John Golding from the time of his injury until he reached majority. Patrick Golding died soon after the commencement of the action, and Sarah Golding was appointed admin-istratrix of his estate, and the action against the city was duly revived in her name. The right of recovery was based on the neglect of the city in permitting the bridge to remain -without proper guards or railings on the sides of the same, and that it was therefore not in a reasonably safe condition for the use of the public. Upon the trial the jury returned a verdict in favor of the plaintiff and against the city of Rosedale in the sum of $2,386. t
The only serious contention of the city in the trial court was that the bridge had' been built and maintained by the county, and that therefore no liability could arise against the city for injuries resulting from its defective condition. While the bridge had been built by the county it formed a part of one of the principal streets of the city. It was the duty of the city to keep and maintain the streets and the bridges thereon in such a condition as to be reasonably safe for persons traveling upon and over the same, and it is liable in damages to anyone who suffers injuries resulting from a neglect to perform tliis duty. The fact that the bridge was in this instance built by or had been maintained at the expense of the county, does not relieve the city from the obligation to keep a bridge which is upon one of the public streets within its corporate limits in a. reasonably safe condition for the traveling public. A claim is made that there was no testimony showing the location of the bridge, but we find upon an examination of the record that there is abundant proof to show that it was within the corporate limits of Rosedale, and “a bridge situated wholly within the limits of the city is with its approaches a part of the public streets, and as such witlii-n the scope of the city's duties and liabilities.” (City of Eudora v. Miller, 30 Kas. 494. See, also, Comm’rs of Shawnee Co.v. City of Topeka, 39 Kas. 197.) It is clear that the city was negligent in failing to place a guard or rail along the side of a high bridge that was 60 feet long.
There is a claim that the boy was guilty of contributory negligence because he knew or should have known of the dangerous condition of the bridge, but under the testimony it cannot be said as a matter of law that lie was guilty of negligence in crossing the bridge. That question was submitted to the jury under proper instructions, and they having found that the city was negligent and the boy without fault, the finding is conclusive. The claim that the verdict is excessive is not sustained by the record, and the other questions which the plaintiff in error seeks to raise were not before the district court, and therefore are not reviewable in this court.
The judgment of the district court will be affirmed.
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' The opinion of the court was delivered by
Aleen, J.:
The district court sustained a demurrer to the plaintiff’s petition on the ground that it did not state facts sufficient to constitute a cause of action, and, the plaintiff not desiring leave to amend, judgment was entered in favor of the defendants. The plaintiff alleges error in sustaining the demurrer. The petition is very long. It alleges that the plaintiff is a city of the third class ; that the Geneseo Natural Gas, Coal, Oil, Salt and Mineral Company is a corporation organized under the laws of Kansas; that the other defendants are the directors and officers of the defendant corporation ; that the plaintiff, by authority of the voters of the city conferred at a special election held on the 7th of March, 1888, subscribed for 30 shares of $100 each of the capital stock of the defendant corporation, and issued its bonds for $3,000 in payment therefor; that the defendant corporation received and sold said bonds, and that the same are now outstanding and a valid indebtedness against the plaintiff; that none of the other stockholders have ever paid anything on their capital stock; that the directors have applied the proceeds of the plaintiff’s subscription to uses not authorized by the charter' of the corporation, and that the directors and officers have grossly abused their trust; that a portion of the proceeds of the bonds issued by the defendant is still in the possession of the treasurer of the company, and that he threatens and is about to pay out the remaining funds belonging to the defendant to the officers thereof on invalid claims for salaries. The petition concludes with a prayer for an accounting by the officers of the corporation ; for an injunction against further wrongful disposition of the funds ; for a receiver to close up the affairs of the corporation; that the directors be required to refund the moneys they have misappropriated; that the assets of the corporation may be distributed equitably among the stockholders ; and, finally, for a judgment against the defendant for $3,000.
In support of the ruling of the court, it is argued on behalf of the defendants that the alleged subscription by the plaintiff to the capital stock of the defendant company was made without authority of law, and is therefore void ; that the plaintiff, therefore, is not a stockholder, has no interest in the defendant corporation and cannot question the action of the directors, nor bring them to an accounting; that the bonds issued by the city are void, and the subscription was therefore without consideration. A copy of the charter ®f the company is attached to the petition, which shows, “ that the purposes for which this corporation is formed are to prospect for, develop, and operate natural gas, coal, oil, salt, and other minerals.”
We agree with counsel for defendants in error that the legislature did not and could not confer authority on the city to subscribe to the capital stock of this company. The charter provides for a capital stock of $50,000, divided into shares of $100 each. The business contemplated by the charter is not merely supplying a public want or performing a public function by the city authorities. In the case of The State, ex rel., v. City of Hiawatha, 53 Kas. 477, we held that authority had been given by the legislature to cities of the second class to provide for lighting the streets, and that they might purchase electric plants to carry out that purpose. This corporation, however, seems to be formed for the purpose of carrying on the business of mining gas, coal, oil, salt, and other minerals. It is not formed merely to supply a public need of the city, but contemplates carrying on a private business for profit. The main purpose of the corporation would seem to be to produce minerals for sale on the market at a profit. Cities are organized for public purposes, not to enter into private business ventures. In this case, the subscription was but for a small portion of the capital stock in a corporation, the business of which would be controlled by directors chosen by vote of the stockholders.. It would be in effect placing the interests of the public in charge of private persons, whose interests might lead them to do, as it is charged in the petition has been done in this case, to abuse their trusts and misapply the funds of the corporation. The only statute which it is claimed authorizes such a subscription is chapter 114 of the Laws of 1887, which, so far as it attempts to authorize cities to become shareholders in companies organized for the purposes of mining coal, etc., to.be placed on the general market for profit, is void under the principles declared in former decisions of this court. (McConnell v. Hamm, 16 Kas. 228 ; Blain v. Riley Co. Ag. Soc., 21 id. 558 ; Railroad Co. v. Smith, 23 id. 745. See, also, Bank v. City of Iola, 9 id. 689 ; Loan Association v. City of Topeka, 20 Wall. 655.)
It is claimed by the defendants that the act authorizing the subscription being void, bonds issued under it are void and worthless; that the plaintiff’s subscription was without consideration, and, therefore, that the plaintiff has no interest in the corporation, nor claim upon it. On .the other hand, the plaintiff insists that the défendant corporation, having received and sold the bonds and accepted the city’s subscription to its capital stock, is estopped from denying the plaintiff’s right as a stockholder. We do not wholly agree with either of these contentions. The petitioi does not set out the form of the bonds issued. It maj be, for anything appearing in the record, that the bonds are unobjectionable in form, and purport to be issued for a lawful purpose, and that under the decisions of the supreme court of the United States they might be held, if in the hands of bona fide purchasers for value, without notice of any infirmity, to be binding obligations. It may be that they contain no reference to the statute referred to. It is alleged in the petition that they are valid and binding obligations on the city. It is possible that this averment may be true. We must assume in considering the demurrer that it is true. If so, the city has a valid claim against the corporation for the proceeds of the bonds. Its claim is not as a stockholder, but as a creditor of the corporation entitled to receive the proceeds of bonds issued without lawful authority which have come into the hands of the defendants. While there is a great deal of surplusage in the petition, and very much relief is asked which the court cannot give, there are jet sufficient averments to show a cause of action in favor of the city for the bonds wrongfully issued and wrongfully converted by the defendants to their own use.
The judgment must be reversed, with directions to overrule the demurrer.
All the Justices concurring. | [
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The opinion of the court was delivered by
Joi-inston, J. :
This was an action of replevin, brought by J. D. Bowersock to recover from T. M. Adams, who was sheriff of Sumner county, the possession of 10 horses, 2 omnibuses, 2 hacks, 1 baggage-wagon, and 5 sets of harness, of the alleged value of $3,070. The sheriff had seized the animals and articles mentioned, upon an execution, as the property of Henry Tisdale. The property had belonged to Tisdale, but Bowersock claimed that Tisdale was indebted to him in a large sum of money, and that the property was sold and transferred to him as part payment of that indebtedness. The defendant claimed that the property in fact belonged to Tisdale at the time of the levy thereon, and that the transfer was not made in good faith, but rather for the purpose of covering it up so as to defeat the creditors of Tisdale.
The bona fides of the transfer was the principal in quiry in the litigation, and upon that proposition the findings and judgment of the court were against the plaintiff. He first complains that the range given to the cross-examination of some of the witnesses was too wide, the result of which was prejudicial to him. The statements made by the plaintiff in several of the pleadings and in his testimony, together with some unusual circumstances which were brought out in the ease, justified an extended inquiry and great latitude in cross-examintion as to the consideration of the transfer, the means of the parties . thereto, their conduct, and the circumstances of the transfer. In this view we cannot say that prejudicial error was committed in ruling upon the objections to the cross-examination of plaintiff ’ s witnesses.
In the course of the trial, certified copies of personal-property statements, listing the property owned or formerly owned by Tisdale, were received in evidence. These statements, when signed and verified by the listing parties, are required to be returned to the county clerk, and preserved in his office. (Gen. Stat. of 1889, ¶" 6914.) As they are official papers, required by law to be filed and preserved in a public office, copies of them, duly certified by the county clerk under his official seal, may be J J received in evidence with the same effect as the originals, where the originals are not in the possession nor under the control of the party desiring to use the same. (Civil Code, § 372.) The statements in question were made before and after the alleged transfer, and tended to throw some light on the question of a change of possession, and of the management and control of the property by the parties to that transfer. We think no error was committed in receiving them.
Nor can we sustain the objection to the proof of the process under which the property was seized and held by the sheriff. The only proof offered in that respect was a certified copy of an execution issued upon a judgment of the district court of Sedgwick county. The certificate of the clerk was sufficient in form to make the copy of the execution admissible where the original was out of the possession and beyond the control of the sheriff, but no proof of the judgment upon which the execution was based was produced. To justify such a seizure by an officer, it is generally necessary that his official character and the proceedings and process under which he acted should be shown. In this case, however, the official character of the officer was alleged in the petition, and it also contained an averment that he took possession of the property as sheriff under and by virtue of a “supposed ’ ’ writ of execution issued out of the district court of Sedgwick county, Kansas, and directed to him as sheriff. There was no averment that the execution was irregular in form or invalid for any reason, and as the plaintiff alleged the existence of process which, if valid, would justify a seizure of the property, its validity, in the absence of an averment to the contrary, will be presumed.
A more serious objection, however, was the admission in evidence of certified copies of certain proceedings in aid of execution had before the probate judge of Douglas county. They purport to have been had before the' probate judge in October, 1888, and were instituted upon affidavit alleging that in the district court of Sedgwick county a judgment liad been obtained against Henry Tisdale in favor of Samuel 'Wickery for $4,800 ; that an execution issued thereon had been returned unsatisfied ; and that Tisdale had property which he unjustly refused to apply .toward the satisfaction of the judgment. Upon this affidavit the probate judge issued an order requiring Tisdale to appear and answer concerning his property. In accordance with this order, he appeared on October 3, 1888, which was about a year before the alleged transfer, and submitted to an examination concerning his property, which was made upon oath and reduced to writing. At the close of the examination, the probate judge ordered him to turn over a small sum of money, which he admitted to have on his person, and ordered that he be restrained from interfering with or disposing of any of the property mentioned in his evidence. These proceedings purport to have been before John Q. A. Norton, probate judge, while the certificate attached to the papers is made by B. J. Horton, a successor, who certifies them to be copies of papers in the proceedings referred to which he finds among the papers of the Douglas county probate court. The certified copies do not reach the rank of r evidence, and their admission was error. The papers in question were not records of the probate court. While the proceedings were had before the probate judge, they were not an exercise of probate jurisdiction, nor was a record of them required to be kept in the probate court. The judge was exercising judicial functions in a case in the district court, and was in fact acting as a subordinate officer of that court, and under its supervisory control. (Young v. Ledrick, 14 Has. 92.) Under the statute, the judge is required to "reduce all his orders to writing, which, together with a minute of his proceedings, signed by himself, shall be filed with the clerk of the court of the county in which judgment is rendered or the transcript of.the justice filed, and the clerk shall enter on his execution docket the time of filing the same.” (Civil Code, §499.) Under this provision, it became the duty of the probate judge of Douglas county to transmit and file with the clerk of the district court of Sedgwick county the orders and proceedings which have been mentioned; and the clerk of that court, who had the legal custody of the records, was the only officer who was competent to give certified copies of the same that might be used as evidence. As there was no valid proof offered of these proceedings or of the order of injunction made by the probate judge of Douglas county, the admission of the testimony was prejudicial error. As this was the only testimony concerning the injunction, the court committed error in refusing to instruct the jury that there was no sufficient evidence that Tisdale had been enjoined or restrained from selling or disposing of the property in controversy at the time that he claimed to have sold it to Bowersoek. In his testimony, Bowersoek stated that he had no notice or knowledge of the-restraining order, and if it had been shown that such an order had been made, then the court should have granted the re-
quest of plaintiff, and instructed the jury that an injunction allowed against Tisdale would not affect the plaintiff in the matter of the purchase of the property, unless he had been notified of the injunction before the purchase of the property, or had knowledge that such injunction had been issued.
For the errors mentioned, the judgment will be reversed and the cause remanded for a new trial.
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The opinion of the court was delivered by
Allen, J. :
The plaintiff (Breeding) testified to an oral warranty by the agent of the defendant that the safe was fire-proof. It will be observed that the written order for the safe, made at the time, expressly provides that the title shall remain in the defendant until the full purchase-price should be paid. The evidence shows that $18 was paid at the time of the delivery of the safe, and that the first note was afterward paicl. At the time of the fire two notes still remained unpaid, and the title to the property therefore was still in the defendant. There could not then be a technical warranty of the article sold. It is not necessary, however, to nicely inquire into- the difference in the mode of recovering damages for a breach of warranty and those resulting from the use of an article furnished for a particular purpose under a bailment. The only question we deem it necessary to decide is whether under the testimony any such warranty was made as would entitle the plaintiff's to recover, irrespective of the technical question. It appears from the plaintiffs’ own evidence that the agreement which they entered into with the agent of the safe and lock company was reduced to writing.-
Oral evidence therefore is inadmissable to vary or enlarge its terms. (Drake v. Dodsworth, 4 Kas. 160 ; Brenner v. Luth, 28 id. 581; Hopkins v. Railway Co., 29 id. 544; Furneaux v. Esterly, 36 id. 539 ; Windmill Co. v. Piercy, 41 id. 763 ; Willard v. Ostrander, 46 id. 591.)
It is clear tliat the safe was delivered to the plaintiffs in compliance with the terms of the written order. Does this order contain what in law amounts to a warranty? There are no words in it of express warranty. Does an order, however, for a fire-proof safe imply a warranty? It is contended that this is a case of a sale of ail article of the vendor's manufacture for a particular purpose, and imports a warranty that it is reasonably fit for that purpose, and free from latent defects arising in the process of manufacture and not disclosed to the vendor. In the case of Lukens v. Freiund, 27 Kas. 664, it appeared that the defendant was a miller ; that two copper clasps accidentally fell into some bran which was sold to the plaintiff. The clasps were swallowed by one of the plaintiff's cows and killed her. It was held that, in the absence of express warranty, the plaintiff could not recover for his .cow. The second clause of the syllabus reads as follows :
“While, when an article is ordered from a manufacturer to be by him manufactured for a specific and understood purpose, there is in some cases an implied warranty that the articles when manufactured will be reasonably fit for the purpose intended, yet when a purchase is made from him of a specific and completed article, he is to be regarded as a dealer, and his liability -determined accordingly.”
There is nothing in this case indicating that the safe purchased by the plaintiffs was manufactured specially for them, but the fair inference is that it was one of a kind of safes which the defendant manufactured for sale to whomsoever would buy. It is designated in the order as a “No. 4 fire-proof safe,” and the order provides that it shall be one of the defendant’s latest styles and improvements, thus clearly indicating that it is one of a kind of safes manufactured by the safe and lock company. “There is in America an implied warranty of identity, namely, that the article shall be of the kind or species it purports to be, or is described to be — that is, that the article delivered shall be the same thing contracted for.” (Ben). Sales, [6th ed.] 636.) This proposition is illustrated in the following cases : In Henshaw v. Robins, 9 Metc. (Mass.) 83, a sale and bill of parcels of two cases of indigo was made. It was shown that the article paid for and delivered was not indigo at all, but composed of Prussian blue, chromate of iron and potash, and worthless for any purpose. It was held that the description of the article inserted in the bill of parcels amounted to a warranty that the article was such as represented. In Hawkins v. Pemberton, 51 N. Y. 198, it was held that the sale of an article as blue vitriol amounted to a warranty that it was such. In Wolcott v. Mount, 36 N. J. Law, 262, it was held that a sale of seed, which the seller said was early strap-leaf red-top turnip seed, was equivalent to a warranty that it was such, and that the purchaser might recover the difference between the market value of the crop raised and the same crop from such seed as -was ordered. In White v. Miller, 71 N. Y. 118, it was held that on a sale of “large Bristol cabbage seed” to a market gardener, there was an implied warranty that the seed was not only raised from such stock, but free from any latent defect arising from the mode of cultivation, and would produce that kind of cabbage. In Jones v. George, 61 Tex. 345, it was held that a sale by a druggist to a planter of an article as Paris green, implied a warranty that it was that substance.
There is no doubt, under the authorities, that the article sold must answer in kind to the description under which it is sold, and that there is an implied warranty that the article delivered is such an article as the name under which it is sold indicates. When, however, the question arises whether an article is of a particular quality or degree of excellence, unless it is designated by some term -which is descriptive of the article and calls for a particular quality, the general rule is that no warranty of qualit3r will be applied. • In Walcott v.
Mount, supra, it -was said : “In general, the only contract which arises on the sale of an article by a description, by its known designation in the market, is that it is of the kind specified.” In Winsor v. Lombard, 18 Pick. 57, it was held that where a large number of barrels of mackerel branded under the inspection laws as No. 1 and No. 2 mackerel were sold in the spring with that description of them in the bill of parcels, it was not a warranty that the mackerel -were free from rust, although it appeared that mackerel affected by rust are not considered as No. 1 and No. 2. In Gossler v. Sugar Refinery, 103 Mass. 331, it was held that —
“One -who agreed to sell ‘ Manilla sugar ’ to refiners, and delivered to them what is usually called in commerce by that name, can, in the absence of fraud, misrepresentation or -warranty, recover the agreed price, though the article delivered contained more impurities than sugar known under that name usually does.”
The case of Shisler v. Baxter, 109 Pa. St. 443, seems to be opposed to White v. Miller, supra, holding that tlie sale of seed as Wakefield cabbage seed did not amount to a warranty that it was such, but was a representation as to quality. In 'Towell v. Gatewood, 2 Scam. 22, a bill of sale of good first- and second-rate tobacco was made. The court refused to treat this as a warranty, but rather as an expression of opinion as to the quality of the article sold concerning which the buyer should have relied on his own judgment or obtained an express warranty. “The mere description of iron sold as mill iron in a bill rendered to the purchaser will not amount to a warranty that the same is of the quality or grade described, but will be regarded as a mere statement of opinion or expression as to the quality.” (Iron Works v. Moore, 78 Ill. 65. See, also, Ryan v. Ulmer, 108 Pa. St. 332 ; Dounce v. Dow, 64 N. Y. 411.) In Fraley v. Dispham, 10 Pa. St. 320, it was held that a sale bill of superior sweet-scented Kentucky leaf tobacco affords no evidence from which the jury may infer a warranty that it is either superior or sweet-scented. The case of Shaw v. Smith, 45 Kas. 334, was on a cofitract for the sale of flaxseed, which the buyer agreed to sow and sell the crop to the seller on certain terms stated in the contract. The seed proved worthless, and did not grow. It was held that under the contract, and in view of the purposes for which it was purchased, the buyer might recover as upon a warranty. In that case the purposes of the contract did not end with the delivery of the seed to the buyer, for he was obligated to sow the seed and to sell the crop which it might produce to the vendor. Under such a contract it was held that a warranty of the fitness of the seed for the purposes specified in the contract would be implied.
In the case under consideration, the plaintiffs ordered a fire-proof safe. There is no proof, nor was it in fact claimed at the trial, that the article delivered did not answer the description ; that is, that it was not such an article as is generally known and designated as a '‘fire-proof safe.” The evidence shows that it was manufactured and placed on the market in the same way that other fire-proof safes were made. “Fire-proof” is defined by Webster, “proof against fire; incombustible.”
The case of Hickey v. Morrell, 102 N. Y. 454, was an action against a warehouseman to recover for goods destroyed by fire in a warehouse represented to have a fire-proof exterior. It appeared that the window-frames and sash were wooden, and that there were no outside shutters, and it was held that the building could not be deemed fire-proof. In the course of the opinion it is said : ' ‘ Here the allegation is that the exterior of the building is fire-proof. It necessarily refers to the quality of the material out of which it is constructed or which forms its exposed surface. To say of any article it is fire-proof, conveys no other idea than that the material out of which it is formed is incombustible.” In the case of Insurance Co. v. Hird, 4 Tex. Civ. App. 82, in an action on a fire-insurance policy which stipulated —
“That the assured would keep his books in a fireproof safe, and that in case of loss he would produce the books, and on failure to so produce them, the policy would become void. The books were in good faith kept in a safe of the kind generally known and reputed as fire-proof, but which failed to preserve them from destruction by fire. • Held, That the insured had not warranted the safe to preserve the books, and that he complied with the condition.”
It is not claimed in this case that the safe itself was constructed of combustible materials, nor that it was burned, or even greatly damaged by fire. The plain tiffs seek to recover solely for damages resulting from the burning of articles deposited in the safe. There was no contract or representation with reference to the degree of heat, or the length of time when exposed to a fire, against which the safe would afford protection. Safes denominated as “fire-proof” are made of various sizes, capacities, and styles. If the outside be made of iron, while that metal is commonly regarded as incombustible because it will not burn, it yet is not indestructible by fire. It is a matter of common knowledge that iron will melt when subjected to a sufficient degree of heat. To imply a warranty that the safe would protect its contents against any given exposure to fire, we'think, would be to imply a warranty of quality, and that altogether indefinite in its terms, and imposing a liability which might be immensely disproportionate to the sum received. The recovery in this case was for more than three times the price of the safe. We are of the opinion that it was incumbent on the plaintiffs to inspect the safe when they received it for the purpose of ascertaining whether it was of the kind specified in the order; that if it was so, no warranty of quality -was implied, and no recovery can be had for the destruction of its contents. The judgment is reversed.
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The opinion of the court was delivered by
Martin, 0. J. :
The petitioner was convicted in the police court of the city of Lincoln Centre upon three counts for violation' of ordinance No. 139, and upon two counts for violation of ordinance No. 113 of said city, which is of the third class. Ordinance No. 139 makes it unlawful for any person to barter, sell or give away any malt, hop-tea tonic, ginger ale, cider or other drink of like nature in less quantities than one gallon, or to permit or allow the same to be drank at any store or other place of sale. Ordinance No. 113 declares it unlawful for any person, other than a druggist having a permit, to sell or barter any intoxi- eating liquors. The petitioner denied the right of the court to try him under either ordinance, claiming that both are invalid, but this contention was overruled. He next demanded a trial by jury, but this was refused. He was then tried by the court, and found guilty upon each count, and was adjudged to pay fines amounting to $200, besides $95.40 costs, and he was committed to jail until the fine and costs should be paid. The court fixed the appeal bond at $500. Afterwards the petitioner made a showing to the court of his inability to give an appeal bond, and he asked to be discharged from imprisonment, but this was refused.
I. The petititioner claims that said ordinance No. 139 is void ; but in Monroe v. City of Lawrence, 44 Kas. 607, this court decided that an ordinance of the city of Lawrence of the same general nature was valid. The reasoning in that case is applicable here, and we consider it controlling.
II. The petitioner further contends that said ordinance No. 113 is invalid on the ground that the sale of intoxicating liquors is regulated by the laws of the state, and any unlawful sale thereof, or the keeping of any place for carrying on such sales, is punishable under said laws and not under city ordinances covering the same subject. If this question were new, we might think the position of' counsel for petitioner a strong one, but under the old dram-shop act,'as well as the prohibitory amendment and the laws made in pursuance thereof, it has been held that the state may confer upon municipalities the right to punish, in pursuance of their ordinances, illegal sales of intoxicating liquors or the keeping of any place for conducting such business within their limits. ( City of Emporia v. Volmer, 12 Kas. 633 ; City of Salina v. Seitz, 16 id. 143 ; The State v. Young, 17 id. 414 ; Franklin v Westfall, 27 id. 614; City of Topeka v. Myers, 34 id. 500; Junction City v. Keeffe, 40 id. 275, 279, 280.) And many decisions in other states are in accord with the foregoing. Tested by these authorities, we think that ordinance No. 113 is valid.
III. The next claim of the petitioner is that he was entitled to a jury in the police court, especially upon the charges under ordinance No. 113, for unlawfully selling intoxicating liquors and keeping a place where such liquors were unlawfully sold. A distinction has always been taken between offenses against mere municipal regulations and those which are made penal by the laws of the state because of their supposed evil consequences to society; the courts holding that the former might be punished summarily by proceedings in the municipal court, while as to the latter the defendant is entitled to a trial by jury. In Neitzel v. City of Concordia, 14 Kas. 446, this court held that a prosecution in the police court for selling liquor without a license contrary to the ordinance of the city was criminal in its nature, and after a trial on appeal by the district court could only be brought here by appeal. The complaint against the petitioner for the sale of intoxicating liquors must, we think, be treated as criminal in its character, and under § 5 of the bill of rights, declaring that “the right of trial by jury shall be inviolate,” he is entitled to a trial by jury. But it was long ago settled by this court that, where a statute authorizes a trial before a municipal court without a jury for a violation of a city ordinance, and at the same time secures to the defendant an appeal therefrom, clogged by no unreasonable restrictions, to an appellate court in which he has a right to a trial by jury, such summary proceeding is not in conflict with said. § 5 of the bill of rights. (City of Emporia v. Vohmer, 12 Kas. 622; In re Rolfs, 30 id. 758.) And this position has been established by other courts, although the supreme court of the United States takes a different view of the subject under a somewhat similar provision of the federal constitution. (1 Dill. Mun. Corp. [4th ed.], § 439 [original § 367], and cases cited.) The petitioner claims, however, that he is not allowed an appeal “clogged by no unreasonable restrictions,” because, under ¶ 1010, General Statutes of 1889, he cannot appeal without entering into recognizance with good and sufficient surety conditioned for his personal appearance before the district court on the first day of the next term, “and for the payment of such fine and costs as shall be imposed on him if the case shall be determined against the appellant.”
In McInerney v. City of Denver, 17 Colo. 302, it was held that such a provision as the foregoing, coupled with a further condition that the defendant must pay all costs accrued in the police court before the appeal should be perfected, constituted unreasonable restrictions upon the right of appeal; and we think it unreasonable to impose the condition for the payment of the fine and. costs if the case should be determined against the appellant, and that the recognizance should provide for nothing more than the appearance of the appellant before the district court of the county on the first day of the next term thereof, which, of course, implies that he will remain until his case is called and disposed of. Almost any man can obtain security for his appearance in a case where he is charged only with a misdemeanor, but it is very different when a neighbor is asked to become security for the payment of a fine, even upon a contingency, after it has been once imposed. We think that the provision in said ¶ 1010 for the payment of such fine and costs as shall be imposed is inconsistent with the constitutional guaranty that the right of trial by jury shall be inviolate, and, therefore, we hold this clause of said paragraph to be inoperative and void. If the petitioner had tendered a recognizance, with good and sufficient surety for his appearance, we think it would have been the duty of the police judge to have accepted and approved the same.
IV. The petitioner claims that he was unable to give any security by reason of his poverty, and urges that he should be discharged for this reason, but he does not cite any authority in support of this proposition, and we know of none. Such a doctrine is too dangerous to be entertained.
The order of the court is that the petitioner be remanded to the custody of the respondent, but on entering into recognizance in the sum of $500 within 10 days, with good and sufficient security to be approved by the police judge, conditioned for the personal appearance of the appellant before the district court of the county on the first day of the next term thereof, he will be discharged from imprisonment.
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The opinion of the court was delivered by
Allen, J. :
It is alleged in the alternative writ of mandamus issued in this case that the plaintiff was on the 4th of March, 1893, duly appointed by the governor as one of the trustees of the benevolent and charitable institutions of the state; that he was confirmed by the senate, and duly commissioned as such trustee for the term of three years commencing on the 1st of April, 1893. It further appears from the writ that charges were preferred against the plaintiff, and a committee of members of the legislature was thereupon appointed to investigate said charges in accordance with the provisions of chapter 239 of the Laws of 1889, and that the governor served the notice on the plaintiff stating that by authority of law he was suspended as a member of the board of charities ; that by reason of such order of the governor the plaintiff has been prevented from discharging his duties as such trustee ; and it is alleged that such suspension was without lawful warrant or authority. It is contended that chapter 239 of the Laws of 1889 has no application to members of the board of charities, (1) because the constitution creates the office of the trustees of benevolent institutions and provides for the impeachment of the governor and all other officers under the constitution. It is contended that, as there is no other provision in the constitution for their trial .for misdemeanors in office, impeachment is the only remedy ; ( 2 ) it is claimed that even if the constitutionality of the act be maintained it does not in terms apply to members of the board of charities, but only to the officers directly in charge of the several institutions, such as the superintendent, steward, etc. The view we take of this case renders an examination of the questions most discussed by the learned counsel for the plaintiff unnecessary. The only relief sought by the writ is that the governor be commanded to rescind or revoke his order suspending or purporting to suspend the plaintiff as trustee of the charitable and benevolent institutions. Section 688 of the code of civil procedure reads:
“The writ of mandamus may be issued by the supreme court or the district court, or any justice or judge thereof, during term or at chambers, to any inferior tribunal, corporation, board or person, to compel the performance of any act which the law specially enjoins as a duty, resulting from an office, trust or station ; but though it may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, it cannot control judicial discretion."
The governor of Kansas, as governor, is in no sense inferior to this court. He stands at the head of the executive department, as this court stands at the head of the judicial department. It is true that it has been held that where a purely ministerial duty is imposed on the governor, which might as well have devolved on any inferior officer, the performance of that duty may be compelled by mandamus. (Martin v. Ingham, 38 Kas. 641). It was said in the opinion in that case :
‘' The only acts of public functionaries which the courts ever attempt to control by either injunction or mandamus are such acts only as are in their nature strictly ministerial; and a ministerial act is one which a public officer or agent is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed.”
By the provisions of the statute under which the governor assumed the right to act, he must first determine, before taking any steps whatever, whether the charges are worthy of credit or emanate from a reliable and trustworthy source. This requires the exercise of judgment and discretion, and therefore is not a purely ministerial act. (Martin v. Lacy, 39 Kas. 703 ; Insurance Co. v. Wilder, 40 id. 561.) In this case the governor has unquestionably acted as governor, and not as a mere ministerial officer. There is no statute making it his duty to revoke the order complained of, even if made without authority of law. If the court were to assume the power to compel him to revoke his order and restore the plaintiff to his office it would do so because it determined that it was his duty as governor to reinstate the plaintiff. This is all we deem it necessary to decide in this case. It will be time enough to consider other questions when they are necessarily involved in the disposition of the case before us.
The writ does not state a cause of action, and will be quashed.
All the Justices concurring | [
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The opinion of the court was delivered by
Allen, J. :
On the 2d of November, 1889, William Johnson purchased a ticket from the Missouri Pacific Railway Company, and took passage on a mixed train from Peru to Sedan. The car in which he was riding was thrown from the track, tipped over, and he was injured. This action is prosecuted to recover damages for the injuries received.
Under the rule declared in S. K. Rly. Co. v. Walsh, 45 Kas. 653, all that it was necessary for the plaintiff to prove in the first instance was that he was a regular passenger, in his proper place in the car; that the car was thrown from the track ; that he was injured, and the extent of his injury. This is a sufficient showing by a passenger to establish prima facie a want of that high degree of care and diligence which the law imposes on railroad companies in the transportation of passengers. It then devolves on the company to show that the accident could not have been prevented by the exercise of the utmost human sagacity and foresight. (Railway Co. v. Hand, 7 Kas. 392.) In this case the plaintiff went further, and his counsel, in making his opening statement to the jury, said that the plaintiff relied wholly upon the allegation that the defendant was careless and .negligent and unskillful in using in' said train a defective and unsafe car, and thereby caused the wreck. The specific claim of negligence made by the plaintiff was that a freight-car near the middle of the train was so old and rotten that it broke in two in the middle, and caused the derailment of the passenger-coach which was at the rear end of the train. It was claimed that the sills of the freight-car were rotten. The plaintiff introduced evidence tending to support his claim. It is an unisputed fact that the freight-car did break in two near the middle, and no other cause for the accident is suggested than something connected with this freight-car. It was contended, however, by the defendant, that the sills of the car were not rotten, but sound; that the car did not break of its own weight, or because of the small load it contained, but that by reason of some hidden defect, which a careful examination failed to disclose, either the front trucks slipped back towards the middle of the car, or in some other way it was subjected to a violent wrench which broke it in two. Witnesses on behalf of the defendant testified that they examined the sills and that they were sound. There was evidence tending to show that the broken car came from Kansas City through Osawatomie ; that the defendant employed a number of car inspectors, whose duty and custom it was to carefully inspect the cars passing through Osawatomie ; that the numbers of all defective cars were entered on what is called a bad-order book, and such cars were detained for repairs; that the number of this car did not appear on the bad-order book. It was also shown that the conductor made such casual inspection of the cars in his train as it is practicable for a conductor to make.
The court, over the objection of the defendant, allowed the plaintiff while introducing his evidence in chief to prove that one Colburn had come to him at two different times, and talked about a compromise of his claim for damages ; that Colburn said he was adjuster for the company. There was no direct evidence that Colburn was the agent of the company, and his declarations as to such agency are mere hearsay. (Railway Co. v. Stults, 31 Kas. 752.) C. P. Day, a witness for the plaintiff, was permitted to testify over objection, that the conductor of the train, immediately after the accident, said, "If these damned car inspectors would pay attention to their business there would be less wrecks.” W. J. Walton, another witness, testified to having hauled a load of stuff from the wreck for one Ingle-hart, a car repairer of the defendant at Sedan; that Inglehart said the material came from the wrecked car, and also said, "That if it had not been for that rotten car, there would, not have been any wreck there.” The witness also testified to the unsound - ness of the material he hauled. John Foster also testified to substantially the same statement having been made by Inglehart. None of these declarations of employees of the defendant were made in connection with "the performance of any duty for the defendant. They were not made in connection with the transaction of any business which authorized them to speak .on the subject of what caused the wreck. Their statements were therefore not binding on the defendant, nor properly admissible in evidence against it. (Railway Co. v. Stults, supra; Donaldson v. Everhart, 50 Kas. 718; Railway Co. v. Pointer, 9 id. 620 ; Sanborn v. Railway Co., 35 id. 292 ; Dodge v. Livingston, 38 id. 526.)
It is not seriously claimed that this testimony was admissible, but it is urged that the plaintiff proved every fact necessary for him to establish, and that inasmuch as it was not incumbent on him to make proof showing the particulars in which the railway company was negligent, the mere fact of his having offered incompetent testimony for that purpose is not prejudicial to the defendant, and must therefore be disregarded. This claim would be sound if there were no testimony in the case but that offered by the plaintiff. If the plaintiff had sufficiently established his cause of action by competent testimony the mere introduction of other testimony for the same purpose which was incompetent would of course be harmless. But in this case the defendant offered testimony for the purpose of overthrowing the prima facie case made by the plaintiff, and if the testimony offered by the defendant was entitled to be given any weight or consideration by the jury then the incompetent testimony became material, and when thrown in the scale and weighed with the competent was of course prejudicial to the rights of the defendant. We cannot uphold this verdict unless we can say that all of the testimony offered by the defendant is clearly insufficient to establish a defense to the plaintiff’s prima facie case. It is not for this court to weigh conflicting 0 ° testimony. No matter how strong or weak the testimony may appear to us, its force is to be determined by the jury. The defendant in this case offered proof of what it claimed was due diligence in the inspection of the car which caused the accident. Unless we can say as a matter of law” that all that is proven by the defendant’s witnesses utterly fails to show that the defendant used due diligence, we cannot hold the admission of this testimony immaterial. Whether the accident was caused by rotten sills in the car was a disputed fact, as to which there was direct testimony on both sides. The plaintiff introduced no evidence tending directly to show any other defect in the car. That offered by the plaintiff tended to show that there was some other defect in the car which caused the injury, and that such defect could not be readily detected by inspection.. The jury have found in favor of the plaintiff’s claim that the timbers in the car were rotten. Their verdict for damages is based on this fact. The testimony erroneously admitted tended directly to support this special finding. We are unable to see how we can treat it as of no consequence. Nor can we say that the jury must have found under the defendant’s own evidence alone that there was negligence on its part in failing to detect the defect in the car. Although railroad companies are held to the utmost diligence in providing for the safety of passengers, and are liable for the slightest negligence, the plaintiff's recovery must yet be because of some neglect or fault of the railway company or its employees. Of the facts of the case , the jury and not the court are the judges, and in determining those facts only competent evidence should be considered.
The judgment must be reversed, and a new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Aijjln, J. :
It is contented that the provision in the mortgage from Campbell to the bank, allowing him to check out half the proceeds of the December sales, renders the whole mortgage void. We shall assume that, if attacked by a creditor who had done nothing to estop him, it would be void. The plaintiffs, however, claim under a mortgage which contains the following provision : “ It is hereby represented, and this mortgage accepted on faith of said representation, that there are no claims or liens of any kind on the above property, but this mortgage is a first lien, except a claim in the nature of a chattel mortgage held by the Citizens Bank of Emporia, Kas., and sub-jeet thereto.” The plaintiffs, by accepting a mortgage containing this clause, recognized the validity of the mortgage to the bank, and are estopped from now questioning it. (Jones, Mortg., §744.)
It is contended by the plaintiffs, however, that they must recover even if the validity of the bank’s mortgage is conceded, because it appears from the findings of the court that the bank realized from the securities it held more than enough to pay all of Campbell’s indebtedness to it, and actually paid over to him $1,999.75, out of 'which the plaintiff’s claim should of right have been paid. The mortgage to the bank being a prior lien, it was not bound to account to the plaintiffs for any surplus realized from a sale of the mortgaged property without express notice of the plaintiff’s rights. The recording of plaintiff’s mortgage subsequent to that of the bank did not, under the authorities, impart constructive notice to the prior mortgagee. (1 Jones, Mortg., §562; McLean v. Lafayette Bank, 4 McLean, 480 ; Meacham v. Steele, 93 Ill. 135 ; Dewey v. Ingersoll, 42 Mich. 17.) The findings of the court as to actual notice we think not in accordance with the evidence. The case comes to us just as it did to the trial court, on written evidence reported by the referee. Brooks, the agent of the bank, in charge of the stock of goods, testified that he knew of the mortgage to Burnham, Hanna, Munger & Co. at the time it was given; that he informed his principal that Campbell had given another mortgage on the stock of goods right away by writing; that he knew of the terms and conditions contained in the mortgage.
D. W. Eastman, the cashier of the bank, testified:
“ Q,. When did you first learn of the mortgage to Burnham, Hanna, Munger & Co. ? A. I do not know ; some time after it was given.
“Q,. How long would you say after it was given? A. I do n’t think we knew of it until one time Mr. Brooks came up here, some time after it was given.”
This witness also testified that he had made search, and failed to find any letter informing them of the plaintiff’s mortgage. This testimony we think fairly shows that the bank had actual notice of the plaintiff’s mortgage while it still held securities sufficient to satisfy both its own claims mentioned in the findings of the court and that of the plaintiffs. The indebtedness due the bank was secured, not only by mortgage on the stock of goods prior to the plaintiff’s mortgage but also by a mortgage on the fixtures, notes and accounts which were not covered by the plaintiff’s mortgage. The general rule enforced in equity is that, where one creditor is secured by mortgage on several pieces of property while another creditor is secured by a junior mortgage on only a part of the property, the prior creditor, when chargeable with actual notice of the rights of the junior creditor, is bound to exhaust his security on the property not covered by the junior lien, and that he must account to the junior lienholder if he releases his security on, or pays over to the mortgagor, the proceeds of the property not covered by the lien of the junior mortgagee after actual notice of the junior lien. (2 Jones, Mortg., §§1268 et seq. ; 2 Pingrev, Mort., § 1929 ; McLean v. Lafayette Bank, supra.)
4. Recitals in mortgage-^ Judging from the findings of the trial court alone, we should infer that the indebtedness of Campbell to the bank had been satisfied, and that a surplus remained of $1,999.75, which was paid oyer to Campbell, but in the evidence of Eastman we find a statement that Campbell was still indebted to the bank on account of debts of himself or of the firm of Campbell ,& Johnson, or Campbell & Bros, between $1,500 and $1,600. "Whether these claims were otherwise secured does not appear. It- would seem quite remarkable that the bank should pay over a portion of the proceeds of the mortgaged property to Campbell while a portion of its claim still remained unpaid ; but if the indebtedness to the bank secured by its mortgages were sufficient to exhaust the entire proceeds of the mortgaged property, the plaintiffs could not complain of its doing so. The trial - court held, not only that the provision in the mortgage for. the payment to Campbell, the mortgagee, of one-half of the proceeds of the December sales did not render the mortgage void, but that the acceptance by the plaintiffs of a mortgage recognizing the validity of the mortgage to the bank, recognized as well the provision for this payment to the mortgagor. The mortgage to the plaintiffs in terms conveys to them all the interest Campbell had in the goods. It represents “that there are no claims or liens of any kind on the above property, but this mortgage is a first lien, except a claim in the nature of a chattel mortgage held by the Citizens Bank of Emporia.’' Can it be said that Campbell still reserved an interest in the goods altogether indefinite m amount, and on which Burnham, Hanna, Munger & Co.- acquired no lien by virtue of their mortgage? The reservation in the mortgage to the bank of the proceeds to an amount not to exceed one-half the sales during the month of December, 1887, was to be used for the purpose of payments on his other indebtedness. He was then indebted to the plaintiffs. The amount of sales to be made in December was altogether indefinite, and depended entirely on the action of the bank. It might be nothing, or it might be the whole stock. Campbell had an undoubted right to mortgage every interest he had in the property not already conveyed to the bank, including as well as the proceeds of sales to be made in December as of those made at a later day. There is no reserva•tion to himself of any interest in the property by the terms of the mortgage to the plaintiffs, except the ultimate surplus after the payment both of the claims of the bank and the plaintiffs. The bank was not bound to make any sales in December, but having done so, one-half of the proceeds inured to the benefit of the plaintiffs.
The judgment is reversed, and a new trial ordered between Burnham, Hanna, Munger & Co. and the Citizens Bank. We find no evidence that the Citizens Bank had actual notice of the mortgage to Kellogg & Sedgwick, and the judgment as to the other plaintiffs in error is affirmed.
JOHNSTON, J., concurring. | [
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Tlxe opinion of the court was delivered by
JohNstoN, J.:
This action was brought by James C. Murray against the Kansas City, Fort Scott & Memphis Railroad Company to recover damages on account of personal injuries alleged to have resulted to him as an employee of said railroad company while in the per--formance of Ms duties as such employee, by reason of the fault and negligence of a coemployee. He was employed as a bralceman on a freight-train which ran between Fort Scott, Kas., and Kansas City, Mo., and on August 31, 1889, the train upon which he was working arrived at Miami station, where the Rich Hill branch unites with the main line of the railroad. The train was backed in upon the branch line in order to let a passenger-train which was about due to pass, and the conductor went to the depot to get bills of lading, etc., leaving the train in charge of Murray. Foxxr cars loaded with coal and standing upon a side-track were to be taken into the train at this point, so the locomotive and a car were cut off from the train, and, it being in the night-time, a red light was placed on the end of the train from which the locomotive and car were taken. In the abseixce of the conductor, Murray had charge of the train, and under his direction the locomotive and car were run forward some distance' and then backed in upon the side-track where a cotxp-ling was made with the four cars of coal. The rear car of coal was an open one loaded above the level of the side and eixd boards with fine coal, and there was a narrow platform at one end of the car to which a brake-staff was attached. Murray climbed upon the top of the rear car of coal, stationed himself about the center of it, and, with lantern in hand, signaled the engineer to pull out on the main line, which was done. Then, still acting under the directions of Murray, who was acting as brakemail and conductor, the engineer began backing up for the purpose of coupling onto that part of the train which had been left standing 700 or 800 yards from the switch on the main line. To make this connection they had to back oyer a sag or low place, then up an incline, and as they approached the stationary part of the train, Murray was still standing upon the top of the car ready to signal the engineer when occasion required; and while they were thus running at the rate of about six miles an hour, and were yet about 13 car lengths away from the stationary part of the train, the engineer, without any signal from Murray, or warning to him, applied the steam-jam with the effect of suddenly checking the train and jerking Murray forward upon the car, and before he could regain his equilibrium the steam-jam was again applied by the engineer, causing another jerk, thereby throwing him to the ground and under the moving wheels of the train, so that he was seriously injured.
■ Testimony was offered in behalf of the railroad company that there was no sudden stop or jerk of the train, but that the engineer, believing that he was close to the stationary part of the train, merely slackened the speed to avoid a collision; and there was also some testimony to the effect that Murray’s injury was the result of his own carelessness. The jury, however, found that Murray was in the discharge of his duty, and was using due care at the time of the injury ; that he was thrown from the car by the unnecessary action of tlie engineer in applying the steam-jam or tank-brake ; that he applied it without any signal from Murray, who was in control of -the train at the time, and wdio had no intimation that the brake was to be applied; and further, that it was not necessary for the engineer in the discharge of his duty, using ordinary care, to apply the brake at the time he did in order to prevent a' collision with the remaining portion of the train toward which he was backing. The company was found to be liable to the plaintiff for the injury, and the damages assessed were $2,500.
It is contended by the company that, taking the testimony of the plaintiff, it fails to show such culpable negligence of the engineer as would make the railroad company liable. It is said that the engineer was not under any duty to give any signal or warning to Murray, and had a right to assume that Murray, who had had considerable experience in the railroad business, would protect himself from the jars and jerks incident to the making up of a train, or to the starting and stopping of a train. It is contended that no preliminary signal or warning to laborers upon the train, to enable them to hold on or secure themselves, is required, and, as the engineer must exercise his judgment with respect to the handling of a train, the company therefore violated no duty toward Murray, and that under the rule of Railway Co. v. Haley, 25 Kas. 35, the company cannot be held liable for the injury. We do not think that the rule of the Haley Case is controlling in this one. Here, according to the testimony of the plaintiff below, the engineer stopped the train with unusual and unnecessary violence, when he had received no signal to stop, and when it was wholly unnecessary to make any kind of stop. Murray was in charge of the train, acting as conductor, and tlie engineer should have been governed by the signals which he gave. The engineer applied the brakes and brought the locomotive and cars to a sudden stop when they were more than 400 feet away from the stationary part of the train toward which they were moving. Murray had a right to assume that no unnecessary stop would be made until a signal was given, and until they approached closely to that part of the train toward which they were moving. He also had a right to assume that, in the absence of any signal or obstruction upon the track, no sudden stop would be made by the engineer. In the Haley Case the injured party was not in charge of the train, but was an employee engaged in carrying water and tools to other employees upon a construction train, and was picking up a bar near the end of the car when a sudden stop was made which threw him upon the track. The engine was reversed by the engineer and the train stopped to prevent a collision with cattle which came upon or near to the track, and under the circumstances it was held that the action of the engineer in reversing the engine and stopping the train was necessary, and that the company was therefore not guilty of culpable negligence. In that case it was shown that there was no rule or custom of the company which required that any preliminary signal or warning should be given to laborers upon the train, but Mr. Justice Bkewek, in a concurring opinion, stated that the existence of • such rules or custom is not conclusive on the question of negligence, and that “it may often be the duty of the courts to pronounce conduct negligent, and grossly so, although sanctioned by the custom of the road and the rules of the company, and forbidden by no statute.” In the present case there was testimony that the engineer was not authorized, under the rules of the company, to apply the steam-brake and stop the train without ^a signal from Murray; but, apart from that, it cannot be said, upon the testimony offered by Murray, that the engineer exercised that degree of care and diligence which an ordinarily-prudent person in a like position would have exercised. Neither can it be said as a matter of law that Murray was guilty of contributory negligence because he rode on the top of the coal-car rather than on the narrow platform at the front end of the car. He was in charge of the train and was stationed on the top of the rear car so as to enable him to observe the. trank and the proximity .of the other cars, as well as to signal the engineer when occasion required. It may he that the position selected by him was not the safest, but in his choice of positions he was governed by the demand of duty, and it may have been that he was better able to perform the duties required of him in the position taken than he Avould have been at the other end of the car.
The next contention is that error was committed in the admission of testimony that, under the rules of the company, the engineer was not authorized to apply the steam-jam and stop the train without a signal from Murray. The objection was that this was not a proper method of proving the rules, and that they should have been introduced to tell their own story. It does not appear, however, whether the rules were written or printed in whole or in part. If they were written or printed, of course they should have been introduced; hut as there may have been rules not committed to writing, it cannot be said that material error was committed in receiving the testimony.
A more serious objection is made to the testimony of Doctor Aikman, a physician and surgeon of Fort Scott, Kas., to which place Murray was taken after his injury. That witness, after stating that he had examined his wound and dressed it, was asked if he had any conversation with Murray at the time about how he received the injury, and to give any statements made by him as to the cause of the accident. An objection was made that the question called for a privileged communication, and the court sustained the objection and excluded the testimony. The excluded testimony was important and material to the defense that was being made. It was the theory of the railroad company that Murray was not standing erect upon the top of the car when the brake was applied, but that he was carelessly leaning over the edge of the car, and that the fall and injury -were due to his own negligence. The company proposed to prove that, while the occurrence was fresh in his recollection, Murray had related the circumstances of the accident to Doctor Aikman, and had told him that he leaned over the edge of the car for the purpose of giving a signal to the engineer in order that he might get' off and make the coupling, when a jar occurred which threw him off. These declarations, if made, were in direct conflict with the testimony which Murray had given, and if evidence of such declarations is admissible, it might have had controlling influence with the jury. Whether the testimony is privileged and the objection was well sustained depends upon the statute extending the privilege. It provides that if- there has been no waiver a physician or surgeon shall be incompetent to testify ‘ ‘ concerning any communication made to him by his patient with reference to any physical or supposed physical disease, or any knowledge obtained by a personal examination of any such patient,”' etc. Evidence of statements made by a party out of court are admissible in evidence against Mm unless they are clearly excluded by the terms of the statute. As we have seen, only two exceptions are made by the statute — one, of communications made by a patient with reference to his physical or supposed physical disease or ailment; and the other, of any knowledge obtained by a personal examination of the patient. The statute does not cover communications made by the patient other than those that relate to the disease or ailment for which the physician was called to prescribe or the surgeon to treat. The declarations inquired about in this case did not relate to the physical ailment of Murray, but were with reference to the circumstances preceding the injury. They were not of a confiden- * ,. n -, . . . tial character, and were not necessary to enable the doctor to prescribe or to perform any professional duty for him as a surgeon. In Michigan it was held proper for a plain tiff’s physician to testify that when called in professionally he was told by the plaintiff that she had sued the defendant and would want him as a witness, since said testimony had no reference to plaintiff's condition. (Cooley v. Foltz, 85 Mich. 47. See, also, 19 Am. & Eng. Encyc. of Law, 147, and cases cited.) The exclusion of this testimony was material error, which requires a reversal of the judgment and a new trial of the case. That will be the judgment of this court.
All the Justices concurring. | [
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Per (Jnriam:
Action by 0. Iiood, to recover a debt and foreclose two mortgages given to secure the payment of the same. It resulted in a judgment against Lucy Bain and Robert Martin for $‘2,611, and the foreclosure of the mortgages.
A number of 'rulings upon the pleadings and in the trial of the cause are assigned for error, which have been carefully examined, but we find that no reversible error was committed, nor does it appear that any of the questions presented require comment or discussion. The amount awarded, however, appears to be excessive, resulting, no doubt, from an error in the computation of interest upon the debt. The amount of the excess is $105.11, which would reduce the judgment from $2,611 to $2,505.89. "
The cause will be remanded to the district court, with directions to modify the judgment in this respect, and when so modified, it will stand affirmed. The costs in this court will be divided. | [
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The opinion of the court was delivered by
Martin, C. J. :
I. The first and principal question in this case is whether, by the platting of the town site of Peace, the strip of ground lying next south of the depot grounds was shown to be intended for sale, or to be reserved for public purposes, or for further platting or use by the original proprietor. We think it quite clear that it was devoted to public use, although not named as a street, nor crossing the other streets and alleys at right angles. It was evidently designed to furnish access as a street or highway to the depot grounds, not only for the owners of property abutting on the strip, but for all the people of that part of the town site lying south of the railroad and between Broadway and Tenth street, and also as the means of ingress to and egress from Broadway and Tenth streets for the property on Jackson street, and also that abutting upon the strip between Seventh street and Broadway; and we think that this sufficiently appears without the use of any evidence other than that furnished by the plat and the dedication, and therefore the question as to the admissibility of evi dence of dedication by user and acquiescence will be immaterial. A contrary construction would be inconsistent with §§ 1,5, 6 and 7 of chapter 78, General Statutes of 1868, concerning the plats of cities and towns, and also with the case of Hitchcock v. City of Oberlin, 46 Kas. 90, 94, 95, and the authorities there cited. It seems incredible that a town-site proprietor, intending a strip rhomboidal in form for sale or for further platting or private use, would not inclose it by lines on both sides and at each end, as in the case of the depot grounds. In the present instance there is but one solid line, and this is necessary to mark the southern boundary of the depot grounds. The lines on the south side of the strip are fragmentary, being only the northern boundaries of lots and blocks, and the strip opens into Broadway at the east and Tenth street at the west, and Seventh, Eighth, Ninth and Jackson streets open into it from the south. Under these circumstances no purchaser of a lot abutting on the strip could reasonably anticipate that all these streets were blockaded, and access cut off on the north side by a private reservation extending across the streets and the ends or sides of the lots.
.II. The plaintiff challenges the validity of ordinance No. 136, on the ground that no provision was made for the assessment and payment of damages to property owners by reason of the vacation of said strip lying north of said lots 114 and 116. But whether damages are recoverable or not in such case, or the assessment and payment thereof conditions precedent to the taking effect of the vacation, -we think it unnecessary to decide. (See ¶ ¶ 578, 579, 580, 582, 811, and 980, Gen. Stat. of 1889, as to vacation of streets and alleys by cities of the first, second, and third classes, respectively.) The ordinance was passed and approved in 1883. The city, the owners of lots 114 and 116 on one side, and the railroad company on the other, treated it as valid. The railroad company let and leased its part of the vacated ground to Millard; and the improvements were made and Millard’s interests mortgaged to Weiker in 1884. In 1886, Millard conveyed to Coulter and Oliver, and Coulter assumed the mortgage indebtedness then owing by Millard to Weiker. In 1888, Rachel Arnold, J. 0. Stow, J. R. Coulter, and J. W. Oliver, partners as J. 0. Stow & Co., obtained a quitclaim deed for the strip from the town and land company, which had neither title nor possession to convey. In 1889, Coulter and Oliver mortgaged their interest to said Rachel Arnold, but it does not appear that Coulter had any interest except what he obtained from Millard in 1886, and that was subject to the payment of Millard’s indebtedness to Weiker, as before stated. So far as shown, Rachel Arnold has no standing whereby she may contest the validity of the ordinance. If it were conceded to be void, we do not see how she could profit by the concession.
III. It was claimed by Coulter in his answer that the title to the strip of ground had failed, and that there was no consideration for his assumption of Millard’s indebtedness to Weiker, and he prayed judgment against Weiker for $1,615.55, alleged to have been paid by him on the indebtedness. The plaintiff interposed no plea of payment, but she claims the right to make any defense which Coulter might have made as to the amount due, and that she was precluded by the rulings of the court from so doing.
The grounds upon which the court below sustained objections to some of the questions asked Coulter as to payments made, are not apparent, but the trial was by the court-, and, notwithstanding the adverse rulings, Coulter did testify to the several payments, showing that they amounted to $1,800, which was more than he had alleged, and we think it sufficiently appears by admissions and by Coulter’s testimony that he had paid one of the notes and two years’ interest on the other two, being $439.84 interest, or $1,814.34 in the aggregate; and the court seems to have taken all this into consideration, and, therefore, the judgment against Coulter is not too large, and the plaintiff, as the holder of the junior mortgage, has no legitimate grievance.
Holding these views, we deem it unnecessary to discuss the motion .of the defendant to dismiss for want of necessary parties. The.judgment of the district court will be affirmed.
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The opinion of the court was delivered by
Allen, J. :
Two questions only are urged on our consideration : First. Is the plaintiff entitled to have $12 per month, the value of the use and occupation of the lot with the improvements for the full time the property was occupied by the defendant, set off against the value of the improvements awarded the defendant? Second. Is the amount allowed the defendant for his tax lien excessive?
It is argued that the occupying claimant’s law was not correctly construed by the trial court, and that if such a construction as was given it is proper, then that it is unconstitutional. It is' urged that the allowance to an unsuccessful occupying claimant of lands of the value of his improvements is equitable in its nature, although provided for by statute; that it is and must be governed by equitable principles; that courts of equity before the enactment of any statute lent their aid to mitigate the hardships of the common-law rule, which- gave to the owner of the land all improvements without any compensation to the party placing them there; that courts of equity interfered only so far as to set off the value of the improvements against the plaintiff’s claim for mesne profits, but never rendered a judgment for the excess if the value of the improvements exceeded the mesne profits. Our attention is called to the bill of rights, and especially to §§ 2 and 18. We. find no conflict between the occupying claimant’s law and the bill of rights. The validity of such enactments has been so often and universally upheld by the courts everywhere that we do not deem citations of authorities on the point necessary. We think the provisions of the occupying claimant’s law in accordance with sound equitable principles, and that no reason can be found in ethics why the occupying claimant should not have the full value of his improvements, as well when the Aralue exceeds the mesne profits as when it does not. The substance of the plaintiff’s claim is not merely that she is entitled to the value of the use and occupation of her property, the bare lot, which the court finds was $1 per year, and concerning which the plaintiff makes no complaint, but she claims the rental value of the house constructed by the defendant, which in equity and good conscience never was her property at all. The equity, the ethics, of such a claim finds no favor with us. On the contrary, we think the claim grossly inequitable. The defendant’s money paid for the improvements. No allowance could be made for interest on his investment, but he has had the use of it. We know of no sound reason why one should be charged for using his own property, no matter what the form of the action may be. If complaint were made that no allowance was made for the use and occupation of the plaintiff’s lot, exclusive of improvements, the claim would address itself to a court of equity with great force, but no such claim is made. The amount indeed is too trifling to litigate. Although it is claimed that no trial was had on the plaintiff’s second cause of action, which was for rents and profits prior to the commencement of the action, we think the record contains enough to show that the whole matter was tried and determined by the court; but we find no error in the conclusions reached.
As to the plaintiff's second claim, it is urged that taxes on the improvements placed on the lot by the defendant were allowed, and that it is certainly unjust that the plaintiff's property should be subjected to an additional burden resulting solely from the act of the defendant, and especially so when the plaintiff is given no benefit whatever by an allowance for rent of such improvements. We are not prepared to' say that the reasoning of counsel on this proposition is erroneous. In the case of Uhl v. Small, 54 Kas. 651, same case, 39 Pac. Rep. 178, we held that equitable considerations should not be overlooked nor ignored in determining the amount of a tax lien in favor of the holder of an invalid tax title. But counsel concedes that the record does not clearly present the question. In fact, it does not present it at all. There is nothing whatever giving us any light on the question when or on what the taxes were levied. The plaintiff was allowed for the value of the use and occupation of the lot and improvements after suit brought in accordance with the statute. There is nothing tending to show error in the court's computation of the-taxes.
The judgment is affirmed.
All the Justices concurring. | [
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Allen, J.
This action was commenced in the District Court of Douglas County, and resulted in a judgment in favor of the defendant in error. On proceedings in error the case was reviewed by the Court of Appeals, and the judgment of the District Court affirmed. Menger v. Carruthers, 3 Kan. App. 75. The facts in the case are more fully stated in the opinion there filed, and the questions involved are more fully discussed than is necessary here. The action involved the title to a lot in the city of Lawrence. The title of the plaintiff in error was derived by quit-claim deed from Joseph T. Sibley, dated August 29, 1866, under which possession was obtained. On July 1, 1865, Jacob Moak and wife had conveyed the lot by warranty deed to Sibley. At that time the only title Moak had was derived from a void tax deed. Afterward, on the 12th of the same month, J. S. Emery and wife conveyed to Moak the life estate of Jerome S. Ridley, which had theretofore been condemned, forfeited and sold under proceedings in the United States District Court instituted for that purpose under the Confiscation Act of 1862. It is claimed, on behalf of the defendants in error, that this life estate, though acquired by Moak after the execution of the deed to Sibley, at once passed to him, by virtue of the covenant of warranty contained in the deed ; and that, at the time Sibley executed his deed to Menger, he was vested with all the title that Moák had, including that conveyed by Emery to him.
Counsel for the plaintiffs in error now insist that the legal title did not actually pass from Moak to Sibley by virtue of the covenant of warranty, but that it remained in Moak; that though Moak might be estopped in equity from asserting that title against Sibley, or his grantees, neither Sibley, nor Menger claiming under him, was estopped from denying the validity of the title conveyed by Emery to Moak, nor bound to accept it. It is argued that Menger had a right to repudiate the confiscated title, and acquire an independent one by adverse possession, or under tax deeds. We think all the questions presented are sufficiently discussed in the opinion of the Court of Appeals except a single one. The confiscation proceedings appear to us to be sufficient as against a collateral attack, and yet mpre clearly sufficient as against one who has held possession of the land without any attack on his title ever having been made by Ridley himself, or anyone else during his lifetime. May the defendant then either accept or reject the benefit of the confiscated title, which, even according to his own contention, inured to his benefit by way of equitable estoppel, and build up an adverse title for the purpose of cutting off the heirs to the fee after the expiration of the life estate? It appears to us that it matters very little in this case whether the legal title actually passed to Sibley by virtue of the covenant of warranty contained in Moak’s deed, or whether it inured to the benefit of Sibley and his grantees by way of equitable ■estoppel. The substance would be the same under ■either theory. Menger was in possession of the lot. If Moak held the bare legal title to a life estate, which he could not assert against Menger, Menger was as ■secure in the possession of the property as though the legal title were vested in himself. Moak could not transfer the legal title to anyone else who would not be as clearly estopped and barred from asserting it as Moak himself. Nor is there any force in the contention that by the conveyance of the confiscated title from Menger to Moak a title was thrust upon Sibley and his grantee without his knowledge or consent. Sibley bought the lot from Moak. The deed purported to convey a full title. It could not possibly be a fraud on Sibley for Moak to acquire a title after the execution of the deed, though he had none when it was executed. It was entirely lawful for Moak to protect himself against liability on his covenant of warranty by buying in any outstanding title, and when so purchased and conveyed to him it inured to the benefit of Sibley and those claiming under him. The lot was taxable. The title had passed out of the United States. Menger was in possession, of it. Whether he held the legal title or not, no one had such a title that he could successfully disturb him. He enjoyed the benefit of the life estate without molestation dui'ing the full term. No one else was under the slightest obligation to pay the taxes while he enjoyed the rents and profits, and clearly he could not obtain a valid tax title based on his own failure to pay taxes justly chargeable to him alone. Nor could he build up a title in opposition to the heirs of Ridley by adverse possession.
The judgment is affirmed.
All the Justices concurring. | [
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Johnston, J.
This was an application for a writ of mandamus to compel the municipal authorities of Kansas City to reapportion the cost of grading a part of Washington Avenue. A petition for the improvement was presented to the mayor and council in July, 1888 ; in the following month the petition was granted and an ordinance passed directing that the improvement be made. Estimates of the work were made, the contract let to the lowest responsible bidder, and the grading was done. The property subject to assessment was appraised by three disinterested appraisers, a time was fixed for hearing the complaints of property owners, and due notice of the hearing was given. In September, 1889, an apportionment was made, and a special assessment was charged to the various lots abutting on the street, which assessment was regular in every respect except that,, instead of assessing the cost of the improvement against the abutting lots on the part of the street that was improved, each block was made a taxing-district. Although the petition for the grading was filed July 6, 1888, and notice given that the assessment must be paid on or before the 28th day of October, 1889, no complaint was made nor proceeding instituted until October 21, 1891. In compliance with the notice given to the property owners in 1889, a large number of them paid the amounts of the assessments in full; and the remaining property owners have with few exceptions paid annual assessments, and continued to pay them until the commencement of this proceeding. Only a part of the property owners asked for a reapportionment of the cost of the grading, and they have not availed themselves of the remedies pointed out by the statute where special assessments are informally or illegally made. Ch. 101, §1, Laws of 1887 (¶590, Gen. Stat. 1889); Wahlgren v. Kansas City, 42 Kan. 243. The laches of the parties in seeking a remedy, and the complications which would necessarily arise from a reapportionment so long a time after the improvement was made and largely paid for, were sufficient reasons for the ruling of the District Court in denying the writ. The court, being vested with some discretion, will not issue a writ of mandamus except where it seems to be necessary and proper to accomplish the ends of justice ; and where the statute provides a plain and adequate remedy in the ordinary course of the law the writ will not be awarded. Simpson v. Kansas City, 52 Kan. 88.
We think the District Court ruled correctly ; and its judgment will therefore be affirmed.
All the Justices concurring. | [
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Allen, J.
Edwin Tom Dale and two other minor children of Edwin Dale, deceased, brought this suit against the Atchison, Topeka & Santa Fe Railroad Company to recover damages for the death of said Edwin Dale, which it is alleged was caused by the negligence of the defendant in the 'Territory of New Mexico on the 18th day of July, 1888. This action was commenced on the 31st day of July, 1890, and recovery is sought under a statute of New Mexico, which reads as follows :
“Section 2308. Whenever any person shall die from any injury resulting from, or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employe, whilst running, conducting or managing any locomotive, car, or train of cars, or of any driver of any stage coach or other public conveyance, while in charge of the same as driver ; and when any passenger shall die from any injury resulting from, or occasioned by any defect or insufficiency in any railroad, or any part thereof, or in any locomotive or car, or in any stage coach, or other public conveyance, the corporation, individual, or individuals in whose employ any such officer, agent, servant, employe, engineer or driver, shall be at the time such injury was committed, or who owns any such railroad locomotive, car, stage coach, or other public conveyance, at the time any injury is received, resulting from, or occasioned by any defect or insufficiency above declared, shall forfeit and pay for every person or passenger so dying the sum of $5,000, which may be sue and recovered : First, by the husband or wife of the deceased; or second, if there be no husband or wife, or if he or she fails to sue within six months after such death, then by the minor child or children of the deceased ; or third, if such deceased be a minor and unmarried, then by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment; or if either of them be dead then by the survivor. In suits instituted under this section, it shall be competent for the defendant for his defense to show that the defect or insufficiency named in this section, was not a negligent defect or insufficiency.”
The petition alleges that no personal representative of the estate of said Edwin Dale has ever been ap pointed, and, that although more than six months had elapsed after the death of said Edwin Dale, no action had been brought by Sarah Ann Dale, his widow, to recover damages therefor; and that, by reason thereof, the cause of action given by said statute had vested in the plaintiffs. A demurrer to the amended petition was sustained by the District Court, and judgment entered thereon in favor of the defendant. Error is assigned on the ruling of the Court sustaining the demurrer. The principal question in the case, and the only one necessary to decide, is whether an action can be maintained in this State by the minor children under the statute of New Mexico above quoted. It is the same in substance as the statute of Missouri, under which a recovery was sought in the case of Hamilton v. H. & St. J. Rld. Co., 39 Kan. 56. It is held by the courts of Missouri that, in an action founded on the statute of that State, the recovery must be of the full amount provided in the statute, or nothing; and a verdict for $2,500 was set aside by the Court of Appeals. Rafferty v. Missouri Pacific Rly. Co., 15 Mo. App. 559. In Carroll v. Missouri Pacific Rly. Co., 88 Mo. 239, an instruction directing the jury, if they found for plaintiff, to assess her damages at the sum of $5,000 was approved by the Supreme Court. . In the case of McCarthy, Adm’r, v. Railroad Co., 18 Kan. 46, the right of an administrator appointed in Kansas, to recover for injuries received in Missouri, by plaintiff’s intestate, from which he afterward died in Kansas, was denied by this Court; and in the case of Limekiller, Adm’x, v. H. & St. J. Rld. Co., 33 Kan. 83, it was held that an administratrix appointed in Missouri could not maintain an action, under section 422 of the Code of Civil Procedure of this State, for an injury received in this State causing the death of the plaintiff’s intestate, on the ground that no such action could have been maintained in Missouri if the death had been caused in that State. In the case of Vawter v. The Missouri Pacific Rly. Co., 84 Mo. 679, it was held that an administrator appointed in Missouri could not maintain an action there, under the statute of Kansas, for the death of the intestate in Kansas. There is great diversity in the decisions of the courts as to whether an action of this kind may be brought in one State to recover under the statute of another State for a death caused there. Some courts refuse all relief in such cases, while others allow the action to be maintained where the statutes of the two States are substantially similar and where both are remedial in character, A leading case of the latter class is that of Dennick v. Railroad Co., 103 U. S. 11, where it was held that an administrator appointed under the laws of New York could maintain an action in that State for the death of his intestate in New Jersey, and might recover under the provisions of the statute of the latter State. The statute of New Jersey authorized a recovery by the administrator for the exclusive benefit of the widow and next of kin, to be assessed by the jury with reference to the pecuniary injury resulting from such death to the wife or next of kin. It is said in the opinion that there was a statute of New York similar in its provisions to that of New Jersey. The cases of Leonard v. Columbia Steam Navigation Co., 84 N. Y. 48; Knight v. West Jersey Railroad Co., 108 Pa. St. 250; Burns v. Grand Rapids & I. R. Co., 113 Ind. 169 (15 N. E. Rep. 230); Cincinnati, H. & D. R. Co. v. McMullen, 117 Ind. 439 (20 N. E. Rep. 287), are to the same effect. The case of Herrick v. Minneapolis & St. Louis Rly. Co., 31 Minn. 11, goes farther, and holds that an action may be maintained under a statute of Iowa for an injury received there, notwithstanding the want of a similar statute in Minnesota. In the case of Railway v. McCormick, 71 Tex. 660, a recovery was sought under the statute of Arkansas for an injury received there. Under the laws of Arkansas, the action was authorized to be brought by the personal representative, and if there be no personal representative, then by the heirs at law; and the amount recovered to be distributed for the exclusive benefit of the widow and next of kin in the same proportions as the estate of the decedent would be distributed. Under the law of Texas, the amount recovered was to be divided among the persons designated in the statute, in such proportion as the jury on the trial should determine. It was held that the statutes of the two States were so different that an action could not be maintained in the courts of Texas to enforce the liability created by the laws of Arkansas: In the case of Ash v. Balt. & Ohio R. Co., 72 Md. 144 (19 Atl. Rep. 643), the Court of Appeals of Maryland held that an administrator appointed in Maryland could not recover there under the statute of West Virginia for the death of his intestate, because of the dissimilarity of the statutes of the two states.
This action is brought by the minor children of Edwin Dale, and it appears that they alone are authorized to sue under the statute of New Mexico after the expiration of six months. The widow’s right of action, which was full and complete during that period, is utterly lost. Under section 422a of the Code of Civil Procedure of this State, where no personal representative is appointed the widow only can maintain the action. Whether the damages recovered by her are for her sole benefit, or subject to distribution to the parties who would have been entitled thereto if recovered in an action by the personal representative, may be a matter of some doubt. It thus appears that it a recovery be allowed in this case, it will be had by persons who could not maintain the action if the injury causing the death had been received in this State. Another and perhaps more serious difficulty lies in the penal character of the statute of New Mexico. Although it is argued that the law of that Territory provided for the payment by the wrong-doer of a sum of money to his widow, or minor children, and that they are the ones usually, if not invariably, most injured by his death, and that the money to be paid under that statute subserves really the same purpose as money paid under the laws of Kansas, and compensates them in some degree for the loss of the husband and father, yet it is apparent that the theory of the law of the two States is different. In Kansas it is strictly compensatory. In New Mexico it may be strictly penal ; for it might happen that the person killed was a burden upon his family, contributing nothing to them. In Marshall v. Wabash Rly. Co., 46 Fed. Rep. 269, it was held that the statute of Missouri was penal, and that an action could not be maintained thereon in the Circuit Court of the United States in Ohio; and the case of Philpott v. The Mo. Pac. Rly. Co., 85 Mo. 164, was cited as authority for the proposition that the law as well as being compensatory is of a penal and police nature, and can without objections subserve both purposes at one and the same time.” The case of Adams, Adm’x, v. Railroad Co., 67 Vt. 76, was an action brought in Vermont to recover for a death caused in Massachusetts, under the statute of that State which provided for a recovery of damages not exceeding $5,000 nor less than $500, to be assessed with reference to the degree of culpability of the corporation. It was held that the statute was penal in character, and that it would not be enforced, by the courts of Vermont.- It is elementary that penal statutes have no extra-territorial force, and that the principles of comity prevailing among the States do not go to the extent of enforcing in the courts of one State the penal statutes of another. Story, Confl. Laws, § 621; Lindsay v. Hill, 66 Me. 212; 22 Am. Rep. 564; First National Bank of Plymouth v. Price, 33 Md. 487; 3 Am. Rep. 204.
If we were to attempt the enforcement of the statute of New Mexico to the extent to which it is compensatory only, we should find ourselves in the position of having to resort to that statute to create the liability, and then measure that liability by the principles obtaining in this State; for the l&'w of New Mexico has but one fixed and measure— the definite sum of $5,000 — in every case where liability exists, while in this State it is in all cases limited to the damages actually sustained by the party for whose benefit the action is prosecuted. In the case before us we are asked to enforce a statute of a territory, penal in part at least, and which confers a right of action on persons other than the one that would be authorized to maintain an action in this State under a similar state of facts. Under the statute of New Mexico an adult child would have no right of recovery if there were minor children_ Under the authorities, the obstacles in the way of affording the plaintiffs any relief in this case appear insurmountable ; and we feel constrained' to hold that the courts of this State will not undertake the enforcement of a statute penal in part, and so dissimilar in principle from the law of our own State.
The judgment of the District Court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J. :
An alternative writ of mandamus was allowed by the district judge of Republic county commanding the defendant, as probate judge, to allow the plaintiff's appeal from an order of the probate court of Republic county discharging said plaintiff from her trust as guardian of the person and estate of Isaac McClun, insane, or to show cause by a time named in the writ. The defendant moved to quash the writ because the facts stated in the writ are insufficient to warrant the relief prayed for, and on other grounds. This motion was sustained by the court. The plaintiff alleges error in sustaining the motion.
T'lie writ is fatally defective in tliat it fails to state either that notice of appeal was given or that the applicant filed the affidavit required by statute. Both these requirements are jurisdictional, and no appeal could be taken without them. It is unnecessary for us to decide whether the view entertained by the district court, that no appeal can be taken in any case from an order discharging the guardian of an insane person, is sound or not. The act concerning lunatics and habitual drunkards makes no provision for an appeal. Provision is made for appeals in the act concerning guardians and wards, and the act concerning executors and administrators. Section 188 of the last-named act, which prescribes the cases in which appeals may be taken, concludes as follows : "And in all other cases where there shall be a final decision of any matter arising under the jurisdiction-of the probate court, except in cases of habeas corpus and injunction.” Appeals authorized by the act concerning guardians and wards are to be taken in the manner provided in the act respecting executors and administrators.
It is averred in the writ that the probate judge refused either to fix- the amount of the appeal bond or to approve the bond which the plaintiff tendered, and refused to allow the appeal. Nothing whatever is averred with reference to a notice of appeal or an affidavit. As the notice and affidavit were essential prerequisites to the granting of an appeal, the plaintiff liad no standing in this action until the notice was given and the affidavit filed. The probate court was wholly powerless to grant an appeal without them. (Spangler v. Robinson, 20 Kas. 682.) As it is not claimed in this case that an affidavit ivas in fact filed, and as the time for taking the appeal has long since passed, the order of the probate court removing the plaintiff as guardian is final, and no appeal can now be taken.
The judgment in the district court quashing the writ is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
It is contended that the instrument by which Bernard Rodgers conditionally gave 80 acres of land to Charles D. Rodgers operated as a conveyance of the land in priesenti, and that as the use or issues and profits are incidental and follow the land, Charles D. Rodgers and his grantee are entitled to the rents of the same, or at least to so much of' the rents as accrued after the death of Bernard Rodgers. The instrument, as will be seen, is not an absolute conveyance. Bernard Rodgers not only reserved the rents, issues and profits arising from the land while he lived, but he also reserved to himself the right to dispose of the land during his lifetime. It is plain that the transfer was not to be effective until his death, and it is urged with much plausibility that the instrument is testamentary in its character. (Reed v. Hazleton, 37 Kas. 321; Hazleton v. Reed, 46 id. 73.) But, whether it is or not, it is'manifest that the purpose of the grantor was to reserve the title to and dominion over the land while he lived. It was his own property, and he was at liberty to give it upon such terms and conditions as his judgment and desires might prescribe. As was his right, he reserved to himself the use of the land, and also the control and disposition of the same. It was competent for him to have transferred the entire interest in the land by gift, grant, or bequest, and certainly he had ample power to make a like transfer of the use or rents arising from the same. While the title and dominion of the property remained in him, he bequeathed to his daughter the rent of the farm for the three years for which it had been leased. This act was certainly within the reserved power of Bernard Rodgers, and sufficient under any view to give to the daughter the use of the land and the rent notes which had been given for the years mentioned.
We think the conclusion of the trial court was just and correct, and therefore its judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, O. J. :
The same question is involved in all of these cases. Each of the petitioners was convicted of petty larceny on the 22d day of March, 1895, in Phillips county, before a justice of the peace. Each was fined a certain sum of money and adjudged to pay the costs of the prosecution, and to be committed to the j ail of that county until the fine and costs were paid. The justice of the peace before whom the convictions were had, on the 22d of March, 1895, issued his ‘warrant of commitment to a constable of his township commanding him to take and commit the petitioners to the jail of that county, and there to remain until the judgment rendered against them should be complied with. He accidently omitted to insert in the commitment the amount of the costs. Subsequently the petitioners paid the fines, and were released from custody by the sheriff; On the 25th of March. 1895, the justice of the peace issued another warrant commanding the sheriff of his county to arrest and commit the petitioners to the jail of the county until the judgments against them were fully complied with ; that is, until all the costs were paid. Under the alias or new commitment, the petitioners were again arrested and committed to jail.
It is insisted that, as the petitioners were set at liberty by the sheriff, the judgment on which the commitment was issued was in law discharged, and that no subsequent commitment could be issued thereon. It is well settled that -where a defendant is arrested upon a ca. sa. in a civil action, and discharged by the direction or consent of the plaintiff, it is in law a discharge of the debt. This proceeds on the idea that the creditor has received a satisfaction by having once his debtor in execution. (Bryan v. Simonton, 1 Hawks, 51.) But this is not the law in a criminal cause. The officers charged with the public duty of collecting fines and costs adjudged against criminals occupy a different relation to such defendants than a creditor to his debtor. In this case the judgment was that the petitioners should be imprisoned until the fines and costs were paid. The judgment has never been satisfied. The costs remain unpaid. A mistake of a justice in taxing costs or in entering them upon his record or commitment is no release or discharge thereof. If a prisoner, after his conviction of a misdemeanor, escapes before his term of imprisonment expires, with or without the consent of the sheriff in whose custody he has been placed, he is not thereby legally set at liberty. He may be retaken and imprisoned again. Where the sheriff has, at the time of the return to a writ of habeas corpus, a good warrant from the committing justice, it is immaterial how many defective or bad ones he has. When the justice discovered that he had issued a defective commitment, it was his duty to issue a good one. Until the judgment rendered by the justice has been complied with, the petitioners are not entitled to their discharge. If the sheriff has collected any illegal fees, they should be credited upon the costs. For the new warrant of commitment the justice is not entitled to any fees from the petitioners, because he should have included in the original commitment all of the costs taxed by him. The petitioners will be remanded.
All the Justices concurring | [
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The opinion of the court was delivered by
JoHNSTON, J. :
Newman Brown was convicted upon a charge of rape, and sentenced to confinement at hard labor in the penitentiary for a term of 15 years. The offense was alleged to have been committed at Dodge City, upon the person of Sophronia M. Lewel-len, who, with her husband, was traveling through the state from Colorado to Oklahoma. She stated that, on the evening of her arrival at Dodge City, she met the defendant, who compelled her and her husband to accompany him to a room in another part of the city, and that, after driving her husband out of the room, the defendant compelled her to submit to his embraces. Upon the trial the defendant admitted that he had sexual intercourse with Mrs. .Lewellen, but contended that it was with her consent and at her solicitation. He claims that the room to which they went was on one of the principal streets and within two or three blocks of the business center of the city, and also that, in going to the same, in the early part of the evening, they passed the principal business houses of Dodge City. It appeared at the trial that she went to Oklahoma in 1889, and resided at several places in that territory until June 28, 1894, when she was married to Austin Lewellen, at Kingfisher. After her marriage they went in a wagon, first to Hennes-sey, from there to the Chickasaw Nation, thence to Purcell, and from Purcell they started across the country for Denver in their wagon, camping at various places between those points. They arrived in Denver about the 1st of November, where they remained for a few weeks, when they concluded to return to Oklahoma. Having lost their team, they walked to Pueblo, and caught rides on freight-trains from that place to Dodge City, where they arrived on the evening of January 17, 1895.
The conviction rests largely upon the testimony of Mrs. Lewellen, and the defendant endeavored to show that her general reputation for chastity during the four or five years she lived in Oklahoma was bad, and also that her general reputation for truth and veracity was bad. To that end, depositions were taken in Oklahoma on June 8, 1895, which was during the week preceding the beginning of the term when the case was assigned for trial. The depositions were taken in pursuance of a stipulation made by the attorneys for the state and for the defendant, waiving the issuance of a commission and all objection to the official character of the officer taking the same. On June 8, 1895, counsel for the state and defendant being present in Oklahoma City, it was agreed that tlie depositions should be taken in shorthand, and, after being transcribed by the stenographer, they should bo signed before the notary public as soon as practicable, and, when so transcribed and signed, should be accepted as the depositions of the witnesses to be used upon the trial. The formality of the statute requiring them to be reduced to writing in the presence of the witnesses was waived. In pursuance of this agreement, the depositions of nine witnesses were taken, when counsel for both parties returned to Kansas, after leaving directions for the completion of the depositions and their transmission to the clerk of the district court of Ford county, Kansas. When court convened on the 11th day of June, 1895, the depositions had not arrived, and, upon the request of the defendant, the cause was passed over until the following day. When the case was called on the next day, the depositions had not been received, and the defendant protested against proceeding to trial until they arrived ; but a telegram having been received that the depositions had been forwarded, the court, in expectation that they would arrive in time to be used on the trial, overruled the protest, and proceeded to the trial of the cause. They were received by the clerk of the court on the 14th day of June, and before the testimony for the state had been completed. Afterward the court suppressed the depositions, upon the ground that they did not appear to be correctly transcribed by the stenographer, and that upon the face of the depositions they did not give a correct statement of the questions propounded to or the answers given by the witnesses. The defendant then asked leave to prepare and present a statement setting forth what the witnesses whose depositions had been taken actually testified to, in order that the state might have the opportunity to admit the same as the depositions of the witnesses, and in the event that the state refused to admit such a statement to be the testimony of the witnesses, the defendant might then have a continuance of the cause a sufficient length of time to have the depositions returned to the notary and properly transcribed or retaken. This, request was overruled by the court. The defendant then moved the court for leave to file an affidavit setting forth what diligence had been used in the taking of the depositions ; that the testimony of the witnesses was material; that the defendant believed the same to be true ; and, further, that if there was a continuance of the cause, their testimony could and would be procured and produced. The motion was denied, and the defendant was compelled to proceed without the testimony of these witnesses. . Under the circumstances, the denial of any opportunity to obtain or use that testimony was prejudi- . _ _ cial error. The testimony was competent and material, and the nature of the case was such that it was about all the corroborative testimony which could be procured for the defendant. It tended to show that Mrs. Lewellen had been an unchaste woman, and the inmate of a house of ill-fame ; that her general reputation for chastity was bad; and, further, that her general reputation for truth and veracity was not good.
A question is raised as to the diligence of the defendant, and it is said that he might have begun the taking of the depositions at an earlier date. If they had been taken and transcribed in the usual way, they probably would have been received in good time ; but to accommodate the state and the defendant, shorthand notes of the testimony were taken, and by agree ment were to be written out at length, signed and then forwarded to the court. The errors in transcribing, if they were at all material, did not arise through any fault of the defendant. Neither the state nor the defendant had any occasion to anticipate the errors, and manifestly both expected that the depositions would be correctly transcribed and forwarded in good time.
It is argued that the defendant was in fault because he did not ask for a continuance before the trial was begun. Such an application at that time would hardly have been received with much favor. The testimony had been taken in the presence of counsel for the state, and a message had been received that the depositions were then on the way, and all expected that they would be received within-a day or two. The judge, expecting that they would come to hand before the state would rest its case, directed the trial to proceed. If the depositions were unfit for use as testimony, the subsequent application should have been allowed. The testimony having been taken in the presence of counsel for both parties, the errors could have been readily corrected ; and if a statement of the testimony had been reduced to writing, it is probable that the state would have admitted the same as the depositions of the witnesses, and ho delay of the trial would have been occasioned. The defendant, however, was refused an opportunity to file an affidavit as to diligence, the materiality and importance of the testimony, or to make any showing for a postponement of the case until the depositions could be properly transcribed or retaken. We think the defendant was entitled to an opportunity to. produce this testimony, and that the rulings of the court with respect thereto were erroneous.
Testimony was offered by the defendant to the effect that -while the Lewellens were camped near Cimarron, where they staid from the evening of one day until some time of the following day, the prosecutrix was guilty of specific acts of lewdness and unchasity ; that she offered to have sexual intercourse with several persons for a consideration, and that her husband endeavored to bring persons to her for that purpose. The court rightly excluded this testimony. Specific acts of unchasity are incompetent to prove probable consent to sexual intercourse with the defendant. A woman is presumably prepared to defend her general reputation for chastity, but there is no presumption that she is always prepared to disprove specific accusations of that character. (The State v. Bryan, 34 Kas. 63 ; 3 Am. & Eng. Encyc. of Law, 158.)
Four witnesses were introduced, who stated that they knew the general reputation of the prosecutrix for chastity at Cimarron. This testimony was excluded, the court holding that a woman could not gain a reputation in a community or neigborhood where she had not resided more than 24 hours. Reputation is the opinion of a person's character generally entertained by those who know him or her, and where such reputation exists, it is a fact to which anyone acquainted with it may testify. There is no fixed time within which a reputation may be gained. Considerable time is necessarily required to establish a reputation for truth and veracity, but a reputation for unchastity may be acquired in a much shorter time, and especially in a small town like Cimarron. As the prosecutrix was traveling over the country, her stay in any place was necessarily short, but if all that was proposed to be proved concerning her conduct at Cimarron was true, she may have gained considerable notoriety in 24 hours. Her actions may have been so open and flagrant that a fair estimate of her character for chastity may have been obtained and generally held by the people of that small town. At any rate, we think it cannot be said as a matter of law that she did not acquire a general reputation for unchastity in a community within 24 hours, or even within a briefer time. Of course, it is not enough that a witness says he is acquainted with the general reputation of a person to entitle him to testify; and before his opinion is received, a full inquiry should be permitted by the court as to whether a general reputation exists, and as to the competency of the witness to testify concerning it.
The other objections to rulings upon the testimony are not deemed to be material, but for the errors which have been mentioned the judgment must be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Per Curiam:
The same defect of parties exists in this case as in that of Parks v. Honeywell, just decided, and the petition in error must therefore be dismissed. | [
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The opinion of the court was delivered by
Martin, 0. J. :
On September 27, 1889, the defendants in error, being the widow and children, the heirs at law of LukeE. Gorsuch, deceased, commenced their action to have a certain deed for 640 acres of land in Johnson county declared and decreed to be a security merely, and for damages in the sum of $4,000. A trial before the court without a jury at the September term, 1890, resulted in a judgment, October 4,1890, in favor of the plaintiffs below, decreeing that the deed of date December 10, 1888, from Luke E. Gorsuch and Mary E. Gorsuch, his wife, to Benjamin Reeder, the defendant below, was and is in equity a mortgage, and not a deed of conveyance, and also that the plaintiffs below should be restored to the immediate possession of the lands, and that they have and recover of and from the defendant below the sum of $1,880 damages and costs of suit.
At and before the time of the execution of said deed, said land was heavily incumbered by mortgage indebtedness to several persons, one of the principal mortgagees being Mary J. Hughes, the daughter of the defendant below. She resided in Indiana, and he transacted her business and also some of his own in her name. The subject of the indebtedness of LukeE. Gorsuch, and as to devising some plan whereby he might be relieved of it and still save something for his family, had been talked of for some time before the transaction in question. On December 8, 1888, Luke E. Gorsuch, being quite ill and not expecting to recover, the defendant below called at his house and an agreement was reached, and he went to Olathe and had a deed prepared and also a contract. He went back to the Gor-such residence, taking with him a notary public, and the deed was executed and acknowledged by said Gor-sucli and wife, and the contract was signed by Gorsuch and Reeder. The contract was taken by Mrs. Gorsuch and placed in a drawer with her husband’s papers, and, after his death, which occurred December 24, 1888, was given to her attorney who produced it upon the trial. For some reason the deed was not satisfactory, and it was destroyed and another one was executed to take its place on December 10,1888. The deed was of the usual form with covenants of warranty and against incumbrances; but in the latter covenant was inserted the following clause : ‘ ‘ Except $8,000 and interest to Lombard In. Co., K. L. & T. Co., and J. L. Pettyjohn & Co., and $160 due for taxes which Reeder assumes to pay; and Reeder also assumes to pay to M. J. Hughes the sum of $8,720, leaving a balance of $9,-351.47 due to M. J. Hughes, which sum Reeder does not assume to pay, and a mortgage sum due to M. G. Miller which Reeder does not assume to pay, or any judgments.” The body of the contract, executed on December 8, reads as follows :
“ Witnesseth, That said Gorsuch has this day sold to Reeder the east half of section 29 and southeast quarter of section 20, and northeast quarter of section 22, all in township 14, range 24, Johnson county, Kansas. Now, if the said Luke Gorsuch shall sell all of said land in 18 months from this day, and pay off all the liens which are now on said lands, with interest to day of sale, then said Gorsuch to have all the money arising from the sale of said lands over and above the payment of all the liens aforesaid ; but said lands shall not be sold for less money than will pay all the demands from the day of sale aforesaid. Reeder to make deed to purchaser. If said lands shall not be sold within the time herein specified, and on the time herein specified, then this agreement to be null and void.”
The defendant below claimed that the deed and the contract together fully stated the agreement, while the j>laintiff's below contended that Reeder agreed to hold the deed simply as a mortgage, and that whenever the debt was paid he would reconvey the premises. Reeder further claimed that he paid off all the indebtedness which he had expressly assumed in the deed, and that he had delivered the notes to Luke E. Gor-such in his lifetime, although he had not caused satisfaction to be entered of record, supposing that to be unnecessary until all the indebtedness had been paid ; but the plaintiffs below contended that Reeder had not paid any of the indebtedness nor surrendered any of the notes. The court found that the amount of indebtedness assumed by Reeder was $17,200, and that the land was worth, on December 10, 1888, $20,-800. The finding of the court as to payment of the incumbrances by Reeder is not clear, being as follows :
“ V. That said Reeder has not released or procured to be released airy of. the lands in controversy from any of the mortgage incumbrances as assumed by said Reeder in said instrument purporting to be a deed of December 10, 1888, but the same remain subsisting incumbrances on all the said lands.”
In view of the evidence and the language of this finding, we cannot be certain whether the court meant to say that Reeder had not paid any part of the indebtedness, or only that he had not caused satisfaction of any of the incumbrances to be entered.
The court further finds that the written contract of December 8, 1888, was entered into between Benjamin Reeder and Luke E. Gorsuch, and that before and'at the time of the execution of said deeds of December 8 and December 10, respectively, Luke E. Gorsuch and Mary E., his wife, “believed, understood and in tended that each of said instruments, although purporting to be a deed, was in fact a mortgage, and was to be considered and treated as a mortgage, and not a deed.” There is no finding as to the belief, understanding or intent of Reeder, the grantee. In order to establish that a deed absolute on its face is in fact only a mortgage, it must be shown, either by direct evidence or by the circumstances of the case, that it was the intention and understanding of the grantor and the grantee that it should so operate. It is not enough that one of the parties so considered it; both must concur ; otherwise, the deed will be treated according to its import, unless tainted by fraud or the result of accident or mutual mistake. ( Beach, Mod. Eq. Jur., §414; 1 Jones, Mort., §335; Douglass v. Moody, 80 Ala. 61, 63 ; Vincent v. Walker, 86 id. 333, 336; Holmes v. Fresh, 9 Mo. 200, 208, 209; Jones v. Brittan, 1 Woods, 667, 673 ; Andrews v. Hyde, 3 Cliff. 516 ; and expressions in some of the opinions of this court are in harmony with this view. Bennett v. Wolverton, 24 Kas. 284, 289; McDonald v. Kellogg, 30 id. 370, 172.)
The special findings of the court alone being insufficient to warrant the conclusion that the deed was in fact a mortgage, it is necessary to take into account the evidence on that point, and from a careful consideration of it we are constrained to differ with the learned trial judge. It should be remembered that Reeder was not a mortgagee, and it is not shown that lie had any interest in any of the incumbrances, except as the agent of his daughter. By the deed, he expressly assumed the greater part of the indebtedness so that he was personally liable thereon, and he took the land subject to all other incumbrances. The instrument of writing signed by Gorsuch and Reeder was intended to be taken in connection with the deed as defining the rights of the parties outside of it. Reeder testifies that he never agreed to hold the deed as a mortgage. Aside from the written instrument the preponderance of the evidence on this point would seem to be against him. It is a matter of dispute whether this contract was read in the presence of Mr. and Mrs. Gorsuch and so,me of the children or not. The matter of its execution was talked over with Mrs. Gorsuch before Reeder went to Olathe to have the papers drawn up, and she knew that it was executed. Her husband was not illiterate, nor was she especially so. She took charge of the contract after it was executed and turned it over to her attorney amongst the papers in order to inform him as to the evidence in the case. And we think that the deed and thd contract together • are controlling on the well-established principle that all prior and contemporaneous oral negotiations should be considered as included in or concluded by the written contract of the parties resulting from them. Of course there are exceptions to this rule in cases of fraud, accident, imposition or mutual mistake, but the findings and the evidence do not bring the case within any of these.
Taking the deed and the contract together, we think that they constitute a sale of the lands by Gorsuch and wife to Reeder, the consideration being that Reeder assumed a certain part of the indebtedness, and agreed to take the land subject to all the incumbrances, and to hold the same for a period of 18 months, on condition that Gorsuch might sell it within that time, if he could do so, for the amount of the incumbrances- or more, and that he should have the benefit of any excess, Reeder to make deed to the purchaser ; and that if the land should not be sold within the time speci fied, then this contract to be null and void, in which case tlie deed alone would govern the rights of the parties. There is no suggestion of the inability of Reeder to carry out his part of the contract. This suit was brought before the expiration of the 18 months and without any attempt, so far as appears, either by Luke E. Gorsuch or his widow or children, to sell the property, as might have been done under the agreement of December 8, if a purchaser could be found at a price which would be equal to or in excess of the amount of the incumbrances. In this respect, the case bears a close analogy to Elston v. Chamberlain, 41 Kas. 354, 356, 357, 363. After the expiration of the 18 months, without any action under the agreement of December 8, we think the deed of December 10, 1888, became absolute. Entertaining these views, it is unnecessary to consider other questions presented by counsel and arising upon the record.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Johnston, J.
This was an action by Maria Rohr to recover from Honrath Alexander real estate situate in Stafford County. Prior to January 11, 1892,' it was owned by Henry Rohr, and on the day mentioned, he signed and acknowledged .an ordinary '.warranty deed purporting to convey the land to Alexander. Rohr and Alexander had been partners in business., were intimate friends, and had roomed to gefcher. Rohr had been ill for some time and had received attention from Alexander. He was not confined to his bed, but was advised by his physician to go to California for the benefit of his health. On the day before the execution of the deed, he stated to William Dixon., who afterward prepared it, that he desired to dispose of his property before going to California, and that he had concluded to convey it to Alexander by deed. In the instrument of conveyance executed on the following day the consideration named is $17,000, but what, if any, consideration was actually paid is not shown by the l-ecord. He went to California and died there in the latter part of the same month, leaving neither wife nor issue. -Maria Rohr, who brought this action to recover the property, was the mother of Henry and is the sole heir at law of the deceased. Her claim is that the deed signed and acknowledged by Henry was never in fact delivered ; and further, that the instrument of conveyance was testamentary in character, and, not having been executed with the formalities required in a will, was void and transferred no interest to Alexander. The deed, however, is in the usual form, and no words of a testamentary character are contained in it. There is no testimony that Rohr intended to make a will at the time the deed' was executed, nor did he give any directions indicating that he desired to have it delivered as a will.
The evidence as to his purposes in the transaction is very meager ; and the contention that the deed was not intended to convey a present interest rests only upon the testimony of William Dixon, who prepared the deed and before whom it was acknowledged. Some time before Dixon was asked to prepare the deed he had a talk with Rohr in relation to the property, and Rohr then told him “That he would make the deed and give it to ^ Alexander, and if he recovered his health the deed could be returned and destroyed.” When Dixon was subsequently called upon to make the deed he was told by Rohr that he wanted to give the property to Mr. Alexander, and to proceed and execute the deed to him for that property. After the deed was prepared, and on the following day, Rohr delivered it to Alexander in the presence of Dixon, saying: “Put it away for safe keeping.” He did not say that the deed was to be kept for him, nor that it was to be afterward returned to him. No conditions were then mentioned, nor anything said indicating a purpose to retain control and dominion of the instrument after it was handed to Alexander, The statement that he would make a deed, and that, if he recovered his health, it could be returned and destroyed, was made some time previous to January 10, but just how long before, or under what circumstances, does not appear. Nothing was said about the return or destruction of the deed when he came to make it, nor when it was delivered. Alexander was not present when he spoke of the return or destruction of the deed, and what negotiations were subsequently had between them is not disclosed. Although there was but little testimony as to the transfer, we think it is suffi"cient to sustain the decision of the trial court that the delivery was complete and the deed effective. The instrument was absolute in form, just such an one as is used to pass a present interest, and the placing of it in the hands of the grantee indicates that Rohr intended to divest himself of title. Of course a delivery is essential, but the mere possession of the instrument by the grantee is prima facie evidence of delivery which can be overthrown only by clear and convincing evidence. Johnston v. Winfield Town Co., 14 Kan. 396; Richmond v. Morford, 4 Wash. 337; Devlin, Deeds, §294. The possession of the deed being prima facie evidence of its delivery, the burden is thrown upon a party who questions the delivery. The presumption arising from the possession is not overcome by the statments made by Rohr prior to the making of the deed, nor by the fact that it remained unrecorded until after his death. McFall v. McFall, 136 Ind. 622; Blair v. Howell, 68 Iowa, 619. The deed itself furnishes some evidence that a consideration was paid ; but outside of the instrument there is some testimony tending to show an actual transfer of title’ and an unconditional delivery of the deed. It remained in the possession of Alexander at all times after the delivery ; Rohr never asked for a return of the deed ; and there is nothing to indicate that he desired that it should be recalled.
As the case comes here it must be held that there is testimony sustaining the finding of the Court, and therefore its judgment must be affirmed.
All the Justices concurring. | [
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Martin, C. J.
On November 5, 1887, the plaintiff obtained a decree of divorce from the defendant and for the custody of children. The Court found that the defendant had been duly summoned by publication in The Wyandotte Herald, and that she was in default. No further proceedings were had in the case-until May 22, 1891, when the defendant filed a motion to set aside said decree as void on the ground that the-service by publication was invalid and that she had no notice thereof. Notice was duly given for the hearing of said motion, and the matter was heard July 25, 1891, when the plaintiff moved the Court for leave to-file an amended affidavit for service by publication, on the ground that the original affidavit was not on file with the papers in the case ; and in support of said motion the plaintiff offered in evidence two entries in said case from the appearance docket, as follows :
“1887.
Sept. 13. Petition in divorce filed, ent. and cause docketed.
Sept. 13. Affidavit for publication filed and ent.”
But the Court overruled said motion, and thereupon the cause came on to be heard on the motion to set aside said decree ; and the plaintiff offered in evidence a paper purporting to be an affidavit, and the only one found on file — the body of the same being as follows :
“ Personally came before the undersigned, a notary public, in and for the County of Jackson, State of Missouri, W. E. L. Patterson, plaintiff in the foregoing cause, who being by me duly sworn states on oath as follows : That he is informed and believes that' the defendant Ellen A. Patterson resides out of the State of Kansas, and that a service of summons cannot be made on her in said State. That her residence and post office are unknown to him, and cannot be ascertained by any means in his control.”
This paper was indorsed : “Affidavit as to non-residence. Filed Sept. 13,'87.” No further evidence was offered by either party. The Court found that said paper was totally defective and void as an affidavit for publication, and the decree was vacated and set aside. The plaintiff then moved the Court to have the cause entered on the trial docket and that it stand for trial. This motion was sustained, and the cause came on for hearing February 15, 1892,— both parties appearing by counsel, but the plaintiff failed to produce any evidence, and the Court dismissed the case at his cost and subject to his exception. On the same day the plaintiff filed a motion for a new trial, which was overruled on February 24, 1892. The plaintiff alleges error of the Court in overruling his motion for leave to file another affidavit for service by publication; in sustaining the motion to set aside the decree ; in dismissing the cause, and in overruling the motion for a new trial.
Section 72 of the Civil Code authorizes service by publication “ in actions to obtain a divorce where the defendant resides out of the State ;” but section 73 of said Code, as in force in 1887, required that, before such service could be made, an affidavit must be filed that service of a summons could not be made within this State upon the defendant, and showing that the case was one of those mentioned in section 72. The paper introduced in evidence was scarcely an affidavit, in form, at all. Atchison v. Bartholow, 4 Kan. 124; The State v. Gleason, 32 id. 245, 250. It would seem, however, that the Court might have allowed an amendment so as to make tlie same positive in form instead of a statement of mere information and belief. Harrison v. Beard, 30 Kan. 532. Yet the affidavit would be insufficient by reason of the entire want of any showing that the case was one of those mentioned in section 72 of the Civil Code specifying the cases in which service may be made by publication. The filing of an affidavit complying substantially with the terms of said section 73 is a condition precedent to the obtaining of service by publication. Shields v. Miller, 9 Kan. 390, 398; Claypoole v. Houston, 12 id. 324; Harris v. Claflin, 36 id. 543, 551. Under the rule laid down in the case last cited the foregoing affidavit was void.
The plaintiff in error contends, however, that it was sufficient as an affidavit required by section 641 of the Code, excusing the mailing of the publication notice and a copy of the petition to the defendant in a divorce case ; and that, as the appearance docket showed the filing of an affidavit for publication, it should be treated as lost and presumed to be suffi.cient,— especially in view of the fact that the decree of November 5, 1887, recited that due service had been made by publication. The record does not' justify this contention. Such a recital of service is prima facie evidence thereof. O’Driscoll v. Soper, 19 Kan. 574. But the whole record must be taken and construed together ; and if the evidence as to service is complete in the record, the same must be given full effect, although contrary to a recital of service. It would seem from the reading of the affidavit that it was intended to combine in one the facts required 'to be stated by sections 73 and 641, respectively. . The appearance docket shows one affidavit only ; and it is presumable, in the absence of evidence to the contrary, that this is the one oh file. The Court was right in refusing leave to file another affidavit, and in sustaining the motion to set aside the decree.
It may be added that the plaintiff recognized the correctness of the ruling of the Court; for he moved to have the cause entered on the trial docket for disposition on the merits. But, when confronted by his wife in open court, he was dumb; he opened not his mouth. There was no course left for the Court but to dismiss his case ; and its action in so doing is not a proper subject of complaint.
The judgment must be affirmed.
All the Justices concurring. | [
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Johnston, J.
In 1886, Henry Garrity and Mary A. Garrity owned three quarter-sections of land in Sumner County, which they mortgaged to secure a loan of $4,800, obtained from plaintiff in error, a Loan Company, which shortly afterward sold and transferred the note and mortgage to a party in New York. In 1889, the Garritys were in arrears on the loan, and they made an arrangement with the Loan Company by which a portion of the land was to be sold, the mortgage debt reduced, and the loan for the balance extended for a period of five years. John Bradley, who was at that time manager for the Company, arranged the terms of the extension with the Garritys. The Garritys then sold two quarter-sections of the mortgaged land, and, with the proceeds of the sale, the mortgage debt was reduced until there remained only about $2,100. The Loan Company took up and had assigned to it the note and mortgage previously transferred to the party in New York. A note for $2,100 and a mortgage to secure it were executed by the Garritys and delivered to the Company; and it appears to have been a condition of the transfer that the $2,100 mortgage should be a first lien upon the premises. Judgments, however, were rendered against the Garritys, in the District Court of Summer County, which related back to the first day of the term and appeared to be liens prior to that of the mortgage. The Garritys failed to discharge these liens; and George A. Whiteley — who at the’ time was secretary of the Loan Company — proceeding upon the theory that the title was to be clear and the mortgage a first lien, and that the mortgage was taken as a renewal of a portion of the loan, decided to rely on the old note and mortgage ; and he thereupon exe cuted a release of the |2,100 mortgage, which was entered of record. It appeared, however, that BradT ley, the former manager of the Company, had agreed with G-arrity that the $2,100 mortgage should be taken and accepted as full payment and satisfaction of the prior mortgage, rather than as a renewal. In an action afterward brought on the first note and mortgage, it was established and settled that the second note and mortgage were given and accepted as absolute payment of the first note and a discharge of the mortgage securing it. The present action was then brought to recover upon the $2,100 note, and to foreclose the mortgage securing it, which the secretary, Whiteley, had inadvertently canceled. JohnR. Kavanaugli, to whom the Garritys had made a deed of the land after the last mortgage was executed, was made a party defendant. This deed was, in fact, a mortgage ; and was later in date than the mortgage given to the Loan Company. He failed to assert his lien, and, no relief being asked or given him, he is not a necessary party to a review in this Court. The trial court held that the release by Whiteley, and the action of the Loan Company in attempting to foreclose the mortgage first given, deprived the plaintiff of his security and discharged the land from the lien of the mortgage. Whiteley, who acknowledged having received payment of the mortgage debt, did so under a mistake; as no payment was received, and there was no consideration for the release which he entered. He had only been acting as secretary for a short time, and was not aware of the conditions upon which the mortgage was taken. It is conceded that the mortgage debt was not paid, and that there was no purpose of surrendering the mortgage lien on Gar rity’s land which secured the remainder of the mortgage debt. Whiteley was not instructed by the directors or any managing officer of the Company to cancel the mortgage, and he had no authority to do so until it was paid and discharged in the usual way. But Whiteley did not intend to surrender the lien on the premises, nor to acknowledge that full payment had been made. Acting under a mistake of facts, he canceled the wrong mortgage. The receipt, or release, is not conclusive upon the parties, nor does it necessarily operate as a dis- , ,, charge or the mortgage, “it is well settled in this State that a receipt furnishes only prima facie evidence of the declarations and admissions which it contains, and that a party giving a receipt admitting payment in full has a right to show that it is untrue.” Railroad Co. v. Davis, 35 Kan. 464. Neither is a release entered upon the records conclusive upon the parties where payment is not made and it appears to have been done by accident or mistake. In such a case, equity will intervene and grant relief. The cancellation „ ., , . . , , , . or the mortgage is to be regarded as only o o © ./ prima facie evidence of its discharge, and the party asking relief may show that the release was made by fraud, accident, or mistake. When that is shown the mortgage will be held and enforced as a valid security. In this case there are no intervening parties, and no questions as to what their rights might be can be raised. Under the testimony, there can be no doubt that, as between the parties themselves, the release is to be treated as a nullity, and that the plaintiff is entitled to a foreclosure of its mortgage. Banking Co. Woodruff, 1 Green’s Ch. 117; Banta v. Vree land, 15 N. J. Eq. 103; Freeholders of Middlesex v. Thomas & Martin, 20 id. 39; Bond, Adm’r, v. Dorsey, 65 Md. 310; Bruce v. Bonney, 12 Gray, 107.
The judgment of the District Court will be reversed, and the cause remanded for further proceedings in conformity with the views herein expressed.
All the Justices concurring. | [
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Johnston, J.
This is an appeal from a ruling quashing an. indictment in which it was alleged that Edna Walters kept and maintained a place where intoxicating liquors were sold, bartered and given away, and where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage, and where such liquors were kept for sale, barter and delivery in violation of' the statutes ; ‘ ‘ said place being kept and maintained on lots 10 and 12, block 63, city of Fort Scott, Kansas, and said place being a common nuisance.” The ground upon which, the indictment was quashed was that it did not specifically describe the place where the nuisance existed.
In prosecutions under the prohibitory liquor law, it is necessary to describe the place kept and maintained as a common nuisance (§ 399, Crimes Act) ; and the question for decision in the present case is whether the description is sufficient as against the motion to quash. The description should be sufficiently definite to advise the defendant as to the charge he is called upon to meet, and also to enable the sheriff to identify the place in the event that an abatement of the alleged nuisance is adjudged. Here the premises are described so that no difficulty could be experienced in finding them. Such a description would be sufficient in an instrument conveying or mortgaging the premises, and it would meet the requirements of the law in notices of tax or attachment proceedings. It is true that no building or other structure is mentioned, and it appears from like cases which have been before this Court that such traffic is usually conducted in buildings ; but the Court cannot say that there are any buildings on the lot described. It is possible to maintain a nuisance of the character described upon the open ground, and the whole of the ground might be so used. In such a case, the description we have here would be complete and the indictment sufficient. The indictment does describe a place, and, upon the motion to quash, the court cannot speculate as to the size of the lots, whether there is one or more buildings thereon, or whether they are improved in any way. Of course, if there were structures on the ground, only a part of which were devoted to the illegal use, such part should be described in the indictment. If it is developed on the trial that such a condition exists, specifications or a bill of particulars may be required from the State ; but if it appears that the place as described may be readily understood by the defendant, and may be identified by the sheriff, so that, if it is declared to be a nuisance, he can abate it in the manner provided by statute — that is, “by taking possession thereof, and by taking possession of all such intoxicating liquors found therein, together with all signs, screens, bars, bottles, glasses, and other property used in keeping and maintaining said nuisance ” (§ 392 Crimes Act,), the description will be deemed to be sufficient. As the question arose, we cannot say that greater particularity of description was necessary, nor that the indictment did not state an offense. Reference has been made to the following cases that have some bearing upon the question: The State of Kansas v. Muntz, 3 Kan. 383; Hagan v. The State, 4 id. 89; West v. City of Columbus, 20 id. 633; The State v. Sterns, 28 id. 154; The State ex rel. v. Crawford, 28 id. 726; The State v. Nickerson, 30 Kan. 545; The State v. Allphin, 2 Kan. App. 28.
The judgment of the District Court will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
Each of the above-named banks brought an action against the sheriff, treasurer and the board of county commissioners of Anderson county, to enjoin the collection of taxes alleged to have been illegally assessed against the bank and its stockholders, and to prevent the seizure of property under tax warrants which had been issued for the collection of unpaid taxes assessed upon the stockholders for the years 1890, 1891, 1892, and 1893. The principal objection to the validity of the tax, as set forth in the petitions, was that in the month of March of each of those years the various trustees of the townships of Anderson county met in the office of the county clerk for the purpose of fixing a basis of valuation for the assessment of property in that county, and that an agreement was made among them, that they would assess personal property at 50 per cent, of its actual value, but that they would only assess real estate at 25 per cent, of what they found its actual value to be. It is alleged that this was intentionally and deliberately done for the purpose of discriminating between the different classes of property and property-owners, and that in accordance with the agreement made, real estate was assessed for each of these years at only 25 per cent, of its value, while personal property, including the bank stock of the plaintiffs, was assessed at 50 per cent, of its actual value. There was also an allegation that the assessors had refused to permit the stockholders to deduct their indebtedness from the value of the stock which they held, but there having been a prior adverse decision by this court, that branch of the case has been abandoned. (Dutton v.. National Bank, 53 Kas. 440.) Another ground of invalidity alleged was that the tax warrants were issued at a time not authorized by statute, and for that reason' the levy of the same should be enjoined. The district judge denied the application for a temporary injunction in each of the cases, and of these orders plaintiffs complain.
Accepting the averments of the petition to be true, the action of the taxing officers was a plain disregard of duty and a flagrant violation of the statute. It was an intentional discrimination by which, an excessive valuation was placed upon one kind of property, and •from the owners of the same there was unjustly exacted double the rate and amount of taxes required from the owners of the other kind of property. It is contended that a discriminating and illegal tax of this character cannot be enjoined, but in a case just decided it has been held that injunction is a proper remedy, and that a party who has tendered all of the state taxes, and his just share of the county and other local taxes, is entitled to have enjoined the collection of the illegal excess. (C. B. & Q. Rld. Co. v. Comm’rs of Atchison Co., 54 Kas. 781.) The reasons for this ruling are so clearly and fully stated by the chief justice, that no further discussion is required. The application of the rule of that case, however, does not justify a reversal of these. It does not appear that any portion of the taxes due upon the property was paid or tendered before these proceedings were instituted. The property was subject to taxation, and should have been assessed at its actual value. The fact that there was an excessive valuation does not relieve the parties from paying the taxes due upon a reasonable and fair valuation. The plaintiffs allege that they have been ready and willing to pay any and all legal taxes that might be assessed against their property, and are still willing to pay a just proportion of the tax that has been assessed, but they do not aver that they have paid or offered to pay, to the officer authorized to collect, any portion of the tax chargeable against them. No part of the state taxes has been paid, and there is no charge that the state officers have been guilty of irregularity or wrong-doing with respect to these taxes. Parties must have done equity before they can appeal to equity for relief, and before they “can be heard to make complaint in a court of equity of the alleged excessive taxes levied they must pay or tender all the taxes due upon a reasonable and fair valuation of the property belonging to them.” ( Wilson v. Longendyke, 32 Kas. 267. See, also, Railroad Co. v. Morris, 7 Kas. 210 ; Comm’rs of Leavenworth Co. v. Lang, 8 id. 284; City of Lawrence v. Killam, 11 id. 509 ; C. B. & Q. Rld. Co. v. Comm’rs of Atchison Co., supra; Cummings v. Bank, 101 U. S. 153; Stanley v. Supervisors of Albany, 121 id. 535; Railroad Co. v. Clark, 153 id. 252.) If the parties had paid that portion of the tax about which there was no question and such part of the remainder as could be readily ascertained to be a just tax upon a fair valuation, they would have been entitled to an injunction to prevent the collection of the illegal excess. It is suggested that since the suit was begun one-half of the taxes have been paid as a condition upon which a stay was obtained in this court, but that circumstance cannot affect our decision. We must take the cases as they stood when the injunction was denied by the district judge, as in the exercise of appellate jurisdiction we can only review the rulings that were then made.
The objection that the tax wai’rants were not issued at a proper time cannot be sustained. The collection of taxes cannot be enjoined on account of any mere irregularity in the proceedings nor because of the failure of an officer to perform the duties assigned to him upon the day specified in the statute. (Gen. Stat. of 1889, ¶ 6993 ; Railroad Co. v. Morris, 7 Kas. 210; Challiss v. Comm’rs of Atchison Co., 15 id. 49; Challiss v. Rigg, 49 id. 119 ; Dutton v. National Bank, 53 id. 440.) The tax warrants are regular in form, and presumably the officer who held them will perform his duty, and only levy them upon such property as is subject to seizure for the payment of the taxes mentioned, in the writs.
The orders of the district judge in denying the injunctions will be affirmed.
All the Jus'tices concurring. | [
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The opfinion of the court -was delivered by ■
Martin, C. J. :
Section 546 of the code of civil procedure, as amended by chapter 86, §1, of the Laws of 1870, reads as follows:
(‘ The plaintiff in error shall file with his petition a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated or modified, or the original case-made as hereinafter provided, or a copy thereof.”
This section was modified by chapter 185 of Laws of 1877, being “An act to reduce the expenses of litigation in the supreme court,” whereby it was provided, among other things, “that in all actions hereafter instituted by petition in error in the supreme court, the plaintiff in error shall attach to and file with the petition in error the original case-made, filed in the court below, or a certified transcript of the record of said court.” Section 1 of said chapter is published as §546a of the code. (Gen. Stat. of 1889, ¶"4647.) The certificate of the clerk, appearing in full in the foregoing statement, although very long, does not literally comply with the requirements of either act. There is no statement that the document certified is a transcript of the proceedings nor a transcript of the record.
Counsel for plaintiffs in error refer to § 417 of the code, which declares what shall constitute the record in a cause, and urge that as it includes “ all material acts and proceedings of the court,” and this certificate of the clerk contains these words, this should be deemed sufficient; but that section does not contemplate that the clerk shall determine what acts and proceedings are material. If, in making up the transcript, any such acts or proceedings were omitted or immaterial matters included, -the parties by suggesting a diminution of the record, in due time would have a right to the correction of the same; but the clerk’s certificate should show the fact that the document which he furnishes for the purpose, of a review is a full and correct transcript of the record and proceedings of the court in the cause to which it relates. The certificate in this case does not comply substantially with this requirement. The statutes are very plain, and there is little excuse for a failure to comply with them. Enough appears in this case to show that the clerk could not properly certify that this was a full and correct transcript of the record and proceedings. For example, it is disclosed that the defendant, O. L. Howe, filed an answer, and its purport is perhaps sufficiently recited for the purposes of a case-made, but no copy of such answer is given. At the September term, on November 2, 1889, the plaintiff was allowed five days to amend his petition, and time was given for answer and reply. On November 6, 1889, the plaintiff filed his amended petition; and on November 27, 1889, the defendants, W. W. Cook and T. A. Brace, filed their motion to require the plaintiff to make his amended petition more definite and certain, and this motion was overruled December 5, 1889. It does not appear that anything further was done in the case until the date of the judgment, March 27, 1890, but the certificate of the clerk does not exclude the idea that something important may have occurred during this intervening period, unless we concede to the clerk the right to determine and certify what was and what was not material.
This court has heretofore required at least a substantial compliance with the statutes relating to transcripts when a review has been sought by that method of procedure. (Moore v. Cutler, 18 Kas. 607 ; Burns v. Burgett, 19 id. 162; Whitney v. Harris, 21 id. 96; Eckert v. McBee, 25 id. 705 ; Weaver v. Hall, 33 id. 619 ; Neiswender v. James, 41 id. 463 ; Comm’rs of Elk Co. v. Scott, 51 id. 139; Westbrook v. Schmaus, 51 id. 214; Byers v. Leavenworth Lodge, 54 id. 321.)
It is now too late to amend the certificate, more than one year haying elapsed. The petition in error must be dismissed.
All the Justices concurring. | [
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Martin, C. J.
I. What code or system of laws must furnish a rule of decision as between these parties as to this property, is the first question suggested. The Territory of Missouri was carved out of the vast expanse known as Louisiana, which was ceded to the United States by France in 1803 and which had been alternately under the sovereignty of France and Spain. The country known as the Indian Territory and Oklahoma was part of the Missouri Territory, and therefore the common law was extended over in 1816 by the act of the territorial Legislature, and so the former laws, whether of France or Spain, were abrogated. It may be that when the State of Missouri was admitted into the Union with its western boundary extending only as far as “a meridian line passing through' thWmiddle of the mouth of the Kansas River where the same empties into the Missouri,” the territorial laws ceased to operate in the outlying region west of that meridian (St. Louis & S. F. Rly. Co. v. O’Loughlin, 49 Fed. Rep. 440); but this is not entirely clear. O’Ferrall v. Simplot, 4 Iowa, 381, 399, 400. However this may be, the act of Congress of March 1, 1889, established a court for the Indian Territory having jurisdiction in all civil cases between citizens of the United States, residents of the Indian Territory, or between citizens of the United States or of any state or territory therein and any citizen of or person or persons residing or found in the Indian Territory, when the value of the thing in controversy or damages or money claimed should amount to $100 or more ; the code of procedure to conform as near as might be to that existing in the State of Arkansas (25 U. S. Stat. at Large, 783); and in Pyeatt v. Powell, 51 Fed. Rep. 551, it was held that in an action in the federal court established by that act the rule of decision, in the absence of statute, or of proof of the laws, rules or customs prevailing in the Territory, is the common law. It is true that the court says the lex fori is applicable, and that in the Federal courts, in the absence of statutes repealing or modifying it, the common law is the rule of decision and guide of action ; and from this the learned counsel for the defendant argue that a Kansas court should presume, in the absence of proof to the contrary, that the law of the place where these cattle were kept was the same as our own, and that the court below was justified in applying the law of the forum. This position cannot be maintained. In this State the rights of a chattel mortgagee not in possession, as to° subsequent purchasers and mortgagees in good faith, depend upon our statute, which makes registration a necessity. But we must take judicial notice of the fact that no such statute could have existed in.the Indian Territory when this transaction took place, for no legislative body, except Congress, existed having any control in that region from the admission of Missouri into the Union in 1820 until the Organic Act of Oklahoma Territory, which took effect May 2, 1890. 26 U. S. Stat. at Large, 81. In saying this we do not take into account the acts and doings of the legislative bodies organized or constituted by the Indians to prescribe rules for their own government, for these do not extend to citizens of the United States having no relation to the several tribes. There could be no registry act as to chattel mortgages in. a country having no legislative body; and we think that since the act of Congress of March 1, 1889, establishing for the Indian Territory a court which administers the common law, it is the duty of this Court, when there is no showing to the contrary, to recognize that system as in force there. In McKennon v. Winn, 1 Ok. 327, the Supreme Court of Oklahoma decided that the common law prevailed in that Territory at the time of its first settlement, April 22, 1889, and until the adoption of its Organic Act. See also, First National Bank v. Kinner, 1 Utah, 100, 106, 107; Thomas v. The U. P. R. R. Co., 1 id. 232, 234; Thompson v. Rainwater, 49 Fed. Rep. 406.
II. In Pyeatt v. Powell, supra, Judge Sanbokn, delivering the opinion of the United States Circuit Court of Appeals, thus succinctly states the principle that must control this case upon this point:
í! The rule of the common law is that a mortgage of personal property, unaccompanied with possession, is prima facie void as to creditors of the mortgagor ; yet the presumption of fraud arising from that circumstance may be rebutted by explanations showing the transaction to be fair and honest, and giving a reasonable account of the retention of possession.”
And it was accordingly held that a chattel mortgage executed in good faith at Coffeyville, Kansas, July 18, 1888, upon certain mares and colts in the Indian Territory, was valid notwithstanding the mortgagor retained possession and the mortgage was not recorded anywhere; and the rule so stated and its application in that case are well supported by the authorities therein cited and by others. The same rule applies to subsequent purchasers and mortgagees as to creditors. The evidence in this case tended to show that the transaction be tween the Bank and the firms of Beach & Feagans and Warren & Irby was fair and honest; and it was error for the Court to take the case from the jury, since our registry act is inapplicable to chattels owned and held in other states and territories where the common law prevails.
III. The chattel mortgage was not strengthened by the absolute bills of sale upon the same property; because it was fully understood that the transfer was intended only as a security for the indebtedness of Beach & Feagans, and that whatever surplus should remain of the mortgaged property or of the proceeds of the same after the satisfaction of the indebtedness should belong to them, and therefore the papers taken together constituted only a chattel mortgage. We think, however, that there was some evidence tending to show the possession of the cattle by the Bank, and that the Court erred in taking that question from the jury-
The judgment will therefore be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Martin, C. J. :
I. The evidence of Virginia Drury and her husband as to conversations with Nicholas Renz was incompetent under section 322 of the civil code. They were parties to the action, and their testimony related to communications ‘ ‘ had personally” with the deceased person, the adverse party, Sarah A. Renz, being the heir at law of such deceased person, whose title to the cause of action was acquired immediately from him. (Rich v. Bowker, 25 Kan. 11; Wills v. Wood, 28 id. 400; Hafer v. Hafer, 33 id. 449, 463.) We think that the objection to the incompetency of the testimony was sufficient, and that the question is properly raised by the petition in error.
II. There was no evidence that any proceeding was ever had under the Iowa statute for the adoption of Virginia by Mr. and Mrs. Renz, and the supreme court of Iowa has decided that rights of inheritance can only be acquired through adoption by a full compliance with the provisions of the statute ; and accordingly, where articles of adoption were properly executed but not recorded during the lifetime of the person adopting, it was held that no right to inherit from him was thereby conferred on the child, though the latter had complied with the terms of such articles during the full period of his minority. (Shearer v. Weaver, 56 Iowa, 578, 584.) In Kentucky, where there is also a statute authorizing adoption, it has been held that no agreement to adopt is effectual, unless in compliance with the statute, and even though the father gave the child his name, and reared and held him out to the world as his own, yet it was held that such adoption was ineffectual. (Willoughby &c. v. Motley, 83 Ky. 297, 300.) In Wallace v. Rappleye et al., 103 Ill. 229, 258, the same doctrine was recognized. In Indiana and Ohio, where rights to inherit lands have been asserted under parol agreements of like character, it has been held that such agreements come within the inhibition of the statute of frauds, and therefore cannot be enforced, unless they can be brought within some recognized exception to the application of that statute. (Wallace, Administrator, v. Long, Guardian, 105 Ind. 522; Shahan, Exr., et al., v. Swan, 48 Ohio St. 25.)
The cases of Van Duyne v. Vreeland, 12 N. J. Eq. 142; Davison v. Davison, 13 id. 246, and Van Tine v. Van Tine, 15 Atl. Rep. 249 (N. J.), are cited in opposition to the foregoing authorities. But it appears that in New Jeksey there was no statute regulating the adoption of children, and the courts of equity of that state recognized the validity of adoption by parol, or in writing, although no such right existed at common law. The majority of the supreme court of Michigan followed the New Jersey authorities in Wright v. Wright, 99 Mich. 170, and also held that the agreement was taken out of the operation of the statute of frauds by part performance. The adoption law of Michigan, which had been complied with, was afterward declared unconstitutional, leaving the state without any statute regulating the subject, as in New Jersey. Sharkey v. McDermott, 91 Mo. 647, is also cited by the defendants in error. That case was decided upon a demurrer to the petition which was held to admit that the agreement to adopt was in writing, and that the contract had been partially performed. In re Evans, 106 Cal. 562, is also cited by the defendants in error, but in that case the proceedings to adopt were regular, so far as the parties were concerned; but the judge failed to make the proper entry upon his record, although he indorsed his approval on the agreement of adoption, and we think it was correctly held that this failure of the judge properly to perform his duty did not deprive the adopted child of her rights.
Mr. and Mrs. Renz and Virginia resided in Iowa from 1857 until 18(79, the latter date being three years after Virginia was married. Whatever contract there may have been between the parties was governed by the laws of that state, and we think it fairly settled by the authorities that in a state having a statute regulating the adoption of children the provisions thereof must be substantially followed in order to clothe the adopted child with the right of inheritance ; and, as there was no evidence of compliance with the Iowa statute, we think that Virginia did not establish a right to a half interest in the lot in controversy and the rents and profits thereof on the theory of adoption.
III. Counsel for the defendants in error claim a right in the property by virtue of the agreement made with Virginia when she was 15 years of age, and her compliance with that agreement. She testified, and the court found, that while working at the hotel she paid her wages to Nicholas Renz, but we hold that a right to real estate in Kansas, not then owned by Nicholas Renz or his wife, could not be acquired by a parol agreement of this nature. The contract theory of this case, based upon services, comes within the reasoning in Baldwin v. Squier, 31 Kan. 283, where it is’held that payment of the purchase price does not take such a contract out of the reach of the statute of frauds, because the money can be recovered back by action, and so no fraud will be accomplished if the parol contract is not enforced. In the present case, the value of the services of Virginia from the time that said contract was made until she married was easily ascertainable, and might have been recovered on a quantum meruit, as held in Wallace, Administrator, v. Long, Guardian, supra.
The judgment will be reversed, and the cause remanded to the district court for a new trial.
All the Justices concurring. | [
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Allen, J.
John H. Whitbeck brought suit against the Railroad Company to recover for injuries received by him while loading stock for shipment at the stockyards in Larned. It appears that he had engaged cars for two car-loads of cattle which he wished to ship, and that he and other shippers, who also had stock, went to the stock-yards with the yardmaster for the purpose of loading the cattle. The train which was to take them out was due at 11 o’clock at night, but was four hours late. They commenced loading after dark, on a dark, windy and dusty night. There were two chutes for loading. After two cars had been loaded they proceeded to move the last car away from one chute past the other ; and for that purpose the plaintiff took a position on the side of the car next the yard, placing his shoulder against an upright piece, projecting from the side of the car, to push. As the car passed, the platform at the second chute his overcoat caught on the platform, and when the car — the door of which projected out further than the balance of the side of the car — came along, it crushed him between the door and the platform, breaking his collar bone and some of his ribs. The petition charges that the defendant refused and neglected to place the cars for loading; that the yardmaster required the plaintiff and other shippers to assist him in placing the cars; that the plaintiff objected to doing so, but, owing to the necessity of getting the cattle loaded and in obedience to the directions of the yardmaster, he did take hold of the cars to place them for loading, and that he was injured while so doing. The petition then alleges “that the said yardmaster, then and there being an employe of, and in the service of, said defendant Company, carelessly and negligently failed and omitted to give plaintiff any notice, or warning, whatever, respecting the dangerous proximity of said platform to said car when in motion.” The answer of the defendant was a general denial, and also a special verified denial of the authority of the yardmaster, as agent of the Company, to require the plaintiff to place cars for loading. The defendant objected to the introduction of any evidence, on the ground that the petition did not state facts sufficient to constitute a cause of action ; and also demurred to the evidence offered by the plaintiff at the trial. Error is alleged in these rulings.
It must be conceded that the averments of negligence in. the petition are very meager. It is not charged that the platform at the stock chute was differently constructed from those generally used, nor that it was unnecessarily dangerous ; although it is stated that the space between the door of the car and the platform was too narrow for plaintiff’s body. It cannot be said that the petition shows that the platform was improperly constructed, or unnecessarily dangerous. The only negligence directly charged is in the refusal of the Company’s agent to have the cars placed, for loading, by the engine, and in the failure of the yardm aster to inform the plaintiff- of the dangerous proximity of the platform to a passing car. As against an objection to the introduction of testimony, -we think the petition stated a cause of action. The testimony disclosed some other facts, bearing on the question of negligence, which were not pleaded; among them, the darkness of the night, and the absence of lights about the yards to enable the men to see and appreciate the danger of the situation. It cannot be said that there was an entire absence of proof to support the plaintiff’s claim ; nor can it be declared, as a matter of law, that the plaintiff, though an experienced shipper of stock, accustomed to loading cattle at railroad yards, voluntarily assumed the risk which resulted in his injury. These were matters to be tried and determined by the jury under proper instructions.
At the request of the plaintiff, six instructions were given; which were excepted to by the defendant. Error is assigned on the second, third, fourth, fifth and sixth of these. The second concluded as follows :
'‘And if you find from the evidence that such premises were in such condition as to be dangerous in the ordinary course of business, as transacted, either to those having a right by the express or implied invitation of the Company to come and be upon said premises, and the plaintiff received said injuries by reason of said dangerous condition of said premises in the ordinary course of the transaction of business there, and without neglect on his part while he was upon proper business there, and upon the invitation of the-defendant, expressed or implied, then the Company is liable to him in this action and your verdict must be for the plaintiff.”
The fourth instruction, after preliminary statements with reference to the circumstances of the case, contains the following :
‘‘The defendant owed to him a duty of protection against danger incident to said premises when used, as aforesaid, for loading stock and placing cars for stock; - and, if there was danger incident to said use and occupation of said premises, as aforesaid, it was the duty of the defendant to warn or notify the plaintiff of such danger.”
The fifth instruction contains the proposition : '
‘‘If at the time he was injured, he was unfamiliar with said premises, and did not know of the :danger ous condition thereof, when used as hereinbefore stated in these instructions, then he was guilty of no neglect in putting his shoulder to the car and in pushing there, as it is claimed he did when injured.”
The sixth instruction reads as follows :
“If the defendant was doing a general business with the public at and upon said stock yard at Larned, and if, according to the usual course and conduct of such business, it was the practice and custom of shippers to go to and upon said yard and premises, and assist in loading cars, and in placing cars for loading, then the defendant by that course of business invited the public to come there, and was under a duty to guarantee the public safety while there, and the defendant was under a duty and obligation to exercise the greatest diligence to see that no injury should befall any person thus invited to said place by the conduct and action of the defendant, and not to do so by the defendant would constitute gross negligence upon the part of the defendant.”
Each of these instructions is erroneous. They base liability on the maintenance by the Company of dangerous conditions in its yard, and its failure to protect the plaintiff therefrom. This is a novel theory of the law. The tracks and yards of railroad companies, over and through which cars are propelled, are, of necessity, places of danger; and the companies are not chargeable with any guilt or wrong whatever merely because a railroad yard is dangerous, for danger is necessarily incident to railroad service, as now developed and understood. To impose liability on the Company, something further must be shown. It must appear that it has done what it ought not to have done, or, has neglected to do what it ought to have done, and has thereby unnecessarily increased the danger and caused injury to the plaintiff. This idea is entirely excluded from the instructions asked and given. The authorities cited by counsel for the defendant in error are not applicable to this case. They refer to the maintenance of conditions unnecessarily dangerous, which the party ought not to have suffered. In this case, dangers necessarily incident to the operation of a railroad and to the loading of stock at a stock-yard are treated as culpable, and made a basis of liability against the Company.
The fifth instruction is bad, in that it takes from the jury the question of contributory negligence on the part of the plaintiff, and charges, in effect, that he was not guilty of negligence.
The sixth instruction asked is most faulty of all; because it charges that the Company was bound to-guarantee the public safety while engaged about the stock-yards, that it was required to exercise the greatest diligence to see that no injury should befall any person invited there, and that a failure to do so would constitute gross negligence. The instructions- given by the Court, of its own motion, are unnecessaidly prolix and contain many errors. It was unnecessary and improper, under the evidence in this case, to define and comment on the various degrees of negligence. Either party, if guilty of any negligence, was guilty of ordinary negligence, only. There was not a particle of testimony indicating gross negligence on the part of the defendant; and there was no occasion for a comparison of degrees of care'in this case, nor can it with propriety ever be done in any case.
The fifth of these instructions is to the effect that, if the negligence of the defendant was gross, the plain tiff need not be wholly free from negligence in order to recover. This was erroneous, and inapplicable to the facts.
The seventh instruction is faulty in that it implies-that, in order to prevent a recovery, the negligence of the plaintiff must have been nearly equal in degree to that of the defendant. If his negligence contributed to the injury, and but for it the injury would not have happened, he could not recover.
The eighth instruction was improper because not-warranted by the facts. The thirteenth and seventeenth instructions are faulty in that they refer to gross negligence. The eighteenth instruction .is even worse, because it speaks of wantonly reckless conduct wilfully and maliciously done. The nineteenth is-equally bad. In other instructions the law was correctly stated, with sufficient fullness, and with reference to the case actually on trial; but the instructions above referred to were fundamentally wrong and misleading.
When the petition in error and' case-made were filed, in this court, thé certificate of the judge settling the case was attested by the signature of the district clerk, only. The seal of the Court was not affixed to it. The record remained in this condition until a motion was made to dismiss for want of proper authentication, long after the expiration of one year from the date of the judgment. The plaintiff in error thereupon asked leave to withdraw the record for the purpose of having the seal attached. Permission was-granted to do so, and the record was accordingly withdrawn, and returned with the seal of the Court appearing properly affixed. A motion is now made to dismiss the case on the ground that the Court is with out jurisdiction ;• that the seal of the trial court is an indispensable requisite to the authentication of the case-made ; that the time within which the record may be filed in this Court is limited to one year after the rendition of the judgment; that when that year expired there was no valid record here, and that thereafter it was too late to supply the omission. It is, also, now insisted that since the case-made was settled there has been a change of clerks of the District Court of Osage County, and that the successor of the clerk who attested the judge’s signature has no right to affix the seal, and that it does not appear who in fact did affix it.
A change of officers does not affect the case. The seal of the court is presumed to always remain with its proper custodian, and it must be presumed that its use is always by his authority and under his direction; otherwise a seal would never iurnisn any evidence ol authenticity in any case. It is true that the statute requires the attestation by the clerk with the seal attached, and that such authentication is indispensable to a valid record. Carr v. Hudson, 19 Kan. 474; Limerick v. Gwinn, 44 id. 694; German Reform Church v. Abbey, 54 id. 766. But the settlement of the case does not date from the attestation by the clerk. Such attestation merely furnishes evidence of the authenticity of the judge’s signature. Pierce v. Myers, 28 Kan. 364. Although we do not find any case reported in which it has been held that the seal may be attached after the expiration of one year, the' point has been decided in a number of cases on motions to dismiss, and it has been uniformly held that the evidence afforded by the seal, of the authenticity of the record, may be furnished after the expiration of a year from the date of the judgment sought to be reversed.
The motion to dismiss must be overruled ; and the judgment of the District Court is reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Martin, C. J.
I. The question most argued in this case respects the validity of the stipulation and the authority of Mr. Barker to enter into it. A litigant corporation must necessarily be represented in court by some officer, agent, attorney or solicitor, and it is conceded that Mr. Hurd, the general solicitor of the Company for Kansas, might have bound his client by a like stipulation. So far as it appeared from the record Mr. Barker was equal in authority with Mr. Hurd. He was an attorney of record, and perhaps the only one representing the Company present at the time the agreement for continuance was made. The Court had a right to presume that he had authority, either express or implied, to stipulate in open court for a continuance upon certain conditions; and his act remained unchallenged in court about two years and a half, and until after the decision of this Court in Mrs. Pavey’s case. It was then shown, however, that the general solicitor did not approve the stipulation, and that Mr. Waters, one of the attorneys for the plaintiff, was so notified; but, as the representatives of the Company knew that this stipulation was of record and was being acted upon by the continuance of the case in the meantime, it was incumbent upon them to signify to the Court that it was unauthorized and that the Company would not be bound by it. There is no claim that Mr. Barker was expressly directed by the Company or its general solicitor to make this stipulation; and if he had no implied authority as an attorney to do so, theffit should be disregarded, unless the Company ought to be held to it by reason of the acceptance of the benefit thereof and the long delay in moving for its vacation. The authorities are not harmonious as to the extent of the implied authority of an attorney in the management of the litigation of his client. In Marbourg v. Smith, 11 Kan. 554, 562, where it was claimed that counsel for the defendant in a slander suit agreed, without the consent of his client, that a dismissal of that case should bar an action for the malicious prosecution thereof, it was held that if counsel made such an agreement they had exceeded their authority. In Herriman v. Shoman, 24 Kan. 387, it was decided that an attorney employed to collect a note, in the absence of special directions, is authorized to receive money only in payment thereof. In Jones v. Inness, 32 Kan. 177, it was held that an attorney at law has no power, without express authority, to compromise or settle his client’s, claim. See, also, Rounsaville v. Hazen, 33 Kan. 71, and Mayer v. Sparks, 3 Kan. App. 602. These cases, however, do not reach the point at issue here. In Howe v. Lawrence, 22 N. J. L. (2 Zab.) 99, 104, 106, it was held that an agreement wanting in mutuality, and by which, without the consent of his client, an attorney has waived his client’s substantial legal rights, will not be enforced, and this case has been cited as authority for the position that an attorney cannot waive any substantial legal right of his client; but the case does not warrant any such Assumption, the main ground of the decision being that the stipulation was' altogether one sided and entirely wanting in mutuality ; the Co urt saying,— “Either the agreement must have been entered into by the counsel of the defendant under some misapprehension of its character, in which event it is not his agreement, or it must have been founded upon some corrupt consideration, in which event it is utterly void.” It was an agreement (to use the words of Chief Justice Marshall in Holker and others v. Parker, 7 Cranch, 436, 452) “ so unreasonable in itself as to be exclaimed against by all, and to create an impression that the judgment of the attorney has been imposed on, or not fairly exercised in the case.” An agreement of such a character should of course be set aside by the court in the interest of justice.
The agreement made by Mr. Barker does not belong in this class. It does not impress us as unreasonable or unusual. A case had been tried in the District Court of Franklin County involving the negligence of the Railway Company and the contributory negligence of Mrs. Pavey in relation to the casualty whereby she received the personal injuries, — the subject of that action and of this. John A. Pavey was present with his wife at the time she was hurt. Plis contributory negligence perhaps would not defeat her right of action, while it might have that effect as to his own ; but undoubtedly, on the trial, the attorney representing the Railway Company might have waived the defense of contributory negligence, even though raised by the pleadings. The stipulation was mutually advantageous. It saved each party the trouble and expense of taking the testimony as to the casualty without the risk of its loss by the death, removal or absence of the witnesses. A final judgment in favor of the defendant in Mrs. Pavey's case would have ended this one ; while an affirmance of the judgment already obtained was to be conclusive in this on the question of negligence, leaving for trial only the amount of the recovery. We regard the stipulation in the light of a waiver of proof on the question of negligence upon a certain condition not unreasonable in itself. Such waivers by attorneys are common either before or during the trial without the express authority of the client, and they should usually be upheld unless in case of fraud, imposition, collusion or mistake, when the court has ample authority to set them aside ; but there is no suggestion of any of these in this case.This conclusion in our opinion finds support in the following authorities: Holliday v. Stuart, 151 U. S. 229, 235; Cox v. Railroad Co., 63 N. Y. 414, 418; Saleski v. Boyd, 32 Ark. 74, 83; Rogers v. Greenwood, 14 Minn. 333; Eidam v. Finnegan, 48 id. 53 (16 L. R. A. 507); Foster v. Wiley, 27 Mich. 244, 248, 249; Cheever v. Mirrick et al., 2 N. H. 376, 379; Moulton v. Bowker, 115 Mass. 36, 40; 2 Wharton, Ev. § 1184.
II. The Court erred in admitting in evidence the syllabus and the opinion of this Court in the Rilla C. Pavey case. Under the stipulation it was competent to prove that the judgment in that case had been affirmed, and this might have been done by the introduction in evidence of a certified copy of the judgment of affirmance ; but neither the syllabus nor the opinion forms part of the judgment in a civil case. In The State v. Wait, 44 Kan. 310, and in A. T. &. S. F. Rld. Co. v. Dwelle, 44 id. 394, 408, it was held, error to allow counsel to read to the jury the opinion of this Court in another case ; and it could not be less prejudicial to introduce the same in evidence, for this would authorize any proper comment J r upon it in argument. We have had some doubt whether the error was sufficiently material and prejudicial to require a reversal of the judgment, but have resolved it in the affirmative. In order to establish liability in this case it was only necessary to prove that the judgment in Mrs. Pavey’s case had been affirmed; but to disclose the extent-of Mrs. Pavey’s disability and the plaintiff’s loss resulting therefrom evidence was necessary, and even the record in another case between other parties would be incompetent. Some of the comments of the Court, however appropriate in that case, were not applicable in this ; and as the verdict was, to say the least, very liberal for the loss of services, it may have been influenced to some extent by this incompetent evidence. Besides, counsel for defendant admitted in open court that the judgment in favor of Mrs. Pavey had been affirmed; and this was all the legitimate matter furnishing an excuse for the reading of the syllabus and the opinion. Perhaps the admission may be good upon a subsequent trial (C. B. U. P. Rld. Co. v. Shoup, 28 Kan. 394); but at all events it was sufficient to obviate the necessity for the introduction of any further evidence in relation to Mrs. Pavey’s case.
3. Wife's petitionnot competent, when. III. The Court was right in excluding the amended petition in Mrs. Pavey’s case, even upon the assumption that she may have sought damages therein which were also claimed by the plaintiff in his petition. We must presume that she recovered in that action only the damages to which she was entitled, whatever her claim may have been; but if her judgment had been for more, this would be no sufficient reason for depriving the plaintiff of damages which he had sustained. There was no relation between the two cases as to the amount of damages which the respective plaintiffs were entitled to recover.
IV. The instructions directed to the point that, under the petition and the evidence, the plaintiff was not entitled to recover for the loss of his wife’s services, were properly refused. There was no intimation either by pleading or proof that Mrs Pavey pursued any vocation on her own account after her marriage, and it sufficiently appeared from both that she was engaged only in house-o o j hold work for her husband and family. The cases of City of Wyandotte v. Agan, 37 Kan. 528, 530, and A. T. & S. F. Rld. Co. v. Dickey, 1 Kan. App. 770, are not inconsistent with a recovery in this case. The Court carefully and correctly instructed the jury touching the kinds of damages recoverable by the plaintiff, and the findings show that the jury fully comprehended the instructions and were governed thereby.
For the error in admitting in evidence the syllabus and the opinion in Mrs. Pavey’s case the judgment must be reversed and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
AlleN, J. :
The main question involved in this case is substantially identical with that in the case of The State, exrel., v. Albert, just decided. The plaintiff was elected county attorney of Marshall county in 1892. In 1894, J.W. Coon was elected as his successor. On tire 30th of November, 1894, he gave an official bond and took the oath of office, and died on the 2d of January, 1895. The district judge thereupon appointed the defendant to fill the vacancy. The main contention in this case, also, is as to whether the death of the plaintiff's successor-elect after qualification created a vacancy which might be filled by appointment.- That question has been settled by the case of The State, ex rel., v. Albert, supra. One further point is urged in this case : The statute requires a county attorney to give bond in a sum not less than $1,000, to be fixed by the county board. Coon gave a bond in the sum of $1,000, but it appears that no order -was made by the county board fixing the amount. After the plaintiff was elected, he requested the county board, while in session, to fix the amount of his bond, and the chairman answered that $1,000 would be sufficient. No order was entered of record, nor does it appear that a larger bond was required by the county board at any time. Under these circumstances, we think a bond duly approved by the county clerk in the sum of $1,000 met the requirements of the law until such time, at least, as the county board should require one for a larger amount.
Judgment will be entered for the defendant.
All the Justices concurring. | [
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The opinion of the court was delivered by
JOHNSTON, J. :
The first point to which our attention is called is the insufficiency of the petition. It contained no averment that a deed conveying a good title to the land, or that any deed, was ever executed by the Gabes to the purchasers, or that before the commencement of the action or at any other time the Gabes had tendered the purchasers a conveyance of the premises purchased, nor did it contain any excuse for the failure to tender a deed. The obligations of the contract are mutual and dependent, and before one party can enforce performance it must appear that he is not himself in default. The Gabes might have enforced the collection of all the installments preceding the last one without haying tendered a conveyance of the property sold, but as no steps were taken to collect the several installments until after the last one was due, a single cause of action exists for the collection of the purchase-money, and payment cannot be compelled until they have complied or tendered compliance with the obligations resting upon them. In a somewhat similar case it was said that —
“All the parties to the papers must perform at the same time, neither being under any obligation to trust the other. As it appears that Elledge has neither delivered nor tendered a deed, he cannot maintain an action for the purchase-money embraced in the note sued on.” (Iles v. Elledge, 18 Kas. 296.)
In a later case of the same character and where the agreements of the parties were held to be mutual and dependent, it was said that —
“Neither party can put the other in default, save by a performance or an offer to perform on his part. No action can be maintained on the note, not even to adjudge it a lien, until the plaintiff has offered to convey the premises. . . . At any rate, before either party can justly summon the other into court and impose the expense and annoyance of a suit, he should at least tender performance on his part.” (Morrison v. Terrell, 27 Kas. 326. See, also, Close v. Dunn, 24 Kas. 372; Sanford v. Bartholomew, 33 id. 38.)
It is well settled in this state that a vendor cannot enforce a contract like the one in question and collect the purchase-price of the land which he has agreed- to convey without alleging and proving that he has performed his own obligation by making and tendering a deed of conveyance. As the delivery or tender of a deed is a prerequisite to compel a performance, allegations of a tender or offer of performance in the petition were essential; and, as the petition of tlie plaintiffs below wholly failed in this particular, no right of action was shown, and the court committed error in overruling the demurrer.
The demurrer to the evidence should have been sustained for the same reason. No proof of performance was offered, nor was any excuse for ^ie want of it shown. The allegations of the answer did not supply the essential averment of tender, nor did they constitute a waiver of such averment and proof.
It is contended that the tender of a deed was unnecessary because the proof showed that the defendants below — the purchasers — had repudiated the contract and declined to carry out its provisions before the commencement of the action. One of the defendants testified upon rebuttal that at an interview with the Gabes prior to the beginning of the action he told them that the defendants “had concluded to let the land go back.” It does not appear that he had authority to speak for his associates. A single remark of this kind by one of the 14 purchasers is hardly sufficient to show that a tender would have been declined, and is wholly insufficient of itself to constitute a waiver.
The plaintiffs in error contend that the delay of the Gabes in attempting to secure performance, or in applying to the court for relief, amounts to waiver of their rights under the contract, and to an acceptance of the forfeiture. It is true that, where time is made of the essence of the contract, a party to obtain specific performance must have acted without unreasonable delay. In this case, however, the conduct of the parties and the circumstances of the case indicate that the Cabes had waived the payment of the money upon the day it was due, and that they and the other parties had treated the contract as still in force. The purchasers were given possession of the premises about the time of the purchase, and they continued in possession of the land until after the present action was brought. The testimony further tends to show that the purchasers had obtained an extension of time within which to make payment, and although that time had expired the Gabes were still endeavoring to secure the payment of the money. Under these circumstances, if a tender had been made or waived, the Gabes ■would be' entitled to a specific performance of the contract.
The judgment that was rendered in the case is not sustained either by the pleadings or the testimony, and this objection is of itself sufficient to require a reversal and a new trial of the cause. Under its terms the purchasers are required to perform specifically, and to pay the full purchase-price of the land without obtaining the title thereto, or any credit for the value of the same. The obligations of the contract, as we have seen, -were mutual, and no judgment should have been rendered requiring performance by one of the parties without also requiring it of the other. Instead of that, the judgment awards to the Gabes the full purchase-price of the land, and permits them to retain the land which represents the purchase-price. To, entitle the plaintiffs below to judgment for specific performance, it devolved upon them to allege and prove a tender of performance. Unless a tender has been waived, they must allege and show the tender of a deed conveying a good title, and the tender should be kept good until the judgment is rendered. In this case there was no proof as to the ability of the Gabes to convey the title which they had contracted to convey, nor any showing as to the condition of the title when the judgment was rendered. There being no inquiry or finding concerning the title or the ability of the Gabes to convey, this court is without power to direct any modification of the judgment respecting title. The error in the judgment is not a mere technical defect in form, but it is a substantial one in failing to protect the rights of the purchasers, and in adjudging a specific performance without providing for a conveyance to them of the property for 'which they were required to pay. The error in the final judgment is reviewable in this court, although no exception was taken to the same, nor any motion to correct the error in the trial court.
The remaining questions that have been discussed upon the admission of testimony and upon the instructions of the court have been examined, but we find nothing in them whicli requires special comment.
The judgment of the district court 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
Allen, J.:
The pivotal question in this case is, Did taking possession of the land which was the subject ■of the contract between the parties by the defendant operate as a rescission of the contract? Very many authorities are cited in the brief of counsel for the plaintiffs in error, showing what acts, conduct and ■declarations of a party have been held to amount to a rescission. Notwithstanding the very commendable 4 industry of counsel, none of the cases cited fit closely the facts of the one under consideration, and those that come nearest it are opposed rather than favorable to the plaintiffs' claim. At the time the contract was entered into a deed was executed by the defendant and wife conveying the lands to the plaintiff's. The plaintiffs executed two promissory notes for $2,000 each, due respectively in 6 and 12 months from date. The deed and notes were deposited in the First National Bank of Arkansas City, where they all remained at the time this suit was brought, without any change or attempted change of the terms under which they were so deposited. There was no written contract or memorandum showing the terms on which the papers were so deposited. The deed, however, evidenced the defendant's contract to convey and the notes evidenced the plaintiffs’ agreement to pay for the land. Beyond this there seems to have been a parol agreement under which the plaintiffs took possession. They did not pay the first note at maturity. An agreement was then made which we shall treat as valid to extend the time of payment on both notes for six months. After the first note had become due under the terms of the extensions, the plaintiffs still failing to pay either note, the defendant took possession of the land. The whole claim of a rescission rests on this one act. Tn most of the cases cited by the plaintiffs some act was done by the vendor which placed it out of his power to perform the contract, or else he had in some unequivocal manner refused to perform. Nothing of the kind appears in this case. There is nothing whatever showing, or tending to show, .that the plaintiffs on payment of the money due 'would not have received the deed to the land; that it would not have passed to them a good title, or that on such payment the defendant would have denied them possession. He had not conveyed the title nor transferred the possession to a stranger. We think the evidence in the case fairly shows that the defendant took possession of the land under the belief that he had a right to do so because of the plaintiffs’ default; that if they withheld the balance of the purchase-money he had a right to the possession of the land. The statement of the defendant on the witness-stand, commented on by counsel, amounts to no more than that he thought he had a right to keep the land and the money, too, if the plaintiffs failed to pay the balance, and that he retook possession under that claim. Whether he was right or wrong in his view of his legal rights we need not determine. We are satisfied that he did not intend to render himself liable to repay the moneys he had already received from the plaintiffs, nor to prevent the delivery of the deed on payment of the balance due. Tire plaintiffs claim to have been ready and able tó pay the amount of their notes, but they offered no satisfactory explanation for failing to do so. No claim is made that they ever paid or offered to pay any part of their notes. The most reasonable explanation of the transaction would seem to be that the plaintiffs did not care to complete their purchase, but themselves desired a rescission of the contract, which they were unwilling to carry out, and the return of the money they had advanced.
It is hardly necessary to consider the question whether the delivery of the deed and notes in escrow to the bank amounted to a valid contract within the statute of frauds, and whether the defendant liad a right to withdraw the deed and prevent its delivery, for he did not do so, and at no time objected to delivery on payment of the balance due.
We think the plaintiffs, being clearly in default themselves and manifesting no disposition to enforce the contract, are in no position to maintain this action. If the action of the defendant in retaking possession of the land was wrongful, they have another ample remedy for all the injuries they sustained thereby.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
This is a controversy between a mortgagee and attaching creditors. M. V. Ingram, a merchant at Kansas City, borrowed money from time to time from the Armourdale Bank for the purpose of carrying on his business, and on the morning of November 18, 1890, he was indebted upon a note held by the bank in the sum of $2,000. He had purchased goods upon credit, and upon the day named the creditors were pressing him for the payment of their claims, and had taken the preliminary steps for an attachment of his stock of goods. The cashier of the bank, upon learning of the situation, hastened to obtain security. A mortgage was made by Ingram upon the stock of goods to secure the $2,000 note, and upon the suggestion that an additional amount of money had been obtained on the afternoon of the same day — the exact amount of which was not then known to the parties present — a note and mortgage for $1,000 were executed for the purpose of securing this indebtedness, and it was understood at the same time that the excess, if any, should stand as security for 'any expense that there might be connected with litigation or the foreclosure of the $2,000 mortgage. The mortgages so executed were taken at once to the office of the register of deeds and filed for record. Having filed the mortgages, the cashier obtained possession of the stock of goods, locked up the store, and placed a notice upon the door that the stock had been taken and was held under the mortgages. A few hours later the attachments sued out by the creditors were served, and the sheriff opened the doors and gained possession of the property. The bank immediately commenced an action of replevin 'to recover the goods from the sheriff, claiming a special ownership in them by reason of both mortgages. When the goods were attached they were appraised at $7,161.97, and after the bank recovered possession the goods were sold at a public sale for $7,000.
The validity of the $2,000 mortgage is conceded, but the attaching creditors claim that the $1,000 mort■gage was made without consideration, for the purpose of delaying and defrauding creditors ; that both constituted one transaction, and therefore that the fraud committed as to the -$1,000 mortgage tainted the whole transaction and vitiated both mortgages. To enforce this view, an instruction was asked that under the evidence the execution of the two mortgages constituted parts of one and the same transaction, and its refusal is the principal error assigned.
Upon the testimony, the jury found that the two mortgages did not constitute a single transaction, and further, that the taking of the second mortgage was not for the purpose of delaying or defrauding other creditors of Ingram in the collection of their debts. Under the testimony, the court ruled correctly in refusing to instruct the jury that both mortgages should be treated as parts of the same transaction. The $2,000 mortgage was first made and delivered. It se cured an old debt, the amount of which was definite and well known to both parties. Afterward, Quarles, the cashier of the bank, reminded Ingram that the manager of the Armourdale store had obtained money from the bank during the day, and requested security for its payment. Ingram consented, and as the Armourdale store and bank were a considerable distance away from the place where the mortgages were being executed, and as the amount of the debt was not known to either party, it was fixed at $1,000, and a note and mortgage for that amount were executed. Before Quarles left the bank to obtain the security he learned that the creditors of Ingram were pressing for payment and that attachment suits against his property were in contemplation. Knowing that the manager of the Armourdale store had drawn money from the bank on that day, he directed one of his clerks to proceed to the store and endeavor to obtain a return of the money. The manager of the store had been allowed to overdraw Ingram's account at the bank in amounts ranging from $500 to $3,000 in currency, for the purpose of cashing the checks of employees in the packing-houses, shops, and manufacturing concerns. The money was drawn upon pay-checks for the purpose of accommodating the customers of the store, and the usual plan was to turn in the cash checks to the bank on the following day in exchange for the overdraft checks upon the bank. Five hundred dollars had been obtained for that purpose upon the day in question, but Quarles was not informed as to the amount of the overdraft nor did he know whether or not the money had been returned when the $1,000 mortgage was made. It does not appear from the record just when the money was returned, or whether it was before or after the making of the mortgage. Although the $1,000 note was antedated, the testimony tends to show that the bank acted in good faith in taking the note and mortgage. Nothing indicates a purpose to magnify the debt with a view to mislead or stand off other creditors, and no attempt was made to conceal the real nature of the debt or the purpose for which the mortgage was given. While the replevin action was based on both mortgages, the officers of the bank openly stated the facts in regard to the $1,000 note, and shortly afterward, in a garnishment proceeding, answered that the indebtedness represented by the $1,000 note and mortgage had been discharged and no claim was made upon them.
Whether both mortgages were a part of a single transaction was clearly a question of fact for the determination of the jury. One was for a debt of long standing and of a definite amount, and was executed and delivered before it was determined between the parties what security should be taken for the overdrafts of that day. Although the cashier intended to protect the bank by security or otherwise, and although the mortgages were proximately executed, they were so far distinct and independent of each other as to leave it an open question for "the jury whether they should be treated as parts of the same transaction. The testimony sustains the finding made by the jury, and it having been determined that they did not constitute one transaction, there is but little left in the case for consideration.
The $2,000 claim was a bona fide debt. It was competent for Ingram to give a preference and to secure the bank by a mortgage upon his merchandize. The mortgage was taken in good faith, and being a separate, valid transaction entitled the bank to the possession of the mortgaged goods. The payment of that debt is all that is claimed by the bank, and the balance remains for distribution among other creditors.
The taking of a second and separate mortgage, even if fraudulent, would not defeat the right of possession under the first. As we have seen, however, the testimony does not compel the conclusion that there was bad fairh or fraudulent intent in taking the second mortgage. There was an actual indebtedness of $500, and the circumstances explain the necessity for haste and the reasons why the parties did not definitely ascertain the amount of the debt. The fact that the amount of money named in the mortgage is greater than the actual indebtedness may be received as tending to show bad faith, but it is not conclusive, and may be explained consistently with good faith in the mortgagee. Nor is the antedating of the note conclusive evidence of fraud, but, like other circumstances connected with the transaction, is to be submitted to the jury upon the question of the good faith and honesty of purpose of the parties. (Hughes v. Shull, 33 Kan. 127; Bush v. T. G. Bush & Co., 38 id. 556; Allen v. Fuget, 42 id. 672.) The idea of Quarles, that part of the $1,000 mortgage should stand as security for expenses, including attorneys’ fees, in protecting and foreclosing the mortgages taken, was wrong; but he testified, and the jury have believed his testimony, that he entertained the honest belief that such expenses might be allowed. The main purpose of the-mortgage, however, was to secure the payment of an existing bona fide indebtedness, the exact amount of; which was uncertain; and the fact that a part of the-debt secured is invalid does not necessarily avoid the mortgage. The erroneous notion of the parties concerning the right to secure attorneys’ fees, among- other expenses, did not operate to the prejudice of the other creditors of Ingram. (Rathbone v. Boyd, 80 Kan. 485.).
What has been said disposes of the material objections to the rulings of the court in charging the jury. All of the questions raised upon the instructions have been considered by the court, and in them we find no prejudicial error or anything which calls for further comment. The verdict appears to be sustained by the testimony, and we do not regard the objections to the special findings to be important.
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
Martin, 0. J. :
I. On March 21, 1887, John H. Allen filed his petition against John Neve and Wealthy A. Neve, alleging that he was and for a long time had been in possession of northeast quarter of southwest quarter, and northwest quarter of southeast quarter of section 27, township 6 south, of range 9 west, except the 13 acres, more or less, included in the town site of West Hampton; that he claimed title in fee to the premises, and that the defendants claimed an estate or interest therein adverse to the plaintiff, but that said claim of the defendants was without any right, title or interest whatever in said premises, or any part thereof, and praying the court. to quiet his title to said premises. Service by publication was attempted in the case, but on October 8, 1887, such service was set aside by the court, and thereupon Frank J. Kelley, J. 0. McNerney and D. M. Thorp were, on their own motion, made parties defendant, and they were allowed to answer, and the case was continued for service as to John Neve and Wealthy A. Neve. The defendants Kelley, McNerney and Thorp duly filed their separate answers, and afterward AVealthy A. Neve and John Neve filed their joint answer. The answers were of the same general import, to the effect that D. AV. Spencer pre-empted said two 40-acre tracts, but died, leaving a son, Milton Spencer, and two married daughters, namely, Maria L. Huntington and AVealthy A. Neve, surviving him as his only heirs ; that on May 20, 1874, a patent was issued, vesting the title in said three heirs ; that by divers conveyances the undivided interests of Milton Spencer and Maria L. Huntington were vested in the plaintiff, John H. Allen, in fee, and that afterward the undivided interest of said AVealthy A. Neve was vested in the defendants, Frank J. Kelley, J. C. McNerney, and D. M. Thorp, by deed from said AVealthy A. Neve and her husband; that the plaintiff was, and ever since February, 1880, had been, in the possession of the whole tract, except 13 acres, more or less, included in the town site of AVest Hampton, and during the same time received the rents, issues and profits thereof, amounting to $3,000, and had wholly and wrongfully deprived the defendants of their part and portion thereof, and for a long time prior to the commencement of the action, and by the bringing of the same, denied the defendants’ right to' any portion of or interest in said premises, and praying for a partition of their one-third interest, and an accounting for the rents and profits.
The plaintiff’s replies to said answers were to the effect that on April 21, 1875, Milton Spencer, Maria L. Huntington and AVealthy A. Neve were the owners of said land as heirs of D. AV. Spencer, deceased ; that on said date said Milton Spencer and wife, and the said AVealthy A. Neve and husband, sold their several interests in said land to Catherine A. Arthur, and the said Milton Spencer and wife then executed and delivered to said Catherine A. Arthur a deed of general warranty, it being then understood, intended, and believed, between said Catherine A. Arthur, Milton Spencer and wife, and Wealthy A. Neve and husband, that the deed operated as a conveyance of the interest of Wealthy A. Neve and husband to the same extent as the estate of the said Milton Spencer, for the reason that the patent granted the title to the heirs of D. W. Spencer, deceased, and recited that Milton Spencer had made proof and payment for said heirs ; and all believed that said patent constituted said Milton Spencer the trustee of said heirs, with full power to convey the interests of all, and they were so advised by counsel prior to the execution of said deed; and that said sale was the free and voluntary act of said Wealthy A. Neve and husband, who then and there received full value for the same, and they then and there considered that by said deed they sold and conveyed their interest in said land to Catherine A. Arthur; that' immediately thereafter said Wealthy A. Neve and husband removed from said land to a distant part of this state, and thence to Colorado, where they have ever since remained, never asserting any right or claim to said land until May, 1887, and never exercising any control of the same; that said Catherine A. Arthur paid to said Wealthy A. Neve $500 in money as the purchase-price of her interest, and said Catherine A. Arthur was put in possession ■of' said land by said Milton Spencer and said Wealthy A. Neve, and said Catherine A. Arthur and those holding under her have ever since been in the exclusive, peaceable, open, notorious, undisputed and continuous possession of said premises, and have ex pended much money and made great, valuable and lasting improvements thereon ; that on February 11, 1880, said Catherine A. Arthur and her husband, James Arthur, conveyed said land to the plaintiff by deed of general warranty, duly acknowledged and recorded, whereby the plaintiff claimed to be the owner thereof in fee simple ; that said land at the time of defendant’s conveyance to Catherine A. Arthur was not worth more than $1,000, but by reason of the money and labor expended and the improvements made thereon said property has increased to the value of $10,000 ; that said Maria L. Huntington and her husband, on April 18, 1886, conveyed to said Milton Spencer by a quitclaim deed all their right, title and interest in said land, and that said defendants, Frank J. Kelley, J. C. McNerney and D. M. Thorp, had full notice of all the rights of the plaintiff in and to said premises long before the execution of the deed by Wealthy A. Neve and husband to them, and by reason of the premise it would be inequitable and unjust to-permit said defendants to assert or maintain any right, title, estate, interest or claim whatsoever in or to the real property in controversy.
The defendants below", who are plaintiffs in error, claimed in the court below that the replies were inconsistent with the petition, and constituted a departure from it; that the petition stated a cause of action to quiet title, while the replies set forth grounds for specific" performance; and they moved the court to compel the plaintiff below to elect whether he would proceed in the action to quiet title or for specific performance, but the court overruled this motion, holding that the pleadings stated only a cause of action to-quiet title. Counsel controverts this position with great earnestness and at much length. They refer to- Lord Coke as stating that “ a departure in pleading is said to be when the second plea containeth matter not pursuant to his former, and which fortifietli not the the same, and therefore it is called clecessus, because he departeth from his former plea.”
The action was doubtless intended to be brought under § 594 of the code of civil procedure. All that was necessary to allege 'was that the plaintiff was in possession, by himself or tenant, of the real property described; that the defendants claimed an estate or interest therein adverse to him, and asking for the determining of such 'adverse estate or interest. It was averred in the petition that the plaintiff was the owner in fee as well as in possession. The answers were to the effect that Wealthy A. Neve was the fee-simple owner of an undivided one-third interest, and the replies must be taken to concede that she did hold the naked legal title to such one-third interest, the plaintiff claiming, however, that she had no equitable title whatever to the premises, such being wholly in him. We do not think, however, that this concession changes substantially the claim made in the petition, which need not have contained anything about the nature of the title, whether legal or equitable. The replies met fully the averments contained in the answers, substantially admitting their truth as to the legal title, but stating facts showing that it would be inequitable for the defendants to set up such naked legal title to defeat his full equitable claim to the whole premises. Neither do we think that the replies stated a cause of action for specific performance. It is not averred that Wealthy A. Neve and husband entered into an agreement, either in writing or by parol, to convey the premises to Catherine A. Arthur-; but the substance of the allegation in this respect is, that the Neves represented that the title stood in the name of Milton Spencer, who occupied the relation of trustee, and that his deed was sufficient to convey their title as well as his own; and on this assumption they received their full share of the purchase-money, and thus the equitable title was vested in Catherine A. Arthur. We think the replies did not depart from the petition.
II. It is further contended that by virtue of the admission in the replies that the legal title to the extent of an undivided one-third interest was in Wealthy A. Neve, and, as the possession of one tenant in common is the possession of all, she and her grantees must likewise be deemed in possession, and therefore the action to quiet title will not lie. But a tenant in common may oust his cotenant, and the latter may have his remedy therefor by ejectment. (Scantlin v. Allison, 32 Kas. 376, 378, 379.) In this case, however, it is averred in the answer that the plaintiff was in possession of the whole tract, and. had been ever since February 11, 1880, denying any right in the defendants, and this is substantially admitted by the replies. Now, as the plaintiff was in possession under a legal title to the undivided two-thirds and an equitable title to the whole estate, it cannot be said that Wealthy A. Neve was in possession merely because she had the naked legal title to an undivided one-third. Possession under a full equitable title is sufficient to give the plaintiff a standing in court. Section 594 of the code is broad and general in its terms. A person in actual possession under claim of title may have his rights adjudicated as against any adverse claimant. (Giltenan v. Lemert, 13 Kas. 476.)
'III. We deem it unnecessary to discuss the evidence. It strongly tends 'to prove the substantial allegations of the replies. The discrepancies are unimportant. The court made very full findings of fact in substantial agreement with the averments contained in the replies, and these findings were well supported by the evidence. After the transaction between the Arthurs, the Neves, and the Spencers, it would be most inequitable and unjust to permit the Neves to claim any interest in the premises in controversy. The transaction embraces every element of an estoppel as against them, as laid down in Clark v. Coolidge, 8 Kas. 189, 196.
The defendants, Kelley, McNerney, and Thorp, received their deed on or about May 23, 1887, and they stand in no better position than the Neves. It is true they did not know of the transaction between the Neves, the Spencers, and the Arthurs, in 1873, whereby James Arthur was to have this 80-&cre tract and an interest in the mill property in consideration of the transfer by him of a sawmill at Cawker City, a pair of corn-buhrs and a quarter-section of land near Cawker City, but they knew that the plaintiff below was in possession of the premises, claiming full ownership ; that his grantor had a deed from Milton Spencer and wife, purporting to convey the full title; and that suit had been commenced by the plaintiff below for the purpose of quieting his title as against the Neves, whose adverse claim was alleged to be groundless ; for they had examined the petition in this case before the delivery of the deed to them. They paid their money and took their chances, well know;-ing that the title Avas in dispute.
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. :
The LeRoy & Caney Valley Air Line Railroad Company constructed a short line of railroad,’ ■which was leased to the Missouri Pacific Railway Company and which afterward formed a branch of the Missouri Pacific system. Prior to October 20, 1889, the Missouri Pacific Railway Company, operating the branch road under the lease, ran a daily passenger-train each way over the branch, and in addition thereto a freight-train each way per day. The receipts of revenue from the operation of the train being insufficient to meet the expense of maintenance and operation, the railway company, on October 20, 1889, withdrew the passenger-train, and thereafter only a daily train, carrying both passengers and freight, was run over the road each way. On November 1, 1889, a petition was presented to the board of railroad commissioners, signed by citizens living along the line of the railroad, complaining of the withdrawal of the passenger-train from the road and the discontinuance of the operation of the same, and praying for an order from that board for its restoration and operation as theretofore. After a hearing, and on January 20, 1890, the board of railroad commissioners rendered a decision in favor of the petitioners, and ordered the railroad company to restore the passenger-train service within 30 days from that date: Afterward an extension of time for putting on the passenger-train service was ordered and a rehear ing had, which resulted in an affirmance of the first order and a direction that the passenger-train should be restored to the road on or before May 1, 1890. The rad way company declined to comply with this order, and the present proceeding was brought to compel compliance with and specifically enforce the order of the railroad commissioners.
The controlling question is whether the court has power to enforce such an order of the board of railroad commissioners. This question has, in effect, been answered in the negative by a decision which was made since the present action was begun. (The State, ex rel., v. Railroad Co., 47 Kas. 497.) In that case it was held that an order of the board requiring the railroad company to repair its track so as to promote the safety and convenience of the public is advisory only, and is not final and conclusive upon the railroad company, or in the courts. The powers of the board in the matter of requiring a railroad company to operate its road properly and furnish sufficient passenger service are to be found in § 5 of the act creating the board and defining its powers and duties. (Gen. Stat. of 1889, ¶ 1328.)' This is the section which was construed in the cited case, and the powers of the board with respect to the operation of the road are no greater or more extended than with respect to the making of repairs. As was there held, the board is not clothed with judicial power, and its order under the provisions mentioned is not final and conclusive: nor has any legislative provision ever been made for the specific enforcement of such orders by mandamus or other judicial proceeding. The statute, instead of providing for the enforcement of such an order when compliance is refused, merely directs the board to make a report of its proceedings and de- cisión to tlie governor. Following that decision, it must be held that the state is not entitled to the relief which is asked, and therefore the peremptory writ will by denied.
Allen, J., concurring.
Martin, C. J., having been of counsel, did not sit in the case. | [
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Per Curiam:
We find no error in the record in this case, nor any tiling requiring especial mention. As the case of McNamara v. Culver, 22 Kas. 661, declares the law applicable to the facts appearing in this record, the judgment is affirmed. | [
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The opinion of the court was delivered by
AlleN, J.:
This action is prosecuted in the name of the state on the relation of the attorney general against the regents of the university, the chancellor and treasurer, to oust them from the exercise of the power, which it is alleged they have usurped, of charging the students who are residents of the state an annual library fee of $5 and a graduating fee of $5, and of excluding such students who fail to pay the library fee from the use of the books. It is alleged that the university is a corporation, and that enforcing the payment of such fees by residents of the state is an assumption of unwarranted corporate powers by the regents ; that the statute makes admission to the university free to all residents of the state. It is admitted that the regents have been collecting such library fee, and claim the right to do so, and also the right to exclude students who refuse to pay from the use of the library. But it is contended that the exercise of this assumed power cannot be inquired into by an action in the nature of quo warranto, for the reason that the state university is not a corporation, or if a corporation in any sense, then only a quasi' corporation, whose doings cannot be inquired into in an action of this kind. It is contended that the jurisdiction of this court of original proceedings in the nature of quo warranto is confined to such cases as were re garded as proper ones for the exercise of the jurisdiction of the courts by proceedings in quo warranto at the time of the adoption of the constitution ; that the jurisdiction of the court cannot be extended by legislative enactment to cases of a different nature. It is claimed that quasi corporations are creatures of the law established for the purposes of government, and while they have some of the attributes of corporations, yet that they are not such corporations as those over the actions of which the courts exercise their supervisory power by actions of this nature. In the fourth subdivision of § 658 of the code, it is provided that this action may be maintained “ when any corporation do or admit acts which amount to a surrender or a forfeiture of their rights and privileges as a corporation, or when any corporation abuses its power or exercises powers not conferred by law.” In The State, ex rel., v. City of Topeka, 31 Kas. 452, it was held, that —
‘ ‘ Whenever a municipal corporation usurps any power which might be conferred upon it by the sovereign power of the state, but which has not been so conferred, such corporation may be ousted from the exercise of such power by a civil action in the nature of quo warranto in the supreme court.”
In that case judgment was entered ousting the city from the assumed power of raising a revenue from the sale of intoxicating liquors by granting licenses or permits therefor.
Is the university such a corporation as is referred to in the statutory provision above quoted? The present state university is the successor of the Lawrence University of Kansas, incorporated under an act of the territorial legislature, approved January 29, 1861. This act provided for the establishment of' a private corporation. Under subsequent legislation the school was taken, in charge by the state, and is now a public institution, established and maintained under the following provision of the constitution (art. 6, § 7):
“Provision shall be made by law for the establishment, at some eligible and central point, of a state university for the promotion of literature and the arts and sciences, including a normal and an agricultural department. All funds arising from the sale or rents of lands granted by the United States to the state for the support of a state university and all other grants, donations or bequests, either by the state or by individuals, for such purpose, shall remain a perpetual fund, to be called the 'university fund,’ the interest of which shall be appropriated to the support of the state university.”
Article 6 of the constitution treats of the subject of education. In the section quoted, it not only authorizes; but it requires, special legislation for the establishment of a university. The legislation must be special, because but one university is contemplated. It is claimed that § 1 of article 12 of the constitution, which treats of corporations and provides that 1 ‘ the legislature shall pass no special act conferring corporate powers,” would render void a special act conferring corporate powers on the university, and that the legislation with reference to the university can only be upheld on the ground that it is a quasi corporation, and not a corporation proper. It. is conceded by the very learned counsel for the defendant that universities are generally corporations proper, but it is claimed that our state university, while a valid public institution, cannot be a valid corporation because of § 1 of article 12. We think this section has no application to legislation with reference to the university. It is in the article which treats of corpora tions in general. The section of the constitution first quoted, however, is in the article treating of the subject of education, and applies specifically to the establishment of a university. It directs the establishment of such an institution, leaving the legislature free in determining as to particulars. It is true that there is no express grant of authority to make it a corporation, but in view of the fact that such institutions are generally corporations, and of the difficulty, if not utter impracticability, of establishing a school authorized to receive donations and to hold extensive properties intended for the use of each succeeding generation without conferring corporate powers, we think it clear that the framers of the constitution meant to and did authorize the establishment of the university as a corporate body. We do not deem it necessary at this time to enter into a consideration of the question whether an action in the nature of quo toarranto may be maintained against a quasi corporation, such as a county, township, or school district, for the purpose of ousting it from the exercise of powers it has unlawfully assumed. Section 6 of chapter 258 of the Laws of 1889 provides that —
“The board of regents shall be a body corporate, under the name of ‘ The Regents of the University of Kansas/ and as such may sue and be sued, make contracts, and hold and transfer property, both real and personal, for the university. They shall' provide a seal wfith their corporate name, which shall be used to attest all contracts in writing obligating the university.”
It is only necessary for us to hold, and we do hold in this case, that this act makes the board of regents such a corporation as will be restrained and held within the bounds of
its lawful authority by the exercise of the original jurisdiction of this court in quo warranto. We are unable to mention another corporation in whose keeping interests are confided which it is more appropriate to protect by the exercise of the powers of the court than those confided to the regents. The education of the youth by the public is, of all the powers exercised by the state, of the most certain and unalloyed benefit to the people. The university crowns the great public-school system.
A further objection is made to the prosecution of this action in the name of the state, on the ground-that the imposition of a library fee on students in the university is in the nature of levying a tax; that it affects not the state, but the individual students ; that they have an adequate remedy if the tax be unlawful by injunction ; and that the attorney general may not use the name of the state merely for the purpose of protecting their private interests. The fee imposed is not a tax within the ordinary meaning of the term. It cannot be collected in the ordinary manner of collecting taxes. It is not expressly provided for by any law of the state. It is at least doubtful whether the students are so united in-interest that they could join in an action to restrain the collection of the fee. Whether they coul^l do so or not, however, we are clearly of the opinion that the conduct of the university is a matter of' state concern; that the public maintains the institution, not for the special advantages conferred by it on particular individuals, but for the great advantage accruing to the state by reason of the maintenance of a great institution of learning within its borders, and the diffusion of knowledge and advancement of the people in literature and art. All its people gain through the instrumentality of this great institution. It is to attain these public ends that the state lavishes money, raised by taxation, on the institution. It is because of the interest of the state in the education of its youth that the university was created at all. Having created a university, the state is directly concerned in its being conducted in accordance with the provisions of law. It is directly concerned in the education of the students. It is directly concerned when the youth of the state are, for any unwarranted cause, excluded from it. The legislature has undertaken to open the way to a higher education to the poorest jo of the youth of the state. Whenever the board of regents places any unwarranted obstacle in the way of the accomplishment of that end it affects and opposes the public interest. This disposes -of the. objections to the form of the action.
■ But little need be said on the merits of the case. Section 11, chapter 258, of the Laws of 1889, which was in force at the time the action was brought, reads : “Admission into the university shall be free to all the inhabitants of the state, but a sufficient fee shall be required from non-resident applicants, to be fixed by the board of regents, and' no person shall be debarred on account of age, race, or sex.” Notwithstanding the apparently plain provisions of this section, it is contended that the board of regents may yet collect a reasonable fee for the wear and tear of the books ; that the word “ free” must be taken with, qualifications ; that in the nature of things there must be rules and regulations ; that each and every student cannot be permitted to occupy the chancellor’s seat at his desk, or any other place in the university he may choose at his own sweet will, but that the regents and the chancellor have a right to make proper regulations ; and that the fee imposed is no more than is reasonable to preserve and protect the library. We fully agree with so much of the claim of the learned counsel as asserts the right of the regents and the chancellor to make all necessary and proper rules and regulations for the orderly management of the school, the preservation of discipline therein, and the protection of its property; but that it may require the payment of money a's a condition precedent to the use of the property of the state is another and a different claim, with which we do not agree. If the regents may collect $5 for the use of the library, why may they not collect also for the use of the rooms of the building and of its furniture? Why may they not impose fees for walking in the campus, or for the payment for instructors? All these things have cost money. There are expenses incurred by the state on behalf of the students in connection with every department of the school. If they may collect for one thing, it is not apparent why they may not collect for another. It is suggested that supplies are furnished in the laboratories for the use of students, which are destroyed; that vessels and implements may be broken, and that the students should certainly be required to pay for these things. No question of that kind, however, is now presented, and express provision therefor is made by chapter 226, Laws of 1895. The library is provided for permanent use. Each volume, with proper care, may be used by a great number of students and for a long term of years. The library as a whole is subjected to wear and tear, but only in the same manner as furniture and other properties furnished by the state. The buildings, furniture, library and apparatus, as well as the services of the faculty, are furnished and paid for by the.state. These, we hold, under tlie provisions of the statute quoted, are free to all residents of the state who are entitled to admission into the university. The regents have no power to raise a fund to be managed and disposed ° of at their discretion, by charging fees for the use of the library, or under any other claim for any other purpose, unless expressly authorized to do so by law.
Judgment of ouster will be entered, in accordance with the prayer of the petition.
All the Justices concurring. | [
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The opinion of the court was delivered by
JohNStoN, J. :
It is strongly urged by the appellant that he was tried and convicted for an offense not charged in the information, or, in other words, that the facts averred in the charge app. •insnffi.cipnt to constitute murder in the second degree. The jury were instructed that —
‘ ‘ There was no evidence in this case which tends to show that the defendant is guilty of murder in the first degree, or manslaughter in the first, second, or third degree. The court will therefore not submit for your consideration these degrees of the offense charged. You may, however, if you deem the evidence sufficient, convict the defendant of either murder in the second degree, manslaughter in the fourth degree, or of a misdemeanor under §44 of the crimes and punishment act, as heretofore given to you, or acquit him altogether in case the evidence is insufficient to satisfy your minds that he is guilty of either one of these degrees of the offense charged.”
The attention of the jury was directed to §§12 and 14 of the crimes act, each of which describes acts which constitute manslaughter in the first degree, and informed them that these sections were inapplicable to thejacts in the case and to the charges made, and . also called attention to §15 of the crimes act, which \ provides as follows :
‘ ‘ Every person who shall administer to any woman pregnant with a quick child any medicine, drug, or substance whatsoever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by a physician to be necessary for that purpose, shall be guilty of manslaughter in the second degree.”
In respect to this section the court stated that it was inoperative, and for that reason it would not be submitted for the consideration of the jury. Prom the language of the information it would seem that the pleader had drawn it under § 15, upon the assumption that it was operative, and that one who committed the acts there prohibited, being committed in the perpetration of a felony, and that as the death of the woman resulted from the perpetration of such felony, it constituted murder under § 6 of the crimes act. The court has, however, as we have seen, advised the jury tlxat under the testimony there could be no con- j vict-ion of murder in the first degree or of manslaugh- i ter in the first, second, or third degree.
We think that the court rightly held that § 15 is without application or force. It appears to be an attempt to define and establish a degree of felonious homicide where there may be no killing or homicide. The section, supposed to be complete in itself, omits one of the essential elements of homicide, namely, that the * death of the child or mother should ensue from the means employed. If the medicine administered or instruments employed on a woman pregnant with a quick child should be used or employed with intent to destroy the child, and when it was not necessary to preserve the life of the mother, or had not been advised by a physician to be necessary for that purpose, and-no injury resulted to the mother or to the child, it cannot be possible that the person charged could be convicted of felonious homicide. It was probably not the purpose, nor was it competent, for the legislature to make that a degree of felonious homicide which in truth and in fact is not homicide, and where the acts prohibited and proposed to be punished do not result in death. This section, although it has stood upon the statute-book from the beginning, has never been challenged nor construed. In The State v. Watson, 30 Kas. 281, it was held that a person prosecuted under § 15 might be convicted of a misdemeanor under § 44, but the acts charged were sufficient to constitute a-misdemeanor, and they fairly fell, within the terms of §44. It does not appear that attention was called to the defect in §15, and under the circumstances there was no necessity to determine whether it authorized a conviction for felonious homicide. The section was apparently taken from the Missouri statute, and the language of both is substantially the same, except that the following words found in the Missouri statute are omitted from ours : “If the death of such child or mother thereof ensue from the means so employed.” This section was intended to be complete within itself, and to define a degree of homicide. We cannot extend the statute beyond the natural meaning of the words employed, nor interpolate into it language necessary to create the offense of felonious homicide. As was said in The State v. Chapman, 33 Kas. 136, “the omission is one for which the legislature is responsible. It was properly a casus omissus which the legislature may, but the court cannot, supply.”
The important question for consideration is whether the information warrants a conviction of murder in the second degree. It will be observed that it does not allege an intent to kill or even to injure Carrie B. Wilcox, and also that it does specifically charge that the drugs and medicines were administered and the instruments were employed upon her for the purpose and with the intent to destroy a quick child with ''which she was pregnant. It will be further noticed that although the information charges the acts .to have been done with intent to destroy the life of the child, there is no averment that the child was injured or destroyed. Manifestly there was no purpose to prosecute the defendant for the killing of the child, and it is not charged that there was an intent on his part to kill the deceased. Under o'lji’jstat-ute the intent toJaH is an essential ingre-i ■ 1 ..© dient of rawssá^.in the second degree. Section 7 of the crimes act, undeFwhiclr^ftre defendant was convicted of murder in the second degree, reads : “.Every murder which shall be committed pur posely and maliciously, but without deliberation and ' premeditation, shall be deemed'murder in the second f degree.” The preceding section of the statute defines murder in the first degree, and then provides that a killing purposely — that is, with an intent to kill, and maliciously, but without deliberation and premeditation— is murder in the second degree. Ohio has a statute similar to ours, which provides :
“That if any person shall purposely and maliciously, but without deliberation and premeditation, kill another, every such person shall be deemed guilty of murder in the second degree, and on conviction thereof shall be imprisoned in the penitentiary and kept at hard labor during life.”
In interpreting this statute, the supreme court of\ that state held that the intent or purpose to kill, ! j although not essential to constitute murder at com- | jj mon lawTwasmade one oFtlie mp-redients of the crimeJ ! of murder by the _statut£^f-£>hia^-a]id. that to convict ¡I | oFmurcTer~ui the second degree the state must allege Í j and provena* purpose or intelTrTcrTalir~(Fouts v. The State, 8 Ohio St. 98 ; Robbins v. The State, 8 id. 131; Jones v. The State, 38 N. E. Rep. 79.)
We think this the correct view of the statute, and ] the manner in which homicides are graduated by the statutes tends to confirm the interpretation. The intent with -which the killing is clone fixes the degree of - the homicide and determines the measure of punishment. In some of the states the statutes, after defining murder in the first degree substantially as ours does, provide that all other murders or killings which would have been murder at the common law shall constitute murder in the second degree. Our statute, however, places a limitation on this classification by providing that every murder other than those of the first degree, committedpiorposely and maliciously, shall constitute murder in tlxe second degree. This qualifi- , cation clearly makes the purpose to kill an essential I ingredient of murder in the second degree.
It is argued that the facts stated in the information were sufficient to constitute murder at the common law, and portions of the charge given to the jury appear to assume that murder at common law and in this state is one and the same thing, and that an unintentional killing may constitute murder in this state. As some of the authorities cited show, murder in Kansas is materially different from murder by the common law of England. In Kansas there are no common-law offenses, and there can be no conviction except for such crimes as are defined by statute^ The defendant therefore cannot be prosecuted for or convicted of any other than a statutory crime; and the jury should have been so advised. The mere fact that the defendant did not intend to kill the deceased will not necessarily relieve him from punishment for felonious homicide. The testimony tends to prove that he unlawfully produced an abortion upon the deceased. tthe act resulted in killing her, and it was not his sign to effect death, and it was committed in such ray that it would have been murder at common law, men he may be convicted under § 12 of the crimes act for manslaughter in the first degree. That section provides that —
“The killing of a human being, -without a design to effect death, by the act, procurement or culpable negligence of another, while such other is engaged in the perpetration or attempt to perpetrate any crime or misdemeanor, not amounting to a felony, in cases when such killing would be murder at the common law, shall be deemed manslaughter in the first degree.”
The testimony in the case appears to be sufficient to have warranted an instruction upon this degree of homicide, and also under § 27 of the crimes act, which provides that “every other killing of a human being by the act, procurement or culpable negligence of another which would be manslaughter at common law, and which is not excusable or justifiable, or is not declared in this article to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.” ( The State v. Spendlove, 47 Kas. 160.)
The court rightly submitted § 44 of the crimes act, which provides that if the defendant purposely produced an abortion, when it was not necessary to preserve the life of the woman and when no advice by a physician that it was necessary for that purpose had been given, he should, upon conviction, be adjudged guilty of a misdemeanor.
Error is alleged in the reception of testimony over the objection of the defendant. A witness was permitted to give the statements of the deceased, made some time before the commission of the alleged offense, to the effect that the defendant and her husband wanted her to have an abortion produced, but that she had determined to prevent them from accomplishing their purpose. This testimony was clearly inadmissible, and was of a prejudical character. Testimony of statements made by the deceased some timé after the commission of the alleged offense was erroneously admitted. If the statements had been made at the time the act was done, or during the performance of the operation, they might have been admitted as part of the res gestee,, but statements made to others after the act had been completed, and which do not characterize or explain the act, are incompetent. They could not and appeared not to have been re ceived as dying declarations, and in no view of the case wei'e they admissible.
Evidence of statements made Arthur Wilcox, who was a codefendant, and who was charged with being a coconspirator of the defendant, Young, was improperly received. The statements purported to have been made in the absence of the defendant, after the abortion had been produced and the alleged conspiracy consummated. Evidence of declarations made under such circumstances is clearly inadmissible, and it was of such a character as to be prejudicial. (The State v. Bogue, 52 Kas. 79.)
For the errors mentioned the judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Joi-iNSTON, J. :
£oacema'le~ Several questions are presented upon a preliminary motion to dismiss the proceeding in error. One ground of the motion is that the case-made is invalid, having been allowed without notice. By the terms of the order the case was to be settled and signed on three days’ notice, and it appears that after it was duly served it was presented to the judge, who settled and signed the same without notice to the defendant. Afterward, and before the expiration of the year, a notice was served-that on a certain day the case would be presented for allowance, and upon that day the case was presented, amendments thereto were suggested by the defendant, and without any objection the case was duly settled and signed. The first attempt of the judge to settle the case was a nullity for want of notice to the defendant. The case-made was duly served, notice was duly given, an(i the case-made was settled within the time allowed by law. The void effort to settle did not tie the hands of the judge nor prevent him from performing the duty which the law requires. Another ground of the motion is, that George Fowler having died since this proceeding was begun, and as it has not been revived against his heirs at law or de- visees, the proceeding abates by force of the statute. Soon after the death of the defendant, the proceeding was revived by stipulation against the executor and trustees of the last will and testament of George Fowler, deceased. The action taken appears to have been sufficient as against the personal representatives of the deceased, but it is contended that, as the action is brought to enforce a trust in real estate in which the deceased, had an interest, the action survived only as against the heirs and devisees of the deceased, and not against the personal representatives. If the sole purpose of the action had been to subject real estate to the payment of the judgment, and to decree a sale of the land in satisfaction of the judgment, there would be considerable force in the contention of the defendant; but as' the plaintiff asked and, as we shall hereafter see, was entitled to recover a personal judgment, it was proper that the revivor should be made against the personal representatives of the deceased. The final ground urged for dismissal is that there is a defect of parties. It is contended that several parties who were named as defendants in the petition were necessary to a review of the proceedings in this court. If a joint judgment had been rendered for or against them, or if the judgment rendered could not be reversed or modified without affecting them all, then it would be necessary that all of them should be made parties to this proceeding; but the judgment sought to be reviewed was against the bridge company and in favor of George Fowler alone. It does not appear that service was made upon any of the other defendants who were named in the petition, and their rights were not determined in the action. Their absence, as we shall see later on, did not prevent the court from enforcing the personal liability of'George Fowler, and as no judgment for or against them was rendered in the court below, and as they are not to be affected by this proceeding, they are not necessary parties here.
The plaintiff insists that upon the merits it should have been awarded judgment against George Fowler for the full amount of its claim. Of the validity of the debt and judgment held by the bridge company there is no question. When the debt accrued, the packing company was a going concern, operating packing-houses at Chicago, Kansas City, and at Winthrop, near to the city of Atchison. The company was organized in 1878, under the laws of Illinois, and George Fowler was one of the promoter^ and also a director of the corporation during a great part of the time it was engaged in business. As the agreed facts show, the Fowlers w'ere the sole stockholders, and had absolute control of the corporation. The members of the corporation were also members of the partnership 'of Fowler Bros., and George FoAvler was a manager of one of the packing-houses while it was in operation. In 1884, the Fowlers entered into an agreement with each other to wind up the business and distribute among themselves the entire assets of the corporation. Although the capital stock of the corporation was only $150,000, the members of the company had at that time assumed an indebtedness of more than $2,000,000, and the statutes of Illinois, under one of which the company was organized, provided that “if the indebtedness of any stock corporation shall exceed the amount of the capital stock, the directors and officers of such corporation assenting thereto shall be personally and individually liable for such excess to 'the creditors of such corporation.” (Law of 1871-’72, §16, p. 800.)
It appears that the greater part of the indebtedness of tlie company was due to the Fowlers, but before they divided the assets among themselves the debt of the bridge company had accrued. While there is no specific statement that the company was insolvent when the transfer of the property was made in 1884, it is shown that when the assets were distributed in accordance with the agreement then made, there still remained an unpaid debt of more than $200,000. By that agreement the officers and stockholders of the company divided its entire capital and assets, and in that way deprived it of all facilities to carry on business or to exercise the functions of a corporation. The company being in such a conditiqn, the action of its officers and stockholders in absorbing the entire assets of the company and dividing them among themselves operated as a wrong as against the excluded creditors. In its disabled condition, and the assets being insufficient to meet the liabilities of the company, its property became a trust fund for the payment of its debts. In equity the cred-^01'3 have a lien upon the property superior 1° the claim of any of the stockholders and they are entitled to follow it into the hands of anyone who has notice of the trust. If it has been taken by one who is chargeable with notice of the condition of the corporation and of the purposes of the officers and stockholders who propose wrongfully to withdraw the capital and divide and distribute the assets, he will be held to be a trustee and made to account to the creditors to the extent of the property so misapplied. By the agreement made May 1, 1884, the Fowlers not only proceeded to wind up the business of the corporation but also to dissolve the partnership firm of Fowler Bros. As has been seen, the Fowlers who were members of the corporation were also members of the firm to whom the corporation owed the principal part of the indebtedness. In effect the agreement was to transfer the property to themselves. George Fowler, although not a director at the time of the transfer, had been such, and was at that time a stockholder of the company. He was also a member of the firm of Fowler Bros., and was therefore cognizant of the facts which would invalidate the transaction, and must have known that the members of the corporation were dividing the whole assets of the same among themselves, without paying or making adequate provision for the debt of the bridge company. It is true that in the agreement it was provided that when the property at Winthrop should be sold, the assets and liabilities affecting the same should be discharged; but this property and its proceeds were retained within the control of the Fowlers, and they have never paid the debt, nor have they made any adequate provision for its payment from that or any other of the resources of the company. There was conveyed to George Fowler from the assets of the company property of the value of $580,000. It is stipulated that he gave this amount in cash and notes to his brothers, but the money and notes were not given to the company, but were actually paid over to Fowler Bros., of which firm George Fowler was a member. He was the manager of the packing-house when the debt to the bridge company accrued, and has resisted the same from the outset. He knew of the relationship which existed between the members of the company and the members of the firm. He was acquainted with the fact that the directors had without authority contracted debts far in excess of the capital stock, and that these directors, who were members of the firm of Fowler Bros., had made themselves liable for this excess of indebtedness to the extent of about $1,850,000. He knew that his associates had no authority to make a contract with themselves, nor to make a disposition of the assets which would exclude the creditors from a share of the assets. Those who conducted the negotiations by which the assets of. the corporation were absorbed controlled both sides of the agreement, and the effect of the negotiations was a transfer of the assets to them individually.
“The law will not permit them to manage the affairs of the corporation for their personal and private advantage when their duty would require them to work for and use reasonable efforts for the general interests of the corporation and its stockholders and creditors.” (Ryan v. Railway Co., 21 Kas. 398.)
In the same case it is held that if persons other than the directors and officers of the corporation participated with them in their illegal transactions with knowledge of all the facts, equity will hold them to their just responsibilities, following the trust property into the hands of remote grantees and purchasers who take it with notice of the trust in order to subject it to the trust. Under the facts George Fowler cannot be regarded as a bona fide purchaser of the property, but having had full knowledge of all the facts he is equally liable with the officers who made the wrongful transfer.
“ Equity regards the property of a corporation as held in trust for the payment of the debts of the corporation, and recognizes the right of creditors to pursue it into whosoever possession it may be transferred, unless it has passed into the hands of a bona fide purchaser. . . . Assets derived from the sale of the capital stock of the corporation, or of its property, become, as respects creditors, the substitutes for the things sold, and as such they are subject to the same liabilities and restrictions as the things sold were before the sale and while they remained in the possession of the corporation. Even the sale.of the entire capital stock of the company and the division of the proceeds of the sale among the stockholders will not defeat the trust nor impair the remedy of the creditors if any debts remain unpaid, as the creditors in that event may pursue the consideration of the sale in the hands of the respective stockholders, and compel each one, to the extent of the fund, to contribute pro rata toward the payment of.their debts out of the moneys so received and in their hands. Moneys derived from the sale and transfer of the franchises and capital stock of an incorporated company are assets of the corporation, and as such constitute a fund for the payment of its debts, and if held by the corporation itself and so invested as to be subject to legal process, the fund may be levied on by such process; but if the fund has been distributed among the stockholders or passed into the hands of other than bona fide creditors or purchasers, leaving any debts of the corporation unpaid, the established rule in equity is that such holders take the fund charged with the trust in favor of creditors, which a court of equity will enforce, and compel the application of the same to the satisfaction of their debts.” (Railway Co. v. Howard, 74 U. S. 409, and cases cited.)
In Bradley v. Farwell, 1 Holmes, 433, it is said that—
"The fiduciary relation between the directors and the creditors being established, and the fact that the trustees in dealing with the trust fund have secured to themselves a benefit or'advantage over the creditors, or a benefit or advantage to themselves as creditors over and above the other creditors, taints the transaction and invokes the aid of a court of equity to see to the right execution of the trust. Not that the trustees cannot prefer one creditor to the others at common law and outside of the provisions of the bankrupt act, but that, in equity, a trustee cannot contract with himself as he may with third parties. If he exercises in his own favor the powers lie may rightfully exercise in favor of another, the court does not stop to inquire whether he gained or lost. It is enough that the beneficiary is dissatisfied with the transaction for the court to set the transaction aside without requiring the beneficiary to prove actual loss or actual fraud.”
It must be assumed that the Fowlers were bona fide creditors of the corporation, and therefore were entitled to a pro rata distribution of the assets. But, being directors and managers of the corporation, the law will not permit them to secure to themselves any preference or advantage over other creditors. (Hays v. Citizens’ Bank, 51 Kas. 535.) Under the rules of equity, George Fowler took the property charged with a trust -in favor of the creditors. If the property remained in his hands, the creditors might enforce a trust against the same ; but, as it has passed out of his hands, he may be compelled to account for the fund and contribute pro rata toward the payment of the debts of the company to the extent of the fund which he has received. It is contended in his behalf that if it is granted that the assets should have been applied pro rata upon the debts of the company, and therefore that George Fowler must refund all that he has received in excess of his pro rata share, that his interest in the partnership is not shown, and therefore it cannot be determined the amount he is liable to refund. We have no such difficulty in this case, as it is agreed that, if the plaintiff is entitled to recover, the amount of recovery shall be $4,900, with interest from November 14, 1889. Were it not for this agreement there would be some difficulty in determining the amount which the plaintiff would obtain upon a pro rata distribution of the assets. It is clear, however, upon the agreed facts, that the plaintiff was a bona fide creditor and is entitled to recover from George Fowler, who, with notice of all the circumstances, has appropriated to himself more than half a million of dollars of the assets of the corporation, and that the' agreement made fixes the amount of such recovery.
It is strongly contended that there is a defect of parties and that Muir, Booth, the company and Fowler Bros, are indispensable parties. As already indicated, the presence of Muir and Booth would be necessary to proceedings to subject the property which has been transferred to the payment of the plaintiff’s judgment. They are named in the petition, but whether they were served or not does not appear, and in their absence that kind of relief cannot be granted.
That, however, will not prevent a personal accounting by George Fowler of so much of the trust fund as he may have received and placed beyond his control. In respect to the other parties alleged to be necessary to a final disposition of the cause, the objection made by the defendant is not available. No objection with respect to the parties was made in the court below. Under § 89 of the code, where upon the face of the petition there appears to be a defect of parties plaintiff or defendant, the defendant may demur thereto upon that ground, and where the petition does not disclose that fact the objection may be taken by answer; but if no objection is taken either by demurrer or answer, the defendant is deemed to have waived the same. (Civil Code, § 91; Railway Co. v. Nichols, 9 Kas. 248 ; Parker v. Wiggins, 10 id. 420 ; Gilmore v. Norton, 10 id. 491; Seip v. Tilghman, 23 id. 291.)
There is a further contention that the cause is barred by tlie statute of' limitations, which provides that an action for relief on the ground of fraud'must be brought within two years after it accrues. The judgment was obtained, as we have seen, in June, 1885, and this action was not brought until January 26,1889. Laying aside the fact that the execution was not issued upon the judgment until 1887, it still appears that the cause is not barred. An-action upon the same judgment was brought against the defendant by John C. Tom-linson, as receiver of the bridge company, in March, 1888, and that action remained pending until about the time the present action was begun, when it was dismissed without prejudice, the receiver having been discharged. As Tomlinson was appointed receiver of all the property of the bridge company, and was authorized to collect all claims and demands due the company, he was a proper party to bring the suit, and hence the statute did not run during the pendency of that action. It is true that about 2 years and 10 months elapsed between the rendition of the judgment which is the basis of this action and the time when the action was brought by the receiver, but it is agreed that between June 25, 1885, and June 25, 1888, George Fowler was absent from the state one year, and therefore the bar was not complete.
-It is finally urged in support of the judgment that this action cannot be maintained upon the judgment-of the circuit court of the United States. We think the judgment of the federal court for the district of Kansas cannot be regarded as that of a foreign court. While there is some diversity of judicial opinion upon this question, there can be little doubt that it was the intention of the legislature of Kansas to put the judg- meiits of the circuit court rendered within this state upon an equal footing with the judgments of courts of record of the state. Under § 419 of the civil code it is'provided that "judgments of courts of record of this state, and of courts of the United States rendered within this state, shall be liens on the real estate of the debtor within the county in which the judgment is rendered. ’ ’ See, also, Ballin v. Loeb, 78 Wis. 404 ; Bullitt v. Taylor, 34 Miss. 708 ; Embry v. Palmer, 107 U. S. 10 ; Stock Co. v. Butchers’ Union, 120 id. 141; Bank v. Construction Co., Fed. Rep. 314. '
The judgment of the district court will be reversed, and the cause remanded, with the direction to enter judgment in favor.of the Chicago & Atchison Bridge Company against the executor and trustees'of the estate of deceased for the sum of $4,900, with interest from November 15, 1889.
All the Justices concurring. | [
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Doster, C. J.
This controversy relates to the tax-ability of lands, the validity of tax proceedings, and the effect of recording tax deeds.
The lands were entered with military-bounty land warrants on July 8, 1863, and were charged with taxes for that year. Payment of the taxes not having been made, the lands were, at the sale of 1864, exposed for sale because thereof. In 1874 a tax deed based on that sale was executed and recorded. Under that tax deed, George Storch, the defendant in error, took actual possession of the lands in the fall of 1886 ; and, after remaining in possession for five years, brought suit •against the heirs of the patentee under the land-warrant .location to quiet his title. The plaintiff in error, defendant below, alleged title in herself and wrongful possession by Storch ; and prayed for recovery of the lands as in ejectment, and for rents and profits during then-wrongful occupancy. The court below, upon a hearing of the case, rendered judgment in favor of the plaintiff; from which the defendant prosecutes error.
It is claimed that the lands in controversy were not subject to taxation for the year 1863. The statutes relating to this question are as follows :
“ Between the first day of April and the first day of August, in each year, the county assessor, in the several counties of this state shall ascertain by diligent inquiry, the names of all taxable persons in his county, and also all their taxable personal property owned on the first day of April, and all real estate therein, and shall assess and appraise the same as herein provided.” § 4, ch. 198, Comp. Laws, 1862, p. 876.
“The county clerk shall deliver to the assessor, on or before the first day of April, in each year, the assessment roll of the preceding year, and the list of taxable lands, and shall take his receipt therefor ; and the assessor, as soon as he shall have completed his assessment, and made his assessment roll for the year, shall return the whole of such papers and documents to the clerk.” § 6, ch. 198, Comp. Laws, 1862, p. 876.
“In the year 1862, the real property within the state of Kansas, with all improvements thereon, shall he assessed in accordance with the preceding sections of this act, and the act to which this is amendatory; and no further assessment shall be made, until the year 1865, and only once in three years thereafter. But the county assessor shall add to the. assessment roll of each year, all lands in their respective counties entered prior to March first of each year, at the United States land office for the district in which his county may lie, Qand such lands shall be assessed by him to correspond, as nearly as possible, with similar land, in the county, and be taxed the same rates.” § 13, ch. 198, Comp. Laws, 1862, p. 880.
“The county board of equalization shall have power to enter upon the tax-roll any lands which may have been omitted by the assessor ; provided the same shall have been entered or pre-empted before the first day of their session, and give the same a fair and just valuation.” § 67, ch. 187, Comp. Laws, 1862, p. 873.
The first three of the above-quoted sections define the duties of the county clerk in furnishing to the assessor a list of taxable lands, and also relate to the duties of the assessor in ascertaining what lands are taxable, and, in certain instances, adding them to the assessment rolls, and assessing and appraising the same as of certain dates. The section last quoted relates to the duties of the county board of equalization, and empowers such board to place upon the tax-roll lands which may have been omitted by the assessor, 'provided the same “shall have been entered or preempted before the first day of their session, and give the same a fair and just valuation.” These several sections of the law harmonize well, and are not difficult to construe. Section 13 authorizes the assessor to-add to the assessment roll of each year such lands as may have been entered prior to the first of March of such year, and section four requires the assessor to assess and appraise the-same ; whether as of the first of April, or — as might-be thought — between that and the first of August, is-immaterial. Section 67 requires the county board to supply the omissions of the assessor, by adding to the lists for taxation all lands entered or pre-empted before the first day of their session ; which, by section 25 of.chapter 197, Compiled Laws of 1862 (p. 863), was the third Tuesday in August. That session of the Board was more than a month after the location of the land warrants upon the land in question. The plaintiff in error, however, bases her claim of nontaxability upon the assumption that the word “entered,” as used in such section, has no application to land-warrant locations. This assumption is unfounded. The word is of generic signification, and includes all methods of acquisition of the equitable title to public lands prior to the passing of the legal title by government patent, except under laws in which words of special signification, such as “pre-empted,” are used. Our attention has not been called to a single case in which such a limited and special meaning as the plaintiff in error attaches to the word has been given. On the contrary, the officers of the United States Land Department allow it a much more extended meaning than we have done.
“An entry is that act by which an individual acquires an inceptive right to a portion of the unappropriated soil of the country, by filing his claim thereto with the proper land officers of the United States.” Secretary Chandler to Commissioner Williamson, Oopp’s Public Land Laws, 1882, vol. 2, p. 869.
“You hold that the word ‘entry’ means a purchase with money, or a location under or by virtue of some kind of warrant or scrip. It undoubtedly has the meaning you give it, but I think, as used in said act, it should have a more general meaning, and be construed so as to include any and every lawful appropriation of lands. Lands cerjbified to railroads in accordance with the terms of the grant are thus appropriated.” Acting Secretary Gorham to Commissioner Williamson, Copp’s Public Land Laws, 1882, vol. 2, p. 961.
As an alternative proposition, the plaintiff in error challenged the tax deed because of defects in the tax proceedings prior to its execution, and offered to make proof of such defects. The purpose in so doing was to establish title in herself, to support the claim of wrongful possession by the tax-deed claimant, and tn secure a judgment in ejectment, and for the rents and profits of the lands during the adverse occupancy. None of this offered proof, however, was to the effect that the taxes had been paid or the lands redeemed from sale ; and under the statute in force at the time of the sale, (Comp. Laws, 1862, § 11, p. 879,) and continued down to the present time, such offer was-rightly rejected. This, however, upon the assumption that the tax deed was valid upon its face, and had been recorded in 1874, as it appeared to have been. The plaintiff in error has in nowise challenged the regularity of the tax deed, in substance or form -r and assuming, as she appears to concede, that it was good upon its iace, it was too late, upon the trial of the case, to reach back of it to the proceedings upon which it-was founded, in order to clear them away as obstructions to her affirmative demands.
A question is raised whether the plaintiff below had shown five years' actual possession of the land before beginning his suit. The trial court found in his favor as to this, and upon what appears to us full and satisfactory testimony ; but whether such finding was correct is immaterial. The tax deed having been of record five years and more, and being good upon its face, drew upon the land the constructive possession of the tax-deed claimant; and such constructive possession, not having been interrupted by the actual possession of the adverse claimant, perfected the tax-deed title at the expiration of the statutory period, as against affirmative assaults upon the same, whether such tax-deed owner had ever been in the actual occupancy of the lands or not. Doudna et al. v. Harlan, 45 Kan. 484. For the purposes of the plaintiff’s defense to the defendant’s counter attack upon him, actual- occupancy was not necessary, however it might be for purposes of his own affirmative case.
The judgment of the District Court is affirmed.
All the Justices concurring. | [
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Allen, J.
The defendant was the local agent of the United States Express Company at Dodge City. He also acted as the station agent of the Rock Island Railway Company, and transacted the business of both companies in the same room. As compensation for his services to the Express Company he received a commission of 10 per cent, on the net earnings of the express business of his office, and one-third of the charges on money-orders sold. He was charged, under the second clause of section 88 of the Act Regulating Crimes and Punishments, with the embezzlement of $203.24 of money of the Express Company, which he neglected and refused to pay over to his employer on demand. On this charge he was tried, con victed, and sentenced to the penitentiary for a term of two years.
The contention by counsel for the appellant is, that he was a clerk or servant of the Express Company, rather than an agent, and this question was raised by a motion to quash the information, by objections to testimony, and by exceptions to the instructions given. The instruction mainly criticised is the 11th, which reads as follows :
“The Court instructs you that an agent is one who undertakes to transact some business, or to manage some affair, for another by authority and on account of the latter, and to render an account of it; and, in this case, if you find, from the* evidence beyond a reasonable doubt that the defendant was employed by the United States Express Company to take charge of and exercise control over the business of its express office, at Dodge City, Kansas, as charged in the information, and that, as such employe, it was his duty to receive and consign express from and over the said Company’s lines at such point, to collect charges thereon, keep the books of the Company at said office, make reports to said Company, and issue and sell express money-orders, and collect and receive charges therefor, keep an account thereof, transmit balances, and make reports to the Company of his doings in that particular, and to maintain an office in said city for said purpose, and that, under the terms of such employment, the defendant did, in fact, take charge of the said Company’s office at said city, and did, in fact, under the authority of said Company consign and receive express from and over the said Company’s lines at said point, Collect charges thereon, make reports to said Company, issue and sell express money-orders, collect and receive charges therefor, and did keep an account thereof, have charge and control of said office and the books and business thereof, under the management and direction of said Company, and that, under the terms of his employment, he was to and did receive as his full and only compensation for services rendered said Express Company 10 per cent, of the charges on consignments, and one-third of the charges on money-orders, then the Court instructs you that the defendant would be the agent of the United States Express Company within the meaning of the statute under which this prosecution is brought.”
It is urged that, under the authority of The State v. Yeiter, 54 Kan. 277, the defendant was a servant rather than an agent. It is, perhaps, somewhat unfortunate that the Legislature has made a distinction between embezzlement by clerks and servants and by agents, for it is a matter of extreme difficulty in many cases to determine which is the more proper term to designate the relation existing between employer and employee. Both agents and servants transact business for an employer for hire. Both are subject in a greater or less degree to the management, direction, and control of the master or principal. It would be extremely hazardous to attempt definitions of the words so comprehensive as to furnish guides for the determination of every case. There are, however, many cases which can be readily assigned to the one class or the other. We apprehend that very few people would speak of an express agent, such as the defendant in this case was, as either a clerk, or a servant, of the express company; though, perhaps, if so designated in a pleading where it was. sought to charge his employer with liability for his acts, no difficulty would be found, for a clerk or servant is often designated as agent, and an agent is,, in a sense, a servant. Persons who perform such services as the defendant performed for the Express. Company are, however, almost invariably spoken of as. express agents. While they are bound to follow and. obey the rules and directions of the company, they are not under the immediate and continual direction and control of the employer. They are required to attend to certain business of the company, but as to the particular time and manner of attending to each part of it the agent determines for himself. His possession of the money he receives for his employer is exclusive until he delivers it to some other person authorized by the company to receive it. With reference to the custody of funds, the case is clearly distinguishable from that of a clerk who works in the store or bank of his employer, and who places all the money he receives in the till to which the employer has at all times direct access. The defendant in this case received moneys from time to time from the patrons of the Express Company. It was his duty to keep an account thereof, to report the same to the company, and at stated intervals to remit the amount due the company, less his commissions. The instruction quoted contains a summary of the duties of the defendant under his employment; and, we think, a person who undertakes to discharge such duties is clearly an agent within the meaning of the statute, as well as within the ordinary meaning of the term ; and that, if he refuses to deliver the moneys in his hands, due to his employer after deducting his commissions, where they have not been lost by means beyond his control, and where he has not been permitted by his employer to use them, he is guilty of embezzlement under the second clause of the. section of the statute cited. The State v. Bancroft, 22 Kan. 170; Campbell v. The State, 35 Ohio St. 70.
The judgment is affirmed.
All the Justices concurring. | [
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Doster, C. J.
William Higgins was an employe of the Atchison, Topeka & Santa Fe Railroad Company. He was engaged in that branch of its service known as the “ Claim Department,” and his special duties were to investigate depredations committed against the company’s property, .and, in the .event of discovering evidences of guilt of any person, to lay all facts which he had ascertained before the county attorney of the proper county, and act only under his direction and advice. He was not authorized to procure the arrest of any person upon.his own judgment, and had no authority to investigate or report any crimes committed against the State of Kansas or the United States which did not constitute depredations upon the property of the Railroad Company.
The postoffice at Augusta, Butler County, was burglarized in 1885, and Mr. Higgins procured one H. T. Dodson, the sheriff of said county, to file with a justice of the peace a complaint against Joseph Brown, the defendant in error, charging him with the commission of the burglary in question. Upon a preliminary examination before the justice, Mr. Brown was discharged, for lack of probable cause to believe him guilty of the burglary ; whereupon he brought suit against the Railroad Company for damages for malicious prosecution. The Company defended upon the ground that Dodson, the complaining •witness, was not- its employe, and that it was in nowise responsible for his acts; that Mr. Higgins, in instigating the prosecution, was acting wholly outside the limits of his authority or employment; and, also, that both Higgins and Dodson stated to the County Attorney all the facts of which they had knowledge, and, in instituting the prosecution, acted solely upon his advice and under his direction. A trial of the case resulted in a. general verdict for the plaintiff, and in certain special • findings by the jury, in the form of interrogatories and answers. The Railroad Company moved the court below for judgment in its favor upon the special findings, notwithstanding the general verdict. This motion was overruled and exception taken. It then moved for a new trial; but, pending the determination of its motion, asked to withdraw it, which the court refused to allow. It then waived all errors occurring on the trial, excepting the refusal to render judgment in its favor on the special findings. The plaintiff thereupon confessed the motion for a new trial, and the errors which the Company had already waived ; upon his doing which, the court, against the Company’s objections, ordered a new trial of the cause. All this occurred in 1889. From the action of the court in refusing leave to withdraw the motion for a new trial, and in granting such new trial, proceedings in error were prosecuted, and the action of the court below .in ordering a new trial reversed. A. T. & S. F. Rld. Co. v. Brown, 51 Kan. 6. In 1893, after that reversal, the plaintiff moved for judgment on the general verdict, which was granted; and upon this judgment, and the previous order, in 1889, overruling the defendant’s motion for judgment on the special findings, the present proceeding in error is founded.
The defendant in error objects to the consideration of the case upon the ground that the proceedings in error were instituted too late. The real question, he says, arises upon the refusal of the court to render judgment in the Company’s favor upon the special findings; and as this order of refusal was made in 1889, four years before the filing of the petition in error therefrom, this proceeding cannot be entertained.
The defendant in error is mistaken. The refusal to render judgment on the special findings was not a final order, or any kind of order from which a proceeding to reverse or vacate would lie until judgment had been rendered against the Company. Until. then, the effect of the order of refusal was held in suspension, as it were. The negation of a right, which negation can work no injury except through the perpetration of a subsequent affirmative act of wrong, -furnishes no ground of complaint. A judgment against the Company might-never be rendered. It must wait and see. Being defendant in the case, asking no affirmative relief, the special findings furnishing no basis for a claim of affirmative relief, to be let alone was sufficient for its purposes and rights. The principle is the same as that involved and decided in Burton v. Boyd, 7 Kan. 17, and A. T. & S. F. Rld. Co. v. Brown, Adm’r, 26 id. 443; although the facts are somewhat different.
Final judgment having now been rendered against the Railroad Company, the case is for review on the motion for judgment on the special findings notwithstanding the general verdict. The motion for judgment on these findings should have been sustained, for one of the two reasons presen£e(j in argument, but not for the other. The questions to the jury were numerous, but were all. answered with unusual directness and consistency. They all tended to establish that Sheriff Dodson was in nowise an employe of the Company for any purpose ; and that Mr. Higgins had no general authority or special directions from the Company to institute the criminal proceedings in question, but -that the doing of the same was wholly outside his authority and the duties of his employment. A few of the questions and answers are as follows :
“Qu'es. liad William Higgins any authority to investigate any crimes committed against’the State of Kansas which did not constitute depredations against the Railroad Company or its property, or any crime •committed against the Government of the United States which did not constitute depredations against the Railroad Company or its property ? Ans. No.
“Q,. Was William Higgins authorized by any superior officers of the defendant Company to investigate the alleged crime of breaking open and burglarizing the postoffice at Augusta, Kansas ? A. No.
“Q. What authority had Mr. Higgins, if any, to instigate any prosecution of any person for breaking into or burglarizing the postoffice at Augusta ? State fully. A. He had none.
“Q,. Was he, said Dodson, employed by the defendant Railroad Company to prosecute the plaintiff in this action for burglarizing the postoffice at Augusta, Kansas ? A. We think not.
“Q. Did the said Dodson in making the complaint before the justice of the peace and causing the arrest of plaintiff for the burglarizing of the j>ostoffice, act for himself, and as the Sheriff of Butler County, Kansas? A. Yes.
“Q,. If 'the jury answer the last question in the negative, they may state if he acted for, and as an employe of, the defendant Railroad Company, in making such complaint. A. Not as an employe.
“Q,. Did Dodson, after the complaints were prepared by the county attorney, in signing them and sweai’ing to them and filing them with the justice of the peace, do so as an employe of the Railroad Company, or for and on its behalf, and without any idea of doing so, as and for, and on his own account as Sheriff of Butler County, Kansas? A. He did on behalf of the Railroad Company, but not as an employe.
It was in evidence that the Company’s depot at Augusta had been burglarized about the same time the postoffice was broken into, and, presumably, by the same person. Hence, in an indirect manner, Avhatever Avas done to bring the perpetrators of the post-office burglary to justice, might also discover the guilt of the depot burglars, and thus be said to be done m the Company’s behalf. This explains the answer to the last question.
A corporation is liable to an action for malicious prosecution, but as it can act, maliciously or otherwise, only through agents, the tortious act must be performed in the line of the employment of such agent and in the execution of the authority conferred., Wheeler & Wilson Mfg. Co. v. Boyce, 36 Kan. 350. Of course, the rules for determining what is, and what is not, in the line of the agent's employment or within the scope of his authority, are the same in the case of corporate agents as in the case of agents for individuals. One of these is, that, where the right of recovery is not based upon an allowance by the principal to the agent of an appearance of authority which he did not in .fact possess,— in other words, where the principal is not estopped by his own conduct to deny the agency, — he can be held liable only for such acts of his agent as fall within the limits of the authority conferred. This removes the case beyond all controversy. Neither Higgins nor Dodson had any authority, special or general, to set in motion the machinery of the criminal law for the punishment of the postoffice burglars. The jury so found; and, therefore, the judgment of the court should have been in favor of the Company, on the special findings in question.
The case, however, is different as to the claim by the Company of bona fide conduct upon the part of Higgins and Dodson, in laying the result of their investigation into the evidence of defendant’s guilt before the county attorney and acting upon his advice. The advice of legal counsel, sought and received in good faith, will absolve one from damages for malicious prosecution. In such case the prosecution cannot be adjudged malicious, but only mistaken. Dolbe v. Norton, 22 Kan. 101. However, all the facts must be laid before such counsel; not only all which are known to the informant, but all which can be learned by a diligent and faithful effort to acquire pertinent information. Clark v. Baldwin, 25 Kan. 120. This was not done in the case under consideration. The inquiry to the jury, in several instances, was, whether Higgins and Dodson had laid all the facts they knew before the county attorney. The jury answered “yes”; but they were not asked whether all the facts which could be learned by diligent investigation had been laid before such attorney; and, in one instance, a finding was made that this had not been done: “ Q,. What motive, if any, had Higgins for making a false charge against the plaintiff? A. He had no motive for making a false charge, but he failed to make proper investigation respecting Brown’s reputation in the neighborhood, and his connection with this case.”
The judgment, however, must be reversed upon the other ground ; and, the findings of the jury being in favor of plaintiff in error, defendant below, judgment in its favor is ordered thereon.
All the Justices concurring. | [
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Allen, J.
The plaintiff in error brought suit in the-District Court of Chase County to recover the sum of $2,500 on a cost bond alleged to have been signed by the defendants in error. The defendants denied the-execution of the bond set up in the plaintiff’s petition.. At the trial the principal contention was whether the bond executed by the defendants was for $1,500 or for $2,500. The amount was stated in the instrument in figures only, and the first figure appears to have been changed, but by whom and at what time is not shown. The jury found, in answer to special questions submitted to them, that the bond, as originally written and signed, was for the sum of $1,500, and that they did not know who altered it. A general verdict in favor of the defendants was also returned, and judgment entered accordingly.
The plaintiff in error complains of the instructions of the Court, and insists that it was entitled to recover on the bond as the jury found it to have been when executed. It is said that, in the absence of any showing that the instrument was altered by the plaintiff, or any of its agents, and especially in view of the fact that the instrument was kept in the custody of a public officer, no presumption arises that the alteration was made by its direction ; and that a recovery may be had upon a spoliated instrument where the party is innocent of any wrong doing.
Conceding, for the purpose of this case, the correctness of the legal propositions advanced in behalf of the plaintiff in error in reference to spoliated instruments, an insurmountable difficulty still obstructs the plaintiff’s case. The petition sets up a $2,500 bond, on which the plaintiff seeks to recover. No application was made at any time for leave to amend and recover on a $1,500 bond. The jurisdiction of this Court to review the case depends on the plaintiff’s claim of a right to recover more than $2,000. The penalty t)f the bond set up in the petition,, and on which the plaintiff relied throughout all stages of the trial, was $2,500. This Court cannot treat the petition as having been amended so as to set up another and different instrument for the purpose of overturning the judgment rendered by the District Court. In the absence of any amendment of the pleadings, the answer of the jury to the first special question submitted to them precluded a recovery ; and it was unimportant whether or not the other questions were answered.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J. :
The information, omitting the formal parts, is as follows :
“That on the 20th day of September, 1894, in said county of Reno and state of Kansas, one O. W. Oliver did then and there unlawfully, feloniously and willfully remove, displace and injure certain rails on the track of the Atchison, Topeka & Santa Fe Railroad Company, and then and there being operated by said Santa Fe railroad company, a corporation duly organized under and by virtue of the laws of the state of Kansas, through and by its receivers, by removing from fish-plates and drawing spikes from both sides of rails, and prying rails out of line, with the intent and for the purpose of derailing and wrecking the trains of said railroad company and injuring it, and for the purpose of and with the intent to kill and wound its passengers and employees.”
The information in this form was filed on the 19th of September, 1894. Afterward, by leave of the court, itwas amended by inserting the word “bolts,” between the words “removing” and “from.” It'was then reverified and refiled on the 4th day of January, 1895. A motion to quash the information was made before the amendment, and renewed afterward, on the ground, that it did not state facts sufficient to constitute añ offense under the laws of the state. It will be noticed that the offense is alleged to have been committed on the 20th day of September, 1894, while the original information was filed on the 19th day of the same month. It is urged that the charge as originally made, was an impossibility, because the offense was alleged as committed in the future. Authorities are cited to sustain the proposition that such a charge is bad, and that a conviction under it cannot be upheld. On the other hand, it is said that the date alleged is clearly a mere clerical error which may be disregarded.
We do not think that the record presents the question fairly. The defendant was tried on the amended information. That amended information was filed in January, 1895, long after the day on which the offense is alleged to' have been committed. It is urged that this refiling was without the consent of the court, but we think permission to amend the information carried with it necessarily permission to file it. It was necessary that the information as amended should be verified, and the practice of refiling after amendment and verification seems to be a proper one.
Further objections are made to the form of the information, because it charges that the offense was committed with the intent to injure the company and its passengers and employees, while the section of the statute under which the information was drawn defines an offense against property only; that the information charges the removal and- displacement of rails “on” the track, when the statute says it must be “of” a railroad; and that the information is deficient in failing to state the kind of rail that was displaced and the material of which it was made. The information charges the offense substantially in the language of the statute, and while the word “on” may be open to criticism and is not the most apt that could be chosen, the information very clearly charges the displacement of a rail which formed a part of the track used by the railroad company, and the material of which that rail is made is unimportant, for the statute includes “ any iron, wooden or other rail.”
We perceive no objection to the averment that the act was done with intent to injure the company, and to kill and wound its passengers and employees. These would be the natural and probable consequences of the act charged, and the purpose of the statute is not merely to protect the property of the company, but the lives and limbs of employees and passengers traveling on the road. The information fairly apprised the defendant of the specific charge made against him, and there is nothing substantial in the criticisms made on its form.
Error is claimed in permitting the witness, Moore, to state what the testimony of the defendant was on the former trial of the case, and then contradicting these statements by other witnesses. It is conceded that admissions made by the defendant might be used against him, but it is claimed that the purpose of this evidence was to show that the defendant had sworn falsely on the former trial; that for the purpose of obtaining an acquittal on that trial he had concocted and testified to a story which was untrue. It is always competent to show the statements and claims made by a person charged with crime with reference thereto, and to show that such statements are false. The fact that a defendant in a criminal case resorts to falsehood is a circumstance which may, in connection with other facts in the case, tend to prove guilt.
The tenth instruction with reference to the defense of an alibi is substantially the same as that given in the case of The State v. Price, ante, p. 610, which was held good by this court; same case, 40 Pac. Rep. 1001.
The defendant offered in evidence a transcript of his testimony taken on the former trial. The court instructed the jury.that this evidence was admitted and to be considered only for the purpose of impeaching or rebutting the evidence of the witness who undertook to detail his evidence at a former trial. This instruction was proper. The defendant had a right to show just what his former testimony was, and to correct any misstatements made by the plaintiff’s witnesses ; but the statements made by him at the former trial were not competent evidence in his behalf for' other purposes. If he desired to testify on this trial, he had a right to do so, hut he could not make testimony for himself by the introduction of statements made at another time, whether under oath or not.
The judgment is affirmed.
All the Justices concurring | [
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The opinion of the court was delivered by
Allen, J. :
Mitchell Roach, the husband of the plaintiff in error, was killed on the line of railroad then operated by the defendant in error, at a private crossing on Ms farm in Brown county, on the 11th. of January, 1888. The crossing where the accident occurred was on a private road extending from the highway to the plaintiff’s residence, situated on the west side of the railroad-track. The railroad-track enters a cut within a very few feet north from the crossing, and curves to the northwest through the cut, a distance of about 900 feet. A short distance south of the cut the railroad passes over a trestle. From the highway the private road ascends all the way to the railroad-track, and a person coming in from that way cannot see the railroad-track, or a train on it, until it emerges from the cut, at any point further from the track than about 30 feet from the east rail. At this point, it is clearly shown by the testimony of all the witnesses who testified with reference to it, a view of the track for the whole length of the cut can be had, and a person in a wagon can see the track, and anything that may be upon it through the whole length of the cut. A person on the public highway near the entrance to Roach’s place cannot see a train of cars while in the cut. The accident occurred in the afternoon, and was witnessed by the plaintiff and H. G. Reed, a neighbor, who lived across the public road from Roach’s place. The testimony shows that the deceased, Mitchell Roach, drove into the private road from the highway with a team of mules, and a lumber-wagon in which he was standing; that the mules walked at a pretty brisk rate, without stopping, until their forefeet were upon or near the east rail of the railroad-track, when Roach pulled back and endeavored to stop them, and then attempted to jump from his wagon. The mules sprang forward, and the engine of a train coming out of the cut from the north struck the front wheels of the wagon, threw him out, and killed Mm. It is charged that the defendant was negligent in failing to give any signal, either by whistling or ringing a bell, before reaching the crossing. On the part of the railroad company it is contended that there was no obligation to whistle or ring when approaching this private crossing.
It clearly appears from the evidence that this was a very dangerous crossing, and we think it -was a question. proper to be left to the jury whether, in the exercise of reasonable care, signals should have been given to warn persons at the crossing of an approaching train. (Railroad Co. v. Hague, 54 Kas. 284.) The evidence shows that no signal was given until it was too late to be of any service. The court sustained a demurrer to the plaintiff's evidence.
On the question of the negligence of the defendant there was some evidence to go to the jury, but we have to inquire further whether contributory negligence on the part of the deceased is shown. It appears that the railroad had been in operation for .several years prior to the accident, and that the deceased had lived there ever since its construction. The train which caused his death was a regular passenger-train, on time, and running on a time-schedule that had been in force for several months. The deceased was certainly as familiar with the surroundings of the crossing and with its dangers as were the employees of the company. As this private way was the usual approach, from the public road to his house and often used by him, he is certainly chargeable with knowledge of its dangers.
The evidence of H. G. Reed shows that he saw Mr. Roach come along the public road from the north, standing up in a lumber-wagon, driving a span of mules; that lie watched him all the way till he got to the railroad crossing; that just about the time the mules were stepping over the east rail he saw him pull back on his lines, and just about the same instant the engine struck the wagon, and he was killed ; that he was driving on a walk at a pretty good gait all the time; that he could not see that the mules were frightened.
Mrs. Roach, the plaintiff, testified that when she was at the well, north from their house, she looked under the trestle and saw her husband enter the place off the public road. She then started toward the house, and when she got a little over half-way up the hill, she heard the train, and about the same instant saw it come out of the cut; that at just about the same time she saw her husband in the act of coming on the track; that the mules had just got their front feet across the rail; that she then hallooed and clapped her hands ; that her husband made an effort to pull the mules off the track, and then he attempted to jump out toward the back end of the wagon; the mules bounded across the track, and the engine struck the front wheel of the wagon. The place where Mrs. Roach was standing was considerably lower than, the crossing, so that she could only see her husband's head and shoulders just as he came up near the track. She also testified that he had a cap on, with ear-flaps dropped down loosely over his ears; that when she first saw him he appeared to be looking toward the north-west, which would be in the direction from which the train was approaching, and that the train was running very fast.
The engineer in charge of the train testified that the train was running at about the usual rate of speed, not to exceed 25 miles an hour ; that his attention was first- called to the team by his fireman, who had been busy putting in coal, and as he looked out he exclaimed, “My God, there’s a team coming on the track!” that just at that time he saw the heads of the animals ; that he applied the air-brakes, whistled, and reversed the engine as quick as he could.
All the evidence in the case shows, without controversy, that when 30 feet away from the track the deceased could have seen the approaching train if he had looked. The evidence of the witness, Reed, is to the effect that Roach appeared to be looking straight ahead toward the crossing ; but as Reed was some distance behind him, this statement is not entitled to much weight. At this point, the deceased either did or did not look. If he did look, he must have perceived his danger, and it was his duty to have stopped at once. It was his duty to look, but the evidence indicates very strongly that he did not look when he first came in sight of the approaching train. All the circumstances indicate that he did not perceive his danger until the mules’ feet were close to the east rails. Reed testified that the mules continued to walk, until that time, and both he and Mrs. Roach testified that he then pulled back on the lines in an effort to-back them off. It is true that the distance' between the point where he could have first obtained a view of the approaching train and the track is short; but, knowing the danger of his surroundings, it was clearly his duty to have looked at the first opportunity, and if he saw danger approaching to have stopped or endeavored to stop at once. This he did not do. The dangers of the situation, with which he certainly must have been familiar, called for a degree of caution commensurate therewith. In Railway Co. v. Adams, 33 Kas. 427, it was held:
“ It is the duty of a person about to cross a railroad track to make a vigilant use of Ms senses, as far as there is an opportunity, in order to ascertain whether there is a present danger in crossing. A failure to listen or look, when by taking this precaution the injury might have been avoided, is negligence that will bar a recovery, notwithstanding the negligence of the railroad company in failing to give signals contributed to the injury.”
The same rule is declared in Clark v. Railroad Co., 35 Kas. 350; Railroad Co. v. Davis, 37 id. 743; Railroad Co. v. Townsend, 39 id. 115 ; Railroad Co. v. Priest 50 id. 16. Of the soundness of the rule followed in these cases there can be no questiou. Clearly, one-who fails to exercise reasonable care for , „ . , ,, , his own safety, and thereby receives an ^ injury which he might have avoided, ought not to subject another to an action for damages because of his negligence of a like kind contributing te the injury. The judgment is affirmed.
Johnston, J., concurring.
Martin, O. J. :
I am constrained to differ with my brethren in this case. The deceased and those in the management of the train had an equal right to the use of the crossing, and it was their duty to be on the lookout. It is quite evident that they did not see each other in time to avoid the fatal collision. The train was in a curved cut, and running fast. When the deceased with his team might have been first seen from the pilot, the view of the engineer was probably cut off by the boiler. The fireman had a better opportunity of seeing the danger, but it was his duty to keep the engine hot, and he could not be looking ahead every moment for obstructions.' Perhaps- both the engineer and the fireman exercised ordinary care as to keeping a proper lookout. In any event the criticism of the majority of the court upon their conduct is placed on another ground, namely, their failure to give signals while running through the cut. Now the court cannot say that the deceased had no other duty than to look out for this train. It was his duty to watch for trains in both directions, as well as to look ahead in the road oyer which he was driving. He was going up hill, and had his team to manage and keep in the road. Had he been looking for this train and thinking of nothing else he could not have seen it more than 20 seconds before the collision. Was his failure to see it sooner than he did conclusive evidence of a want of ordinary care on his part? I think not. In my opinion the case comes within the rule early asserted and often followed by this court that when the circumstances are such that different men might arrive at different conclusions as to the degree of care exercised, it is then a question for the jury to decide. (K. P. Rly. Co. v. Pointer, 14 Kas. 37; K. C. Rly. Co.v. Fitzsimmons, 22 id. 686 ; Osage City v. Brown, 27 id. 74.) | [
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The opinion of the court was delivered by
MartiN, C. J. :
It is stated in the alternative writ that the plaintiff was duly appointed warden by the governor, by and with the advice and consent of the senate, for the term of four years from and after May 1, 1893 ; that the plaintiff duly qualified and took possession of the office on that daythat his successor has never been appointed and qualified and be has not been removed by the governor for cause, and he is the only person at the present time acting as warden, or who claims any right to act as warden ; that the governor, on March 21, 1895, attempted to suspend him and to appoint M. H. Markum as his successor, but the said M. H. Markum refused to take charge of said office, and so informed the governor, and no one has appeared to whom the plaintiff could have turned over and delivered the possession of the penitentiary. It is further claimed that the attempt to suspend the plaintiff is no valid reason for the board of directors to refuse to examine and audit his accounts as provided by law, and the governor has no authority to suspend him pending an investigation which has not yet been completed, and the results of which are not known, for the reason that this action on the part of the governor was taken under the provisions of chapter 239 of the Laws of 1889, and that the latest expression of the legislature on the subject as to the penitentiary is in chapter 152 of the Laws of 1891. It is further claimed that it is necessary, in order to conduct the business concerns of the penitentiary, that the defendant, the board of directors, should at the close of each month indorse all the monthly accounts of the penitentiary as reported to it by the warden and that by reason of the failure and refusal of the board so to indorse the accounts and statements for the month of March, 1895, the warden was not able to make his monthly settlements and pay the said accounts, and that on May 9, 1895, the board will meet at the penitentiary in its official capacity. The writ commands the board of directors, immediately upon its receipt, to examine all statements of the warden with all persons or corporations with whom he has had dealings on account of the penitentiary for March and April, 1895, and that such statements be indorsed by the board as provided by law, or to show cause to-the court, on or before May 10, 1895, why defendant should not be required to do as commanded. The defendant board duly filed an answer to the alternative writ.
Counsel for plaintiff say in their brief :
“This action is brought for the sole purpose of compelling the defendant to properly conduct the business concerns of the penitentiary by the proper officer and in the interests of that institution, and we respectfully submit that this is a proper case for the speedy allowance of a peremptory writ in order that the affairs of the penitentiary may not suffer, but be continued in a proper manner.”
Assuming, without deciding, that the defendant board ought to examine all adjusted bills and accounts of the plaintiff incurred in carrying on the business of the penitentiary, and indorse the plaintiff’s report or statement of the same as contemplated by § 14 of chapter 152, Laws of 1891, yet we do not think that the plaintiff is the proper party to compel the board by mandamus to perform its duties to the public. The board is the governing body of the penitentiary. The warden is the chief executive and administrative officer under the direction of the board. That the warden should take the board to task for any supposed disregard of its duties is at least unseemly. Any corrective or visitorial proceeding ought to be initiated by the state through its appointed agencies. Although the plaintiff may be warden de jure, yet in this proceeding he stands in no better position than a private citizen, and cannot champion the rights of the public. Many cases decided by this court might be cited to' justify our conclusion, but we deem the following suf ficient: Bobbett v. The State, ex rel., 10 Kas. 9 ; Turner v. Comm’rs of Jefferson Co., 10 id. 16; Reedy v. Eagle, 23 id. 254 ; Adkins v. Doolen, 23 id. 659, 666 ; Nixon v. School District, 32 id. 510; Ralston v. Railway Co., 53 id. 337, 338.
Peremptory writ denied, and judgment for defendant.
All the Justices concurring. | [
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The opinion of the court was delivered by
Aluek, J.:
So much of the facts as are necessary to an understanding of the point decided by this court are as follows : On the 11th day of December, 1889, John Beaton, one of the defendants, executed a chattel mortgage to the Citizens Bank of Kansas City, Kas., on a stock of merchandise in Kansas City, Kas., to secure the payment of $4,200 and interest. This mortgage was not recorded until December 16. On the 14th of the same month, after the execution but prior to the recording of the chattel mortgage, Beaton made a general assignment for the benefit of all" his creditors to the plaintiff in error, who took immediate possession of the property.
The only question we deem it necessary to consider is whether the assignee can take advantage of the failure of the bank to record its mortgage. The district court held that it could not. There are authorities which sustain its decision. In the case of Chapin v. Jenkins, 50 Kas. 385, decided since the case before us was tried in the district court, it was held that an assignee, as the representative of all the creditors, could attack a chattel mortgage on the ground that it was fraudulently executed by his assignor. It was held in that case that the assignee of an insolvent debtor is not merely the representative of the debtor, but is a trustee acting on behalf of the creditors.
By § 9 of chapter 68 of the General Statutes of 1889 it is provided :
"Every mortgage, or conveyance intended to operate as a mortgage of personal property, which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be forthwith deposited in the office of the register of deeds, in the county where the property shall then be situated ; or, if the mortgagor be a resident of this state, then of the county of which he shall at the*time be a resident.”
By the deed of assignment, the title to the debtor’s property vested in the assignee for the benefit of all his creditors in proportion to the amount of their respective claims. The rights of the creditors to a pro rata distribution of the debtor’s estate attached when the assignment was made and the property delivered to the assignee. The statute declares the unrecorded mortgage void as against the creditors. It is therefore void as against an assignee who is the representative of all of them. (Brigham v. Jones, 48 Kas. 162; Chapin v. Jenkins, supra.)
The judgment is reversed for further proceedings, in accordance with the views above expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
At the trial the plaintiff below, W. T. Henry, relied upon two grounds of recovery: One for the alleged assault made upon him by the brakeman while Henry was a passenger on the train of the railroad company, and the other for the unlawful arrest alleged to have been made at the instance of the railroad company while he was a passenger upon the train, and his illegal imprisonment for about 12 hours in the jail of Franklin county. Henry was a farmer and stock-shipper, who made a shipment of cattle from Wellington to Kansas City in January, 1890, and who, in consideration of the shipment, received a ticket or stock-pass entitling him not only to accompany the cattle to Kansas City, but to a return passage from that place to Wellington. On the return trip he was unable to find the stock-pass, and was required by the conductor to pay a cash fare. Some difficulty arose between him and the conductor concerning the collection of the fare, in which it was contended by the employees of the company that Henry became profane, violent and abusive, and threatened violence to the conductor. It is claimed that the threats were communicated to the conductor, who, when passing through the train accompanied by a brakeman, found Henry with an open knife in his hand in a threatening attitude ; that the brakeman approached him and demanded that he should throw the knife down, but Henry refused, when the brakeman struck him three times upon the head with a lantern. The theory of the railroad company was that Henry was drunk, abusive, and violent; that he had become enraged because of the collection of his fare, and had threatened the lives of the employees of the company, and that with an open knife he was endeavoring to carry out his threats at the time he was attacked by the brakeman, and that therefore the conductor and brakeman were justified in committing the assault upon Henry, and inflicting upon him the punishment which they did. On the other hand, Henry claims that he was not drunk nor disorderly ; that while he complained of the collection of the fare and the failure to return it after his stock-pass had been found, he made no threats against the conductor nor any attempt to attack him with a knife or in any other manner. He claimed that he was using his knife to cut a chew from a plug of tobacco which he held in his hand. The jury haye specially found, upon conflicting evidence, that while Henry used some profane language on the train, he was not drunk or boisterous ; that he made no threats of doing personal injury or violence to the conductor upon either of the cars on which he rode. There was a further, finding that the brakeman struck Henry twice after he had dropped the knife.
According to the testimony which was accepted by the jury the action of the brakeman in assaulting Henry was a gross violation of the duty of the railroad company toward a passenger. . As the relation of carrier and passenger existed he was entitled to the highest degree of care and protection against violence or interference by others so long as he conducted himself in a proper manner. If, through the negligence of the com- • pany in affording him the care and protection to which he -was entitled, the passenger had suffered an injury the company would be liable, and certainly the liability is no less where the injury is intentionally inflicted by an. employee of the company who was required to exercise care and protection toward the passenger. It is true, if Henry was drunk and disorderly and his conduct such as to render his presence offensive or dangerous, they would have been justified in excluding him from the train; and it is also true, as contended by the company, that the brakeman and conductor might repress acts of violence on his part, and under certain circumstances defend themselves or repel a threatened attack. The finding of the jury, however, makes the brakeman the aggressor, and his attack upon the pas senger unjustifiable. ( Stewart v. Railroad Co., 90 N. Y. 588; Ray, Neg. Imp. Dut., §§106, 107.)
It is next contended that the company is not liable for the illegal arrest and false imprisoment of Henry. The arrest was made without a warrant, and the imprisonment continued for about 12 hours in the county jail of Franklin county. It occurred about one-half an hour after the termination of the difficulty on the train, at a time when Henry was quiet and orderly. 'When'the train reached Ottawa, the conductor reported the occurrence of the difficulty to a superintendent, who advised that Henry should be taken from the train. The conductor inquired for an officer, and when one was found, they went together into the train where the conductor pointed out Henry, who was at once arrested by the officer and taken to prison. Under these circumstances, there can be but little doubt that the conductor procured the false arrest to be made while in the line of his employment, and at a time when the relation of passenger and carrier existed between the company and Henry. It is well settled that when one in charge of a train, and engaged in the business which has been intrusted to him by the company, causes the arrest of a passenger, the company for which he is acting cannot escape liability. According to the testimony,. which the jury believed, Henry was arrested at midnight when he was quietly seated in a car ; and without process or any information as to the cause of his arrest, he was hurried from the train and placed in jail, where he was searched and shut up until about-noon the next day. 'The action of the conductor, who-must be held to have been acting for the company, was clearly a breach of the contract between the carrier and the passenger, which required that Henry should. be carried in safety to his destination and protected from interference by strangers or against the misconduct of the company's servants. Where the relation of carrier and passenger exists, it is held that no matter what the motive is which causes a servant of the carrier to commit an unlawful act, or to wrongfully inflict an injury upon a passenger, the carrier is responsible for the act and its natural and legitimate consequences. (Dwinelle v. Railroad Co., 120 N.Y. 122 ; Hamel v. Ferry Co., 6 N.Y. Sup. 102 ; Palmeri v. Railroad Co., 53 Am. & Eng. Rld. Cases, 56 ; Gillingham v. Railroad Co., 35 W. Va. 588 ; Ray, Neg. Imp. Dut., § 109.)
There is some testimony tending to show that the officer who made the arrest was employed by and recéived compensation from the railroad company. Some testimony of an objectionable nature in regard to his authority, as well as in regard to the authority of the superintendent, was received, but in view of the conclusion that has been reached that the conductor, acting in the line of his employment, caused the arrest to be made, the objectionable testimony with respect to the authority of the police officer and of the superintendent becomes immaterial.
The final complaint is that the damages awarded by the jury are excessive, but the view' which the jury has taken of the facts would justify the allowance of punitive damages against the company, and, looking at all the circumstances of the case, we cannot say that the award of $3,000 is so excessive as to indicate passion or prejudice in the jury or justify the court in disturbing the verdict.
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. :
George L. Parkhurst brought an action against the First National Bank of Clyde, Kas., alleging that he was the owner of certain personal property which he had advertised to be sold at public auction, on February 15, 1889, and that when the prospective purchasers had assembled and the sale was about to proceed the defendant bank, by its agents, appeared and warned said purchasers that the bank was the owner or had mortgages upon the property advertised to be sold, and that Parkhurst had no right to sell the same, and that those who purchased the property would acquire no title thereto. It was alleged that this interference prevented the sale of a large part of the property, and that that which was sold was disposed of at a much lower price than it would have sold for but for the action of the defendant. The defendant bank admits attending upon the sale and warning purchasers of its interest in the property, claiming that it held mortgages upon the same which were unpaid. A further defense was that in a former action brought by Parkhurst against the bank to recover penalties for a refusal to discharge the chattel mortgages held by the bank covering the same property against which the bank warned prospective purchasers at the public sale was covered by its mortgages, in which action the bank recovered a verdict and judgment against Parkhurst. It is claimed that in that action it was fully litigated and determined : First, that Parkhurst was not the owner of the property in controversy; and second, that the mortgages held by the bank then were unpaid. The trial court sustained the defense of res adjibdicata, and directed a verdict in favor of the defendant. An ex ception was taken to this ruling, and the cause has been brought here for review.
The defendant insists that the record in the case is so defective that the rulings of the trial court upon the question of res adjudicate!, cannot be reviewed. From the record it appears that all of the proceedings in the first case were introduced in evidence in this case for the purpose of showing what had been adjudicated in the former case, but no part of such proceedings have been incorporated in the case-made before us. An attempt was made to bring them to the attention of this court by reference to another cause between the same parties in the supreme court, the record of which is alleged to contain a copy of the proceedings that were introduced in evidence. When the case was settled the defendant objected to the attempt to incorporate the records of a cause in another court by a mere reference thereto. The proceedings in question cannot be treated as a part of the record in this case, nor can they be considered in this review. The papers and proceedings to which we are referred, not having been included in this case-made, were never served upon the bank, and hence no amendments thereto could have been suggested by it. The papers and proceedings were therefore never settled by the district court as a part of this case-made. The original case-made in the other cause to which we are referred is a permanent record of the supreme court, and there is no authority to take the same out and place it in the control of the district court. The theory of proceedings in error is that each transcript and case-made shall be complete in itself. It has been said that —
“Each proceeding in error is distinct and independent of the other, and the errors assigned in each proceeding care to be determined upon its own record. In determining errors assigned in tliis proceeding we must look alone to the matters and things revealed by the present record, and cannot examine or be governed by anything on the files of this court in a former proceeding in error, although it was brought to review a former judgment rendered in this case.” (C. B. U. P. Rld. Co. v. Andrews, 34 Kas. 563.)
If the practice were allowed of making cases by reference to other records in this court it would follow that a plaintiff in error might refer to any record or document on file in any of the public offices of the state, and thus the court would be required to gather up and consider as a part of the case that which had never been served upon opposing counsel nor settled by the court as a part of a true and correct case-made. Such a practice, while it might lessen the trouble and expense of those making a case, would lead to uncertainty and confusion; but as the issues and proceedings of a cause can be easily abridged and may be so tersely stated in a case-made, the argument of convenience and necessity can have little weight. It has been held that the evidence and proceedings in the record of one cause could not be considered in another and different cause in an appellate court, even upon the stipulation of parties that it should be considered in the latter. (Lowe v. Riley, 60 N. W. Rep. [Neb.] 96 ; Jungeman v. Brewing Co., 38 Mo. App. 458, 463. See, also, Rich v. Starbuck, 45 Ind. 310 ; Mayberry v. Morse, 39 Me. 105; Elliott, App. Proc., § 197.)
In the absence of the evidence upon which the decision of the district court rests, we cannot say that its judgment is without support. Judgment affirmed.
All the Justices concurring. | [
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Allen, J.
The only question in this case requiring our consideration arises on the motion to dismiss, which the Court of Appeals overruled. The action in the District Court was brought by the Great Western Manufacturing Company against True Richardson, Horace Pardee, Emma Pardee, Eugene Pardee and A. G. Forney. The record shows that all the defendants were served with summons, that True Richardson and A. G. Forney filed separate answers, and that the Pardees, made default. A trial was had with a jury, and a verdict rendered in favor of the plaintiff. On this verdict j udgment was entered against the defendants for the recovery of specific personal property described in the verdict, for the value thereof in case a return of such property could not be made, and for costs of suit.
The proceeding in error from the District Court was instituted by True Richardson alone, and the Great Western Manufacturing Company, only, was made defendant in error. The other defendants took no part in the preparation of the case-made, which was not served on them, and have not been made parties to the proceeding in error.
It is argued here, in support of the ruling of the Court of Appeals, that it does not affirmatively appear that the other defendants would, be prejudicially affected by a reversal of the judgment; that True Richardson was the only necessary defendant in the lower court, and that the entry of judgment against the Pardees and Forney was a mistake which might be corrected in that court. The answer to these claims is obvious. We can no more assume that the trial court would release these parties from the judgment by a nunc pro tunc entry than that it would release Richardson on his motion. It does not appear that a correction of the journal entry has ever been asked for, and the absent defendants do not seek a reversal of the judgment. The claim that Richardson was the only person against whom judgment ought in any event to have been rendered, indicates only a greater necessity for making the other defendants parties in the appellate court; for, if Richardson should obtain a reversal of the judgment against him and be successful on the second trial, it would leave the Pardees and Forney liable to the plaintiff for the return of the property, or for its full value, without any remedy over against Richardson. The rule is well settled, and has often been enforced by this Court, that all persons against whom a joint judgment has been rendered must be made parties to a proceeding to reverse such judgment, and that a failure to join any of them either as plaintiffs or defendants is ground for the dismissal of the case. A long line of reported cases might .be cited in support of this proposition, but we shall refer to only the following: McPherson v. Storch, 49 Kan. 313; Loan Co. v. Lumber Co., 53 id. 677; Norton v. Wood, 55 id. 559; Investment Co. v. National Bank, 56 id. 49; Bain v. Conn. M. Life Ins. Co., 3 Kan. App. 346; Bonebrake v. Ætna life Ins. Co., 3 id. 708. Many cases have been dismissed on this ground which are not reported.
The judgment of the Court of Appeals is reversed, and the petition in error is dismissed.
All the Justices concurring. | [
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Johnston, J.
This proceeding was brought to review the rulings of the District Court in the allowance made for services of an assignee and two others who assisted in the settlement of an assigned estate. In February, 1891, the Security Investment Company of Cawker City, Kansas, made an assignment for the benefit of creditors, and W. T. Branch was duly appointed assignee. On March 9, 1892, the assignee filed his first annual report and undertook to give an account of his trust up to and including February 8, 1892. When the report came on for hearing, the Court determined that an additional notice should be given in the official paper of the County, and the hearing was •continued for that purpose. A number of the creditors appeared and objected to certain items of the report, alleging that some of the claims were extravagant and the expenses unnecessary and wasteful. Upon motion of the creditors the assignee was required to make his report more definite and certain in respect to certain items in the expense account, one of which was for salaries and attorney’s fees, $11,560.64. When the claim for salaries and attorneys’ fees was itemized, it developed that it was made up in part of the salary of the assignee for one year at $250 per month — $3,000; to V. H. Branch, who was called general assistant, one year at $175 per month — $2,100; and the charge in favor of D. M. Thorp for attorney’s fees and expenses was $4,689.02. An extended inquiry was made, and, after much testimony and argument were submitted, the Court found that $200 per month was reasonable compensation for the assignee, and a reduction of $600 from the charge, made in his accounts for the year was ordered. It was found that $125 per month was fair compensation for the services of V. H. Branch, and a reduction of $600 in the charges made in the accounts in his behalf was ordered. It was further found that reasonable and fair compensation for the services performed by D. M. Thorp, attorney on behalf of the estate, for the year, was from $2,000 to $2,500, and that a reasonable allowance, including expenses and hotel bills, was $2,689, making a reduction in the bill of Thorp in the sum of $2,000. An item of $6.25 for proxies was found to have been erroneously charged to the estate, but all other items charged in the accounts of the assignee were approved. As a conclusion of law it was found that the amount charged in the accounts of the assignee should be allowed as reported, less the sum of $3,206.25.
Several objections are made to the rulings and the final decision of the Court. It was the duty of the Court, whether objections were made by the creditors or not, to supervise the management of the estate and to examine the accounts of the trust. The statute requires that the assignee shall annually exhibit upon oath a statement of the accounts of the trust, with proper vouchers, to the District Court. It is the province of the Court to require the giving of such notices of the hearing thereon as the circumstances of the case seem to require. ¶ ¶ 357, 359, Gen. Stat. 18S9. The objecting creditors were entitled to be heard, and the assignee has no cause to complain that he was required to give an additional notice of the hearing upon his accounts, nor of the order requiring him to itemize several of the charges in his report.
An objection is made that the Court refused to require the objecting creditors to give security for costs, but it has recently been held that such refusal is not reversible error. Caldwell v. Matthewson, ante, p. 258.
The assignee acts under the direction of the District Court, and the allowances for salaries and attorneys’ fees are largely within the discretion of the Court. ¶387, Gen. Stat. 1889. The assignee is entitled to reasonable compensation for the services performed and the responsibilities assumed, but he cannot be permitted arbitrarily to fix his own compensation or that of those who assist him. It is to be ascertained and awarded by the Court upon the rendering of his accounts; and, from an examination of the testimony in the record, we cannot say that injustice was done in the allowances that were made. Aside from the testimony in the case a large part of the services of the assignee, V. H. Branch, and D. M. Thorp, were performed under the eye of the Court and in the courts of the counties over which the District Judge presided. The Judge was, therefore, much better qualified to weigh the testimony and to determine what is reasonable compensation than we are, but a mere reading of the testimony leads us to the conclusion that fair compensation was awarded.
The fact that the Assignee obtained the approval of the Court of some charges shortly after the assignment was made does not prevent a re-examination of the accounts for the entire year, nor conclude the creditors or the Court as to the amount of the allowances to be made. It appears that the approval of the Court to these charges was obtained from the Judge at chambers, without notice to the creditors and upon ex parte hearings. Such orders can have little binding force, but in any event they .do not deprive the Court of the right and power to make an equitable adjustment and a proper allowance for the services of the complaining parties for the entire year. The objections to the testimony are deemed to be im material, and none of the errors assigned can be sustained.
The judgment of the District Court will be affirmed.
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Johnston, J.
The defendant was prosecuted upon a charge of obtaining from James Fritz, a bay gelding by fraud and false pretenses. On March 9, 1895, two men appeared at the home of Fritz and entered into negotiations with him for the purchase of a gelding. One of the men was J. C. Goggerty, a liveryman, who had resided a short distance away from Fritz for some time and with whom Fritz had been acquainted. The other man represented himself to be I. T. Jones, of Kansas City, and to be engaged in the business of buying horses. He was a stranger to Fritz and had never been seen in that community before. After some preliminary negotiations Jones purchased the gelding at the price of $50. Jones then wrote out a check on the Interstate National Bank of Kansas City and offered it to Fritz in payment for the gelding. Fritz made some objection to the taking of the check, when Jones remarked that the check was good, and Goggerty, with whom Fritz was acquainted and in whom he had confidence, also stated that the check was good and that he had also sold a horse to Jones and taken a check in payment therefor. Relying upon these representations Fritz accepted the check and delivered the horse, which was taken away by Jones. On November 17, 1895, Oliver McCormick was arrested as the person who represented himself to be I. T. Jones in the purchase of the gelding, and charged with the crime of obtaining it by "false pretenses. At a trial had at the March term, 1896, the defendant was convicted, and the penalty adjudged was imprisonment at hard labor for a term of four years. He appeals, and contends that the giving of the check, and the representation that he had money on deposit in the bank, if false and fraudulent, is not an offense within the meaning of section 94 (¶ 2228 Gen. Stat. 1889) of the Crimes Act. It is argued in his behalf that the drawee could in no event maintain an action on the check, but is presumed to have taken it on the responsibility of the drawer, and therefore the fact that the check was without value did not affect the legal rights of Fritz; and further, that, if Fritz has a good cause of action against a solvent party, he has not been defrauded. The information charges that Goggerty combined and conspired with the defendant in making false representations and in perpetrating the fraud, but it was not alleged or shown that either of them was insolvent or unable to respond in a civil action for damages resulting from their fraudulent action. An essential element of the offense is that the person who parts with his property is in fact defrauded to his injury. In addition to the false pretenses there must be an intent to defraud. The pretenses must be used for the purpose of perpetrating the fraud, and a fraud must be actually accomplished by means of the false pretenses. The false representation that the defendant had money in the Bank with which to pay the check operated as an injury and a fraud upon Fritz. It was in the nature of a cash transaction, and the check was taken as the equivalent of money. It therefore necessarily resulted in an injury to Fritz, regardless of how solvent defendant or Goggerty may have been. Fritz did not sell his gelding upon a promise to pay, nor was it his purpose to extend a credit to the defendant. The check was not taken ais a promissory note or as a security for future payment. The defendant pretended to set apart $50 as money out of a special fund; and, upon the faith that the money was there as represented, Fritz .accepted the check and parted with his property. It was not done upon the faith that the parties dealing with him were solvent and might be compelled by civil action to j)ay the amount of money named in the check. In this respect it is substantially similar to the case of The State v. Decker, 36 Kan. 717. There it was an .attempt to obtain property by means of a false and fraudulent draft that was indorsed by one Brady, and there was no evidence tending to show that Brady was insolvent. It was claimed that if Brady was solv-ent the parties could not have been defrauded. It was held that the claim, although plausible, was not sound ; that the draft was not what it was represented to be, was not drawn upon an actual bank nor for money belonging to the drawer or subject to the payment of his draft; and that it was a fraud upon the owners to .attempt to procure their property without delivering to them just such a draft as it was represented to be; that they wanted a draft which was the equivalent of money, and were not seeking to purchase a lawsuit-against Brady, however good he may have been financially. It was decided that it was a fraud upon the-parties to give them something different from what it appeared to be, different from what it was represented to be, and not as valuable as it was represented to be. So here, Fritz was not trading his horse for a mere chose in action, nor for the right to bring a lawsuit against defendant or Goggerty ; but rather was selling it for money supposed to be set apart by and subject to the check. It is clear that he was defrauded to his injury. If he had sold the gelding upon credit, and taken notes or other collateral to-secure the payment of the debt, a different question would arise. If some of them were bad, or not as good as represented, the question would still remain whether the good were not sufficient to secure the payment of the debt; in other words, whether he had suffered any injury by reason of the false pretenses. Unless the person parting with the property is defrauded, or unless it has been obtained to the injury of some one, it does not amount to a crime. This was the view taken in The State v. Clark, 46 Kan. 65, and The State v. Palmer, 50 id. 318; cases that are greatly relied upon by the defendant. In this case, however, no credit was extended. A fraud and an injury were suffered by Fritz, and, as to -these features-of this prosecution, the cases last cited do not apply.
The contention that there was no competent evidence to show that the check was bad cannot be-sustained. A certificate of protest was introduced which was evidence of due presentment, demand and refusal to pay. ¶494 Gen. Stat. 1889. In addition to that, it -was shown by the State that the check had never been paid; and further, there was testimony given by the cashier of the bank that Jones had no money there subject to his check, and in fact had no account with the bank. This information was based principally upon the examination which he made of the books. Being the manager of the bank, and the books being kept under his supervision, he was competent to state the facts to which he testified. A book purporting to be a list of the depositors of the bank was introduced in evidence, and neither the name of Jones nor McCormick appeared in the list. There was an objection to the admission of the book upon the ground that it had not been proved to be correct. It was identified by the cashier under whose supervision it was kept, and we think it was admissible for the purpose of showing that Jones was not upon the list of depositors.
It is next contended that the false representations alleged to have been made by the defendant were not relied upon by Fritz, and that he did-not part with his gelding on the strength of them. In his testimony Fritz stated that he relied on the statements made by the defendant and Goggerty, but principally on those made by Goggerty ; and upon further interrogation he stated that he relied principally, if not altogether, upon the statements of Goggerty. Goggerty was present assisting the defendant in purchasing the gelding, and the representations made by Goggerty in the presence and hearing of the defendant, which were in effect an affirmation of the representations made by the defendant, without objection or explanation on the part of the defendant, bind him to the same extent as if he had himself made them. According to the testimony, Goggerty was in effect the mouthpiece of the defendant; and the representations made by him with the approbation and concurrence of the defendant under the circumstances stated, if relied upon by Fritz, make the defendant responsible the same as-if the representations had been made by the defendant.
Several of the instructions are criticised, and complaint is made of the refusal of some that were requested. We think the charge of the’Court fairly presented the case to the jury and that none of the objections made to the rulings of the Court in charging the jury warrant a reversal.
A motion for a new trial was made,o and one of the grounds was misconduct of the jury. On the hearing of the motion the defendant offered to show that, after the jury had retired and were deliberating upon their verdict, one of the jurors stated that the defendant had been convicted upon a former trial; and also that during their deliberations a juror stated, as a fact, that the defendant had defrauded one Keifer, who had testified in behalf of the State, out of some cattle while in the State of Colorado. We think the Court below erred in excluding this evidence. While the testimony of jurors cannot be received to show matters which essentially inhere in their verdict, they may testify to facts which transpired within their own personal observation, and which transpired in such a manner that others as well as themselves would be cognizant of them and could testify to them. Gottleib Bros. v. Jasper & Co., 27 Kan. 770; A. T. & S. F. Rld. Co. v. Bayes, 42 id. 609. The testimony offered was of an important and prejudicial character and may have improperly influenced the verdict. There is nothing in the record to show that the statements, if made, did not prejudice the rights of the defendant; and in such cases the burden of proving that the defendant did not suffer prejudice by such improper influence rests upon the prosecution. The State v. Lantz, 23 Kan. 728; The State v. Woods, 49 id. 237.
The bailiff who took charge of the jury when the cause was finally submitted was not sworn as the statute requires, and this is urged as a ground for anew trial. It appears that when the bailiff was originally appointed by the Sheriff the ordinary oath of office was administered to him, and also before the commence-m ent of the trial he was sworn as follows :
“You do solemnly swear that you will support the-Constitution of the United States and the Constitution of the State of Kansas and faithfully discharge the duties of bailiff of this court, and not let the jury in this case depart or separate without the order of the court; so help you God.”
No oath was administered to the bailiff after .the cause was submitted and before the jury retired for deliberation. The oath that was administered fails to meet the requirements of the statute. ¶5305 Gen. Stat. 1889. The oath taken before the trial omitted the requirement to keep the jury together in a private- and convenient place, without food, except such as the Court should order, and also that he should not permit any person to speak or communicate with them, nor do so himself. These provisions were made to protect the jury from improper influences, and were deemed so necessary to the proper administration of the law that they were incorporated into the statute. The oath is important in its nature, and, being specifically required, cannot be disregarded.
For the reasons mentioned, the judgment will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Johnston, J.
This action was brought by M. Frank Slattery against the Railroad Company to recover for personal injuries sustained by him in a collision between a switch-engine upon which he was riding, and a push-car, in the yards of the Railroad Company at Wichita. Pie was employed by the Company as a yard-clerk, and his duties consisted mostly of ascertaining the numbers of freight-cars upon their arrival in the yards, making a list op them and marking their points of destination. He received a list of the cars in each train from the conductors of the trains as they arrived, and from such list personally examined the cars mentioned therein ; and for such purpose he was obliged to visit all parts of the yards, which were about two miles in length. On account of the length of the yards he frequently rode on the switch-engine from one part of the yards to another. On April 5, 1891, he had occasion to go to the southern part of the yards for the purpose of ascertaining the numbers of the cars and marking the same. He boarded the switch-engine, which was backing south, pushing three or four cars. There was a foot-board around the tank of the switch-engine, and he took a position on it on the east side of the tank and near the rear end. The engine then proceeded southward, stopping to place some of the cars on different tracks ; and when going at about the rate of 10 miles an hour it came in contact with a push-car, which was upon the side of the track, and a portion of which projected over so far that it caught Slattery’s foot and injured it so that amputation of a portion of it was necessary. The push-car had been left in the yards two days before, and carried a safe distance from the track, where it was blocked so that it could not run onto the track. On the day of the accident and about 15 minutes before it occurred 6 or 8 boys, ranging from 9 to 13 years of age, who were in no way connected with the Railroad Company, took the car from its position and attempted to put it upon the track ; but, being discovered, left it close to the track and ran away. It was an ordinary push-car, without propelling force, with two handles at each end extending out therefrom so that it could be put on and off the track. The engineer saw the push-car a short time before the engine collided with it, but states that he did not observe that it was so close to the track as to be dangerous. At the same time a switchman named Wagner, one of whose duties it was to keep a lookout for obstructions on the track, was standing near the end of the tender. The engineer testified that Slattery and Wagner were between him and the push-car and to some extent obstructed his view. The jury found that the. Company was guilty of culpable negligence : “First, leaving push-car unlocked ; second, negligence on the part of the engineer in not stopping engine after observing push-car ; third, negligence on the part of Mark Wagner in failing to see the push-car in the performance of his duties.” The jury returned a verdict in favor of Slattery for $3,000 ; and from the special findings -it appears that $250 was allowed for the pain suffered, and $2,750 was allowed for permanent injuries.
In our view the first ground of negligence is not sustained. The push-car was not in itself a dangerous thing. It was placed at a safe distance from the track and was fastened and blocked in the usual way that such cars are secured. It was a cumbrous, heavy thing, weighing from 500 to 1,000 pounds, not easily moved ; and, not having any propelling appliances, children would not naturally be attracted by it any more than they would by a mowing machine, a road-wagon or other wheeled implement that a farmer would leave near the roadside without thought of risk or liability. It has never been regarded as necessary to house or lock them up, and the Railroad Company had exercised that degree of care respecting this one that is ordinarily exercised in caring for such cars when not in use. The Companjr cannot be held responsible for the unlawful acts of third parties in placing obstructions upon its track without its knowledge or consent, unless it should be where its negligence had in some way induced the placing of obstructions upon the track. In the nature of things the Company liad no reason to anticipate that the push-car would be moved by third parties upon or dangerously close to the track, and in the absence of other negligence it would not be liable for injuries resulting from such removal. Robinson v. Railway Co., 7 Utah, 493.
It cannot be said, however, that the Company was free from negligence in failing to stop the engine before the Collision occured. It Was the duty 0£ engineer, as well as the switch-man, who was riding near the end of the tender, to keep a lookout for obstructions upon the track. Whether the engineer and the switchman in the dis charge of their duties should have observed the obstruction in time to have stopped the engine and avoided the injury, was a matter for the determination of the jury. The engineer testified that he saw the push-car before they reached it, and that he could have stopped the engine in time to have prevented the injury if he had known that it was dangerously close. He admits that he saw it when 40 or 50 feet away, and that he could have stopped is shown by his statement that he only ran 30 feet after striking the push-car. As an excuse for not observing the dangerous proximity of the push-car, he states that his view was obstructed to some extent by the plaintiff: and Wagner, who were standing on the foot-b.oard of the tender, in front of him. It appears, however, that the engineer from his higher position did see the push-car, and it cannot be said as a matter of law that he should not have observed that it was too close to the track to permit the engine to pass. Wagner, who occupied a front position on the hind end of the tender as it advanced, was in a position to see the obstruction, and it was his duty to keep a lookout for the same. He gave no signal to the engineer, and probably failed to observe the danger until the collision occurred. Other duties devolved on him which may have engaged his attention at the moment, but whether he was in the exercise of reasonable care in keeping an outlook was a question for the jury. The obstruction, however, was actually seen by the engineer in ample time to have stopped the engine with the appliances at hand. Could he by ordinary care have seen and appreciated the danger, and could he by due attention and prompt action have avoided the injury? Men of reasonable minds might draw different inferences from the testimony, so that ac cording to the conclusion of fact reached by one there would be culpable negligence, while that reached by another would be that reasonable care had been exercised. In such a case the question of fact is for the jury. Beaver v. A. T. & S. F. Rld. Co., 56 Kan. 514. It is contended that from the position Slattery occupied there was nothing to prevent him from seeing that the push-car was close to the track, and that as he was familiar with the signals used in the yards it was his duty to signal the engineer in time to avoid the collision and injury. It appears, however, that his duties required him to be on the lookout for cars as he passed down the yards ; and he states that he was engaged in looking for cars all the time while he was on the engine, that he had no opportunity to look ahead, and that he did not know anything of the push-car until they came in contact with it. If his duties required him to look in another direction, and he was so engaged at the time, it cannot be said that he was negligent in not observing the car.
It is further contended that Slattery assumed an obviously dangerous position on the foot-board of the switch-engine, and that he was riding there in violation of one of the rules of the Company. The rule is : "No person will be permitted to ride on an engine excepting the engine man, fireman, and other designated employees in the discharge of their duty, without a written order from the proper author-Ry.” While he appears to have had no written authority to ride, he doubtless was warranted in doing so by the well estabtablished custom of the yards and by the sanction and approval of those in charge of them ; in fact, in the present instance, he was directed by the foreman to step upon the engine and ride down to the end of the yards for the purpose of finding and marking certain cars. For several years he had ridden back and forth upon the engine, and the yardmaster, his superior officer, had directed him to go upon the engin whenever it would take him to his work faster than he could get there by walking. He had ridden on the engine in the presence of the superintendent and apparently with his sanction and approval. Ordinarily, the wilful disobedience of a rule should be held to constitute negligence ; but where the rule is habitually disregarded, and a different course has long been pursued by employees with the knowledge and approval of the managing officers of the company, the rule must be regarded as inoperative. K. C. Ft. S. & G. Rld. Co. v. Kier, 41 Kan. 662; U. P. Rly. Co. v. Springsteen, 41 id. 724. We cannot hold as a matter of law from the testimony that Slattery was guilty of contributory negligence.
The charge of the Court fairly presented the case to the jury, and none of the questions upon the instructions or findings of the jury seem to require special attention.
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. :
The first ground of error discussed in the brief is in overruling the demurrer to the petition. It is true that the petition is very indefinite in its averments, but it is not so indefinite as the so-called demurrer, for this fails to challenge the sufficiency of the petition on any particular ground. It raised no question to be passed upon by the court. We find nothing substantial in the complaint made of the rulings of the court on the admission and rejection of testimony. The evidence before the court was practically the same as that on which this court held the plaintiff to be entitled to recover when the case was here before. It is therefore unnecessary to consider its sufficiency.
It is insisted that the court erred in rendering a general judgment against all of the defendants jointly for the value of the entire stock of goods. Attention is called to the appraisements made in the different actions — the largest amount stated in any one appraisement being that in the case of M. D. Wells & Co., in which the attached property was valued at $340. It is insisted that if the defendants were liable at all they were liable sever-ally for the amount or goods attached m the actions brought by them respectively, and not jointly for the whole stock. The plaintiffs in error rely on the appraisements to show what goods were attached in each action. On examination, we find that the only description of the property taken is “Boots and shoes.” There is nothing whatever to indicate numbers or quantity except the valuation made by the appraisers. But independently of the defect in the proof to sustain the position of the plaintiffs in error, we think there was but one action, and that a single judgment was properly rendered against all of the defendants. When the case was originally brought the sheriff bad seized under various writs, none of which ran against the plaintiff, a stock of merchandise on which she had a valid chattel mortgage, and of which she was then entitled to the possession. She had a single cause of action against the sheriff for this property. The defendants of their own volition took the place of the sheriff as defendants. Just what they did with the property is not shown, nor is it important. The plaintiff was deprived of it by the action of the sheriff. When the defendants were substituted they took the place of the sheriff in the suit, and undertook to defend his possession of the entire stock; They had no right to divide up the suit pending between the plaintiff and the sheriff, and convert it into a number of suits against each of them separately. It still continued a single demand, and at the conclu sion of the trial a single judgment against all of the parties who had voluntarily shouldered the sheriff’s load was proper.
Complaint is made because the individual names of the members of the various firms are stated in the judgment, and because they are all made jointly liable. It is conceded that there is nothing in the pleadings to indicate who the members of the firm of Tootle, ITosea & Co. are, and that the petition names no one as defendants except “Tootle, Hosea & Company et cd.” The record before us is very defective in many particulars, but we think it fairly shows that all these different firms voluntarily came into the case as defendants, and if so, of course the members of the firms were individually liable.
The judgment is affirmed.
All the Justices concurring. | [
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Martin, C. J.
I. A preliminary question is raised by the defendant in error, who claims that the certificate of the Judge to the case-made is insufficient on its face ; and, further, that the defendant was not present personally nor by counsel at the settlement of the case-made, and had no notice thereof. The certificate is informal in some respects, but we think it sufficient, for it appears therefrom that the Judge settled and signed the case-made, and caused the same to be attested by the Clerk under the seal of the Court; and these are the chief requisites prescribed by section 548 of the Civil Code. The evidence also shows that the defendant, through his counsel, agreed that the case-made might be settled in his absence. The motion to dismiss is therefore overruled.
II. The defendant in error further claims that the instrument called a “chattel mortgage” from Daly to R. L. McDonald & Co. is void upon its face for uncertainty ; and, if not so on its face, then i*5 is so under the findings of the Court that no note was executed, and that the indebtedness was upon an account,' not for $2,000, but for a smaller sum. After much consideration, we are led to adopt the view of the learned trial court in this respecr. Although both Daly and R. L. McDonald & Co. are mentioned as parties of the first part in the first clause of the mortgage, yet we think it sufficiently appears that Daly, whose name is first mentioned, and who alone signed the instrument, was the party of the first part, and that R. L. McDonald & Co. were the parties of the second part to whom the sum of $2,000 was to be paid by Daly. This instrument was executed in the absence of R. L. McDonald & Co. and their agent or attorney. Daly did not know the exact amount due, and so fixed it at $2,000, perhaps intending to make a note for that amount corresponding in form with that mentioned in the mortgage. The mortgage was given to secure an indebtedness for goods sold and delivered, and, the Court having found that no actual fraud was intended by either party in this respect, we must hold that it was not void for any of the reasons stated in this paragraph. That it was not vitiated because of excess in the afnount, no fraud being intended, see Corbin v. Kincaid, 33 Kan. 649, 652; Hoey and others v. Pierron, 67 Wis. 262, 268. As to the parties, mortgagor and mortgagee, the instrument itself is sufficiently plain ; and if we apply the same rule to the consideration as that adopted in Griffiths ¶. Wheeler & Barber, 31 Kan. 17, and other cases decided by this Court as to the description of the property — namely, that with the inquiries which the mortgage itself would suggest, any person could ascertain the same —we think this mortgage is not void because the indebtedness was upon an account for goods and not upon a promissory note ; for this fact could have been ascertained by inquiry of either party to the instrument. And the fact that the note copied was not complete, but in blank, would be rather suggestive that the nature of the consideration and its amount were not exactly stated.
III. We are forced to differ with the learned trial judge as to the effect of taking a third mortgage to secure a bona fide indebtedness subject to-two others afterward adjudged by a court-to be fraudulent and void, there being no-pretense that the third mortgagee knew anything of the fraudulent nature of the two mortgages to which his own was made subject. The theory of the defendant in error and of the trial court is, that when the Coroner, representing the attaching creditors, succeeded in avoiding the two prior mortgages, he took the place of the holders thereof and came in ahead of the third mortgagee. It is certain,, however, that R. L. McDonald & Co. acquired on the property a chattel-mortgage lien which was three days prior to the liens of the attaching creditors ; and we cannot understand how this lien was either divested by or postponed to the subsequent attachments„ It is true that R. L. McDonald & Co. may have profited by the contest made by the Coroner representing the attaching creditors, but this was a legitimate advantage, and such as often takes place. We are cited to no authority by the defendant in error which sustains his position, and we know of none. On the contrary, there are several decisions holding the opposite view, either directly or inferentially. Eddy v. Ireland, 6 Utah, 147; Hoey and others v. Pierron, supra; Smith v. Post, 1 Hun, 516; Tronstine v. Lask, 4 Baxt. 162; 2 Cobbey, Chat. Mort. § 1044.
For the foregoing error, the judgment must be reversed, and the cause remanded for further proceedings in accordance with this opinion.
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The opinion of the court was delivered by
Allen, J. :
The principal question presented in this case has been disposed of in another case between the same parties, just decided. The only further question necessary to be now considered arises on the eleventh instruction given by the court to the jury. If nothing more had been given than is quoted in the brief of counsel for appellant, error would have been committed, but the whole instruction is as follows :
“ One of the defenses made by the defendant in this case is what is known as an alibi; that is, that the defendant was in another place at the time of the commission of the crime. This is a proper defense, if proven ; and if, in view of all the evidence, the jury have a reasonable doubt as to the presence of the defendant at the time and place when the crime was committed, they should give the defendant the benefit of the doubt, and find him not guilty.”
This instruction, taken as a whole, did not cast on the defendant the burden of proving his absence from the place where the crime was committed, but distinctly told the jury that if they were in doubt as to his presence they should give him the benefit of that doubt. It would be hypercritical to hold this instruction erroneous merely because a disconnected portion of a sentence would be erroneous standing by itself.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Martin, C. J-.:
This was an action of ejectment commenced March 5,1890, by the plaintiff in error for the recovery of the northeast quarter of section 33, township 8, range 16, together with rents and profits. It was alleged in the petition that a prior action had been commenced on June 10, 1887, by the plaintiff for the recovery of the same land from the same defendants, except G. L. Reid, and that said action was dismissed by her without prejudice on March 22, 1889. The defendants, including G. L. Reid, filed a joint answer in the present action, alleging numerous defenses, the second being to the effect that the plaintiff’s only claim of title was by a tax deed to John C. Douglass and a deed of John C. Douglass and wife to the plaintiff, made without consideration, and with the fraudulent intent to hinder and delay the collection of the taxes assessed against the land, and to frustrate the due execution of the laws providing for the assessment and collection of taxes; and that said tax deed was null and void by reason of a failure to comply with the laws regulating the assessment and taxation of lands and their sale for delinquent taxes. The third defense was the bar of the. statute of limitations, and the fourth was to the effect that said land was subject to taxation for 1874; and the taxes duly assessed and levied thereon being delinquent for 'that year, the same was duly sold at tax sale for said taxes on September 7, 1875, on which sale a deed was executed to the defendant, Luther M. Myers, the holder of the tax-sale certificate, on October 12, .1878, which was filed for record on the same day, and that by mesne conveyances the title of said Luther M. Myers had- been vested in the defendant, George L. Reid. The fifth defense was of the same nature as the fourth, except that the sale was on September 4, 1883, for the taxes of 1882, S. K. Linscott being the purchaser of the northeast quarter of said quarter-section for the taxes on the entire tract, and on September 7,1886, the said S. K. Linscott obtained a deed therefor, which was recorded in September, 1886, and that by mesne conveyances the said title liad been vested in George L. Reid. The reply was a general denial of the second and third defenses, and a general denial of all the other defenses, excepting it was admitted that the land was subject to taxation for 1874 and 1882 ; that it was sold for said taxes at the tax sales for said respective years ; that a deed was issued to said Myers on said sale of 1875, and to said Linscott on said sale of 1883; and that by certain mesne conveyances these claims of title had been vested in the said George L. Reid, who was in the actual possession of said premises.
I. After introduction of the evidence on the part of the plaintiff, the defendants demurred thereto. This demurrer was overruled, and the defendants then offered their evidence, upon the close of which, on request of the defendants, the court instructed the jury to return a verdict in their favor. The case being brought here by the plaintiff, the defendants now claim that they were entitled to judgment on the pleadings. There was no attach upon them by motion, demurrer or objection to the introduction of testimony, and the defendants did not ask for judgment on the pleadings. Under these circumstances, they must be liberally construed in favor of the plaintiff. It is urged that the two tax titles of the defendants having been specially pleaded in the answer, and the plaintiff admitting by her reply that the land was subject to taxation, that it was sold for non-payment of taxes, that tax deeds issued on such sales, and no defect being pointed out in the reply, their validity must be taken as admitted. The plaintiff did not admit, however, by her reply that the taxes had been duly assessed and levied upon the property, nor that the land was duly sold for delinquent taxes, and her general denial was sufficient to raise an issue as to said facts; and, in the absence of attack by any of the methods hereinbefore indicated, this was a sufficient basis for the testimony offered on the part of the plaintiff, showing, among other things, that some of the taxes of 1874 and subsequent years up to the date of the tax deed of 1878 were illegal, which proof was fatal to the tax title, unless saved by the bar of the statute of limitations. As to the tax deed of 1886 upon the northeast quarter of the tract in controversy, the plaintiff introduced no evidence whatever, and if a demurrer to the evidence or motion for verdict and judgment as to that portion alone had been interposed, we think it ought to have been sustained.
II. The claim of the plaintiff was under a tax deed to John C. Douglass, recorded September 8, 1868, and embracing the taxes of 1862, 1863, 1864, 1865, 1866, 1867, admitted to be prima facie valid, and a quitclaim deed from said John. C. Douglass and wife to the plaintiff, of date April 13, 1874, duly executed and acknowledged the same day, in consideration of $5 and of love and affection, and by way of advancement to the plaintiff, -who was born August 5, 1868. This deed was not recorded until April 28, 1877. The first deed under which the defendants claim was upon a sale made September 7, 1875, for delinquent taxes of 1874, the same being bid off by the county treasurer, and the sale certificate, on October 27, 1876, assigned to said L. M. Myers, the taxes being paid until October 12, 1878, when the deed was executed, acknowledged, and recorded, and when the said Myers went into possession of the land, the same having ever been prior thereto vacant and unoccupied, and the defendants have ever since been in actual possession thereof, and they also paid the taxes for 1878, 1879, 1880, and 1881. It is claimed by the defendants that the failure of the plaintiff to place her deed from John 0. Douglass and wife on record from the time it was executed, April 13, 1874, until April 28, 1877, operated to give priority to the defendants' title, which was inchoate during that period, and that by force of § 21, chapter 22, General Statutes of 1868, relating to conveyances, the plaintiff’s claim to the land is void as against the defendants. On the other hand, it is contended by the plaintiff that the rule of caveat emptor applies to purchasers at tax sales, and that said § 21 has no application to those who claim under an independent .title not derived from the grantor in the unrecorded deed. The precise point has never been settled by this court, perhaps the nearest approach to it being the cases where the contest has been between attaching creditors and the-claimants under unrecorded deeds or mortgages.. (Holden v. Garrett, 23 Kas. 98 ; Lee v. Bermingham, 30 id. 312 ; N. W. Forwarding Co. v. Mahaffey, 36 id. 152.) But the analogies between that class of cases and the one now under consideration are not close, and we must decide the point as of first impression. Section 92 of the tax law then in force (Gen. Stat., of 1868,. ch. 107,) was as follows :
‘‘ When any lands or town lots are offered for sale for any taxes, it shall not be necessary to sell it as the property of any person or persons ; and no sale of any land or town lot for taxes shall be considered invalid on account of its having been charged on the roll in any other name than that of the rightful owner; but such land must be, in other respects, sufficiently described on the tax-roll, and the taxes for which it is sold be due and unpaid at the time of such sale.”
And by the form of the deed prescribed by § 112 of the same act, the title -was made subject “to all rights of redemption provided by law.” This clause was sufficient to save all the redemptive rights of minors under § 105 of the act. The plaintiff was the owner of this land by unrecorded deed before the taxes of 1874 were levied. The taxes, although a lien upon the land, were in no sense a personal charge against her. Purchasers at tax sales must look entirely to the real estate for their security. The tax-roll may or may not show the name of the owner, and this court has held that the omission of the name of the person to whom a tract of land is assessed from the notice of the tax sale, and from the notice of the expiration of the time for redemption, will not invalidate the title conveyed by the tax deed. (Shoup v. C. B. U. P. Rld. Co., 24 Kas. 547.) Prior to the transfer act, being chapter 145 of the Laws of 1877, the statement of the names of the owners of land on the assessment-rolls must have been very defective, and we presume little attention was paid to such names by purchasers at tax sales.. The security being upon the land, and the owner bound to pay the taxes, penalties and a high rate of interest in order to redeem, investors at tax sales were not likely to go to the records in the office of the register of deeds to ascertain the ownership before making their investments. Under these circumstances, we think a minor who owned the land by deed unrecorded when the taxes were levied and sale made, but recorded before the execution of the tax deed, would not be cut off bj^ said § 21 of the act relating to conveyances from redeeming the land, nor from asserting her right thereto by action.
The defendants further contend in their brief that the plaintiff was not the owner at the date of the tax sale of 1875, because, although the quitclaim deed was executed in 1874, yet there was no proof of delivery of it at any time prior to the placing of it on record; but we think it sufficiently appears that the deed was delivered on the date of its execution. At least counsel for defendants so treated it in their objection to its introduction, wherein they stated that said deed was ‘ ‘ dated and delivered on the 13th day of April, 1874, and not recorded until the 28th day of April, 1877.”
III. It appears that on June 14, 1882, John.C. Douglass, as agent for the plaintiff, made an offer to said L. M. Myers, then county treasurer, to redeem the land, and tendered to him $223.70 in lawful money for that purpose ; the tender being made on behalf of said minor child, and the treasurer so informed at the time, but he refused the tender. The defendants claim that the amount of the tender was insufficient under § 105 of said tax law for 1868, and this is based upon the assumption that interest on the amount paid at the tax sale and on subsequent taxes should be computed up to the date of the deed, and that this should form a new principal on which interest should be reckoned thereafter. The words of the statute do not, in our opinion, authorize this construction, and failing to do so, we would not feel warranted in giving t.lie language an interpretation which ■would allow interest upon interest. Computing interest upon each payment down to June 14, 1882, including the cost of deed and recording the same, we find that the tender was sufficient in amount.
IV. The plaintiff was a minor until August 5, 1886. This land was conveyed to her April 13, 1874. It was sold for taxes September 7, 1875. The certificate was assigned to L. M. Myers, October 27, 1876, and the tax deed was executed October 12, 1878, when the said L. M. Myers entered into possession of the land, which had theretofore been vacant and unoccupied. Although a minor, her right of action would have been barred within five years thereafter if no offer to redeem had been made, or had the tender been insufficient in amount. ( Goodman v. Wilson, 54 Kas. 709, and cases cited.) But a sufficient offer to redeem with tender of payment was made June 14, 1882, and the first action was commenced June 10, 1887, which was in time under § 141 of the tax law, and as she commenced the present action within less than one year after the dismissal of the first, we must hold that her rights are saved by §23 of the code.
Some other questions are raised in the case, but the -record is not entirely satisfactory thereon, and we deem it unnecessary to decide the same at this time.
The judgment will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
PIoktoN, O. J. :
It is admitted in this case that the money deposited in the Pawnee County Bank was a trust fund, and never belonged to the bank. It is further admitted that the assets of the bank came into the hands of M. A. W. Jordan, as assignee, impressed with the trust. '(Myers v. Board of Education, 51 Kas. 87.) It seems also to be admitted upon the part of the defendant below that it would have been possible for the plaintiff, at the time the assignee took charge of the assets of the Pawnee County Bank, to have maintained this action to subject all of such assets to the payment of the trust fund ; but it is contended that the city had another remedy, which it elected to pursue, and having made a choice between two inconsistent remedies, it is estopped to claim the other. The contention is that, after the city received notice of the time and place of allowing demands against the estate of F. J. Mathias, the defaulting treasurer, due proof of the account of the city against Mathias was made for the city of Larned; that this was allowed to it as a general creditor; that subsequently the city, as a creditor of the bank, received a dividend of $464.51; that it still retains this money, and cannot now claim the deposit made by F. J. Mathias as a trust fund.
If it were true that the city, through its. proper of-‘ ficials, had presented to the assignee of the Pawnee County Bank a demand on account of the deposit as a general creditor, and had obtained an allowance of any part thereof, then, having made an election with a knowledge of the important facts affecting its rights, it could not abandon its first election and adopt the opposite remedy. (Plow Co. v. Rodgers, 53 Kas. 743.) But in this case neither the city of Larned nor its city treasurer, nor any of its officers, presented any demand to the assignee of the bank for allowance. The chy demanded the money due from F. J. Mathias of G. Krouch and other bondsmen, and G. Krouch presented to the assignee his demand, alleging “that the bank is justly indebted to this affiant, as bondsman, for the amount of the deposit upon the following claims, to wit: Upon the deposit account, as above stated, in the sum of $4,645.18, which this affiant claims as bondsman of F. J. Mathias, city treasurer, aforesaid.” And further alleging “This certificate of proof being made in behalf of G. Krouch and the other bondsmen of said F. J. Mathias, city treasurer —all of which is due and payable to himself alone.” Krouch did not attempt, in the presentation of his demand, to act for the city or to present any claim or demand in behalf of the city No allowance was made to the city of Larned by the assignee. The assignee allowed the demand of G. Krouch only. . 'Whether this allowance was properly made or not by the assignee we need not now inquire. The city of Larned could not obtain any dividend from the assignee upon the allowance made to Krouch, and when the dividend was paid by the assignee the check was not made to the city, or to its city treasurer, or to any officer of the city. The assignee, in accordance with the proof of the demand of Krouch, issued to him a check for the 10 per cent, dividend, amounting to $464.51. This was turned over to the city treasurer, and credited upon the account. If Krouch, as a bondsman of F. J. Mathias, had paid $100 or any other sum to the city treasurer to satisfy a part of the indebtedness of F. J. Mathias, it would have been the duty of the city treasurer to have accepted the same and properly credited it. This is all that was done according to the record as presented.
. There is nothing in the record showing that the city of Larned considered itself a creditor of the Pawnee County Bank, or-ever presented any demand or ratified the proof of any demand made by any other person to the assignee of the bank as a creditor. Therefore it does not appear from the record that the city of Larned has attempted to pursue two inconsistent remedies. In fact the city has declined to be recognized as a general creditor of the bank. By accepting the check issued to G. Krouch as bondsman, and applying this upon its account with F. J. Mathias, the city did not adopt the demand of Krouch as an allowance to the city. (McLeod v. Evans, 66 Wis. 401; City of Leavenworth v. Rankin, 2 Kas. 357.) The assignee of the bank did not recognize the city as a creditor in allowing the demand of Krouch, and did not recognize the city as a creditor, or entitled to the allowance or to any part of the dividend thereon, when it made its first dividend payable to G. Krouch, bondsman. Unless Krouch pays voluntarily to the city the dividends that he may receive upon his demand, the city, even if it had not enjoined the payment of further dividends, could not obtain any part thereof.
Upon the authority of Myers v. Board of Education, 51 Kas. 87, the judgment will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Joi-iNSTON, J. :
The first contention of the railroad company is that, upon the pleadings, judgment should have been given in its favor. The basis of this claim is that contributory negligence was set up as a defense in the answer of the railroad company, and that as there was no reply or denial of the averment of contributory negligence it must be taken as true. The petition alleged that the deceased was in the exercise of care when he attempted to alight from the train upon the order of the conductor, and the answer of the company contained a general denial of all the aver- ments of the petition. If any reply was necessary-to close the issue it appears to have been overlooked and waived by the parties and to have been regarded as unnecessary by the court. The parties evidently proceeded upon the theory that an issue had been fairly raised as to whether Hughes was in the exercise of due care when the fatality occurred. A great part of the testimony produced at the instance of the parties bore upon that question, and no objection was made by the railroad company that the pleadings were insufficient, nor that the absence of a reply entitled it to a judgment. At the commencement of the trial an objection was made to the admission of any testimony, but the ground of the objection was that the petition failed to state sufficient facts to constitute a cause of action ; and at the end of the testimony offered to sustain the allegations of the petition, a demurrer to the evidence was interposed, which was overruled. Neither of these objections called the attention of the court to the necessity or omission of a reply. In view of the conduct of the parties in the course of the trial, the objection that there was no reply comes too late, and cannot be heard for the first time in the supreme court.
The next contention of the railroad company is that the conduct of the deceased in attempting to alight from the train on a dark night when it was in motion was reckless negligence, although he may have been invited or commanded by the conductor to do so, and therefore the court erred in refusing the request of the defendant to instruct the jury to return a verdict in its favor. On the night of March 19, 1890, John Hughes, his boy, who was about 11 years old, James O’Melia, his father-in-law, who was about 68 years old, and Alex. O'Melia, his brotlier-in-]aw, about 26 years of age, boarded a regular passenger-train of the railroad company at Scranton for the purpose of riding to Peter-ton, a station about 12 miles away. Hughes and the elder O’Melia took seats near together in the front end* of a coach, while the younger O’Melia and the boy found seats in the rear end of the same coach. Alex. O’Melia liad procured the tickets for the party, and they were taken up by the conductor shortly after the departure from Scranton. The testimony of the plaintiff below tended to show that before reaching Peterton the conductor told Alex. O’Melia that the train would not come to a full stop at Peterton but would only slow up for them to get off, when Alex, responded that the train ought to be stopped to enable the two older men who were sitting at the front end of the coach to get off, and in reply the conductor advised him to take care of himself and let the others take care of themselves. It tended to show that after the whistle had been sounded for the station, and as they approached the station of Peterton, Hughes and James O’Melia were told that this was their station, and to get up and get off, which they proceeded to do. Alex. O ’ Melia and the boy went out on the rear platform of the coach ; and when they arrived at the station and the train was running slowly, Alex, took the boy in his arms and jumped upon the platform. The conductor was on the platform of the next car, and inquired if all were off, when Alex, told him that they were not. Nevertheless, the conductor gave a signal, and the train c'ommenced to run faster. Alex, walked a few steps along the platform and found his father lying on his face and hands, and a little further along, and beyond the platform, the body of Hughes was found in a mangled condition. The arrival of the train was after midnight, when it was very dark, and the sta tion. was not lighted, nor was there any one in charge of the same. It is true that the testimony offered in behalf of the railroad company is to the effect that the train came to a full stop at Peter ton, and that it remained at the station between two and three minutes, giving ample time for passengers to leave it. Testimony was offered to show that Hughes had been sleeping and remained on the train until after it departed from Peterton, and that he jumped from the train after it had left the station and while it was in motion. An effort was also made to show that he was somewhat intoxicated at the time.
Some of the circumstances developed in the case strongly tended to sustain the theory of the plaintiff, but the conflict in the testimony has been settled by the jury, and we must assume that upon all disputed questions the facts are as the testimony of the plaintiff below would show. Accepting that offered in her behalf as true, the company was clearly guilty of culpable negligence. It is well settled that it is negligence on the part of a railroad com- „ , . , „ pany lor those m charge of a passenger train “to induce a passenger to leave the train while in motion, and a gross disregard of the duty it owes to him not to stop the train entirely, and give the passenger ample time and opportunity to-alight.” (Filer v. Railroad Co., 49 N. Y. 51; Bucher v. Railroad Co., 98 id. 128 ; Beach, Contr. Neg. § 160 ; 2 Am. & Eng. Encyc. of Law, 761.) It is not con- ■ tributory negligence per se for a passenger leave a train which is in motion. Of course, a passenger must exercise ordinary care, and if he voluntarily places himself in a perilous position and incurs a danger so obvious that an ordinarily prudent man would not encounter it, there can be no recovery. Whether' the act of Hughes in leaving the train while it was in motion constitutes contributory negligence barring a recovery depends upon whether the danger was so patent that a prudent man under the circumstances would not have made the attempt. We think it was clearly a question of fact for the jury to determine. According to the testimony of the plaintiff, the train was running slowly, and at such a diminished rate of speed the motion of the train may have been hardly perceptible. From the testimony it would appear that James O’Melia was unable to determine whether the train was actually in motion when he attempted to alight. The fact that there was no light at the station made it the more difficult to decide as to the motion of the train, and the danger of leaving it. Then he would naturally think that the train would be brought to a stop, and the conductor would not invite him to leave the car when it was unsafe to do so. Of course, the mere, fact that he acted upon the advice or command of the conductor would not justify him in attempting to alight from the train when it was obviously dangerous ; and the fault of the conductor would not relieve the passenger from the consequences of his own reckless acts.
“ When, however, the passenger under the encouragement or instruction of the company’s servants makes the leap and suffers an injury therefrom, such an act on the part of the passenger is not generally held contributory negligence ; but when the passenger leaves the train voluntarily, even though at the suggestion of the conductor or other trainmen, while the train is in motion, it is a question for the jury whether he acted as a prudent man under the circumstances.” (Beach, Contr. Neg., § 148.)
In the Filer Case, already cited, the following language is used
‘ ‘ That there was more hazard in leaving á car while in motion, although moving ever so slowly, than when it is at rest, is self-evident; but whether it is imprudent and careless to make the attempt depends upon the circumstances. And where a party by the wrongful act of another has been placed in circumstances calling for an election between leaving the cars or submitting to an inconvenience and a further wrong, it is a proper question for the jury whether it was a prudent and ordinarily careful act, or whether it was a rash and reckless exposure of the person to peril and hazard.” (See, also, Railroad Co. v. Crunk, 119 Ind. 542 ; Nichols v. Railway Co., 68 Iowa, 732 ; Carr v. Railway Co., 58 Am. & Eng. Rld. Cases, 239 ; Odom v. Railroad Co., 14 S. Rep. 734; Carruth v. Railroad Co., 14 id. 736 ; Cousins v. Railroad Co., 56 N. W. Rep. 14 ; 2 Am. & Eng. Eneyc. of Law, 762, and cases heretofore cited.)
If the conductor hustled Hughes and (¡he other passengers from the cars at Peterton, in the darkness, as the witnesses for the plaintiff below have stated, he was certainly guilty of gross negligence, when it was his duty to exercise the highest degree of reasonable care in safely setting them down at the station, and, under the authorities which have been cited, it was clearly a question for the jury to determine whether Hughes was in the exercise of ordinary care when he obeyed the order of the conductor and attempted to alight from the train.
Some objections are made to the answers given by the jury to the special questions submitted, but we find nothing substantial in them. In response to one question the’jury answered that the body of Hughes was found from 60 to 90 feet below the south end of the depot, while most of the testimony, fixed the point' at about 120 feet from tlie depot. We do not deem the answer to be of much importance, but an examination of the testimony shows that the witnesses only estimated the distance, and did not undertake to give the exact measurement. We-think there was testimony to sustain the findings that were made, and we can see no such inconsistency in the findings as will justify a reversal.
It is next insisted that the court erred in its instructions to the jury by requiring the application of the rule of comparative negligence, instructing in regard to gross negligence, and in other respects in the giving and refusing of instructions. The court in its charge stated the rules which govern where there is mutual or concurring negligence. It also recognized different degrees of negligence, and in doing so to some extent seemed to place the gross negligence of the company against the slight negligence of the deceased. Evidently the trial court had in mind some of the decisions of this court where it is held that a slight inattention to duty which is not the approxi- , . -, n llia^e cause oi the injury does not bar a recovery for injury resulting from the negligence of another. Although some of the language employed was objectionable, it is clear that the court did not indorse the doctrine of comparative negli---gence, nor give the jury to understand that, if Hughes was guilty of ordinary negligence contributing to his' death, there might be a recovery because the company was guilty of greater negligence. The passenger is required to exercise ordinary care, and his failure to exercise the highest or extraordinary care will not preclude a recovery for an injury caused by the gross or ordinary negligence of the railroad company. It is conceded that extraordinary care is not required of a plaintiff who brings an action of negligence, and that slight negligence on his part will not defeat a recovery. In the case of Railway Co. v. Peavey, 29 Kas. 180, cited by plaintiff in error, it is said that it is settled in this state that a party may recover for injuries done to him or his property caused by the negligence of another, even if his negligence is slight.” While this view was adopted and degrees of negligence were recognized, at, the same time the court plainly instructed the jury and kept it before them throughout the charge that if Hughes fafled to exercise ordinary care and prudence in jumping from or leaving the train, there could be no recovery for his death. Talcing all the instructions together, we think the jury was not misled by the language of the court which is complained of, and that under the decisions it cannot be held that prejudicial error was committed in charging the jury as to the care required of the company and of the deceased. (Railway Co. v. Rollins, 5 Kas. 167 ; Sawyer v. Sauer, 10 id. 466 ; Railway Co. v. Pointer, 14 id. 37 ; Railway Co. v. Young, 19 id. 488 ; Railway Co. v. Richardson, 25 id. 391; Railway Co. v. Peavey, 29 id. 170 ; Railway Co. v. Henry, 36 id. 565.) The testimony which was introduced warranted the court in stating the rule of gross negligence to the jury, and after an examination ■ of the entire charge we are satisfied that the remaining objections to the rulings upon the instructions given and refused are not substantial, nor can error be predicated on them.
The final objection is that the damages allowed are excessive. According to the testimony, Hughes was 40 years of age, a man of good habits, with good health and a sound body. He was an industrious man, who had been engaged in mining, and who had earned wages as high as $5 per day; and the jury found that in his usual vocation he was capable of earning $42 per month, and his earnings were computed for a period of 25 years. It is said that no mortality tables were introduced to show the probable duration of the life of the deceased. Such tables are admissible in evidence, to assist the jury in estimating the expectation of life, but they are not indispensable.
The jury may make their estimate from the age, health, habits and the physical . condition of the person at the time’ of his death. The court cannot interfere with the verdict of the jury upon the ground of excessive damages, unless the}' are so great as to appear to have been given under the influence of partiality or prejudice. Although the amount awarded was liberal, we cannot disturb the judgment on the ground of excessive damages.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
HoktoN, C. J. :
It is insisted that the district court of Cheyenne county had no jurisdiction of this case on a change of venue from Decatur county because the order of removal was made prior to' any plea to tlie information, and because the removal did not specify the cause therefor. Section 179 of the criminal code reads:
‘‘ Every order for a removal of any cause under the foregoing provisions shall state whether the same is made on the application of the party or on facts within the knowledge of the court or judge, and shall specify the cause of removal, and designate the county to which the cause is removed.”
I. It .is claimed upon the part of the state that a plea of not guilty was entered before the application for removal of the cause was granted, but that the plea was unintentionally omitted from the record. This, however, is immaterial. It is held to be better practice to arraign the defendant, and require him to plead to the information before making an order for a change of venue; but where the defendant applies for the change, and has the benefit of arraignment in the county to which the cause is transferred, he has no right to complain that the change was made before his arraignment. (Hudley v. The State, 36 Ark. 237. See, also, Ex parte Cox, 12 Tex. App. 665.) As the removal was actually made upon the application of the defendant, and as he had the benefit of arraignment in Cheyenne county, there was no material error in transferring the case to that county for trial before the plea was entered. (The State v. Potter, 16 Kas. 80.) The better rule is that the statute should be literally complied with, and the ground for a change be fully spread on the record. But it appears in this case that the removal was actually made upon the written application of the defendant, and the showing made by him upon affidavits that he could not have a fair trial in the county where the information was filed. The application of the defendant for a removal of the cause must be read in connection with the order of the court granting the same, and therefrom it appears that the removal was allowed upon the application of the defendant, and for the cause specified therein.
II. It is next insisted that the district court of Cheyenne county committed error in entertaining jurisdiction of the cause after removal and requiring the defendant to plead to a certified transcript of the information. Not so. Nothing but a transcript of the record and proceeding is authorized to be transmitted by the district clerk to the county to which the case is removed. {The State v. Riddle, 20 Kas. 711.)
III. .Tt is further insisted that the removal of the cause from Cheyenne county, in the seventeenth judicial district, to Thomas countj^, in the thirty-fourth district, was without authority of law. By § 10 of the bill of rights, a defendant in a criminal cause is guaranteed a trial by a jury of the county or district in which the offense is alleged to have been committed. Undoubtedly the provision securing to the accused a public trial within the county or district in which the offense is committed is of the highest importance. It prevents the possibility of sending him for trial to a remote district, at a distance from friends, among strangers, and perhaps parties animated by prejudices of a personal or partisan character. But a defendant may waive his constitutional right or j)ersonal privilege by his consent. (The State v. Potter, supra ; In re Holcomb, 21 Kas. 628.) Upon the part of the state it is insisted that the removal of the cause from Cheyenne county to Thomas county was made with the consent of the defendant, and that he cannot now complain. But wre do not so read the record. The defendant did not make any written or oral ap plication for the removal of the cause to Thomas county or to any different district. After the cause had been removed to Cheyenne county, counsel for the defendant called the court’s attention to § 178 of the criminal code, and especially to the third subdivision thereof, which provides for transferring a case to a different district “where the judge is in anywise interested or prejudiced or shall have been counsel in the cause.” But when the court made an order removing the case to Thomas county, the defendant objected and had his exception entered of record.
Again, 'when the case was called for trial in Thomas county, the defendant raised the question of the jurisdiction of the court, and objected to that court proceeding with the trial. Under ¶ 1965, General.Statutes of 1889, of the act concerning district courts, a judge pro tem. may be selected “when the judge is interested or has been of counsel in the case or subject-matter thereof, or is related to either of the parties, or otherwise disqualified to sit.” So, under the statute, a defendant may be tried before a judge pro teto., where the district judge is disqualified by interest or otherwise ; or he may, with his consent, have the cause removed to a different district. In this case there •was no express consent on the part of the defendant to have the cause removed from his distinct. The most that can be said is that he consented inferentially to such removal by calling the court’s attention to § 173 of criminal code. He did not expressly request that the cause be transferred to a different district under the provisions of that section. On the other hand, he expressly objected to the transfer. If counsel of the defendant misled the court at first in referring to § 173 of the criminal code, defendant is not concluded, because he objected to the order to transfer. Before the order of removal was entered of record the court was fully informed that the defendant did not consent, but positively objected to .having his cause sent to a different district. The constitutional guaranty, securing to an accused a trial within the county or district in which the offense is committed, ought not to be annulled upon a mere inference or implication. Therefore, upon the record, we cannot say that the defendant consented to the removal of the cause to a different district, or that he waived his constitutional right to be tried in the district in which the offense is alleged to have been committed. Under the provisions of the constitution and the statute, the removal of the cause from Cheyenne county to Thomas county, against the objection of “the defendant, was without authority of law. The cause is pending in Cheyenne county, and all proceedings subsequent to the attempted removal from that county must be ignored. The case may proceed to trial in Cheyenne county, as if no removal had been attempted.
The judgment will be reversed, and the cause remanded for further proceedings, in accordance with the views herein expressed.
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The opinion of the court .was delivered by
Allen, J. :
This case comes here on a petition in error to reverse an order of the district court discharging a receiver. W. P. Thayer was plaintiff, and Albert Honeywell, The Colonial and United States Mort gage Company, Limited, Phelps & Bigelow Windmill Company and E. Howland were defendants below. Howland and the windmill company both filed cross-petitions claiming liens on the lands covered by the plaintiff’s mortgage. Afterward the plaintiffs in error were made parties defendant, and answered, setting up a mortgage on the same lands. Afterward, on the 8th day of January, 1891, on their application, a receiver was appointed to take charge of the mortgaged property, who filed a bond and entered on the discharge of his duties. On the 12th day of June, 1891, a motion was made by W. E. Groves, as guardian for Albert Honeywell, in which it was stated that on the 10th day of June, 1891, Honeywell was declared a person of unsound mind and Groves duly appointed his guardian, asking that the receiver be discharged. This motion was heard by the court on the 12th day of June, over the objections of the plaintiff in error, one of which was that Groves had not been made a party to the action. The court thereupon ordered that he be made a party, proceeded to hear the motion, and made an order removing the receiver. Various errors are alleged in the proceedings of the court. A motion is made on behalf of the defendant to dismiss the petition in error because of a want of proper parties. This motion must be sustained. The order complained of was made at the instance of Groves, who claimed to be the duly-appointed guardian of Honeywell. Whatever errors the court may have committed were at his instance, and he is a necessary party in this court. Groves was recognized by the court as guardian.
It is unnecessary to inquire whether the other in-cumbrancers who were made parties below are also necessary parties liere, as the absence of the guardian is fatal to the jurisdiction of this court.
The petition in error is dismissed.
All the Justices concurring | [
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The opinion of the court was delivered by
Horton, C.' J.
: Upon the trial the plaintiff below was permitted to testify to the amount of damages caused to lier dress and other articles described in the account sued on. This evidence was objectionable and should not have been received. A witness is not permitted to state his or her opinion with reference to the damages to be recovered. (Railroad Co. v. Muller, 45 Kas. 85-87 ; Railroad Co. v. Kuhn, 38 id. 676 ; Railroad Co. v. Ross, 40 id. 605.) The admission of this evidence is conceded to be erroneous, but it is claimed that it was cured because Mrs. Cooper, a dressmaker, testified properly as to the value of the articles sued for. The evidence improperly admitted was material, and we cannot say from the record that it was not prejudicial.
Again, it was error for the trial court to permit the plaintiff below to testify to the statements made by Mr. Walsh, the baggage agent of the railroad company, concerning alleged statements of the bag-gagemen to him about the trunk. (Tennis v. Rapid Transit Rly. Co., 45 Kas. 503; Adams v. H. & St. J. Rld. Co., 74 Mo. 553, 556 ; Wellington v. B. & M. Rld. Co., 33 N. E. Rep. [ Mass.] 393 ; Carroll v. E. T. V. & G. Rly. Co., 41 Am. & Eng. Rld. Cas. 307, 310, 311; N. H. Rld. Co. v. May, 27 id. 152, 153 ; Hough v. Doyle, 4 Rawle, 291, 294 Luby v. H. R. Rld. Co., 17 N. Y. 131; Pa. Rld. Co. v. Brooks, 57 Pa. St. 339, 343.) The declarations of the baggagemen, unless they constituted a part of the res gestae, do not bind the company.
The bill of particulars contains a verified account, but the court seems to have treated the case on the trial as an action to recover damages occasioned by a tort. A party may waive a tort and sue on an account for the value of articles taken, or which in some way have been of benefit to the defendant; but where goods have been damaged and retained by the owner, if he wishes to recover damages, he must bring his action for the tort or wrong by which the goods were injured.
The judgment will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
HortoN, C. J. :
After this cause was argued and submitted to this court, John W. McAnulty, defendant below, asked permission to confess the alleged errors. Thereupon The Scottish Mortgage Company filed its application to be substituted as defendant in error, and showed that, under a foreclosure sale of a mortgage executed by McAnulty and wife upon the premises in dispute, the company had become the purchaser and owner of the property during the pend-ency of this proceeding in this court; that through such foreclosure sale the former title and interest of McAnulty in the property had become vested in the company. Under the provisions of the civil code, which are applicable by analogy to petitions in error, the application of The Scottish Mortgage Company is granted, and that company is substituted" as defendant in error, as successor in interest of John Mc-Anulty. (Civil Code, §§36, 40, 41, 42.)
It appears from the findings of the court that the plaintiff obtained 'his patent from the government by fraud and perjury. It also appears from the findings that he will be successful in his attempt to commit a gross fraud upon John McAnulty, or his successor in interest, if this court should reverse the judgment rendered against him. Conceding that the contract of purchase made by McAnulty with McKinnis was void, as in violation of the statute of the United States, and also conceding that the railroad company had no valid title to the land on January 7, 1879, when Mc-Anulty paid the company $250 ; yet, upon the findings, the plaintiff is not entitled to invoke the aid of any court to assist him in making successful his attempt to defraud McAnulty by putting him in possession of land the title of which he obtained fraudulently from the' government. All of the equities of the case are against him.
"It is a general rule of law that a man will not be allowed to set up his own illegal acts for the purpose of avoiding his own deed. And with regard to executed illegal contracts, where the parties thereto are in equal wrong, it is a general rule that the law will not aid either of them, but will leave each and all of them where it finds them.” (Mellison v. Allen, 30 Kas. 382 ; Brake v. Ballou, 19 id. 397 ; Tucker v. Allen, 16 id. 312.)
In Weeks v. White, 41 Kas. 569, Frisbie, who continued the agreement of the first homestead settler with Markham & Byers from whom Weeks purchased, died before any patent was issued. His widow took the title of the land in dispute in her own right at the death of her husband, and not as his heir. She made her own application to the land office to prove up under the homestead act; therefore, Mrs. Frisbie, from whom White obtained his title, was not guilty of fraud and perjury in obtaining her title from the government. White's title was not tainted. The other cases cited by the plaintiff against the judgment rendered are not in all respects founded upon the same state of facts as disclosed in this record. The case of Nichols v. Council, 9 S. W. Rep. (Ark.) 305, and the other decisions referred to from Arkansas, ruling that tlie courts may lend tlieir aid to a party to recover possession of land, after he has transferred his possession and alienated the same to another in violation of the homestead act, are not satisfactory. A man ought not to be allowed to recover real estate in the possession of another by alleging his own fraud and perjury. Courts are not instituted for the purpose of affording guilty parties relief in evading the laws of the country, and in deriving benefits from their own-illegal acts. “The transfer of property for an unlawful purpose is valid as between the parties to such transfer.” (Bump. Fraud. Conv. 436 ; U. P. Rly. Co. v. Kennedy, 20 Pac. Rep. [Colo.] 696.)
It is insisted that the trial court erred in receiving evidence tending to prove that McAnulty purchased the land of plaintiff, and that the lease was executed by the parties as a mere subterfuge to evade the statute of the United States. The general rule is that a tenant cannot be permitted to controvert the title of his landlord under whom he enters into possession, but in this case, the lease itself was a fraud upon the government, and was only executed as a pretext to carry out the arrangement under which McAnulty was to obtain possession and title. A lease to real estate and the transfer of possession thereunder is a species of conveyance. (Coughlin v. Coughlin, 26 Kas. 116; Land Co. v. Gas Co., 43 id. 518.) ■
It is next insisted that the trial court committed error in receiving evidence, and that its findings are contrary thereto. The cause was tried by the court without a jury. We have carefully examined the whole record, and find no material error. There was sufficient evidence to sustain the findings.
The judgment will be affirmed.
All the Justices concurring. | [
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Johnston, J.
This is an original proceeding in mandamus to compel the levy of a tax upon the property in Forrester Township, Ness County, for the payment of interest which has accrued upon refund ing bonds issued by the township. It appears that in April, 1889, the township voted $20,000 in bonds, payable in 20 years and bearing interest at seven per cent, per annum, to aid the Ness County Sugar-Mill Company; and in October of the same year they were refunded in bonds running 30 years and bearing interest at six per cent, per annum, in accordance with the provisions of chapter 50, Laws of 1879. The petition alleges that the refunding bonds were negotiable, payable to bearer, and had been duly registered by the Auditor of the State of Kansas, who certified that they had been regularly and legally issued in conformity with the laws of the State. Default has been made in the payment of the interest, and the local authorities decline to levy a tax, claiming that the original bonds were invalid because they were issued in aid of a private enterprise, and also that the act under which they were issued does not authorize the issue of refunding bonds by townships, nor the issue of negotiable bonds, such as were issued by the township, in any case.
The questions submitted for decision are raised on a motion to quash the alternative writ, and the first is that the title of the act under which the bonds were issued is not broad enough to cover the provisions authorizing the refunding of township indebtedness. The title is as follows: ‘ 'An act to enable counties, municipal corporations, the board of education of any city, and school districts to refund their indebtedness. ’ ’ Express authority is given in the body of the act for refunding-township indebtedness. Townships are mentioned in connection with counties, cities and school districts in = almost every section, and the provisions of the act* apply substantially alike to each municipality,-except - that townships and school districts cannot refund their debts without the assent of the voters expressed at an election held for that purpose. It was the manifest purpose of the Legislature to confer authority upon townships to refund their indebtedness, and the question for decision is whether the general term “municipal corporations,” employed in the title, is sufficiently broad to cover those provisions.
In this State each organized township is a body politic and corporate, with power to make all contracts that may be necessary and convenient for the exercise of its corporate powers, and in its proper name may sue and be sued. A township is generally spoken of as a municipality or municipal corporation, but, strictly speaking, every political subdivision of the state organized for the administration of civil government is a quasi corporation. In this respect they are placed on the same plane as counties and school districts, and in this Court, in determining the liability of this class of corporations for failure to perform some corporate duty, or for the neglect or misfeasance of its officers and agents, it has been held that counties, townships and school districts are not municipal corporations proper, and that their liabilities in this respect are not the same as incorporated cities, towns and villages. Beach v. Leahy, Treasurer, 11 Kan. 23; Eikenberry v. The Township of Bazaar, 22 id. 561; Comm’rs of Marion Co. v. Riggs, 24 id. 255; Freeland v. Stillman, 49 id. 197. In all these cases and for the purpose of determining their liabilities and powers, the distinction between municipal corporations proper and other public corporations has been made. In the broader sense and in common usage the term “municipal corporations” includes counties and townships. All public corporations, including counties, cities and townships, are frequently referred to as municipalities and municipal corporations to distinguish them from private corporations, and it is not uncommon to find them so designated in the State and Federal courts and in the published reports of their decisions. In a very recent case Chief Justice Hokton referred to a township as a “public municipal corporation,” and the same language is employed both in the syllabus and in the opinion. Riley v. Garfield Township, 54 Kan. 463. In 15 Am. & Eng. Encyc. Law, 953, the following definition is given :
“A municipal corporation, in its broader sense, is a body politic, such as a state, and each of the governmental subdivisions of the state, such as counties, parishes, townships, hundreds, New England ‘ towns,’ and school districts, as well as cities and incorporated towns, villages and boroughs. Every one of these is properly susceptible of the,general appellation.”
Here, then, we have in the title a term which, if taken in the broader sense and popular signification, would include townships, and render the act valid ; while, if taken in the more restricted and technical sense, it would render it invalid. What sense shall be imputed to the Legislature, and which interpretation should be given to the term? No one can doubt that the Legislature intended to make a title broad enough to cover the provisions of the act with reference to townships, and' this is .the more apparent from the amendments made to the act long after the passage of the original act and after large amounts of township indebtedness had been refunded under its provisions. Ch. 163, Laws 1891; ch. 113, Laws 1893. The obvious intention of the Legislature is entitled to great weight in determining the sufficiency of the: title. In Woodruff v. Baldwin, 23 Kan. 494, it was held in a similar case to be more just and fair to say that the Legislature used the title in its broadest sense — a sense broad enough to include the subject-matter of the act, rather than to apply the restricted meaning which would to some extent defeat the legislative purpose. The same view was taken in In re Pinkney, Petitioner, 47 Kan. 89. There, a term was employed in the title to an act which, if given the broader meaning, would uphold the act, while by giving it the narrower and perhaps more common meaning would render it invalid, and it was held that the Legislature, having employed the word in its broadest sense and one which fairly covered the provision assailed, the Court was not warranted in adopting the narrower meaning and thus holding the act invalid. It was said that the fact that general terms are employed in the title does not render it objectionable so long as the title to the act is such that neither the members of the Legislature nor the people to be affected can be misled. The defendants place some reliance upon the language used in Freeland v. Stillman, supra, but an attentive reading of the decision shows that it is not controlling. In that case, the Court was not considering the title to an act, but was endeavoring to ascertain the intention of the Legislature, and from the connection in which “ municipal corporations” was used it could be readily seen that school districts were not within the purpose of the Legislature in framing the act. Here, the provisions of the body of the act in question show beyond cavil that the Legislature intended to authorize townships to refund their indebtedness ; and we have to decide whether that intention shall be thwarted by a technical interpretation of the title to the act.
In making the distinction between the different kinds of public corporations it is common to refer to cities as municipal corporations proper. This is a discriminating expression frequently used by the courts of this State, and if that term had been employed in the title there would be some reason for the strict interpretation for which the defendants contend. A technical interpretation, however, has never been applied in this State to the titles of legislative acts. On the other hand, it has been consistently held that the constitutional limitation should not be enforced in any narrow or technical spirit, but should be liberally interpreted with a view of upholding the acts of the Legislature. It has been regarded to be the duty of the Court to view the acts of the Legislature with great respect, and so far as possible endeavor to reconcile and sustain them. Illustrations of liberal interpretations placed upon the titles of acts may be found in almost every volume of our decisions, but we need only refer to a few of them. Woodruff v. Baldwin, supra; Philpin v. McCarty, Supt., &c., 24 Kan. 393; Comm’rs of Marion Co. v. Comm’rs of Harvey Co., 26 id. 181; Comm’rs of Cherokee Co. v. The State, ex rel., 36 id. 337; Mo. Pac. Rly. Co. v. Harrelson, 44 id. 253; The State v. Bush, 45 id. 140; In re Pinkney, Petitioner, 47 id. 89; The State, ex rel., v. Lewelling, 51 id. 562; In re Sanders, Petitioner, 53 id. 191; Lynch v. Chase, 55 id. 367; Rogers v. Morrill, 55 id. 737.
The act has been in force for more than 17 years, and upon the theory that the title was good and the act valid a vast number of the townships of the State have issued bonds which have been negotiated in the money markets of the country and accepted as valid securities. The official reports show that the State, holds a considerable amount of such bonds, purchased as an investment of the permanent school fund and other funds. The validity of the act is assailed here for the first time, but we think the scope and effect of the series of decisions heretofore cited compel us to hold that the term “municipal corporations” as used in the title of the act should be interpreted so as to include townships.
We are unable to agree with the contention that the refunding bonds are non-negotiable, and that in the hands of bona fide holders they are subject to the same defenses as would have been available against the immediate payee. They are specifically alleged to be negotiable in the alternative writ; are negotiable in form ; and we think the act under which they are issued contains no restrictions which take away the attribute of negotiability or except them from the rules commonly applied to such municipal securities. Prior to the enactment of the refunding law of 1879 a great number of special acts had been passed to refund the accrued and accruing indebtedness of counties, cities, townships and school districts. It was the obvious purpose of the Legislature of 1879 to frame .a general refunding law which would be available to all municipalities. The act provides for the issuance of interest-bearing bonds with coupons attached, to run for a period of 30 years or less, the bonds and coupons to be signed by the officers and in the ordinary manner in which municipal bonds are executed. They are required to be issued in denominations of from $100 to $1,000, payable at a place to be designated upon the face thereof, and to contain a recital of the act under which they are issued. Where authority is given to a municipality to issue bonds of this character, without restriction as to negotiability, there is a fair implication that nego tiable bonds are to be issued. The provisions of this act in respect to the character of the bonds to be issued are substantially the same as those of the numerous refunding acts of Kansas, and the bonds that have been issued under them have been regarded as negotiable by the people of the State and have been so accepted in the commercial world. This question was recently before the United States Circuit Court of Appeals, and it was held that the objection that the act did not authorize the issue of negotiable bonds was untenable. Sanborn, J., in pronouncing the judgment of the court, said that—
“The act under consideration in this case authorized this township ‘to issue new bonds,’ without any restriction as to their negotiability. This grant of power to a municipal body to issue bonds must be interpreted to give that body power to issue municipal bonds in the usual form of such securities. The usual — nay, it may almost be said the universal — form of such securities is that of a negotiable bond payable to bearer ; and, in our opinion, it was bonds in this form, and in no other, that the Legislature of Kansas had in mind and intended to give this township power to issue by this act. City of Cadillac v. Woonsocket Inst. for Sav., 58 Fed. Rep. 935; Ashley v. Supervisors, 60 Fed. Rep. 55, 66.” West Plains Tp. v. Sage, 69 Fed. Rep. 943.
In the same connection that Court held, and we think correctly, that the provision that new bonds should be issued to the holder of the old indebtedness does not require that he shall be named as payee in the bonds, and is not to be interpreted as a restriction Upon the negotiable character of the bonds issued. The issue and delivery of the bonds payable to bearer, which is the usual method employed, would seem to be a full compliance with that provision of the statute. Its main purpose was to require the officers to deal directly with the holder of the indebtedness, so that no refunding bonds should be issued until the old indebtedness was delivered up for cancellation. It is significant, too, that the amendatory act of 1891, passed 12 years after the original act, distinctly provides for the sale of the refunding bonds, and prevents the municipal authorities from negotiating such bonds at less than par or at a higher rate of interest than six per cent, per annum. This provision goes upon the theory that the bonds are negotiable, and in a certain sense is a legislative interpretation of that part of the act. Neither can we see that the provision requiring the County Clerk to keep a record of the refunding proceedings, showing the character of the refunding bonds and the persons who surrendered the old and received the new form of indebtedness, indicates a legislative purpose to restrict the negotiable character of the securities to be issued. It is no more than the ordinary record which officers are required to keep of important business concerns, and is but a repetition of what already appears in the records of the township.
The peremptory writ will be allowed. | [
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Johnston, J.
S. A. Frazier obtained a tax deed upon a quarter-section of land in Jefferson County which he placed on record on November 17, 1890. On November 12, 1892, before the two-years’ statute of limitations had run against him, he filed in the District Court a petition in ejectment, asking a re covery of the land from John C. Douglass, together with rents and damages. A summons was promptly issued, which the sheriff made an attempt to serve on November 17, 1892 ; but it appears that the paper served upon Douglass was not a strict copy of the summons. The copy had written therein the year “ 1882,” wherever the year “1892” appeared in the original. Otherwise, the paper served was a true copy of the original summons, which was in due form, and upon which the Sheriff made his return. On February 8, 1893, when the case was reached, and after the statute of limitations above referred to had run, a motion was made by Douglass to quash and set aside the summons and the service thereof because of the defects mentioned. It was alleged by Douglass that the appearance was special, and for the purpose of the motion only; and, at the same time, he filed an affidavit in support of the motion. The motion was sustained and the service of the summons was quashed and set aside. Another summons was immediately issued and served ; but when the case came on for trial, and the plaintiff offered in evidence his tax deed, an objection was made for the reason that more than two years had elapsed between the recording of the deed and the commencement of the action. The objection was sustained ; and the plaintiff therefore failed to maintain his cause of action.
The first question for consideration is the action of the court in setting aside the service of the summons. The original summons, as issued and placed in the hands of the Sheriff, was a valid writ in all respects. In his return thereon, the Sheriff stated that he served it personally, by delivering to the defendant, Douglass, a true copy thereof, with all the indorsements thereon. It is said that the error in writing the year in the copy occurred through the use by the Sheriff of an old blank, in which “ 188-” was printed instead of “189-,” and to which the Sheriff added the figure “2” without changing the figure “8.” According to the copy, the defendant was required to answer the summons on December 12, 1882, which was an impossible date. If the defendant had examined the files of the court after the copy was served upon him, he would have discovered that the petition was filed in 1892, instead of in 1882. Whether the objection was fatal we need not determine, as the appearance made by the defendant, at the time he moved to set aside the service, must be held to have been a general one. In his sworn statement, which was coupled with the motion, the defendant alleged “ that he is the owner in fee and has a valid title to the land described in said plaintiff’s petition filed in said case, and is in the peaceable and rightful possession of the same, and that said plaintiff has no right or title thereto or to its possession ; and further says that said ■ land is of great value, to wit, of the value of $3,000.” As will be readily seen, the plaintiff set up matters which were non-jurisdiction al and had no bearing upon the motion he had made. Where a defendant alleges and submits to the court matters that are lion-jurisdictional, he recognizes the general jurisdiction of the court, and waives all irregularities which may have intervened in bringing him into court. Whatever may have been the purpose of the defendant in alleging these matters, it is clear that they do not relate to the question of service or of jurisdiction. Although not entirely formal, the averments relate to the merits of the controversy and amount to a complete answer of the allegations of the petition. When the defendant set up matters and submitted questions which were not jurisdictional, he submitted himself and his rights to the jurisdiction of the Court, and he cannot be heard to say that it had no jurisdiction. Meixell v. Kirkpatrick, 29 Kan. 679; Insurance Co. v. Lemke, 40 id. 142.
We think the ruling setting aside the service was erroneous, and, as it operated to defeat the plaintiff’s action, it must be regarded as prejudicial error.
We have considered the objections to the jurisdiction of this Court to review the rulings of the District Court and find that they cannot be sustained.
The judgment of the District Court will be reversed and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
MaktiN, C. J. :
The only question'arising upon the record is whether the city of Iola had authority to fix the rates to be charged for natural gas furnished to private consumers by Pryor & Paullin under the. circumstances above stated. In this country, municipal corporations (except the city of Washington) are the creatures of the states in which they are located. They derive their powers from the constitution and tlie statutes. In Anderson v. City of Wellington, 40 Kas. 176, this court has said :
‘ ‘ The power to pass a city ordinance must be vested in the governing body of the city by the legislature in ■express terms, or be necessarily or fairly implied in and incident to the powers expressly granted, and must be essential to the declared purposes of the corporation — not simply convenient, but indispensable. . . . Any fair and reasonable doubt concerning the existence of the power is resolved by the courts against the corporation, and the power is denied.” See, also, 1 Dillon, Mun. Corp. (4th ed.), § 89.
The act providing for the organization and government of cities of the third class contains no express grant of power to fix or regulate the prices of gas, water, or any other article of necessity or luxury. General authority is given to enact ordinances for the good government and welfare of the city (¶ ¶ 958, 991, Gen. Stat. of 1889), and such cities may provide for and regulate the lighting of streets, and they have power to make contracts with any person, company or association to erect gas-works with the privilege of furnishing gas to light the streets, lanes and alleys of the city for any length of time, not exceeding 21 years. (¶984, Gen. Stat. of 1889.')
The respondent relies principally upon a section of the corporation law of 1868 relating to gas and water corporations, and published as ¶ 1401, General Statutes of 1889, which reads as follows :
‘ 'Any gas or water corporation shall have full power to manufacture and sell, and to furnish such quantities of gas or water as may be required by the city, town or village where located, for public or private buildings, or for other purposes; and such corporations shall have power to lay pipes, mains and conductors for conducting gas or water through the streets, lanes, alleys and squares in such city, town or village with the consent of the municipal authorities thereof, and under such regulations as they may prescribe.”
Certainly there is no express power conferred upon the municipal authorities by this section to regulate the price of gas or water. Whether they might, as a •condition of their consent, provide that gas or water should be furnished to the city or to its inhabitants at not exceeding certain prescribed rates, we need not now inquire. Consent was granted by ordinance No. 268 to the Iola Gas and Coal Company, its successors and assigns, without annexing any condition as to rates, except that no more than $1 per 1,000 cubic feet of gas should be charged for lighting the public buildings.
In certain cases the state may fix and regulate the prices of commodities and the compensation for services, but this is a sovereign power, which may not be delegated to cities or subordinate subdivisions of the state, except in express terms or by necessary implication. No such power is expressly conferred upon cities of the third class, and we do not think the right can be implied from any express provision, unless possibly that in the grant of consent to any person or corporation so to use the streets and public grounds of the city a condition might be imposed as to the maximum rates to be charged.
In Gas Co. v. The State, ex rel., 135 Ind. 49, it was held that municipal corporations of Indiana have no power at common law to fix by ordinance the price at which natural gas shall be supplied to consumers, and that the act of March 7, 1887, providing “that the boards of trustees of towns and the common council of cities . . . shall have power to provide by ordinance reasonable regulations for the safe supply, distribution and consumption of natural gas within the respective limits of such towns and cities,” does not confer the power to regulate the price at which natural gas shall be furnished ; overruling the case of City of Rushville v. Gas Co., 132 Ind. 575. In the opinion the court says : ‘ ‘ To secure the safe supply and use of natural gas is one thing, and to fix the price at which gas shall be supplied is another and a different thing.”
In City of St Louis v. Telephone Co., 96 Mo. 623, it was held that neither under its authority to regulate the use of streets, nor the power to license, tax and regulate various professions and businesses, nor the general welfare clause permitting the passage of all such ordinances not inconsistent with the provisions of the charter or the laws of the state as may be expedient in maintaining the peace, good government, health and welfare of the city, its trade, commerce, and manufactures, can the city of St. Louis regulate by ordinance the tariff of charges of a telephone company. In the opinion the court says :
"We are at a loss to see what this power to regulate the use of the streets has to do with the power to fix telephone charges. The power to regulate the charges for telephone service is neither included in nor incident to the power to regulate the use of streets, and the ordinance cannot be upheld on any such grounds.”
Under the section of our statute hereinbefore fully quoted, a gas or water company may lay its pipes and mains through the streets of a city only with the consent of the municipal authorities, and under such regulations as they may prescribe ; but the regulations are only as to the laying of pipes and mains, and have nothing' to do with the price of the gas or water j)assing through the pipes and supplied to consumers.
Counsel for the respondent cites the leading case of Munn v. Illinois, 94 U. S. 113, and others of like character, to the effect that where the owner of property devotes it to a use in which the public have an interest, he must, to the extent of the interest thus acquired by the public, submit to the control of such property by the public for the common good. But in these cases the control was exercised by the legislature either directly or through municipalities or agencies clothed by it with the power. In the present case, the legislative authority is wanting. We must therefore hold that said ordinance No. 368 is inoperative and void as to said Pryor & Paullin, their heirs and assigns, in so far as the same purports to establish the price for gas furnished by them to private consumers.
The petitioner will be discharged from custody.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J. :
The appellant, Oscar Wade, was charged by information in the district court of Wilson county with the larceny of cattle in Wilson county. The proof showed that the original taking was in Elk. The only question raised on the record is whether, in order to convict the defendant on the facts as ■ developed at the trial, it was necessary to charge in the information that the original taking was in Elk county. In McFarland v. The State, 4 Kas. 68, a conviction under an information charging the defendant with the larceny of goods in Leavenworth county, when the proof showed the original taking to have been in Missouri, was sustained under the provisions of the statute then in force, and now as ¶ 2559 of the General Statutes of 1889. In the case of The State v. Price, ante, p. 606, it was held that § 26 of the code of criminal procedure, which provides that “when property taken in one county by burglary, robbery, larceny, or embezzlement, Iras been brought into another county, the jurisdiction is in either county,” was constitutional, and did not violate that provision of § 10 of the bill of rights, which secures to the accused a trial by an impartial jury of the county or district in which' the offense is alleged to have been committed. Both of the cases cited are based on the recognized doctrine of the common law that ‘‘ each asportation from one comity to another is a fresh theft, and a prosecution maybe maintained in either.” See, also, The State v. Brown, ante, p. 611.
As the asportation of the stolen property within the county of Wilson was sufficient to constitute the offense of larceny, it was not necessary to allege the place of tire original taking.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Joi-iNSTON, J. :
This is a controversy over the ownership and possession of a stock of merchandise that had been owned and kept by Clark & Blake at Oberlin. They had been engaged in a general merchandise business and had become financially embarrassed, their indebtedness being nearly $30,000, which was largely in excess of the value of'their property and assets. They entered into negotiations for a sale of their stock of goods to Issac Clark and H. R. Marietta, and while negotiations were in progress the stock of goods was seized upon attachments by a number of the creditors of Clark & Blake, and among the attaching creditors was H. R. Marietta, who was to be a partner of Isaac Clark in the purchase of the same goods. Isaac Clark interpleaded in the attachment suits — there being 16 of them — claiming that he was the owner of the attached goods by virtue of a purchase of the same from the failing firm of Clark & Blake. All of the attachment actions -were consolidated and tried together, and the principal controversy was between the attaching creditors and the interpleader. The court found from the testimony that Marion W. Clark, the senior member of the firm of Clark & Blake, had attempted to sell and transfer to Isaac Clark, his father, about $10,000 worth of merchandise out of a total stock of about $14,000 belonging to the firm, but that the sale was never completed and no delivery of the merchandise had ever been made. There was a further finding that the merchandise claimed by the interpleader was the property of Clark & Blake,'and subject to the payment of their debts and to the attachments that had been levied upon the stock. Isaac .Clark complains of these rulings, and asks for a reversal.
While it appears to be conceded that the failing firm was indebted to Isaac Clark in the sum of $1,712.12, they were attempting to transfer nearly $10,000 worth of merchandise to Isaac Clark, who paid no money whatever upon the transfer, although it is claimed that he was to assume the payment of a part of the debts of the firm. There is sufficient testimony, how ever, to uphold the finding of the court that the sale of the goods was never in fact completed. The evidence of Blake, one of the failing firm, is to that effect; while Marietta, who was to be a partner of Isaac Clark in the purchase, disavowed the sale and caused the goods to be attached upon a claim which he held against the firm. He did not join Isaac Clark in the interplea claiming the goods. Indeed, Isaac Clark himself, on the day the attachments were levied, treated the property as that of the firm by agreeing to take a mortgage on the same to secure his claim against the firm. In the brief of counsel for plaintiff in error they concede that there is a conflict in the evidence as to the consummation of the sale, and this concession necessarily requires an affirmance of the judgment, as the finding of the trial court upon conflicting evidence cannot be reviewed here.
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. :
Frank Brown was convicted of grand larceny in the district court of McPherson county, and the punishment adjudged was imprisonment in the penitentiary for a term of one year. In the information he was charged with stealing 55 bushels of wheat, of. the value of $22, which was the property of E. A. Alger. That a quantity of Alger’s wheat -was stolen by the defendant appears to have been conceded, and the only contention at the trial seems to have been in regard to the quantity and value of the wheat stolen. The jury found that the defendant stole 51 bushels of wheat, of the market value of $20.40.
It is first contended that the court erred in admitting evidence of a confession of the defendant. Alger, the owner of the wheat, was allowed to testify that Brown admitted the stealing of the wheat in question, and that the quantity was about 55 bushels. The confession appears to have been freely and voluntarily made. The defendant was a witness, and admitted not only the taking of the wheat, but also that he made a confession to Alger that he had participated in the theft. He denied, however, that he made a statement to Alger in regard to the quantity of wheat taken. Under these circumstances, no substantial question can be raised on the admission of the confession.
The second objection of the defendant is that he was not permitted to offer evidence as to the market value of the wheat taken. The wheat was taken from the premises of the owner in an open wagon-box, and most of it was carried about 10 miles across the country to the town of Galva. The load appeared to be too heavy for the team, and at two different places wheat was thrown upon the ground. • Testimony was intro- cluced tending to show that there were from eight to 10 bushels so left upon the ground, arid that when the defendant and his associate reached Galva there remained in the box 45i bushels, which they sold for 40 cents per bushel. There was testimony to the effect that the wagon-box used was 10 feet long, three feet wide and a fraction over 26 inches deep ; and some of the witnesses testified that such a box would hold from 55 to 60 bushels of wheat, depending upon the quality. Wheat of the quality stolen -was worth at the neighboring towns from 40 to 42 cents per bushel, and there was testimony offered showing that wheat was worth 40 cents per bushel at the bin or place from which the wheat was taken. The .defendant did not offer to prove the market value of the wheat at the bin, but did undertake to prove what it would cost a bushel to haul the wheat from the bin to the nearest railway station. The market value, if it had one, at the place from which it was taken was certainly competent and perhaps the best testimony in regard to its actual value, and the testimony offered by the state showed that wheat had a market value at that place, which was 40 cents per bushel, and that was the value found by the jury. The defendant claims that it was worth only 40 cents per bushel at the railway station where it was sold, and he insists that a man cannot steal his own labor, and therefore the cost of hauling it from the bin to the railway station should be deducted from the price at which it was sold. The defendant can gain nothing by this contention. It was Alger’s wheat which was taken from the bin, and it was his wheat when it was delivered at Galva. If the thieves had been overtaken and the wheat recovered at that place, why would not the value at that place be competent in determining the grade of the offense? "A thief is stealing the property from the time he takes it up until he lays it down, although several counties may intervene between these points, and this principle is very generally recognized in the criminal jurisprudence of this country.” [The State v. Price, ante, p. 606.) In view of the testimony that was given regarding the market value at the place from which the wheat was stolen, and the fact that the court instructed the jury that they could not convict the defendant of grand larceny unless “the reasonable and fair market value of the wheat at the time and place stolen was $20 or more,” the defendant has no cause to complain.
The final complaint is in regard to the following language used in an instruction given by the court: “It does not mean that the state should demonstrate to a mathematical certainty the defendant’s guilt. That would be scarcely possible in any human trial.” It is said that the effect of this instruction is to take away from tire jury the mathematical evidence given on the trial in regard to the quantity of wheat which the wagon-box would contain. We think the jury could not have been misled by the statement to which objection is made. As counsel for the state claimed, there was no real contention between the parties as to how many bushels of wheat could be held in a wagon-box of certain dimensions, but the dispute arose upon the size of the box that was actually used by the defendant. The statement about which complaint was made is taken from an explanation or definition by the court as to the meaning of the words, “ reasonable doubt.” It is doubtful whether any definition which may be given of these words will aid a jury'in understanding their import, and while the attempt of the court in the present instance may not have been neces sary and did not result in making it any clearer to the minds of the jury, we are unable to see that the definition could have resulted in any prejudice to the rights of the defendant.
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
JouNSTON, J. :
Logan Hiekerson was placed on trial upon the charge of assault with intent to kill. After the jury was impaneled, the county attorney made an opening statement, and, among other things, told the jury that in committing the act the defendant was actuated by a “ frenzied delusion ” on account of what he understood had been said in disparagement of his wife, and that his conduct and the result showed that he was actuated by a “hallucination or imagination” which was not founded on any “reasonable hypothesis.” It was also stated that “the only motive that can be ascertained for the onslaught was the fact that he liad permitted himself to be worked up into this frenzied condition over a rumor absolutely without any ground at all.” After an opening statement for the defendant had been made, testimony in behalf of the state was introduced, when the defendant moved for his discharge' from prosecution, and also for a discharge of the jury, because the opening statement made by the county attorney, in connection with the evidence introduced in behalf of the state, entitled him to such discharge. After argument by counsel and consideration by the court, the motion was sustained, the jury was discharged, and the court ordered that the defendant be discharged from custody and from further prosecution in the case. Exceptions were'taken to the ruling of the court, and the state now attempts to appeal to this court.
From the foregoing it appears that the case has been tried by the court upon the statements and admissions of counsel for the state and also upon the evidence offered by the prosecution, the result of which was the discharge of the defendant from further prosecution. Under the previous rulings of this court, the discharge of the defendant upon such a trial protects him from any further trial and effectually terminates the prosecution.
As the litigation on the merits is ended, and the defendant finally discharged, an appeal by the state does not lie, and hence it will be dismissed. {The State v. Moon, 45 Kas. 145 ; The State v. Lee, 49 id. 570. See, also, The State v. Carmichael, 3 Kas. 102 ; City of Olathe v. Adams, 15 id. 391; City of Oswego v. Belt, 16 id. 480 ; The State v. Crosby, 17 id. 396 ; The State v. Phillips, 33 id. 100; The State v. Smith, 49 id. 358.) Appeal dismissed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
This is a proceeding to compel the county auditor and the county commissioners of the county of Shawnee to audit, allow and pay an account of $50, alleged to have been expended in the burial of Carl H. Peterson, who died on July 23, 1894, at Topeka, in the county of Shawnee. He was an honorably-discharged ex-union soldier, who left surviving him a widow and three children. He resided with his family in Shawnee county until his death, and. died without leaving sufficient means to defray his funeral expenses. Upon his death his surviving relatives, consisting of his widow and children, desired to conduct the funeral, and did so by engaging one M. Hogan to take, charge and furnish those things necessary for the interment of the body, which Hogan fully performed at an expense of $53.
It is conceded that the widow and children are wholly unable to pay the charges therefor, or any part of the same. Hogan presented his duly-verified account to the extent of $50 to the county auditor, who disallowed the claim because it was not contracted by the township trustee or other person who had authority to bind the county; and it is stated that a further reason was that the county commissioners had let the contract for the burial of deceased soldiers to the lowest bidder, whose duty it was to furnish what was deemed necessary, and to conduct the funeral at a cost much below $50, the amount of the claim presented. The parties to this proceeding have waived all other questions, and submit for the decision of the court the interpretation of the statute with respect to whether such a claim can be audited and paid, unless it has been contracted by some one designated by the county commissioners. The statutory provision under which the question must be determined, reads :
“It shall be the duty of the county commissioners in each of the counties of this state to designate the township trustee, or, for good reason, some person other than the township trustee, in each township, whose duty it shall be to cause to be decently interred the body of any honorably-discharged ex-union soldier, sailor, or marine, who served in the army of the United States during the late war, and who may hereafter die without leaving sufficient means to defray funeral expenses. Such burial shall not be made in any cemetery or burial ground, or that portion of any burial ground used exclusively for the burial of the pauper dead: Provided, The expenses of such burial shall not exceed the sum of $50 : And provided further, That in case surviving relatives of the deceased shall desire to conduct the funeral, and are unwilling or unable to pay the charges therefor, they shall be permitted so to do, and the expenses shall be paid as herein provided.” (Gen. Stat. of 1889, ¶5916.)
The contention is that, as the duty of burial is imposed upon the person designated by the county commissioners, such person must first determine that the deceased is an ex-union soldier, sailor, or marine ; that he was honorably discharged, and that he died without leaving sufficient means to defray funeral expenses ; and that no claim can arise against the county for such a burial until these questions have been determined and a contract for the services has been made by him. This contention is practically admitted to be correct, where there are no surviving relatives of the deceased who desire to conduct the funeral; but they insist that, where there are such surviving relatives, they may take entire charge of the burial, free from the control or interference of any public officer. It is plain that the legislative purpose was that one who had borne an honorable part in the defense of our country and its institutions during the late war, and who died without sufficient means to defray funeral expenses, should receive a respectable burial. The language employed clearly evinces the intention that such persons should not be buried at t’he lowest possible contract rate that the county might be able to obtain, nor that their remains should be treated or interred like those of paupers. It is provided that the burial shall not be made in any cemetery, or that portion of the same, used exclusively for the burial of the pauper dead. If there are no surviving relatives who desire-to conduct the funeral, then the person designated by the county commissioners would be invested with discretion to determine the kind of casket that would be used, the means of conveyance to the cemetery, and what should be supplied for the purposes of burial, provided that the expenses of the same should be kept within the sum of $50. On the other hand, if the surviving relatives desire to conduct the burial and are unable or unwilling to pay the charges therefor, the statute specifically provides that they shall be allowed to do so, and the reasonable expenses of the same up to the sum of $50 must be paid by the county. In such a case the relatives will order the means and facilities for a decent interment, and control the same free from the superintending control of the agent of the county, but the charges therefor can never in any case exceed the sum of $50 ; and all concede that the maximum allowance is exceedingly moderate. When the burial is controlled and conducted by the relatives, the bill of expenses for the same must be presented to the county commissioners, -who can then determine whether the deceased was an honorably-discharged ex-union soldier, sailor, or marine in the late war, and also whether he left sufficient means to defray funeral expenses. These questions having been determined in the affirmative, the account for expenses is to be audited and paid, the same as other accounts against the county are audited and paid. A peremptory writ of mandamus will therefore be allowed requiring the defendants to audit and pay the claim for the burial of the remains of Carl H. Peterson, in accordance with the prayer of plaintiff’s petition.
All the Justices concurring. | [
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The opinion of the court was delivered by
Martin, C. J. :
At January term, 1895, of the district court of Reno county, the defendant was tried on the charge of feloniously stealing, taking, and carrying away, on November 12, 1894, certain neat cattle from the premises of Charles E. Eox, in McPherson county, and bringing them into the county of Reno, where they were found in his possession, said cattle being the property of John IT. Cox and Frank Cox. After the jury had been impaneled and sworn, and the county attorney had stated the case to the jury, he asked leave of court to indorse the names of John Cox and Prank Cox upon the information, to which the defendant objected, for the reason that plea had been entered, the jury impaneled, and no showing made to the court of the location of said witnesses, and that their testimony was not known to the state prior to the trial, nor any reason given why said in-dorsements should not have been made at an earlier time ; which objection the court overruled, and leave was granted to indorse said names upon the information, for the reason that they were stated therein, and that was actual notice to the defendant that these men were witnesses in the case. The defendant excepted to this ruling. Objection was made in several forms to the jurisdiction of the court, the defendant claiming that he could not be placed on trial in" Reno county for an offense alleged to have been committed in McPherson, said counties being in different judicial districts. The defendant was convicted of grand larceny, as charged hi the information, and was sentenced to the penitentiary for the term of five years, and he appeals from this judgment.
I. This court, in The State v. Cook, 30 Kas. 82, held it within the discretion of the court to permit the name of a witness known to the prosecuting attorney at the time of filing the information to be indorsed thereon after the commencement of the trial, and to permit such witness to testify on the part of the state in a criminal prosecution over the defendant’s objection, and this authority was followed in The State v. McKinney, 81 Kas. 570, 576 ; The State v. Dowd, 39 id. 412, and The State v. Adams, 44 id. 135. Of course, the trial courts ought to be very careful, in the exercise of a discretionary power like this, to require the county attorney to act fairly; and in the event of surprise of the defendant by the bringing in of witnesses that he could not anticipate, time should be granted, even to the extent of a continuance if necessary, to the ends of justice. But it is only where the court abuses its discretion in this respect that error will lie, and we cannot say that there was any abuse of discretion in the present instance.
II. The defendant contests the validity of § 26 of the code of criminal procedure, to the effect that, when property taken in one county by burglary, robbery, larceny, or embezzlement, has been brought into another county, the jurisdiction for the trial of the offense is in either county, the contention being that this is in conflict with that part of § 10 of the bill of rights which provides that the accused shall be allowed “a speedy public trial b3T an impartial jury of the county or district in which the offense is alleged to have been committed.” The theory of the statute is that a thief is stealing the property from the time he takes it up until he lays it down, although several counties may intervene between these points, and this principle is very generally recognized in the criminal jurisprudence of this country. Each asportation from one county to another is a fresh theft, and a prosecution may be maintained in either county. (Rapalje on Larceny and Kindred Offenses, § 63 ; 1 Whar. Or. Law', § 928, and cases cited.) By § 274 of the crimes act of 1859, ever since in force, and nowr published as § 419 of the crimes act, it has been punishable as larceny to bring any stolen property from another state, territory, or country into this jurisdiction, and in such case the offense may be charged to have been committed in any county of this state into or through which such stolen property shall have been brought, and this section was held to be valid in the early case of McFarland v. The State, 4 Kas. 68, and this upon the principle that every asportation animo furandi is regarded as a new taking, and to be punished accordingly. See, also, The State v. Hunter, 50 Kas. 303, 306, and § 27 of the code of criminal procedure.
As the offense in this case was committed in Reno county, as well as in McPherson, the defendant has had a trial by jury of the proper county and judicial district.
The judgment of the district court must therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Martin, C. J. :
I. The defendant in error claims that the order of substitution cannot be reviewed, be cause it was made more than one year prior to the filing of the petition in error in this court. It is enacted by § 556 of the code, as amended in 1881, that ‘ ‘ no proceeding for reversing, vacating or modifying judgments or final orders shall be commenced, unless within one year after the rendition of the judgment or making of the final order complained of.” The order of substitution, however, was neither a judgment nor a final order within the meaning of said section, nor of §§ 542 and 543 of the code, and, as the petition in error was filed within less than one year after the judgment was rendered, it is the duty of this court to examine, not only the final judgment, but the intermediate and interlocutory orders made at whatever time in the progress of the case, the same being involved in the judgment.
II. It is also contended that where a railroad company institutes a condemnation proceeding it is really the plaintiff, and if any revivor or substitution was necessary the proceeding should be instituted by the railroad company, and it had no right to complain because the landowner did so after the expiration of one year. This contention cannot be maintained. In Boom Co. v. Patterson, 98 U. S. 403, Patterson had taken an appeal to the district court from an award of condemnation in a proceeding instituted by the Boom Company. On petition of the Boom Company, the cause was removed to the federal court, and it became an important question there whether the proceeding was a suit at law or in equity, for otherwise it could not be removed. The court says :
“The proceeding in the present case before the commissioners appointed to appraise the land was in the nature of an inquest to ascertain its value, and not a suit at law in the ordinary sense of those terms. But when it was transferred to the district court by appeal from the award of the commissioners it took, under the statute of the state, the form of a suit «at law, and was thenceforth subject to its ordinary rules and incidents. The point in issue was the compensation to be made to the owner of the land ; in other words, the value of the property taken. . . . The case would have been in no essential particular different had the state authorized the company by statute to appropriate the particular property in question and the owners to bring suit against the company in the courts of law for its value.”
This court has also held that the appealing landowner is properly the plaintiff in the case. (Railroad Co. v. Owen, 8 Kas. 409 ; Railroad Co. v. Orr, 8 id. 419 ; Reisner v. Strong, 24 id. 418.)
III. The claim that the Chicago, Kansas & Western Railroad Company consented to the revivor or substitution and voluntarily entered a general appearance, is not justified by the record. Although the motion for substitution was filed in the original case November 8, 1889, it does not appear that any notice was given of its pendency. It was called up on June 16, 1890, in the name of the original parties only. But when the order was made, the Chicago, Kansas & Western Railroad Company excepted. ■ When it. filed answer,-as it was bound to do under the order of the court, it made the defense that the proceedings for .revivor or substitution were invalid, and at every stage of the case it held to this position. We cannot say, that notwithstanding all this, it consented to the revivor or substitution and voluntarily entered its appearance.
IY. This brings us to the main question as to said order of revivor or substitution. Counsel for defendant in error earnestly and ably contends that the construction heretofore given to §§40 and 425 to 435 of the code, in treating old corporations which have consolidated into a new one as defunct, so as to require a revivor or substitution within one year (unless by consent ), in the same manner as in the case of a deceased party, being a natural person, cannot be maintained on reason or authority, and that an order of substitution of the new company in place of the old can be made at any time as well after as before the expiration of one year from the consolidation, and without the consent of the new corporation. We have given due consideration to the argument of counsel, but it fails to.satisfy us that the doctrine announced by the court in K. O. & T. Rly. Co. v. Smith, 40 Kas. 192, and Cunkle v. Interstate Rld. Co., 54 id. 194, was.erroneous, and we feel it our duty to follow those decisions. The limitation of one year may work a hardship in this case and in others, as it may do in the case of natural persons who die during the pendency of an action. The means of knowledge of a consolidation of railway corporations are much better than those respecting the death of a natural person who may reside far away. Such consolidation is generally a matter of public notoriety along the line of the railway, and the articles must be filed in the office of the secretary of state, and thus become a public record, accessible to all inquirers. It may seem strange, also, that, after counsel have appeared for a defunct corporation for more than a year after its consolidation into a new company, the latter may successfully insist that it cannot be substituted in place of the old one, but this is a necessary eonsequeiice of the position that by the consolidation the old company has ceased to exist, and that revivor proceedings are necessary to keep the case pending in court against its successor. In the case above cited from 40 Kas. 192, under this same consolidation, the landowner succeeded in obtaining judgment against the old company, which commenced a proceeding in error in this court, but on motion of the landowner the case was dismissed, this court holding that all the proceedings subsequent to the consolidation were void. This, of course, left the landowner without any valid judgment. What proceeding, if any, can be maintained by the landowner in such cases we need not discuss.'
The judgment of the district court will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J. :
The facts in this case as it was first presented to this court appear in 52 Kas. 759. This court, on the case then submitted, held that the district court erred in refusing to receive and enter the verdict of the jury, and directed that judgment be entered in favor of the plaintiff for the amount of the verdict. A mandate was duly issued and filed in the district court of Bourbon county, and on the 16th day of May, 1894, it was presented to the court with a motion for judgment thereon. Thereupon the defendant filed a motion for a new trial on various grounds. This motion was overruled, and the defendant excepted. A journal entry incorporated in the case-made recites :
“Now on this May 16, 1894, came on to be heard the above-entitled cause on plaintiff’s motion for judgment on the supreme court’s mandate filed here May 9, 1894, the plaintiff appearing by her attorney, E. P. Ware, and defendant by its attorney, I. P. Dana. Defendant asked the court to allow it a reasonable time, before rendering any judgment in plaintiff’s favor, to file here a transcript of the testimony introduced at the trial of the cause in January, 1890, and a transcript of the charge given by the judge to the jury at that trial, and also asked the court for leave to present to it for review errors of law which occurred at said trial; each of which requests and applications the court refused and overruled, and to each such ruling of the court defendant at the time duly excepted and excepts. Thereupon, arguments having been heard on plaintiff’s said motion, the court doth order, adjudge and decree : First, That the judgment heretofore rendered herein pn January 18, 1890, which is recorded in journal “P,” at page 433 of the records of this court, be set aside and held for naught, said judgment being the one rendered in favor of the de fendant and against the plaintiff for costs; second, that the plaintiff have and recover of and from the defendant the sum of $5,000, the amount named, in the verdict of the jury, in favor of plaintiff, filed January 18, 1890, together with 6 per cent, interest thereon from the date of said verdict, being a total sum of sixty-two hundred and ninety-eight ($6,298) dollars.”
Twenty-five days were given the defendant to make and serve a case for this court. The defendant then filed a motion for rehearing, which was overruled. (52 Kas. 774.)
Counsel for plaintiff in error argue with great earnestness and force that the general verdict in favor of. the plaintiff for $5,000 and the special findings of fact were never recognized by the trial court as verdicts until after the mandate of this court was presented directing that they be received and filed and judgment entered thereon ; that at the time of the trial the court refused to receive or recognize these verdicts as verdicts, but directed a general verdict in favor of the defendant, on which it entered judgment; that however much the court might have erred in the conduct of the trial, however unsupported by law or the facts the verdict on -which this court directed judgment to be entered might be, the defendant, having a verdict in its favor and a judgment thereon, not only was not called on to file a motion for a new trial, but that there was absolutely no foundation for any such motion. It is further insisted that vitality was first given to the verdict by the order and judgment of this court, and that not until its mandate was presented to the district court did the verdict of the jury have any force as a verdict; that the defendant was then for the first time called upon to challenge its correctness, or the proceedings of the court at the trial. These views impress us as sound.. The defendant was under no obligation to recognize a verdict as valid which the court refused to receive or act upon. This court held that the district court erred in refusing to receive the special findings and the general verdict in favor of the defendant, and in refusing to treat them as verdicts, and directed that they should be so received and treated.
We think the defendant then had a right tó file a motion for a new trial within the statutory time after the mandate of this court was presented ; that it was then the duty of the court to pass on the motion for a new trial, and that on such motion being overruled the defendant had a right to make a case and present to this court any errors occurring at the trial. If this were not so, the defendant would be utterly without remedy, no matter how many or serious the errors of law occurring at the trial might have been. On examining the record, however, we find nothing to avail the defendant in attacking the verdict. A motion for a new trial was duly presented, overruled by the court, and an exception to such ruling taken by the defendant. The defendant asked time to file in that court a transcript of the testimony introduced at the trial, and of the charge to the jury, and for leave to present errors of law which occurred at the trial. These requests were refused, and properly so, Of course, on the motion for a new trial the defendant had the right to present to the court for review errors of law which occurred at the trial; but there is nothing in the record showing that the defendant was prevented from calling the attention of the court to any and every matter proper to be „ considered on the motion lor a new trial. The defendant had no right to take time* to obtain a transcript of tlie testimony and* charge of the court to he filed in the district court. All errors of law or in the proceedings at the trial could be presented without it. Time was in fact given the defendant to make a case, hut neither the pleadings, original journal entry, evidence, nor charge of the court, are contained in the case. There is absolutely nothing in the case before us showing anything about what was done at the trial. We, therefore, are not called on to consider any question with reference to the correctness of the verdict which was not finally disposed of on the former hearing of this case.
Another question is, however, fairly presented by the record. The court not only entered judgment for $5,000, the amount of the verdict, but added thereto interest from the date of its return by the jury. The question as to whether interest may be allowed on verdicts, prior to judgment, has been fully discussed, and authorities are cited on both sides. In support of the ruling of the court are cited the cases of Gibson v. Enquirer, 2 Flippin, 88 ; Griffith v. Railroad Co., 44 Fed. Rep. 574; and against it Kelsey v. Murphy, 30 Pa. St. 340 ; 11 Am. & Eng. Encyc. of Law, 379, 380, and 391; Bowman v. Wilson, 2 McCr. 394 ; In re Clyde, 12 Blatchf. 403 ; Hamer v. Kirkwood, 25 Miss. 95 ; Reece v. Knott, 3 Utah, 451; Redfield v. Iron Co., 110 U. S. 174; Railroad Co. v. Gabbert, 34 Kas. 132 ; Simmons v. Garrett, McCahon, 82 ; Association v. Hitchcock, 4 Kas. 36 ; Wilson v. Means, 25 id. 83. In some states interest on verdicts is expressly allowed by statute, but not in •this state. We think the general rule to be gleaned from the authorities is that where delay in entering judgment on the verdict is occasioned by the act of the party against whom it is rendered, interest is allowed. (Irvin v. Hazelton, 37 Pa. St. 465 ; Shephard v. Brenton, 20 Iowa, 41; Bull v. Ketchum, 2 Denio. 188.) It cannot be said that the delay in entering judgment resulted from any action of the defendant. It is true that the defendant has at all times contested the plaintiff’s right of recovery, has at all times denied liability, but the contention of the defendant was sustained by the district court, which held that there was no liability. The view we take of this case, however, renders it unnecessary to decide the question whether a verdict bears interest from the time of its rendition or not. The verdict was never recognized, nor received as a verdict by the district court until it was done in obedience to the mandate of this court. It then for the first time was given force and vitality. At the termination of the trial, although the jury made such findings that this court afterward held that the company was liable for the amount found by the jury, yet the district court recognized and received the verdict in favor of the defendant, which it ordered, and- rendered judgment thereon in favor of the defendant for costs. Though the jury found that the defendant was liable, the trial court held that under the law there was no liability. The plaintiff then had failed to establish her right to the payment of any sum from the defendant. There -was neither a judgment nor a verdict recognized as valid by the district court. No demand was established which the defendant was called on to discharge until judgment was entered on the findings of the jury in accordance with the mandate of this court. The claim in this case, as in that of Railroad Co. v. Gabbert, supra, was for damages resulting from a tort, not recoverable at all at common law, but solely by reason of a statute of the state. The damages were wholly unliquidated prior to the judgment, and no interest accrued or could accrue, before a verdict was rendered. We think no liability was ever established against the defendant until the 16th day of May, 1894, when judgment was in fact rendered.
The district court is directed to modify the judgment by striking out the allowance of interest so that it will stand as a judgment rendered on the 16th day of May, 1894, for $5,000, from which date it will bear interest at 6 per cent. The costs in this court will be equally divided.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
The lands purchased by Jackson, the title of which has been determined and quieted in this action, were part of a large grant formerly owned by the Atchison, Topeka & Santa Fe Railroad Company. To dispose of these lands the railroad company organized a land department, and placed a commissioner in charge who employed local, field, and foreign agents to assist him. Blanchard had been employed as an agent of the company, and was therefore familiar with the different terms and plans upon which the lands were sold by the company. A list of prices was fixed upon the lands, but they were disposed of upon several well-known plans, one of which was the cash plan, under which a purchaser paid cash and was allowed a large discount from the list price. Another was the three-year plan, where there was a smaller discount, one-third of the price paid down and the balance in two annual payments. Another was the six-year plan, under which a purchaser got a small discount, a small portion of the price was paid in cash and the balance in six annual installments. There was an eleven-year plan, under which there was but. little discount and the payments were made in eleven annual installments. The company also made provision whereby a proposed purchaser might, upon the payment of $100 upon a section, withdraw such land from sale from 30 to 60 days, during which time the purchaser had the option to purchase the land at the list price under any of the plans of sale which have been mentioned; but if he failed to exercise his option and make a purchase within the time limited the money advanced was forfeited to the company. It appears that the terms of this provision were sometimes varied, and that the company at times reserved the land for a smaller amount per section than $100. Blanchard had taken several options up°n railroad lands, and in some cases had succeeded in negotiating a sale of the lands reserved before the expiration of the option. In 1884 he had deposited money and obtained an option in the name of Wolf for a body of land, and having failed to purchase the same within the prescribed time, the reservation had been revoked and the money declared forfeited. About December 12, 1884, Blanchard went to Garden City, where he talked with Holmes & Co., who were the local agents at that place for the sale of the company’s lands, about taking an option on the lands in controversy. The result of the talk was that he gave Holmes a check for $1,700 to reserve 17 sections of land, for which a receipt was given. On the next day a further conference was had between them, in which it was agreed that Plolmes should go to Topeka and intercede with the land commissioner in behalf of Blanchard to set aside the forfeiture upon the Wolf land, and also to make a further arrangement by which 25 sections of the cheaper lands on the south of the river might be reserved upon the payment of $50 per section. In connection with this arrangement, and to assist in carrying it out, Blanchard gave Holmes an additional check for $8,375.68. There is little if any dispute between the parties as to the facts stated, but there is a sharp conflict in the testimony as to the terms of the options and the subsequent transactions between the parties. ' It is conceded that Holmes went to Topeka at the instance of Blanchard and secured a reinstatement of his Wolf option which had been forfeited, by using the $1,700 which had been advanced as a deposit to reserve a portion of the lands in controversy, and that he also induced the land commissioner to withdraw these lands for a few days without a deposit, upon condition that a deposit of $100 per section on the lands north of the river and $50 per section for 25 sections of the lands south of the river should be forwarded on or before January 1, 1885. No money was paid to the commissioner with which to reserve the land until February 4, when Holmes made a deposit of $2,000, taking a receipt therefor, and this was the only writing which ever passed between the parties in regard to this option. As will appear, the reservation was taken by Blanchard in the name of M. A. Carpenter for a period of 80 days. The following is the document:
“Topeka, Kas., February 4, 1885.
“Messrs. I. R. Holmes & Go., Garden City, Kas.: Dear Sirs — In reply to yours of-, inclosing two thousand dollars as deposit for thirty days, account of M. A. Carpenter, on the following lands, [here follows description of 18 sections north of the river and 25 sections south of the river] . We await receipt of further advice and application. Yours truly,
A. S. JOHNSON, Land Commissioner
On May 29, 1885, the land commissioner notified Blanchard that the deposit had been forfeited because of non-compliance with its provisions. Blanchard asserts that on December 13, 1884, he entered into an agreement with Holmes by which he was to go to Topeka and arrange with the land commissioner to give him an option of one year from that time upon the lands, on condition that he would pay $100 per section for 18 sections and $50 per section for 25 sections, and the further arrangement-that he would build some houses and make certain improvements upon the land, and that Holmes afterward notified him that such an arrangement had been made. He claims to have paid $3,200 under this agreement with which to re serve the land, and that subsequently, at considerable expense, he erected several houses and made other improvements upon the land. He further claims that once, in April, 1885, he arranged a sale of 30 sections to a man named Cole, and that a draft for $25,000 was actually sent to the land commissioner to pay for the land, but it appears that the letter transmitting the draft contained conditions which prevented its acceptance, and the draft was returned. On July 13, Blanchard says that he arranged a sale or transfer to one Crawford for 24 of the sections for $25,000, and a draft for that sum was actually forwarded to the commissioner, who responded that the amount forwarded was more than sufficient to pay for the lands described ; that no more than $21,359.30 would be required, and an inquiry -was made as to what should be done with the excess, $3,640.70. It appears that this information was not in keeping with the representations made by Blanchard to Crawford, and the latter telegraphed the commissioner to hold the draft until explanations were obtained. Afterward Crawford directed the return of the draft, and no other or further attempt was ever made by Blanchard to comply with the conditions of his option, nor were any further steps taken toward a purchase of the land. Holmes says that no more than $2,000 was ever paid upon the option, and positively denies that he made any agreement with reference to improvements, or that the option should be extended for a pei’iod of one year. It is conceded that he had no authority to make such a contract without obtaining the express consent of the commissioner, and it is further conceded that Blanchard knew at the time he paid the $2,000 to Holmes that Holmes had no such authority.
There is a large volume of testimony of the most contradictory character, but there being no special findings, and the general finding of the court being against the plaintiff in error, all these disputes must be resolved against him. There is much said in his brief respecting the weight of the testimony, which in this state of the case is unavailing. "We cannot weigh the testimony to determine the preponderance, nor go further than to inquire whether there is sufficient to sustain the general finding of the trial court. The case might have been reviewed more satisfactorily if special findings of fact had been made, but without them we must infer that the general finding of the court includes in dt every material fact, and that . where there is some proper testimony to support every essential element of the general finding, a judgment based thereon cannot be disturbed by the supreme court. (Railroad Co. v. Foster, 39 Kas. 329 ; Mushrush v. Zarker, 48 id. 382.) In this view we must, conclude that Blanchard did not at any time pay sufficient money to reserve the land for any period ; that no agreement was made that he might have an option for a year by reason of making certain improvements upon the land; that he has not even complied with the terms of the option which he alleges was given to him ; that he has never purchased the land, nor elected under which one of the plans upon which it was offered for sale he would purchase it; that he has never at any time paid or tendered the purchase-price of the land under any plan ; and that before the lands were sold by the company, he abandoned his option and surrendered any claim which he ever had to a right to purchase. Blanchard asks a specific enforcement of a contract of purchase when no purchase has in fact been made. During the limit of the option he could select any one of four or five different methods under which the company sold its land, and such selection would fix the amount of the purchase-price and the terms of payment. Until that was done no one could know how much land was to be taken, nor the price to be paid, nor what would be the times of payment. The option agreement was binding on the parties, and might have been enforced at the instance of Blanchard if he had elected to purchase and had complied or offered compliance with the terms of the agreement within the stipulated time. (Bras v. Sheffield, 49 Kas. 702.) There was no such compliance, however, within the time fixed in the written option, nor yet within the year which Blanchard said was agreed upon.. It appears that Blanchard made several unsuccessful efforts to dispose of the land early in the year 1885, and although the time had elapsed, it seems that the commissioner was still willing to let him have the land on his option as late as July 15, 1885. Blanchard earnestly contends that the draft which was then forwarded by Crawford from Chicago entitled him to 24 of the sections included in the option. It appears, however, that the money was withdrawn before it could be applied, on account of misrepresentations made by Blanchard with regard to the cost of the land.
We fail to find anything in the testimony indicating a purpose on the part of the commissioner or other of the agents of the company to frustrate the efforts of Blanchard in disposing of the land within the specified time. Looking at the testimony of the defendant in error as we are required to do, it would seem that considerable indulgence and leniency had been shown to Blanchard in carrying options for him, even after some of the conditions had been broken. After the Crawford transaction, in July, 1885, no effort was made by Blanchard to exercise his option or comply with any of its conditions. Indeed, it appears that soon afterward trouble arose which caused him. to flee the country, and there is testimony that on his return, in December, 1885, he acknowledged that he had lost the lands in question, and made statements indicating an abandonment of his option. It is true that he made improvements on some of the lands, but the houses were soon sold and removed to satisfy claims and liens against them. They were placed on the land, as we must assume, without authority, and with a knowledge by Blanchard that he would lose them, as well as the deposit, in case he failed to exercise and protect his option. There is testimony .that he Avas advised not to make any improvements upon the land because of the risk he would run of losing the deposit and improvements in case he was unable to make the purchase, but he insisted that he was positive that he would be financially able to close the deal, and was therefore willing to assume the risk.
Proof was offered that the land was vacant .and unoccupied when it was sold to Jackson, and, as the testimony stands, Blanchard is not in a position to claim anything by reason of the improvements that were made upon the same. He failed to sustain the allegations of his cross-petition, and was therefore denied relief. Under the testimony and general finding, he had nothing more than an option, by which the cost of the land and terms of sale were to be determined upon election of one of the plans under which the land would be sold ; and, as no election was ever made, the price of the land and terms of payment were never determined. No contract of sale was ever made, and, as the parties have never settled upon what the contract should be, the court certainly could not make and enforce one for them. Considerable testimony was offered by Blanchard to sustain his view, and much is said in his behalf about the overwhelming weight of evidence being in his favor; but, as has been seen, his testimony is contradicted by that of the other parties, and the general finding of the court upon the conflicting testimony is conclusive-here. That finding determines that Blanchard utterly failed to comply with the conditions of his option, and that he has forfeited all rights under it.
■There are some objections to rulings upon the admission of testimony, but we find nothing in them of a substantial character, or which require special comment.
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
Martin, 0. J. :
The petition alleges that Doctor Knapp vacated the office of superintendent by resignation on July 1, 1892, but this fact is not otherwise directly shown. It seems probable, however, that early in the year he signified his intention of retiring from the office on June 30, 1892, and that Doctor Wentworth was chosen to take the place when it should be so vacated. The state claims that Doctor Wentworth’s term expired on April 1, 1894, being 15 years or five full terms after the first appointment of Doctor Knapp, and that Doctor Wetmore, who was chosen on July 18, 1894, and who on the same day qualified and demanded the office, is entitled to it until April 1, 1897. The defendant contends that, under said § 3 of the act for the organization and regulation of the asylums for the insane, and the terms of his appointment, he has the right to hold the office until July 1, 1895. A construction of said § 3 is necessary to an adjudication of the rights of the parties. It will be observed that this statute makes no provision whatever for the time of beginning or ending of a term, nor for a vacancy, nor for the filling of an unexpired term, nor for an appointment for less than three years. In these respects it differs materially in terms from most of our statutes regulating the tenure of public officers. On Ma_y 23, 1861, almost at the beginning of our state government, a statute was enacted regulating elections, being chapter 28, Laws of 1861. Sections 39, 40 and 41 of this act read, respectively, as follows :
“ Sec. 39. All vacancies in any state or county office, and in the supreme court or district courts, unless otherwise provided for by law, shall be filled by a£>-pointment from the governor until the next general election after such vacancy occurs, when such vacancy shall be filled by election.
“Sec. 40. The regular term of office of all state, district and county officers, of the justices of the supreme and judges of the district courts, shall commence on the second Monday of January next after the election.
“Sec. 41. Any of the said officers that may be elected or appointed to fill vacancies may qualify and enter upon the duties of their office immediately thereafter, and, when elected, they may hold the ¡same daring the unexpired term for which they were elected, and until their successors are elected and qualified ; but, if appointed, they shall hold the same only until their successors are elected and qualified.”
These sections were published as above in chapter 86 of the compilation of 1862. Sections 39 and 41 were re-enacted literally as §§57 and 59, and § 40 somewhat altered as § 58, of chapter 36 of the General Statutes of 1868. No change has been since made, and the sections appear, respectively, as ¶ ¶ 2718, 2719 and 2720 of the General Statutes of 1889. In Bond v. White, 8 Kas. 333, which involved the right to the . office of sheriff, said §§ 57 and 59 were declared constitutional, and we have no doubt of the correctness of that decision as applied to county officers. Whether the sections intended to, or do, cover all cases of judicial vacancies provided for by § 11 of article 3 of the constitution, we need not now inquire, but they were treated as valid, and as constituting rules of construction, in Hagerty v. Arnold, 13 Kas. 367, 381, et. seq.; The State, ex rel., v. Mechem, 31 id. 435, 436, and The State, ex rel., v. Foster, 36 id. 504. Hale v. Bischoff, 53 Kas. 301, was a contest for the office of assessor of a city of the first class, a place filled by appointment, it being expressly provided by the statute that, "in case of any vacancy in any appointive office, the mayor, b}>- and with the consent of the council, shall fill such vacancy for the nnexpired term for which his predecessor was appointed.” (Laws of 1881, ch. 37, § 81; Gen. Staf. of 1889, ¶ 635). The foregoing authorities are all cited by the state to aid us in the construction of a statute essentially differing from the statutes which were controlling in those cases, for, as we have already seen, the section under consideration does not recognize any such thing as vacant, unexpired or fractional term, nor the appointment of any person for a shorter term than three years.
The State, ex rel., v. Thoman, 10 Kas. 191, required an interpretation of §§ 5 and 13 of article 3 of the constitution, the former fixing the term of office of the district judges at four years, and the latter regulating their compensation, in connection with chapter 52, Laws of 1867, creating the sixth, seventh, eighth and ninth judicial districts. Under this statute, Goodin was elected judge of the seventh district in 1867. He was re-elected in 1871, although the statute of 1867 was silent upon the subject of the recurrence of the election for judges. In the five original districts created by the constitution, the judges were elected in 1860, 1864, and 1868, and the salaries having been raised, the question arose as to the validity of the election of 1871, and it was held that the constitution fixes the term at four years, and it was not in the power of the legislature- to increase or extend that term, either directly or indirectly, and the first election for judge being in 1867, the next was properly held in 1871. Peters v. Board of State Canvassers, 17 Kas. 365, followed the authority of the Thoman Case, holding that the judicial elections in the ninth district were properly held in 1867, 1871, and 1875, and this notwithstanding chapter 117, Laws of 1872, purporting to fix the time of the judicial elections in the new districts in 1872, and eyery four years thereafter, the act being inoperative and void, as in conflict with § 5 of article 3 of the constitution. The cases of Odell v. Dodge, 16 Kas. 446 ; Comm’rs of Ottawa Co. v. Nelson, 19 id. 243, and Morgan v. Comm’rs of Pratt Co., 24 id. 71, are to the effect that in the organization of new counties the first or special election for officers is provisional only, and the offices are held temporarily until filled at the next general election. It is difficult to discover wherein these cases throw any light upon the construction of the statute now under consideration, and yet these are all the Kansas authorities cited by counsel for the state.
We cannot give this act the interpretation suggested on the part of the state, which would, in our opinion, violate rather than carry into effect the will of tlie legislature, as expressed in plain words. If this were allowable on any supposed ground of public policy as to the terms of these officers, yet we could not find any ground on which to base an argument that the public interest would be in any way promoted by the creation of fractional terms by judicial construction. We are aware of no reason that would forbid the appointment of officers for the Topeka and Osawatomie asylums at different times, nor that would require the choosing of the four officers of either institution at the same time. The statement of facts shows that the board of trustees has not kept the triennial terms distinct nor uniform, even as to the Osawatomie asylum. The circumstance that where the legislature has seen fit to recognize vacant fractional terms it has expressly provided for the filling of the places for the unexpired terms, furnishes a strong reason for holding that where they have not done so it was intended and deemed best that the officer, at whatever time appointed, should hold his office for the term prescribed by the statute ; and that if he should vacate the place before the expiration of that time this should not shorten the term of the next incumbent. In other words, when one goes into office by virtue of an appointment under this stature, he has a right to fill it for the prescribed period, but if he quits, his term ends, and a new one begins when the appointment of his successor takes effect. And this doctrine is sustained by the great weight of authority.. (Throop, Pub. Off., §§319 and320, and cases cited.) In People, ex rel., v. Green, 2 Wend. 266, 273, under a constitutional provision that sheriffs should be chosen “ once in every three years, and as often as vacancies shall happen,” it was decided that a sheriff elected in September, 1826, to supply a vacancy occasioned by the death of his predecessor, who took his office January 1, 1826, would hold the office for three years. In delivering the opinion of the court, Marcy, J., said :
“ Green was elected, as I understand the provision, to fill the vacant office, and not merely to serve out the vacant term of his predecessor. I am inclined to think that a diversity of opinion on this subject has arisen from different applications of the term ‘vacancies ’ in the section of the constitution which we are now considering. It has been sometimes applied to the office, as contradistinguished from the term of service, and at others, to the term of office. I understand it as applicable to the office alone. When Green came into the office, he took it with all the rights, powers and incidents belonging to it, under any circumstances, one of which was a tenure of’three years.”
See, also, The People, ex rel., v. Coutant, 11 Wend. 132; Marshall v. Harwood, 5 Md. 423-431; Sansbury v. Middleton, 11 id. 296, 297 ; Crowell v. Lambert, 9 Minn. 283 ; Whipper v. Reed, 9 Rich. (S. C.) 5 ; Meredith, ex parte, 33 Gratt. 119 ; Keys v. Mason, 3 Sneed, (Tenn.) 6; Brewer v. Davis, 9 Humph. (Tenn.) 208-13 ; Banton v. Wilson, 4 Tex. 400. The Virginia case is very instructive, reviewing many of the authorities.
It should also be added that the case cited from 11 Wendell was afterward affirmed by the court of errors (id. 511), Chancellor Walworth delivering the opinion of the court.
The fact that the board made the appointment of Doctor Wentworth “for the unexpired term ending June 30, 1894,” is of no consequence, for under the authority of Hale v. Bischoff, supra, he will hold until July 1, 1895.
Judgment in favor of the defendant.
JohNStoN, J. : I concur in the result.
The case of The State, ex rel., v. T. J. Hayes will be disposed of in the same manner. He was appointed steward for the same asylum February 6, 1892, but ' the record does not show when his appointment was to take effect. On July 18, 1894, W. H. Wilson was appointed, but as the term of Hayes did not expire until February 6, 1895, or at a latter date, (depending upon the time when his appointment became effective,) tli ere was no vacancy at the time of the appointment of Wilson, and judgment must be rendered in favor, of the defendant.
Allen, J. :
I am unable to reconcile the conclusion reached in this case with the prior decisions of this court. It seems to me that no sound distinction can be drawn between the case presented by an appointment made at a time prior to the expiration .of a regular three years’ term and that of an election to the office of judge of the district court, either after a vacancy has been filled ‘by appointment until the next-general election, in accordance with the provisions of the constitution, or where an election is held on the happening of a vacancy. The case cited from 88 Grattan, 119, is to the effect that an election of judge would be for the full term, and not merely for the unexpired term ; but this court, in the cases of The State, ex rel., v. Thoman, 10 Kas. 191, and Peters v. Board of State Canvassers, 17 id. 365, cited in the opinion, adopted the other rule, and in the latter case held that the legislature could not even by statute provide for a change of the regular succession of terms of office, though a judge had held over his term of four years because of a failure to elect a successor. The cases mentioned applied the rule which had been declared in The State, ex rel., v. Cobb, 2 Kas. 32, with reference to the terms of office of the justices of this court to judges of the district court. The constitution provides that a judge of the district court “shall hold his office for the term of four years.” The only provision for filling vacancies is to fill them until the next regular election. The judge who is elected at that election would appear to have as strong a claim to hold for four years by virtue of the provisions of the constitution as the superintendent of the asylum can possibly have under the statute under consideration. But this court ,held, in the cases cited, that there was a regular succession of terms, and that the judge elected when there was an unexpired term to fill held only for the balance of his predecessor’s term. The case of Hagerty v. Arnold, 13 Kas. 367, also cited in the opinion, as well as a number of cases since decided, applies the same rule to county officers. Some of the authorities from other states, cited in the opinion, hold the reverse under similar statutes. It can hardly be-seriously contended that the legislature can change a rule established by the constitution, and the power to do so was very emphatically denied - in the Peters Case. If the question were a new one in this state, perhaps the arguments in favor of the rule announced in this case might appear as weighty as those opposed to it. As applied to the particular officers whose terms are under consideration, I perceive no special objection to the conclusion reached. It does seem to me, however, that a well-defined and steadily-maintained rule for the construction of statutory and constitutional provisions -with reference to the succession of terms of office is broken down by this decision, and that hereafter we shall be at sea without any reliable compass for our guidance in determining the tenure of a considerable class of public officials, and that it is far better to adhere steadily and consistently to the rule already adopted, especially in view of the fact that it has seemed to work satisfactorily in the past. In the case of Hale v. Bischoff, 53 Kas. 301, though not necessarily involved in the decision, the rule that terms of office follow each other in regular succession, in the absence of express provision to the contrary, was recognized as the settled law of this state. Some force is attributed to the want of any provision in the statute under consideration for filling vacancies. The statute does not in express terms provide for any appointment but the first. The power to appoint after the expiration of the first term must be inferred. It seems to me that with equal ease we may infer the power to fill a vacancy. | [
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Allen, J.
W. H. Green, who was the husband of the plaintiff, was' employed by the Railroad Company to clean the fire-boxes and other parts of its engines at Arkansas City. On the 16th of March, 1890, for the purpose of cleaning an engine, he went into a pit 30 feet long and 3i feet deep, dug between the rails of one of the company’s tracks. He had nearly completed his work and was standing between the end of the ash-pan of the engine and the south end of the pit, when the engine was backed off the pit and his head was crushed between the énd of a bolt that protruded from the heel of the pilot and an iron plate on the top of the south wall of the pit, causing his death. This action was brought by his widow to recover damages for causing the death of her husband. A general verdict for $3,000 was rendered in her favor, and judgment entered thereon. The Railroad Company seeks a reversal of this judgment. The first error assigned is with reference to the exclusion of certain testimony, but is not of sufficient importance to merit a statement in the opinion. The principal contention is on the merits of the case. A demurrer to the evidence was overruled. An instruction to find for the defendant was refused, and the Court overruled the defendant’s motion for judgment on the special findings. Complaint is made of all these rulings. There was evidence showing that the engine was started, without notice to Green, before he had finished his work. The circumstances testified to by plaintiff’s witnesses indicate that the first part of the engine that struck Green was the ash-pan. It is insisted that the testimony of the plaintiff’s own witnesses is opposed to the finding of the jury to that effect.
Counsel calls attention to the fact that J. C. Smoykefer testified that the links were the first thing that struck Green, and that Cliff Williams testified that it was the shaker-bar. The witness Jacks does not appear to have seen Green until he was struck by the heel of the pilot. Witnesses for the defendant testi fied that on this particular engine the shaker-bar was inside the ash-pan so that it could not have struck the deceased. In this state of the evidence it is insisted that the finding of the jury, that the ash-pan was the first thing that struck Green, is contrary to the evidence. We do not find the direct statement of any witness that he saw the ash-pan strike Green. The testimony of Williams shows that Green was standing up behind the ash-pan, fixing something about the damper; that the engine was suddenly started; that no signal was given, and nothing was said about starting ; that the shaker-bar, which stuck down back of the ash-pan, struck Green and knocked him down, so that his head lay on top of the south wall of the pit; that the ash-pan held him down, and that a bolt on the under part of the pilot caught his ear and crushed his head against an iron piece that runs across the top of the end of the pit; that after he was first knocked down, Green kicked as though there was something the matter with his foot; and that there were two pieces of cordwood and a board in the bottom of the pit. Williams did not appear to be positive that it was the shaker-bar that first struck Green. If the main facts testified to by witnesses for the plaintiff were accepted by the jury, and if they also believed from all the testimony in the case that the shaker-bar of this engine was inside the ash-pan so that it could not have hit Green, the most reasonable conclusion is that it was the end of the aph-pan that hit him, and that Williams was mistaken in that particular, though truthful as to the essential facts. It would make very little difference whether it was the shaker-bar protruding behind the ash-pan, or the ash-pan itself, that first struck him. The effect would probably be the same in either case. J. E. Drennan testified, as a witness for the defendant, that he was the hostler in charge of the engines at that round-house ; that he was standing by the engine directing Green with reference to his work ; that he told him to take the props out of the back damper; that Green went under the ash-pan to the back end of it and took them out; that he then told him to stoop down good and low; that Green did stoop down, and that when he saw that he was down he said to Downing, who was standing right there by him waiting, “All right, get up and back her up” ; that Downing then stepped on the engine and started to back up slowly ; that he then started away and walked probably 30 feet, when he heard some one “ holler,” and ran back and saw that Green was hurt. Other witnesses for the defendant testified that the bell was rung, and that the engine was moved off slowly. The jury evidently did not believe the witnesses for the defendant. There was an irreconcilable conflict between their testimony and that of the witnesses for the plaintiff. It is not our province to say that they were wrong, and that they should have believed the statements of the defendant’s witnesses. If the statements of the witness Drennan are true, it seems quite strange that Green should have been killed. When he had once assumed a position of perfect safety, with knowledge that the engine was moving, it does not seem probable that he would raise up to permit the pilot to catch his head. On the other hand, if the engine was started without warning, it is quite easy to understand how he might have been knocked down by the ash-pan, or any other protruding portion of the engine, and being thrown against the wall, and rendered partially, or totally insensible by the shock, that he should not have been able to get into a position of safety before being struck by the bolt in the pilot which caused his death.
Where the testimony of the witnesses is conflicting, it is the province of the jury to extract the truth from all of it as best they can ; and, in reaching a conclusion, they have a right to exercise their judgment on the reasonableness and probability of the statements made by the opposing witnesses.
The plaintiff in error presented a long list of special questions to be answered by the jury, and most of them were submitted and answered. Numerous criticisms are made in the brief on the various findings, and, it is urged that some of them are not supported by the evidence ; that there are contradictory findings, and that they conflict with the general verdict. We find nothing substantial in any of these claims. While there was evidence warranting different findings from those returned by the jury, there was also evidence to uphold the findings actually made. We perceive no error in the record.
The judgment is affirmed.
All the Justices concurring. | [
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Allen, J.
On October 4, 1889, the plaintiff’s testator, Thomas G. Mather, caused $3,500 of his money to be placed in the hands of the defendant’s assignors, Lebold, Fisher & Co., to be applied- in part payment for $5,000 of stock in the Lebold-Fisher Loan and Trust Company, which the parties were intending to organize. On the 31st day of the same month, Lebold, Fisher & Co. executed a deed of assignment to Clarence F. Mead for the benefit of their creditors. November 27, 1889, John Johntz was duly elected assignee by the creditors. Having duly qualified and given notice as provided by law, he proceeded to allow demands against the estate of the assignors. The plaintiff’s testator, at the time fixed for considering such demands, presented his claim as follows :
“In the matter of the assignment of C. H. Lebold and John M. Fisher, partners as Lebold, Fisher & Company.
“Presentation of claim before John Johntz, Assignee.”
‘ ‘ Comes now Thomas G. Mather, and represents that on or about the 1st day of October, 1889, he subscribed for fifty (50) shares of the Lebold & Fisher Loan Company,"about to be organized, and did, on or about that date pay over to said Lebold, Fisher & Co., through B. R. Abbe, on account of said subscription, thirty- five hundred dollars ($3,500.00) ; no part of which sum has ever been returned or paid over to him.
Thomas G. Mati-ier, Claimant.
“State of Connecticut, County of Hartford, ss.
“Thomas G. Mather, being duly sworn, on oath says that he signed the foregoing statement of claim, and that the statements therein contained are true.
Thomas G. Mother, Clamant.”
On the 25th of June, 1890, the claim was indorsed by the assignee as follows : “6-25-1890. — Within allowed.— J. Johntz, Assignee.”
On the 24th of January, 1893, William H. Burrows, executor of the estate of Mather, filed his petition in the assignment proceeding, stating the facts with reference to the receipt of the money by Lebold, Fisher & Co., and the purpose'for which it was delivered to them, and asking an order requiring Johntz to pay the amount to the petitioner. Johntz thereupon filed a motion to dismiss the petition on the ground that the claim was barred by the Statute of Limitations. On the hearing, the assignment proceedings'above noticed were introduced in evidence, and it was admitted that the assignee had in his hands sufficient funds to pay the claim, if entitled to preference, although the estate was insufficient to pay all general claims in full. The Court sustained the motion; holding that the claim was barred by the three-years Statute of Limitations. Error is predicated on this ruling. Two questions are discussed by counsel: First, Whether Mather, in his lifetime, by presenting the claim as though he were a general creditor and obtaining an allowance thereof as such, did not elect to pursue that remedy, and waive his right to charge the assignee with having received a trust fund ; Seeond, Whether the claim, as against an assignee, is barred by the Statute of Limitations. A third question, not discussed, is suggested by the record, viz. : Whether, in the absence of any showing that Mather’s money was actually included in some form in the estate which came to the hands of the assignee, his executor may recover it as a trust fund.
The only question considered by the trial court, as would appear by the record before us, was that of the Statute'of Limitations. Counsel for the plaintiff in error insists that the plaintiff’s claim, is founded on a written instrument, and that the five years Statute of Limitations governs. When the money was paid to Lebold, Fisher & Co., they executed a written receipt therefor showing the purpose for which it was received. As between Lebold, Fisher & Co. and Mather, the latter undoubtedly had a cause of action based on a contract in writing. When Mather presented his claim to the assignee, he presented it as a claim against the general estate in the hands of Johntz, as assignee, and it was allowed as such. His present contention is that a fund of $3,500 passed into Johntz’s hands which Johntz had no right to administer and distribute to the creditors of Lebold, Fisher & Co., but that it came to him as a trust fund, which it was his duty to at once pay over to Mather. His claim, to be effectual, must be against Johntz himself, and not as the assignee representing the estate of Lebold, Fisher & Co. He must proceed on the theory that Johntz holds this sum as his individual trustee; rather than as the trustee of all the creditors of Lebold, Fisher & Co. Though the assignors held the fund upon the trust that they would invest it in stock of the proposed corporation, the assignee never held it on any such trust; but, if he received it at all, he received it solely as money belonging to Mather, and subject to Ms order. He never entered into any contract, either written or verbal, with reference to the fund, but at most his contract was one which the law would imply, to deliver to the rightful owner; and a claim under a contract of this Mnd is barred in three years under the second clause of section 18 of the Code of Civil Procedure.
There is a little uncertainty in the record as to the time when the estate came into Johntz’s possession, but the fair inference seems to be that the estate was in the hands of the assignee more than three years before the .petition to recover the fund as a trust was filed by the executor. The parties not only failed to show the exact time when the estate went into the hands of the assignee, but they also failed to definitely show, or agree, that either the identical money which was delivered by Mather to Lebold, Fisher & Co., or any property into which it had been converted, actually went into the hands of the assignee. It is impossible to say, from the record, with certainty, that the assignee ever got these funds in any form. A trust is not imposed on the assignee unless the funds of the plaintiff actually came into his hands in their original form, or commingled with the estate, or had been used by the assignor to swell and increase the estate which passed by the deed of assignment. Myers v. Board of Education, 51 Kan. 87; Hubbard v. Irrigation Co., 53 id. 637. This case, unlike any other that has been considered by this Court, rests on the bare presumption that the money came into the hands of the assignee because it had been received by the assignor a short time before the assignment, and had never been repaid to the plaintiff.
There is also much force in the contention that, by presenting his claim to the assignee for allowance as an ordinary demand against the estate in his hands, the plaintiff elected to become an ordinary creditor, and waived his right to charge the assignee as his trustee. The claim was established by the assignee’s allowance, and became, in effect, a judgment against the general estate of the assignor. It was a full determination of Mather’s right to a distributive share of that estate. State v. Kansas Ins. Co., 32 Kan. 655; Limbocker v. Higginbotham, 52 id. 696.
A party having a right to resort to two inconsistent remedies.is bound by an election made with a full knowledge of the facts, and cannot thereafter pursue the other remedy because it promises better results. Plow Co. v. Rogers, 53 Kan. 743; City of Larned v. Jordon, 55 id. 124. Mather’s right to an allowance against the estate depended on the existence of an indebtedness from Lebold, Fisher & Co. to him. It implied that the money had become the property of the assignor, and that Mather had become their creditor. The claim the plaintiff now pursues rests on the assumption that Lebold, Fisher & Co. never acquired any right to the money delivered to them ; that it passed into the hands of Johntz, not as a part of the estate of the assignor, but as the money of the plaintiff;— as a fund the title to which had never passed from Mather, and which the assignee was therefore bound in equity to deliver to him on demand. It is urged, however, that the claim presented to the assignee was presented as a claim for a trust fund. We find no allegation in the claim, as presented, to the effect that this money passed into the hands of the assignee as a trust fund, nor that the claimant intended to stand on any other ground than that of a common creditor. It merely shows that the money was paid to Lebold, Fisher & Go. to be used in payment for the stock, and that no part of it had been returned to him. It nowhere states that that money was then in the hands of the assignee, nor does it ask that he pay that sum to the claimant in full because of its character as a trust. Mather could not be, at the same time, a general creditor of Lebold, Fisher & Go. and the owner of a specific trust fund in the hands of Johntz.
The judgment of the district court is afimned.
All the Justices concurring. | [
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Allen, J.
The first and most important question presented by counsel for plaintiffs in error arises from the fact that the attachments in favor of L. Simon & Co., and M. D. Wells & Co., were levied before the final delivery of the deed to Shanks, which occurred on the 4th of September, 1891. The attachment of the plaintiff was levied on August 29, 1891, and that of M. D. Wells & Go. two days later. The goods exchanged for the land by Shanks were shipped to Lane on the morning of August 28,‘and arrived there on the 1st of September.
It is urged that an attachment binds only the interest which the debtor owns at the time an attachment is levied ; that it does not bind an after-acquired title, and that neither E. N. Shanks nor Annie E. Shanks, whose name was written in the deed as grantee, obtained any title to the land until the delivery of the deed. The general rule of law is that a deed takes offect only from. delivery, and that an attachment does not bind a title subsequently acquired. It must be conceded that the legal title to the land did not actually pass to Annie E. Shanks until the delivery of the deed on September 4. But to sustain the attachment it is not . indispensable tnat tne defendant siionld have been vested with the .legal title at the time of the levy. It is sufficient if he had an eqitable title. §222 Code; Bullene v. Hiatt, 12 Kan. 98; Aldrich v. Boice, 56 id. 170. The contract between Shanks and D.evore for the exchange of the goods for the land was made on the 24th of August, and the deed was then executed, signed, and acknowledged. On the next day it was deposited in the bank at Clarence to be delivered when the goods should arrive at Lane. The goods were shipped on the 28th, and received at Lane on the 1st of September. If we were to treat this merely as a parol contract, although not enforceable if either party should choose to repudiate it it was not absolutely void. Becker v. Mason, 30 Kan. 697; Dupuy v. Delaware Ins. Co., 63 Fed. Rep. 680. It was voidable only at the election of one of the parties to it. Neither party elected to avoid it. On the contrary both parties elected to affirm and execute it. It was, in fact, carried out exactly in accordance with its original terms, with the single exception that the name of Mrs. Shanks was inserted in the deed as grantee. In this case there was the added circumstance that the deed was actually executed by Devore, and deposited in the bank at Clarence, to be delivered when he should receive the goods at Lane. The deed bore date August 24. It was delivered September 4. If it were important to determine the question as to the date when the legal title passed from Devore to Mrs. Shanks, it is possible that the doctrine of relation might properly be invoked in favor of the attaching creditors; but in this case it is unimportant when the legal title vested, if Shanks at the time the first attachment was levied had such an equitable interest in the land as might be seized for his debts. The parol contract had been duly made, and the deed duly executed, and he was entitled to the delivery of it as soon as the goods should be delivered to Devore at Lane. 1 Devlin, Deeds, § 327. The goods were delivered, and the deed was delivered. Under all these circumstances it is clear to us that, when Shanks commenced the actual performance of the contract by shipping the goods, he obtained an equitble interest in the land, which' neither he nor his wife may now deny for the purpose of defeating the attaching creditors. There is no force in the objection to the order directing the application of the proceeds of the land to the payment of the judgment in favor of King & Co. The levy of the attachment in their suit was sufficient to give them a standing in the case and to authorize the court to protect their interests.
There is ample evidence to uphold the findings that the name of Annie E. Shanks was inserted in the deed for the purpose of defrauding the creditors of R. N. Shanks, that she was chargeable with knowledge pf the fraudulent purpese of her husband, and that she was not a bona fide purchaser of the land. Her refusal to answer pertinent questions concerning the transactions between herself and husband, on which she based her claim as a purchaser, places her in a very bad light. The questions were entirely proper, and there was no fair semblance of an excuse for her refusing to answer. The Court was justified in inferring that, if she had made truthful answers, they would have disclosed the want of foundation for her claim.
We are entirely satisfied of the correctness of the judgment of the trial court, and it is affirmed.
All the Justices concurring. | [
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Johnston, J.
This was an action for false imprisonment, brought by H. J. Prunelle against the City of Caldwell, in which he alleged that he was a traveling photographer, and undertook to do business in Caldwell. Under an ordinance of that city a demand was made that he should pay a license tax of $5 per day, which he refused to do, but offered to pay the occupation tax imposed on resident photographers, which was $10 per year. Upon his refusal to make the required payment he was arrested by the City Marshal, taken before the Police Judge, and, after a trial, was adjudged to pay a fine of $5 and costs and stand committed to jail until payment was made. Upon refusal to pay the fine and costs, he was committed to the city prison and held there for seven days, when a writ of habeas corpus was sued out, under which, although it was resisted by the attorneys and officers of the City, he was discharged. A demurrer to the petition was overruled by the Court, and the City elected to stand upon the demurrer and presents the case for review.
Caldwell is a city of the second class;-and such cities are expressly empowered to levy and collect license taxes upon occupations, and among others photographers are named in the statute. ¶804, Gen. Stat. 1889. The fact that a larger tax is levied upon the transient and traveling photographers than upon those resident in the city will nbt invalidate the ordinance. Fretwell v. City of Troy, 18 Kan. 271; Tulloss v. City of Sedan, 31 id. 165; City of Cherokee v. Fox, 34 id. 16. It is not alleged that Prunelle was a citizen of a state other than Kansas, and hence no question arises as to the distinction between residents and nonresidents being in violation of the Federal Constitution. If the ordinance was invalid it would not aid the plaintiff below. It is well settled that cities are not liable in an action for false imprisonment for the acts of their officers while enforcing invalid ordinances, or for other illegal or unauthorized acts. The provision in question is a police regulation, and the officers in enforcing the same were exercising a public and governmental function. For the manner-in which they exercise their powers and duties in this respect the city is not liable. Peters v. City of Lindsborg, 40 Kan. 654, and cases cited; see, also, Trescott v. City of Waterloo, 26 Fed. Rep. 592; Ball v. Town of Woodbine, 61 Iowa, 83; Grumbine v. Mayor, etc., 2 McA. 578.
The petition failed to state a cause of. action against the City, and hence the judgment of the District Court will be reversed, and the cause remanded with direction to sustain the demurrer thereto.
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The opinion of the court was delivered by
Martin, C. J. :
I. The court erred in overruling the defendant’s challenge for cause of William Dye as a juror. He seems to have been fair and straightforward in answering the questions of court and counsel, and he might have been entirely fair in the considera tion of the case; but, as he felt that it would require a continual effort on his part to deal with the railroad company in the same way that he would with an individual, and that, perhaps, he could not consider the case in an-impartial way, it was the duty of the court to excuse him. A juror may be challenged “on suspicion of prejudice against, or partiality for, either party” (§ 270, Code) ; and where the trial judge is in doubt as to the impartiality of a juror, a challenge for cause should be sustained. (M. K. & T. Rly. Co. v. Munkers, 11 Kan. 223, 232.) The defendant having exhausted all its peremptory challenges, the error will be considered material although the juror was afterward discharged on peremptory challenge. (The State v. Vogan, 56 Kan. 61, 63, and cases cited.)
II. The quoted testimony of Mr. Schroeder was somewhat objectionable, notwithstanding the liberal rule adopted by this- court in Mo. Pac. Rly. Co. v. Mackey, 33 Kan. 298, as to the duties of persons engaged in a particular employment. It does not appear that Mr. Schroeder had ever been foreman of a gang of men engaged like this in relaying a track and using several hand-cars in their work. Besides it was a question of fact for the jury to determine as to the distance that the hand-cars should be kept apart so as not to be a source of danger to the men riding upon them, for a safe distance would vary with the speed of the cars, and the grade and condition of the track, and would not, necessarily, be “four telegraph-poles ” at all times. The admission of this evidence, however, would not require a reversal of the case, for the evidence shows that the hindmost car was within 15 to 30 feet of the middle one at the time of the derailment of the latter; but, as the case must be retried, we have deemed it best to call attention to the error in the admission of this testimony, in order to guard against its repetition.
III. The court erred in refusing to strike out the testimony to the effect that Finnegan was troubled by the sickness and confinement of his wife, and the fear that he would leave her and the child in a dependent and helpless condition. Under the decisions of this court, a recovery may be had for mental suffering or anguish of mind resulting from physical pain and suffering endured by the injured party; but it is improper to admit evidence as to mental suffering on account of the circumstances or condition of others. (City of Parsons v. Lindsay, 26 Kan. 426, 435; City of Salina v. Trosper, 27 id. 544, 564; West v. Telegraph Co., 39 id. 93, 99.) The sum awarded for mental suffering, which was liberal, may have been enhanced by the admission of this incompetent testimony, and we cannot hold that the error in its admission was not prejudicial to the defendant.
IY. In fixing the value of- the time lost by Finnegan from the date of his injury until his death, it would be proper for the jury to consider his age, his occupation, and the wages which he had earned in the past in whatever capacity he may have been employed. The opinions of witnesses, however, as to what he would be capable of earning at vocations in which he had never been employed were clearly inadmissible. (A. & W. P. Rld. Co. v. Newton, 85 Ga. 517, 526 ; same case, 45 Am. &, Eng. R. Cas. 211.) This is also an error for which the court would not reverse the judgment, as the allowance for loss of time was not substantially different from the amount shown by competent evidence.
V. Instruction 21 was somewhat vague and uncertain as to the fourth element of damage, and it was this, no doubt, that caused the inquiry of the jury as to whether damages for permanent injury were limited to the actual lifetime of the person injured ; and this called forth the further instruction of the court that such damages were not limited to the lifetime of Finnegan. In the an-' swer of the jury to the particular question of fact regarding the length of time taken into consideration as a basis for an estimate, the jury evidently had regard to the expectancy of the life of Finnegan, although no evidence was introduced upon the subject. "We think, however, that such evidence would not have been admissible, for expectancy is only to be resorted to in the absence of certainty, and as the life of Finnegan was terminated before the trial, there was no basis for an estimate of damages extending beyond that period. Damages for the permanent deprivation of health and of the capacity to work and enjoy.life should therefore be limited to the period extending from December 1,1890, to October 18, 1891. (Busw. Pers. Inj. § 20.)
VI. The court did not err in overruling the motion of the defendant for judgment in its favor, notwithstanding the general verdict. It is true that Finnegan assumed the ordinary risks of the employment in which he was engaged, and all defects in the hand-car and in the track of which he had knowledge, or which in the exercise of ordinary care should have been known to him. The upright of the hand-car had been broken and was mended only in a temporary way. This was a patent defect of which Finnegan must be held to have known, but it was not even a contributing cause to the derailment. The worn condition of the cog-wheels and of the flanges was not so obvious. The active duty of inspection was not incumbent upon Finnegan, and therefore it was a question of fact for the jury to determine whether he, in the exercise of ordinary care, should have discovered that the hand-car was unsafe and unfit for use in these respects. Finnegan was not a section-man engaged in repairing the track. He and his colaborers were taking up the old track, and laying down new steel rails. The road was in operation, and Pat. Lynch was the section-foreman, whose duty it was to keep the track in a reasonably safe condition until the new steel rails were laid down. He testified that he knew of this particular defective rail for two weeks prior to the injury. Finnegan had no opportunity of examining this rail, or any other, except in passing over the track on the hand-car going to and from his work. The evidence shows that many of the iron rails were battered and worn, but the particular one where the derailment occurred was unusually bad. It was also a question for the jury to determine whether Finnegan was guilty of negligence or not in running over this bad rail to and from his work without objection. Hare, the foreman of the steel gang, testified that it was dangerous to run the cars at a less distance than a telegraph-pole, or 180 feet apart, yet he must have known that on this occasion the three cars were running quite near to each other, and the men on the hindmost car certainly knew that they were very close upon the middle car, and Finnegan was powerless to prevent' this, except by running faster, which would involve the first car in danger. The evidence and the particular findings of fact justify a verdict in favor of the plaintiff. Finnegan, who was only 29 years of age, was left a physical wreck by the injury, so that life was changed from a pleasure to a burden, which he perhaps chose to lay down rather than longer to bear, and, except for the large allowance for permanent injury, we cannot say that the verdict is excessive.
The defendant in error challenges the sufficiency of. the record to present the errors complained of, but we think that, by a liberal interpretation, the record must be held sufficient. The plaintiff in error presents some further questions, but we think they are without substantial merit.
On account of the errors hereinbefore mentioned, however, the judgment must be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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Martin, C. J.
I. The Court of Appeals in effect held that the remedy provided by sections 171 and 172 of the Executors and Administrators Act (¶ ¶ 2957, 2958, Gen. Stat. 1889), relating to the refunding of legacies and distributions, is exclusive, and that no action having this purpose in view can be maintained in the District Court. Referring to those sections as affording a remedy, the Court says :
“We apprehend that if a proper showing had been made in this case it would have been the duty of the •Court to appoint an executor or administrator de bonis non, and he, under the direction of the Court, would have proceeded after the allowance of the claim to procure assets sufficient to pay said claim.”
We do not think the plaintiff was required to pursue this circuitous remedy, if, indeed, an administrator de bonis non can be legally appointed after all the property has been distributed and the personal representative discharged. Final settlement had been made six years before there was a breach of the covenant of warranty ; and under J such circumstances we hold that relief may be afforded in equity directly against the beneficiaries of the estate to compel them to refund that which in good conscience they ought not to retain. It is true that, while an estate remains unsettled and the Probate Court is still exercising jurisdiction over it, the District Court should not, except in special •cases, entertain an action for relief properly gran table by the Probate Court; but we think it follows. from a long line of decisions of this Court that the District Court may properly entertain jurisdiction in a case of this character. The following are some of the authorities, and they refer to most of the others : Shoemaker v. Brown, 10 Kan. 383 ; Klemp v. Winter, 23 id. 699, 705; Stratton v. McCandless, 27 id. 296, 306 ; Kothman v. Markson, 34 id. 542, 550 ; Gafford, Guardian, v. Dickinson, Adm’r, 37 id. 287, 291; McLean v. Webster, 45 id. 644, 648, and In re Hyde, Petitioner, 47 id. 277, 281. The Court of Appeals relied on Fox v. Van Norman, 11 Kan. 214, but we think that case is distinguishable from this as from McLean v. Webster, supra, as stated by Chief Justice Horton in said case.
II. The defendants claim that, in any event, the judgment of reversal was proper on other grounds, one of which only we think it necessary to discuss. The covenant of warranty does not assume to bind the heirs of George W. Hamblin, and it is well settled in England that in such case they would not be liable. In order to hold them liable on such a-covenant, it was necessary to show that they were named therein and that they should have assets by descent sufficient to meet the demand. 2 Bl. Com. 304, and Rawle, Cov. Title §§ 309, 310. The latter author says :
“The liability (whether immediate or ultimate) of the heir by reason of his ancestor’s covenants for title depends in this country, to a great extent, upon the statutory provisions adopted in the different states for making the real estate of a decedent liable for the payment of his debts. ... In the United States, it may be said that, as a general rule, lands are liable for the debts of a decedent, whether due by matter of record, by specialty, or by simple contract. In the last two cases, the existence of the debt, unless it be reduced to judgment, creates no lien during the debt- or’s life. By his death, however, its quality is- changed, and it becomes á lien upon his real estate, which descends to the heir or passes to the devisee subject to the payment of the debts of the ancestor according to the laws of the state in which it lies, and the rights of the creditor can, in most of the states, be enforced against the lands in the hands of a bona fide purchaser, within certain statutory limitations as to time.”
In this State realty does not become liable to the payment of the debts of the estate until the personalty has been exhausted, in which case it may be applied to the fullest extent unless exempt; and, by analogy, when all the assets have been converted into money and distribution has been made to the heirs, devisees, or legatees and an obligation of the ancestor or testator then matures, such beneficiaries of the estate ought to be compelled to refund to the claimant so much of what they have received as shall be sufficient to satisfy it. Strictly speaking, the beneficiaries are not liable in an action at law even when named in the covenant, for they can only be held to the extent of the assets received from the estate. Such action should be equitable in form, to subject the assets received by the beneficiaries to the payment of the debt. But, in this case, no point was made in the District Court as to the form of the action, nor as to the character and amount of the judgment, provided the plaintiff should be entitled to recover; and, the amount received by each of the defendants being greater than the plaintiff’s claim, there was no substantial error in rendering judgment in its present form, the defendants being liable to contribution as between each other.
The judgment of the Court of Appeals must be re versed, and the judgment of the District Court will' be affirmed.
All the Justices concurring. | [
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Doster, C. J.
Laura A. Mills sued the Chicago, Rock Island and. Pacific Railway Company, under section 422 of the Civil Code, for damages resulting from the death of Edward R. Mills, in Doniphan County, this State, caused by the negligent operation of the defendant’s trains. She entitled the case in her name as “administratrix of the estate of Edward R. Mills,” but, in the body of her petition, she described herself as the widow of said Mills, and, also, as administratrix of his estate under letters of administration issued by the Probate Court of Buchanan County, Missouri. She averred, also, that, “by virtue of such letters, she claims the right to recover for the death of her late husband, Edward R. Mills;” and, after setting forth the facts constituting her claim of negligence, concluded with the averment that “by reason of all which, she was greatly injured and damaged in the loss of her husband, and of his services, which were her only means of support.”
The defendant in its answer, among other matters of defense, denied that plaintiff was the widow of the deceased, Edward R. Mills, but, upon the trial of the case, as evidence upon plaintiff’s behalf, admitted that she was his widow, and the jury, in answer to a special interrogatory submitted to it, found such to. be the fact.
Upon the trial of the case it was proved that the residence of the deceased, Edward R. Mills, was, at the time of his death, in the state of Missouri, and that the plaintiff was likewise a resident of such state. The statutes of Missouri, which were offered and received in evidence, showed upon, inspection that, in that state, actions for damages resulting from death caused by the negligence of railroad officers or employes are limited, in the first instance, to the husband or wife of the deceased, where such relation exists ; wherefore it is argued, following the decision of this Court in Limekiller, Adm’x, v. H. & St. J. Rld. Co., 33 Kan. 83, that Mrs. Mills, being the administratrix of her deceased husband’s estate, holding appointment as such under the laws of another state, cannot maintain this action in her capacity as administratrix, the law of the state, whence she derives her authority, giving such right of action to her in her capacity as widow only, and not in her capacity as administratrix. To this the defendant in error, as a principal argument, replies that it was incumbent on plaintiff in error, defendent be low, to specially plead the Missouri statutes showing the right of action to be in the widow, as such, and not in the administratrix, and, failing to do so, the courts here must presume such statutes to be the same as ours, which give a right of action to the administratrix; and the reply brief of plaintiff in error is wholly devoted to an argument in denial of these positions. The defendant in error makes the additional point that the widow, Mrs. Mills, is entitled to recover, as such, notwithstanding she appears in her petition to limit her right of action to her representative character of administratrix. This view appears to us to be sound. It is true she entitles the case in her capacity as administratrix, but she likewise alleges herself to be the widow of the deceased, and the defendant below makes such allegation an issuable point in the case, by filing a special denial thereto. Evidence in support of the allegation was offered and received without objection. The truth of the claim of widowhood was admitted on the trial by the defendant below, and the jury, in answer to a special interrogatory, found the plaintiff below to be the widow of the deceased. It is true, the plaintiff, after reciting the fact of her appointment as administratrix and the issuance to her of letters of administration, declares that “by virtue of such letters she claims the right to recover for the death of her late husband but she is not to be concluded by such declaration, and limited, because thereof, to a recovery in her representative capacity, where the other allegations of her petition so plainly show a right to recover in her character of widow, and where the defendant has not been misled or taken by surprise as to the claim of widowhood, but, on the contrary, has treated such claim as raising a meritorious issue in the case. Under such circumstances, the averment by the plaintiff of her appointment as administratrix, and her right to recover as such, will be treated as surplusage, and judgment will be accorded to her in her individual capacity. To this effect are the authorities. Litchfield v. Flint, 104 N. Y. 543; Heirs of Waldsmith v. Administrators of Waldsmith, 2 Ohio, 156. Besides, the plaintiff in another part of her petition really seemed to intend to claim as widow, and not as administratrix ; because, after averring the facts of the defendant’s negligence, she declared that, “ by reason of all which she was greatly injured and damaged in the loss of her husband and his services, which were her only means of support.” The case of Limekiller v. H. & St. J. Rld. Co., supra, which constitutes the basis of the contention of plaintiff in error, is in nowise at variance with the views herein expressed. There was nothing in that case, as there is in this, to give countenance to a claim of recovery as widow, or next of kin to deceased. The claim of recovery in that case was as administratrix, under appointment by the probate court of a county in Missouri. It being shown that the action could not be maintained in the courts of that State in such representative capacity, it was held that it could not be maintained here in such capacity.
The judgment of the Court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston J. :
No attempt was made by Mason to comply with the statutory requirements concerning the transfer of patent-rights, and for this reason the trial court held the contract to be invalid, and adjudged a rescission. The principal question discussed by counsel relates to the validity of the statute in violation of which the contract was made. Among other things, it provides that it is unlawful for any person to sell a patent-right in any county of the state without filing with the clerk of the district court copies of the letters patent, and with them an affidavit that the letters patent are genuine, have not been revoked or annulled, and that he has full authority to sell. It is required that the affidavit shall give the name, age, occupation, and residence of the party proposing to sell, and he is required to exhibit a copy of the affidavit to any person on demand. There is a further provision that any person who takes a written obligation in consideration of a patent-right shall insert in the body of it in writing or print the words, “ Given for a patent-right.” A failure to compty with these provisions is declared to be a misdemeanor, and the penalty is a fine not exceeding $1,000 or imprisonment in the county jail not exceeding six months. (ch. 182, Laws of 1889; ¶ ¶ 4005-4007, Gen. Stat. 1889.)
In our opinion, these provisions do not trench upon the federal power, nor interfere with the right secured to a patentee by the federal law. It is true that no state can interfere with the right of the patentee to sell and assign his patent, or take away any essential feature of his exclusive right. The provisions in question, however, have no such purpose or effect. They are in the nature of police regulations, designed for the protection of the people against imposition and fraud. There is great opportuity for imposition and fraud in the transfer of intangible property such as exists in a patent-right, and many states have prescribed regulations for the transfer of such property differing essentially from those which control the. transfer of other property. There were some early decisions holding that such regulations trenched upon the federal power and the rights of the patentee, but recent authorities hold that reasonable police regulations may be enacted by the state without usurping any of the powers of the federal government or infringing upon the exclusive rights of the patentee. (Brechbill v. Randall et al., 102 Ind. 528; New v. Walker, 108 id. 365; Pape v. Wright, 116 id. 502; Sandage et al. v. The Studebaker Brothers Manufacturing Co., 142 id. 148; Tod v. Wick Brothers & Co., 36 Ohio St. 370; Herdic v. Roessler, 109 N. Y. 127; Haskell v. Jones, 86 Pa. St. 173; Patterson v. Kentucky, 97 U. S. 501; Webber v. Virginia, 103 id. 344.) The doctrine of these cases is that the patent laws do not prevent the state from enacting police regulations for the protection and security of its citizens, and that regulations like ours, which are mainly designed to protect the people from imposition. by those who have actually no authority to sell patent-rights or own patent-rights to sell, should be upheld. We think the statute is valid.
The purpose of the statute, as we have seen, was to prevent and punish fraud, and noncompliance with its provisions is declared to be a misdemeanor, punishable by fine or imprisonment. The penalty implies a prohibition, and contracts made by a vendor of patent-rights in violation of the act are void as between the parties. The transfer of Mason, being illegal, did not constitute a valid consideration for the money or property obtained from McLeod. (New v. Walker, supra; Sandage et al. v. The Studebaker Brothers Manufacturing Co., supra.)
It is contended by plantiffs in error that if the statute is bad all of. the parties are in pari delicto, and all should be left without remedy. It appears that the contract finally made was not in fact closed up and completed. The $500 note previously delivered to Mason for the Texas territory was never delivered to McLeod. He had deposited the note as collateral in a bank at Le Roy, and it was not then under the control of himself or his wife. The return of this.note and its exchange for the $235 note was a part of the consideration .of the contract, and until these things were done it was not in fact executed. More than that, the general rule that courts will not enforce contracts prohibited by statute or allow the recovery of money or property paid or delivered in pursuance of them does not apply to McLeod. He cannot be held to be in pari delicto. The duties prescribed by the statute are imposed upon the vendor of patent-rights, and are provided for the protection of purchasers. The law was not violated by McLeod. It placed no burdens upon him, and, having committed no wrong, he is not precluded from asking and obtaining relief.
We think the pleadings are sufficient to warrant the findings that were made, and that the judgment should be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
James Conway was convicted of the offenses of burglery and grand larceny, and the punishment adjudged was imprisonment at hard labor in the penitentiary for the term of six years. In his appeal he assigns the rulings of the court upon the instructions as error, and the transcript contains sufficient of the evidence to present the errors complained of. It is first contended that the refusal of several instructions that were requested upon the subject of circumstantial evidence was prejudicial error. While the charge of the court did not call special attention to circumstantial or any other particular kind of evidence, it is true that the instructions given were so broad and general as to cover all the testimony that was offered. In view of the fact, however, that the testimony was largely circumstantial, the court might properly have laid down the rules of law governing that class of evidence and thus have assisted the jury in correctly applying the la>V to the facts of the case. Whether the omission of this duty is of itself a sufficient ground for a reversal it is not important to decide. The principal complaint is based upon the charge of the court with respect to the defense of an alibi. Testimony was offered tending to show that the defendant was at another and different place when the crime was committed, and did not know of or participate in the same. The court refused to give an instruction to the effect that the defendant is not required to prove the defense of an alibi beyond a reasonable doubt to entitle him to an acquittal; that it is sufficient if the evidence upon that point raises a reasonable doubt of his presence at the time and place of the commission of the crime charged. The court in its general charge stated that some evidence had been given tending to show that the defendant was not present at the time the offense was committed, but was at his home, in bed, several miles away from the scene of the crime and knew nothing of it until after it was committed, and did not knowingly participate in the fruits of the crime, and then stated : “If this is true, the defendant, James Conway, should be acquitted.”
Where there is testimony that the accused was so far removed from the place of the crime at the time of its commission as to make it impossible that he could have committed it, the court should inform the jury as to the law of alibi. (The State v. Johnson, 40 Kas. 266.) It is a legitimate defense, and the instructions requested to the effect that the accused is not required to establish the defense beyond a reasonable doubt, or even by a preponderance of the testimony, to entitle him to an acquittal, correctly stated the law. In a case where the personal presence of the accused is necessary to a conviction, that fact must be established by the state by evidence that will convince the jury beyond a reasonable doubt. The burden of proof is upon the state, and is not shifted because of the attempt of the accused to prove an alibi; and if, by reason of the evidence relating to that question, the jury should doubt the guilt of the accused, he is entitled to an acquittal. As we have seen, this view of the law was withheld from the jury, and the error rvas emphasized by the charge of the court that if the claim made by Comvay that he was several miles away from the scene of the crime, and did not participate in it, is true, he should be acquitted. This instruction, in effect, required the jury to believe the proof of an alibi before they could acquit him ; while, as we have seen, the defendant is not obliged to absolutely show the truth of the claim, nor are the jury required to believe that the proof establishes an alibi in order to acquit. The evidence may be such as simply to raise a reasonable doubt of guilt, and in that event the defendant may be acquitted. (The State v. Child, 40 Kas. 482.)
The judgment must be reversed, and the cause remanded to the district court for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J. :
The plaintiffs went before the probate judge of Montgomery county, and without notice obtained a full temporary injunction against the defendant, restraining it from the commission of any of the acts complained of in the petition. A bond for $200' only was required. This injunction, although afterward dissolved by the district judge, has been kept in force in the manner provided by statute. It is apparent that notice of the application could have been given as both parties were located at the same place. The practice of obtaining temporary injunctions affecting materially the rights of parties litigant without giving any notice or any opportunity to be lieard is most reprehensible. Where it is necessary that a party should be restrained from an unlawful act, and there is occasion for immediate action, a temporary restraining order should be issued to operate only until such time as notice can be given and a fair opportunity" afforded the party complained of to be heard. There is no safety in attempting to administer justice when one side alone can be heard. Parties and their attorneys can never be relied on to present the case fairly and truthfully in all respects. It is especially improper for a probate judge to grant such orders without notice. Indeed, we think the most a probate judge should ever do is to afford such temporary relief as the circumstances of the case urgently demand, to continue only until the application can be heard before the judge of the district court in which the action is pending. We have thought it necessary in this manner to condemn the practice resorted to in this case, for which, however, counsel who now appear are not responsible, as they were not then employed in the caso.
The only questions of law necessary to be considered arise on the demurrer to the petition. The main scope and purpose of the plaintiff’s action plainly is to prevent the defendant from laying mains and pipes in the streets of the city' of Ooffeyville for the purpose of supplying natural gas. In other words, it is to maintain a monopoly of its business. It seeks to test the validity of two city ordinances granting the defendant company the use of the streets, etc., and to restrain the defendant from using the privilege granted. For these purposes the plaintiff clearly has no standing in court. The city" authorities are'charged with the duty of preventing encroachments on the streets and public grounds. The proper public officers alone can test the validity of the ordinances under which the defendant claims. The city did not in terms attempt to give the plaintiff company a right to the exclusive use of the streets and alleys for the purpose of laying its pipes. If it had attempted to do so, it-could not for want .of power. A private person or corporation will not be recognized in a court of justice as the guardian of purely public interests, nor to further its private ends by assuming that character. (Craft v. Comm’rs of Jackson Co., 5 Kas. 518 ; Bobbett v. The State, ex rel., 10 id. 9 ; The State, ex rel., v. Marion Co., 21 id. 419 ; Nixon v. School District, 32 id. 510 ; Comm’rs of Barber Co. v. Smith, 48 id. 331.) It is apparent then that the plaintiff has no standing in court to litigate the principal questions it seeks to present. It can neither test the validity of the ordinances under which the defendant claims a right to act, nor could it, if no ordinances had been passed, try the right of the defendant to lay pipes in the streets for the purpose of supplying natural gas.
It only remains to be considered whether there are such averments in the petition as show a threatened interference with the private rights of the plaintiff. It is alleged that the defendant has, in divers places where it has crossed the mains of the plaintiff, destroyed and injured its pipes and mains, but it is not alleged that the defendant is preparing, threatening or about .to do any further injury to the plaintiff's property. The rule is well settled that on a demurrer the averments of the pleading demurred to are to be strictly construed against the pleader. Nothing is to be inferred. Under our system of practice, which is so liberal in the allowance of amendments, no harm can come from adherence to this rule. The only aver- ments in the petition with reference to any contemplated injury to its rights are that the defendant claims that it has the exclusive privilege to use the streets, etc., to the exclusion of the plaintiff; and that the plaintiff ‘ ‘ fears and believes ’ ’ that the defendant ' ‘ will tear up and destroy and ruin the service and injure the business of said plaintiff, and will dig up and cross and go over the mains of the plaintiff; ’ ’ and that “said plaintiff will be subjected to numerous suits for failing to render to its many patrons the service which it has contracted to perform.” Undoubtedly, the plaintiff may obtain an injunction when necessary to restrain the defendant from injuring its mains or pipes or other properties so as to interfere with the conduct of its business ; but, before the defendant can be subjected to the expense and vexation of a lawsuit, it must be shown that it is threatening or preparing to perpetrate some wrong. Injunctions cannot be obtained on the visionary basis of fears or beliefs. It is only actual unlawful purposes made evident by acts or declarations that furnish a valid foundation for the interposition of the strong arm of the law by injunction. (Jones v. Railroad Co., 39 Ga. 138; Portland v. Baker, 8 Ore. 356; Holdrege v. Gwynne, 18 N. J. Eq. 26; Turnpike Co. v. Board of Supervisors, 13 Cal. 190; McHenry v. Jewett, 90 N. Y. 58; High, Inj., §34.) No act or declaration of the defendant is shown indicating a purpose to injure plaintiff's property. It is not even contended in argument that any real injury to the plaintiff’s pipes had been done or was threatened. On the contrary, affidavits contained in the case-made (which, however, are of course not to be considered on this demurrer as affecting our decision) show that the defendant has not injured the plaintiff’s pipes or mains at all. We mention this only because it seems evident that the main and really the only substantial purpose of the plaintiff in this case is to prevent the defendant from competing with it in supplying gas to the people of Coffeyville, and that no wrong will be done by a strict construction of the language employed in the petition. As to the allegation of a claim of exclusive right, courts do not interfere by injunction to restrain unfounded claims. (Gas Co. v. Gas Light, etc., Co., 100 Mo. 501; 18 Am. St. Rep. 563.)
It is said in the petition that the city council by the ordinances under which the defendant claims, attempted to repeal ordinance No. 241, granting the plaintiff its privileges. Copies of the ordinances are attached to the petition. We fail to find any language in either ordinance indicating any purpose of the city council to repeal ordinance No. 241. In ordinance 283, §7 reads: “All ordinances or parts of ordinance in conflict with this are hereby repealed.” As ordinances Nos. 275 and 283 both relate to the privileges granted the defendant company, we think it evident that the council had reference only to ordinance No. 275 in the section quoted. The rights of the plaintiff under ordinance No. 241 were not taken away by the subsequent ordinance, but a concurrent riglit to the use of the streets, etc., was thereby given to the defendant.
The ruling of the district court in dissolving the temporary injunction and sustaining the demurrer •was right, and the judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
JoHNSTON, J. ;
This is an original proceeding in quo warranto to determine who of two contending persons is entitled to the office of warden of the state penitentiary. No controversy exists as to the facts upon which the title to the office depends, and, to facilitate the trial and secure an early decision, the facts have been embodied in the pleadings of the parties upon which the case has been submitted. J. B. Lynch, who brings the action, concedes that Seth W. Chase, the defendant, was duly appointed to the office for a term of four years, which began on the 1st day of May, 1893, and ends on the 1st day of May, 1897 ; but he claims that Chase has been legally removed from the office, and that he, Lynch, has been duly appointed in his stead.
It appears that on March 9, 1895, written charges were presented to Gov. E: N. Morrill, calling in ques tion the official conduct of Seth. W. Chase as warden, upon the grounds of inefficiency, immorality, misconduct, and inattention to the duties of his office. The governor, deeming the charges worthy of credit, and that they emanated from a reliable and trustworthy source; requested Lieut. Gov. James A. Troutman and speaker of the house of representatives Charles E. Lobdell to meet with him on March 18/1895, and, in pursuance of that request, they did meet on the day named at the executive office and proceeded to select a committee of five members of the legislature, consisting of Senators J. W. Parker, of Johnson county, and Edwin Taylor, of Wyandotte county, and Representatives E. F. Caldwell, of Douglas county, H. J. Bone, of Clark county, and T. P. Wilson, of Barber county, to inquire into the truth of the charges presented to the governor, and to examine into the official conduct of Seth W. Chase as warden of the state penitentiary. After due notice had been given to the warden of the charges and of the time and place of a hearing upon the same, the committee organized and proceeded with, the investigation, which continued from day to day for several weeks. Testimony was offered to sustain and also to refute the charges against the warden, who was present in person and by counsel throughout the investigation, and such witnesses as he desired were subpoenaed to testify in his behalf before the committee. On May 31, 1895, the investigation having been completed, the committee filed its report and findings with the governor, together with the testimony which had been taken. A majority of the committee found that several serious charges involving official misconduct and inefficiency were sustained by the testimony, and four members of the committee joined in recommending that he be removed from of fice and. dismissed from the public service. The governor also examined the testimony in the case, and, upon consideration thereof, found that the charges had been proven, and that the defendant was guilty of inefficiency, inattention to duty, immorality, misconduct, and corruption in office. The governor thereupon determined that there was sufficient cause to remove the defendant from the office of warden, and a removal was accordingly ordered. Due notice of this order was served upon Chase, and immediately thereafter the governor appointed and commissioned J. B. Lynch as warden, who at once qualified in the manner required by law, and on June 7, 1895, demanded from Chase the possession of the office and institution. The demand having been refused, the present proceeding to obtain possession was begun by Ljmch.
The decision of the controversydepends upon whether the proceedings for the removal of Chase were legal and effective. It must be considered that an arbitrary removal from the office at the will or pleasure of the governor is not permissible. The tenure of the office is fixed by law at four years, and there is no statutory provision which can be construed as an authority to-remove at pleasure. The statute providing for the appointment of a warden, and fixing the tenure of the office, also provides that the governor may remove him from office for cause. (Laws of 1891, ch. 152, § 3.) Where there is no term or tenure fixed by the constitution or the statute, or where the office is to be held during the pleasure of the appointing power, the power of removal is discretionary and without control; but it is well settled that where an officer is chosen for a definite term, and provision is made for his removal for cause, the causes for removal must be alleged, the party notified, and a hearing bad. (The State v. Mitchell, 50 Kas. 289; Jacques v. Little, 51 id. 300; Lease v. Freeborn, 52 id. 750.) Where the power of removal is definite, and the limits of its exercise prescribed, it must be exercised in the manner and upon the conditions provided by law. Where the statute gives power of removal for cause, without specifying the causes, the power is necessarily of a discretionary nature, and the removing authority is the exclusive judge of the cause and the sufficiency thereof; but where the statute specifies the causes for removal and prescribes the procedure, it would seem that removals could not be made for other causes nor in any other method than that prescribed by statute. In the present case the proceedings for investigation and removal were instituted by the governor, and the procedure authorized by chapter 239 of the Laws of 1889 appears to have been followed for the purpose of determining whether there was sufficient cause for a removal. The proceedings under that statute appear to be regular, and the report of the committee upon the charges made against the defendant show's sufficient cause for removal. The findings and report of that committee were made the basis of the .action of the governor in removing the defendant from the office of warden.
It is first insisted that the judicial power of the state is vested in the courts, and not in the-governor, and that therefore he had no right to try and determine the charges made against the defendant, nor to make an order or render a judgment which would operate to oust the defendant from his office. Although the power to hear and determine is of a judicial nature, it is such a power as is frequently conferred on executive and administrative officers. It does not follow that, because the governor or other functionary hears, considers, and decides, he performs a judicial function which belongs exclusively to a judicial officer or tribunal. We think the legislature has ample power to provide a summary method of suspending and removing incompetent and unfaithful officers, and that it may be accomplished without a judicial trial or judgment. The theory that— a removal cannot be effected without a judicial trial and upon judgment of a judicial tribunal only prevails where it is regarded that the office is a hereditament or one in which the officer has a property or vested right which cannot be disturbed. Although this view is sanctioned by the common law, it is wholly inconsistent with our system of government. It has been said: “Officers are created for the.administration of public affairs. When a person is inducted into an office he thereby becomes empowered to exercise its powers and to perform its duties, not for his, but for the public, benefit. It would be a misnomer and a perversion of terms to say that an incumbent owned an office or had any title to it.” (Donahue v. Will County, 100 Ill. 94.) The office is created for the public convenience, and the officer is the mere agent ^ie Public, who, by virtue of his election or appointment, acquires the right to exercise the functions of the office and receive the prescribed compensation until the end of his term, or until* such time as there may be a resignation or forfeiture of and removal from the office in the manner provided by law. In the absence of a constitutional limitation, the legislature has ample power to protect the public by providing a speedy and effective method for ridding the public service of officers who are incompetent, irresponsible, or dishonest, and to that end may prescribe the grounds which will operate as a forfeiture and provide what officer or tribunal shall determine the fact. The decided weight if authority is that, while the proceeding remove from office for cause involves the examination of facts and the exercise of • judgment and discretion by the executive officer, his action is not judicial in the sense that it belongs exclusively to the counts. ( The State v. Hawkins, 44 Ohio St. 98 ; Conner v. Mayor, 5 N. Y. 285 ; The State v, McGarry, 21 Wis. 496 ; The State v. Prince, 45 id. 610 ; Keenan v. Perry, 24 Tex. 253 ; The State v. Doherty, 25 La. Ann. 119 ; Taft v. Adams, 3 Gray, 126 ; Ex parte Wiley, 54 Ala. 226 ; Patton v. Vaughan, 39 Ark. 211; Wright v. Defrees, 8 Ind. 298 ; Donahue v. Will Co. 100 Ill. 94 ; Cameron v. Parker, 38 Pac. Rep. [Okl.] 14, and cases cited; Rankin v. Jauman, 36 Pac. Rep. [Idaho] 502; Throop, Pub. Off., §§19, 345.)
There is a further contention that chapter 152 of the Laws of 1891 is the latest legislative expression concerning the investigation of the state penitentiary and the removal of the warden, and as its provisions are complete within themselves, and antagonistic to the law of 1889, the provisions of the law of 1891 necessarily supersede those of 1889. This contention cannot be sustained. The act of 1891 is largely a re-enactment of the law of 1868 for the government of the penitentiary. Some additions and modifications have been made to fit the changed conditions, but the provisions with reference to the appointment and removal of the warden, as well as the power conferred upon the board of directors to inquire into the management of the institution and the conduct of the officers, are the same. as those of the earlier statute, and under the rules of construction they must be treated as a continuation of such provisions, and not as a new enactment. (General Stat utes of 1889, ¶ 6687.) These provisions were in force when the law of 1889, providing for the investigation of state institutions and of the conduct of the officers connected therewith, was enacted, and they were re-enacted in the same terms in 1891, after the law of 1889 had been in force for a period of two years, clearly indicating that the legislature did not regard them as repugnant to each other, nor that one should supersede the other. The authority given to the directors in the act in relation to the penitentiary to inquire into its management was mainly intended as a means of gaining information which would enable them to govern and control the institution as the law requires. They are the governing body of the penitentiary and are required from time to time to examine and inquire into all matters connected with the government, discipline, and police of the institution, the purchases and sales of articles provided for the penitentiary or sold on account thereof, and for this purpose they may compel the attendance of witnesses, the production of books, papers and writings before them, and the president of the board is authorized to administer oaths to witnesses. (Laws of 1891, ch. 152, §5.) There is nothing in the act providing that their inquiry or findings shall be made the basis of a proceeding to remove the warden. And this inquiry is made upon their own account, and whenever they deem it necessary in order that they may the better govern and regulate the institution and perform the duties imposed on them by law. The law of 1889, however, is specific, and provides in terms what official conduct shall constitute grounds for a removal, and provides for the organization of a body to investigate those causes and determine whether the statutory grounds-’for removal exist. It is plain that the provisions of the two statutes are not repugnant to each other, and that the one was not intended as a substitute for the other. The act in relation to the penitentiary provides that the warden may be removed by the governor for cause, but it does not in terms pro vide how the cause shall be ascertained. In the absence of such a provision, it is generally held that it rests with the governor to adopt a method of inquiry and ascertainment which his judgment may suggest, providing a reasonable notice is given to the official and a fair hearing had upon the charges preferred; and when proof is offered, he is the exclusive judge of the cause and of the sufficiency thereof. In this case, however, the legislature has supplemented the provision with reference to removal by the enactment of 1889, providing a method by which the causes for removal may be ascertained and established. Although it may not be an exclusive method for determining cause, we are clearly of opinion that it is a proper method of procedure, and that the governor may properly act upon the investigation and report prepared under it.
It is urged that the act of 1889, under which the investigation was made, is unconstitutional, for the reason that the title does not fairly indicate and cover the provisions of the act. The title is “An act providing for the appointment of committees to investigate the affairs of state institutions and conduct of officers.” It has been repeatedly held that § 16 of article 2 of the constitution is not to be enforced in any narrow or technical spirit, but that a liberal interpretation should be placed upon the language employed in the title to express the subject of the act. The provision, as has been, held, must be applied in a fair and reasonable way, so that it will not embarrass or defeat the proper and legitimate exercise of the legislative functions. It is not necessary that the title should be an abstract of the entire act, but it is deemed to be sufficient if the title fairly indicates, though in general terms, its scope and purposes. Everything connected with the main purpose and reasonably adapted to secure the objects indicated by the title may be embraced in the act, without violating the constitutional inhibition. The title in the present case, although somewhat'restricted, provides for the creation of a tribunal to inquire into the affairs of state institutions and the conduct of officers. It clearly indicates that an investigation or hearing is to be had before this tribunal, and anything reasonably adapted to carry out that purpose may be fairly regarded as embraced within the title. Whether the title is sufficiently broad to justify a removal by the governor upon the coming in of the report of the committee is unnecessary to the disposition of the present case. Even if the provision with reference to removal was held to be outside of the title, and therefore invalid, there is ample provision for the removal of the warden under a statute unquestionably valid. Under the rule adopted by this court in numerous cases, the title is undoubtedly sufficient to authorize the creation of the committee and the investigation and report that were made. (Woodruff v. Baldwin, 23 Kas. 491; Philpin.v. McCarty, 24 id. 393 ; Comm’rs of Marion Co. v. Comm’rs of Harvey Co., 26 id. 181; Comm’rs of Cherokee Co. v. The State, 36 id. 337; Railway Co. v. Harrelson, 44 id. 253 ; The State v. Bush, 45 id. 140 ; In re Pinkney, 47 id. 89 ; The State v. Lewelling, 51 id. 562; In re Sanders, 53 id. 191.)
We have, then, a committee with undoubted authority to investigate and determine whether cause for removal exists, and there is unquestioned authority m the governor to remove the *' ° warden when cause is shown. The statutory provisions relating to investigation and report have been substantially followed. The charges were made in writing to the governor, and he, deeming them worthy of credit, instituted the investigation. The defendant received due notice of the charges and had a hearing before a tribunal duly authorized to inquire and report. Cause having been shown as the law requires, nothing remained for the governor but to remove the defendant from his office. The fact that the testimony was not taken nor the inquiry made by the governor himself is unimportant, so long as the inquiry was made and the cause for removal shown in one of the methods pointed out by the statute.
There is some complaint that the proceedings were not as full and precise as the statute prescribes, but upon examination we find no serious defects. Some of the charges were not as specific as they might-have been, but most of those upon which findings were made were sufficient to fairly inform the defendant of the accusation, and to enable him to prepare for the hearing. A summary proceeding of this character is not like a common-law trial, nor is the same precision and accuracy re-x ^ quired as in a trial before a court. (The People v. Board of Police Comm’rs, 98 N. Y. 332; The People v. Same, 99 id. 676; The People, exrel., v. McClave, 123 id. 512; Throop, Pub. Off., §380.) As the committee does not constitute a court, and as the incidents and common-law rights of a court trial are not required, the objections made in regard to certain in-formalities and irregularities are unavailing. There is no room for the application of the doctrine of res ad judicata in such proceedings, and the fact that other charges against the defendant had been made and investigated does not operate to defeat the present proceedings.
The allegation that the testimony was insufficient to sustain the findings is without force. The evidence was heard and considered by a tribunal created for that purpose, and the duty of determining its sufficiency belongs to that tribunal, and not to the court. Testimony was offered to sustain and refute the charges, and the weight and sufficiency of that testimony, as well as the fact of whether cause was shown, were concluded by the determination of the committee and the action of the governor.
Judgment will be awarded in favor of the plaintiff, in accordance with the prayer of his petition.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J. :
The trial court held that the evidence showed an abandonment by Mrs. Mather of her right to an easement over this land. The only evidence to support that claim is that showing that she placed a hedge fence along the north line of the land conveyed to her in fee simple, which was the south line of the tract in controversy, thus excluding from her enclosure the strip two poles wide, or nearly that amount, and that she never actually used the land for a road. The evidence of Doctor Mather, her husband, shows that she had no use for the roadway, but contemplated laying the land out into town lots at some time.
The law is well settled that mere non-user of a right-of-way granted by deed does not constitute an abandonment of the right. In Wasliburne on Easements, p. 717, tbe author says :
'.‘If the easement has been acquired by deed, no length of time of mere non-user will operate to impair or defeat the right. Nothing short of a use by the owner of the premises over which it was granted, which is ad verse to tlie enjoyment of such easement by the owner thereof for the space of time long enough to create a prescriptive right, will destroy the right granted.”
So in Day v. Walden, 46 Mich. 575, Judge Cooley, delivering the opinion of the court, says :
“The right to the easement was not lost by the mere neglect to assert, use and enjoy it for the period of 20 years. There is no doubt of this upon the authorities. The easement was created by grant as an appurtenance to the mill; and there were no conditions or limitations attached which rendered its use necessary to its continuance. The grant was perpetual, and without conditions; and therefore the privilege granted would continue indefinitely whether the grantee did or did not avail himself of it. An accepted grant cannot be waived or abandoned, and the neglect of the grantee to enjoy the easement would be no more significant in its bearing upon his rights than the neglect to enjoy the freehold to which the easement was appurtenant.”
To the same effect are Riehle v. Huelings, 38 N. J. Eq. 20 ; Lindeman v. Lindsey, 69 Pa. St. 93.
There is no evidence in the record of any. act of the plaintiffs inconsistent with the right of the defendants and their grantors until the strip was fenced up at the end. Even this could hardly be said to amount to such a hostile assertion of right adverse to the defendants as would set the statute of limitations to running against their deed. The defendants neither had nor claimed to have, by virtue of the deed to Mrs. Mather, the full title to the land. • They were under no obligation to use the easement until they desired to do so, nor were they bound to take any action to protect their rights so long as there was no occupancy of the land inconsistent with them. While the deed from Mrs. Mather to Hoag does not specifically mention the right-of-way, it grants the land and appurtenances thereto. There is no question that this easement was appurtenant to the land, and passed to the grantee of Mrs. Mather.
The judgment is reversed, with direction to enter judgment on the special findings and undisputed facts of the case in favor of the defendants.
All the Justices concurring. | [
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