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Error from Leavenworth district court. | [
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Error from Labette district court. | [
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The opinion of the court was delivered by
Smith, J. :
By an instrument in writing plaintiffs in error leased to defendants in error a body of land in Coffey county for the term of ten years from March 1, 1895. The latter agreed to pay as rent for the premises $1000 annually for the first five years, and $1500 each year for the remaining time. In January, 1896, the lessees informed their landlords that they would be unable to continue to hold the land during the entire term, owing to a failure to realize as much from the premises as they expected. Plaintiffs thereon agreed with the defendants that if the latter would continue in possession, and keep and perform the conditions of the lease, they, the lessors, would reduce the rent and remit the sum of $250 from the the amount of rent due for the year 1895, and an equal sum from the rent due for the year 1896.
The modification of the lease in the respect mentioned was made in a letter written by the plaintiffs in error, tendering a remission of rent, and accepted in a letter to plaintiffs written by the lessees. In a letter dated February 11, 1896, M. T. Brown, one of the plaintiffs, in answer to one received by him from Boulton, one of the defendants, wrote :
“I assure you we want the matter to go ahead entirely satisfactorily to all parties as possible, and with the best of feeling all around, and I will make another proposition which you certainly cannot say is not reasonable. Instead of taking off $250 each from the last half the first two years’ rent, as before indicated, I will take it off entirely, provided you go ahead as you agreed to do in your contract.”
To this letter the lessees responded by writing:
“We have concluded to accept your offer of $250 reduction off each of the first two years’ rent, though we should like to have had it for the first five ; however, we will do our best, and if by then we are not able to make it, you will probably meet us again. . We will continue to do our best, and if we cannot make it, I am sure you will meet us again, as we do n’t want to leave the place, but don’t intend to get in the hole.”
On March 1, 3897, the lessees abandoned the premises without the consent of the plaintiffs, and have ever since refused to perform any of the conditions of the lease.
Alleging this state of facts in the first count of the petition, plaintiffs below sought to recover from defendants the said sum of $500, remitted from the stipulated amount of rent which was agreed to be paid by the terms of the lease. The answer of defendants below, among other things, alleged that the execution of the lease was induced by the fraud and misrepresentations of the lessors, for which reason the defendants were relieved from their obligation to perform its conditions. As the judgment below, in favor of the defendants (the lessees), must be reversed, it is sufficient to consider the questions raised under the first cause of action set out in the petition.
The contention by counsel for defendants in error is that the letter of his clients, accepting rebate of rent, was a conditional acceptance of the offer made in the letter of defendants in error, and constituted a counter-proposition imposing conditions not accepted by the lessors. The strength of this argument hinges on the following in the letter of the lessees: “We will continue to do our best, and if we cannot make it, I am sure you will meet us again, as we don’t want to leave the place, but do n’t intend to get in the hole.”
As we interpret this language, it was an acceptance of the offer made by the lessors, provided, as stated in the letter making the proposition, that the lessees would “ go ahead as you agreed to do in your contract” ; that is, to occupy and cultivate the land in accordance with the terms of the lease until its expiration. There was no counter-proposition, but at best a mere suggestion of assurance by the lessees that their landlords would again exercise their generosity, and remit further rent, if the former failed to make profit out of their venture. At the time the letters relative to a reduction of rent were written, the lease was in full force, solemnly executed, and containing in plain language the obligations assumed by the parties. The loose language used by defendants in error in their letter to the lessors, in which they express a hope that if they cannot make the premises profitable another arrangement as to rent will be made, will not vary the terms of the instrument, nor does it amount to a statement that the lessees will abandon the premises if they fail to make profit out of the land.
The modifications of the lease, made by the letters referred to, are to be given the same force as if they had originally been incorporated therein, and are not open to contradiction by oral proof. The reduction of rent was made on the condition that the lessees should go on and perform the stipulations of the lease to the time of its expiration, and on this condition only. Their abandonment of the premises violated this condition, rendering them liable at once for the ■rent remitted. The court plainly instructed the jury to this effect, but its direction seems to have been disregarded.
The legal effect of the leasing of the property to Samuel Dreyer for one year, from March 1,1897, was considered in the case of Brown v. Cairns et al., ante, p. 584, 66 Pac. 639. It was there held that the acts of plaintiffs in error, in reletting the premises after their abandonment, did not constitute a surrender by operation of law.
The judgment of the court below will be reversed and a new trial ordered.
Doster, C.J., Johnston, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
Before considering the errors claimed by the plaintiff in error, we may and ought to say that the record, even Mr. James’s own evidence, does not show the slightest excuse for the deadly and almost fatal assault which he made on Mr. Hayes. It was entirely without legal excuse. Nothing in the acts of Mr. Hayes or the controversy between them can be found to justify the shooting. However, he is entitled to a fair trial under the rules of law, which his counsel claim he has not had.
The first error claimed is in the admission of the testimony of Doctor Mitchell, who attended Mr. Hayes at the time of his injury. The doctor testified as tt> the character and location of the wound received by Mr. Hayes, and was then permitted to tell what would have been the effect had the wound been made upon other portions of the body ; for instance, if it had penetrated the heart, stomach, or liver. It is probable that this testimony was not very material, yet we do not deem it wholly without relevancy. It certainly could have done the defendant no harm.
Complaint is made that the clothing worn by Mr. Hayes at the time he was shot was exhibited to the jury over the objection of the defendant. We do not deem this erroneous. It showed very plainly where and how many shot struck Mr. Hayes, and whether the wound inflicted was grievous or slight.
It is assigned as error that Mr. James was not permitted to answer the question, “Is your physical condition such that you can have a physical contest with anybody?” This, under the evidence, was wholly immaterial. Mr. Hayes was making no hostile demonstration. No claim can be made that it was necessary for Mr. James to shoot at the time he did in order to protect himself. He was permitted, in quite a lengthy examination, to state his exact physical condition.
The court gave the following instruction :
“A party is not generally liable in damages for an injury which is the result of an accident, and if you believe from the evidence in this case that plaintiff was injured, but that the injury received was the result of an accident, then plaintiff cannot recover. But if you find that at the time of the injury received by plaintiff the line between plaintiff’s and defendant’s properties was in dispute, plaintiff claiming said line to be further south than where defendant claimed it to be ; that plaintiff went upon said disputed tract of land to determine where a certain post had heretofore been located, and while there in the act of digging upon said strip of land defendant procured á> loaded shot-gun, pointed it toward plaintiff and discharged it, and plaintiff was injured by reason of the discharging of the gun by defendant, then I instruct you that defendant is liable in damages to plaintiff for any injury he received on account of the discharging of the gun, and it makes no difference whether the defendant intended to hit the plaintiff or not.”
Plaintiff in error complains that this instruction, and especially the last clause thereof, does not correctly state the law ; that it does make a difference in the damages “whether the defendant intended to hit the plaintiff or not.” He argues that this instruction goes to the extent of saying to the jury that as much punitive damages should be allowed in case of an unintentional injury as in one inflicted purposely. We do not think that meaning can be attached to this instruction. It only says that the defendant would be liable in damages whether the injury was intended or not; that is, some damages, the character and extent of which were properly defined and explained in other instructions. Certainly it can hardly be contended that, had the premises laid down in the former part of this instruction existed, Mr. James would not have been liable in some damages. A threat with a loaded shot-gun is not the recognized legal way of settling a controversy about a disputed boundary; and if injury results to another by the discharge of the gun, either by reason of the careless handling and without intention, or purposely, under the conditions therein set out, the injured one would be entitled to recover compensatory damages at least.
It is further claimed that the verdict is excessive and oppressive ; that the jury should not have allowed so much as $500 for pain and suffering, nor so much as $1000 for permanent injury. The wound inflicted was very serious. The defendant in error was de tained from his business thirty-nine days, and it was thought for a time that his injuries might prove fatal. He was taken to and cared for in a hospital, suffering pain for several days quite acutely. ' The muscles of his body were stiffened and movement impeded. It is not possible, in the nature of things, accurately to estimate the money value of pain. We cannot say that so many hours or days of suffering of such intensity shall be estimated at so many dollars, nor can we estimate with any close accuracy the permanent damage that may come to one from so serious an injury. While at the present little inconvenience may be experienced therefrom, as age advances the effects may be felt more and more. The very best that can be done is to submit the whole question to the enlightened and oath-bound consideration of an impartial jury, with proper instructions as to the law governing such cases and arguments by counsel. The rule for the government of the jury was correctly stated by the trial court as follows :
“In cases of this character, where damages are sought to be recovered for personal injuries, no fixed rule can be laid down in arriving at the amount of the verdict. If you find for the plaintiff, then in determining the amount of actual damage you have a right to take into consideration the extent of the injury, whether it is permanent or only temporary, any pain or suffering the party may have sustained, loss of time, or his inability to labor on account of the injury he received.”
We cannot say that the verdict is not authorized by the evidence, or that its amount is so excessive as to indicate passion on the part of the jury.
The plaintiff in error requested the court to give nine different instructions, none of which was given. The refusal of the court in> this respect is alleged as error. We have carefully examined them and are persuaded that all the propositions of law therein contained which were applicable to the facts of the case were fully covered by the instructions which were given.
The record is quite voluminous. We have carefully examined it and are compelled to say that no reversible error is found. The judgment of the trial court will be affirmed.
Johnston, Greene, Ellis, JJ., concurring. | [
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Error from Montgomery district court. | [
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The opinion of the court was delivered by
Ellis, J. :
The contention of counsel for plaintiffs in error that the court erred because it enforced an oral agreement of counsel in violation of its rule is unavailing. The rule referred to is as follows :
“Stipulations and admissions of counsel will not be enforced unless made in writing, or in open court in the presence of the stenographer and by him taken as a part of the record of the case.”
Such rule is valid. (Jones v. Menefee, 28 Kan. 437.) Rules of a district court are made in pursuance of the inherent power vested in that tribunal to aid in administering, and not in thwarting, justice. If to invoke the assistance of a rule under a given state of facts would be to accomplish a wrong, a court may well decline to apply it, and in such case the power that made the rule may suspend its operation. That a court ought not to do so', except for good cause, is evident ; that oral stipulations affecting the substantial rights of litigants should not be -made by the counsel for the respective parties is undenied; still, where an undue advantage is gained, and especially where a judgment is rendered against a party nowise liable for the payment of a debt, in consequence of reliance being placed on such an agreement as the court below by its general finding must be presumed to have held had been made in this case, we think that the court, in the exercise of a sound discretion, in a direct proceeding brought for that purpose, may, in furtherance of justice, set aside a judgment thus obtained and permit a party who is without personal fault to defend upon the merits. Where, under such circumstances and for such laudable purpose, a district court elects to ignore its rules, this court will not reverse a judgment in-order to enforce them.
It is evident that, by the special finding quoted in the statement, the court designed to hold that, while Mr. Eoberts had not intended to take advantage or mislead his adversary, his acts did in fact amount to legal or constructive fraud. We are satisfied’ from a critical examination of the record that both counsel acted in good faith, and that the decision of the court below was right.
The judgment of the district court is affirmed.
Smith, Cunningham, JJ., concurring. | [
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The opinion of the court was delivered by
Greene, J. :
The plaintiff in error and her husband were tenants of the defendants, occupying a farm leased by the husband from them on the 3d day of March, 1899. While the plaintiff in error was about her household duties upon said premises, drawing water from a well used for domestic purposes, the platform gave way, precipitating her into the well, from which she sustained personal injuries. She brought this action against the defendants in error, the owners and lessors of the property, to recover damages. The defendants filed a demurrer to her petition in the court below, which was sustained, and she brings the case to this court for review.
The petition, after setting out the lease made by defendants in error to her husband, and the taking possession and occupancy by her husband, herself and their family on or about the 3d day of March, 1899, alleged, in substance, that the well that was intended for use for domestic purposes and situated at the porch of the residence was covered with a wooden platform or planks ; that the defendants in error had built the platform over this well and had constructed it of inferior and unsuitable material, selected by them for that purpose and used in its construction by their direction; that the sleepers or stringers under this platform were in a defective and unsafe condition at the time of the leasing and taking possession by plaintiff in error; that the defendants in error knew this, and, notwithstanding their knowledge, negligently, fraudulently and carelessly concealed the truth from her, as well as from her husband, the lessee, and failed to disclose such knowledge to the plaintiff or her' husband; that the defects in the sleepers or stringers were not obvious and could not be discovered by the exercise of ordinary care ; that the plaintiff in error did not know of such defective material or the dangerous condition of the platform; that in the performance of her household duties she was required to and frequently did draw water from this well, and that upon this occasion, about two months after they had gone into possession, she was in the exercise of ordinary care, and while performing her household duties and in attempting to draw water from this well, the sleepers or stringers under the platform gave way and she was precipitated into the well, whereby she sustained personal injuries.
In deciding this question, we are not called upon to determine the liability of the landlord where he did not have actual knowledge of the defective condition of the premises.
A landlord is not an insurer or a warrantor, nor is he compelled to exercise constant care and inspection ; but if he knows that the premises which he is about to let are in a dangerous condition, especially if such danger or defect is not obvious or discoverable to the tenant by the exercise of ordinary care, and does not inform him of such danger, and injury is occasioned thereby to him or a member of his family, the landlord is liable in damages. The law requires good ■faith on the part of the landlord toward his tenant. The defect existed when the premises were leased, and the defendants in error knew this and intentionally concealed it'from their lessee ; and it being a defect not discoverable by the lessee or his family in the exercise of ordinary care and reasonable diligence, we have been unable to find' any principle upon which the demurrer should have been sustained. The rule ■seems to be that, in the absence of a contract to repair or warranty of condition, both landlord and tenant must use reasonable care and diligence. If the tenant neglects such reasonable care and diligence to ascertain the condition of the premises, or, knowing their condition, assumes the risk, then he cannot recover against the landlord. On the other hand, if the landlord actually knows they are unsafe and conceals or misrepresents their condition, then he is liable, the tenant being in no fault.
We quote from Wood on Landlord and Tenant:
“Where there are defects in the premises, not open to ordinary observation, of the existence of which the landlord knows, or ought to know, which are dangerous to the person of the tenant, it is his duty to disclose them to the tenant, and if he fails to do so, and the tenant is injured thereby, the landlord is responsible for all the damages that ensue to the tenant therefrom.” (Vol. 2, p. 854.)
In Wilcox v. Lucy S. Hines, 100 Tenn. 539, 46 S. W. 297, the court said :
“Although, in the absence of fraud or warranty, a landlord is not liable on his contract to a tenant for injuries resulting from a defective condition of the leased premises, a liability arises out of the wrong of the landlord in leasing premises dangerous at the time, where the danger is not patent, but is known to the landlord, or could be known to him by the exercise of reasonable care and diligence, and could not be ascertained by the tenant by the exercise of reasonable care and diligencé.”
In Edwards v. N. Y. & H. R. R. Co., 98 N. Y. 245, 249, 50 Am. Rep. 659, the court said :
“The responsibility of the landlord is the same in all cases. If guilty of negligence or other delictum which leads directly to the accident and wrong complained of, he is liable ; if not so guilty, no liability attaches to him. If he lets a building for a warehouse, knowing that it is so weak and imperfectly constructed that the floors will break down from the weight necessarily to be placed upon them, his negligence imposes liability upon him for injury to the person or property of any one who may lawfully be upon the premises using them for the purpose for which they are demised."
The case of Cokeby &c. v. Gutkese, 80 Ky. 598, 44 Am Rep. 499, was an action by the daughter of the lessee, by her next friend, for personal injuries which she received. It was alleged in the petition that the lessor knew when he rented the building that the timbers upholding the floor were defective, rotten, and dangerous, and suppressed his knowledge of its condition from the father ; that neither she nor her father could discover the dangerous condition of the floor by reason of the character of its construction; that she fell through the floor, which broke under her, and was precipitated into the vault below, and was damaged physically and mentally. To this petition a demurrer was filed and sustained. The court in passing on it said :
“Although the law presumes it was her father’s duty to repair the premises, in the absence of an agreement otherwise, still we are of the opinion that, if the appellee rented the premises knowing that the floor was in the dangerous condition alleged, it was his duty to disclose his knowledge, because it was a portion of the premises which he knew, as all men know, would be in daily use by his tenant and family, and, unless apprised of the hidden danger, they would inevitably be injured, and the younger and mor-e helpless perhaps lose their lives. And. if, as alleged, he failed to disclose his knowledge, but nevertheless rented the dangerous tenement to the plaintiff’s father, with whom she lived, he is responsible for the injury which she sustained."
When the defendants in error rented the farm they knew that the tenant was going to occupy it for the purpose for which farms are generally occupied ; they knew that the well was intended for and would be used to furnish water for family purposes, and that necessarily the members of the family of the tenant, in the discharge of their household duties, would be required to go to this well frequently for water. The landlord contracted with reference to this use of the premises by all members of the tenant’s family, and withheld from them the knowledge of the fact that the place where they would be compelled to visit more frequently than any other on the premises was almost fatally dangerous.
The owner of premises upon which is situated a structure or building dangerous either by reason of defective construction or from long use, of which the owner has knowledge, and which defect is not obvious or discoverable by the exercise of ordinary care, cannot escape liability to a tenant from whom he conceals the truth, or a member of his family who, not knowing of such defect, and while in the exercise of ordinary care, is injured by the falling of such building or structure.
The judgment of the court below is reversed.
Johnston, Cunningham, JJ., concurring. | [
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Per Curiam:
The defendant in error commenced this action in the district court of Reno county against plaintiff in error, the city of South Hutchinson, a city of the third class, to recover judgment on several interest coupons detached from certain refunding bonds issued by the city. The defense was that the bonds from which said coupons had been detached'were issued by the city without an ordinance having been passed authorizing their issuance, and that the bonds, therefore, were unauthorized.
It was admitted on the trial that the plaintiff was an innocent holder, and that the persons whose names were signed to the bonds as mayor and clerk of the city of South Hutchinson were such officers at the time the bonds were issued, and that the signatures were genuine. Judgment was rendered for defendant in error.
The petition contained a copy of one of the bonds, and alleged that all were like it. These bonds contained the following recital:
“This bond is issued in accordance with the provisions of an act of the legislature of the state of Kansas, entitled ‘An act to enable counties, municipal corporations, the boards of education of any city and school districts to refund their indebtedness,’ approved March 8, 1879.
‘•‘And it is hereby certified and recited that all acts, conditions and things required to be done precedent to and in the issuing of said bonds, have been properly done, happened' and performed in regular and due form as required by law.”
The law authorizing the issuance of refunding bonds by cities of the third class (Laws 1879, ch. 50 Gen Stat. 1901, §§ 517-519) is as follows :
“ Section 1. That every . . . city of'the . . . third class . . . is hereby authorized and empowered to compromise and refund its matured and maturing indebtedness of every kind and description whatsoever, . . . and to issue new bonds, with semiannual interest coupons attached, in payment for any sums so compromised.
“Sec. 2. Bonds issued under this act ... by any city shall be signed by the mayor, and- attested by the city clerk, under the seal of the city.
“Sec. 3. When a compromise has been agreed upon, it shall be the duty of the proper officers to issue such bonds at the rate agreed upon to the holder of such indebtedness in the manner prescribed in this act. . . .”
The bonds from which the coupons in suit were detached were issued February 1, 1889. The interest coupons were paid regularly until February, 1897. On February 18, 1889, the city council passed the following 'resolution :
“The question of funding the outstanding indebtedness of the city was then taken up by the council. The proposition of H. C. Speer, of Topeka, Kan., was read, and, after due consideration, on motion, the following resolution was adopted :
“Resolved, That the floating indebtedness of the city of South Plutchinson, as evidenced' by the warrants of said city issued and outstanding prior to February 1, 1889, be and the same are hereby ordered refunded in the amount of six thousand five hundred •dollars ($6500), and not in excess of such indebtedness February 1, 1889.
“The^mayor and city clerk are authorized and instructed to execute bonds under the provisions of chapter 50, Laws of'1879, to bear date February 1, 1889, and to mature February 1, 1914, with coupons for semiannual payment of interest at six per cent, .per annum; bonds and coupons payable at the Kansas fiscal agency, New York city. The said officers shall cause said bonds to be registered by the city clerk and the auditor of state. ,
“On delivery of said bonds to the purchaser thereof, the city treasurer and the city clerk shall make a joint certificate, under seal, that an equal amount of warrants of the city of South Hutchinson issued and outstanding prior to February 1, 1889, principal and interest accrued thereon prior to said February 1,1889, has been surrendered and canceled prior to and by the issuance of said bonds, dollar for dollar.
“The said bonds are hereby sold and ordered delivered to H. C. Speer, at the Merchants’ National Bank, of Topeka, for the even sum of six thousand five hundred dollars, in accordance with his proposition on file with the city clerk and hereby accepted.
On July 5, 1897, the plaintiff in error, by its council, passed the following ordinance :
“ Beit ordained by the Mayor and Gity Gou/ncil of the City' of South Hutchinson :
“Section 1. That two hundred and dollars ($200.62) be and the same is hereby* appropriated from the sinking-fund belonging to the city of South Hutchinson, to buy in and have canceled refunding bond No. 1 of the city of South Hutchinson, issued and dated February 1, 1889, and which matures February 1, 1914, with interest at six per cent., which said bond is for the sum of five hundred dollars {$500).
“Sec. 2. The said sum of two hundred and ($200.62) dollars is to be paid for said bond in full, and said bond is thereupon to be delivered to the city treasurer, and be marked ‘canceled’ ; and the said clerk is hereby authorized to draw his warrant on the treasury for the said sum of $200.62.
“Sec. 3. This act shall be in force and take effect from and after the time it is recorded in the ordinance book.
“Recorded July 5, 1897.
“The above ordinance was passed at a regular session of the city council held July 5, 1897; vote recorded on page 19 of city record. .
S. D. Ray, City Clerk.”
The city council of a city of the third class is the authority designated by law to determine , whether •all acts precedent to its right to issue funding bonds have been performed, and á recital in a funding bond that all such precedent acts have been performed, certified to by its mayor and clerk, concludes the city in an action by an innocent purchaser of such bonds or the coupons detached therefrom. (The State v. Wichita County, 62 Kan. 494, 64 Pac. 45; The State v. Scott Co., 58 Kan. 491, 49 Pac. 663; Town of Coloma v. Eaves, 92 U. S. 484, 23 L. Ed. 579; Brown v. Ingalls Tp., 81 Fed. 485; Brown v. Ingalls Tp., 86 id. 261, 30 C. C. A. 27.)
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Cunningham, J. :
This was an action in ejectment, based upon a tax deed issued in 1895 by the county clerk of Leavenworth county. The defendants contended that the deed was void because the tax levy of 1890, upon which the sale was based, exceeded the power of the county commissioners.
Section 181 of chapter 25, General Statutes of 1868, provided:
‘ ‘ In counties where the taxable property is less than five millions of dollars, the board of county commissioners shall not levy a tax for the current expenses of any one year of over one per cent, on the dollar of such valuation; and in counties where the taxable property is five millions of dollars or upwards, the tax for such purposes shall not exceed one-half of one. per cent, upon such valuation in any one year, unless by a direct vote of the electors of the county.”
In 1879 a special act of the. legislature was passed authorizing the county commissioners of Leavenworth' county to -levy upon all taxable property in the county for the yéar 1879, and-for each subsequent year, for current expenses, five and one-half mills on the dollar. The law remained in this condition until 1885, when section 181 of chapter 25, General Statutes of 1868, was amended by an act (Laws 1885, ch. 110; Gen. Stat. 1901, § 1853,) the title and body of which are as follows :
“An act to amend an act entitled ‘An act relating to counties and county officers,’ being chapter twenty - five of the General Statutes of eighteen hundred and sixty-eight, and to repeal section one hundred and eighty-one thereof.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. That section one hundred and eighty-one of chapter twenty-five of the General Statutes of eighteen hundred and sixty-eight be amended so as to read as follows : Sec. 181. The board of county commissioners of any county shall not levy upon the taxable property of such county a tax for current expenses of said county of any one year in excess of the following amounts: Upon a valuation of five million dollars and under, one per cent. ; over five millions and tinder six millions, eight and one-half mills ; over six millions and under seven millions, seven and one-half mills; oyer seven millions and under eight .millions, six and one-half mills; over eight millions and under nine millions, five and three-fourths mills ; over nine millions, one-half of one per cent. ; provided, that the electors of the county, by a direct vote, may order an increase in such levies.
“Sue. 2. That original section one hundred and eighty-one of chapter twenty-five of the General Statutes of eighteen hundred and sixty-eight be and the same is hereby repealed.”
This act was incorporated into chapter 25 of the General Statutes of 1889, and was the general law in force in 1890, at the time of the levy for which the land in question was sold. The levy in question was greater than one-half of one per cent, for current expenses, and Leavenworth county had more than nine millions of taxable property.
The question involved in this discussion is which law governed in the matter of the levy of the tax of 1890' in Leavenworth county, the special act of 1879 ■or the general law of 1885. If the latter, then the levy was in excess of that authorized by law, and the tax deed was void when attacked as it was. More •specifically to state it, Did the general law of 1.885 repeal, by implication, the special act of 1879? The court below held that it did not, and that the tax deed under which the defendant in error claimed was good, and directed judgment in his favor.
The books unquestionably lay if down as a general rule that a general law does not by implication repeal a special act; and the argument in support of this rule is that, where the mind of the legislator has been turned toward the details of a subject and has acted upon it, any subsequent general legislation must be construed and applied with reference to, and in the light of, the special matters already provided for. This rule comes to us with our common law. Greater reason for it manifestly exists under the English system, so largely of private grants and provisions, than under ours, more specifically hedged about with constitutional limitations; but, at best, the rule is only one of construction, and is not invariable or unchangeable ; it must yield when there appear in the general act reasons sufficient to lead to the conclusion that the legislature intended the general act to be of universal application, notwithstanding the prior special one. It is stated in Endlich on the Interpretation of Statutes, section 230 :
“If there be in the act, or in its history, something showing that the attention of the legislature had been turned to the earlier special act, and that it intended to embrace the special cases within th'e general act (and such an intent may be inferred from the fact that the provisions of the two acisare so glaringly repugnant to and radically irreconcilable-with each other1 as to render it impossible for both to stand), something in the nature of either act to render it unlikely that any exception was intended in favor of the special act, the maxim under consideration ceases to be applicable.” >
In Sutherland on Statutory Construction, section 157, the rule is stated as follows :
“It is a principle that a general statute without negative words will not repeal by implication from their repugnancy the provisions of a former one which is special or local, unless there is something in the general law or in the course of legislation upon its subject-matter that makes it manifest that the legislature contemplated and intended a repeal.”
Applying these rules, is it not clear that the legislature intended to m'ake the act of 1885 apply to all counties? The General Statutes of 1868 contained a general rule, not so explicit in statement as the act of 1885, perhaps, and that general rule has been modified by later special statutes as to some of the counties ; but in 1885 the legislature, after a trial of the system of specialized levies, different in different counties but responsive to no general rule, concluded to do away with this miscellaneous and •specialized method, and enacted a law which, while recognizing the needs of different counties, should do so on a general principle, and so it said : “The board of county commissioners of any county shall not levy” etc. What could more strongly indicate the legislative purpose to include all of the counties of the state? To make it do less we must read into it an exception which would do violence to the positive terms of the statute. Then, to show that all of the counties were in the legislative mind, the act goes on to catalogue them into six classes and fit a rate of taxation to the needs of each. After all this particularity and this absolute prohibition upon the commissioners of any county to exceed the levy set down for their particular county, the courts may not say that this legislative command is of no force.
It will be noted further that this general statute is couched in negative terms, which, under the rule quoted from Sutherland, supra, makes it more indicative of the legislative purpose to have it replace all others upon this subject.
There is another consideration which we think ought to have weight. Section 17 of article 2 of the. constitution provides that “all laws of a general nature shall have a uniform operation throughout the state,” and we think the court ought to assume, at least in the absence of inherent evidence to the contrary, that the legislature, in enacting a general law purporting to be of general application, did so in view of this provision of the constitution, and intended it to have such general application, and intended thereby to substitute it for all prior laws, special as well as general. We do not overlook the rule that repeals by implication are not favored, but we are equally well aware of the rule ‘ ‘ that where two statutes are in any respect, in both language and meaning, irreconcilably repugnant, the provisions of the statute last enacted repeal those of the former, with which they conflict.’r (Elliott v. Lochnane and others, 1 Kan. 125.) We hold, that this rule applies as well between a general and a special 'act as between two general ones. (State, ex rel. Attorney-general, Relator, v. Pearcy, 44 Mo. 159; Willing and Mezick v. Bozman, 52 Md. 44; Bowyer v. Camden, 50 N. J. L. 87, 11 Atl. 137; Hoetzel v. East Orange, 50 id. 354, 12 Atl. 911.) That the two acts are repugnant we may not doubt. (Bartlett, Treas., v. A. T. & S. F. Rld Co., 32 Kan. 134, 4 Pac. 178.)
We conclude that the general act of 1885 repealed the special act of 1879 and that the tax levy in Leavenworth county for 1890, being in excess of the amount the commissioners were authorized to levy, the sale of the real estate in question for the delinquent taxes was unauthorized, and the deed based thereon void, when attacked as this was, and, therefore, that the court erred in rendering judgment for the plaintiff thereon.
The judgment of the district court will be reversed, and the case remanded for further proceedings.
Gkeene, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was a replevin for the possession of an undivided share of a crop of wheat. D. B. Reeve rented ninety acres of land from another party, which he put into wheat, and the landlord’s share was one-third of the crop. Reeve harvested and stacked the wheat on the land upon which it was grown, but previously he had mortgaged it to John Baumstark. After it had been put in stacks, a creditor of Reeve caused an attachment to be levied on his share, when Baumstark, claiming a special ownership under his mortgage, brought this action to recover the possession of the same from the constable, who is plaintiff in error, describing it as an undivided two-thirds interest in all of the wheat now in stacks on a certain tract of land. While the litigation was pending the wheat was thrashed and 608 bushels were obtained as Reeve’s share. A trial resulted in a verdict awarding the possession of the property to Baumstark, and Pit-man brings the case here, contending that Baumstark could not maintain replevin for a share of the wheat.
It is a general rule that a part owner of property cannot maintain replevin against his co-owner for his undivided interest, for the reason that one part owner has as much right to the possession of the common property as the other. An exception to this rule is made where the shares of the parties constitute a mass of uniform quality and value, susceptible of a fair and equal division by count or measurement. This rule is peculiarly applicable in cases like the present, as was held in Piazzek v. White, 23 Kan. 621, 33 Am. Rep. 211. There it was ruled :
“When a mixture of cereal grains occurs by consent of the owners, or under circumstances > in which the mixture would be reasonably expected by the parties, and the property mixed is of the same nature and value, although not capable of an actual separation by identifying each particle, yet if a division can be made of equal value, as in the case of corn, oats, and wheat, the law will give to each owner his just proportion, and such owner may recover his share by replevin.” (See, also, Young v. Miles and another, 20 Wis. 646; Kimberly v. Patchin, 19 N. Y. 330, 75 Am. Dec. 334; Kaufmann v. Schilling, 58 Mo. 218; Grimes v. Cannell, 23 Neb. 187, 36 N. W. 479; Wells, Repl. § 209; Shinn, Repl. § 247.)
It is to be observed that this is not a controversy between landlord and tenant or any one standing in the relation of landlord. Both parties claim through the tenant, and the mortgage which he gave to the plaintiff was unquestionably valid. Under it the plaintiff acquired the right and ownership of Reeve, the tenant, who had an undoubted right of possession of the whole crop, even as against the landlord, until the grain was thrashed. The plaintiff, therefore, had a superior right to the defendant, and it has been held that a part owner of personal property may maintain replevin in his own name against one whose right to it is not superior to his. (Chaffee v. Harrington, 60 Vt. 718, 15 Atl. 350.)
Again, the matters of description and ownership appear not to be of great importance, as the plaintiff did not get possession of the property, and the trial appears to have proceeded for the value of the property, substantially like an action in trover.
Some other objections are made, but we find nothing substantial in them, nor anything which requires a reversal. The judgment is affirmed.
Cunningham, Greene, JJ., concurring. | [
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The opinion of the court was delivered by
Pollock, J.:
This is an action brought to recover damages for personal injuries alleged to have been sustained by plaintiff, occasioned by the falling of an electric wire at the corner of Rural street and Eleventh avenue in defendant city. The plaintiff was driving a family horse, alleged to be gentle and quiet, drawing a carriage in which plaintiff, her daughter and four small children were riding. The horse, getting entangled in this fallen wire, became frightened., reared and plunged, throwing the plaintiff from the carriage, and causing the injury of which complaint is made. The injury occurred about seven o’clock in the evening. There was testimony that the mayor and a member of the council were notified of this wire’s being down, and that this wire was down on the day before the injury occurred. Upon the trial the jury returned a verdict for defendant. Plaintiff brings this proceeding in error.
The sole question presented for our determination arises upon the instructions of the court, and particularly instructions 4, 12, and 13. In instruction 4 the court charged the jury as follows :
‘ j But if such 'wire was down only for one day prior to the alleged injury, this would not be long enough to charge and bind the city with implied notice ; and unless you find from the evidence that the city had actual notice, or implied notice, of the fact of such wire being down in a dangerous condition, then you cannot find for the plaintiff.”
Instruction 12 contained the following language :
“If the city did not learn of the wire in question being out of repair until four o’clock or after in the evening, it would not be negligence in the city to delay repairing said wire until next morning.”
In instruction 13 the court said:
‘ ‘ If you believe that the wire in question was in place .and working condition at noon of the day of the alleged injury, and thereafter, and some time prior to the time of the alleged injury, for some cause, fell to the ground, this would not be enough to charge or bind the city with implied notice of the condition of such wire, as charged by the plaintiff; and if you believe from the evidence that such wire was in place and in working condition at noon, or thereafter, of the day of the alleged injury, and the city had no notice or knowledge until noon, or thereafter, of the day of the alleged injury that said wire was down, then the city did not have constructive notice of the condition of such wire, and you will then inquire as to the actual notice, if any, the city had.”
Counsel for plaintiff in error contend that these instructions invade the province of the jury, and are misleading and prejudicial to the plaintiff. We agree with their contention in this respect. It is the duty of a city to keep its streets reasonably safe for public travel thereon at all times, day and night. It was the province of the jury, not of the court, to determine whether the officers of the city had notice, either actual or constructive, of the condition of this' wire for a period of time sufficient to have permitted the same’s being repaired before the injury occurred ; and it was not the province of the court to fix any definite period of time within which the officers of of the city must have had notice of the fallen condition of this wire, prior to the injury to plaintiff, in order to render the city liable.
There are statutory provisions in certain states charging the city with knowledge of a defect in its streets which has existed for a period of twenty-four hours prior to the time the injury occurred. (Monies v. Lynn, 121 Mass. 442; Hanscom v. Boston, 141 id. 247, 5 N. E. 249; Hinckley v. Somerset, 145 id. 326, 14 N. E. 166.) No such statutory provision, however, exists in this state, and decisions based upon it have no application to the case at bar.
The instructions given were both erroneous and prejudicial to the rights of plaintiff and the judgment must therefore be reversed.
Doster, C. J., Smith, J., concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
We are compelled to affirm the judgment of the court below on the authority of Anderson v. Burnham, 52 Kan. 454, 34 Pac. 1056, and Guinn v. Spillman, 52 id. 496, 35 Pac. 13. In the former case this court held that “possession of land by an adverse occupant for more than fifteen years, which is actual, notorious, continuous, and exclusive, will give title thereto, although such possession is entirely destitute of color of title.” Of this declaration of the law we do not understand that plaintiff in error complains, but rather of the court’s application of it to the facts of this case. He contends that, inasmuch as the marking of the corners of the land in controversy and the plowing of the hedgerow along its east line were done while the land yet belonged to the government, these acts should not be referred to and connected with subsequent acts of ownership, so that on such subsequent acts might be predicated a claim of possession to the entire tract; that the acts of building the temporary structures on the southwest corner and, after the removal of the same, of cultivating the small patch of ground upon which they stood were fugitive ones and inadequate to fasten a claim of occupancy upon the entire eighty; that, if good for anything, they were sufficient to start and keep running the statute only as to the land thus actually occupied. Under the authority of the cases cited, and others, we must withhold our assent to this claim, although it is presented with much force and vigor by counsel for plaintiff in error.
The claim made by the defendant in error is that the marking of the corners of the land and the plowing of the hedgerow along the east line, which with the connecting lines completely enclosed the eighty, were continuing acts. His acts indicating ownership of any portion of the land must be referred to and interpreted by this claim. The erection of buildings upon and the plowing and cultivating of portions of the land were an assertion of title to the entire tract indicated by the boundaries marked. From yea to year defendant in error lariated Ms horses upon portions of the land, cut and stacked hay upon other portions, and assumed ownership of it by selling to his neighbors the right to cut hay thereon, or by selling to them hay cut therefrom. All these acts “proclaimed to all that he was exercising acts of ownership over the land inconsistent with the rights of the real owner,” and they were such acts as were appropriate ‘ ‘ according to the locality and quality of the property.” These continuous acts finally culminated in enclosing the tract with a wire fence and plowing a large part of it. During all the time no one else was making any claim to the possession of the land, or any portion of it. In the light of this evidence, we are not able to say that'the trial court was not justified in finding for the defendant, and such finding having been made, we may not disturb it.
It is further suggested by the plaintiff that the defendant, being aware of the fact that his brother was negotiating for the purchase of this land from the plaintiff and assenting to the same “provided his brother also paid him for his right or claim to the land,” thereby acknowledged the title to be in the plaintiff and by such acknowledgment arrested the running of the statute of limitations, if it had commenced to run in favor of the defendant. It is undoubtedly true that the statute would have been suspended by any act which would have amounted to a recognition of plaintiff’s ownership of the land by the defendant. We do not think the facts shown amount to such a recognition. The most that can be said is that the defendant was willing that his brother should purchase the title held by the plaintiff, the brother having arranged, in case such purchase should be consummated, .to buy out the defendant. This, instead of showing a recognition of a paramount title in the plaintiff, shows an existing claim on the part of the defendant.
The judgment of the court below must be affirmed.
Johnston, Greene, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Ellis, J.:
The appellant was convicted in the court below of obtaining goods by means of falso pretenses, and appealed. It is charged in the information that the defendant, with the felonious intent to defraud John Truex and Thomas Truex of a stock of goods, made the following false representation to them:
“That a certain piece of land (describing it) was rich, level, fertile land, lying on the first bottom of the Arkansas river ; that said land was improved by a good house, a splendid well of water ; that forty acres were under cultivation, and that all of said land was enclosed by a good fence; that said land was very productive and was fine land on which to grow alfalfa ; that there were thousands of acres of alfalfa raised in the vicinity of said land and that said land was of the value of more than $2500. . . . Whereas, in truth and in fact, the said land was not rich, level, or productive ; was not bottom land ; was unimproved ; contained no house, well, or fence ; said land was not good land upon which to grow alfalfa ; was not in the vicinity where alfalfa was raised or could be grown, and was not of the value of $2500 but was valueless, all of which he, the said Stephen A. Balliet, then and there well knew.”
Except as hereinafter stated the information is formal. The following errors are assigned: (1) The failure of the district court to quash the information, on motion ; (2) the refusal to give a certain instruction asked by the defendant; (3) the giving of certain erroneous instructions; (4) the denial of the motions of defendant for a new trial and in arrest of judgment. The motion to quash the information was on the ground that the same did not state facts sufficient to constitute a public offense, and when said motion was heard the court asked the defendant’s attorneys to point out any defects. The record recites that they failed so to do, but responded that the motion was on statutory grounds and that they did not wish to argue it. Thereupon the court denied it.
In this court counsel for appellant, for the first time, allege that there is no direct allegation of the ownership of the property obtained by the defendant. After describing the land as to which it is alleged the false pretenses were made, the information charges that said lands, “he, the said Stephen A. Balliet, then and there wished and offered to exchange with the said John Truex and Thoinas Truex for their certain stock of merchandise.” Another averment is that said John Truex and Thomas Truex “were induced by said false pretenses and representations, so made as aforesaid, to deliver and exchange for said land their said stock of merchandise.” In an early case in Maine this form of indictment was used, though no question seems to have been raised in regard to its sufficiency. (The State v. Mills, 17 Me. 211.) McClain, in his work on Criminal Law, adopts the form used in the case just cited, and we have not been referred to any authority holding that the allegations were not sufficient. (1 McClain, Crim. Law, §711.) Except as an illustration of the ingenuity of counsel in discovering and presenting subtile technicalities the objection is without merit.
It is also contended that the information is defective because it does not allege that the goods were delivered to the defendant. As before stated, the information charges that, through the fraudulent representations, the said John Truex and Thomas Truex “were induced ... to deliver and exchange . their said stock of merchandise” for said land. It is also alleged that “the said Stephen A. Balliet did then and there feloniously, knowingly and designedly receive and obtain the said stock of merchandise from the said John Truex and Thomas Truex, with the intent them, the said John Truex and Thomas Truex, then and there to cheat and defraud of the same.” The statutory offense here charged consists of obtaining property by means of false tokens or pretenses. It is distinctly charged that the defendant did obtain the stock of merchandise from John and Thomas Truex, and that he designedly received the same. These allegations, in connection with the averment that Truex and Truex were induced .to deliver the stock, would certainly make it clear that the goods were delivered to the defendant.
Again, complaint is made that the information does not aver in express terms that John and Thomas Truex “believed that the said false pretenses were true.” It is averred that they believed the said false pretenses and were induced thereby to part with their property. It is difficult to understand how a person-can believe a statement without believing it to be true. The natural inference is that, having parted with their goods, having acted upon the pretenses as men ordinarily do who give full faith and credit to the representations of others in- business affairs, they relied ■implicitly upon them as made.
Because of the insistence of counsel, we have considered each of the foregoing contentions, although it is well settled that no obligation to do so exists. They are mere informalities, which, if pointed out to the court or county attorney, might have been amended without resulting even in delay. Certainly as to such matters, when called upon to do so, the attorneys for the defendant should have stated to the court the grounds of objection to the information which they intended to press and rely upon thereafter. Their refusal to do so relieves this court of any duty in respect to such alleged errors. (The State v. Everett, 62 Kan. 275, 62 Pac. 657, and cases cited.)
The remaining assignments of error may be all considered together. The legal title to the land stood in the name of one May Murphy, and the bill of sale of the goods, at the request of the defendant, ran to her, although, it did hot appear that she personally participated in the trade. She was present, however, at the time the inventory of the goods was taken and gave some clerical assistance therein. It is claimed that there was a fatal variance between the allegations of the information and the proof offered in support thereof in that, the'bill, of sale being made out in the name of Miss Murphy, a presumption arises that the transaction was for her benefit, and, if it was, counsel claim that defendant could not lawfully be convicted under an information which failed to charge any conspiracy between him and Miss Murphy, or that the arrangement between them was fictitious and made to deceive John and Thomas Truex. The defendant requested an instruction to that effect, which was refused, but the court did advise the jury that if the defendant “obtained from said John Truex and Thomas Truex the goods and merchandise described in the information, then it is not necessary for the state 'to prove that the defendant so obtained said goods for himself or on his own account, or that he derived or expected to derive any personal or pecuniary benefit from the transaction.” •
After the case had been submitted, the jury requested further instructions with reference to the matters referred to in the instruction just quoted, and the court, in writing, defined the word “obtained” as follows : “The word ‘obtained,’ as used in these instructions, means, to get hold of, to get possession of.” The next morning the jury were brought in, and the court gave them the following additional instruction, which appellant strenuously contends to be erroneous :
‘ ‘ In order to find that the defendant obtained the goods and merchandise charged in the information, it is not necessary that you should find that he furnished the consideration for the transfer or that the title to such goods and chattels passed to or vested in him. It is sufficient if he obtained the possession or control of such goods and merchandise, or that such goods- and merchandise were delivered to another at his request or in accordance with his wishes.”
In the case of Musgrave v. The State, 133 Ind. 297, 307, 32 N. E. 885, 889, the supreme court of Indiana said:
"If the false pretenses of the wrong-doer are such-as to deprive the person from whom the money is procured of his money, then money is obtained by false-pretenses, and a crime is committed. If, in other words, the wrong-doer does make such false pretenses as induce another to part with his money or property, that money or property- is obtained from the owner by false pretenses, because he is deprived of it by criminal means and methods. The law does not make it an element of the offense of obtaining money or property under false pretenses that it shall be obtained for the person making the pretenses himself, or that it shall be intended to obtain it for another, for it is provided that ‘ whoever shall obtain money or property ’ by false pretenses shall be guilty of a felony.”
The supreme court of Iowa, in State of Iowa v. Chingren, 105 Iowa, 169, 175, 74 N. W. 946, 948, said:
“The indictment charges that Conners did ‘bargain, trade, set over and deliver unto the said E. J. Chingren a certain stock of goods, wares, and merchandise, . . . which said stock of goods, wares and merchandise above described were received by said E. J. Chingren and taken into his possession.’ The evidence tended to establish this allegation. Though the bill of sale was executed to the wife, this was done at his instance. The bargain was with the defendant, and the delivery made to him. That he may have been acting for her, or in her behalf, will not relieve him from the responsibility for what he did.”
The case of State v. Mendenhall, recently decided by the supreme court of Washington, 63 Pac. 1109, 1111, is in point. The court said :
“The second assignment of error is that the court erred in not granting plaintiff’s motion to dismiss because there was a fatal variance between the information and proof. It is insisted that the information charges Edward B. Mendenhall with obtaining the goods mentioned under false pretenses, while the proof shows that Edward B. Mendenhall never obtained the goods, but that, if any person obtained the goods, that person was the Cooper State Fruit Company, of which company Mendenhall was the agent: It is evident from the testimony that if anybody made false and fraudulent pretenses, and obtained the fruit by reason of such misrepresentations, it was the defendant, Mendenhall. The plea of agency is not available to one who knowingly commits a crime. We think there is no merit in this assignment. The question of fact having been submitted to the jury under proper instructions, the judgment is affirmed.”
See, also, Sandy v. The State, 60 Ala. 58: Commonwealth v. Harley, 48 Mass. (7 Metc.) 462; 7 A. & E. Encycl. of L. 705; Allyn v. State, 21 Neb. 595, 33 N. W. 212.
These authorities are decisive of the propostions raised. The questions of fact as to whether the transaction, including delivery of the goods, was had directly with Balliet, and whether the representations made by him induced John and Thomas Tr'uex to part with their goods were fairly submitted to the jury. If it may be said with accuracy that there was a variance, it became unimportant in fact and immaterial in law. Under the circumstances, we do not think any error was committed in recalling the jury and giving them additional instructions, nor do we think there was any substantial conflict between the instructions so given and the original instructions in the case.
We have examined the record carefully and are convinced that the defendant had a fair trial, and the judgment of the court below is affirmed.
Johnston, Smith, Greene, JJ., concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
We desire to pass a word of commendation on the succinct manner in which the attorneys in this case have presented the question of law at issue. Had they presented the facts upon which that question rests as succinctly, their case-made would have been contracted into the space of two or three pages and be an ideal example of what a case-made should be.
The questions of law in the case are presented by a statement signed by both attorneys, and are as follows :
“The question, and the only question, to be determined by the court of appeals in this case is as follows : Is a purchaser at tax sale, whose deed is afterward, in an action brought to foreclose a mortgage covering the same real estate described in the tax deed, which is dated and recorded in the proper office prior to the issuance of such tax deed, declared to be invalid on account of irregularities leading up to said sale, and on account of excessive taxes levied upon said real estate, entitled to the value of the improvements placed by him on said property, as against the plaintiff in the foreclosure suit ?
“Is the tax-deed purchaser entitled to a lien upon said property for the value of such improvements superior to the lien of the mortgage?
“Is the tax-deed purchaser entitled to the benefits of article 25, chapter 80, General Statutes of 1889, ‘ the occupying-claimant law,’ in an action brought to foreclose such mortgage ? ’ ’
The facts, briefly stated, are these: Mercer held a mortgage on certain real estate, given by Justice and wife, dated April 13, 1889. He brought an action to foreclose the same, making Perkins a party defendant, and alleging that the latter had some interest in the real estate which was subsequent and inferior to the lien of the plaintiff thereon. Perkins answered, setting up a tax deed dated September 5, 1894, based upon a tax sale of 1891, and filed for record September 8, 1894.
Upon the trial, the court, finding that this tax deed, though good on its face, was void as an instrument of title, for informalities and irregularities in the tax-sale proceedings, ascertained the amount of the taxes due to Perkins and declared the same to be a first lien on the real estate in controversy, and decreed a foreclosure of plaintiff’s mortgage and a sale of the premises, and disposition of the proceeds in accordance with the priorities as found. The court also listened to evidence showing that Perkins had taken possession of the real estate under his tax deed and made valuable and lasting improvements thereon, and directed that he be permitted to avail himself of the provisions of the occupying-claimant law to ascertain the amount of such improvements. Afterward, upon due notice, a jury was drawn, as provided in the occupying-claimant act, which duly proceeded to ascertain the value of the improvements, the rental value of the land, the value of the land without the improvements, and x’eturned its findings into court. Whereupon the court made a finding of the axnount due to Perkins for his permanent improvements, and also the value of the land without such improvements, and adjudged :
“Said Perkins shall have from the proceeds of the sale of said premises, in addition to the amount heretofore found in his favor as a first lien thereon for taxes and interest, the sum of $324.85, if said premises shall sell for sufficient to pay said sum ; and no writ or process of eviction of said defendant Perkins shall be issued until this judgment shall be paid.”
This last part of the court’s judgment is the pox’tion that plaintiff in error especially complains of, and insists that the occupying-claimant act does not apply to cases of this character, and that the mortgagee had a right to have his mortgage foreclosed upon the premises as they were, including in the sale upon such foreclosure the permanent improvements placed thereon by the tax-deed holder.
The statute defining the right of the tax-deed holder in possession, who has made valuable improvements, is as follows:
“In all cases, any occupying claimant, . . . being in possession of and holding any land under any sale for taxes authorized by the laws of this state, or the laws of the territory of Kansas, . . . shall not be evicted or thrown out of possession by any person or persons who shall set up and prove an adverse and better title to said lands until said occupying claimant, his, her or their heirs, shall be paid the full value of all lasting and valuable improvements made on said lands by such occupying claimant.” (Gen. Stat. 1901, § 5088.)
Counsel for plaintiff in error, however, claims that, as the decree of the court did not award possession of the land in controversy to any one, but simply directed its sale, the tax-deed holder in possession may not invoke the provisions of this act to obtain for himself the value of his improvements. In support of this view, counsel cites Penrod v. Danner, 19 Ohio, 218, which was a case of partition, and also Moody v. Arthur, 16 Kan. 420, a case of quieting title, in both of which it was held that, as the decree did not award possession, the occupying claimant was not entitled then to invoke the aid of the occupying-claimant act. We have no quarrel with these opinions, but fail to see their applicability to the case at bar. To be sure, in this case, technically speaking, the decree did not award possession ; but it set in motion a series of causes which would in the end result as certainly in possession as though it had been awarded. It was important for all concerned, for the best sale of the land and the adjustment of the rights of the parties, that .the extent of all claims be ascertained ; and, under the statute quoted, it was the clear right of the tax-deed holder not to be dispossessed until the full value of his improvements had been paid to him. What mattered it that the order of the court was made at that time or later, so long as Perkins, the tax-deed holder, would ultimately be entitled to such order ? Plaintiff had brought Perkins into court, alleging that he had some interest in the land, and Perkins was bound to make manifest his' entire interest, or be forever barred.
Plaintiff in error further contends that the occupy ing-claimant act is not applicable to cases of this kind, because it makes the following' provision, after the ascertainment of the amount due to the occupying claimant:
“If the successful claimant, his heirs, or the guardians of said heirs, they being minors, shall elect to receive the value without improvements so as aforesaid assessed, to be paid by the occupying claimant within such reasonable time as the'court may allow, and shall tender a general warranty deed of the land in question conveying such adverse or better title within said time allowed by the court for the payment of the money in this section mentioned, and the occupying claimant shall refuse or neglect to pay said money (the value of the land without the improvements) to the successful claimant, his heirs or their guardians, within the time limited as aforesaid, then a writ of possession shall be issued in favor of said successful claimant, his heirs or their guardians.” (Gen. Stat. 1901, § 5097.)
It is contended that plaintiff, being the successful claimant, cannot elect to receive the value of the land without the improvements, because he cannot tender to the occupying claimant a general warranty deed for it. We see no insurmountable difficulty in this claim. Plaintiff might have tendered an assignment of the mortgage, which was all the title or claim he had, and thereupon demand of the occupying claimant the value of the land without the improvements, up to the amount of his mortgage lien. That amount was all that, as between plaintiff and the occupying claimant, plaintiff was entitled to receive.
But suppose we do find that not all the detailed provisions of the. occupying-claimant act are applicable to cases of this kind, still we may not for that reason refuse to do equity in the premises. It must be borne in mind that plaintiff brought the defendant into court and demanded that he exhibit the character and extent of his claim, and, the defendant having done this, the court should not stop in the solution of all the questions involved without according full and perfect justice to all. No one will suggest that it would be consonant with justice and equity for the plaintiff to subject to the payment of his mortgage debt the improvements which the occupying claimant had lawfully placed upon the mortgaged premises. In this case these improvements were nearly double the value of the land. What equity would there be in a mortgagee’s sitting by and seeing the land covered by his mortgage sold for taxes and permitting such sale to ripen into a deed, under which the tax-deed holder must take possession within a limited time or lose all his rights thereunder, then in such mortgagee’s being permitted to appropriate all the improvements of such tax-deed holder to the payment of his mortgage? We cannot assent to such doctrine.
We are not confined in the adjustment of an occupying claimant’s rights to the procedure pointed out by our statute; for, independent of all statutes, as a matter of equity cognizance and administration, the unsuccessful occupying claimant had a right to a lien upon the premises which he had made more valuable by his improve,ments. The rule of equity procedure was that, “whenever the owner of land was compelled to obtain an account of rents and profits against the occupant, the courts required him in the first place to do equity by paying for improvements made by the occupant in good faith, and under color and claim of title.” (Jones, Liens, § 1132.) So, in the accomplishment of equity in this action, and independent of any statute, the court should have required that this oc cupying claimant be first fully paid; and we do not think that it was going too far, as a matter of purely equity practice,, to permit Perkins to retain.possession of the premises until this lien had been fully discharged, and especially so, in view of the provisions of the statute quoted giving him the right to retain the possession until the judgment should be paid. It was an appropriate way to insure the rights of the occupying claimant, and perhaps the only efficient way. It did no wrong to the mortgagee; for, as all the interest he had in the land was based upon the value of the land without the improvements, he might easily extinguish the right of the occupying claimant by paying the value of his improvements.
Answering the questions which counsel proposed as succinctly as they are submitted, we hold that a tax-deed holder who has taken possession of . t • t mortgaged premises under a tax deed good on its face, but void for irregularities, and has made valuable and lasting improvements thereon, is entitled to a judgment for the value of those improvements, as against the mortgagee, in an action to foreclose the mortgage; that he has a lien on the property for their value superior to the lien of the mortgagee, and is entitled to a decree, in order to enforce such lien, that he be not evicted until such lien be paid in full.
The court committed no error and its judgment will be affirmed.
Johnston, Greene, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Greene, J.:
The defendant in error commenced this action in the district court of Cowley county to recover rents due him from the plaintiff in error as his tenant. The defendant below answered, admitting generally the tenancy and his indebtedness, but pleaded and sought to counter-claim a demand for damages which he alleged that he had sustained by reason of the building’s having become untenantable during the existence of the lease, and the neglect of plaintiff below to repair the same. The special allegation was that the roof of a part of the building had become out of repair to such an extent that when it rained water leaked through and upon the stock of goods carried by the defendant; that he requested the lessor to repair the roof, and, in compliance therewith, the latter undertook to make such repairs, but made them in such an unskilful and unworkmanlike manner that the roof continued to leak, and that damage to him resulted therefrom. He prayed for judgment on his counter-claim against the plaintiff below. The plaintiff below filed a motion for judgment on the pleadings, which was sustained, and judgment rendered for the amount claimed by the plaintiff in his petition. The defendant brings the case here for review.
There is no provision in the lease that requires the lessor to make repairs, and whether he would be liable, notwithstanding the absence of such condition, is not a question in this case. The only question presented is whether a lessor, in the absence of a stipu lation to make repairs, is liable for damages sustained by the lessee after the lessor, at the request of the lessee, gratutiously undertakes to make the repairs, but does so in such a careless and unworkmanlike manner as to result in injury or loss to his tenant.
The authorities uniformly hold that, if one enters upon the performance of even a gratuitous undertaking, and does it so negligently as to injure the other party, he is responsible. Mr. Kent, in speaking on this principle, says :
“A distinction exists between non-feasance and misfeasance ; that is, between a total omission to do an act which one gratuitously promises to do, and a culpable neg]igence in the execution of it. It is conceded in the English, as well as in the Roman law, that if a party makes a gratuitous engagement, and actually enters upon the execution of the business, and does it amiss, through the want of due care, by which damage ensues to the other party, an action will lie for this misfeasance.” (Vol. 2, 14th ed. 570.)
(See, also, Thorne v. Deaz, 4 Johns. [N. Y.] 84, and authorities there cited.)
It has also been frequently held that if a lessor gratuitously undertakes .to repair leased premises, the tenant has a right to rely upon his. making such repairs in a skilful and workmanlike manner, and if he fails so to do, and, by reason of such failure, damage and loss result thereafter to the tenant, the lessor is liable. In Gregor v. Cady, 82 Me. 131, 19 Atl. 108, 17 Am. St. Rep. 466, the principle was announced in the following language: “A landlord who, at the solicitation of his tenant, gratuitously undertakes to repair the premises leased, but does it so unskilfully as to subsequently cause an injury thereby to the tenant, is liable therefor.” To the same effect is Gill v. Middleton, 105 Mass. 477, 7 Am. Rep. 548: “A landlord whose neglect to use ordinary skill in making repairs on the-demised premises causes a personal injury to the tenant is liable therefor, although his undertaking to make the repairs was gratuitous and by the tenant’s solicitation.”
A contention on the part of defendant in error is that, in the absence of a stipulation to repair, the lessor was not bound to do so, and if he did go upon the premises while in the possession of the defendant, and not in pursuance of any obligation so to do, he was a trespasser, and whatever he did was tortious, and the damage to the lessee, as a result of this tort, cannot be counter-claimed in an action on a contract. In contending that the act of the lessor in this instance was a tort, we think counsel for defendant in error is mistaken. The lessee is the only person who could object to the lessor’s entering upon the premises, and it appears that it was at his special request that the lessor entered and undertook to make the repairs. It cannot be said that one going upon the premises occupied by another, at the instance and invitation of the occupant, to perform certain acts thereon at his request, is a trespasser while acting in the line of the request.
The judgment of the court below is therefore reversed. | [
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Error from Osage district court. | [
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Error from Neosho district court. | [
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The opinion of the court was delivered by
Smith, J.:
The principal controversy between the parties is whether the law of 1891 repeals the act of 1881. It does not do so in express terms. Under the repealing section of the Law of 1891, reference is made to chapter 168, Laws of 1879, chapter 186, Laws of 1885, and section 1, chapter 187, Laws of 1887, and its express repealing force is applied to the preceding enactments mentioned. If there be a repeal, it is by force of the words ‘ ‘ and all acts and parts of acts in conflict herewith are hereby repealed.” In Kansas Breeze Co. v. Edwards, 55 Kan. 630, 633, 40 Pac. 1004, the following language was used :
“Repeals by implication, although not forbidden by the fundamental law, are not to be favored, especially in view of section 16 of article 2 of the constitution ; and this court said, in the case of Stevens v. Ballou, 27 Kan. 594, 600, 601, that in order to declare any legislation repealed by that method the court ‘should be satisfied that such has been so done beyond all reasonable doubt.’ ”
In Keirsey v. Comm’rs of Labette Co., 30 Kan. 579, 2 Pac. 864, this language was used:
“Repeals by implication are not favored, and are sustained only when the later law cannot by any fair and reasonable construction be harmonized with the former. Both laws are to be sustained, if possible.”
“A repeal by implication must be by necessary implication. It is not sufficient to establish that the subsequent law or laws cover some or even all of the cases provided for by it; for they may be merely affirmative, or cumulative, or auxiliary. But there must be a positive repugnancy between the provisions of the new law and those of the old; and even then the old law is repealed by implication only pro tanto, to the extent of the repugnancy.” (Ander. Law Dict. 879.)
We can see no good reason why the trustees for the ■different asylums, commonly known as the state board of charities, should not be given power to condemn lands necessary for the erection of buildings for institutions, the care of which comes within their jurisdiction. The conferring of such power is a matter of legislative discretion, which may be exercised by lodging the same in any number of boards or tribunals authorized to act in behalf of the state. In the statute authorizing the condemnation of lands for railway purposes two methods for determining the value are provided, one by the board of county commissioners acting as appraisers, and the other by three commissioners selected by the district judge.
In Shoemaker v. Brown, 10 Kan. 392, it was said :
“It is a general rule that a mere grant of jurisdiction to a particular court, without words of exclusion as to other courts previously possessing the like power, will only have the effect of constituting the former a court of concurrent jurisdiction with the latter.” (Delafield v. State of Illinois, 2 Hill, 159.)
When, a branch of this controversy was before this court last year, after discussing the scope of the power of the board of charities to condemn under the law of 1891, it was said :
“Further than this, by section 15 of chapter 160 of the Laws of 1891 (Gen. Stat. 1899, § 6421; Gen. Stat. 1897, ch. 5, § 15), the state board of public works (if such a board exists ) is also empowered to appropriate and condemn such land as may be necessary for securing grounds for the construction of any state building. We think that the legislature, when it passed the act of 1899, did so with the intention that the said power conferred upon plaintiffs in error as a board of trustees, or on the board of public works, should be brought into exercise for the purpose of obtaining title to the site chosen, and that chapter 18 of the Laws of 1899 is to be coupled with chapter 46 of the Laws of 1881 (Gen. Stat. 1897, ch. 68, § 18; Gen. Stat. 1899, §6336), and with section 6421 of the General Statutes of 3899 (Gen. Stat. 1897, ch. 5, §15), and that the latter two should be considered with the former to give effect to the legislative intent.” (Hornaday v. The State, 62 Kan. 828, 62 Pac. 329, 330.)
Counsel for defendant in error assert that the above extract from the opinion is dictum, and what was said was unnecessary to a decision of that case. It is true that the language was used arguendo, but the expressions were not made unadvisedly or without consideration of the matter. It does not follow that a legal proposition stated obiter is bad law. It cannot be held that there was a set purpose of the lawmakers to divest the board of charities of the power to appropriate land under the provisions of the law of 1881.
It is contended by counsel for plaintiffs in error that the board possesses the power to buy the land selected by the legislative committee. We do not concur in this claim. In Hornaday v. The State, supra, at page 830, it was said :
“The rule is that, in the case of those acting on behalf of the public, there is no power to agree as to the compensation to be given to the landowner where his property is sought to be taken for public use, unless it is given by statute, either expressly or by implication.” (See Lewis, Em. Dom., 2d ed., § 288; City of Chicago v. Hayward, 176 Ill. 130, 52 N. E. 26; Trester v. The City of Sheboygan, 87 Wis. 496, 58 N. W. 747; Village of Hyde Park v. Spencer et al., 118 Ill. 446, 8 N. E. 846.)
The act of 1881 confers specific authority on the state board of charities to secure the necessary lands in a certain designated way, and the manner pointed out must be pursued.
The judgment of the court below will be reversed, with directions to proceed further in accordance with the views expressed in this opinion.
Cunningham, Ellis, JJ., concurring. | [
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Error from Cowley district court. | [
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Error from Sedgwick district court. | [
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The opinion of the court was delivered by
Ellis, J.:
In the court below a decree was entered in favor of the defendant John D. Brown, which in effect subrogated the latter to the rights of the original mortgagee under a real-estate mortgage given by Mark Williams and Nannie B. Williams, his wife, to William Neild, on the 1st day of January, 1886, as to three coupons attached to the original bond secured by said mortgage, which coupons, at the time of the foreclosure of said mortgage and decree complained of, amounted to the sum of $213.
The sole question in this case is whether subrogation can be decreed in favor of one who, as second mortgagee of real estate, voluntarily pays to the first mortgagee, and consents to the cancelation of, certain interest coupons secured by the first mortgage. The plaintiff in this action is the assignee and successor in interest of William Neild; who, in 1889, held a bond and first mortgage on certain lands in Harper county. While said Neild was the owner of said bond and mortgage, the plaintiff acted as his agent, and while so acting in his behalf received from the Sioux Investment Company, of which John D. Brown is the successor in interest, the following letter :
“Anthony, Kan., July 10, 1889.
“J. B. Watkins Land Mortgage Go., Lawrence, Kan.:
“Gentlemen — In your letter of June 27 to the Kansas Mortgage and .Investment Co., you named $304.30 as the amount due July 1 as interest on the loans of Mark Williams. We herewith send N. Y. draft for $305.30 to pay the same, provided you will assign the coupons to Sioux Investment Co., and provided, also, that the coupons you assign us, with the interest earned thereon, amount to the $304.30. We hold a second mortgage on the land, and are willing to advance the interest to you if we can get such an assignment as will show that we have paid the amount we send you.
“If this is not satisfactory, please write us what will make it satisfactory. We ask you to make no costs in the cases till we have time to pay you interest in such a way as will protect us.
“The land on which we wish to pay interest on the mortgage is N.W. 12, 31, 8 and S. i of S.W. í of 12, and W. i N.W. i 13, 31, 8, Harper county, Kansas.
Very truly, Sioux Investment Co.
By John D. B&own, Pt.”
In reply the plaintiff sent the following letter :
“Lawrence, Kan., July 12, 1889.
“Sioux Investment Go., Anthony, Kan.:
“Dear Sir — We have your favor of the 10th inst. enclosing draft for $305.30, which you send us to make payment of the past-due interest on the Mark Williams loans, provided we assign the coupons to you. This we cannot do. If it were a matured loan, in which the bond could also be assigned, and the payment received would close the transaction with us entirely, it would be a different matter ; but to have the coupons out with our assignment on them, in which suit might possibly be brought to enforce collection, and we, therefore, be made parties to the suit and have to look after the matter, is what we do not care to do. Of course, so far as the mere fact of being assigned ‘without recourse’ is concerned, that is all very good, but we have about as much business to look after in the way of protecting running loans as our attorneys can attend to personally. Of course, we would like to do what we can to protect you from loss, after having made payment of .the interest, but as you hold a second mortgage, it is to your interest to look after the first, if the borrower does not.
“If you wish to remit to us payment of the interest and receive coupons and notes duly canceled, we should be pleased to 'enter up payment and send the coupons to you ; otherwise we presume we will have to collect from Williams by process of suit. The amount necessary to make payment of interest now is $307, and these figures will hold good until the 20th inst.
Yours truly, J. B. Watkins L. M. Co.
Saxby.
“We return your draft herewith.”
The draft mentioned in these two letters was returned as stated in the latter one. The following letter, enclosing a draft as therein stated, was sent in reply to the plaintiff:
“Anthony, Kan., July 19, 1889.
“J. B. Watkins L. M. Co., Lawrence, Kan.:
“ Gentlemen — Your favor of the 12th inst. was duly received. We herewith send N. Y. exchange for $307 to pay all matured interest on the two loans of $1000 each and com. loans secured by mortgage on land in sections 12 and 13, twp. 31, R. 8 W., in Harper county, Kansas.
“Provided, however, we make this payment on conditions that you send us canceled coupons amounting, with interest earned since maturity, to not less than $305. We do not want to pay this interest if anything more than face of coupons and interest earned is charged. Yery truly,
John D. Brown, Prest.”
After the receipt of this letter the plaintiff canceled the coupons referred to and forwarded the same to Brown as requested. The amount due upon the coupons at that time was more than $305.
Later the plaintiff brought suit in foreclosure against the land for the principal of the bond and the unpaid coupons attached thereto. The defendant Brown set up the coupons received by him from plaintiff; alleged that the plaintiff had knowledge that he (Brown) had furnished the money with which they had been taken up; prayed to be sub rogated to the rights of the original mortgagee as to said coupons, and asked to have the same declared a lien on said land and to share pro rata with the plaintiff's claim in the distribution of the proceeds of the sale. At the trial, the court below acceded to defendant’s demand and entered a decree accordingly.
Had the plaintiff assigned the coupons in question agreeably to the request made to it in the letter dated July 10, it would have been presumed that no payment was intended, and in' a subsequent foreclosure of the mortgage the legal holder of such coupons would have been entitled to subrogation as adjudged by the court below. (Champion v. Investment Co., 45 Kan. 103, 25 Pac. 590, 10 L. R. A. 754.) However, as the plaintiff had a right to refuse and did unequivocally decline to assign such coupons or to accept their value without payment and cancelation, the defendant, having acquiesced in such requirements of the plaintiff, cannot be heard to say that he in fact purchased the coupons, nor can the powers of a court of equity be invoked in his behalf to the injury of the prior mortgagee or his assigns. It may be that, as between Brown and the mortgagor, the former ought to recover judgment on the coupons, and have the same declared a lien on the land subject to that of plaintiff; but in any event such defendant should not share pro rata with the plaintiff in the proceeds of the sale. The plaintiff’s right thereto was paramount, and by failing so to determine the court below committed an error for which its judgment must be reversed. (Bartholomew v. National Bank, 57 Kan. 594, 47 Pac. 519; Skinkle v. Huffman, 52 Neb. 20, 71 N. W. 1004; Union Trust Co. v. Monticello & P. J. R. Co., 63 N. Y. 311, 20 Am. Rep. 541.)
The judgment of the court below will be reversed, and the case remanded for further proceedings in ac-' cordance with this opinion.
Doster, C.J., Smith, Pollock, JJ., concurring.- | [
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Error from Harper district court. | [
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Error from Harper district court. | [
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The opinion of the court was delivered by
Pollock, J.:
On the 10th day of June, 1897, by consideration of the district court of Sedgwick county, plaintiffs in error recovered a judgment against defendants in error, Andrew S. and Lottie Nelson, for the sum of $470.50. Thereafter, and on the 26th day of February, 1898, upon affidavit and bond made and filed for such purpose, a summons in garnishment was issued and served on defendants, the Nelsons, and the Fourth National Bank of Wichita, Kansas, as garnishee, the purpose of this proceeding in garnishment being to subject to the payment of said judgment a sum of money upon deposit in the bank in the name of A. S. Nelson, agent. The defendants therein, the judgment debtors, and the garnishee, the Fourth National Bank, filed their separate motions to quash the summons in garnishment and service thereof, al leging, among other grounds therefor, that there was no valid execution issued and outstanding on said judgment at the time the summons in garnishment was issued and served, which motions were sustained, and this proceeding in error is prosecuted therefrom.
The sole' question arising for our determination upon this record is, Where proceedings in garnishment are resorted to after judgment, to give the proceedings validity, must a valid execution have issued on the judgment and be outstanding at the time of the issuance and service of the summons in garnishment?
A proceeding in garnishment is a special and extraordinary remedy given by statute, and can be resorted to only at the times and upon the conditions expressly authorized and imposed by statute. Section 2, chapter 151, Laws of 1889 (Gen. Stat. 1901, § 4635.), provides the times when, and the conditions upon which, a proceeding in garnishment may be resorted to in this state, as follows :
“Either at the time of the issuing of the summons, or at any time thereafter before final judgment, in any action to recover damages founded upon contract, express or implied, or upon judgment or decree, or at any time after the issuing, in case of ah execution against property and before the time when it is returnable, the plaintiff or some person in his behalf shall file with the clerk an affidavit stating the amount of plaintiff’s claim,’’ etc.
This statute is exclusive and conclusive of the right of a party to resort to proceedings in garnishment to secure or compel payment of his claim or judgment, and, by its express provision, denies the right of using this extraordinary remedy after plaintiff’s claim has been placed in judgment, except where an execu tion has issued on the judgment and before its return ; in other words, in aid of execution on the judgment.
This is not only the natural and reasonable construction of this statutory provision, and the one that must be arrived at from an examination of the terms of the statute itself, but, if the construction we have placed upon this statute were involved in doubt, other considerations would compel us to give it the same construction here placed upon it. In the year 1889, this provision of our statutory law was taken bodily from the statutes of the state of Wisconsin, and, before its adoption in this state, it had received construction from the supreme court of that state, and the construction there given is in harmony with the views herein expressed. (Kentzler v. The C. M. & St. P. Rly. Co., Garnishee, 47 Wis. 641, 3 N. W. 369; Sanger v. Guenther, Garnishee, etc., 73 id. 354, 41 N. W. 436.)
It follows that the action of the trial court in quashing the summons in garnishment and the service thereof, because based upon no valid outstanding execution upon the judgment sought to be enforced, must be sustained.
The judgment of the trial court is affirmed.
Dosteb, C. J., Johnston, Gbeene, JJ., concurring. | [
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Error from Montgomery district court. | [
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The opinion of the court was delivered by
Ellis, J.:
Several questions were ably discussed in the briefs herein, and upon some of them a strong oral presentation was made by counsel for plaintiff in error, who alone appeared at the time the case was set for hearing in this court. In the view we take of the matter in controversy, however, there is but one proposition for us to consider : Did the order of the judge of the court below operate to release at any time the property seized under the attachment as to an execution creditor who had levied subject to such attachment ?
We think this question must be answered in the negative. In reaching this conclusion, we may fully agree with the counsel for plaintiff in error that the action of the clerk in withholding the order of the judge from the files of the case did not prevent such order from taking effect, and while we do not find it necessary, and therefore do not pass upon that question, we are impressed with the reasons existing in favor of the rule that the mere- neglect of a clerk to enter the date of reception upon such a paper and place it among the other papers with which it belongs ought not to be construed as nullifying its provisions. But the order itself, containing a clause which prevented it from taking effect, suspended its operation for thirty days from and after December 24, 1895, and on January 13, 1896, a subsequent order was entered overruling the motion to dissolve the attachment.
Probably because the first order, the one dissolving the attachment, had not been filed the later order did not refer to it. It may be said that the suspension of the first order was granted for a particular purpose only, and that if an application for review should not be perfected and filed within the time limited the order of dissolution would go into effect, and in that event, after the lapse of such time it ought to be regarded as having been in force from its date.
We might grant such a contention without affecting the result, for in this case long before the expiration of that period the plaintiff made application to reopen and rehear said application, on the ground that the affidavit of Booth was false and that its use was a fraud practiced upon the judge, and, whatever may be the rule in such a case as to parties actually acquiring an interest in property after the discharge of the attachment and before a rehearing thereon, in this case the rights of no third parties intervened ; and as to the parties to the action the judge at chambers undoubtedly had a right, upon notice, to bring them before him and make an order which, under the facts really existing, was legal and just.
The plaintiff in error, having levied subject to such attachment, could not obtain priority until the same was dissolved, and as to him the plaintiff below had a right to make application to review the judge’s first order in the appellate court, or it could apply to said judge, and for good cause shown procure an order which was tantamount to a reversal of it, which would have been all it could have gained by proceedings in error in an appellate tribunal.
The judgment of the district court is affirmed.
Johnston, Cunningham, Greene, JJ.. concurring. | [
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The opinion of the court was delivered by
Ellis, J. :
It is doubtless true that the court below dismissed the original action because the plaintiffs therein did not prosecute it. Such is the allegation of the petition, and upon demurrer it must be taken as true. As to plaintiff’s right to sue on the bond as assignee, reference is made to Norton v. Lawrence, 39 Kan. 458, 18 Pac. 526. The parties signing the replevin bond bound themselves to prosecute the action to final judgment, and they could not dismiss it (Bank v. Morse, 60 Kan. 530, 57 Pac. 115) or suffer it to be dismissed for want of prosecution without incurring a breach of the conditions of their undertaking. As a general rule, an unqualified agreement to perform a certain act. necessarily includes the performance of those things which will enable or permit one to fulfil such obligation. Probably there are exceptions to the rule, but the matter we are about to refer to does not constitute one of them..
The obligation of the signers of a replevin undertaking does not cease until the action in which it is given is brought to final judgment, and, if it be determined against the plaintiff in the suit, until such judgment is performed. The contention of the counsel for defendants in error is that because they recovered judgment in the district court they were under no obligation to take measures to revive the action after the decease of Fisher. They say :
‘ ‘ It was certainly not the duty of Enderton to have the action revived in his name, as he had no interest in obtaining a reversal of the judgment below, which then had been in his favor. He was under no obligation to prosecute an appeal for the benefit of his adversary, and it was not his fault if the order remanding it was void.”
The frankness of counsel is commendable ; they resort to no specious artifice to conceal their true position. Viewed cursorily their argument contains a measure of plausibility, but it is not sound. As before stated, their clients had contracted to prosecute their action to a final determination. How could they fulfil that covenant without keeping the suit pending and ready to be proceeded with, if this court should reverse the judgment of the district court? Besides, the order of this court remanding the cause for further proceedings was not void. It was a step regularly taken in the case, and one that defendants in error were required to anticipate and prepare for as a contingency to be encountered therein. True, the latter were not bound to prosecute an appeal from a judgment in their favor, but they were bound to take notice that their adversary was doing so, and if they assumed that they would prevail against their opponent in that proceeding they did so at their peril. They were culpably negligent in not instituting and perfecting such measures for a revivor as would have enabled them to proceed without delay to fulfil their covenants if the result of the proceedings pending in this court should make further affirmative action on their part necessary, and they cannot now be heard to plead their own laches and wrong to avoid their contractual liability.
It is no answer to say that the plaintiff in error might have set the machinery of the law in motion and procured an order of revisor. That party, or the sheriff representing it, did not begin the litigation, and, as it sought no affirmative relief, its prov ince was to appear and defend its rights in the forum where, at the instance of the plaintiffs in that case, its representative had been summoned. It could rely on the terms of the bond executed for its benefit, and had a right to expect that the makers thereof would do all things requisite to the maintenance of their standing in court.
Because it was the duty of defendants in error to cause this action to be revived, having failed in the performance of that duty they are estopped to plead such failure as a defense. The case should proceed as though an order of revivor had been duly entered in the name of Jennie Fisher, as executrix.
The judgment is reversed, and the case remanded with directions to the court below to overrule the demurrers of defendants.
Johnston, Cunningham, Greene, JJ., concurring. | [
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Error from Reno district court. | [
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The opinion of the court was delivered by
Cunningham, J.:
This was an action by plaintiff in error on a beneficiary certificate issued to him by ■defendant in error, a fraternal insurance association, for the recovery of a disability claim thereunder. The material portions of his petition were as follows :
“That on or about the 9th day of July, 1896, at North Ottawa, in said county of Franklin and state of Kansas, the plaintiff, while in the line of his duty as fireman in the employment of the Atchison, Topeka & Santa Fe Railway Company, received, by accident, a great personal injury, whereby his left hand and forearm were lacerated and crushed so that the same had to be and were amputated below the elbow, resulting in a partial paralysis of his upper left arm and left shoulder and left side, of a progressive ■character, such that it has since become and is continually growing worse, and, as he is advised by expert physicians, will end in the total paralysis thereof; that because and by reason of said injury he forthwith became, and has ever since remained and still is, totally and permanently disabled for life, so as to be unable to follow his own or any other avocation ; and such disability did not arise from any immoral conduct on his part, and said disability arose from and consists of said injury and paralysis, producing a local lesion, and, deformity apparent to any one, the same amounting to total disability.”
The paragraph in the by-laws of the defendant association by virtue of which plaintiff claims is as ' follows:
“In case any member of the Grand Legion beneficiary department, while in good standing in such beneficiary department, shall become totally and permanently disabled for life, so as to be unable to follow his own or any other avocation, and provided such disability did not arise from any immoral conduct on his part, and provided further that such disability shall only consist of the loss of one hand and one foot, or both hands, or both feet, or of both eyes, either from accident or disease, or from some disease or injury producing some local lesión, or deformity apparent to any one, the same amounting to total disability.”
A demurrer to this petition was filed, and sustained by the court, and that ruling is alleged as error.
It will be observed from a careful reading .of the paragraph quoted that before a recovery can be had there must have occurred a total and permanent disability ; and it will be further observed that such disability must be the loss of one hand and one foot, or of both hands, or of both feet, or of both eyes, or a disability arising- from some disease or injury producing some local lesion, or deformity apparent to any one, and of such a nature that such lesion or deformity shall amount to total disability. It is upon this last clause that the plaintiff bases his action. He does not claim under this paragraph that the loss of one hand by itself would amount to total disability as defined therein. His petition alleged that, in'addition to the loss of one hand, the forearm was lacerated and crushed and was amputated below the elbow that as a result of such injury paralysis had supervened, and that by'reason of such injury and consequent paralysis a deformity apparent to any one had resulted, and he had thereby become totally and permanently disabled for life. We think that this allegation of his petition fairly and adequately brought him within the terms of the paragraph quoted, and stated a cause of action arising thereunder.
To be sure, the loss of one hand is not a sufficient ihjury, but it is this loss in connection with other injuries alleged that all together produced a local lesion, or deformity apparent to any one, which amounts to total disability, for which he may recover. It is defendant’s claim that if the total disability is not the loss of one hand and one foot, or both hands, or both feet, or both eyes, it must be one growing out of disease or injury, producing some local lesion, or deformity apparent to any one, and that said local lesion must be one other than a lesion by which a hand or a foot is amputated. We suppose, by this, defendant desires to be understood that the loss of one hand simply is not enough. In this we quite agree, but out of this injury, this crushing and lacerating of the forearm, has come paralysis which is apparent to any one, as the petition alleges, and, from all this, plaintiff is totally disabled.
We think that the court was wrong in sustaining the demurrer to the petition. The cause of action might have been stated more artistically, but, nevertheless, we think it sufficient.
The judgment of the district court will be reversed and the case remanded.
Smith, Ellis, JJ., concurring. | [
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Error from Labette district court. | [
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The opinion of the court was delivered by
Geeene, J.:
The defendant in error commenced this action against the city of Ottawa to recover damages for personal injuries which she claims she sustained by reason of having been tripped or thrown on a defective sidewalk. In the court below she recovered judgment. The plaintiff in error, the defendant below, filed its motion for a new trial, alleging all the grounds mentioned in the statute. In support of the charge of misconduct on the part of the jury, it filed the following affidavit of one of the jurors :
“ M. L. Waldo, being duly sworn, on his oath says : I was a juror in the above-entitled cause tried at the September term of Franklin district court, 1895. In determining the amount of the verdict rendered therein, it was agreed that each juror should give the sum to which he thought the plaintiff was entitled under the evidence, and that the sum of these amounts so given should be divided, by twelve, or the number of the jurors, and that the amount, or average resulting therefrom, should be the amount of the verdict, which was accordingly done. I further state that the sum of $300, the amount of the verdict, was the average found, substantially, being a few dollars in excess of the actual average, which, to make the amount an even sum, was increased to $300.”
It appears from this affidavit that it was agreed by the jury that each juror should give the sum to which he thought the plaintiff below was entitled and that the sum of these amounts should be divided by the number of jurors; the quotient to be the amount of plaintiff's verdict. This was done. The amount so found was nearly $300, but for the purpose of making the amount an even sum it was increased to $300. This verdict cannot be sustained. (Johnson v. Husband, 22 Kan. 277; Werner v. Edmiston, 24 id. 147.) After the amount was found by marking, aggregating and dividing there was no reconsideration. The addition to that amount was not made after a further consideration and decision of the cause upon its merits, but was for the one purpose of making an even amount. The law demands of each juror an honest consideration of the rights of the parties litigant and the exercise of his best judgment, guided by the law and evidence of the case. A verdict reached in any other way should be set aside. We think the court erred in not granting the defendant below a new trial.
Counsel for plaintiff in error present another question which will likely arise in a new trial of this cause, and for this reason it demands the attention of this court at this time. Upon the trial, defendant requested the court to appoint two reputable physicians and make an order that the plaintiff below submit to an examination by them, for the purpose of ascertaining the location and extent of her physical injuries. To this the plaintiff below objected, which objection was sustained by the court, and the defendant below alleges this as error.
In the case of A. T. & S. F. Rld. Co. v. Thul, 29 Kan. 466, 44 Am. Rep. 659, it was held by this court that ‘ ‘ it was reversible error for the court to refuse to make an order for the examination of the eyes of the plaintiff,” and the correctness of that decision has never been questioned. The application in this case was that the plaintiff below submit the unexposed portion of her person to the examination of a committee of physicians selected by the court. Upon this question there has been considerable diversity of opinion. In New York it was held that a court had no power to make such an order. Afterward it was held that such power was inherent in the court; but in the decision of McQuigan v. D. L. & W. R. R. Co., 129 N. Y. 50, 29 N. E. 235, 14 L. R. A. 466, it was finally settled as the law of that state that the court possessed no such power. Following this decision, and in 1893, the legislature of that state amended its code of civil procedure, conferring upon the courts authority, in actions for personal injuries, and upon proper application and showing of necessity, the power to make an order that the injured party submit to a medical examination.
In Missouri, in Loyd et al. v. H. & St. Joe R. R. Co., 53 Mo. 509, it was proposed to call in two surgeons to make a physical examination during the progress of the trial. This was refused, on the ground, as stated by the court, “that it was unknown to our practice and to the law.” But in Shepard v. The Mo. Pac. Ry. Co., 85 Mo. 629, 55 Am. Rep. 390, the court modified its previous holdings, saying :
“There are respectable authorities which hold that the court may order such personal examination. There are others to the contrary. We are inclined to hold with the former, but not that a party has an absolute right to have such a personal examination. It is a matter in which the court has a discretion, which will not be interfered with unless manifestly abused.”
In Parker v. Enslow, 102 Ill. 272, 40 Am. Rep. 588, in an action on a promissory note given in settlement of a threatened action for damages which it was claimed the plaintiff had suffered to his eyes by reason of the negligent acts of defendant, on the trial the defendant asked an order requiring the plaintiff to submit to the examination of his eyes by medical experts. The trial court refused, and the supreme court, in passing upon the question, dismissed the subject in the following language :
“Complaint is also made that the court refused to compel appellee to submit his eyes to the examination of a physician in the presence of the jury. There was no error in this. The court had no power to make or enforce such an order.”
In The Pennsylvania Company v. Newmeyer, 129 Ind. 401, 28 N. E. 860, in an action for personal injuries, the court said :
“In the absence of a statute authorizing it, and none exists in this state, a party to an action is not required to submit his person to an examination of his injuries by surgeons appointed by the court for that purpose.”
In the case of Botsford v. U. P. Rld. Co., 141 U. S. 250, 11 Sup. Ct. 1000, 35 L. Ed. 734, the supreme court of the United States expresses its dissent in the following language:
‘ ‘ The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow. To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass; and no order or process commanding such an exposure or submission was ever known to the common law in the administration of justice between individuals, except in a very small number of cases, based upon special reasons, and upon ancient practice, coming down from ruder ages, now mostly obsolete in England, and never, so far as we are aware, introduced into this country.”
This decision was followed in Illinois Cent. R. Co. v. Griffin, 80 Fed. 278, 25 C. C. A. 413.
These are the principal authorities against the proposition which in our research we have been able to discover. In several of the states this question has been presented and a decision avoided, as appears in the cases of S. C. & P. R. R. Co. v. Finlayson, 16 Neb. 578, 20 N. W. 860; Ellsworth v. City of Fairbury, 41 id. 881, 60 N. W. 336; City of Chadron v. Glover, 43 id. 732, 62 N. W. 62; I. & G. N. Ry. Co. v. Underwood, 64 Tex. 463; G. C. & S. F. Ry. Co. v. Norfleet, 78 id. 321, 14 S. W. 703. We think, however, that the great weight of authority, as well as reason, is against the decisions of the courts above cited, and in favor of the opinion that, when a proper case presents itself, the court not only has the power to require a plaintiff in an action to recover damages for personal injuries to submit to a physical examination, but that it ought to exercise it. The opinion in the case of Botsford v. U. P. Rld. Co., supra, is greatly weakened by the dissenting opinion of Mr. Justice Brewer, concurred in by Mr. Justice Brown, and we think the latter the better reasoning. While we have the greatest respect for the decision of that court, the opinion in that case does not convince our reason. We think it a sacrifice of justice and the rights of parties to sentiment. In actions for personal injuries, the exact location and extent of the injury is frequently the very question in dispute, the fact to be ascertained. While the court in the exercise of its discretion should protect the feelings and sensibilities of all litigants, the rights of the parties and the ascertainment of the truth is the chief object of a trial. The purpose of a trial is to mete out exact justice. This cannot be accomplished when the truth is suppressed, and this may be done, if the court has not the power to ascertain what the truth is.
In an action for personal injuries, the injured party may'call physicians, to whom he may expose his person, not for the purpose of effecting a cure, but for the purpose of using this expert testimony to assist him in' the trial of his case. He may also expose the injured portion of his person to the jury, observing the rules of decency. Should the litigant be permitted to withhold the truth or the means of 'ascertaining what the truth is simply because, in the ascertainment of the truth, he may conceive the idea that an indignity is being offered ? That is not an indignity which is not so intended. May he be permitted to present so much of the truth as he desires and as he thinks to his interest and withhold the remainder ? This would certainly be his privilege if the court does not possess the power to make an order that will develop the exact truth. It is suggested by some of the authorities which hold contrary to the views herein ex pressed, that the rule would operate harshly upon delicate and modest females. We think such may safely rely upon the courts of this country. An examination should not be ordered needlessly, or where there might be a shock to one’s modesty or feelings of delicacy. We only decide that the court has the power; it should be exercised according to the sound discretion of the presiding judge. It is safer in the administration of justice to trust to the courts to protect the sensibilities of the parties in such examinations, so far as it is possible to do so, and beyond that to hold them subordinate in importance and sacredness to the interest of justice, than to hold that a party to a litigation has it within his power to develop so much of the facts as may appear to be to his interest and then stop the investigation.
The great weight of authority seems to favor this view. In the ascertainment of the physical condition of the litigants in divorce actions, a physical examination was allowed at common law. (Devanbagh v. Devanbagh, 5 Paige, 553, 28 Am. Dec. 443; Newell v. Newell, 9 Paige, 25.) The authorities supporting this doctrine in actions for personal injuries are numerous and ample. In O’Brien v. The City of La Crosse, 99 Wis. 421, 75 N. W. 81, 40 L. R. A. 831, the court held :
“In an' action for personal injuries, the defendant has, in the absence of statute, no absolute right to have a personal examination of the injured party by physicians, but such right rests in the sound discretion of the court.”
In Turnpike Co. v. Baily, 37 Ohio St. 104, the court said :
“In an action to recover for personal injuries caused by the negligence of the defendant, the court has power to require the plaintiff to submit his per son to an examination by physicians or surgeons, when necessary to ascertain the nature and extent of the injury.”
In Graves v. City of Battle Creek, 95 Mich. 266, 269, 54 N. W. 757, 758, 19 L. R. A. 641, 642, the court used the following language :
“The question whether the trial court has the power, under any circumstances, to require the plaintiff in an action for personal injuries to submit to an examination by a physician, before the jury, of the portion of the body alleged to have been injured, is answered in the affirmative.”
In speaking of the decision of the case of Botsford v. U. P. Rld. Co., supra, the court said:
“This decision is entitled to very great weight, but, in view of the manifest justice of a requirement that the plaintiff in case of personal injury shall produce the best evidence attainable, we think this case should not be permitted to stem the otherwise almost unbroken current of authority upon this subject.”
In Railway Company v. Dobbins, 60 Ark. 481, 30 S. W. 887, 31 S. W. 147, which was an action for personal injuries, it was said :
“The court may require a plaintiff suing for personal injuries, alleged to be permanent, to submit to an examination of his person by experts, and may direct that it be made in court or elsewhere.”
In The Richmond & Danville Railroad Co. v. Childress, 82 Ga. 719, 9 S. E. 602, 3 L. R. A. 808, it was held:
“ It is within the discretion of the trial court to require the plaintiff suing for physical injury alleged to be permanent to submit to an examination by competent physicians, at the instance and at the expense of the defendant in the action, to ascertain the nature, extent and probable duration of the injury, so as to afford means of proving the same at the trial.”
In Ala. Great Southern R. R. Co. v. Hill, 90 Ala. 71, 8 South. 90, 9 L. R. A. 442, it was held :
“Where the plaintiff, a young unmarried woman, sues to recover damages for personal injuries sustained from the derailment of the car in which she was riding as a passenger on the defendant’s railroad, and her attending physician has testified, from an examination of her person several times repeated, as to the nature, character, extent and probable consequence of her internal injuries, but the correctness of his diagnosis is questioned by other physicians, the defendant has the right to insist that she shall submit to a personal examination by one or more other physicians or surgeons, under the direction and control of the court, and the refusal to order such examination is a reversible error, when it appears that her life or health would not be thereby endangered.”
In Thompson on Trials, section 859, it is said:
“In modern trials of civil actions for physical injuries, the question has frequently arisen whether the court has power to order an inspection of the body of the plaintiff or person injured, for the purpose of ascertaining the nature and extent of the injuries. Some of the courts, carrying in their minds no higher conception of a judicial trial than the conception that it is a combat, in which each of the gladiators is permitted, within certain limits, to deceive and trick the antagonist and the umpire, have denied the right of the defendant to have an order for such inspection. Other courts, taking the more enlightened view that the object of a judicial trial is to enable the state to establish and enforce justice between party and party, have held that it is within the power of the trial court, in the exercise of a sound discretion, in proper cases, upon an application seasonably made, under proper Safeguards designed to preserve the rights of both parties, to order such an inspection, and to compel the plaintiff or injured person to submit to it.”
We are of the opinion that the trial court has the power, in actions for personal injuries, to require the plaintiff to submit to a private physical examination by a board of physicians selected by the court; that such power should be exercised cautiously, and only when necessary to a full determination of the facts, and with every care possible to protect the feelings and sensibilities of the party. In this case, the court did not abuse its discretion.
For the other reasons herein expressed, the judgment of the court below is reversed.
Johnston, Cunningham, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
This is a companion action to the case of National Council v. Shawnee County, immediately preceding (66 Pac. 1011), and is brought to enjoin the collection of the tax levied on moneys and credits of the assessed value of $49,515, which the plaintiff in error had in its reserve fund on the 1st day of March, 1900, and which it claimed to be exempt from taxation under subdivision 4 of section 7504, General Statutes of 1901, which reads' as follows :
“All moneys and credits belonging exclusively to . . benevolent and charitable institutions or associations, appropriated solely to sustain such institutions or associations, not exceeding in amount or in income arising therefrom the limit prescribed by the charter of such institution or association.”
The court below refused to grant a permanent injunction restraining the collection of the tax and the plaintiff brings the case here.
We fully discussed the character of the association in the preceding case, and found that it is not a benevolent or charitable institution within the purview of this statute. In addition to the reasons given in that case for the funds not being exempt, we might have stated* the following : This reserve fund is created by certain assessments on the members of the order; it is invested by the executive committee, and the income derived therefrom is used in the payment of death losses when sums sufficient for that purpose are not realized from the regular death-loss assessments. It will be noted that the fund, in order to be exempt under the statute, must not only belong to the benevolent or charitable association, but must be ap propriated solely to sustain such association. The investment of the funds in income-producing securities eliminates them from the provision of the statute ; the exemption exists only so long as the moneys and credits are appropriated solely, or only, to sustain such institutions.
In Stahl v. Educational Assoc’n, 54 Kan. 542, 38 Pac. 796, the language of the special act on which the association relied for exemption was “appropriated for the exclusive purpose of religion or education,” and the court held that the property was not exempt thereunder if held for lease, or investment, or profit. In that case the court, on page 550, said:
“If we were to construe the charter of the association as exempting from taxation real estate occupied by a tenant, because the rents or profits are applied ‘for the exclusive purpose of religion or education,’ then, under its charter, the association could receive and hold large amounts of property, which it could invest in business or loan at interest without paying taxes thereon, if the profits or interest were applied to the designated purposes. If the association might do that, it could go farther, and operate a bank, a store, or any other enterprise, which it had obtained by devise, or otherwise, if the profits were applied exclusively to the purposes of religion or education.”, (See, also, Life Association v. Hill, 51 Kan. 636, 33 Pac. 300; Fort Des Moines Lodge No. 25, I. O. O. F., v. The County of Polk, 56 Iowa, 34, 8 N. W. 687.)
The question is raised in this case, and also in the one preceding, that the provisions of section 7504, General Statutes of 1901, are unconstitutional, because the exemptions from taxation therein made are in excess of those contained in the constitution; or, at least, that the exemptions of the statute are invalid to the extent that they exceed those of the con stitution. In our view of the character and purpose, ■of the plaintiff association, it is not necessary to pass on that question.
The judgment of the court below will be affirmed.
Greene, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The plaintiffs in error sought to charge a bank, as garnishee, by action against it under the provisions of sections 4644 of the General Statutes of 1901, before it had obtained a judgment against the principal debtor. The section referred to contains the following:
“No trial shall be had of the garnishee action until the plaintiff shall have judgment in the principal action, and if the defendant have judgment, the garnishee action shall be dismissed with costs.”
After plaintiff in error had introduced its evidence in the proceeding against the garnishee, the court sustained a demurer thereto filed by the bank. There was no error in this. It devolves upon a party seeking to recover a judgment against a garnishee to show that his demand against his debtor has passed into judgment and is no longer open to dispute; otherwise, after a protracted trial to ascertain the liability of the garnishee, the plaintiff might fail in his action against the principal debtor, thus wasting the time of the court in an immaterial inquiry. The statute is plain upon the subject and its requirements are based upon sound reason. (Laidlaw v. Morrow, 44 Mich. 547, 7 N. W. 191; Sun Mutual Ins. Co. v. Seeligson & Co., 59 Tex. 3; Washburn v. N. Y. & Vt. M. Co. and Trustee, 41 Vt. 50; Lowry et al. v. Clements, 9 Ala. 422.) In the first case cited the decision is based upon a statute. In the others a general principle of law is declared.
The judgment of the court below will be affirmed.
Johnston, Gkeene, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Pollock, J. :
On the 15th day of April, 1887, plaintiffs in error, P. I. Mulvane, Caroline J. Mulvane, J. A. Munk, and Emma S. Munk, made and delivered to one Anna J. Hen tig their two promissory notes in the sum of $600 each, due and payable at the First National Bank of Topeka, Kansas, in one and two years from the date thereof, secured by mortgage on real estate in the city of Topeka, of which, at the time, they were owners. These promissory notes appear thereafter to have been transferred to one James Hentig, and by James Hentig to the plaintiff in this action. The same were given as evidencing the purchase-price to be paid for the mortgaged property. Thereafter, and on the 12th day of December, 1887, plaintiffs in error sold and conveyed the mortgaged premises to one A. L. Williams by deed of general warranty, in which said deed Williams expressly assumed and agreed to pay the mortgage debt as a part of the purchase-price thereof. Thereafter, but before the statute of limitations had run, plaintiffs in error departed from the state of Kansas and have remained non-residents. The promissory notes were left by James Sedgley with one John R. Mulvane, in the city of To peka, for collection, and the same have continued to remain in the hands of said John R. Mulvane from about the date of the execution thereof to the date of the commencement of this action, except the period of about one year, when the same were in the hands of attorneys representing the owner thereof.
On the 27th day of March, 1890, John R. Mulvane wrote James Sedgley, then the owner of said notes, informing him of the purchase by Williams of the mortgaged property and his assumption of the debt, as follows:
“The notes you speak of, made by Mrs. Munk and Caroline Mulvane, are perfectly good. The property has been bought by one A. L. Williams, attorney of the Union Pacific Railway Company, who has assumed the payment of the notes. . . . The facts are, the makers are perfectly good and the properties, in addition, are first mortgages ; hence, while we have urged payment of interest as a matter of business, not that we hesitated about the security, we will press it again.”
Again, on May 25, 1891, John R. Mulvane wrote James Sedgley as follows
“I am sorry for the delay in that Catherine Mulvane and Mrs. Munk note. They sold the property to Mr. Williams, who is attorney for the Union Pacific railroad. He assumed the payment of these notes. He is expecting a big fee through the foreclosure of the C. K. & N., and has promised to-day that as soon as he gets the money he will pay. This must be very soon. In the meantime, I have notified Doctor and Mrs. Munk that they must pay the paper. They have asked me to wait a little while on Mr. Williams, and if he does not pay then they will take it up. It is perfectly good and you are running no risk whatever of loss.”
On May 27, 1897, Mulvane wrote plaintiff as follows :
“ I am just from Williams’s office. Made the proposition some time ago to deed you the property. This he has agreed to do. If he will deed the property then I will look up the taxes. . . .”
In reply to this plaintiff wrote Mulvane July 23,1897 :
“In your favor of May 27 you say Mr. Williams has agreed to deed you the property and you will look up the taxes after he has done so. If you have secured from Mr. Williams a deed to the property to me, please forward deed to me. If you have not yet got title to the property for me, please forward me by return mail all the papers relating to the loan.”
After the purchase of the property, and on the 30th day of October, 1891, Williams made a payment upon one of said promissory notes, the last due, of $>500. Williams has at all times been a resident of the state of Kansas and the city of Topeka, being absent from the state of Kansas, however, about ten weeks in each year during such time.
In the year 1896 John R. Mulvane made a proposition to Williams, the purchaser, that if he would convey the real estate mortgaged in satisfaction of the promissory notes that such conveyance would be accepted, which Williams agreed to do. Mulvane prepared a deed of general warranty from A. L. Williams and wife to Nellie P. Sedgley, and handed it to Williams, who signed it but did not acknowlege the same. The wife of A. L. Williams did not execute the deed, nor was it, after the signing thereof, returned to Mulvane.
This suit was brought by defendant in error, Nellie P. Sedgley, on the 28th day of August, 1897. Thereafter, on the 23d day of July, 1898, by leave of court, she filed an amended petition making defendant in error, A. L. Williams, party defendant therein, alleging his purchase of the mortgaged premises, his assumption and agreement to pay the mortgage debt, and praying a judgment against him for the amount of the notes. A summons was issued, and served on Williams, indorsed “Suit brought for the recovery or money,” stating the amount.
To this amended petition plaintiffs in error answered, admitting the execution of the notes and mortgage, the conveyance of the property to Williams, his assumption and agreement to pay the mortgage debt, pleading the bar of the statute of limitations as to Williams, and, as a consequence arising from the relation of principal and surety created by the deed of conveyance from plaintiffs in error to Williams and his assumption of the mortgage debt, the bar of the statute of limitations as to plaintiffs in error. They also alleged the agency of John R. Mulvane, the agreement between John R. Mulvane, as agent, and A. L. Williams to accept a deed on behalf of plaintiff, Nellie P. Sedgley, in satisfaction of the mortgage debt, and the execution of such deed by Williams. Plaintiff replied, denying the agency of John R. Mulvane, except for the purpose of receiving payment on said promissory notes, which reply was duly verified. The defendant A. L. Williams answered, pleading the statute of limitations and the agreement to transfer the property in satisfaction of the mortgage debt. Thereafter, and on the 30th day. of December, 1898, the plaintiff, by leave of court, struck out all allega-, tions in her amended petition of the assumption of the debt by Williams.
•At the conclusion of the evidence upon the trial, defendants below, here plaintiffs in error, moved the court to instruct the jury to return a verdict in their favor, which motion was denied and exception saved. The jury returned a verdict in favor of the plaintiff and against all of the defendants save A. L. Williams, for the amount of the mortgage debt. Upon this verdict the judgment of the court was entered, foreclosing the mortgage and decreeing a sale of the property in satisfaction of the same. From this judgment defendants below prosecute this proceeding in error.
It is conceded that the statute of limitations has not run in this case as to the Mulvanes and Munks, on account of their absence from the state. But it is earnestly contended by counsel for plaintiffs in error that, as to Williams, the first note is clearly barred by the statute; and, as the last payment upon, or recognition of, the second note was on October 30, 1891, and as the amended petition making Williams a party was not filed until the 23d day of July, 1898, and as the statute did not cease to run as to Williams until he was made a party defendant in the suit, and allowing an-absence of ten weeks from each year, that the note last due was also barred as to Williams at the date of filing the amended petition to which Williams was made a party. This contention we believe and shall assume to be true.
Upon this hypothesis, it is further contended that, as between the Mulvanes and Munks on the one hand and Williams on the other, by the purchase of the property and the express assumption of the mortgage debt, Williams became the principal debtor and the Mulvanes and Munks sureties for Williams.
Upon these premises, it is contended that as the statute of limitations has barred the right of recovery by the creditor against Williams, the principal, the right to recover from the sureties necessarily follows ; that where there is no liability of the principal there can be no liability of the surety. While the relation of principal and surety undoubtedly exists in this case, as between Williams, the grantee, and the Mulvanes and Munks, the grantors, in the deed of conveyance of the property by reason of the express assumption of the indebtedness in the deed by Williams, whether this relation of principal and surety extends to and is binding upon the mortgagee depends upon the answer to the question, Did the mortgagee consent to and accept this relation as binding upon her? If not, clearly she may disregard the relation and recover upon the notes as against the makers, in whose favor it is admitted the statute has not run, and subject the mortgaged property to the payment of the debt. Whether the mortgagee assented to and accepted the relation of principal and surety existing between Williams and the Mulvanes and Munks is a question of fact. This question was submitted to the jury and by the jury found against plaintiffs in error.
From the undisputed evidence in the record, it is clear that John R. Mulvane acted as the agent of the owner of the notes; that he held possession of the notes for the owner; that he knew of the purchase of the property by Williams and his assumption of the mortgage debt; that he wrote the owner of the notes, James Sedgley, informing him of the purchase of the property and assumption of the debt by Williams; that Williams paid $500, to be applied upon the mortgage debt; that Mulvane often requested payment of Williams, and that Williams stated to Mulvane that he would make payment of the same; that Mulvane agreed with Williams to accept a conveyance of the property in satisfaction of the debt; that a deed to the property was prepared by Mulvane and signed by Williams but not returned to Mulvane; that plaintiff was informed of this fact; that suit was brought by plaintiff against Williams, in which a personal judgment was asked on his assumption of the mortgage debt.
In view of these facts, as shown by the record, it is the opinion of the majority of the court that, as a matter of law, the trial court should have sustained the motion for judgment in favor of defendants ; that, as a matter of law, from the undisputed facts appearing in the record, plaintiff recognized and accepted Williams as her debtor, and hence the relation of principal and surety existing between the mortgagors and the purchaser of the property was extended to and became binding on the plaintiff. As the cause of action against Williams by plaintiff, upon his assump-' tion of the debt, is barred by the statute of limitations, plaintiffs in error have become released from their obligation. (Stove Works v. Caswell, 48 Kan. 689, 29 Pac. 1072.)
It follows that the judgments of the court of appeals and of the district court must be reversed, and it is so ordered.
Johnston, Smith, Greene, JJ., concurring. | [
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The opinion of the court was delivered by
Smith, J.:
Appellant was convicted of the offense of keeping and maintaining a common nuisance, under the prohibitory liquor law. (Gen. Stat. 1901, §2463.) The prosecution was commenced by the county attorney’s filing a complaint against the de fendant before a justice of the peace, charging a violation of the prohibitory law in three counts. The first two charged illegal sales, and the last a violation of the nuisance section above cited. The affidavit for defendant’s arrest was verified on information and belief. Filed with the complaint was the affidavit of one Ledford to the effect that he had bought liquors of one William Mills in the back room of a restaurant kept by the latter; that it was a place where intoxicating liquors were sold and kept for sale, and where persons resorted for the purpose of drinking the same. Defendant was convicted on all three counts before the justice of the peace. He appealed to the district court, where the trial resulted in his conviction under the third (or nuisance) count only.
No question was raised in either trial court as to the sufficiency of the complaint to justify the issuance of a warrant of arrest, and defendant gave bond for his appearance, thereby waiving any lack of authority to arrest him under the initial process. (The State v. Moseli, 49 Kan. 142, 30 Pac. 189,) Upon the trial in the district court, the defendant objected to the testimony of certain witnesses for the prosecution, who testified to purchases of intoxicating liquors upon the premises charged to have been kept by the appellant, for the reason that such sales were not within the mind of the county attorney or the prosecuting witness, Ledford, when .the written charges and complaint were filed against the defendant. Defendant also moved for a new trial on the ground, among others, that the verdict was not sustained by the evidence.
The case does not come within the rule laid down in The State v. Brooks, 33 Kan. 708, 7 Pac. 591, The State v. Nulty, 47 id. 259, 27 Pac. 995, and The State v. Hescher, 46 id. 534, 26 Pac. 1022. In those cases the complaints, or informations, charged illegal sales of liquor, and the prosecuting witnesses filed affidavits, or gave preliminary testimony, of sales by the defendants to certain persons. It was held that the conviction of a defendant must be confined to some of the particular sales in the mind of the prosecuting witness at the time he gave testimony concerning the same. The appellant was not convicted of making illegal sales of intoxicating liquor. The affidavit of Ledford filed with the complaint is divided into two parts (1) A statement concerning sales of liquors made to him by Mills ; (2) the following statement:
“ That is a place where intoxicating liquors are sold, kept for sale, and where persons go to drink intoxicating liquors as a beverage. I saw a bar, or a counter, bottles, glasses and whisky in the building when I purchased the whisky. I think they also keep and sell beer there. James Overmyer told me he got a bottle of beer there."
It is contended that, because the witness, Ledford, did not charge the appellant, in his preliminary affidavit or in his testimony at the trial, with, having made illegal sales of liquor, or with being the keeper of of the place, no conviction ought to be had, notwithstanding such facts were established by other witnesses. This claim must be denied. While the proceeding under section 2463 of the General Statutes of 1901 was in the form of a prosecution against the defendant, .Claude Lewis, yet it partook also of the nature of a proeeeding in rem, directed against the place where the liquors were kept and the liquors themselves. The primary object of the law under which appellant was convicted is to abate such places as public nuisances. If the prosecuting witness, Led-ford, had not given the name of any person in charge of the place which he designated as a statutory nuisance, or if he did not know who kept, owned or maintained the same, still the prosecution would-not fail. Under the section of the statute cited, the conviction of one who keeps a place where intoxicating liquors are exposed for sale is an incident to the abatement of the nuisance maintained by him. It is not necessary, under said section, that a sale of liquors be proved in order to justify a conviction. The keeping of intoxicating liquors for sale, barter, or delivery, in violation of the act, will justify a conviction, in the absence of proof of actual sales. There was sufficient evidence to show that the appellant was in charge of the place, and that the liquors, bottles, glasses and accompanying paraphernalia . were in use for commercial purposes.
The judgment of the court below will be affirmed.
Dosteb,, C. J., Pollock, J., concurring. | [
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The opinion of the court was delivered by
Greene, J.:
This action was commenced in the district court of Neosho county by plaintiff in error against the city of Chanute and the members of its city council, to recover for certain material sold and delivered by him to O. J. Gorman & Co.
The petition alleged that the city of Chanute entered into a contract with O. J. Gorman & Co. by the terms of which the latter were to furnish material and erect for it a system of water-works in said city for the purpose of supplying water to the city and the residents thereof ; that the plaintiff in error, under a contract with O. J. Gorman & Co., sold and furnished to them certain material to be used in the erection of said water-works, which was so used and became permanently a part thereof; that after said company had partially completed the works, and after the material so furnished by plaintiff in error to them had been incorporated into and become a part of said water-works system, they failed in business, became insolvent, and abandoned their contract; that the city took possession of the uncompleted works- and let the contract for the completion thereof to another, and the city refused to pay plaintiff in'error for such material. This suit was then brought against the municipality and against the individual members of its council.
The contention of plaintiff in error is that the city became liable by reason of the neglect of its officers to take from said contractors, O. J. Gorman & Go., a a bond, as provided in section 5130, General Statutes of 1901, and that the individual members of the council are liable to him because of their neglect to perform a duty imposed on them by statute, that is, to require the bond of the contractor provided for in said section. The city demurred to this petition in the court below, as did each of the other defendants. Upon the hearing, the court sustained the demurrer on the part of the city, and it would seem from the record that it also sustained the demurrer of each of the individual defendants, but counsel for plaintiff in error in his brief makes the following statement:
“The demurrers were sustained, the court holding that the petition did not state a cause of action against the city of Ghanute, and holding that said city was not liable to respond in damages for negligence of its officers in failing to take such required bond, but the court carefully refrained from expressing any opinion as to the personal liability of its officers for their failure to take such bond. The court further held that the action was barred by the two-year statute of limition. The plaintiff in error excepted to the ruling of the court and brings the case to this court.”
In his brief, counsel for plaintiff in error assigns the following errors only:
“1. The court erred in sustaining the demurrers and in holding that the city of Ghanute was not liable to respond in damages for the neglect of its officers in failing to take from the contractors the bond required under said section 5130.
“2. The court erred in sustaining the demurrers and in holding that the cause of action was barred by two-year statute of limitations.”
While it appears from the record that the court below sustained all of the demurrers, the question whether it erred in sustaining the demurrers of the individuals joined with the city, who at the time com posed the city council, is not presented to this court and is not relied on as a ground of error.
The statute on which plaintiff in error relies to maintain his action against the city reads as follows:
“That whenever any public officer shall, under the laws of the state, enter into contract in any sum exceeding $100, with any person or persons, for purpose of making any public improvements, or constructing any public building, or making repairs on the same, such officer shall take from the party contracted with a bond with good and sufficient sureties to the state of Kansas, in a sum not less than the sum total in the contract, conditioned that such contractor or contractors shall pay all indebtedness incurred for labor or material furnished in the construction of said public building or in making said public improvements.
“That such bond shall- be filed in the office of the clerk of the district court of the coixnty in which such public improvement is to be made or such public building is to be erected ; and any person to whom there is due any sum for labor or material furnished, as stated in section one of this act, or his assigns, may bring an action on said bond for the recovery of said indebtedness : Provided, that no action shall be brought on said bond after six months from the completion of said public improvements or public buildings.” (Gen. Stat. 1901, §§5130, 5131.)
If the city is liable, it must result from some contractual relation or from some enactment of the legislature. It is not claimed that any contract existed between the city and the plaintiff in error, or that the plaintiff in error succeeded to any of the rights of O. J. Gorman & Go. under their contract with the city, or that he is entitled to recover anything by reason of such contract. His sole contention is that by reason of the foregoing statute and the failure of the city officials to take from the contractors the bond therein provided for, the city, as a municipal corporation, is liable to Mm for the losses he sustained in not being ■paid for the material furnished by him to them.
There are two kinds of duties which are imposed on a municipal corporation — one arising from the grant of a special power, in the exercise of which the municipality is a legal individual; the other arising from the use of political rights under the general law, in the exercise of which it is a sovereign. The former power is quasi private and is used for private purposes ; the latter is public and used for public purposes. (Maxmillian v. Mayor, 62 N. Y. 164, 20 Am. Rep. 468; The State, ex rel., v. Hunter, 38 Kan. 582, 17 Pac. 177.) In the exercise of its giwm-private or corporate power a municipality is like a private corporation, and is liable for a failure to use its power well or for an injury caused by using it negligently. In building its water-works, gas, elec trie-light plants, sewers, and other internal improvements which are for the exclusive benefit of the corporation, it is in the exercise of its gwsi-private power and is liable to the same extent as are private corporations. (The State v. Water Co., 61 Kan. 561, 60 Pac. 337, and authorities there cited.) But in the exercise of the political or public power conferred on it as an arm of the state for the benefit of all the people, its officers, although appointed or elected by the city, paid and subject to be discharged by it, are not the agents of the municipality, but of the state, and the corporation is not liable either for their misfeasance or nonfeasance.
Mr. Throop, in his work on Public Officers, section 551, in speaking of the liability of municipal corporations for the acts or omissions of its officers, sáys:
“With respect to cities, and other municipal corporations, the general rule is that the body is liable for the acts or omissions of its officers in the lawful discharge of a corporate duty, imposed by law upon the body itself ; but not where the act is for the general public interest, or where the statute specifically imposes the duty upon the officer.”
The duty of taking the bond provided for in the statute quoted is not imposed on the corporation. It is not taken for the benefit of the corporation or its inhabitants, but is for the benefit of any person who shall perform labor or furnish material to the person or persons who contract with a public officer to construct any public improvements, whether such persons be residents of the city or elsewhere. The duty is a public one, in the interest of the public, imposed by statute on public officers, and with which the corporation, in its private capacity, has no concern. An exactly similar case is Ink v. Duluth City, 58 Minn. 182, 59 N. W. 960, based upon a statute almost precisely like ours, ahd it was there held that the city was not liable.
We think it plain that the city is not liable to the plaintiff in error in this action. In view of the opinion herein expressed, the second assignment of error is immaterial. If the plaintiff in error, as we believe, never had any cause of action against the corporation, the statute of limitations has no application.
The judgment of the court below is affirmed.
Johnston, Smith, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
The defendants in error T. L. Byers had been for some time prior to April 16, 1897, in partnership with one J. B. Nichols, at Clinton, Mo., .engaged in selling boots and shoes as J. B. Nichols & Co. On that day they dissolved partnership, Byers going out, and Nichols agreed to pay the debts of the firmj retaining firm property with which to do sol They were at the time indebted to Noyes, Norman & Co., the plaintiffs in error.
On May 10, 1897, Nichols executed a mortgage on the entire stock of goods to his wife to secure a claimed indebtedness to her of $1400, and she went into the possession of the goods. The mortgage contained a provision authorizing her to sell at private sale. Soon thereafter Nichols executed to Noyes, Norman & Co. a note for the amount of his indebtedness to them, due in sixty days, and secured the same by a second mortgage on the stock of goods, and on May 20 they brought their action of replevin for the same against Mrs. Nichols. The goods were turned over to Noyes, Norman & Co. in this replevin proceeding, and they advertised to sell them at auction under their mortgage. Before this action in replevin came on for trial, Noyes, Norman & Co. purchased the goods from Mrs. Nichols, paying her therefor $1000, and as a further consideration releasing J. B. Nichols from any and all demands which they had against him as a member of the firm of J. B. Nichols & Co. or otherwise. The goods were at the time of the value of $2300 or more, and were soon thereafter sold at private sale by Noyes, Norman & Co. for $1900. The total amount claimed by plaintiffs in error against the firm of J. B. Nichols & Co. was less than $900.
Afterward, Noyes, Norman & Co., these plaintiffs in error, brought this action in the district court of Cowley county, against defendant in error Byers, to recover of him the full amount of their claim against the firm of J. B. Nichols & Co., of which he had been a member. Upon the trial of this action the above facts were shown without dispute, and Nichols also testified that, soon after the dissolution of the partnership of J. B. Nichols & Co., he informed Noyes, Norman & Co. of the fact, and that he was to pay the debts of the firm. This, however, was denied by the plaintiffs. The jury found for Byers, and the plaintiffs bring -the case here.
Several errors are alleged, but we find them all without foundation except one. Had it been admitted, or found as an independent fact, that plaintiffs knew of the dissolution of the firm of J. B. Nichols & Co. and of Nichols’s agreement to pay the debts of that firm, including that due to the plaintiffs, then .Byers would have been discharged from that debt by the extension of time given Nichols, or by the full discharge given to him in connection with the purchase of the goods from Mrs. Nichols, for the relation which the dissolution agreement had created, as between Nichols and Byers, was that of principal and surety. If plaintiffs did not know this, then their transactions with Nichols did not have this effect.
Defendant in error, however, claims that the general verdict found all of the issq.es in his favor, and that as the question whether plaintiffs had knowledge of the' dissolution1 and the terms thereof was one of the issues, therefore it follows that the jury found that the plaintiffs did have this knowledge. This would all be so if the questions which were submitted to the jury, had been submitted under proper instructions from the court. One of the instructions given was as follows :
“He (defendant) also claims that on or about the 10th day of June, 1897, the plaintiffs took possession of the stock of goods of J. B. Nichols & Co., under a pretended purchase of the same from May Nichols, the wife of J. B. Nichols, who held a chattel mortgage upon the goods, and that the price paid for said goods to said May Nichols was not a sufficient or' adequate price for the same, and that the goods were of a much greater value than the price paid for them, and that the value of the goods so purchased and of which the plaintiff took possession, over and above the amount paid May Nichols, was sufficient to discharge and did discharge all the indebtedness of J. B. Nichols or J. B. Nichols & Co. to the plaintiff. If you should find from the evidence that plaintiffs did take charge of said goods under the circumstances as set forth above, then they would be bound in good faith to allow a reasonable and fair value for the goods so taken and the reasonable and fair value of the goods over and above the amount of $1000 paid by plaintiffs to May Nichols should be credited upon the indebtedness of J. B. Nichols & Co. to the plaintiffs.”
It will be seen by this instruction that the jury were told to credit on the account being sued on the fair value of the goods purchased by the plaintiffs from Mrs. Nichols over and above the $1000 which they had paid her for them, and as the agreed statement of "fact showed that the value of the goods was more than $2300, the instruction was substantially a direction to the jury to bring in a verdict for the defendant Byers. In no way was this result predicated upon any knowledge which plaintiffs might have had of the relation existing between Nichols and Byers by reason of their dissolution agreement.
Now, does this instruction properly state the law? We must, of course, proceed upon the hypothesis of honest dealing on the part of all parties; and that these transactions were neither fraudulent nor color-able. There is neither testimony to show, nor claim made, that they were.. Mrs. Nichols had a right under her mortgage to sell the goods to any one and convey a good title. She did sell to the plaintiffs. They got $2300 worth of goods, which they afterward sold for $1900, for $1000. That was their good fortune. They were entitled to the benefit of their good bargain. They were under no legal obligation to divide their profits with Byers, nor with any one else. In the absence of information concerning the relation which existed between Nichols and Byers arising from their contract of dissolution, the plaintiffs were at liberty to treat with both Nichols and his wife and the stock of goods as they did, without in any manner prejudicing their right to proceed against Byers, except, of course, that the discharge of Nichols would discharge Byers as to one-half of their legitimate claim against the firm of J. B. Nichols & Co.
We think the giving of the instruction prejudicial error for which the judgment must be reversed and a new trial awarded.
Smith, Ellis, JJ., concurring. | [
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Error from Cowley district court. | [
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Error from Nemaha district court. | [
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Error from Labette district court. | [
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Error from Miami district court. | [
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The opinion of the court was delivered by
Cunningham, J.:
Two of the defendants in this action, being the owners of a tract of land, mortgaged it to plaintiff’s testator to secure a debt due from them to him. Afterward they suffered the land to go to tax sale and deed. This deed, though good on its face, was voidable because of irregularities in the proceedings upon which it was based. It was placed on record, but the owners of the land always remained in possession. Before it had been on record five years the owners of the land obtained from the tax-deed holder a quitclaim deed, paying him $800 in cash and giving him a note for $500 secured by a mortgage on the land. This action was brought more than five years after the recording of the tax deed, to foreclose the first mortgage. The holder of this $500 mortgage was made a party, and this contention arises upon a question of priority between these two mortgages.
We think the court below erred in holding that the lien of the last mortgage was the superior one. At the time the owners of the land purchased the interest of the tax-deed holder and received a quitclaim from him, the tax deed had not ripened into a title; it had not become efficient to cut off the prior title; no new title had arisen. A tax deed had issued, but it was voidable; it might never rise to the dignity •and potency of a title. To accomplish this, possession must have been obtained under it, and it must have been on record for five years. At this juncture the owner of the original title bestirred himself, and sought to avert the threatened danger. To do this he needed $800. He had $300 and must have $500 more, or get the owner of the threatening title to give him credit for that sum.
It is claimed in the brief of plaintiff in error tliat the $300 cash paid was more than sufficient to pay all the tax liens then existing, but there is nothing in the record supporting such claim. However, we do not think it material. The transaction between the holder of the tax deed and the owner of the land amounted in law simply to the extinguishment of the tax lien arising upon the cancelation of the voidable tax deed. And whether that lien amounted to but $300, the cash paid, or the entire $800, makes no difference.-
The holder of the tax title was' content to surrender his prior lien, to which he was entitled under the the statute for the taxes paid, and accept in lieu thereof another and different kind of lien, to wit, a mortgage. In doing so, he waived his first lien and took a subordinate one. It was as though the owner of the land had borrowed this amount of money from any other person, and given a like mortgage to secure it.
It is suggested that, as this action was not brought until the expiration of more than five years after the recording of this tax deed, the latter, as an instrument of title, had become efficient, and that, therefore, the second mortgage had become superior. Not so. The tax deed became innoxious, and its adversary character was, extinguished and merged when its holder' conveyed by quitclaim deed his interest therein to the owner of the original and threatened title, and that was, as we have seen, before the new title had matured. And besides this, no possession had even been taken under the tax deed; for surely it will not be claimed that the possession of the owner of the original title was changed to a possession under this incipient title upon the receipt of the quitclaim deed ? Such a claim would merge the greater into the less and not the less into the greater.
The judgment of the court below will be reversed, with the direction to proceed in accordance with this opinion.
Smith, Ellis, JJ., concurring. | [
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Error from Greenwood district court. | [
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Error from Oowley district court. | [
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Original ■proceeding in mandamus, certified from the court of appeals. | [
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The opinion of the court was delivered by
Mason, J.:
E. F. Madden brought ejectment against Christ Stegman and Apolona Stegman, husband and wife. He claimed title under a sheriff’s deed based upon a sale on execution on a judgment against the husband alone. The defendants filed separate answers, each asserting that the wife owned the property and that the sale and deed were therefore ineffective. The husband also pleaded that he had redeemed the property from the sale by paying the amount of the judgment to the clerk of the court, but as the allegation showed that the payment had been made after the expiration of the period allowed for redemption, no real issue was presented in this connection. A trial was had upon the question whether the land had been subject to sale on an execution against the husband. The jury found for the defendants, both generally arid specially, and judgment was rendered accordingly. The plaintiff appeals.
The evidence showed that in 1898 the husband had arranged for the purchase of the land, that the deed as executed by the seller left the name of the grantee blank, and the name of Apolona Stegman was after-wards inserted. The plaintiff insists that the defendants’ own testimony showed beyond dispute that while the formal title was taken in the wife the real ownership was in the husband. It is true there were apparent contradictions in this testimony, but as it included explicit statements that the wife furnished the money with which the land was purchased, an issue of fact was presented upon which the jury was required to pass. (Acker v. Norman, 72 Kan. 586, 84 Pac. 581.) The jury returned a negative answer to the question whether Apolona Stegman had on a former occasion stated or claimed that her husband owned the land, oían interest in it. A transcript of her testimony in -a different action showed that she had asserted that the land was occupied by her husband and herself as a homestead, and had spoken of it as having been purchased and paid for by her husband; but she did not deny that the purchase was made with her money and for her benefit, and was not questioned upon this phase of the matter; the controversy seems to have been over a claim of homestead exemption, rather than of title. Whether her former testimony, taken as a whole, was to be regarded as in contradiction of her present claim was a question to be determined by the jury.
In the answer of Apolona Stegman she claimed ownership under a deed executed by the plaintiff, and said nothing about the deed already referred to. The evidence developed that after the original deed had been executed, and Mrs. Stegman’s name had been inserted in it as grantee, the Stegmans executed a deed to Madden as security, and upon the payment of the debt so secured Madden made a deed to Mrs. Stegman, which was of course in effect merely the release of a mortgage. The fact that in her answer Mrs. Stegman based her claim of title specifically upon this deed from Madden-ought not to preclude her from showing that the title was in her prior to the execution of the security-deed. There is nothing in the record to indicate that the plaintiff suffered any prejudice from the defective pleading.
The plaintiff also introduced in evidence the transcript of testimony given by Christ Stegman in the prior proceeding. He complains of an instruction given in this connection, reading as follows:
“Testimony has been offered regarding statements claimed to have been made by Christ Stegman in another trial. This was permitted only for the purpose of affecting his credibility. He could not by any statements as to the ownership of the land or by any acts of his change the facts as to ownership so far as his wife’s title extended, if she had any. His statements would not bind his wife as to any title she may have had, if any.”
Christ Stegman was a party to the present ejectment action. His státements made on the witness stand in another case were of course competent for ah purposes as against him. But as the two Stegmans interposed the same defense—that the land belonged to the wife, and its sale as the property of her husband passed no title—the real controversy was between the plaintiff and Mrs. Stegman. It was proper to make Christ.Stegman a defendant, in order that.any claim on his part might be adjudicated, but his answer, asserting title in his wife, was in effect a disclaimer so .far as he was concerned, and resulted in his becoming only a formal party. No possible prejudice could result to the plaintiff from the broad statement that Stegman’s former testimony was admissable only as affecting his credibility, for it was qualified and explained by the concluding portions of the instruction to the effect that Mrs. Stegman could not be bound by her husband’s statements. In the absence of some special .circumstances affecting the matter the declarations of Christ Stegman were not admissible against his wife. (Gillespie v. Walker, [N. Y. Supr. Ct.] 56 Barb. 185; Friedman v. Ender, 116 N. Y. Supp. 461; Martin v. Banks, 89 Ark. 77, 115 S. W. 928; Vermillion v. Parsons, 101 Mo. App. 602, 73 S. W. 994.) The statute provides that the stenographer’s transcript of the evidence of a witness “may be introduced in evidence by any party desiring to use the same under like circumstances and with like effect as the deposition of such witness.” (Gen. Stat. 1909, § 2407.) The provision that such a transcript may be used “under like circumstances” as a deposition must be held to include a limitation that it is to be used in litigation between persons who were parties to that in which the original testimony was given. Depositions taken in one action may be used in another, but the parties must be the same, or in privity. (13 Cyc. 1004.) Madden was not a party to the proceeding in which the Stegmans had formerly testified, and therefore he was not entitled to use their testimony against them, otherwise than as declarations binding upon the person making them. The testimony appears to have been given in resisting the confirmation of an execution sale in a •proceeding in which the Stegmans were defendants, but the grounds of such resistance are not shown except as they may be inferred from the testimony itself. In the plaintiff’s brief it is said that one of the grounds was that the land was owned by the husband and not by the wife, and had been sold on an execution against Mrs. Stegman; also that by agreement the motion to confirm the sale was withdrawn and that the Stegmans executed a mortgage upon the land in question to secure the debt on which the execution had been issued. What bearing, if any, these facts might' have on the case need not be considered, as they are not shown by the record.
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The opinion of the court was delivered by
Mason, J.:
Arden Jewell was convicted of grand larceny, and appeals. The evidence tended to show these facts: A suit case filled with goods was stolen from a room in a hotel where Jewell was staying. A short time before, he came to the door of this room in his stocking feet, opened it, and put in his head. On seeing the owner he withdrew. After the theft was discovered Jewell was accused of it and was promised immunity if he would return the goods. He led an officer to the place where the suit case was hidden, pointed it out, and walked away, leaving the town at once. The suit case proved to be empty. About a week later Jewell got upon a train in Nebraska, but on seeing-the owner of the goods in a car he turned back, alighted, and started walking up the track. His arrest, followed. At the trial he undertook to account for his knowledge of the hiding place of the suit case by testifying that his roommate told him of having stolen it. and hidden it there.
The principal complaint made is of the giving of' an instruction reading in part as follows:
“The possession of recently stolen property, or a. knowledge of the place of concealment of recently stolen property, without reasonable and satisfactory explanation, raises a strong presumption of guilt against the party shown to have such possession or knowledge of place of concealment.”
There is much apparent and some real conflict of opinion as to the terms in which the effect of the unexplained possession of property recently stolen may properly be stated to the jury. (Note, 70 Am. Dec. 443, 447; Note, 101 Am. St. Rep. 481; 25 Cyc. 134, 135; 4 Wigmore on Evidence, § 2513.) . It is the settled law of this state that no error is committed in instructing that such unexplained possession is prime facie evidence of guilt (The State v. White, 76 Kan. 654, 92 Pac. 829), although in the case cited it was said:
“Technically 'the unexplained possession of recently stolen property does not make a prime facie case of guilt. It is merely an evidential fact which should be submitted to the jury to be considered in connection with all other facts and circumstances disclosed by the evidence, but which, if the jury so regard it, is sufficient to warrant a conviction.” (p. 663.)
To say that the unexplained possession of property recently stolen raises a'presumption of guilt is substantially the same as to say that it makes a prima, facie case. But the instruction complained of does not stop there. It extends the principle to knowledge of the ;place of concealment of recently stolen property, and .adds that the presumption created is a strong one.
In Hudson v. The State, (9 Yerg.) 17 Tenn. 408, cited in 25 Cyc. 133, 134, the reviewing court said that the fair and legal presumption from the defendant’s having pointed out the place of concealment of stolen .money was that he placed it there himself. The question under discussion was whether the testimony warranted a verdict of conviction. Under the facts of that case an inference of guilt might fairly be drawn from the defendant’s knowledge of where the stolen property was concealed,, but it can not be said as a matter of law that such knowledge affords a presumption of guilt, or necessarily has the same evidential effect as the possession of recently stolen goods.
Courts which condemn an instruction that the unexplained possession of recently stolen goods creates a presumption of guilt necessarily apply the same rule with greater reason where the word “strong” is used. (State v. Bliss, 27 Wash. 463, 68 Pac. 87; Van Straaten v. The People, 26 Colo. 184, 56 Pac. 905.) And instructions have been held erroneous by reason of the use of that word. (Roberts v. State, 11 Wyo. 66, 70 Pac. 803; Denmark v. State, 58 Ark. 576, 25 S. W. 867; Baker v. The State, 80 Wis. 416, 50 N. W. 518; State v. Smith, 24 N. C. 402; People v. Cline, 74 Cal. 575, 16 Pac. 391; 18 A. & E. Encycl. of L. 486.) A contrary conclusion was reached in State v. Collett & Ireland, 9 Idaho, 608, 75 Pac. 271. Courts in discussing whether the evidence in a particular case warranted conviction have occasionally said that the unexplained possession of recently stolen property created a strong presumption of guilt. (Granville Wilcox v. The State, [3 Heisk.] 50 Tenn. 110, 118; Jones v. The State, 105 Ga. 649, 31 S. E. 574; Methard v. The State, 19 Ohio St. 363, 368; State v. Vinton, 220 Mo. 90, 119 S. W. 370; People v. Lang, 142 Cal. 482, 76 Pac. 232.) But using this expression in justifying the upholding of a verdict is a very different matter from laying down such a rule for the guidance of a jury. The objection to this form of instruction is sometimes stated to be that it is a comment on the weight of the evidence, but it goes deeper than this. If the jury were merely told that in the opinion of the judge the possession referred to created a strong presumption of guilt, but that they were to use their own judgment on that point, even if it disagreed with his, a different situation would be presented. The instruction criticised amounts to a statement that such possession as a matter of law creates a strong presumption, to which they are bound to give effect, whatever their own opinion on the subject may be. It is not true that the law attaches, any particular force to the possession of property recently stolen. It is required to be taken into account as an item of evidence, because it appeals to the understanding, and it should be given just such weight as in reason it is entitled to. Under some circumstances it may be so convincing as to be practically conclusive, while under others it may be almost insignificant.
The court is of the opinion that it is probable that the instruction referred to may have influenced the verdict and therefore constituted prejudicial error.
Complaint is also made because in the same instruction the evidence -that the defendant disclosed to the officer the place of concealment of the stolen property is spoken of as “tending to show guilty knowledge.” Whether or not the phrase quoted amounted to actual error, it might have had some tendency to mislead the jury, and for that reason should have been omitted.
In another instruction which is complained of the jury were told that testimony, that had been given as .to the defendant’s previous good reputation might “in doubtful cases” tend to the conclusion that a defendant would not be likely to commit an offense of the kind charged. The language quoted is justly criticised on the ground that the jury, might understand from it that they were to give effect to such testimony only in case the other evidence left them in doubt as to the defendant’s guilt. That is said to be the rule in some jurisdictions, although it is doubtful if the cases cited actually go so far. (12 Cyc. 417, note 59.) But by the prevailing- view, which obtains in this state, such evidence may be sufficient to create a reasonable doubt where otherwise none would exist. (12 Cyc. 417, 418, notes 60, 61; 12 Cyc. 620; The State v. Douglass, 44 Kan. 618, 24 Pac. 1118; The State v. Keefe, 54 Kan. 197, 38 Pac. 302; The State v. Deuel, 63 Kan. 811, 66 Pac. 1037.)
Error is also assigned with respect to the refusal of certain instructions requested on behalf of the defendant. We think, however, the matters to which they related were sufficiently covered by the general charge, except for the defects already noted.
The judgment is reversed and a new trial ordered. | [
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The opinion of the court was delivered by
Benson, J.:
This is an action to recover the-balance alleged to be due on a written contract for the construction of a two-story brick business building and for alleged extra work. A counterclaim was interposed for damages for alleged defects in the plans furnished by the contractor and for defective workmanship. The claim for extra work was. denied. The contract price was $7725, upon which there was a balance of $376.28 unpaid, and the value of the alleged extra work was claimed to be $164.65. The defendant claimed damages to the amount of $1585. A verdict was returned in favor of the defendant for $450.
The appellant alleges error in the rulings upon evidence and in the instructions.
Conflicting evidence was given upon the claim for extra work and upon the counterclaim. In the absence of special findings we are- unable to determine how much, if anything, was found due for extra work, or what items of damages specified in the counterclaim were allowed. The amount allowed the appellee was well within his evidence , of damages.- The testimony tended to prove serious defects, requiring the rebuilding of the front wall above the first story, strengthening the second floor joists, and other necessary work to make the building conform to the contract.
The principal complaint of the ruling upon evidence relates to the admission of the testimony of an architect who had examined the building and detailed the manner of its construction, the defects therein, and the nature and probable expense of necessary repairs, He was allowed to testify to particulars wherein the job had not been done in a workmanlike manner. Counsel say that the witness was asked and allowed to answer numerous questions, each of which was objected to. These objections are now insisted upon. Upon this very general complaint the questions and answers have been examined without finding any erroneous rulings. The witness was an architect of experience and competent to give opinions upon the matters covered by his examination. Other witnesses, carpenters and builders, described the building and its defects, which if their evidence is to be believed were not only serious but easily apparent. Having heard all the evidence in support of the counterclaim as well as that offered on the part of appellant in rebuttal a question of fact was fairly presented for the determination of the jury.
The appellant complains that an erroneous measure of damages was allowed, and therefore that the evidence of the architect and others estimating the expense of remedying defects in the building was erroneously admitted. Particular objections are made to questions asking the necessary expense of rebuilding the front wall of the upper story and of leveling the floor. It is contended that the measure of damages is the difference between the contract price and what the building would have been worth had the contract been complied with. While that rule may apply in some cases, this case was tried upon the right theory. Defects in the building were shown which must be remedied in order to make it conform to the contract and to make it reasonably fit for use. It appears from the verdict that this can be done by a modest outlay. The entire structure is not to be rebuilt, only the front wall of one story. This and the strengthening of joists and leveling the second floor are the principal items. Other incidental repairs are essential but the main structure will remain. When only particular changes are necessary to make the building conform to the contract, otherwise substantially performed, the reasonable expense of these items affords a correct measure of damages. (McCullough v. Hayde, 82 Kan. 734, 109 Pac. 176.)
Complaint is made because the court failed to state any precise' measure of damages in the instructions. This omission would doubtless have been supplied had attention been called to it, which the appellant should have done, if he deemed it necessary, suggesting the rule deemed applicable. However, the counterclaim set out the particular defects and the amount of damages claimed in respect to each of them. The evidence was presented accordingly, and the jury were' instructed that if they found the building defective in any of these particulars, and that such defect was caused 'by the default of the plaintiff, the defendant should recover such damages therefor as the evidence showed that he had sustained. This instruction in connection with the evidence admitted, restricted the assessment of damages to the items pleaded. The case was tried and the damages awarded upon the correct theory, and the failure to otherwise state the measure of damages is immaterial.
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Per Curiam:
The object of this action is to restrain the defendant insurance companies, from carrying out an unlawful combination to control insurance rates in violation of the antitrust statutes. While the suit was pending the insurance rate law was enacted. (Gen. Stat. 1909, §§ 4265-4275.) This act requires the filing of a schedule of rates and other items with the superintendent of insurance, and gives that officer power to lower rates if found too high, and to direct an increase when found to be inadequate. If upon another trial of this action the state should prevail the duty and power of the superintendent would remain unaffected, the cost of insurance would still be the subject of state regulation. The public benefit sought to be obtained by this action is secured by the operation of the statute. The superintendent has proceeded to exercise the authority vested in him by general orders reducing rates. (Gen. Orders of Supt. of Ins. effective March 10, 1910, and July 1, 1911, Record of Orders, pp. 9, 15; Report of Supt. of Ins. for 1910, pp. xii, xiii.) Nothing of substantial benefit can now be gained by the injunction prayed for. The court is not required to give judgments that are not effective. (Stebbins v. Telegraph Co., 69 Kan. 845, 76 Pac. 1130.) When questions become moot, judicial action will cease. (Hurd v. Beck, post, p. 11, 45 Pac. 92; Ziegler v. Hyle, 45 Kan. 226, 25 Pac. 568; Knight v. Hirbour, 64 Kan. 563, 67 Pac. 1104; Kansas City v. The State, 66 Kan. 779, 71 Pac. 1127; Waters v. Garvin, 67 Kan. 855, 73 Pac. 902; Jenal v. Felber, 77 Kan. 771, 95 Pac. 403; Bonnewell v. Lowe, 80 Kan. 769, 104 Pac. 853; Duggan v. Emporia, 84 Kan. 429, 114 Pac. 235; City of Ottawa v. Barnes, 87 Kan. 768, 125 Pac. 14.)
Following the usual practice in such cases the proceedings upon appeal are dismissed. | [
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The opinion of the court was delivered by
Burch, J.:
The city of Emporia asks for a peremptory writ of mandamus against the defendant in aid of an ordinance to open one of the streets of the city.
The petition states the plaintiff’s case. The answer admits certain allegations of the petition, contains a general denial and alleges matter which it is claimed renders the ordinance void. The plaintiff moves for judgment on the pleadings. Consequently only the uncontested portions of the petition and the facts stated in the answer'can be considered.
The passage of the ordinance and the physical conditions described in the ordinance itself are not disputed. The ordinance reads as follows :
“An Ordinance
“To open Congress street through Third avenue as a public highway for common travel.
“Be it Ordained by the Board of Commissioners of the City of Emporia, Kansas:
“Section 1. Congress street in said city shall be opened for ordinary travel as a street through its intersection of Third avenue, and made available as a public highway, by the removal therefrom of so much of the earth embankment, which supports the tracks and switches of the railroad, known as the Atchison, Topeka & Santa Fe Railroad, as now constitutes an obstruction to such use of said street at said intersection. Such obstruction shall, by the corporation operating said railroad, be removed and cleared away from the north side to the south side of said avénue to a width of not less than thirty feet, east and west, and the opening, tunnel, or .subway, for the passage of said street through said avenue shall at no place be less then twelve feet in height above the grades provided for said intersection in the ordinance of said city passed ■on the 25th day of April, A. D. 1912, entitled, ‘An ordinance to change and establish grades at certain points on Congress street and State street and other adjacent streets and contiguous places between Fourth avenue and South avenue.
“Sec. 2. The work of providing a support of the tracks, switches and trains of said railroad over said intersection of street and avenue other than said earth embankment which is now such obstacle to public travel, and of making such opening, tunnel, subway or passageway for Congress street through Third avenue at the aforesaid grades; shall be commenced and vigorously prosecuted by said Railroad corporation, and shall be so far completed on or before the 1st day of September, A. D. 1912, as to be ready for the construction, pavement and improvement of said Congress street through Third avenue as such highway of common travel at that time.' Approved and passed this 30th day of April, A. D. 1912.”
It will be observed that the ordinance is not one .to compel the defendant to build a subway at a crossing used in common with the public. The defendant blockades Congress street with an embankment, and the city merely desires that this street be opened for travel by the removal of the embankment, leaving the railway upon a viaduct. It is claimed that the city is without lawful power to require the defendant to proceed in the manner proposed.
It is elementary that the power in question is legislative in character, and that the legislature may confer authority upon the municipality to exercise it instead of doing so directly. The legislature has granted the city express power to open, widen, extend and improve streets, avenues, alleys and lanes (Gen. Stat. 1909, §§ 1374, 1399), to prevent encroachments upon such thoroughfares (§ 1400) and to regulate crossings of railway tracks, and make provisions to prevent accidents at such crossings (§ 1409). Besides this, the statutes permitting the defendant to construct its road across Congress street require the restoration of the street to such a state that its usefulness shall not be materially impaired. (Laws 1859, ch. 47; Gen. Stat. 1868, ch. 23, § 47.) Therefore it required no ordinance to create the obligation to open Congress street for public travel, and the city is clearly suffering from no lack of statutory authority to prescribe by ordinance the conditions under which the obligation shall be discharged.
The defendant claims the ordinance is unreasonable, unjust and confiscatory for the following reasons: The defendant’s general manager has been conferring with the mayor and commissioners of the city, with the commercial club, and with a large number of citizens interested in the welfare of the city, and in such con ferences the opinion almost unanimously expressed was that a subway should be constructed at State street, one block west of Congress street. Such a subway would accommodate the street railway, as the proposed opening of Congress .street would not, and the défendant is disposed to consider joining with the street railway in constructing a subway at the logical place on State street. The construction of a subway on Congress street would accommodate but few people and would be of no great value to the city of Emporia and its inhabitants. The construction of the proposed subway would involve an expenditure by the railway company of more than $10,000, which is entirely disproportionate to the benefits accruing to the city therefrom.
Streets are intended for the use of the public at large as well as for the benefit of residents upon them and other inhabitants of the city. The extent to which the growth, welfare and prosperity of the city and the safety and convenience of the traveling public will be promoted by the proposed improvement is not a judicial question. The duty to conserve the public welfare in the premises is vested in the mayor and commissioners of Emporia. Their power is legislative, and discretionary in the legal sense. The commercial club and the citizens with whom the defendant’s general manager conferred are not charged with official responsibility in the matter, and the court is not permitted to substitute their judgment or its own judgment for that of the governing body of the city. The courts have no supervisory power over the policy of municipal legislation. They can only interfere to curb action which is ultra, vires because of some constitutional impediment or lack of antecedent legislative authority, or because the action is so arbitrary, capricious, unreasonable and subversive of private right as to indicate a clear abuse rather than a bona fide exercise of power. These prin ciples are all too well understood to need bolstering by citations of authority.
There is no charge in' the answer that the mayor and commissioners are actuated by malice or bad faith, and it is conceded by the defendant that some public benefit would result from opening the street. It is not unreasonable to require a barricade maintained in violation of law, and prohibiting all use of the street, to be removed for the benefit of even a minor portion of the traveling public. The natural result of the removal of the obnoxious fill down to the established grade of the street is an overhead crossing, and the details of the .proposed plan for the crossing are not criticised. The interests of the street railway located upon another street are not material. The defendant had no right to appropriate the street to its exclusive private use. It should have secured a vacation, or, failing in that, should not have impaired, materially, its usefulness. It is now called upon merely to obviate in a reasonable and practicable way the consequences of its own wrong, and consequently is not in a position to complain of the cost.
It is said that the city has made no provision for the removal of a sewer which forms an obstacle to the construction of the subway, and the case is cited in which a change of grade by ordinance was a condition precedent to the building of a viaduct. (The State v. Mo. Pac. Rly. Co., 33 Kan. 176, 5 Pac. 772.) In this case a sewer ordinance is not a prerequisite* and it may be presumed that the city will take care of the sewer when the defendant’s excavation reaches it, should a sewer exist, which the city denies. It is also said that the time limited by the ordinance for the construction of the subway has elapsed, and consequently that the ordinance has spent its force. The ordinance merely fixed a reasonable time for doing the work, after which the defendant, in case of nonperformance, would be in default and subject to compulsory process.
The various objections to the ordinance are summed up in support of an allegation that the defendant is deprived of property without due process of law, and is denied the equal protection of the laws, contrary to the constitution of the United States and the amendments thereto. For the reasons already stated this contention, is overruled.
The peremptory writ is allowed. | [
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Per Curiam:
Upon rehearing the former judgment is affirmed.
Burch, Porter, and West, J. J., dissenting. | [
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Per Curiam:
In a petition for rehearing it is strenuously insisted that an issue was decided in this court not presented in the district court.
The action is in ejectment. The plaintiffs claimed the right of possession under a tax deed and also under a verbal agreement, alleging that Hiram Stout, being indebted to Belle Charpie in the sum of about $2000, agreed to convey the land to her in settlement of that debt, and in pursuance of that agreement placed her in possession of the land. On the trial it appeared that the agreement under which she took and held the possession was that she should have the land as security instead of payment. Either agreement would give her the right of possession, and therefore was pertinent to the issue. It is said that the- abstract was deemed sufficient Upon the assignments of error presented, but raised no question as to the rights of a mortgagee in possession. Interpreting this as a suggestion that material evidence may not have been abstracted, the transcript has been read, but no evidence is found rebutting or qualifying that referred to in the opinion upon which it was held that Belle Charpie had the rights of a mortgagee in possession. On the contrary, other testimony is found confirming that view.
It is said in the petition for rehearing that the defendants might have shown declarations of Belle Char-pie that the possession of the land at her death should pass to the appellee, had the issue finally decided been raised at the trial. That evidence was as competent to rebut the claim based on an agreement for sale as upon an agreement for security. The right of possession was in issue upon either claim.
It is also urged that the evidence shows that the land was conveyed to Ella Stout by the Kingman Real Estate Company, and the title thereto never vested in Hiram Stout while Belle Charpie was in possession. A deed from Hiram Stout to that company is in evidence, the date of which does not appear, but it was made after the tax deeds had been executed, as appellees say in their brief, at which time they also say that Mr. Stout owned the land. It was reconveyed by the same company to Ella Stout on July 31, 1909. It therefore appears that both the conveyances were made while Belle Charpie was. in full possession, which she held undisturbed until her death.* Mr. Stout testified that he owned the land, and no claim-was made by any one that he did not until after it was conveyed to his wife.
. Section 581 of the civil code requires this court to render such judgment as. justice requires or to direct such judgment to be rendered without regard to technical errors and irregularities'. It would be manifestly unjust to hold that the creditor or her heirs should be deprived of the possession of the premises held by her at her death as security for an admitted debt, without payment being made. The fact that a broader claim was made by the plaintiffs does not deprive them of the lesser one sustained by the proof, which was not, as counsel say, outside the issue, but was within it.
The decision enforces the agreement. The heirs of Belle Charpie have their security, and the debtor has his right to redeem. This just result should not be defeated by any misconception of the issues which does not affect the substantial right of the parties. (Civ. Code, § 141; Worth v. Butler, 83 Kan. 513, syl. ¶ 3, 112 Pac. 111.)
The petition for rehearing is denied. | [
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The opinion of the court was delivered by
Johnston C. J.:
A. E. Guthridge was charged with. having committed rape upon the person of Kosie Plummer, a girl seven years of age, and was found guilty of an attempt to commit that offense. On this appeal it is contended that the information was defective because the physical acts done towards the commission of the offense were not specifically alleged. The principal offense was set forth in the language of the statute and under such a charge the accused may be convicted of an attempt to commit the offense. (Crim. Code, § 121; The State v. Decker, 36 Kan. 717, 14 Pac. 283; The State v. Frazier, 53 Kan. 87, 36 Pac. 58.) Manifestly, the prosecutor was seeking to secure a conviction for rape, but the jury found, as it had a right to do, that the wrongdoing of the defendant proceeded no further than an attempt to commit that offense. If the specific charge of attempt to commit a rape had been made and relied upon by the prosecutor it would have been necessary for him to have set out the acts done towards the commission of the offense (The State v. Frazier, supra), but here the substance of the offense was sufficiently charged under section 31 of the crimes act (Gen. Stat. 1909, § 2519), and it is provided in the criminal code, as we have seen, that if the effort to consummate the crime was unsuccessful the jury may find the defendant guilty of an attempt.
Complaint is made because the court instructed the jury that if they found that the defendant had not committed the crime of rape they might consider whether he was guilty of an attempt, telling the jury that one who attempts to commit that offense and does some .act towards the consummation of it but fails in the perpetration of the offense or is intercepted or prevented in executing the same may be convicted and punished. Appellant insists that the jury should have been instructed under section 41 of the crimes act (Gen. Stat. 1909, § 2529), which relates to assaults with intent to commit particular offenses, including rape. The offense defined in section 41 is somewhat similar to that defined in section 283 of the crimes act (Gen. Stat. 1909, §2783), but, as has already been decided, they involve different elements and are distinct offenses. (The State v. Custer, 85 Kan. 445, 118 Pac. 507.) As the prosecution was not under section 41 it was not necessary, nor proper, to call the attention of the jury to the offense defined in that section. As we have seen, the court instructed as to the offense of rape and also as to an attempt to commit rape, and there was testimony supporting each grade of the offense.
Another objection is that the court spoke of the offenses included in the charge as degrees of crime. While an attempt is not strictly a degree of the principal offense, it approaches it closely. It is an unsuccessful effort to commit an offense and is of itself made an offense. If the overt acts constituting the attempt fall short of the completed crime it is regarded as the lesser offense rather than as a degree of the principal offense, but in no event can the reference to degrees in the instructions have operated to prejudice the appellant.
It is also contended that the court erred in telling the jury that voluntary intoxication is no defense to the crime charged. It is a principle of law applicable in ordinary cases that voluntary intoxication does not of itself either excuse or justify crime. (The State v. White, 14 Kan. 538; The State v. Mowry, 37 Kan. 369, 15 Pac. 282; The State v. Yarborough, 39 Kan. 581, 18 Pac. 474; The State v. O’Neil, 51 Kan. 651, 33 Pac. 287; The State v. Wells, 54 Kan. 161, 37 Pac. 1005.) In cases where a specific intent is of the essence or a necessary ingredient of the offense drunkenness may be shown and considered in order to determine whether the appellant’s mind was in a condition to form the essential felonious intent. (The State v. Rumble, 81 Kan. 16, 105 Pac. 1.) While there is testimony that appellant drank intoxicating liquor there is nothing tending to show that there was an approach to a state of mind that would relieve him from responsibility for his act. Under the testimony the court was not required to state specifically any of the exceptions to the rule that drunkenness excuses or extenuates crime and, besides, no request was made for fuller instructions on the subject.
The judgment will be affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
W. S. Richardson is engaged in the practice of dentistry. A complaint was made to the state board of dental examiners charging in general terms that he had been guilty of obtaining money by false pretenses, and of dishonorable conduct, and specifying that, having performed services for a customer (a Mrs. Brack) under a promise that any needed repairs would be made without additional charge, he had refused, after having been paid in full, to make repairs that became necessary by reason of defective work. The board investigated the matter, took evidence, found against Richardson, and revoked his license. He brought an action to enjoin the board from enforcing its order and obtained a permanent injunction. The board appeals.
'The trial-court made a finding, among others, reading as follows:
“In view of the fact that no question is raised either at this trial, or upon the hearing before the Board, touching the moral character of the plaintiff, or his capability or workmanship touching any case except the one of Mrs. Brack, and in view of the further fact that each member of the Board testified that no other act of the plaintiff was taken into consideration except the one named in the charge against him, I believe that his license ought not to have been revoked, and that its revocation was a great injustice. There was in the hearing before the Board evidence proper for its consideration which, if believed in its entirety, would sustain its finding, yet the finding of the Board was against the clear and decided weight of the evidence. In the hearing and decision of the case, the Board acted honestly and impartially, - and not arbitrarily, but I find that its act was oppressive.”
We think this finding required a judgment against the plaintiff. The statute provides that the board may revoke the license of dentists “who have by false or fraudulent representations obtained or sought to obtain money or any other thing of value or have practiced under names other than their own, or for any other dishonorable conduct.” (Gen. Stat. 1909, § 7991.) The investigation and determination whether a license should be revoked is committed to the board. Its decision upon a question of fact is final, if made in good faith, or as the same idea is sometimes expressed, “in the absence of fraud, corruption or oppression.” (Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247, 1 L. R. A., n. s., 811; School District v. Davies, 69 Kan. 162, 76 Pac. 409; Allen v. Burrow, 69 Kan. 812, 77 Pac. 555; Munk v. Frink, 81 Neb. 681, 116 N. W. 525, 17 L. R. A., n. s., 489.) The board’s decision is rendered unassailable, so far as relates to its conduct, by the finding that it acted honestly and impartially, and not arbitrarily. True, the court added: “But I find that its act was oppressive.” In the original finding, upon which the judgment was rendered, these words followed, whieh were afterwards. stricken out on the motion of the plaintiff: “that is, it was unduly severe,, and an excessive use of the authority' vested in the Board, and that the penalty imposed upon the plaintiff was grossly out of proportion to his offense.” We do not think the dropping of the explanatory phrase materially changed the effect of the finding. The court believed the penalty to be too severe for the offense, and regarded this as sufficient to characterize the action of the board as oppressive. The striking out of the specific statement to this effect does not indicate a change of opinion. The term “oppressive” is essentially a conclusion. The finding that the board acted honestly and impartially, and not arbitrarily, is the controlling-one, because the more specific. (The State v. Kirmeyer, ante, p. 592, 128 Pac. 1114.) As the board acted honestly and impartially, and not arbitrarily, its conduct could not have been oppressive in such sense-as to authorize a court to set aside its order, unless because of a want of legal authority. An order of revocation lawfully made can not be set aside as oppressive-on the ground that it seems to a court unduly severe. If the version of the transaction given by Mrs. Brack is correct (and the board is the tribunal to which the law commits the decision of this question) the plaintiff was guilty, in a sense at least, of obtaining money by false representations, and at all events of dishonorable conduct. The statute purports to authorize the revocation of a dentist’s license for a single act of that character. Doubtless the legislature and the board proceeded upon the theory that a solitary instance of misconduct on the part of a dentist in connection with his profession might exhibit such a want of character as to amount to a disqualification to practice. The revocation of a license by reason of such misconduct is not regarded as a punishment for a past wrong, but as a- protection to the public for the future. (Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247,1 L. R. A., n. s., 811.) It is the withdrawal of the permission without which the dentist may not practice.
It remains -to consider whether the board lacked authority to make the order of revocation, for any of a number of reasons that are suggested. The statute requires the filing of written charges, supported by affidavit, as a basis for action by the board. The plaintiff contends that here the complaint was insufficient to give the board jurisdiction to act. It was informal and lacked much of the precision and definiteness of a well-drawn pleading, but we think it advised the plaintiff of the substance of the charge against him, and gave him all the information necessary to the preparation of his defense, and in a proceeding of this character nothing more is required. The specific contention is made that the conduct complained of did not constitute the obtaining of money by false pretenses, because, even accepting Mrs. Brack’s story as true, Richardson made no false statement of an existing fact, but at the most only failed to keep his promise as to what he would do in the future. The authorities are agreed that a false pretense to be within the criminal statute must relate to an existing condition; but there is a line of cases holding that a promise made with a deliberate purpose not to perform it amounts to such a misrepresentation, because it falsely asserts an intention, the existence of which is a question of fact. (National Bank v. Mackey, 5 Kan. App. 437, 49 Pac. 324, 19 Cyc. 397; Note, 10 L. R. A., n. s., 640, 646.) In 14 A. & E. Encycl. of L. 51, it is said:
“Though there is a conflict of opinion on the question, the better opinion is, that the rule that an unperformed promise does not amount to fraud does not apply if the promise was made for the purpose of deceit, and with, the intention at the time not to perform the same, but that there is fraud in such a case. The reason, it has been said, is that .the promisor impliedly represents that he intends to perform his promise, and therefore falsely represents the condition of his mind, which is a representation of fact.”
Whatever should be the rule in a criminal prosecution, the making of a promise without any intention of performing it should be regarded as a false pretense within the meaning of the statute here involved. Of course the mere failure of Richardson to keep a business agreement would not be a ground for revoking his license, but the evidence warranted the belief, upon which the board obviously proceeded, that he knew the work was defective when he collected pay for it, and that he had no intention of making the repairs.
The plaintiff contends that the portion of the statute warranting the revocation of a dentist’s license for “dishonorable conduct” is unconstitutional and void, because the phrase quoted is too indefinite to be made the basis for such action. Several courts have held in accordance with that contention, the argument being that a course regarded by one person as dishonorable may not seem so to another, and there is no fixed standard by which the disagreement can be settled. (Hewitt v. Board of Medical Examiners, 148 Cal. 590, 84 Pac. 39, 3 L. R. A., n. s., 896, 113 Am. St. Rep. 315, 7 A. & E. Ann. Cas. 750; Czarra v. Board of Medical Supervisors, 25 App. D. C. 443; Mathews v. Murphy, 23 Ky. Law Rep. 750, 63 S. W. 785, 54 L. R. A. 415.) Of the case last cited it is said in a note in 1 L. R. A., n. s., 813:
“The court, on the other hand, admits the validity of the statute as to the refusal to grant licenses, though such refusal may be based upon the same grounds. This seems inconsistent with its holding as to revocation, as there is no distinction between the two phases of the question. On the whole, the decision seems to be against the spirit of the decisions above noted, and of the many cases upholding the validity of "such a provision in connection with the granting of licenses.”
Cases in which similar statutory provisions have been enforced (although in none of them does this precise question appear to have been directly raised) are collected in notes in 7 A. & E. Ann. Cas. 753, and 8 L. R. A., n. s., 585. See, also, Morse v. Board of Medical Examiners, 57 Tex. Civ. App. 93, 122 S. W. 447. We think it is going entirely too far to say that such a provision is a nullity. Before a license to practice dentistry is issued the applicant is required to furnish proof that he is .“of good moral character.” (Gen. Stat. 1909, § 7985.) The phrase is general, but no great practical difficulty attends its application. The courts which make a distinction between general language used in defining the conditions upon which one may be originally permitted to practice, and similar language used in stating the grounds upon which the permission may be withdrawn, proceed upon the theory, not accepted by this court, that the revocation of the license is essentially a punishment. The evil results, the fear of which has occasioned the decisions against the validity of provisions authorizing the revocation of a practitioner’s license upon general grounds, can be avoided by reasonable interpretation. Doubtless no conduct should be deemed “dishonorable” in such sense as to warrant a forfeiture of a dentist’s right to practice, unless it occurs in connection with the exercise of his profession and involves moral turpitude. The expression “other dishonorable conduct” may be interpreted to mean conduct of the same general character as that already specified. (State, ex rel., v. Purl, 228 Mo. 1, 128 S. W. 196.) Whether or not the conduct of Richardson as narrated by Mrs. Brack constitutes what might be technically described as obtaining money by false pretenses, it was dishonorable conduct of a similar kind.
An argument is made in support of the view 'that the evidence shows the decision of the board to have been arbitrary, fraudulent, and the result of a violent prejudice. We find nothing to impugn the good faith of any of the members of the board. There was a direct conflict of testimony in the hearing before them. The quality of the work done by Richardson had a bearing upon the controversy. This was a matter concerning which they were peculiarly qualified to reach a correct conclusion. The procedure followed was not that of the courts, but we can not say that it was not adapted to the ascertainment of the truth, or that the plaintiff was denied any substantial right.
The judgment is reversed with directions to render judgment for the defendants. | [
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The opinion of the court was delivered by
Mason, J.:
Henry Hupe sued George Sommer, alleging that the defendant, as township trustee, had contracted with him for the building of a drainage ditch. He sought to hold the defendant personally liable for his pay. An answer and reply were filed. Upon the case being called for trial the defendant objected to the introduction of any evidence on the ground that the petition failed to state a cause of action. The objection was sustained and judgment was rendered against the plaintiff, from which he appeals.
A township trustee under the statute has authority to “establish” a drainage ditch. (Gen. Stat. 1909, §§ 2968-2981.) When one has been established,' that is, when he has determined where it shall be located, he divides it into sections and fixes a time within which the work upon each section may be done by some person whom he designates—obviously the person found to be justly chargeable with its cost, the evident purpose being to have the ditch built, so far as possible, by the persons interested. (§ 2972.) If any section is not completed within the time set, he “sells” it to the lowest bidder. (§ 2979.) That is, he lets contracts for the completion of the ditch. Upon the letting of a contract he immediately certifies the amount of the bid, with other costs, to the county clerk, who is required to enter it upon the tax roll against the person to whom it has been apportioned. As soon as the work is finished to his satisfaction the trustee also certifies the amount due the contractor to the county clerk, who draws an order for its payment “out of the county treasury.” At any time before the charge is entered upon the tax roll the person liable, may pay the amount to the trustee, who pays it to the contractor. ('§ 2980.) The section preceding that just cited concludes with the words: “Such trustee shall make a fair and just estimate of the amount of costs made in all such proceedings, to be paid by each person interested in such proposed ditch, drain, or watercourse, and collect the same as hereinafter provided, and pay out the same in conformity with such estimates.” (§ 2979.)
The petition alleges in substance that the defendant promised that the plaintiff should receive his pay from him as soon as the work was completed. This allegation is not sufficient to charge personal liability upon the defendant, for the petition recites that the incomplete sections of the ditch were sold to the plaintiff—meaning that the contract for their completion was let to him—“according to law”; and the pleadings show explicitly that the plaintiff is relying upon the provisions of the statute referred to. The contract was made with the defendant in his official capacity. The language used by him can not be construed as imposing a personal liability unless an intention to bind himself clearly appears. (29 Cyc. 1446; Mechem’s Public Offices and Officers, §§ 805, 806; Note, 15 . L. R. A. 509; Note, 22 Am. St. Rep. 508, 510.) His promise to pay the defendant when the work was completed must be interpreted as an assurance that the public body which he represented—in this instance the county—would be a prompt paymaster. In a sense the representation was justified, since the county becomes indebted to the contractor upon the filing of a certificate of the completion of the work, unless payment has already been made by the landowner to the trustee, in which case the trustee pays the contractor. The provision of the statute that the trustee shall collect the costs, made in such proceedings, “as hereinafter provided,” and pay them out to the persons entitled thereto, means merely that he shall perform the duties specifically laid upon him in that connection. But if the trustee, acting officially, went too far and exceeded his authority by promising immediate payment, this did not make.him personally liable (at least in the absence of fraud), for the plaintiff could not have been deceived, having the same means of information and .knowing from the statute how payment was to be made. (29 Cyc. 1446, 1447; Martin v. Schuermeyer, [Okla. 1912] 121 Pac. 248.) In the opinion in the case last cited it was said:
“The law is that an officer contracting on behalf of. .a public corporation, and intending to so contract, is not personally, liable on his contract, where he has been .guilty of no fraud or misrepresentation, and where the person with whom he contracts has the same means of knowing the extent of his authority as he has, though he exceeds his authority, and for that reason does not bind the corporation.” (p. 249.)
The petition also alleges that the defendant failed and refused to proceed as the law provides for the •collection of the money and the payment of the plain tiff, and failed and refused to put in operation the machinery provided by law for the collection of the taxes and moneys. These allegations, liberally construed, must be taken to charge that the defendant had wrongfully refused to certify to the county clerk the amount of the bid, upon its acceptance, and that he had later wrongfully refused to certify to the clerk that the work under the contract had been completed to his satisfaction and that thereby the amount had become due to the contractor. The statute places upon the trustee the duty of performing these acts.' As the contractor is the person most directly interested in their performance the duty is one owed to him. If the defendant without sufficient excuse refused to perform them he inflicted a wrong upon the plaintiff, and should be liable for whatever loss was thereby occasioned.
Where one contracting with a city is to be paid only out of the proceeds of a special tax. against the property benefited, and the officers refuse to make the levy, the city becomes immediately liable to the contractor for the full amount out of its general fund. (City of Leavenworth v. Mills et al., 6 Kan. 288; Heller v. City of Garden City, 58 Kan. 263, 48 Pac. 841; Note, 32 L. R. A., n. s., 163; 2 Dillon on Municipal Corporations, 5th ed., § 827.) This liability is not based merely on the theory that the city has done the contractor a ’wrong and must compensate him for his loss thereby occasioned; it is also founded upon the proposition that the city is primarily liable to the contractor and can pay him and reimburse itself through a levy of the special tax. The same reason does not exist for holding the delinquent officers personally liable for the full amount. A public officer who refuses to perform a duty, without the performance of which a just claim against the public can not be paid, is personally liable to the claimant to the extent of his injury, but the measure of damages in such a case has been a matter, of considerable discussion and difference of opinion. In Clark v. Miller, 54 N. Y. 528, a town supervisor was sued for a refusal to perform the duty of presenting to the county board the plaintiff’s claim for damages reassessed for the laying out of a road through his land. The grounds of the decision were thus stated:
“The defendant is answerable for the whole amount which, by his refusal to perform his duty, the plaintiff has been unable to obtain. The law will not limit his recovery to anything less than the amount of the reassessment; for such a limit would drive him to a succession of actions, in none of which could he, if the defendant’s position is correct, recover more than interest. It can not be assumed that the defendant would be taught by the result of one action and proceed to do his duty, and thus avoid another. The plaintiff is not thus to be put off. The- defendant’s misconduct has deprived him of obtaining his money, and the defendant must answer to the whole injury which he has occasioned.” (p. 535.)
Of this doctrine it has been said:
“This rigorous severity is exceptional and based on considerations of policy to insure the active diligence of such officers; it is in fact punitive in its nature and object.” (1 Sutherland on Damages, 3d ed., § 160.)
In Dow v. Humbert et al., 91 U. S. 294, the authorities on the subject are reviewed and the conclusion is reached that the plaintiff’s recovery in an action of the class referred to should be limited to compensátion for such loss as he has actually suffered from the defendant’s neglect of duty. This we think the better rule in reason as well as upon authority. (See, also, Crane v. Stone, 15 Kan. 94, 98; Amy v. The Supervisors, 78 U. S. 136; Newark Savings Institution v. Panhorst, 7 Biss. 99; Mechem’s Public Offices and Officers, §§ 784, 785; 2 Sedgwick on Damages, 9th ed., § 545.)
In the present case a recovery is asked for the full amount of the claim and no specific grounds of damage are alleged. However, the petition, in view of the only method by which its sufficiency was tested, must be construed with great liberality. If its allegations are true it necessarily follows that the plaintiff has at least been unnecessarily delayed in the collection of his claim. He can not recover interest during this time from the county, for the statute does not so provide. (Jackson County v. Kaul, 77 Kan. 717, 96 Pac. 45.) He has therefore stated a cause of action for the recovery of interest at the legal rate from the time he would have received payment if the defendant had complied with the statute.
In his answer the defendant alleges that he certified to the county clerk the amount for which the contract had been let, and that it was entered upon the tax roll; that thereafter he and the county treasurer were by decree of the district court permanently enjoined from collecting the tax. The plaintiff replies with a general denial, admitting the injunction, but stating that he was not a party to the action in which it was granted, and that the ground of it was that the defendant had not proceeded in the matter “as by law provided.” If the defendant owed to the plaintiff a duty to take the initial step in a proceeding to levy a tax, he was not relieved of it merely by an injunction in an action to Which the plaintiff was not a party. (A. T. & S. F. Rld. Co. v. Comm’rs of Jefferson Co., 12 Kan. 127.) The allowance of the injunction is not conclusive evidence against the contractor that facts existed preventing the collection of the tax; and if the injunction was rightful, because the trustee had omitted some duty he owed to the contractor, it could not be available to him as a defense.
In the plaintiff’s brief it is said that if any one is liable to the defendant it is the county—that the county’s liability does not depend upon the collection of the tax. This is doubtless true. The statute says that upon the filing of the certificate of the amount due the contractor the county clerk shall draw an order for its payment out of the county treasury. The payment is not made contingent upon the collection of the tax, but the liability of the county does not attach until the statute has been complied with. Upon the letting of the contract the amount is certifiéd to the county clerk, who at once places it upon the tax roll. When the work is completed a second certificate is filed showing that the amount of the bid has become due to the contractor. Then an order is drawn for its payment by the county. . While the collection of the tax is not a condition precedent to the payment, its levy seems to be. At all events, before the contractor can be paid the trustee must in effect certify that the work has been completed to his satisfaction. The petition alleges that this was not done. Without it the plaintiff could collect nothing from the county. The injunction does not appear to have forbidden it. The petition alleges in substance that the plaintiff was entitled to payment from the county, which he could collect only upon the filing of a certificate which the defendant in violation of his duty refused to make. These allegations are not modified by the reply. They are sufficient, if proved, to entitle the plaintiff to recover any damage he has sustained.
The judgment is reversed and the cause remanded for further proceedings in accordance herewith. | [
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The’opinion of the court was delivered by
Smith, J.:
The appellant, after a preliminary examination, was prosecuted on an information and convicted of the crime of assaulting with a deadly weapon with intent to kill one Ernest Van Sickle. "
The first claim of error is the excluding of the full transcript of the evidence taken at the preliminary hearing. The evidence was not offered as an impeachment of the testimony given by any witness on the trial but, as said in the appellant’s brief, for the purpose of proving a negative; that the testimony of all the witnesses had been “pointed up,” strengthened, and materially added'to between the time of the preliminary examination and the trial. If there is any material alteration or contradiction, in the evidence of a witness as given at the preliminary hearing and his testimony at a subsequent trial, which tends to impeach the witness or in any way to weaken the credibility of the story told in court, the portion of the evidence given at the preliminary hearing, necessary for the jury to make the comparison, should generally be admitted, but we can hardly conceive a case where all the evidence, covering, it is said, fifty typewritten pages at this preliminary hearing, should be admitted. At any rate the transcript fails to show that there was any prejudice to the appellant in its exclusion.
An entertainment was in progress at a country schoolhouse in the county. Four young men, or boys, namely, Ernest Van Sickle, twenty-four years old,'Wilbur Jones, seventeen years old, Leslie Jones, his brother, twenty-one years old, and Floyd Byrt, twenty-three years old, had arrived and had been in the schoolhouse. The appellant, Walter Mounkes, twenty-two years old, and his brother, Arthur Mounkes, aged sixteen, arrived as the four others came out of the schoolhouse at some interruption in the proceedings. As the four passed the Mounkes boys, who stood in the doorway outside, Walter Mounkes said to Wilbur Jones that he understood Leslie Jones wanted to see him. Walter Mounkes and Leslie Jones stepped aside and conversed in a friendly manner for a short time and returned. As they returned, Arthur Mounkes pointed his foot toward Wilbur Jones and applied a vile epithet to him, whereupon Wilbur Jones knocked Arthur Mounkes down, and as soon as he got up Arthur started to run. Wilbur Jones took after him, Leslie and the other boys following. They ran a short distance to a wire fence which compelled Arthur to turn, and he made a circle back to the porch of the schoolhouse. There he was overtaken and thrown down. Before and after being thrown down, he called to the appellant for help.
The appellant testified that his brother Arthur called for help and said, “They are killing me”; that he started to go to Arthur’s aid and took a knife out of his pocket for the purpose of protecting and defending his brother; that he struck Van Sickle because Van Sickle obstructed his passage by picking up a rock and in a threatening attitude exclaimed, “Let’s kill the--” (using, a vile epithet). That to defend himself and to enable him to go to his brother’s assistance, he struck Van Sickle with the knife. It was shown that there was a serious, possibly dangerous, wound made in Van Sickle’s back.
Several- objections are made' to the introduction of testimony, but as the case is to be tried again and the same questions are not likely to arise, we will not consider them in order.
The most serious objection is to the instructions, especially No. 23, which reads:
“Upon these matters the jury is instructed that epithets or vile names applied by one to another, however abusive, will not justify one party in making an assault' upon another; but it is also the law that -one who uses vile names toward another which is calculated to provoke an assault and which does provoke an assault on the part of another can not resort to the use of a deadly weapon on his assailant and escape the consequences under the plea of self-defense. And so in this case, if the jury shall believe from the evidence that .Arthur Mounkes by applying to the Jones boy a vile epithet provoked an assault upon himself by the Jones boy, then in the conflict between said Arthur Mounkes and said Jones boy said Arthur Mounkes would not 'have had the right to use a deadly weapon upon the Jones boy during any of the time of the conflict between them under the evidence in this case, and the right of the defendant to defend his brother Arthur against the assault being made upon him by the Jones boy is measured by the same standard and must be judged by the same rule that applies to Arthur Mounkes, the brother.”
This instruction entirely overlooks the' undisputed testimony that after Arthur Mounkes applied the epithet to Wilbur Jones and Jones had knocked him down, Arthur Mounkes got up and ran. This constituted a withdrawal from the conflict by Arthur Mounkes, and in pursuing him and throwing him down thereafter Wilbur Jones became the aggressor and Arthur Mounkes thereafter had a right to defend himself and to use whatever means actually and reasonably appeared to him necessary to such defense. The instruction is correct as to the first clause of the first sentence thereof (The State v. Buffington, 71 Kan. 804, 810, 81 Pac. 465), but the qualifying clause is misleading.
It is a general principle that one has a right to defend himself against any unlawful assault and to do whatever is necessary to save himself from the apparent danger. There is,' perhaps, one exception to this rule, to wit: where one applies to another abusive language or epithets with the purpose and intent of provoking the. other to make an assault upon him that he may inflict greater injury upon the other and justify under the plea of self-defense. Of course, the blow with his fist by which the Jones boy knocked Arthur Mounkes down was unlawful, but it was no justification for an assault with a deadly weapon, nor is it so contended. The jury should have been instructed that they could take into consideration that act and all that followed, up to the time Walter Mounkes struck the blow with the knife, in determining whether or not Walter Mounkes actually and reasonably believed that his brother was in danger of death or great bodily injury and whether Van Sickle was acting in concert with the other boys in obstructing him from going to the relief of his brother.
Neither are the rights of the appellant to assist his brother to be tested by the actual danger to which Arthur was exposed. It was nighttime, Walter was some distance from his brother, the other boys were between them, and if the appellant had reason to believe and did believe that three of the other boys were, in combination, assaulting his brother, and the fourth was intercepting him from going to his brother’s aid, and that the brother was in danger of being killed or receiving great bodily harm, he had a right to do whatever actually and reasonably appeared to him necessary to enable him to reach and assist his brother; and this even though his brother were not actually in such danger, and his brother did not actually believe that he was in danger of being killed or of receiving great bodily harm. The 26th instruction also ignores the undisputed evidence that Arthur Mounkes fled and withdrew from the conflict after he had applied the epithet to Wilbur Jones, and in this respect is erroneous.
The court in all the instructions in the case assumes that the appellant had the right to use a weapon or to do whatever seemed to him necessary to defend his brother only upon the same condition of facts as they appeared to his brother, but, as before said, the test is that he may act upon the facts as they actually and reasonably appeared to himself.
Under section 9 of the crimes act (Gen. Stat. 1909, § 2497) homicide is justifiable only under specific conditions therein set forth, among which is, “the lawful defense of such person, or of his or her husband or wife, parent, child, master, mistress, apprentice, or servant when there shall be a reasonable cause to apprehend a design to commit a felony, or to do some great personal injury, and there shall be immediate danger of such design being accomplished.” Section 11 -of the act (Gen. Stat. 1909, § 2499) reads:
“Whenever it shall appear to any jury, upon the trial of any person indicted for murder or manslaughter, that the alleged homicide was committed under cir.cumstances or in a case where, by any statute of [or] the common law, such homicide was justifiable or excusable, the jury shall return a general verdict of not guilty.”
The justification of an assault with intent to kill must be determined by the same test as a justification .or excuse for a homicide. The common-law rule of justifiable homicide is stated in 1 Bishop’s New Criminal Law, § 877, where it is said:
“Ordinarily, if not always, one may do in another’s, defense whatever the other might in the circumstances do for himself. . . . The common case is where a father, son, brother, husband, servant or the like protects by the stronger arm the feebler. ... A rule to which, if there are any exceptions, they are-few.”
(See, also, Stanley, &c., v. Commonwealth, 86 Ky. 440, 6 S. W. 155, 9 Am. St. Rep. 305; 25 A. & E. Encycl. of L. 274; 21 Cyc. 826; 1 Wharton’s Criminal Law, 8th ed., § 479.)
Section 11, supra, ingrafts the common-law rule into the statute of this state. (The State v. Murray, 83 Kan. 148, 110 Pac. 103.) Under section 11, therefore, with the common-law rule incorporated, one is excusable, or at least can not be convicted, for a homicide committed in defending his brother under the same conditions that he would be justifiable in defending his wife or other persons named in section 9 of the crimes act.
The judgment is reversed and the case is remanded for a new trial. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued to recover for two horses killed by one of the defendant’s trains. The stock left the land of its owner, went upon the highway and entered upon an adjoining farm over a cattle guard, this farm being fenced according to the finding of the jury. The trial was expressly confined to the allegations of the petition touching the cattle guard, which the testimony showed and the jury found was out of repair. They were instructed that the plaintiff could not recover unless they should find from the evidence that a cattle guard could reasonably be constructed and put into use which would more effectually than the one in question prevent cattle or horses from passing upon the track. The jury returned a verdict in favor of the plaintiff. An objection to testimony under the petition, a demurrer to the evidence, a motion for judgment on special findings and a motion for new trial, were overruled.
The defendant contends that as counsel by clear and express declaration confined the plaintiff’s right of recovery to the cattle-guard statute, the circumstances fail to show any violation of duty respecting the plaintiff. It is argued that the only purpose of the cattle-guard provision was to protect the owner of improved or fenced land through which the railroad runs, and that this protection does not extend to an adjoining landowner. It appears from the record that upon the trial the following occurred:
“Mr. Magaw: We would like to have it definitely settled whether the plaintiff is claiming under what is known as the railroad stock law of 1874, or whether he is relying on what is known as the cattle-guard law at railroad crossings, which is sections 7008 to 7010 inclusive, of the General Statutes of 1909.
“The Court: Are you making any contention, Mr. Hessin, that you are proceeding under any other law than that?
“Mr. Hessin: No, sir; I am not and I have not. I think I made that pretty plain in the opening statement.
“The Court: You are proceeding under the railroad-crossing law—that is, the cattle-guard law?
“Mr. Hessin: Yes, sir.”
Cases are cited to the effect that when railroad companies are required by law to maintain fences and cattle guards they will be liable for injuries to animals entering upon the highway by reason of defective guards or wing fences, but we know of no statute which affirmatively requires railroads in this state to maintain cattle' guards except where they leave or enterfenced or improved land, and while they are liable for injuries to stock where the railroad is not inclosed with a fence they are so liable by virtue of the act of 1874 (Gen. Stat. 1909, §§ 7001-7005), and not by the act of 1869. The first section of the latter act (Gen. Stat. 1909, § 7008), provides that “When any railroad runs through any improved or fenced land, said railroad company shall make proper cattle-guards on such railroad when they enter and when they leave such improved or fenced land.” Section 2 (Gen. Stat. 1909, § 7009) provides that any railroad company failing to comply with this requirement shall be liable for all damages sustained by any one by reason of such neglect and refusal. Under this statute no demand is required and no attorney fee is allowed, and it is manifest that it was not the intention to protect the owners of live stock from damage thereto by the operation of trains, as was the object of the act of 1874. In Mo. Pac. Rly. Co. v. Manson, 31 Kan. 337, 2 Pac. 800, it was held that:
“The intention of the statute . . . is to protect the owners and possessors of improved or fenced land over which a railroad is constructed, against the depredations of domestic animals.” (Syl. ¶ 1.)
In C. K. & W. Rld. Co. v. Hutchinson, 45 Kan. 186, 25 Pac. 576, it was said in the opinion:
“We think that the duty of making proper cattle-guards by a railroad company, when its road enters and when it leaves any improved or fenced land on its right-of-way, is a duty to the land-owner from the railroad company.” (p. 187.)
It has been held that the landowner may recover for his services in driving out and herding the stock. (St. L. & S. F. Rly. Co. v. Sharp, 27 Kan. 134.) A company is bound by the agreement of its roadmaster to erect á cattle guard at a place where the landowner should rebuild his fence. (Mo. Pac. Rly. Co. v. Lynch, 31 Kan. 531, 3 Pac. 372.) A landowner may recover for a crop destroyed and also for time and labor in protecting his property. (St. L. & S. F. Rly. Co., v. Ritz, 33 Kan. 404, 6 Pac. 533.) The duty rests upon the railroad company itself and can not be avoided by the claim that a contractor neglected to put up proper, guards. (C. K. & W. Rld. Co. v. Hutchinson, 45 Kan. 186, 25 Pac. 576.) A landowner may recover for the value of his services and the service of his children in driving out and herding stock to prevent further damages. (Mo. Pac. Rly. Co. v. Ricketts, 45 Kan. 617, 26 Pac. 50.) Also for a cow which strayed away and mired if the neglect to erect cattle guards- was the proximate cause. (C. K. & N. Rly. Co. v. Hotz, 47 Kan. 627, 28 Pac. 695; see, also, C. K. & N. Rly. Co. v. Behney, 48 Kan. 47, 28 Pac. 980.) A railway company may be compelled by mandamus tó construct cattle guards where its road enters or leaves improved or fenced land, in an action by the owner. (Railway Co. v. Billings, 77 Kan. 119, 93 Pac. 590.)
Section 5 of the stock law of 1874 (Gen. Stat. 1909, § 7005) excepts from the operation of that act any railway company whose road is inclosed with a good and lawful fence to prevent animals from being on the road. As it is impracticable if not impossible to fence across the railroad track it has frequently been held that the inclosure of the track is complete when the fences on either side are connected at proper places with wings and cattle guards sufficient to prevent the animals from going upon the track, but in such instances under that statute a cattle guard is deemed a portion of the fence and the failure to provide a sufficient guard is equivalent to the failure to provide a sufficient fence.
In states which require railroad companies to fence their tracks a failure to perform this duty may give a cause of action to others than an adjoining landowner, the duty being one to the public required by the state in the exercise of police power. Thus in A. T. & S. F. R. Co. v. Reesman, 60 Fed. 370, it was held by the court of appeals of the eighth circuit that a brakeman injured by the derailment of a train caused by an animal getting on the track through the failure of the company to erect and maintain a sufficient fence was entitled to recover. Mr. Justice Brewer in the opinion distinguished this from the Berry, Johnson and Peddicord cases hereafter referred to, and held that the statute requiring railroads to be fenced was not only for the protection of contiguous landowners but to protect the traveling public also. In Berry v. St. Louis, Salem & Little Rock R. R. Co., 65 Mo. 172, a statute similar to the act of 1869, but broader, was held to be for the benefit of adjoining proprietors and not for the benefit of strangers. The court, speaking through Henry, J., said:
“The duty of fencing the sides of their roads through enclosed and cultivated fields is imposed upon railroad companies for the benefit of the owner or proprietor of such fields and enclosures.” (p. 175.)
The holding of the court in Brooks v. New York & Erie Railroad Co., (N. Y. Supr. Ct.) 13 Barb. 594, to the effect that “The cattle of a stranger which are on the premises of the adjoining proprietor without right are not within the protection of this clause of the statute,” was quoted (p. 175) with approval, and cases, to the same effect were cited from Vermont, New Hampshire and Massachusetts. In Harrington v. The Chicago, Rock Island & Pacific Railroad Company, 71 Mo. 384, this doctrine was reiterated. In Johnson v. The Missouri Pacific Railway Company, 80 Mo. 620,. it was ruled that before a railroad company would beheld liable for killing the horse of the plaintiff, who was not an adjoining proprietor, and which horse escaped, from a. pasture not coterminous with the right of way and through the enclosed fields of an adjoining proprietor, it must be shown that the horse was in the adjoining proprietor’s field by authority or that such field, was not protected by a lawful fence. Also that the trial, court erred in refusing to instruct that the duty to fence was one which the railroad owed only to adjoining-proprietors. In Peddicord v. The Mo. Pac. Ry. Co., 85 Mo. 160, a similar ruling was made, and the Berry,, Harrington and Johnson cases were referred to and followed.
The very terms of the act of 1869 indicate that this, requirement of a cattle guard where the road enters or leaves inclosed or improved land was to protect the owner of such land, for without such cattle guard the land would no longer be inclosed either actually or theoretically. The stock law of 1874 was enacted for an entirely different purpose, and if we should consider the case as resting solely on the former statute, it. would be impossible to hold that the defendant ow;ed any duty to the plaintiff under the facts shown.
There is another matter, however, requiring that the judgment be reversed. The jury found, among other things, that the cattle guard was of the same type of' construction of those in general use on the defendant’s road and on the roads of two other companies. Also, that. the evidence did not show that there was any other type of cattle guard in general use by railroad companies which would more effectually prevent stock from passing upon the right of way. Following this was a finding that the evidence did not show that a cattle guard can be constructed which would more effectually turn stock than the one over which the plaintiff’s horses passed and which would not increase danger in.the •operation of the trains. They also found that the guard in question was not a proper one, that it was worn, rotten and not properly spiked, and that is was defective at the time. Also, that there was no evidence that the horses -were breachy, and that no cattle guard shown by the evidence would have prevented them from going upon the right of way. It can be easily deduced from these various findings that the cattle guard in question was defective, worn, rotten and not properly spiked and that the horses were not breachy, and yet that no other cattle guard and no other type thereof would effectually turn stock or prevent these horses from going on the right of way, although it was expressly found that a reasonably good fence would re-' strain them. Certain of the findings taken by themselves would warrant a verdict for the plaintiff, while others taken alone would clearly warrant one for the defendant. They are so conflicting that harmonizing them is practically out of the question, and some of them are clearly inconsistent with the general verdict, which under such circumstances can not stand. (Harvester Works Co. v. Cummings, 26 Kan. 367; Shoemaker v. St. L. & S. F. Rly. Co., 30 Kan. 359, 2 Pac. 517; Mo. Pac. Rly. Co. v. Holley, 30 Kan. 465, 1 Pac. 130; Insurance Co. v. Smelker, 38 Kan. 285, 16 Pac. 735; Aultman v. Mickey, 41 Kan. 348, 21 Pac. 254; Kansas City v. Brady, 53 Kan. 312, 36 Pac. 726; Bank v. Miller, 59 Kan. 743, 54 Pac. 1070; Francis v. Brock, 80 Kan. 100, 102 Pac. 472.)
The petition appears to have been drawn with reference to the stock law only—there being no allegation that the land where the injury occurred was either improved or fenced. Notwithstanding counsel’s expressed reliance upon the cattle-guard act alone, the testimony, the instructions, the findings and the verdict seem to have been given and reached upon the theory that the defendant owed some duty to the plaintiff respecting the cattle guard, which duty, if any, we now see must have arisen under the later and not under the earlier statute. This theory, while within the allegation of the petition, can not be allowed to form the basis of the judgment, on account of the inconsistency of the findings.
The judgment is therefore reversed and the cause remanded with directions to grant a new trial upon the allegations of the petition. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The ownership of a block of ground which has béen used as a park for many years is involved in this action. In 1872 C. C. Hutchinson laid out the city of Hutchinson, and the block of ground in controversy was then dedicated as a public park and has since been known as Base'Ball Park. In 1877 a creek which ran through the park was straightened by the city. In it was a swimming pool and fishing place, to which the public has resorted ever since the plat was filed. The block has been used as a common and as a playground for children. In 1888, on the application of Hutchinson, the board of county commissioners made an order by which they undertook to vacate the park. The ground stated in the application, which was signed alone by Hutchinson, was that the city had not planted trees and beautified and adorned the park as he intended and supposed that the city would do when the dedication was made. This proceeding to quiet title was brought about twenty-one years ago. A petition and bond for removal to the federal court was at once filed by Hutchinson, but in 1895 the case was remanded back to the state court. No one appears to have recognized the existence or pendency of the action from that time until 1907, and then it was found that all of the original files of the case had been lost. In 1910 John T. Danley came into the case, alleging that he had acquired the interest of Hutchinson, .and in his cross-petition alleged that the park had. been vacated and that by virtue of the conveyance from Hutchinson he was the absolute owner of the block and he therefore asked to have the title quieted in him. The park, it appears, was never as sessed for taxation nor placed on the tax roll until 1908 when some one caused it to be entered on the tax roll, but no taxes were ever paid upon the tract. In 1902 an organization of women who lived in the vicinity formed a park association and with the consent of the city authorities made permanent improvements on the park. Entertainments were held there by the women, and with the money derived from this source as well as some which was donated the park has been beautified and improved. The trial court held against the claims of Danley, the cross-petitioner, and he appeals from the judgment.
Much argument has been made in regard to the claimed abandonment of the action, the bar of the statute of’ limitations and the invalidity of the order of vacation on the ground that the petition was not signed by the owners of the abutting or adjacent land or those who had a right to petition for vacation, and also because the grounds upon which vacation was asked are insufficient to give the board authority to make a vacation, but it will be unnecessary to consider these questions. The judgment of affirmance will be placed on the ground that under the- conceded facts, and granting there was a valid vacation, the property did not revert to the original dedicator or his grantee, and therefore the appellant had no interest in or title to the block.
The execution and recording of the plat by C. C. Hutchinson in which the block in question was reserved for a park operated as a conveyance and vested the fee of the block in the county in trust and for use by the public as a park. (Gen. Stat. 1909, § 5523.) It has been said that under such a dedication “The fee passes from the owner beyond power of resumption and vests absolutely in the county, forever, in trust for public use.” (Gadarl v. City of Humboldt, 87 Kan. 41, 42, 123 Pac. 764.) There was a statutory dedication of the block and there was a statute governing the vacation of improved town sites and portions thereof and the reversion of the same when the vacation proceedings relied on by appellant were had. It was there provided that:
“The alleys, streets or other public reservations so vacated shall revert to the owner ór owners of lots adjacent or abutting thereto, according to the frontage of said lots or land.” (Laws 1877, ch. 190, § 5.)
It is not denied that the legislature had the power to provide for the reversion of a public reservation in case of a vacation, but it is contended that when the vacation proceedings occurred in this instance there were no lots abutting on or adjacent to the park whose owners could claim title by reversion. The park was, as we have seen, surrounded by streets which are still devoted to the use of the public, and the contention is that as no lots touch the park on either the ends or sides thereof none was adjacent to or abutted thereon, and hence there was no one to whom the title of the park might revert by statute. For that reason it is insisted that the common-law rule of reversion must govern. There would be much stronger reasons for this view if the term “adjacent” had not been used by the legislature. Although that term is sometimes employed in the sense of adjoining or abutting, its ordinary-meaning, as defined by lexicographers, is close, in the neighborhood of, lying near to but not necessarily touching. That was the meaning given to the word as employed in a statute authorizing the consolidation of cities adjacent to each other. (The State, ex rel., v. Kansas City, 50 Kan. 508, 81 Pac. 1100.) A like meaning was attributed to the term in an act authorizing boards of education to annex adjacent territory to the city for school purposes. (Board of Education v. Jacobus, 83 Kan. 778, 112 Pac. 612.) In its primary meaning “abutting” implies a closer proximity than does the term “adjacent,” and whether the latter is to be interpreted as lying near to or actually adjoining depends largely on the context in which it is used and the purpose which the legislature was seeking to effect. As the legislature employed both terms effect is to be given to each according to its ordinary meaning, if there is room for the application of such meanings. (1 Words and Phrases, p. 184; 1 Cyc. 764; 1 A. & E. Encycl. of L. 633.)
“Abutting” is an apt term to use as applied to a reversion where there is a vacation of a street or alley, for in such a case lots touch or adjoin them, but it is not appropriate to express the idea that lots are lying near to but do not actually adjoin the vacated reservation. “Adjacent” is a suitable term to use when lots face upon a park or public square and there is a street intervening between them. Recognizing that there were degrées of proximity of the vacated portion to the surrounding lots and that as lots would adjoin a vacated street or alley the word “abutting” was used, and as the lots fronting on a vacated reservation or park would not.be in actual contact with it the legislature chose to use the term “adjacent” and thereby provided for reversion of the park to the owners of lots which faced upon but did not touch the park. That the owners of lots facing upon public reservations have a peculiar interest, in such reservations, one of which they can not be deprived either by the dedicator or by the legislature, was determined in Comm’rs of Franklin Co. v. Lathrop, 9 Kan. 453. There the owners of a town site dedicated a part of it as a court-house square and it was accepted and used for county purposes. Lots facing upon the square were sold by the owners of the town site to others who made valuable and lasting improvements thereon, and the lots were greatly enhanced in value by reas<m of their fronting on the public square. The commissioners of the county obtained the passage of an act authorizing the sale of this block in order that the proceeds of it might be used for the construction of a court house, and the board was proceeding to dispose of the property when the adjacent lot owners obtained an injuction against the sale. It was decided and stated in one paragraph of the syllabus that:
“Individuals purchasing from the town proprietors, lots facing on such public grounds,, subsequent to their dedication, and making lasting and valuable improvements thereon, when lots are enhanced in value by their position, and would be made of less value by a change of such grounds from public to private use, have a vested interest in the trust which no legislature can abridge or destroy. And the repeal of a statute under which a right has vested, does not divest or destroy that right.” (Syl. ¶ 6.)
The court did not interpret the section of the statute relating to reversion but it did point out that the owners of lots facing on a park or other public grounds can acquire an interest in the trust arising from the dedication, and it is a fair inference that the protection of this interest induced the enactment of a provision that upon a vacation of such reservations they shall revert to the owners of the adjacent lots or lands.
The park, therefore,, did not revert to the original dedicator, Hutchinson, nor to his grantee, the appellant, and assuming that there has been a valid vacation of the park the appellant has no interest in it nor any right to complain of the decision against him. The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
This is an action to recover a reward offered for the arrest and conviction of a criminal. The appeal is from a judgment for the plaintiff on a demurrer to evidence.
On or about March 29, 1908, an express messenger on a westbound train on the Atchison, Topeka & Santa Fe railway, in Marion county, was killed. The defendant offered $1000 reward for the arrest and conviction of the party who killed the messenger. The plaintiff learned of this offer early on March 29, from the agent at Peabody who called him in and showed him a telegram containing it. He immediately went to work on the case and called up Newton, giving notice of two men he suspected, but they were not implicated in the crime. Two special agents of the defendant came to Peabody, where the plaintiff lived, and conferred with him about the case. He suggested that an alarm be turned in to notify the members of the anti-horse thief association, which was done. A report came in of a suspicious character out in the country, and the plaintiff went out and investigated, and found the suspected man to be innocent. In the afternoon a telephone call from Wagner, a near-by station, informed the plaintiff that a bloody hatchet had been found near the railroad. The plaintiff went out and took possession of the hatchet. The special agents then requested the plaintiff to watch that end of the line and report if anything was found. The plaintiff suggested that it was foolish to be looking for a hobo, that in his opinion the crime was committed by some express messenger who had been discharged, or some one who knew as much about the business as the murdered man. On Tuesday morning, March 31, the plaintiff went to Newton on a message from one of the two special agents, or from Mr. Germain, a secret service officer of the railway company who was acting with them in the matter. He Rad worked with these special agents before and supposed that he was wanted in connection with the case. He was a deputy sheriff of Marion county and city marshal of Peabody. On reaching Newton the plaintiff arrested Carr, the suspected murderer, in a billiard hall there. He described the arrest in his testimony:
“I had no warrant. That was in Harvey county. I took him into custody as the offender in the matter wherein it was alleged that somebody had murdered Oscar Allen Bailey. I alone took Carr into my charge. I went into the building and fetched him out alone. There was a crowd around there, a big crowd both in the back of the hall and in front of it, at least in front of it. At that time it was not known where Mr. Oscar Allen Bailey was killed. I brought him from there (Newton) to Marion county and put him in jail. . . .
“I did n’t know Carr up to the time I arrested him. Cummings, of Newton, I think, pointed him out to me. Mr. Long went as far as the stairway. I did not suggest to these people that Carr was the man to be arrested. I could not say who suggested^ the propriety of arresting Carr for this murder. I had all my talk with Mr. Germain, Chief Special Agent of the Santa Fe road, who was working on the case.
“Q. Up to the time you arrested Mr. Carr, which you say was Tuesday in the afternoon, what evidence had you personally gathered up against him ? A. As much as the rest of them.
“Q. What evidence had you gathered against him? A. All that any of them knew, that he was in Kansas City and came back that night to Newton.
“Q. Did you furnish that information to them? A. That was the talk.
“All the talk I had with anybody at Newton up to the time the arrest was made was with Germain. I had never seen Carr before that. Somebody pointed him out and I arrested him.”
The plaintiff had no warrant but took Carr into custody, told him he was charged with murder, and took him at once to Marion county and-placed him in jail. Afterwards a complaint was made and a preliminary examination was held. Carr was tried twice in the district court, and at the last trial was convicted of the murder of the express messenger. The plaintiff was a witness for the state at the preliminary examination and upon each trial, consulted with Mr. Germain and the public prosecutors about the conduct of the case, and was active in procuring evidence for which he received no compensation. He produced the hatchet at these trials and it was put in evidence. At the last trial he procured two boys to go to Kansas City and ride to Florence, one on the rods and the other on the blind baggage, and produced them in court as witnesses to show their dirty and grimy condition. This was done at the instance of the defendant’s representatives upon consultation with one of the prosecuting attorneys to rebut the claim of Carr that he had journeyed from Kansas City on the outside of the car, it being further shown that he was neat and clean when he alighted from the car. The plaintiff procured clothes for the boys, accompanied them to and from Kansas City, looked out for them at each stop, and took them in a carriage from Florence to the court room. His expenses were paid by the prosecuting attorney, presumably for the defendant. During the trials, and in the interval between them, the plaintiff was looking out for evidence and held several consultations with the prosecuting attorney.
As deputy sheriff he had an arrangement whereby he was to receive one-half the fees upon papers sent to him for service." He has received nothing in the Carr case. He testified that his one-half for the arrest of Carr was coming to him.
The defendant offered on the cross-examination of the plaintiff to prove by him that the express company brought in witnesses from other states who testified. The court excluded the offer on the ground that it was not proper on cross-examination.
The defense is based (a) upon the proposition that it is against public policy to permit a deputy sheriff to recover a reward in such case, and (b) that the plaintiff did nothing to entitle him to receive it.
It is contrary to public policy to allow an officer to recover a reward for the performance of an official duty. (Matter of Russell’s Application, 51 Conn. 577; Bank v. Edmund, 76 Ohio St. 396, 81 N. E. 641, 11 L. R. A., n. s., 1170, 10 A. & E. Ann. Cas. 726; United States v. Matthews, 173 U. S. 381; 34 Cyc. 1753.)
On the other hand, no rule of public policy forbids such recovery where the officer is under no obligation arising from his official character to perform the service. (Smith v. Vernon County, 188 Mo. 501, 87 S. W. 949, 107 Am. St. Rep. 324, 70 L. R. A. 59; Russell et als. v. Stewart et al., 44 Vt. 170; 34 Cyc. 1755; 24 A. & E. Encycl. of L. 953.)
The general duties of a sheriff are stated in the following statute:
“It shall be the duty of the sheriff and under-sheriffs and deputies to keep and preserve the peace in their respective counties, and to quiet and suppress all affrays, riots and unlawful assemblies and insurrections, for which purpose, and for the service of process in civil or criminal cases, and in apprehending or securing any person for felony or breach of the peace, they, and every coroner and constable, may call to their aid such person or persons of their county as they may deem necessary.” (Gen. Stat. 1909, § 2197.)
Another statute provides that:
“If any person against whom a warrant may be issued for an alleged offense committed in any county shall, before or after the issuing of such warrant, escape from or be out of the county, the sheriff or other officer to whom such warrant may be directed may pursue and apprehend the party charged in any county in this state, and for that purpose may command aid and exercise the same authority as in his own county.” (Crim. Code, § 39.)
The right and duty of sheriffs to make arrests without warrant for crimes committed in their presence, and for past felonies in certain circumstances which need not now be defined, may be conceded. (1 Bishop on Criminal Procedure, § 183; Bank v. Edmund, supra.)
But we know of no rule of law which makes it the official duty of a deputy sheriff of a particular county to arrest a supposed felon in another county without a warrant in the circumstances here shown. In the Edmund case, cited above, a constable who had made such an arrest was denied the right to recover a reward, but he was acting within the limits of his territorial jurisdiction. The court said:
“A constable, in this state, is, by virtue of his office, a conservator of the peace, and whenever he has knowledge or specific information that a felony has been committed at a particular locality within his ju risdiction, it is clearly his duty to take diligent and prompt measures for the arrest and apprehension of the perpetrators of said crime, and where he does this, and secures their arrest, the law will not hear him say or permit him to claim that an arrest thus effected, pursuant to official duty, was made by him in his individual capacity as a private citizen.” (Bank v. Edmund, 76 Ohio St. 396, 404, 81 N. E. 641.)
In Harris v. More, 70 Cal. 502, 11 Pac. 780, a recovery of a reward by a deputy sheriff was affirmed in a case quite similar to this. The court said:
“As the plaintiff had no legal duty to perform, by virtue of his office of deputy sheriff, in regard to discovering the evidence and causing it to be produced, having no writ to execute, and the offense having been committed and the trial had out of his county, we do not think the policy of the law forbade his receiving the compensation.” (p. 503.)
In Kinn v. First Nat. Bank, 118 Wis. 537, 95 N. W. 969, 99 Am. St. Rep. 1012, it appeared that an arrest of a bank robber had been made by a city marshal within the city limits. A statute made it the marshal’s duty to arrest without process any person found violating any law of the state. It was held that the marshal was not debarred because of any official duty resting upon him from recovering a reward offered for the arrest of the robber.
A similar decision was made in Indiana, in Bronnenberg v. Coburn, 110 Ind. 169, 11 N. E. 29.
It was held in Davis v. Munson, 43 Vt. 676, that a deputy sheriff who had in his own county arrested a person who had broken jail in another county was entitled to a reward offered for the capture of the prisoner. That case was cited and followed in Russell et al. v. Stewart et al., 44 Vt. 170, where it appeared that an arrest was made without warrant by a deputy sheriff. The report does not state whether- the deputy made the arrest in his own county or in another.
(See, also, Kasling v. Morris, 71 Tex. 584, 9 S. W. 739, 10 Am. St. Rep. 797; Note, 11 L. R. A., n. s., 1170; Note, 10 A. & E. Ann. Cas. 729.)
It is concluded that the fact that the plaintiff was a deputy sheriff of Marion county when he arrested Carr —the arrest having been made in Harvey county— does not preclude him from recovering the reward.
Concerning the claim that the plaintiff did nothing which would entitle him to the reward, it should be observed that upon the demurrer to the evidence the question was whether the evidence tended to prove a performance of the services stipulated for in the offer; that is, an arrest and conviction. The arrest was made by the plaintiff alone and is undisputed, and the conviction followed. It can not be said that in a strict literal sense any particular person or persons convicted Carr. That was accomplished through the cooperation of the plaintiff, the special agents of the company, and the prosecuting officers; the court, jury and witnesses also performed appropriate functions in bringing about the result. It was said in Elkins v. Wyandotte County, 86 Kan. 305, 120 Pac. 542, of an arrest as a condition of recovery of a reward:
“Since it is not within the power of any citizen, literally, to do, by himself or his agents, the things specified in the statute and in the published offer, it is held that if he substantially accomplishes the full objects of the offer, aided by the officers of the law in the orderly performance of their official duties, he has met the conditions of the contract and earned the reward.” (Syl. ¶ 2.)
This language is quite as applicable to a conviction as to an arrest. Offers must in such cases be liberally construed in the sense in which they are ordinarily understood and acted upon and the purposes for which they are intended. A substantial compliance is sufficient. (Crawshaw v. City of Roxbury, 73 Mass. 374; Haskell v. Davidson, 91 Maine, 488, 40 Atl. 330, 42 L. R. A. 155, 64 Am. St. Rep. 254.)
It is held that the evidence tended to prove the plaintiff’s cause of action and that there was no error in overruling the demurrer thereto. If it should be conceded that the district court ought to have received the evidence offered upon the cross-examination of the plaintiff, which was excluded, the result would not be changed, for, considering the part rejected as though received, the evidence would still tend to prove a cause of action.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
On October 1, 1903, Sarah E. Potts, while seriously ill, delivered to Amanda R. Clifton a sum of money. On December 7, 1903, she began an action for its recovery, on the ground that it had been delivered merely for the purpose of having it deposited in a bank to her credit, and that Mrs. Clifton had converted it to her own use. Mrs. Potts died on December 16, 1903, and the action was revived in the name of her executor. Mrs. Clifton answered alleging in substance that the money had been given, her in consideration of an express contract that she was to nurse and care for Mrs. Potts during her lifetime and to pay the expenses incident to her sickness and funeral, and that she had performed her part of the agreement so far as she had been permitted to do so. A trial was had upon the issue so presented. The court instructed the jury in substance that unless they found both that such agreement had been entered into, and that Mrs. Clifton had performed her part of it, they must find against her. A general verdict was returned in favor of the executor, no special findings being made, and a judgment was rendered upon it.
Later Mrs. Clifton filed a claim against the estate for the reasonable value of her services in nursing and caring for Mrs. Potts, which was allowed by the probate court. The executor appealed, and upon trial the district court directed a verdict in his favor upon the ground that the matters sought to be litigated had been adjudicated in the former action. The plaintiff appeals.
The right of Mrs. Clifton to recover from the estate the reasonable value of her services to Mrs. Potts can not be regarded as having been adjudicated in the first action. The verdict in that case may possibly have been against her because the jury believed she had performed no services, but the record does not affirmatively show that to have been the ground. The hy pothesis is equally tenable that the jury were of the opinion that no agreement had been made by which she was to become the owner of the money delivered to her.
“A judgment which may have resulted from a determination of either one of two or more separate issues does not constitute an adjudication as to either, where it is not shown upon which it was in fact based.” (Routh v. Finney County, 84 Kan. 25, syl. ¶ 2, 113 Pac. 397.)
The issues in the two actions were not identical. In the first the question was whether an express agreement for the passing of the title to the money had been made and performed. In the second the question was whether services had been rendered under such circumstances that the law implied a contract to pay their reasonable value. It is suggested that the present controversy should be regarded as concluded by the result of the prior action because it might have been there litigated. That principle applies only where the cause of action is the same in the two proceedings. (Stroup v. Pepper, 69 Kan. 241, 76 Pac. 825.) In the action brought against her Mrs. Clifton might perhaps have pleaded an implied contract to pay the reasonable value of her services as a defense or partial defense, or as a counterclaim or set-off, but she was not obliged to do so. Formerly a failure to use as a counterclaim or set-off a claim available as such deprived a party of the right to recover costs in a subsequent action upon it (Gen. Stat. 1901, § 4530, former Civ. Code, § 96), but even that provision is omitted from the present code. The same petition may include in separate counts a claim based upon an express contract to pay an agreed sum for services and one based upon an implied contract to pay their reasonable value. (Berry v. Craig, 76 Kan. 345, 91 Pac. 913.) Each count states a complete cause of action. Proof in support of one is not admissible under the allegations of the other. (9 Cyc. 749.) The causes of action are not the same. They are distinct and different, although not wholly independent, being connected by this tie—there may not be a separate recovery upon each. It follows that a plaintiff who sues upon an express contract without adding a count upon a quantum meruit waives nothing, and if defeated is not thereby barred from maintaining a subsequent action upon an agreement arising by implication of law. This is the effect of the decisions, as shown by the following excerpts:
“It is a familiar practice where A, under special contract, has done work for B, . . . being apprehensive that he may not have come up to the full measure of the requirements of the contract, he may in a suit for the enforcement of the contract add a second count in quantum meruit. There is under the Code practice, extant in the state of Kansas, no legal incompatibility in counting separately on the two causes of action. ... It would be an abuse of discretion on the part of the court to deny the plaintiff the right to take the opinion of the jury on both issues, under proper direction that the plaintiff is not entitled to recover on both counts. ... As each count would constitute a separate cause of action, we know of no established rule of procedure that would compel the plaintiff to embrace them in one action. . . . The authorities abundantly support the proposition that, when judgment goes for the defendant in an action on express contract on the ground that the contract had not been completed by the plaintiff, ‘such judgment is not a bar to a second action to recover the reasonable value of the same services.’ ” (Water, Light & Gas Co. v. City of Hutchinson, 160 Fed. 41, 44, 45, 90 C. C. A. 547, 19 L. R. A., n. s., 219.)
“If, in an action to recover the contract price of services rendered, defendant recovers judgment on the ground that the contract has not been completed, such judgment is not a bar' to a second action to recover the reasonable value of the same services. To constitute res judicata, the former suit must be founded on the same cause of action as the latter.” (Rossman v. Tilleny, 80 Minn. 160, 83 N. W. 42, 81 Am. St. Rep. 247, headnote of editor, Am. St. Rep.)
“A judgment in a former suit on an express contract is not a bar to a second suit on a quantum meruit for the same services, when it takes different evidence to establish the two causes of action.” (Buddress v. Schafer, 12 Wash. 310, syl. ¶ 2, 41 Pac. 43.)
. “The fact that recovery in an action against a bank on a contract for services was denied because of the want of authority in the receiver of the bank, who executed it, to agree to pay a fixed amount, is not conclusive of the right to sue on a quantum meruit.” (Henrietta Nat. Bank v. Barrett, [Tex. Civ. App. 1894] 25 S. W. 456, syl. ¶ 2.)
“An adverse decree in a suit for a share of the profits of partnership business, as compensation for services rendered to a firm, is not a bar to an action upon a quantum meruit for the value' of súch services.” (Kirkpatrick v. McElroy, 41 N. J. Eq. 539, syl. ¶ 1, 7 Atl. 647.)
“A judgment for defendant in an action on a special contract for machinery built for defendant, the petition in. which (answer being but a general denial) set out the contract, performance by plaintiff, and non-payment by defendant, will not preclude the plaintiff from instituting a subsequent suit on the implied contract of defendant to compel him to pay the reasonable value of such machinery, the same having been retained by him.” (Fritsch Foundry & Machine Co. v. Goodwin Mfg. Co., 100 Mo. App. 414, syl. ¶ 2, 74 S. W. 136.)
Borin v. Johnson, 4 Kan. App. 211, 45 Pac. 968, is cited as having a contrary tendency. There the question was one of pleading, an answer being held sufficient which alleged in set terms that the particular matter sued upon had been adjudicated in a former action. It appeared that a claim for the services for which payment was asked had been previously sued upon, allowed, placed in judgment, and paid. Of course there may not be two recoveries for the same services, one upon an express and the other upon an implied contract.
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The opinion of the court was delivered by
Mason, J.:
Arthur Capper, the candidate for governor upon the republican ticket at the election held November 5, 1912, brings mandamus in this court for the purpose of causing to be counted and canvassed certain ballots cast for that office, which were in fact valid, but which the election board failed to count and returned as void. The ballots referred to are those upon which the voter indicated his preference by placing a cross in the circle at the head of a party ticket, and also by placing crosses in the squares opposite the names of other candidates on the same ticket for whom he desired to vote. This is a manner of marking the ballot which under a former wording of the statute required its rejection. (Ogg v. Glover, 72 Kan. 247, 261, 83 Pac. 1039.) In 1905 the law was so amended as specifically to require the counting of ballots marked in that manner, the provisions on the subject reading:
. “If the voter perfers not to vote a straight party ticket, he may make a cross-mark in the circle and then make a cross-mark in the square to the right of the names of such other candidates as he may wish to vote for, found under the same or any other party name or independent nomination.” (Gen. Stat. 1909, § 3270.-)
“When a voter has properly marked his ballot in the circle at the head of the ticket, the marking of the names by a proper cross-mark in all or a part of the squares to the right of the names on the same party ticket shall not prevent the counting of such ballot.” (Gen. Stat. 1909, § 3273.).
An alternative writ of mandamus has been issued reciting that ten or more ballots of the character indicated were cast in Rock Creek precinct of Wabaunsee county; that the election board failed to count them, but returned them with other rejected ballots in a sealed envelope endorsed as containing void ballots; that the county board canvassed the returns without said ten or more ballots having been counted; and that an abstract of the returns for that county was forwarded to the secretary of state, in which no account was taken of such ballots. The relief sought is that the returns of the election be restored to the election board; that that board be required to count the ballots referred to and amend their returns accordingly; that the amended returns be canvassed by the county board; and that the result be shown in a corrected abstract to be sent to the secretary of state. That such orders might be made effective the township trustee, the county commissioners, and the county clerk, as well as the members of the election board, have been made defendants. The members of the state board of canvassers have also been made parties, in order that their canvass might not be completed before the determination of the questions here invoked, a restraining order having been issued to prevent that result-A motion to quash the alternative writ has been filed in the name of the defendants by attorneys representing the opposing candidate for governor, George II-Hodges. A number of applications of a similar nature, arising in like circumstances in other precincts and counties, have been presented, action upon which has been deferred pending the decision of the motion to quash. They involve approximately 124 ballots, and the preparation of papers in other cases has been suspended to await the action of the court in this. It is stated that the total number of such ballots rejected in various parts of the state is from two to three thousand.
An objection is made to the issuance of a peremptory writ ordering the counting of these ballots upon the ground, that the duty of the election officers in respect thereto is quasi-judicial in its nature and can not be controlled by mandamus. Upon this question there is a conflict in the decisions. It can not be said with accuracy that the judges of election have any discretion to count or to reject any particular ballot. It is their absolute duty to count the legal ballots and to reject the illegal. It is true, however, that the statute entrusts to them the function of deciding in the first instance whether a ballot is legal or illegal. The law says that the marking of a ballot in the circle at the head of a party ticket, and also in some of the squares opposite the names of individual candidates on the same ticket shall not prevent its being counted. This, however, is but one of a number of rules for determining what ballots shall be counted and what rejected. A ballot marked in a particular way is neces sarily either void or valid, and should be counted or rejected according to the statutory rules. But the interpretation and application of these rules calls for the exercise of judgment, and may give rise to a difference of opinion even among those highly trained in the solution of such problems, as' is illustrated in Parker v. Hughes, 64 Kan. 216, 67 Pac. 637, 56 L. R. A. 275, 91 Am. St. Rep. 216. Experience has shown that in every election and in almost every precinct ballots will be so marked as to raise serious question as to their validity. In a contest over the election of a mayor of Olathe, in addition to objections made to certain classes of ballots, over two hundred ballots were challenged for various special reasons, and in passing upon their validity this court announced fourteen separate rules, (Ogg v. Glover, 72 Kan. 247, 260, 261, 83 Pac. 1039.) The election judges are required to examine and consider every ballot cast;, to ascertain whether it is entitled to be counted; if it is found to be valid, to enter it in favor of the candidates for whom it is cast, and if it proves to be void or blank to count it as void or blank and return it in a separate sealed pouch with others of like character. There is a reasonable ground for the contention that the laws of this state contemplate that the result of an election shall be determined and declared in the first instance upon the face of the returns of the election boards, made upon their judgment of the validity of the ballots, whether right or wrong, leaving their errors in that respect, if any, to be corrected by proceedings subsequently brought. This view would not necessarily prevent the control of the action of the election board by mandamus with respect to purely clerical matters, such as a mistake in addition; or whether they had acted in bad faith; or had assumed to reject votes for a certain candidate because they regarded him as ineligible; or where they refused to accept the votes of a class of electors upon a mistaken view that they were not entitled to vote upon the particular question involved; or where they declined to retíeive, file and return a ballot which, whether counted or not, should be made a part of the record so as to preserve for review the question of its validity. This theory of the matter is thus expressed in People v. Hanes, 44 Misc. Rep. 475, 90 N. Y. Supp. 61:
“Inspectors of election have both judicial and ministerial duties to perform. In determining what ballots shall be counted for or against any candidate, or. any question voted on, or what ballots shall be rejected, they act judicially. They may, perhaps, be required by mandamus to perform merely ministerial acts in a particular way, and they may also be required to exercise their judicial functions; but they can not be required by a common-law mandamus to decide in a particular manner. . . . It is the performance of a judicial act on the part of the inspectors which is complained of in' this case; not the failure on their part to act judicially, but the judicial conclusion reached, by them; and it is this judicial conclusion which it is sought- to have changed. The inspectors have performed the judicial act complained of. They may not have reached a correct conclusion, but they have acted and exercised their judgment, and the conclusion reached by them can not be reviewed herein.” (pp. 62, 63.)
While this expression is not that of the New York court of last' resort, it seems to be supported by various decisions of that tribunal. . (People ex rel. Brink v. Way, 179 N. Y. 174, 71 N. E. 756; Matter of Hearst v. Woelper, 183 N. Y. 274, 76 N. E. 28.) There is some apparent conflict in the decisions of that state, which may in part be accounted for by the fact that the statute provides for a judicial review of the action of the election officers in certain circumstances. The latest case on the subject seems to qualify if it does not in effect overrule the statements quoted. It turns to some extent, however, upon special features of the statute. The New York law does not entrust to the election board the duty of determining whether or not ballots “protested as marked for identification” shall be counted. The board is required to count all such ballots, but to return them in a separate envelope. (2 Consol. Laws of New York, 1909, ch. 17, art. 14, § 370.) A candidate may have a writ of mandamus to the board of canvassers (if any, otherwise to the election board itself) to compel the rejection of such of these ballots as the court determines to have been marked for the purposes of identification. (2 Consol. Laws of New York, 1909, ch. 17, art. 14, § 381.) Under that system it was held that where the election board failed to count the challenged ballots they could be compelled to do so by an ordinary action of mandamus, leaving the question whether any of them should be rejected to be determined in the manner described. (People ex rel. McLaughlin v. Ammenwerth, 197 N. Y. 340, 90 N. E. 973.)
In several states statutes have been enacted expressly permitting a judicial or other review of the action of election officers prior to the completing of the canvass. (10 A. & E. Encycl. of L. 751; Note, 98 Am. St. Rep. 863, 888.) The case of Territory ex rel. v. Suddith et al., 15 N. Mex. 728, 110 Pac. 1038, supports the right to control by mandamus the action of the election board in rejecting or counting ballots, in the absence of a special statute. The following cases are thought to have some tendency in the same direction: Flanders v. Roberts, 182 Mass. 524, 65 N. E. 902; Brewster v. Sherman, 195 Mass. 222, 80 N. E. 821; Bennett v. Richards, (Ky.) 83 S. W. 154. These cases are regarded as having a tendency to the contrary: State ex rel. Lilienthal v. W. T. Deane et al., 23 Fla. 121, 1 South. 698, 11 Am. St. Rep. 342; State, ex rel. Waggoner, v. Russell, 34 Neb. 116, 51 N. W. 465, 33 Am. St. Rep. 625, 15 L. R. A. 740.
There is more or less difference in the statutes under which these cases have been decided, so that a fuller discussion of them would not aid greatly in interpreting our own statute. Moreover, it is not necessary at this time 'to decide the broad question which has so far been considered, for the reason that a special aspect of it is here presented. Whether or not mandamus will lie to require an election board to reconvene for the purpose of changing its rulings upon the counting or rejection of ballots, such action can not be brought after the county board of canvassers has in good faith completed a correct canvass of the returns as made, and adjourned sine die. In the opinion of the court this conclusion necessarily results from the doctrine announced in Rosenthal v. State Board of Canvassers, 50 Kan. 129, 32 Pac. 129, 19 L. R. A. 157. In 1892 Joseph Rosenthal was the democratic candidate for member of the state house of representatives for the district composed of Haskell county. He received a majority of the votes cast and the county board of canvassers declared the result accordingly. There was no controversy over the fact, but the county clerk, in certifying to the state board of canvassers, “by accident or design, probably by gross negligence” (p. 131), transposed the figures, giving Rosenthal credit for the vote cast for his opponent and vice versa. The state board, having before them this official certificate, which was apparently regular in all respects, declared the result in accordance therewith, and on December 1, 1892, adjourned sine die. In consequence a certificate of election was issued to the defeated republican candidate. On December 19 a new certificate from the county clerk, showing the vote as it actually stood, was furnished to the secretary, of state. On December 23 Rosenthal began mandamus proceedings in this court against the members of the state board of canvassers, seeking to compel them to reconvene and declare him elected. On the same day an alternative writ was issued, returnable January 3, 1893. An answer was filed setting out substantially the facts stated.
It would be difficult to imagine a controversy growing out of an election where the substantial rights of the parties were clearer, or where it was more manifest that the practical effect of intervention by the court would be to do justice and prevent the infliction of a gross wrong under the forms of law. The right to a clear title upon the face of the returns, as distinguished from the right to gain possession of the office by a contest, was a material one, and was of especial importance because it was known that the newly elected house of representatives was divided so evenly upon political lines that the change of a -single vote might be sufficient to shift its control from one party to another. And in fact at the ensuing session, beginning January 10, 1893, two separate bodies were organized, each claiming to be the legal house of representatives, both of which transacted business as such until the decision of this court that those who had been officially declared elected to membership in the house, and no others, were entitled to participate, in its organization. (In re Gunn, Petitioner, 50 Kan. 155, 32 Pac. 470, 948, 19 L. R. A. 519.) The state canvassing board, misled by the untrue certificate of the county clerk, had innocently conferred upon a person having not even a pretense of right thereto the power to take part in the organization of the legislature, and thereby possibly change its political complexion -and profoundly affect the results of the session. In that situation the court was appealed to to right the unquestioned wrong that had been done. No case could make a stronger appeal for the granting of a writ of mandamus to compel the recanvass of election returns, if the authority for it existed. The court recognized this, but withheld its hand because it found it could not,- “properly and in accordance with legal principles” (p. 137), afford a remedy. The grounds of the decision were thus stated in the opinion, filed January 7, 1893:
“If a person, upon the face of the returns, is entitled to the certificate of his election, except in special instances, where wrong or injustice will be done, the courts have power to reach the officers composing the delinquent board by writ of mandamus and compel them to action,-and, if necessary, may compel them to reconvene and recanvass. Therefore, if there was nothing in this case but the question of jurisdiction of this court, the plaintiff would be entitled to the relief claimed by him. But it appears in this case, from the records of the board of state canvassers, that the board, on December 1, 1892, long before what purported to be corrected returns from Haskell county' were filed with the secretary of state, had completed its labors, declared the result against the plaintiff, and finally adjourned. . . . If the board of state canvassers had discharged all of its duties which the law especially enjoined upon it, before its final adjournment on the 1st day of December, 1892, then no writ of mandamus can issue, because there would be the performance of no duty to enforce. ... If a canvassing board, having concluded its labors and finally adjourned, has no power or authority to reconvene and recount, the courts, under the provisions of the statute, can not by mandamus compel the board to reassemble or give it any power so to do.. It is, however, contended upon the part of Rosenthal, that as the statute requires the county clerk of Haskell county to make out -an abstract of the votes for representative, and, after having been signed and certified to by him, to deliver the same by mail to the secretary of state, and as the first returns were not true, because they incorrectly stated the votes of each of the candidates, no valid abstract was received from Haskell county prior to December 19, 1892, and therefore, as no true abstract or returns were received, this court may compel the board of state canvassers to reassemble and complete its work by canvassing the later (or supplemental) returns: If no abstract from Haskell county had been received by the secretary of state before the final adjournment of the board, on December 1, 1892, and if the state board had had no abstract of-returns before it from Haskell county to act upon, it is possible that, under the decision of Lewis v. Comm’rs of Marshall Co., 16 Kan. 102, mandamus would lie, upon the ground that only a partial canvass had been made. But that is not this case. An abstract of the votes for a member of the house of representatives,’ signed and certified by the county clerk, properly indorsed and directed to the secretary of state, was received by him and placed before the state board of canvassers during its proceedings in November. That abstract was incorrect, but it came from the proper officer; it was signed and certified by the proper officer. It was duly authenticated. It was not challenged or objected to. The members of' the state board of canvassers had no notice or knowledge, at the time they were considering it, that it was incorrect or defective. Upon the face of the returns, they appeared to be in full compliance with the provisions of the statute. There was nothing in the returns, or in the manner in which they were transmitted or received, to cause suspicion, or to demand any other action thereon than usual and customary in such cases. The state board accepted the returns as truthful, passed upon them as such, and declared the result therefrom. It is well settled that the duties of the canvassing officers are purely ministerial, and extend only to the counting up of the votes, and awarding the certificate to the person having the highest number. They have no judicial power. . . . Considering all the facts and circumstances of this case presented upon the trial, as no fraud, wrong or other official misconduct is imputed to the members of the state board of canvassers, or either of them, in receiving and counting the returns complained of, we must hold that they did not improperly reject any returns, or refuse to canvass any returns. When the board adjourned on the 1st day of December, 1892, the members thereof had fully discharged all of their duties; and it is too late now to say that they can voluntarily, or by compulsion, meet again as canvassers, to examine and pass upon the returns of the election of November, 1892. As a body, the board of state canvassers is functus officio—officially dead. It has no power of resurrection so as to consider the returns of the election of November, 1892,. and this court can not animate its dead body with the breath of life.” (Rosenthal v. State Board of Can vassers, 50 Kan. 129, 138-136, 32 Pac. 129, 19 L. R. A. 157.)
We conceive the essential purport of this decision to Ibe that where a canvassing board has in good faith •completed its work in a proper manner so far as its own conduct is concerned, and finally adjourned, it has in the eye of the law passed out of existence, and can neither convene again of its own accord, nor be brought together by the order of the court, for the purpose of .giving effect to the subsequent correction of a latent mistake in the returns submitted to it. This rule applies to the position of the county canvassing board of Wabaunsee county in the case at hand. Under our statute the election board makes returns to the county clerk. The clerk and the county commissioners, from the poll books and tally sheets, ascertain the result of the vote in 'that county, upon state and district as well as upon local officers; they “determine the persons who have received the greatest number of votes in the county” (Gen. Stat. 1909, §3137), and sign abstracts showing the vote upon each office. The county clerk mails to the secretary of state copies of the abstracts of the vote of his county upon state and district officers. The state board of canvassers compiles the total vote from the abstracts from the different counties. (Gen Stat. 1909, §§3136, 3137, 3140, 3146.) Here the county board, at the time appointed by law, properly canvassed the election returns from the various precincts, and declared a result. It neglected no duty. It did what the law commanded to be done, and what in the event of a refusal a court would have compelled. Its action was as complete with respect to state officers as to those of the county. It declared the result of the vote of that county upon the office of governor. ' The result of its action has been communicated to the secretary of state by the forwarding of an abstract. The county canvassing board has gone out of existence and can neither reconvene on its own motion nor be required to meet by the order of a court. Without a county canvassing board to give effect to any changes that might be made by the election boards in their returns there is no machinery available for the purpose.
It is suggested that the present case may be distinguished on the ground that here no certificate of election has as yet been issued. . We are unable to see that, the doctrine of the Rosenthal case is affected by that consideration, or that it plays any part in the reasoning by which the conclusion was there reached. The decision was based upon the fact that the board itself had completed its work. The essential act of the board was the declaration of the result. The issuance of a certificate followed from that, as evidence of it. If the certificate had been issued to the wrong person because of an error made by the state board or by the secretary of state, the fact that it was outstanding could not have prevented a correction of the mistake, even although their terms of office had in the meantime expired. (Shull v. Comm’rs of Gray Co., 54 Kan. 101, 107, 37 Pac. 994.) A certificate of election without a declaration of the canvassing board back of it would be of no legal and of little practical effect; it would be^ entitled to no respect and would command none from those advised of the facts. The correction of an inadvertent canvass would of itself discredit any outstanding certificate and in substance effect its cancellation.
If the court should be asked to reconvene the county canvassers to correct an error of thé election board with respect to a county office, an obviously conclusive answer would be that the county board no longer exists. As it has completed its duty with respect to returns on state offices precisely the same as with respect to county offices, it has passed out of existence for one purpose just as it has for the other. The abstract of votes for a state office sent to the secretary of state corresponds perfectly, to the certificate of election in the case of a county office.
The theory is advanced that the entire machinery for the canvass of the vote on a state office should be regarded as a unit, and that until the certificate' of election has been issued the entire matter of the revision of the returns- should be regarded as still open. This idea of unity, however, is inconsistent with the doctrine of the Eosenthal case. If the several officers acting in the matter are to be regarded as a unit, then the wrongful act of the county clerk in sending in a false certificate could be imputed to the entire body of which he is a member, and it would have to be said that the organization as a whole had not done its full duty. The result in the Eosenthal case was reached by treating the state board of canvassers as completely severed from the county officers, so that by accepting the false certificate and adjourning, it made it impossible for the mischief to be remedied. Although the actual result reached by the board was a wrong one, it was held to have fully and correctly performed the duty for which it was created, not because it happened to be the latest body to act upon the matter, but because it was an independent one, responsible only for its own conduct, and not subject to be reconvened to aid in correcting the mistakes of some other officer: The work of the state board, considered as a separate body, had been completed, for it had correctly acted upon what was before it. . But the work of all the officers concerned in the canvass, taken collectively, was not completed, for no true abstract of the vote of Haskell county had-been made or canvassed. If in that case the county clerk had refused to make a corrected certificate, he could, of course, have been compelled to do so, except for the fact that it would have been unavailing, as there was no state board to consider it. So here any correction of the returns of the election board would be unavailing, as there is no longer a county board to consider them.
In the Rosenthal case it appears that no formal demand was made upon the state board of canvassers to reconvene, and that Rosenthal had served a notice of contest upon the holder of the certificate of election. To whatever consideration these matters may have been entitled, it is sufficient for present purposes to say that the decision was in no way based upon them.
The alternative writ contains an allegation that the county board, at the time of the canvass, had notice and knowledge that a large number of properly marked ballots had not been counted. It was conceded at the argument, however, that there was nothing upon the face of the returns made by the election board that showed any irregularity, beyond the fact that the number of ballots rejected (about ten per cent of the whole) was so large as to gi.ve rise to suspicion. The county board would have no warrant for saying that the rejection of ten per cent of the ballots cast afforded a presumption of wrongful action by the election officers, and that fact would not have justified it in refusing to complete the canvass. It was admitted that the county board had no actual knowledge of the matters complained of, but it was said that it was “in the air” that such errors had been committed. A mere rumor could not give a basis for a refusal to canvass returns regular on their face. In the Rosenthal case, before the meeting of the state canvassing board the result of the vote had been repeatedly published, and it was a matter of common knowledge, controverted by no one, that Rosenthal had been elected. If constructive knowledge were to be regarded, it might have been said that the board was affected by it in that case. The board’s want of notice was there mentioned as affecting the question of good faith, and the absence of “fraud, wrong or other official misconduct.” (Rosenthal v. State Board of Canvassers, 50 Kan. 129, 136, 32 Pac. 129, 19 L. R. A. 157.) In that connection only actual notice could be important.
The doctrine invoked may seem harsh and ill suited to the practical attainment of just results. It is certainly rigid and inelastic; but the decision referred to declared the rule that a canvassing board after final adjournment can not be reconvened to correct the error of some other officer, to be a part of our election law, having substantially the force of a statute; it has stood for .twenty years; it must be deemed to have been acquiesced in by the legislature, since the rule has not been changed by statute; and it must now be regarded not as merely advisory, but absolutely controlling. Moreover, there is much to be said for the proposition that while the rule may work a hardship in a particular case, in the long run it perhaps serves a good practical purpose in preventing confusion and complication. The reasons advanced for directing a correction of the returns of the election boards now called in question would apply with equal force in every precinct where a single ballot has been wrongly counted. In a total vote of over 359,000 the majority of the democratic candidate for governor, in the present state of the canvass, is 26. Changes in a single precinct in any part of the state might throw the result one way or the other. An attempt to correct by mandamus all errors in the original returns before the issuance of a certificate would be beset with grave practical difficulties. That, however, would not justify a refusal to enter upon the work if the power to do so existed. Whatever might be the effect in this particular case, the practice advocated by the plaintiff would, in its general application, be fraught with obvious peril. If the election boards can now be compelled by mandamus to reconvene and revise their returns, they can do it of their own motion. ' (26 Cyc. 165, 166.) If they can correct errors in the rejection of one class of ballots, they can also correct errors in the' rejection of others and in the counting of ballots that ought to have been rejected. If they can lawfully require the return to them of the ballots, upon a showing that a mistake has been made, it would seem that they can require it upon their own knowledge of the fact, and perhaps upon their own assertion of it. A majority of them might be authorized to act, under the rule that statutory authority given to three or more public officers may be exercised by a majority of them, unless it be otherwise expressed. (Gen. Stat. 1909, § 9037, subdiv. 4.) Having the ballots in their possession, it would also seem that they could, and perhaps should, make an entire recount, accepting and rejecting ballots in the light of new knowledge that has come to them since the first returns were made. Without supervision by a court or other body the second return might in fact be no nearer correct than the first. Upon the suggestion of a newly discovered mistake the process might be repeated, and no definite limit to it could be set. And after the semiofficial returns of a statewide election have developed that the change of a few votes one way or the other might affect the general result, an inflamed partisanship might so warp the judgment of officers as to induce unjustifiable rulings in the new count. Additional recounts might be undertaken in a spirit of retaliation. Officers who would not deliberately violate their duty might be misled by passion. Alterations in the original returns, after it had been learned how much of a change would affect the result, although in fact made in good faith, would be viewed with suspicion and distrust. The- command of the statute that the ballots cast at an election shall be opened only in-open court or in the presence of the body trying a contest (Gen. Stat. 1909, § 3273) is not interpreted so literally as to forbid the opening of a pouch containing ballots in order to remove the poll books and tally sheets that have been placed there through mistake (Patten v. Florence, County Clerk, 38 Kan. 501, 17 Pac. 174), but has been held to be mandatory (Getty v. Holcomb, 79 Kan. 224, 99 Pac. 218). It illustrates the legislative purpose that every precaution shall be taken to preserve the identity of the ballots and their authenticity as evidence. These considerations are suggested, not as grounds for the decision here rendered, but to show that the rule which we follow, and which we believe to have been' heretofore adopted and to be already binding upon us, serves a good practical purpose in fixing a definite limit to the period within which an election board may undertake to change its returns.
The ballots marked in the manner described in the alternative writ are unquestionably valid. They are made so by express provision of the statute. Assuming the facts to be as contended by the plaintiff the circumstance that so many of them were rejected makes the failure to count them peculiarly unfortunate. They ought to have been counted. They ought still to be counted, if there were any legal method of accomplishing that result. But in the face of the objection made, the court is powerless to compel it. In the rejection of these ballots a great wrong has been done, for which the remedy by quo warranto or contest affords only a belated, and therefore a partial and inadequate remedy—a wrong not only to the candidates affected, but to the people of the state. But a greater wrong would be done if the court, for the purpose of promoting justice in this particular case, were itself to transgress its lawful bounds, and. assume and exercise a power to which it is not legally entitled. We may not “wrest once the law to our authority,” or “to do a great right do a little wrong.”
The motion to quash the alternative writ is sustained. | [
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The opinion of the court was delivered by
Mason, J.:
In 1887 Andrew J. Campbell and his wife executed a note and real estate mortgage, due December 1, 1892, which were afterwards sold to M. E. Dixon. On December 14, 1901, Dixon brought action on the note. The summons was served only on Campbell, although his wife was named as a party in the petition. He pleaded the statute of limitations and a trial resulted, in May, 1903, in a judgment in his favor on that issue, declaring the note to be barred. A record of the judgment contains recitals of the appearance of the “defendants” by counsel, but in fact no one was authorized to appear for Mrs. Campbell. In this state of the record H. W. Windsclieffel, in 1905, became the owner of the land by title derived from the Campbells through mesne conveyances. On February 12, 1910, Dixon began an action for the foreclosure of the mortgage, alleging that Mrs. Campbell had been absent from the state ever since the maturity of the note. Windscheffel denied this. The deposition of Mrs. Campbell was introduced, to the effect that she had been a nonresident of Kansas during all but two years of that time. The court found for the defendant and rendered judgment accordingly. The plaintiff appeals.
The plaintiff, in order to show that the note was still alive as to Mrs. Campbell (and that therefore the mortgage was enforceable against Windscheffel), was required to prove that between December 1, 1892, and February 12, 1910, the time spent by her in Kansas did not amount to five years, in other words, that she had been absent from the state between these dates for seventeen years, two months and eleven days. Her evidence was that she left Kansas and moved to Nebraska in 1888, 1889 or 1890; that about two or three years later she moved to Illinois, where she remained nine or ten years; that she next lived in Kansas for about two years; that she then resided in Nebraska two or three years; that she then went to Illinois and remáined there until 1910, when she moved to Montana; that she last left Kansas about 1903. While the language varies somewhat, we think it clear that in all her answers the witness had reference to the place of her domicile, and not to her personal presence in or absence from this state. Her testimony amounts to this: That she resided in Kansas only two years after the note matured. But for anything shown in her testimony she may have been in the state for more than three years additional. As the running of the statute of limitations' is suspended only by absence from the state, and not by nonresidence, the judgment was not contrary to the evidence. (Miller v. Baier, 67 Kan. 292, 72 Pac. 772, and cases there cited.)
The plaintiff argues that while there is a difference between residence in a state, and personal presence therein, there is a presumption, in the absence of a showing to the contrary, that a person spends his time in the state of his residence. This is true in a sense, just as “a person’s domicile is sometimes presumed to be in a certain place from the fact that he is present there.” (4 Encyc. of Ev. 848.) If it is necessary to indulge in presumption on the subject, it would doubtless be presumed that at a particular time a man was at his permanent home rather than elsewhere. But it can .hardly be said that there is any substantial presumption that he never leaves the state of his residence. “A party may reside in Illinois, and yet spend more than half of his time in Kansas. An allegation that a party ‘has only been a resident of Kansas three years last past,’ throws no light upon the question of his presence in or absence from the state during the years prior thereto.” (Hoggett v. Emerson, 8 Kan. 262, 265.) In Coale v. Campbell, 58 Kan. 480; 49 Pac. 604, it was said:
“The agreed facts show: ‘The defendant, W. T. Coale, is now, and always has been, a nonresident of the state of Kansas.’ The exception, contained in section 21, preventing the statute from running, is where the defendant is personally absent from the state; and there is nothing in the case showing whether he was so dr not. The mere fact of nonresidence is insufficient to bring the case within the exception and prevent the statute from running.” (p. 484.)
The present case was not decided upon a demurrer to the evidence, but upon a final submission upon the merits. The court was not bound to give effect to all favorable inferences-that might be drawn from the facts proved. There was no occasion for indulging in doubtful presumptions, or in a strained construction of an equivocal phrase. The issue was plain and simple—the presence in or absence from the state of Mrs. Campbell. There was no direct evidence on that point. The circumstances suggest that the omission to elicit ..more specific information from the witness may have been intentional. The five year statute of limitations had run against the husband in 1901. Where he resided is not shown, nor whether his wife was with him any part of the time. For nearly seven years the record of the judgment was permitted to stand showing a determination that the note was barred as to both makers. As the trial judge intimated, the situation justified holding the plaintiff to strict proof. The decision was placed distinctly upon the ground that the evidence introduced by the plaintiff related to residence out of the state, and not to personal absence from it. If upon its announcement the plaintiff had represented that the phrasing of the deposition was inadvertent, and had asked time to produce further evidence, a different question would be presented. But he rested upon the showing made, and upon that we think the ruling of the court was correct.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
M. 0. Hanson sued the Atchison, Topeka & Santa Fe Railway Company for damages, alleged to have been occasioned by the company’s employees. wrongfully intermingling cattle shipped by him with those of another shipper. A demurrer to his evidence was. sustained and he appeals.- The evidence tended to show these facts among others: He had purchased near Garden City 81 head of three-year-old steers from a herd which also contained some two-year-olds which were bought at the same time by Haleck Barg. The cattle were separated, and were shipped to Climax by the same train but in different cars. They arrived at Emporia at night and were there unloaded by the company’s employees to be fed and watered. The plaintiff and Barg saw two' men with a lantern on the station platform near where the cars stopped, close to a cattle chute. Understanding that these men were employees of the company, they gave them the numbers of the cars and told them to be sure to yard each load separately and put them back in the same cars. They said they would do so, and at once went to the door of one of the cars. One of them was handling the planks used in unloading cattle. The next morning the shippers discovered that all the cattle had been turned into one inclosure, and it took about three hours to separate the plaintiff’s from those belonging to Barg, as.they bore the same brand and were distinguishable chiefly by their size. The day was very warm, and this handling resulted in a shrinkage estimated at from 15 to 100 pounds per head.
This evidence was sufficient to make a prima facie case of liability on the part of the defendant, if the men who were instructed to keep the cattle of the two shippers separate were in fact employees of the railroad company. There was testimony that one of them assisted in dividing the cattle the next morning and opened the gate at the stockyards as they were being driven out. With the evidence already stated, this was probably sufficient to justify an inference that he was an agent of the company. (Olson v. Bank, 78 Kan. 592, 96 Pac. 853; Heinz v. Light Co., 81 Kan. 261, 105 Pac. 527.) Moreover, there was direct as well as circumstantial evidence of his agency. The defendant accepted responsibility for the acts of the employees of the stockyards company. The night foreman of that company was present at the trial, and the plaintiff testified that, while he would not swear to it, he thought this was the man to whom he gave the directions. He added—“I would like to go a little further, he told me the next morning that he was the man.” This was some evidence of identity. The uncertainty of the witness went to the weight of his testimony, not to its competence. (Losey v. Railway Co., 84 Kan. 224, 114 Pac. 198.)
The suggestion is made in behalf of the defendant that the plaintiff “voluntarily” chased the cattle around in an effort to separate them, and should abide by the consequences of his own act. According'to the evidence, however, this handling of the cattle was made necessary by the fault of the. company’s employees in failing to keep them separate.
It was shown that a complete separation of the cattle was not accomplished, Barg getting two of the plain-, tiff’s animals, and the plaintiff two of his, of less value. The plaintiff was not entitled to a recovery on this feature of the case. He was not deprived of the ownership of the two steers belonging to him which were loaded into Barg’s car. They were taken to Barg’s farm, about.a mile and a half from his own. The railway company might have been liable for the expense of making an exchange, but as none was effected or attempted the adjustment of the difference .in value was a matter between the two owners.
Complaint is made _ of the questions asked of the plaintiff on cross-examination with respect to a written contract of shipment, but as the contract itself was not admitted no prejudice could have resulted.
The judgment is reversed and a new trial ordered. | [
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Per Curiam:
The parties to this action were married September 3, 1910, and the decree of divorce from which the wife appeals was granted October 28, 1911. At the time of the marriage the husband was 74 and the wife 32 years of age. Both were born in Sweden. For several months previous to the marriage she had been his housekeeper. The husband owns three pieces of real estate, estimated to be worth six thousand dollars; the wife has no property. Shortly after the marriage the husband conveyed to the wife a five-acre tract and two town lots. Differences soon' afterwards arose between the parties and the husband brought suit for divorce, alleging gross neglect and extreme cruelty.. The answer denied the charges, and alleged a promise on the husband’s part, made before marriage, to convey the property described in the deeds to her.
The court set aside the conveyances and gave to the wife her wearing apparel and an allowance of one hundred and fifty dollars, which the husband was directed to pay her. The residue of the property was given to the husband.
The court might well have refused a decree of divorce. In our opinion the clear weight of the evidence disproved the charge of neglect of duty and of extreme cruelty also. Because of the disparity in the ages of the parties and the probability that they will never live together, we shall not disturb the divorce. The so-called division of the property, however, seems so manifestly inequitable that the judgment will be modified and the court directed to award the wife $1250, which, under all the circumstances of the case and in view of the evidence, is no more than a just and fair allowance.
The decree of divorce will be made subject to the payment to the wife of the allowance. The costs in the court below and of the appeal will be taxed against the plaintiff. | [
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Per Curiam:
W. T. Brown, as administrator of the estate of Herman Ammann, deceased, brought this action to recover from Joseph Ammann, one of the sons of the deceased, the sum of $700, and interest, which sum is alleged to have been a balance due from the appellant to the estate for money received by appellant from the deceased in his lifetime, which the administrator alleged was received in trust by the appellant from the deceased.
In answer the appellant admitted the receipt of $500 as a loan for which he was to pay seven per cent interest ; that no time was fixed by the verbal agreement to repay the debt; that more than three years had elapsed since the last payment, and that the action was barred by the three-year statute of limitations. The answer failed to allege that any demand for payment had been made by the administrator or by the deceased more than three years before the commencement of the action, or to allege any other fact which fixed any time when the repayment became due. The answer failed to state, and the evidence of the appellant, taken as true, did not establish any defense to the cause of action, but, on the other.hand, tended to admit and establish a cause of action.
The only controversy seems to have been whether the money was received by the appellant in trust, to be held for the use and benefit of his father, or whether it was a loan by the father to him.
The case was tried to the court and the court -found that the appellant was indebted to the estate in the sum of $600. It does not appear from the abstract that there was any finding as to whether the money was received as a trust or as a loan, and under the pleadings it does not appear to make any difference.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This is an appeal from a judgment for $140, which the court found to be the reasonable value of a portion of a party wall used by appellants in the erection of a building.
The Masonic Building Association owns the south nineteen and two-thirds feet of lot 114, on Kansas avenue, in the city of Topeka, owned in 1887 by L. Blackman and wife; the appellants own a part of the adjoining lot 112 and the north five feet four inches of lot 114, occupied in 1887 and for many years thereafter by a two-story brick and stone building about fifty feet long, the south wall of which was the line between the adjoining properties. In 1887 this property was owned by W. S. Arter and wife, the appellants having purchased the same in 1908. The petition set up a written contract filed for record May 31, 1887, entered into between W. S. Arter and wife and the Blackmans, for a party wall to be erected by L. Blackman, one-half thereof upon the property of each. That part of the contract pertinent here reads:
“Said Blackman agrees to build said wall complete and shore up the building now on the ground of said Arter and connect the same securely and properly with the new wall on or before June 25th, 1887, and to pay the tenant in Arter’s building any damage he may sustain by reason of said improvement.
“In consideration whereof said Arter agrees and promises to pay said Blackman $200.00 in cash- upon the completion of said improvement, and in case the said Arter, his heirs or assigns, shall at any time desire to use any part of said wall beyond the limits of the present building he or they shall pay unto the said Blackman, his heirs or assigns, one-half the value of the wall so desired to be used, to be estimated according to the value of such wall at the time, and such sum shall be paid before possession is taken.
“Each of the parties hereto is hereby granted such an interest in the real estate upon which said wall is built as to constitute the same a party wall, and this, agreement shall be binding upon the parties hereto,, their heirs and assigns.”
The petition alleged that in 1910 the appellants had made use of a larger portion of the wall than had been used in connection with the building formerly standing upon appellants’ lot and asked for the reasonable-value of such portion. The answer pleaded payment, in full for the half of the wall on appellants’' side, and also alleged that the Blackmans, in violation of the contract, had built six inches of the wall upon the lot. now owned by appellants. The reply alleged that at the time the wall was built the parties agreed upon the dividing line and that the Arters and their successors in interest had ever since acquiesced therein, and denied payment.
Substantially all the facts are found in an agreed statement submitted to the court. A part of the statement is:
“It is further agreed that said Blackman proceeded, to build, under and by virtue of said agreement, the wall which is now in controversy herein, making the same of the dimensions and thickness specified or contemplated in said written agreement and completed the same within the time specified therein; that on the completion of said wall, said Arter paid to said Black-man the $200.00 mentioned in said agreement, which was for that portion of the wall then used by said Arters as the south wall of their building then standing, on the land of the said. Arters immediately north of the land of said Blackmans.
“It is further agreed that in the summer of 1910 the defendants, Gordon Brothers, tore down the old building which had theretofore been upon said part of lot-112 and the north five and one-third feet of lot 114 on Kansas avenue and constructed in- place thereof a new and larger building and attached the same to and used the wall in controversy herein as the south wall of said new building and thereby used a larger quantity of' said wall than had been used in connection with said; old building.”
It was admitted that appellees made a demand for payment, which was refused. Appellees offered proof showing the value of additional use of the wall. L. Blackman, the former owner of appellee’s property, testified:
“Before I built that wall there was a survey made and I built the wall on the line given by the surveyor. . . . I was paid the $200.00 stipulated in the contract, but was never paid any more than the $200.00. The survey was made for the purpose of ascertaining the property line between me and Arter and I built the wall according to the survey. The survey was agreed upon between me and Mr. Bartholomew. . . . From that day until this there was no objection that I ever heard of.”
The appellants introduced the record of the following instrument, filed for record October 12, 1888:
“$200.00. December 31, 1887.
“Received of John Norton Two Hundred Dollars for the party wall agreed upon by and between W. S. and Lydia B. Arter and L. and Hattie Blackman, as per contract dated May 27, 1887, and recorded in book 135, page 546, of the records of Shawnee County, Kansas. Said John Norton now being the owner of the property described in said contract; title then in W. S. Arter. This receipt being in full for said wall as described in the above mentioned contract. H. N. Blackman.
L. Blackman.”
This record was objected to by the appellee on the ground that the failure of the notary to state in his certificate the date of the expiration of his commission was such a defect in the acknowledgment that the instrument was not entitled to record. It is an instrument whereby real estate may be affected. (Zeinor v. Edgar, 79 Kan. 406, 99 Pac. 614; Hall v. Rea, 85 Kan. 675, 118 Pac. 693.) It is clear that section 1685 of the General' Statutes of 1909 cured the defective acknowledgment. The legislature therein provided that when any such instrument has been of record in the office of the register of deeds in the proper, county for the period of ten years it shall be valid as though in all respects duly executed and acknowledged in the first instance. Hall v. Rea, supra, held that such an instrument may be read in evidence although it lacks acknowledgment and although the original is not accounted for.
The main contention of appellants is that the party wall-had been fully paid for, and that this conclusively appears by the foregoing receipt, and certain admissions in the petition, and the agreed statement of facts submitted to the court. It is conceded that the covenant created by the party-wall agréement was one running with the land . (Southworth v. Perring, 71 Kan. 755, 81 Pac. 481), and that when the Gordons purchased in 1908 they took with notice of the obligation ; but it is insisted that the receipt, being of record, was notice to them that the party wall had been fully paid for. While the language of the instrument is not entirely free from ambiguity, it refers to the contract, which was also of record, and reading them together we find no difficulty in giving to the receipt the same construction which it is evident the trial court gave to it. It was executed within a few months' after the completion of the party wall. The amount paid is the same as was agreed upon between „Blackman and the Arters, from whom Norton purchased. While it purports to be a payment “for the party wall” or “as per contract,” it is apparent to us that the payment referred to was the $200 which Arter agreed to pay upon the completion of the wall, and that the last clause, which reads: “This receipt being in full for said wall as described in the above mentioned contract,” was-not intended to acknowledge payment for that part of the wall which might never be used. In the absence of the testimony of Blackman that he was never paid any sum except the $200. mentioned in the contract, we would so construe the language of the receipt. In- the petition it was alleged that “on the completion of said wall the said Arters paid the said Blackmans the $200 mentioned in said contract, which was for that portion of the wall which was rebuilt and was then used by the said Arters as the south wall of their said building.” The • following declaration is from the agreed statement of facts: “that on the completion of said wall, said Arter paid to said Blackmans the $200 mentioned in said agreeriient, which was for that portion of the wall then used by said Arters as the south wall of their building.” It is appellants’ contention that the appellee is not now in a position to claim the very reverse of this solemn statement, and that the fact as alleged in the petition and agreed to on the trial conclusively establishes the true consideration for the payment made by Norton; that inasmuch as it is conceded that the $200 mentioned in the contract was paid by the Arters, there can be no doubt that the receipt of December 31, 1887, was in full payment for the part of the wall the owners of the Arter lot might subsequently use. It was for the court to determine' from the evidence whether the use of the wall for which the action was brought had been paid for. To determine this issue of fact required' the court to- consider the pleadings, agreed statement of facts and all the evidence, to construe the language of the receipt and determine what was the intent of the parties thereto. It is obvious that the court did not give a literal construction to the admission in the pleading and statement of facts to the effect that the Arters paid the $200 mentioned in the contract, but under all the evidence' held that the payment spoken of in the receipt, although actually made by Norton, was in fact a payment by the Arters. And as Blackman testified that he was never paid any sum except the $200 we think the court was warranted under all the evidence in finding that the payment by Norton was the payment intended to be referred to in the petition and in the agreed statement of facts.
This is a case which turns solely upon questions of fact. The court, upon what appears to us to be sufficient evidence to support the judgment, found that the use of the wall for which the appellee sought to recover had not been paid for and that the wall was erected upon the line between the properties, or if not, that the parties by mutual agreement fixed that as the boundary. Upon every issue there was evidence to support the judgment.
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The opinion of the court was delivered by
Benson, J.:
The appellant was convicted of murder in the second degree in killing Walter H. Newfarmer. The appellant was the manager of a farm owned by his father. He had employed the deceased and his wife to work upon the farm and lived with them.
From the testimony of Mrs. Newfarmer it appears that about five days before the homicide she had rebuked the appellant for an improper proposal and intimated that her husband could take everything he had from him for alienating her affections. This occurred on Wednesday. On the following Saturday the appel lant notified Newfarmer of his discharge from employment. On Sunday he visited a neighbor, and talked of a trap that had. been set for him. The following Monday, in the absence of Newfarmer. in town, the appellant asked Mrs. Newfarmer for shells for the shotgun, saying he wanted to shoot a steer. The shells were not found. In a few minutes another interview between them occurred. He was pale, nervous, and agitated. She inquired the cause of the trouble with her husband. He said there had been none but that he (the husband) must quit, the quicker the better. Being further pressed for a reason he declared that trouble was weighing him down. She inquired if the discharge of her husband had anything to do with what had passed between them. He said: “Yes; I. thought you had laid a trap and was planning and plotting against me, to take everything I have from me.”
She said that she had never spoken to her husband on the subject, and that all he wanted was what was coming to him, and said: “If you will be brave I will do all I can to help you out of your trouble and I will try and get Walter to.” He replied that he would try to patch it up with Walter and that he might come back to work in the morning. He appeared nervous and pale, said his trouble was weighing him down, and that he thought of doing something desperate. He folded and refolded his coat which was lying on the bed. The telephone bell rang and he said, “Don’t answer it. If that is the sheriff calling; don’t you dare tell him I am here.” • She told him it was her husband talking from Diamond Springs. He said “You have been good to me,” shook hands with her and went out of the house, after she had cautioned him not to get mad with Walter. In a few minutes she went to the yard for cobs and saw appellant going towards the toolhouse, when she heard a call.from her husband, such as he usually gave in returning from town. After picking up the cobs she heard her husband call as if in agony, and ran on to the orchard gate, meeting the horse and buggy without a driver on the way. Near the gate she found her husband lying on his face, the appellant astride of his back, cutting his face and neck with a razor, both men struggling. She grasped the appellant by the collar and by pulling and jerking finally got him off her husband, whom she assisted to his feet, and with her arm supporting him they walked toward the house and she left him near the porch. He was bleeding profusely from a deep gash in the neck. Going into the house to call a doctor by telephone she found the appellant in the pantry feeling the edge of a case knife. Taking water and a towel she returned to care for her husband, who was lying on the ground, and tried to stop the flow of blood. In a moment or two the appellant appeared with a corn knife upraised. She said, “Oh, Tanny, please don’t.” He pushed her aside saying, “I am going to finish him.” The wounded man raised his hands, saying, “Oh, don’t, don’t.” He slashed the neck of the wounded man many times with the corn knife until he was dead, his head being almost severed from the body. His fingers were mutilated and wounds were found on other parts of his body. The appellant then left the scene, and was next observed in a pasture by the doctor coming in answer to the telephone call, to whom he beckoned, and coming out to the road, said, “He is dead, I killed him in self-defense.” Being asked whom he had killed, he said, Mr. Newfarmer, and asked to be taken to Council Grove. This occurred on the road about a mile from the scene of the tragedy and soon after it occurred. At the appellant’s request the doctor took him in his car to Council Grove. His clothes were bloody and injuries appeared upon his person, including a fracture of the nose. The doctor testified that he was rational at that time and that he took him to Council Grove at his own request, avoiding Diamond Springs, which is about two miles from the Olsen farm, because appellant asked him not to go-there. It appears that appellant threw the corn knife into a creek about a half mile from the place of the homicide, and then went on until he saw the doctor in his automobile in the road, and beckoned to him, as already stated. After his arrest he told one of the county officers that he had been afraid of Newfarmer for sometime, and believing that Newfarmer'had gone to town to make trouble he had armed himself with a razor; that Newfarmer called him a name and rushed after him; that there was a tussle and he had to do what he did. The witness remarked to him that Newfarmer was on his face when they were found and that it did not seem necessary to slash him with a razor—that he was in no imminent danger. Whereupon the appellant replied that it was true and that he had “lost his head.” The witness further said to him, may be he “would have come out all right, if you hadn’t followed him up to the house and slashed him with a corn knife,” to which appellant answered, “Yes, but I was so mad -I could n’t hold myself.”
The appellant and Newfarmer rode to town and returned together on the Saturday when notice of the discharge was given. There was no evidence of any previous quarrel or misunderstanding. Evidence was offered of the good character of the appellant, who is an unmarried man, twenty-seven years of age. He was transacting ordinary business in town on Monday just before his interview with Mrs. Newfarmer on the day of the homicide. There was- evidence tending to show insanity of his mother, although it does not appear that she had ever been taken to an asylum. The deceased was twenty-three years old.
The material facts of the homicide were undisputed. The defense of insanity was interposed. In opening the case the appellant’s counsel stated that there would be but one question for the jury to determine, and thqt was the mental condition of the defendant at the time he committed the act—which he stated was that of an insane man.
It is contended that several jurymen were incompetent because they had formed opinions upon the issue to be tried. They stated that they had such opinions, but on further examination by the county attorney, and in answer to inquiries by the court, these opinions appeared to be limited to the fact of killing, which was undisputed, and would therefore not disqualify, or were only impressions from newspaper reports. They were not asked whether they had any opinion concerning the sanity of the appellant, which was the material question, nor was that matter suggested upon their examination. Some of the answers of jurymen appeared to be conflicting, those given in response to questions by the defendant tending to show settled opinions, while those given in answer to questions of the county attorney showing the contrary. Doubtless in this as in other qases the seeming inconsistency is due to the use of the terms opinions and impressions, and the variant senses in which they were understood. Within the rules stated in The State v. Morrison, 67 Kan. 144, 72 Pac. 554, The State v. Stewart, 85 Kan. 404, 116 Pac. 489, and The State v. Truskett, 85 Kan. 804, 118 Pac. 1047, the rulings complained of must be sustained.
The prosecuting attorney said in his opening argument :
“I suppose that the Captain will be telling you in a few minutes that he is not a murderer; he had that privilege. Maybe he can show you that he is not, but he can’t show it on the evidence in this case. . . . The witnesses who have testified to it in this case, I believe, knew that. But can it make any difference to this jury what his reputation had been heretofore, when he admits that he did this thing. If he had denied having—or if his counsel had denied”—
Counsel was interrupted, by an obj ection and an exception was taken to the remark “If he had denied having'—or if his counsel had denied.” That the killing was done and that it was a cruel murder unless it was the product of insanity must be conceded. In their brief counsel for appellant say:
“That the testimony shows the killing t.o have been an insane act, a demoniacal one, without motive, purpose or accountability. There was but one eye witness, the wife of the man who was killed. Her story shows a maniacal act, devoid of any mental accountability.”
The remark objected to appears to have referred to the admissions of the appellant to witnesses that he had committed the act and to the statement of his counsel, rather than to his failure to testify, which the statute declares shall not be referred to. It is not believed that the appellant could be prejudiced by a reference to the fact that he had not denied the killing, the very circumstances of the killing being urged as an argument to show his insanity.
It is also argued that error was committed in an instruction which informed the jury in substance that they should not consider the fact that the defendant did not testify as a witness as raising any inference of his guilt. It is argued that this called attention to a matter which the jury had no right to consider. The fact, however, was already known to the jury, and the. caution was designed not to call attention to it but to warn them that the appellant must not be prej udiced by it. The court sought to give the appellant the benefit of the statutory safeguard and in doing so only declared the law.
Objection was also taken to the language of the county attorney in his opening argument, wherein the jury were told that they might protect the appellant “under the guise of a passing brain storm, . . . but he is a murderer.” The facts were stated which it was claimed proved the charge that he was a murderer and not insane, and in that connection the term was used and the jury must have so understood it. While all vituperation and vilification should be avoided, inferences fairly deducible from the evidence and predicated thereon may be stated. But all unwarrantable conclusions, vilifying epithets and personal abuse should be excluded.
A daughter of Newfarmer three years old was present when her father was being wounded with the corn knife and exclaimed as the tragedy proceeded, “Oh, poor papa, do die.” The admission of this statement is alleged as error. It was one of the circumstances attending the homicide related by the mother in her recital of the events. The remark was a mere incident of the tragedy. It is argued that the child was too young to be an intelligent factor, and that what she said was no more than the chirp of a swallow. Granting the truth of this observation no harm was done by the recital. It is said that this statement chilled the blood, but that was the natural effect of the whole dreadful story, regardless of accompanying exclamations, whether made intelligently or as childish prattle.
Requests were made for instructions to the effect that there was no charge of killing with a razor, and" if there was a reasonable doubt whether death resulted from wounds with that instrument there could be no conviction. Without-considering the question of supposed variance here suggested, it is sufficient to say that the man was alive when attacked with the corn knife. With the assistance of his wife he had walked several yards from the place of the first encounter, talking by the way. He exclaimed “Don’t, Don’t,” when the corn knife was upraised to strike, and he died while being furiously slashed by that instrument. Even if the previous wounds were mortal, of which there was no proof, death was hastened by the new assault, which is sufficient to sustain the charge. (2 Bishop’s New Criminal Law, § 639; People v. Moan, 65 Cal. 532, 4 Pac. 545.)
In support of the defense of insanity the defendant called several medical witnesses to whom a hypothetical question was put, eliciting an answer, based upon the truthfulness of the hypothesis, that the appellant was insane when the fatal act was done. Doctor Uhls, on cross-examination, said he presumed it to be emotional insanity—might be a species of moral insanity; that emotional insanity did not necessarily have to do with crime. “On facts stated in that question it would have to be under some distinct classification as to the kind of insanity he was laboring under; that is what is commonly referred to as emotional insanity; he acts on the impulse; it comes quickly and goes quickly, usually.” Doctor Smith said: “Would say emotional insanity, . . . similar to what we sometimes refer to as irresistible impulse. It comes quickly and recedes quickly.” He also said that he was considering the predisposing element of heredity from testimony he had heard. Doctor Crawford said:
“It is my opinion that he was suffering from emotional insanity. . . . There is an element of heredity in it; probably heredity may be a partial cause for the insanity. ... I didn’t answer it (the hypothetical question) either in the affirmative or negative; there are several things in there that makes me say that man was insane; his conduct at the time, during the day, prior to his having committed this offense and at the time of the commission of the offense; the fact of his being despondent, and wanting a shotgun, and looking for a shell to shoot a steer; the fact of his folding and refolding his coat would show he was in a nervous condition; don’t know whether it was same condition as of man wavering as to whether he would commit murder or not; his mind would be very materially disturbed and might develop into emotional insanity ; he would be in a condition of mind where emotional insanity might develop at any time if opportunity presented itself; -could n’t say it would recede as quickly as it developed, but usually emotional insanity does n’t last a great while.”
Doctor Roby said in answering the question: “I think the man was very clearly insane.” On cross-examination, he testified that “based on that question this kind of insanity would be fairly termed emotional insanity, or impulsive insanity, or there may be several names applied to it; . . . insanity is not classified alike by all writers; it would be similar to what we call irresistible impulse . . . sometimes it is termed moral insanity.”
Doctor Packer answered the hypothetical question as follows:
“It is my opinion that from the time that the altercation took place to the time he was taken by Dr. Beam, he was violently insane, for some time before that time and for some time after, and he is still insane; I examined his mental condition yesterday; took very much time to it.”
On cross-examination the witness testified this was an outburst of passion, “as á result of melancholia; not exactly a brain storm, similar; not a case of paranoia exactly; one of the principal factors that leads me to believe he was insane at the time' was in that part of the transaction in which the struggle took place and they were separated and the attack was renewed; that was an insane motive; an insane act; it was without guidance, without thought, without direction; it was. abnormal, impulsive; it w;as acute rage; it was an extreme congestion of the cerebrum and the cerebellum, in which he had no control of his actions and no control of his thoughts; would n’t pretend to say how many kinds of insanity there are; there are very many. An insane condition is one in which the mental powers are not in normal balance; believe this is hereditary insanity; that element is embodied in the question.”
Doctors Roby and Packer testified -that they had ex amined the appellant the day before their testimony was given as to his mental condition, and were asked to state what that condition was. Objections were sustained. The appellant then offered to prove by these witnesses that he was insane at the time of the examination. The offer was excluded and the ruling is assigned as error. Before examining this objection it should be stated that Doctor Packer had already testified that he found the appellant insane on the previous day and a repetition of the evidence was unnecessary. The rejected offer of proof by Doctor Roby remains to be considered.
Ordinarily in determining the sanity of a person his mental condition before and for a reasonable time after-wards may be shown, as an aid to the jury in finding whether he was sane at the time when the act under consideration was done, and the evidence was admissible, the jury being instructed that from all the ¿vidence they must determine his mental condition at the time of the homicide. It does not follow, however, that'the judgment should be reversed because of this ruling. The opinions of the experts are in substantial harmony, to the effect that the insanity disclosed by the facts stated in the hypothetical question evinced emotional or moral insanity, or an irresistible impulse. One doctor, we have seen, refers to acute rage among the conditions of his mind.
It was said in The State v. Nixon, 32 Kan. 205, 4 Pac. 159:
“The law will hardly recognize the theory that any uncontrollable impulse may so take possession of a man’s fáculties and' powers as to compel him to do what he knows to be wrong and á crime, and- thereby relieve him from all criminal responsibility. Whenever a man understands the nature and character of an act, and knows that it is wrong, it would seem that he ought to be held legally responsible for the commission of it, if in fact he does commit it.” (p. 212.)
This principle was approved in The State v. Mowry, 37 Kan. 369, 376, 15 Pac. 282, and again followed in The State v. O’Neil, 51 Kan. 651, 33 Pac. 287, and The State v. Arnold, 79 Kan. 533, 100 Pac. 64. In the O’Neil case it was said:
“We are not willing to change the ruling of this court in favor of irresponsibility on account of uncontrollable impulse, where the perpetrator is fully conscious that the act he is doing is wrong and criminal. If the law as declared by this court does not offer sufficient safeguards and protection for ‘that most unfortunate class, who can not speak for themselves,’ an act of the legislature may establish a different rule. Until the legislature interferes, we prefer to follow the great weight of authority upon this matter. We are not inclined to adopt the theories of psychological enthusiasts to overthrow the long-established criminal practice in this class of cases, which is based on human experience from earliest times.” (p. 681.)
No one testified that the defendant did not have the mental capacity to understand the nature and quality of the act or to know that it was wrong. His mental capacity at the time of the act being the material question, the state of his mind some time afterwards was not important unless it tended to show its condition at that time. It is said:
“But in order to ascertain a person’s mental condition at the time of the act in question, it is permissible to receive evidence of the condition of his mind for a reasonable period both before and after that time, especially where it is claimed that his disorder is of a continuing or permanent character.” (16 A. & E. Encycl. of L. 614.)
It does not appear to have been claimed that the alleged mental malady of the appellant was of a continuing or permanent character, and the medical testimony tended to prove that it was not.
In Moore v. Commonwealth, 92 Ky. 630, 18 S. W. 833, in reviewing a ruling rejecting evidence of the condition of mind of the defendant after the homicide, the court said:
“To sustain this defense (insanity)- the evidence must of course show the party to have been insane at the time of the doing of the forbidden act. It is of course not sufficient to show that he was insane before or after; but if there be testimony, as there was in this instance, tending to show that his affection is of continuing or permanent character, then it is competent to prove his mental condition after as well as before the time when-the act was done.” (p. 635.,)
While in the case last cited the conviction was reversed because of the rejection of the testimony offered, it will be seen that it was because there was testimony tending to show that the malady was of a- continuing character. No such evidence was given in this case. On the contrary it appeared from the medical testimony that whatever the disorder or affection of the mind was at the time of the fatal act it was of a temporary, sudden, or impulsive nature, variously characterized as moral, emotional, or irresistible impulse. It was said in French v. The State, 93 Wis. 325, 67 N. W. 706, “That the acts, conduct, or declaration must be so connected with, or related to, or result from, the mental condition of the accused at the time the offense was committed, as to throw light upon or illustrate ;such condition, and possess some material and practical probative force, and, when taken in connection with other evidence in the case, tend to show that the defendant was insane at the time of the homicide.” (p. 342.) In that case the inquiry related to the condition of the accused four days after the homicide, and its rejection was held erroneous. It was held in The State v. Newman, 57 Kan. 705, 47 Pac. 881, that where insanity is interposed as a defense testimony of the defendant’s state of mind shortly before and after the, homicide may be received as tending to show his mental condition at the time. If it is apparent in any case, from the nature of the disorder or otherwise, that the evidence would not tend to show a condition claimed to exist at the time of the act in question, it could have no probative force with respect to the issue to be tried, and its rejection is not, in such a situation, prejudicial. The ruling complained of must be viewed not only in the light of the testimony already given in behalf of the defendant, showing the nature of the mental disorder claimed, but also in the light of the defense interposed. It was not claimed until this evidence was offered that the appellant was still insane, but only that he was insane when he killed Newfarmer. It should also be observed that there was no offer to prove that in the opinion of the witnesses the appellant did not have the capacity to know the nature or quality nf the act, or to know that it was wrong, but merely to show that he was insane. The sudden madness or mental disorder already testified to by the same witness not being continuous in its nature would have no necessary relation to his mental state at that time, and if any other or different phase or kind of insanity was claimed to exist the offer should have included it.
It is also argued that the evidence should have been received for another purpose, viz., to determine whether reasons existed for halting the trial and instituting proceedings to determine whether the appellant was then insane. (In re Wright, 74 Kan. 409, 89 Pac. 678.) This evidence was offered after the state had rested its case and a large majority of the defendant’s witnesses had given their testimony. At that stage of the trial it must be presumed- that counsel for the appellant had knowledge of the facts necessary to determine the nature of proceedings that should be taken on the part of appellant, and if an interruption of the trial to make an inquiry into his mental condition was deemed advisable they certainly would have taken some step, or made some request to that end. Nothing of the kind had been suggested before and no such suggestion was made then or afterwards. It is true that if the presiding judge from his own observation at the trial, or from the evidence, believed that reasonable grounds existed for making an inquiry to determine whether the appellant was then mentally capable of making his defense, it could have been- ordered without a formal application, but in the absence of a motion, or request of any kind, it must be presumed that the court in the exercise of a proper discretion found no cause to do so. There was no other showing of any facts or conditions to suggest an inquiry. If counsel intended to offer this testimony as a ground for abating or delaying the trial for such an inquiry, or if that was one of the purposes, the court should have been so informed, otherwise it was reasonable to suppose that it was offered upon the general issue. Doubtless the court so treated it, and it should be so treated here. The judgment should not be reversed upon a matter to which the attention of the trial court was not directed or its action invoked.
The abstract does not contain the hypothetical question asked of the expert witnesses. Assuming, however, that it correctly stated facts which the evidence tended to prove, it is insisted by the state that it did not include other facts showing motive. In the parts given in the brief of the state no statement appears of the improper proposal of the appellant to Mrs. Newfarmer and his conduct with reference to it. This was a material matter, which might lead to an understanding of his motive and the state of his mind.
Other objections to rulings upon evidence do not appear to require comment.
It is argued that the savage ferocity of the act affords proof of insanity, but whether proceeding from madness or malice, whether from an irrational mind or a mind aflame with malevolence, were questions for the jury. If merciless cruelty in killing another should always be ascribed to insanity when no mental disorder had preceded, then the ferocity of its perpetration might furnish immunity for the deed. Whether the means and circumstances of a homicide in connection with other evidence prove a mind diseased or one on fire with passion must be left to the. determination of a jury. The verdict in this case, approved by the trial court, is amply supported by the evidence, and, finding no rulings requiring a reversal, the judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
Mrs. Caroline M. Patterson was left a widow in 1907. For some years she and her husband had lived with the plaintiff, F. W. Glover, who was a nephew of her husband and who had a son Grover E. Glover. The property in .question had been used by Mrs. Patterson and her husband as their home for many years prior to the time they went to live with Mr. Glover. They had no children. After Mr. Patterson’s death Mr. Glover built a small house for Mrs. Patterson near his own residence in Thomas county, but after a time she desired to return to her former home upon the land in question in Pottawatomie county, and desired Grover E. Glover to come back and take care of her, and stated that he was to take care of her as long as she lived and he was then to have the place. She was between fifty-five and sixty years old and in poor health. The farm had been rented to a tenant who was residing thereon. On May 14, 1907, an “Article of agreement for maintenance” was entered into between Mrs. Patterson and Grover E. Glover, which provided, in substance, that she covenanted and agreed to furnish for the joint use and occupancy of the two the land in question, she to have the right to the use and occupancy and to make her home in the dwelling house,, maintain and keep house therein during her natural life, he to occupy and cultivate the real estate, keeping the same in reasonable repair, pay the taxes, treat Mrs. Patterson considerately and kindly, and suitably provide for her, and in lieu of clothing to pay her $100 a year on the first of each January, and maintain her in a comfortable manner in health and sickness according to her social situation and condition of life, and in consideration of such covenants and agreement and the fulfillment thereof on his part in good faith “The said Caroline M. Patterson, party of the first part, does hereby covenant and agree to and with the said party of the second part that at and upon her death this instrument shall stand for, convey and vest in the said Grover E. Glover, the fee simple title and estate in and to said real estate in the same manner, and to the same extent as if the said Caroline M. Patterson had theretofore upon a good and sufficient consideration, duly executed and delivered unto said Grover E. Glover a general warranty deed for said premises.” The instrument contained the further provision that if he should for any cause fail to perform any substantial part of his agreement during her life “Then in such event, this contract shall, at the option of the said party of the first part, cease and determine; and in such event, the said Grover E. Glover agrees to give the said party of the first part, peaceable possession of said premises, and in failing so to do, the said party of the first part shall have the right to recover the exclusive possession of said premises by action at law, and as the law provides in the courts of the state.”
When the agreement was first drawn it contained a clause that it should not go into effect until March 1, 1908, and that if either party should die in the meantime the contract should cease and no interest thereunder should pass in or to the real estate, but this provision was, at her instance, stricken out before signing. The instrument was acknowledged. After its execution Mrs. Patterson improved' in health and was up and around the house, but later became worse and died July 2, 1907. After her death the plaintiff’s son brought her body back to the old home and paid the doctor bills, funeral and other expenses. He after-wards conveyed to his father, who brought this action against the heirs of Mrs. Patterson to quiet his title. An agreed statement of facts contained the recital that at her death she owned the land in fee simple, and that the fee simple title descended to and vested in her surviving heirs at law, subject, however, to such right, title or interest as the plaintiff might already have acquired under the articles of agreement, or the deed thereafter made, and subject also to any debts owed by her at her death. The trial court held the agreement void and that the heirs were entitled to the property.
The plaintiff argues that the instrument disclosed an intention on the part of Mrs. Patterson to vest a present interest in the real estate in the plaintiff’s grantor, and that regardless of technical rules of con-' struction such intention should be given effect and control. The defendants insist that the instrument is testamentary in character and void for failure to comply with the statute regarding its attestation, or that it is an executory contract for future possession. We think the agreement itself and the statements shown to have been made by Mrs. Patterson indicate quite clearly her intention that in case he carried out his part of the contract during her life the property should then be his, but that it should be hers to all intents and purposes so long as she lived. She might havé conveyed the property to him and taken back an agreement for her support, or she might have contracted therefor and made or agreed to make a will leaving the property to him at her death, but what she did was to contract in the way already set forth, and it does not appear that any present estate passed; and if the instrument is testamentary in character it can not be upheld as a will for the reason that the statutory requirements touching execution and attestation were not complied with.
In Reed, Ex’r, v. Hazleton, 37 Kan. 321, 15 Pac. 177, the contract provided, among other things, that Ricket should retain full possession of the land during his lifetime and make such improvements as he felt able to make; that Hazleton should properly care for and see to his wants in health and sickness, Hazleton to have his home with Ricket, “and after the death of the said Henry Ricket, of the first party, the right and title of the north half of the northwest quarter . . . shall vest in the said John Hazleton, of the second party.” (p. 322.) This part of the contract was held to be testamentary, the rule being announced that if the instrument passes a present interest it is a deed or a contract, although the right of possession may not accrue until some future time,- but if it does not pass any interest or right until the death of the maker it is testamentary. Another case arising out of the same transaction is Hazleton v. Reed, 46 Kan. 73, 26 Pac. 450, in which the same rule is followed, the decisive question being whether or not the intention was to vest a present interest or that the instrument should not operate until the maker’s death. Lacy v. Comstock, 55 Kan. 86, 39 Pac. 1024, involved an instrument by which the grantor conveyed and warranted certain real estate, reserving, however, all the rents, issues and profits arising therefrom during his lifetime, and also the privilege and right to dispose of the land, the. instrument expressing that in all other respects it should be a deed of conveyance absolute. It was held that the grantor might thereafter bequeath to another the use of the lands and the rents and profits for a period of time extending two years after his death, and it was said that -it was plain that the transfer was not to be effected until the grantor’s death. In Love v. Blauw, 61 Kan. 496, 59 Pac. 1059, the instrument purported to grant, bargain, sell and convey certain land, but contained the subsequent provision that the estate therein was not to vest in the grantees and their heirs until the death of one of the grantors, she reserving to herself a life estate, the grantees to hold after her death. This was held to be a deed and not testamentary, and it was said that it conveyed a present interest but postponed the enjoyment thereof until the death of one of the grantors. Powers v. Scharling, 64 Kan. 339, 67 Pac. 820, involved a writing held to be in part a contract and in part testamentary. The contract portion was to the effect that the grantor created, conveyed to and vested in his daughter a present interest and estate in and to all the estate of which he was then or should at the time of his death be seized to the extent of one-half thereof, subject to the payment of certain debts and legacies and also to a life estate in the grantor. In Durand v. Higgins, 67 Kan. 110, 72 Pac. 567, a warranty deed contained full covenants which would, standing alone, convey -an absolute title in fee simple, but also took back from the grantees, as a part of the transaction, an agreement whereby they covenanted not to sell or dispose of any of the granted premises during the lifetime of the grantor without his written consent, and that all of such property should be under his control and direction during his life, with the right to sell and convey it the same as though no deed had been given, and agreeing that the grantee should sign all deeds when so requested by the grantor. It was held that the granting clause being complete and free from ambiguity it was not destroyed by the subsequent repugnant provisions, although the court came to the conclusion that by the entire transaction the grantor intended to convey a present interest. It was held in Vawter v. Newman, 74 Kan. 290, 86 Pac. 135, that the intention of the grantor or donor should be determined from the in strument and from the relationship of the parties and the apparent purpose sought to be accomplished. There the instrument was called an indenture, and by its terms granted, bargained, sold and conveyed certain described real estate to the grantee to hold forever to the grantee during his natural life and after his death to his children. The court said that looking at the deed in this view no doubt was entertained that the donor intended to convey a life estate with the remainder to the' children of the grantor. In Pentico v. Hays, 75 Kan. 76, 88 Pac. 738, an instrument in the usual form of a warranty deed but with a reservation in the habendum, “except a lifetime lease on said land, in three days after the said party of the first part is deceased this deed shall be in full force” (p. 77), was held to be a deed and not a will, the exception being considered as a reservation of a life estate. Here, as in all the other cases referred to, the effort was to reach the real intention of the person executing the instrument. With the same purpose in view we can not easily go astray by following the natural meaning of the language used in the article of agreement for maintenance now under consideration, the effect of which has already been indicated.
Counsel cite Brady v. Fuller, 78 Kan. 448, 96 Pac. 854. There .the instrument in the form of a deed conveyed land and reserved a life estate in the grantor, and following this reservation contained another giving the grantor the power to mortgage, incumber, sell, lease, convey or otherwise dispose of the real estate. The habendum clause contained a recital and condition that if the grantee should die before the grantor, then the estate should revert to the latter as if the deed had not been made. This was held to be a deed conveying a present title subject to a‘ life estate in the grantor, the subsequent reservation being regarded as a power to incumber or dispose of such life estate. Attention is also,called to Nolan v. Otney, 75 Kan. 311, 89 Pac. 690, involving a warranty deed placed in the hands of a third person, to be delivered to the grantee at the death of the grantor, and providing that it should not take effect until such death, also reciting that it was understood that the grantee should care for the grantor during the remainder of his life. On the day before the grantor’s death he gave instructions to delivér the deed after his death provided certain trifling conditions should be complied with, which was done, after which the deed was delivered. After careful consideration the court reached the conclusion that the real purpose, though not expressed in correct terms, was to vest a present title in the grantee, reserving only a life interest.
Plaintiff calls attention to the case of Bless v. Blizzard, 86 Kan. 230, 120 Pac. 351, and suggests that the rule therein announced is applicable here. But in that case the plaintiff not only agreed to stay with and care for the testator, and did care for him faithfully under the most trying circumstances for several months, under an agreement that a will should be left leaving the land to him, but a will was actually made, although afterwards at the instance of other interested parties it was revoked. It was held that having entered into' the contract, and having carried it out so far as he was able during the remaining life of the other party, the plaintiff was entitled to recover, his services being a fair consideration for the land. In Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743, the rule was stated that when a definite contract leaving property by will has been clearly and certainly established and there has been performance on the part of the promisee, equity will grant relief, provided the case is free from obj ection on account of inadequacy of consideration and there are no circumstances or conditions which render the claim inequitable. Had the plaintiff’s son moved upon the land with Mrs. Patterson and carried out his part of the contract for such reasonable time as to amount to a reasonable consideration for the property, equity would uphold the agreement as one to leave the property to him at her death. But her death occurred before the lease of the tenant then in possession had expired and before any removal was made to the land, and so far as the record shows before any services were rendered by the young man, except some assistance of other members of the family in caring for her. The fact that he brought her remains to the old neighborhood and paid the doctor bill and funeral expenses may entitle him to recover what is fairly due him from her estate, but we know of no rule of law or' decision which would justify the court in holding that the title to the land vested in him or in his grantee.
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The opinion of the court was delivered by
Burch, J.:
The plaintiff sued the defendant for damages for failure to furnish cars ordered for the shipment of hay, and for the penalty affixed for violation of the reciprocal demurrage law. (Gen. Stat. 1909, § 7203.) A verdict was returned for the defendant, which the court set aside, and the defendant appeals from the order granting a new trial.
The motion for a new trial contained several grounds, one of which was that the verdict was contrary to the evidence. The record does not show on what ground the motion was sustained. Under the long-settled practice it will be assumed' that the court was not able to reconcile the verdict with what it regarded as the true weight of the reliable testimony. Although the jury, while in possession of the case, were the exclusive judges of the credibility, weight and effect of the evidence, when the trial judge was called upon to consider the motion for a new trial it was essential that he should be satisfied with the verdict or else sustain the motion.
A motion for a new trial on several grounds has the effect of a separate motion on each ground, and in justice to litigants the trial judge should state frankly upon the record, when granting a new trial, the specification or specifications of the motion that are sustained and those that are overruled. If this were done the litigation would be ended, in many cases, by an appeal to this court. In this case a suggestion comes from outside the record that the new trial was probably granted because the court was of the opinion that certain important evidence had been wrongfully received, and for no other reason. If the record disclosed that such was the fact a new trial would not be necessary since, as will appear later, this court is of the opinion that the evidence was properly admitted. In most in stances a blanket ruling is quite unfair, and justice would be promoted if the practice suggested were generally adopted.
The defendant claimed it could not comply with the plaintiff’s demand for cars for causes which could not be avoided by the use of reasonable foresight and diligence. (Gen. Stat. 1909, § 7201.) In support of this claim evidence was introduced tending to show an abnormal rush of business and congestion of traffic in the month of October, 1911, when the plaintiff’s requisitions were made. (Milling Co. v. Railway Co., 82 Kan. 256, 263, 108 Pac. 137.) A portion of this evidence consisted of two tables, summarizing the total number of loaded cars moved on the defendant’s lines in each month from July, 1905, to January, 1912, and the total number of cars of revenue freight loaded, locally for the same period. In each instance the figures for the month in question were far above those for any other month, proximate or remote, in the series. The summaries were contained, in a book produced by the defendant’s superintendent of transportation, who had charge of the movement of traffic, passenger and freight, and the disposition of cars and engines. He testified that at the close of each month’s business a record was made of it, in the form presented, for the use of the officers and employees of the railway company, that the book was a record of his office and that the condensed matter it contained was correct and was compiled under his supervision by his office force from information derived from various sources, including reports of division superintendents and others,” telegrams, and even communications from local agents. It is claimed by the plaintiff that the admission of this evidence, over objection, constituted error of law which warranted the court in setting aside the verdict.
The evidence was clearly material and it was manifestly impossible to produce in court the mass of data summarized, either for consideration by the jury or for purposes of cross-examination. If the original memoranda could have been resurrected, identified and offered the items would have been too numerous and diverse for the jury to deal with intelligently. It would have been necessary to epitomize the information afforded before its probative value could be, comprehended, and the genuineness of the tabulation presented could be fairly tested by cross-examination of the witness under Whose supervision it was made. The general rule dispensing with the production of voluminous or multifarious documents when impracticable is discussed in 2 Wigmore on Evidence, § 1230, as follows:
“Where a fact could be ascertained only by the inspection of a large number of documents made up of very numerous detailed statements—as, the net balance resulting from a year’s vouchers of a treasurer or a year’s accounts in a bank-ledger—, it is obvious that it would often be practically out of the question to. apply the present principle by requiring the production of the entire mass of documents and entries to be perused by the jury or read aloud to them. The convenience of trial demands that other evidence be- allowed to be offered, in the shape of the testimony of a competent witness who had perused the entire mass and will state summarily the net results. Such a practice is well established to be proper. Most Courts require, as a condition, that the mass thus summarily testified to shall, if the occasion seems to require it, be placed at hand in court, or at least be made accessible to the opposing party, in order that the correctness of the evidence may be tested by inspection if desired, or that the material for cross-examination may be available.”
This court has lately applied the rule against a railway company in an action prosecuted under the reciprocal demurrage law.
“Another contention is that the count erred in admitting hearsay testimony by a Mr. Smith, manager of the plaintiff corporation, as to the amount of grain he had on hand to fill the cars, etc., which it was claimed was not within his -personal knowledge, but was derived from the books of the company, reports of subordinates, etc. If the rule contended for by the appellant is cor-' rect, it would render it impossible in the management of large concerns to furnish evidence concerning many of the affairs of the company unless bits of paper, upon which workmen jot down memoranda of their doings, were preserved and verified by their evidence. We can not enforce such a rule.” (Grain and Lumber Co. v. Railway Co., 85 Kan. 281, 287, 116 Pac. 906.)
The data upon which the summaries in question were based assembled in one form or another before the superintendent of transportation as necessary information for his management of the defendant’s traffic, and the fact that he did not personally compile the final records does not detract from their competency as evidence. (Darling v. Railway Co., 76 Kan. 893, 898, 93 Pac. 612; 2 Wigmore on Evidence, .§ 1530.)
Sometimes tables of statistics relating to corporate affairs are too indefinite, incomplete or general, or are otherwise too untrustworthy to furnish a safe basis for inference. (See Tucker v. Railway Co., 82 Kan. 222, 108 Pac. 89.) In a clear case the court ought not to permit the jury to be confronted with them. In this instance the good faith of the record offered and the credibility of the witness who assumed responsibility for it were properly left to the jury.
The court is of the opinion that there was sufficient evidence to go to the jury on the question whether or not the plaintiff had on hand at the time demands for cars were made the amount of hay necessary to load them.
The judgment of the district court is affirmed. | [
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Per Curiam:
Grant Spiker, who owned and operated a. hotel at Caldwell, was convicted of several sales of intoxicating liquors and also for maintaining a nuisance. He challenges the sufficiency of the testimony, but it is found to be ample to show that some sales were made by appellant directly and also to connect him with those made by the porter of the hotel. The fact that purchases were made by persons seeking to ascertain if appellant was engaged in the unlawful sale of intoxicating liquors constitutes no defense to the charge nor does it render the testimony incompetent. The weight of their testimony was a question for the jury. As to the matter of interest in the prosecution it appears that these witnesses were not employed as detectives and had no pecuniary interest in the result. The court, in its general charge, advised the jury that in determining the credibility of a witness they might consider his bias and prejudice, his interest in the result or any circumstance which would affect his credibility, hence there was no error in refusing the special instruction on that subject requested by appellant. There Was no. reason to specially caution the jury as to the testimony of the two principal witnesses in behalf of the state. No error was committed in the admission of testimony.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason J.:
William Stephenson sued a street railway company for damages alleged to have been occasioned by its having so constructed its track in the .street in front of three lots owned by him, as to cut off his access thereto. A demurrer to his evidence was sustained and he appeals.
There was evidence showing, or tending to show, these facts: The middle of the street in front of the .plaintiff’s property is macadamized, and to avoid interference with this paving an ordinance provided that The track should be run on the side of the street, near to the curbq the track is laid within a few inches of the curb line and in some places extends inside of it; some surfacing has been done with cinders on the outside of the rails, but there is no filling between them; a wagon can not be driven up next to the curb, although it might be backed up to it by crossing the rails .squarely; the curb line is seventeen and a half feet from the lot line; the surface of the plaintiff’s lots is about twelve feet above that of the street; the ground is cut away so as to slope from the lot line to about three feet inside of the curb line; in front of the plaintiff’s house a flight of steps descends the slope to the street; the lots abut on no other street, but there is. an alley in their rear.
There was some evidence which, under a favorable-construction, warranted an inference that the car track in its existing condition prevented the driving of a vehicle up to the curb line. It was weak and inconclusive, and the plaintiff testified that his grievance-against the company was based upon matters' having-no connection with that aspect of the case. The judgment might be affirmed if it were based upon the view that the track did not substantially obstruct the bringing of vehicles to' the curb line. But the theory of the trial court seems to have been that such an obstruction did not constitute a denial of access to the property. The ground of the ruling was thus stated:
“The ability to use this property, to get to it and come away from it, has not changed from what it. was before the street car track was put there, that is,, before the street car track was laid the plaintiff was not able to use his right to go to and from the property, except as a pedestrian, and his ability to use it now-in that manner still exists and has not been abridged. The court is of the opinion that the plaintiff’s right, of ingress to and egress from, or ability to use the property, has not been changed by the laying of the-street car track, and unless his right in that respect has been disturbed then there is no liability on the-part of the company, and if there is no liability there is no necessity of proving any amount of damages.”'
Although a car track is laid in the street in accordance with permission granted by the-public authorities, if it is so constructed as to cut off an abutting owner' from access to his property, from ingress thereto and egress therefrom, he is entitled to damages from the company maintaining it. There are decisions to the-contrary, but the weight of judicial opinion supports this view, which is in accordance with previous ex- (piressions of .this court. In C. B. U. P. Rld. Co. v. Twine, 23 Kan. 585, it was said:
“While a railroad company may, when licensed by "the proper authorities, occupy a street or alley with its track, yet if ... it ... so lays its track as to permanently obstruct access to an adjoining lot, .. . . the lot owner may recover damages therefor.” (Syl. ¶ 1.)
While under the facts of the case the rule was found not applicable it was thus stated in K. N. & D. Rly. Co. v. Cuykendall, 42 Kan. 234, 21 Pac. 1051, 16 Am. St. Rep. 479:
“To entitle a person owning lots abutting on a city .street along which a railroad company has constructed and is operating its line by authority of the city council, to recover damages, there must be such a practical obstruction of the street in front of- the lots that the ■owner is denied ingress to and egress from them.” (Syl.)
Cases bearing more or less directly on the subject are collected in notes in 2 A. & E. Ann. Cas. 535, 536; 43 L. R. A. 554; 25 L. R. A., n. s., 1267, 1278; and 38 L. R. A., n. s., 673, 764. The note last cited is very elaborate, filling 165 pages of the work referred to, and covering every phase of the abutter’s right to compensation for railroads in streets. See, also, Foster Lumber Co. v. Arkansas Valley & W. Ry. Co., 20 Okla. 583, 95 Pac. 224, 30 L. R. A., n. s., 231, and cases there cited.
The trial court seems to have acquiesced in this rule, which we do not understand to be controverted by the defendant, but was apparently of the opinion that the plaintiff’s right of access, and of ingress and egress, was not affected unless he was prevented from driving so as to pass from the street to the lots and from the lots to the street. We think the right of access to the property, of ingress thereto, and egress therefrom, includes the right to use the street for bringing a. vehicle up to the curb line, even although that can not, in any event be crossed—the right to get to the property by the ordinary means of conveyance. The elevation of the plaintiff’s lots prevents any driving upon them from the street at this time. The construction of a driveway admitting of this seems unlikely, although doubtless possible. Still the plaintiff has the right to drive upon the street to and from the point of contact with his lots, and if the exercise of this right is prevented by the car track he is entitled to recover damages therefor, measured by the diminished value of the property so occasioned. A number of the cases cited in the note in 36 L. R. A., n. s., 764 et seq., illustrate that an interference with the approach to property from the street on which it abuts constitutes an obstruction to access thereto. It is obvious that a car track might be so laid as to interfere with access to a business block, and in a sense with ingress thereto and egress therefrom, although there might be no possibility under any circumstances of driving a conveyance into it.
At the present time all but three feet of the space between the curb line and the lot line is covered by the sloping bank. Therefore, even if no car track had been laid, the plaintiff could not now drive upon the street (using that term as including the parking and sidewalk) to a point of actual contact with his lots. This condition is not necessarily permanent. But the plaintiff’s right of access includes the right to drive upon the portion of street adapted and set apart to that kind of travel, to the curb line in front of his property. He is not required to take into account the possibility of driving upon the parking or sidewalk.
The plaintiff’s right- of recovery is not affected by the fact that he had access to his lots by means of the alley in their rear. In K. N. & D. Rly. Co. v. Cuykendall, 42 Kan. 234, 21 Pac. 1051, 16 Am. St. Rep. 479, it was said that no recovery could be had for the ob struction of access from one street to a corner lot, because it was accessible from the other, but this was disapproved in Ft. S. W. & W. Rly. Co. v. Fox, 42 Kan. 490, 496, 22 Pac. 583. See, also, L. N. & S. Rly. Co. v. Curtan, 51 Kan. 432, 33 Pac. 297 and note, 36 L. R. A., n. s., 772.
The judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Greene, J. :
The appeal in this case is from a judgment of conviction and sentence by the district court of Finney county for petit larceny. It is contended that the court below erred in refusing to give certain instructions; in giving others objected to by the appellant ; in overruling a motion for a new trial, and in rendering judgment and pronouncing sentence upon him.
The state resists the consideration of this cause by , this court on the ground that it has no appellate jurisdiction in misdemeanors. If this be true, the only judgment that could be remjered WOuld be a dismissal of the action. The argument is that section 1 of chapter 278, Laws of 1901-, does not confer on this court jurisdiction in appeals from conviction in misdemeanors, but provides that it shall not have jurisdiction of such cases. In so far as such act has any application to the question under consideration, it reads as follows r
“The supreme court may reverse, vacate and modify a judgment of a district court or other court, of record, except a probate court for errors appearing on the record and in the reversal of such judgment or order may reverse, vacate or modify any intermediate order involving the merits of the action or any portion thereof. The supreme court may also reverse, vacate or modify any of the following orders, of a district court or other court of record, or a judge thereof, except a probate court: (1) A final order. (2) An order that grants or refuses a continuance ; discharges, vacates or modifies a provisional remedy ; that grants, refuses, vacates or modifies an injunction ; that grants ■or refuses a new trial; or that confirms or refuses to confirm the report of a referee, or that sustains or ovei’rules a demurrer. (3) An order that involves the merits of an action or some part thereof, but shall have no jurisdiction unless the amount or value in controversy exclusive of cqsts in civil actions exceeds one hundred dollars and in misdemeanors. And in cases involving the tax or revenue laws, or the title to real estate, or an action for damages in which ■slander, libel, malicious prosecution or false imprisonment is declared upon, or the constitution of this state, or the constitution, laws or treaties of the United States, and when the judge of the district or superior court trying any case involving less than one hundred dollars shall certify to the supreme court that the case is one belonging to the excepted classes.” (Gen. Stat. 1901, §5019.)
The contention of the state is that the clause limiting the jurisdiction of this court in civil actions includes within it appeals from convictions in misdemeanors ; that it is a positive denial of the jurisdiction of this court in such cases.
The different subjects of subdivision 3 of said act are inaccurately arranged. The limitation placed upon the jurisdiction of this court in civil actions is «disconnected from its qualifying clauses by the words “and in misdemeanors,” without reference to the unity of the sentence, and the clause is abruptly -ended by a period before,the sentence is completed. The whole is ungrammatical and would be unintelligible were it not for certain well-known rules of construction. In the interpretation of a statute the object to be sought is the true intention of the legislature. This should be found in the language itsfelf, if possible, and the statute should be read and interpreted according to its grammatical sense, unless it is clear that its author intended something else. This, however, is only one rule of construction. If this fails, or if the act is so ungrammatical as not to make §ense, we should adopt some other. That part of the statute which causes trouble is not only ungrammatical, but it is illogical in its arrangement.
Mr. Sutherland, in, his work on Statutory Construction, section 260, says:
“Legislative enactments are not any more than any other writings to be defeated on account of mistakes, errors, or omissions, provided the intention of the legislature can be collected from the whole statute. . . . Where one word has been erroneously used for another, or a word omitted, and the context affords the means of correction, the proper word will be deemed substituted or supplied.”
In the interpretation of statutes, the court will arrange and substitute, if necessary, to make the meaning clear. (Hamilton v. Steamboat R. B. Hamilton, 16 Ohio St. 428; Allen v. Russell, 39 id. 336.)
In Shriedley v. State of Ohio, 23 Ohio St. 130, 140, and in Albright v. Payne, 43 id. 8, 1 N. E. 16, it was said that, “in construing a statute, punctuation may aid, but does not control unless other means fail; and in rendering the meaning of a statute, punctuation may be changed or disregarded.” This rule has been adopted in this state. (Brook v. Blue Mound, 61 Kan. 184, 59 Pac. 273; Landrum v. Flannigan, 60 id. 436, 56 Pac. 753.)
Another rule of interpretation is that other statutes inpari materia may be examined for the purpose of ascertaining the intention of the legislature. Our statutes have always provided for appeals in misdemeanors, if not to this court, to other courts of appeal, for which provisions have been made from time to time. Prior to 1895 our statutes provided for appeals in misdemeanors to this court. By chapter 96, Laws of 1895, the courts of appeals were created, and by section 9 of that act said courts were given exclusive appellate jurisdiction in all cases of misdemeanors. Immediately after the expiration of that court by limitation, the legislature passed the act in question, attempting to restore the jurisdiction of this court over some, if not all, the cases of which it had been deprived by the act of 1895. After the passage of the latter act, and until the passage of the act in question, this court did not exercise jurisdiction in appeals from conviction in misdemeanors ; in fact, in every instance where it had been attempted to invoke its jurisdiction in such cases it has been denied. This was the settled law when the act of 1901 was passed.
To support the contention of the state, that this act expressly provided that this court should not have jurisdiction in such cases, would be to charge the legislature with having enacted an absurdity. It must be presumed that the legislature knew what the law then was, and if did not intend to confer jurisdiction on this court, in appeals from convictions in misdemeanors, it would not have referred to the subject at all. The only reason that can be offered for its reference to misdemeanors in the act is to authorize an appeal in such cases to this court. We think that is what was intended by this act, and it may be so read without doing violence to the rules of interpreta tion or construction. By placing a period after the word “dollars,” and a comma after the word “misdemeanors,” the sentence would then read :
“An order that involves the merits of an action or some part thereof, but shall have no jurisdiction unless the amount or value in controversy exclusive of costs in civil actions exceeds one hundred dollars. And in misdemeanors, and in cases involving the tax or revenue laws, or the title to real estate,” etc.
This would make sense and express the evident intention of the legislature. The statute will be so read. The motion to dismiss is overruled.
The first assignment of error by appellant is that there was a- fatal variance between the information and proof, and that for this reason the court erred in not instructing the j ury to acquit the appellant. The charging part of the information is that the appellant and others “did then and there wilfully, intentionally, unlawfully and feloniously steal, take and carry away one certain G. W. Wells make, heavy, new cowboy saddle; then and there of the value of thirty-five dollars.” The proof was that, while the saddle had been well cared for, it had been in use about two years. This, it is claimed, did not meet the allegation that the article was a new saddle. This court cannot say, as matter of law, that there was a variance between the allegation and the proof. The word “new” is a comparative expression and, as applied to the article stolen, in its generally accepted sense, may have been correct. There are other terms used descriptive of the article stolen more definite than the word “new.” It is said in the information that the saddle stolen was a “heavy saddle,”a “cowboy saddle,” a “G. W. Wells make.” These words definitely describe the article alleged to Laye been stolen, and tbe proof corresponded with these descriptive words.
The court instructed the jury concerning the presumptions arising from the possession of recently •stolen property :
“You are instructed that possession of the fruits ■of crime recently after its commission is prima facie ■evidence of guilty possession; and, if unexplained either by direct evidence or by the attending circumstances, or by the character and habits of life of the possessor or otherwise, it is taken as conclusive. Of course, it must be so recent after the time of the larceny as to render it morally certain that the possession could not have •changed hands since the larceny.”
This instruction cannot be sustained. Neither the ■possession nor unexplained possession of the fruits of a recent larceny is, as matter of law, conclusive evidence of the guilt of the possessor. They are facts which may be introduced in evidence, and it has been held by this court that, if the possession is immediate after the commission of the crime and unexplained, it is prima facie evidence of guilt, but nowhere have we been able to find an authority for saying, as matter of law, that it is conclusive. The unexplained pos•session of a subject of a recent larceny is prima facie evidence of the guilt of the accused, and is sufficient to authorize the jury in finding a verdict of guilty, but, as in all other circumstances, the jury is the exclusive judge of its conclusiveness.
Error is also predicated on the following instruction :
“You are further instructed that the evidence of previous good character is competent in favor of the party accused of a crime, as tending to show he would not be likely to commit the crime alleged against him ; and in this case, if you believe from the evidence that, prior to the commission of the alleged crime, the defendant had always borne a good character for honesty and a law-abiding citizen among his acquaintances, and in the neighborhood where he lived, then it is a fact proper to be considered by you, with all the other evidence in the case, in determining the question whether the witnesses who have testified to facts tending to criminate the defendant have been mistaken, or have testified falsely or untruthfully ; and if, after a proper consideration of all the evidence in the case, including that bearing upon his previous good character, you entertain any reasonable doubt of the defendant’s guilt, then you should acquit him.”
The last part of the instruction is specific, and directs the attention of the jury to this character of evidence and its office. It was the evident intention of the court to inform the jury that when they should come to consider the question of whether the witnesses for the prosecution who testified to facts tending to criminate the defendant were mistaken or testified falsely, they might consider the evidence of previous good character; and that the evidence went only to the question of whether the witnesses for the prosecution were mistaken or wilfully falsified.
Evidence of previous good character is affirmative, and the better rule is that, in every prosecution where guilty knowledge or intention is of the essence of the crime, however conclusive the evidence of such guilt may appear, the defendant may introduce evidence of previous good character. Experience teaches us that one whose previous life has been one of rectitude and honesty is not likely to commit a crime. There are exceptions, but they are only exceptions. Evidence of previous good character goes to meet every phase of a case involving the guilty knowledge or intention of a defendant, and should be considered by the jury in determining whether it is probable that the defendant is guilty; nor is such evidence confined to refuting the case made by the state, but, as in this case, where the defendant takes the witness-stand in his own behalf, evidence of previous good character is most important, and it was highly proper that the jury should (and no doubt would, if permitted) consider this evidence in determining his credibility and the weight to be attached to his testimony. This instruction deprived the defendant of these rights and is erroneous.
The judgment of the court below is reversed,
Johnston, Smith, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Doster, O. J. :
Ole E. Ladd was administrator of the estate of Hans Johnson, deceased. He was cited by the probate court to make final settlement of his trust. He filed his final report and gave notice of a time for making final settlement. November 30,1892, an order for final settlement was made. It is not clear that that was the day for which settlement was notified. The court found the sum of $526 to be in the administrator’s hands, and ordered distribution of it to be made to the heirs. February 13, 1893, Ladd procured the probate court to make an order setting aside the previous order of final settlement and allowing him to make such settlement anew. March 1, 1893, a second order of final settlement was made, and the balance remaining in the hands of the administrator adjudged to be only $134. In January, 1895-, Mai’y Nystol, as administratrix of the estate of Bertha Nystol, deceased, one of the heirs of Hans Johnson, filed her petition in the district court to set aside the order of February 13, vacating the first order of final settlement, and also to set aside the second order of final settlement, and, in addition, for a money judgment for her distributive portion of the estate, upon the ground that such orders were procured by the fraud of Ladd, the administrator, and without notice to the heirs of Hans Johnson. A demurrer to the petition for insufficiency of facts was overruled, and from the order overruling it error has been prosecuted to this court.
If the allegations of the petition state a case of fraud the action can be maintained; otherwise it cannot. The case of Gafford, Guardian, v. Dickinson, Adm’r, 37 Kan. 287, 15 Pac. 175, authorizes actions in equity in the district court to annul orders of final settlement in the probate court, when fraudulently procured in that court. However, the petition in this case did not state a case of fraud. Assuming that the heirs of Hans Johnson were entitled to notice of the application for the orders complained of, the mere fact that they were not notified did not constitute fraud. It was not averred in the petition that notice was fraudulently withheld from them. The allegations of fraud in the petition as to the procurement of the order of February 13, vacating the first order of final settlement, were that the administrator, Ladd, stated in his application to the probate court to set aside such order of final settlement “that the final settlement made on the 30th day of November, 1892, had been made without any notice to him, and that he was not present when said final settlement was made, and that he had no knowledge whatever of the same ; that the statements made in said pretended application were false and untrue ; that in truth and in fact said Ladd knew that said final settlement was to be made on said date.” The allegations of fraud as to the procurement of the second order of final settlement, made March 1, 1893, were as follows: “That said Ole E. Ladd at that time imposed upon the court and filed an exorbitant bill for his services as administrator, to-wit, $625, and procured an order from said court allowing said sum ; that in truth and in fact the services rendered by said Ladd as administrator of said estate were not of the value of $625, and were not worth to exceed $150, and this fact plaintiff can show by competent evidence.” Elsewhere in the petition it was averred as follows : “That the pretended order made on the 13th day of February, 1893, setting aside the final settlement of November 30, 1892, and the pre tended judgment, order and supplemental settlement made on the 1st day of March, 1893, were obtained through the fraud of Ole E. Ladd, and were without warrant of law and contrary to law.” Elsewhere in the petition it was also averred : “That said pretended final settlement was obtained by said Ole E. Ladd through the false and fraudulent statements made as aforesaid by said Ole E. Ladd, and the same were made for the purpose of wronging, cheating and defrauding the heirs of said Hans Johnson, deceased.”
It will be observed that the last two of the above-quoted allegations of fraud were of the most general character. No specific facts and circumstances were stated in them, and therefore no issue was presented by such parts of the petition. The decisions are full to the effect that general averments of fraud and illegality, without stating the facts upon which the charges are based, present no issue, and evidence thereunder is not admissible. (The State, ex rel., v. Williams, 39 Kan. 517, 18 Pac. 727; K. P. & W. Rld. Co. v. Quinn, 45 id. 477, 25 Pac. 1068; Cohn et al. v. Goldman, 76 N. Y. 284.)
It will be observed that the grounds of fraud stated in the petition to set aside the order of the probate court of February 13, 1893, vacating its. previous order of final settlement were that Ladd had falsely claimed that such order of final settlement was made without notice to him. That order of February 13 was not an order of final settlement; it was an order vacating an order of final settlement; it was interlocutory in its nature ; it reopened the administration of the estate, and was not an adjudication which concluded anybody interested in the estate. It was not .an order with the making of which equity has to concern itself, because, admitting it to have been fraudulently procured, it concluded nothing. It still remained for the administrator to prove the justness of his accounts, and for the heirs or other adverse parties to oppose their allowance. It is enough for the district court to relieve a suitor in the probate court from that adverse and otherwise irremediable consequence which is involved in an order of final settlement fraudulently obtained, without interfering with the tentative and provisional orders made during the course of the administration.
It will be observed that the only specific allegation of fraud as to the .procurement of the final order of settlement of March 1, 1893, was that the administrator “at that time imposed upon the court and filed an exorbitant bill for his services as administrator, to wit, $625, and procured an order from said court allowing him said sum,” etc. This is not an allegation of fraud. Fraud cannot be predicated of the mere procurement by order of court of an exaggerated sum for services rendered. It will be observed that the petition did not allege that the administrator falsely claimed that he had performed services which in fact he had not performed, but it was only alleged that his charges for services were exorbitant in amount.
The petition utterly failed to state a cause of action. The judgment of the court below is reversed, with directions to sustain'the demurrer.
Smith, Ellis, Pollock, JJ., concurring. | [
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'The opinion of the court was delivered by
Pollock, J.:
The defendant in error commenced this action to recover from plaintiff in. error the sum ■of $500, alleged to be due by the terms of a written •contract, a copy of which was attached to the petition. The latter answered, setting up various matters of account growing out of transactions between himself and plaintiff out of which the written contract arose. He demanded a reformation of the contract,, an accounting, and judgment against plaintiff. The plaintiff replied at length, alleging the contract to be-so vague, uncertain, misleading and mistaken in terms that the same should be set aside and canceled • and demanded, in the alternative, that the contract be set aside and canceled and a general’ accounting had between the parties, or, if this relief should not be granted, judgment as prayed in the petition. Upon the trial the plaintiff demanded and was awarded a jury. The plaintiff had verdict and judgment thereon, and defendant brings error.
The principal ground of error relied on by counsel for plaintiff in error to work a reversal of the judgment is that, as the issues raised by the answer and reply filed thereto are of equitable cognizance, the trial court committed error in awarding the plaintiff a jury trial, and in not dismissing the action upon plaintiff’s making demand for a jury. With this contention we do not agree. In cases of equitable cognizance a jury trial is not a matter of right, and the better practice is not to award a jury, yet, the court, sitting as a chancellor, may, at his discretion, upon demand, or upon his own motion, call a jury to pass on any or all-disputed questions of fact, and error will not lié, unless for an abuse of "such discretion. (Maclellan v. Seim, 57 Kan. 471, 46 Pac. 959; Drinkwater v. Sauble, 46 id. 170, 26 Pac. 433.) In such cases, however,the findings of the jury are largely advisory to the court, and the court may adopt them or set them aside, in whole or in part, or may make new or addi tional findings from the evidence as the same may warrant. (Beach, Mod. Eq. Pr. § 666.)
The further contention is made that the contract upon which plaintiff below based .his right of recovery is void on grounds of public policy. The contract discloses no such invalidity upon its face. No ■such infirmity was asserted in the trial court. On the contrary, the defendant below expressly affirmed the validity of this contract and asked a reformation of its terms.
Perceiving no error in the record, the judgment is affirmed.
Cunningham, Greene, JJ. concurring. | [
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Error from Cowley district court. | [
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The opinion of the court was delivered b>
Ellis, J. :
The claim that section 26, chapter 43, Laws of 1891 (Gen. Stat. 1897, ch. 18, §47), inhibits-the bringing of an action against a bank after the appointment of a receiver to wind up its affairs, is untenable. The general rule is that so long as the corporation over which a receiver has been appointed has not been dissolved, and no order of injunction exists restraining suits against it,, it may be sued and defend in its own name. (20 A. & E. Encycl. of L. 254, and cases cited under subtitle “Corporations”; High, Rec. §258; St. Jos. & D. C. Rld. Co. v. Smith, Treasurer, 19 Kan. 225; Bank v. Sewing Society, 28 id. 303; Sleeper v. Norris, 59 id. 555, 53 Pac. 757.)
The amendment made to the return accorded with the facts, and however irregular the rendition of the judgment on the original return or the making of the qx parte amendment thereto may have been, the judgment was not void for either reason, nor were the orders for execution void, because only one motion was filed for execution against several of the stockholders of the bank. The nptices served on the stock-, holders were separate, and the mere fact that the motion asked for the same relief against other stockholders than the one named in a given notice could nowise prejudice his interest. It was, in effect, a misjoinder of parties defendant, and was waived by failure to appear and plead. The case of National Bank v. Magnuson, 57 Kan. 573, 48 Pac. 518, to which we are cited, is not in point, and certainly does not conflict in any manner with the position here taken.
That a return of nulla bona upon an execution issued out of a justice’s court is sufficient to give jurisdiction to proceed against stockholders has been unequivocally decided by the supreme court of Michigan under a statute and method of proceeding which are analogous to ours. (Voight v. Dregge, 97 Mich. 322, 56 N. W. 557. See, also, Sleeper v. Norris, supra.)
As the plaintiffs in error admit that notices of the motion for execution were in fact served on them, respectively, as to this action it is wholly unimportant whether a return, of service thereof was properly made or made at all. They may not enjoin the enforcement of an order based upon a sufficient notice actually served, because of an informality in the official signature of the officer who served it. Before final determination of the matters pending and dependent upon the notice, such return could have been amended in any case, and the failure of the deputy to affix the name of his principal was a mere irregularity. (Hill v. Gordon, 45 Fed. 276.)
It is true that chapter 47 of the Laws of 1897 (Gen. Stat. 1901, §§407-470), which took effect March 11, 1897, repealed the banking law of 1891, under which these proceedings were commenced and were then pending, and that fact alone constitutes a sufficient answer to the contention of counsel that section 55 of the later act (Gen. Stat. 1891, § 461) is applicable to this case, and renders all things done therein subsequently to March 11, 1897, void.
“The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under 'or by virtue of the statute repealed.” (Gen. Stat. 1901, §7342.)
As above said, these proceedings were “com menced,” and an order for execution had already been made, before the repealing statute took effect. Whether said section 55 would apply to debts incurred before its passage we need not-decide, but, as bearing in some measure-upon the question, reference is made to the case of McDermott v. Halleck, 61 Kan. 486, 59 Pac. 1074.
We conclude, then, that the several matters complained of by plaintiffs in error are but irregularities, and that none of them alone, nor all of them together, render void the , judgment or execution sought to be enjoined. If the plaintiffs in error have any defense whatever to the proceedings had to charge them as stockholders, they did not avail themselves of the opportunity afforded to establish the same, and they do not, even in this action, aver the existence of any facts which would have avoided their liability. For that reason, the court below ought to have denied to them the relief asked.
“A general rule underlying the entire jurisdiction of equity to restrain proceedings at law is, that where the person aggrieved has had an opportunity of interposing his defense at law and has had his day in court, but has failed through carelessness or inadvertence to avail himself of the opportunity of interposing such defense at law, he cannot afterwards make it the ground for relief in equity, and is barred from enjoining proceedings under the judgment. It is not the policy of the law to permit persons to slumber upon their rights when they have an opportunity to assert them in a court of law, and afterwards to permit their assertion in a court of equity. In the absence, therefore, of any suggestion of fraud, accident, mistake, or surprise, and when no good reason is shown why the defense was not made at law, the injunction will not be allowed, where it is not obviously against conscience to enforce the judgment.” (High, Inj. § 165.)
Although counsel for plaintiffs in error have ably and forcibly presented the several allegations of error above referred to, we are constrained to regard the adjudication of the court below as right. The judgment is affirmed.
Smith, Cunningham, JJ., concurring. | [
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Error from Sedgwick district court. | [
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Error from Harper district court. | [
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The opinion of the court was delivered by
Smith, J. :
Sprague, Warner & Co., of Chicago, were the owners of a promissory note, dated March 12, 1894, payable ten days after date, executed by H. Godehard & Co., for the sum of $228.75. On March 15, 1894, they transmitted the note to the cashier of the Farmers’ National Bank of Arkansas City, enclosed in a letter reading as follows :
“March 15, 1894.
“Cashier Farmers’ National Bank, Arkansas City, Kan.:
“Dear Sir — Herein please find for collection note H. Godehard & Co., Mch. 12, 10 days, $228.75. Kindly make returns to Yours truly,
“Sprague, Warner & Co.”
The note was received by the bank prior to its maturity on March 25. It was presented to the makers after.it had become due, and payment refused. No notice of its non-payment was given by the bank to the plaintiffs in error until April 5. At the time the bank received the paper for collection the firm of H. Godehard & Co. was indebted to it in the sum of about $2500, and thereafter, and on the 4th day of April, 1894, the bank received from the firm a chattel mortgage on all their stock of merchandise and fixtures to secure its own indebtedness, and at the same time other creditors took three chattel mortgages, one of which at least was obtained through the agency of the bank, subject to the bank’s mortgage, on the merchandise mentioned. The foreclosure of these chattel mortgages exhausted the assets of H. Godehard & Co., rendering the note of Sprague, "Warner & Co. uncollectable. Plaintiffs in error brought this action against the bank in the court below for damages resulting from its negligence as collection agent. On the trial a demurrer to the evidence of plaintiffs below was sustained, and they have prosecuted proceedings in' error.
We think there was evidence sufficient for the consideration of the jury on the question of the negligence of the officers of the bank in their conduct toward plaintiffs below regarding this note. After its maturity, and while holding it for collection, the bank not only secured the indebtedness from H. Godehard & Co. to it, but it also acted as agent for at least one .other creditor in securing a subsequent mortgage. Certainly the jury ought to have been permitted to pass on the question whether the bank officers were guilty of misconduct toward plaintiffs below in assisting other creditors of H. Godehard & Co. to obtain security at a time when .the note in question was in possession of the bank with instructions from the owners to collect. We think it was a duty incumbent on the bank to present this note "to the maker immediately on its maturity, and if not paid to notify the holders thereof. Such notice would have given opportunity to plaintiffs in error at once to obtain security or payment. With information of the makers’ default, while H. Godehard & Co. were a going concern, the plaintiffs below might, by diligence, have received the advantages which other creditors obtained by their chattel mortgages.
Counsel for defendants in error challenge the sufficiency of the record on the ground that it does not' cdntain all the evidence introduced on the trial. There is no merit in this contention. At the conclusion of the testimony of the witnesses there is this recital : ‘ ‘ And this was all the evidence given in the case.”
The judgment of the court is reversed and a new ■ trial ordered.
Dostek, C.J., Ellis, Pollock, JJ., concurring. | [
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Error from Reno district court. | [
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The opinion of the court was delivered by
Ellis, J.:
On behalf of the plaintiff in error, defendant below, it is contended that the chattel mortgage was absolutely void as to all of the property therein described because it included two horses which were exempt by law to Hollister as a resident head of a-family. A second contention is that, if the mortgage was not wholly void, it was at least void as to “a span of horses.” The statute (Laws 1889, ch. 176, § 1) under which plaintiff in error makes these claims-is as follows :
‘ ‘ It shall be unlawful for either husband or wife-■(where that relation exists) to create any lien, by chattel mortgage or otherwise, upon any personal-property owned by either or both’ of them, and now exempt by law to resident heads of families from seizure and sale upon any attachment, execution or other-process issued from any court in this state, without the joint consent of both husband and wife ; and from and after the time when this act shall take effect no-such mortgage of personal property shall be valid unless executed by both husband and wife.” (Gen. Stat. 1901, §4255.)
We do not think-the mortgage was wholly void, but esteem it valid, except as to two of the horses. If, instead of giving a chattel mortgage, .Hollister had executed a mortgage upon his homestead and other lands without the consent of his wife, the mortgage-would have been held void as to the homestead, but it would have conveyed his title to all other lands in- eluded therein. In an early case in the United States supreme court, Chief Justice Marshall said: ■
“There is a plain difference between a grant comprehending lands which may with lands which may not be granted, and one made on a fraudulent misrepresentation or illegal consideration which extends to, and vitiates, the whole instrument.” (Patterson v. Jenks et al., 2 Pet. 216, 235, 7 L. Ed. 402, 409. See, also, Thomp. Homest. Exempt. § 474, et seq.)
In principle, we think that the rule should be the same as that which has been established in the case of homestead exemptions ; and this accords with existing law, as the statute above quoted was amended (Laws 1901, ch. 103, §1; Gen. Stat. 1901, §4255) by adding the following: “Provided, that this act shall not be construed to invalidate any such mortgage or other lifen except so far as relates to the exempt property covered thereby.”
The act in terms makes it unlawful “to create any lien” upon exempt personal property. If a penalty had been prescribed for the making of such mortgage, it would be clear that the legislature intended to render it void as to the property mentioned in the act, and we think that the concluding paragraph, which provides that “no such’mortgage of personal property shall be valid unless executed by both husband and wife,” fairly shows such to be the legislative intent. It follows that two of the horses seized by the sheriff were exempt, and might lawfully be appropriated to the payment of Edey’s judgment.
After a lien had been acquired on the horses by seizure under the execution for a labor debt, Hollister and his wife could not, by waiver, deprive Edey of his rights, and, for that reason, it is suggested that a grave difficulty arises in determining which two of the horses the sheriff might have lawfully seized. If this were true, it would afford no excuse for nullifying the plain provisions of the statute, but we fail to discover any insurmountable obstacle in the way of proceeding to collect the judgment. In the case of Rice v. Noland, 33 Kan. 28, 31, 5 Pac. 437, 439, this court held:
“It is the duty of the officer, we think, when he is about to make a levy upon property, some of which is exempt, to notify the debtor, so that he may make a selection; and where, by reason of his absence or other circustances, he is precluded from selecting, it would then become the duty of the officer to set apart the exemption to which the debtor was entitled. (Thomp. Exempt. §839.)”
Reasoning from analogy, it would appear plain that the sheriff ought to have selected and levied on two of the horses as the property of Justin Hollister, and, as the representative of the plaintiff in the execution, he is now entitled to retain the proceeds of two of the horses, to be by him selected. For the other horses sold by the sheriff the bank is entitled to recover.
The judgment, as to two of the horses, is erroneous, and must therefore be reversed, and the cause remanded for further proceedings in accordance with this opinion. The costs will be divided. | [
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The opinion of the court was delivered by
Doster, C. J.:
Stephen G. Elliott was convicted of a felony at the September term of the district court of Wilson county for 1899. Upon appeal to this court the judgment of conviction was affirmed. (The State v. Elliott, 61 Kan. 518, 59 Pac. 1047.) , The conviction was had on the verdict of eleven jurors only. The defendant consented to a verdict by such number, but that consent is not binding on him. (The State v. Simons, 61 Kan. 752, 60 Pac. 1052.) The record of 'the petitioner’s conviction, as made at the September term of the court for 1899, did not show a trial and verdict by less than the required number of jurymen. At the February term of the court for 1901, a supplemental bill of exceptions in the original case of The State v. Elliott was settled and allowed. In that bill of exceptions the fact of the defendant’s conviction on the verdict of eleven jurors was recited, but the court refused to correct the original journal entry of conviction to conform to the fact, upon the ground that such correction “would not be in furtherance of justice.” The motion of the defendant to make the correction, although admitted in the bill of exceptions to be in conformity to the actual fact, was nevertheless overruled. A transcript of the bill of exceptions is before us as evidence in this case. It is a part of the record of the case, notwithstanding it was not made a part of the original bill of exceptions brought here upon appeal. (3 Encyc. Pl. & Pr. 487, 488.) We, therefore, have a record showing the unauthorized conviction of the defendant.
-The mere refusal of the court'below to correct the entry of verdict and judgment to conform to the fact is immaterial. Notwithstanding such refusal, it made a record of the fact, although refusing to record such fact in the journal entry of judgment. Hence the petitioner’s contention, that he was tried and convicted by a jury of eleven men only, is sustained by the record — the bill of exceptions. There is no occasion, therefore, to consider the question principally, almost entirely, discussed by counsel, which was, Oan evidence aliunde the record be admitted to prove a verdict by eleven jurors only?
The petitioner is entitled to be released from the custody of the warden of the state penitentiary. He will be, therefore, delivered to the sheriff of Wilson county, Kansas, to be returned to that county for such proceedings against him in the district court as may be proper.
Johnston, Gkeene, Pollock, JJ., concurring. | [
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Error from Sedgwick district court. | [
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The opinion of the court was delivered by
Smith, J. :
This was an action for breach of contract. The Enterprise Carriage Manufacturing Company, a corporation having its place of business in Miamisburg, Ohio, made a written agreement in which it contracted to furnish N. A. Cruzan carriages and buggies to be sold exclusively by him on commission in the state of Illinois. That part of the contract relevant to this case reads :
“ It is also agreed by the Enterprise Carriage Manu facturing Company that they will carry during the season, at the warehouse of N. A. Cruzan, at Decatur, Ill., sufficient amount of goods to supply quick orders furnished by said N. A. Cruzan, and said goods to be stored by said N. A. Cruzan free of charge, and insured at his expense.”
A fire occurred on April 12, 1896, during the life of the contract, and goods shipped by the carriage company to Cruzan, stored in his warehouse at Decatur, 111., were destroyed. At the time of the loss, defend-' ant in error had insured the property consigned to him, together with some material and stock for a shoveling board and some office fixtures of his own, in the amount of $1000, and paid the premium therefor, taking the policy in his own name. After the loss the insurance company was found to be insolvent, and $550 only was collected from it. This sum, less $100 for attorney’s fees, was.remitted by defendant in error to the carriage company. There was evidence to show that Cruzan had on hand, ‘at the time of the fire, goods of about the value of $2178, received by Mm from plaintiff in error. The court below sustained a demurrer to the evidence, and the carriage company is .here complaining.
Counsel for defendant in error contends that the contract is ambiguous and void for uncertainty, and further avers in the answer . that the words in the contract “ insured at his ' expense ’ ’ did not require Cruzan to obtain the insurance, but deafly required the* carriage company to do so and charge the expense to defendant below. We do not agree with counsel in this construction. The plaintiff below had its place of business in Ohio. The goods were shipped by it to Cruzan* and stored by him in his warehouse at Decatur, 111. The more reasonable interpretation of the agreement would be that the goods were to be insured by their possessor at the place where situated. Rates of insurance are generally regulated by local considerations, and the proximity of property insured to buildings more or less combustible seriously affects the amount of premiums charged. It would be out of the usual custom for the carriage company to procure insurance in Ohio on property in Illinois, although it might be done in that exceptional way. The defendant below was in possession of the property, holding it for sale, with expectant profits to be derived by him therefrom, making it more reasonable that he, and not the carriage company, was bound by the contract to procure the insurance.
Again, Cruzan did take out a polióy of $1000 on the property at his own expense, thus placing an interpretation on the terms of the agreement at variance with his- contention here. Acts of the parties tending to show a construction put upon a contract by themselves may be considered when the meaning is doubtful. For a collection of cases on this question of interpretation, see the Century Digest, volume 11, pages 755, 756.
It is insisted by counsel for defendant in error that the proof was insufficient to show that, at the time of the fire, the latter had on hand goods to a greater value than the amount of the $1000 insurance policy. We think that the plaintiff below showed prima facie that Cruzan had in his possession carriages and buggies to the amount of $2178. The written statement of Cruzan, made in December, 1895, showed that at that time there were in his possession goods received of the carriage company to the amount of $1134, and that there was an additional shipment in December, 1895, to the "amount of $1044. It having been established that this last consignment was shipped to the defendant below, it must be presumed that he received the same and had the goods on hand at the time of the fire, unless there was proof to the contrary. Cruzan never made any report to the plaintiff below that he had made disposition of any of the goods mentioned.
In view of another trial, it is proper to say that if the defendant below- did not know, or did not have good reason to know, that the insurance company was insolvent at the time he placed insurance on the goods of the carriage company, together with property of his own, to the amount of $1000, the carriage company should give him credit for the full amount of the policy, less a proportionate amount due. him for his individual' loss.
The judgment of the court below is reversed and a new trial granted.
Cunningham, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
The contention of the plaintiff in error raises two questions, as follows: (1) Did the statute of limitations run upon the claim of Mrs. Black as against the estate of G. E. DeForrest during the time that there was no administrator? (2) If it did, might the mortgagee, John Elliott, or the heirs of G. E. DeForrest, attack the allowance thereof by the probate court in favor of the plaintiff in error, in this collateral proceeding?
The first question we must answer in the affirmative, on the authority of Bauserman v. Charlott, 46 Kan. 480, 26 Pac. 1051, and Kulp v. Kulp, 51 id. 341, 32 Pac. 1118, 21 L. R. A. 550. There is no occasion to add anything to the reasoning in these cases. The doctrine as therein set out is well supported by reason and authority. We must hold that at the time of the allowance of Mrs. Black’s claim by the probate court the same was barred by the statute of limitations as to the G. E. DeForhest estate.
The second question presents greater difficulty. It is a general rule of law that a judgment of a court of competent jurisdiction is conclusive upon all of the parties to it, and may not be attacked collaterally except upon grounds of fraud or mistake. This rule extends to all parties to the action in which a judgment was rendered and' their privies. Probate courts in this state have “jurisdiction and care of estates of deceased persons.” One item of such jurisdiction is the allowance of claims against the estates of such persons. No provision is made whereby the heirs or those holding under them are made parties to such procedure and no right is given by statute to such heirs to appeal from the allowance of any claim by the probate court. In fact, they are wholly strangers to that proceeding, unless it can be said that they are represented by.the administrator.
Under our statute the administrator takes title to the personal estate. He is entitled to the possession of it, and may maintain any possessory action to enforce such right./' He is required to sell and dispose of the same, and we think that so far as such personal estate is concerned the allowance of a claim by the probate court in favor of a creditor is binding on the administrator and on the décedent’s personal, estate. As to the real estate, the title of the decedent upon his death descends at once to the heir, who is ■entitled to the possession thereof. No right or title therein goes to the administrator — not even possession. He may, however, in case the personal property is found to be insufficient to pay the debts of the deceased, proceed in the manner pointed out by the law to subject so much non-exempt real estate as may be necessary to the payment of such debts. In doing so he must pursue the manner pointed out by the statute — file a petition showing the necessity for such sale, and give such notice of the application for an order therefor as shall be directed by the probate court. Then, for the first time, the title to the real estate inherited by the heir is threatened, and then, for the first time, has he an opportunity to be heard as to the validity of the claims which are sought to be paid out of his property.
At common law, the administrator might never under any circumstances lay his hand upon the real estate which had descended to the heir, and if a creditor desired to subject the same to the payment of his claim against the ancestor, he was required to bring his action directly against the heir for that purpose, in which action the heir had the opportunity and right to contest the validity of the claim which was sought to be made a charge on his inherited real estate. We seé.no reason why the same principle should not ob tain when the administrator makes application for an order to sell such real estate. We think that the au-thorities are abundant to uphold this view.
In Woerner on American Law of Administration, section 466, the whole matter is discussed in the following language:
“Since the executor or administrator does not, in most of the states, represent the devisee or heir in the matter of paying the debts of the deceased, holding for that purpose the personalty, which is the primary fund out of which they must be paid, he assumes a relation rather antagonistic to the heirs whenever he seeks to subject the real estate, which has descended not to.him, but to them, to sale for the payment of debts. It follows that a judgment against him in favor of creditors, although binding upon the personalty, is not necessarily binding upon the heirs to the extent of subjecting the real estate descended to them for the satisfaction of any such judgment, although it may be of prima facie validity. Hence, before there can be a valid order divesting them of their title by a sale for the payment of debts, they must have an opportunity to be heard, and to contest not only the necessity or propriety of the sale, but also the justice and validity of the debts for the payment of which the sale is demanded.”
In O’Flynn v. Powers et al., 136 N. Y. 419, 32 N. E. 1087, it was said :
, ‘ ‘ But where real estate devised or descended is sought to be charged with the debts of the decedent, the validity and existence of the debts are open to contest by the heirs or devisees in the proceeding, and the decree of the surrogate on the accounting does not conclude them.” (See, also, Jackson et al. v. Weaver, Adm’r, 98 Ind. 307; First Baptist Church of Hoboken v. Syms, 51 N. J. E. 363, 28 Atl. 461; Long v. Long, 142 N. Y. 552, 37 N. E. 486; Saddler v. Kennedy, 26 W. Va. 636; Nichols v. Day, 32 N. H. 133, 64 Am. Dec. 358.)
Some of the above cases go to the extent of holding that the allowance of a claim is not even prima facie evidence against the heir of its justness.
In the case at bar, Jones, the administrator, was not made a party, and we have some doubt whether in his absence the district court had jurisdiction to decree a sale of the land for the payment of the debts; but we have passed that question for the purpose of discussing the fundamental one, whether under any circumstances the heir was deprived of the right of questioning the creditor’s claim by reason of its allowance by the probate court. We conclude both from reasoning and authority that in any proceeding brought either in the probate court or in equity, such as the one at bar, for the purpose of subjecting the lands of any heir or devisee to the payment of a claim against the ancestor, such heir or devisee or any person holding under them may contest the legality or justness of such claim, and that regardless of whether it has been duly allowed by the probate court as a claim against the estate. And in this case, as the claim was barred by the statute of limitations when allowed by the probate court, and therefore no valid and enforceable claim against the estate, it follows that the plaintiff in error cannot have any lien on the lands in question as against Elliott, the mortgagee, or the heirs, or subject the same to sale for the payment of such claim, and that therefore the decree of the district court was correct and should be affirmed.
Johnston, Gkeenb, Ellis, JJ., concurring. | [
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Error from Sedgwick district court. | [
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The opinion of the court was delivered by
Smith, J.:
In their petition the plaintiffs below alleged that the Atchison, Topeka & Santa Fe Railway Company, defendant in this case, purchased the entire line of the Atchison, Topeka & Santa Fe Railroad Company at a foreclosure-sale, under a decree of the United States circuit court for the district of Kansas, in which decree, among other things, it was provided that the purchasers of the Atchison, Topeka & Santa Fe Railroad Company should, as a part of the purchase-money, pay, in addition to other things, all liabilities, dues and demands which might be asserted and finally determined against the railroad company •, that the defendant railway company' became the purchaser and took possession of said property, and is now in use and occupation of the same by virtue of said decree and its bid and purchase, and has become liaable to pay said judgment and interest thereon, and has paid on same the sum of $4000, but no interest, the defendant refusing to pay on some pretext unknown to the plaintiffs.
It is unnecessary to discuss whether, under the terms of the decree confirming the sale of the railroad property, the purchasers became liable for the payment of the judgment held by defendants in error against the old company without an order of court “adjudging the same to be prior in lien to the general mortgage, and directing payment thereof.” The quoted language has received much attention from counsel, and its meaning, when read in connection with other parts of the decree, is the subject of totally divergent views. The decision obanother question in the case is, in our judgment, conclusive against a recovery by the defendants in error.
It must be conceded that the plaintiffs below took no greater rights against the Atchison, Topeka & Santa Fe Railway Company than they had against Edward King and his associates, the purchasers of the road at the master’s sale, who conveyed to the railway company. In fact, the petition alleges that the railway company was the purchaser, and we shall treat it as such. The purchasers of the railroad property at the master’s sale, by that act, became parties to the equity suit in which the foreclosure was had, upon which the decree for a sale was based, and submitted themselves to the jurisdiction of the court, at least as to all - matters connected with the sale. (Clarkson v. Read et al., 15 Gratt. [Va.] 288; McDonald v. National Bank, 58 Kan. 461, 49 Pac. 595.) Admitting that the railway company, the purchaser, was liable for the payment of the claim of defendants below, it was only so made liable because it bought property out of which, for equitable reasons, this judgment with interest was decreed to be paid. The amount to be paid on the judgment was determined in a case where these judgment creditors, the complainants in the equity suits and the purchasers at the master’s sale were parties. The nature of the proceeding was, under the order defining the master’s duties, a marshaling of demands against the old company, or its property, and the ordering of a subsequent report to the court of the names and residences of the creditors of the railroad company and the amounts of their respective claims.
The question decided by the court in confirmation of the report of the special master relative to the claim of defendants in error was, How much of their demand ought to be paid out of the property of the insolvent railroad company ? The judgment of the defendants below, and all like it, having been, by the decree appointing the receivers, made preferred claims on the property, why was not an adjudication of the federal court in the particular case in which the re ceivers were appointed, and to which the purchasers made themselves parties, determining the amount plaintiffs below should be paid, binding on the latter? The judgment was for the payment of $4000 out of the property of the old road. The purchasers were liable only because they bought the property of the old company, against which the amount of this judgment was a superior claim. The allowance of $4000 only by the special master and the court as a demand against the property fixed the status of the claim as to the amount for which the property of the old company was liable. The purchasers were not bound to pay any claim for which the receivers were not liable. The amount to be paid was to be derived out of the property formerly owned by the railroad company, whether in the possession of the receivers or the new company (the purchaser). If there was not enough in the receivers’ hands, then the new company, after the order confirming the special master’s report, was bound for the deficiency and required to satisfy the claim to an amount for which the court adjudged the property was liable.
Counsel for defendants in error say that under the decree confirming the sale the purchasers are liable to pay this judgment in full; that the receivers were directed to pay such judgments as of course, and that this direction stands in the decree of confirmation against the purchasers. Admitting this, the impediment in the way of their clients is the judgment of the United States circuit court, not appealed from, in a proceeding where all the parties were before it, and in which it was adjudged that the property of the old company was liable to defendants in error for $4000 and no more. The special master was required, in the decree appointing him, to give notice to “all creditors of said railroad company (the old corporation) and to all parties having specific claims upon the property of said railroad company, or upon any property which has or shall come into the possession of the said receivers,” to exhibit their claims, etc.
The situation here cannot be likened to that where a claim is exhibited for allowance before an assignee in insolvency or a receiver in ordinary cases. In the present case, as shown above, the property which the new company bought, and that remaining in the receivers’ hands which it did not buy, stood charged with this judgment. The United States circuit court decided that the property held by the receivers was liable for $4000 only. This property, and that purchased by the railway company, had the same source of ownership, namely, the Atchison, Topeka & Santa Fe Railroad Company, and it all stood equally charged with the payment of this claim.
The proceedings were had in the equity suits. The court was administering upon the estate of the insolvent railroad corporation, winding up its affairs and determining the amount of claims justly payable out of the assets. It had these judgment creditors and the purchaser of the road before it. The court, when administering this estate and passing on matters referred to Quinton as special master, determined the amounts of other judgments which the railway company should pay. In the case-of P. P. Elder, as administrator, against the old company, a judgment of the same character as this was “declared to be a lien upon the property of said railway company,” and it. was further ‘ ‘ ordered that said railway company pay the same within thirty days from this date.” It will be seen from this that, in the consideration of claims presented to the special master, the court exercised its power to order the railway company to pay like judgments within a time fixed. This action of the court indicates that the orders made concerning such demands were not restricted to providing for their payment solely out of the assets then in the receivers’ hands, but it undertook, with all parties before it, to adjudicate the amount which the purchasing company should pay. The proceedings before the special master were had for the purpose of determining claims against an insolvent estate. The plaintiffs in error, having gone into the federal court and submitted their claim for allowance, must be held to the amount of the' award. At least, they cannot set it aside in this collateral manner.
The judgment of the court below will be reversed, with directions to enter judgment in favor of the plaintiff in error.
Johnston, Greene, Ellis, JJ., concurring. | [
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Per Curiam:
We see no error in the rulings of the court below prejudicial to the plaintiff in error. He bid in his-own property at tax sale. By withholding his deed from record and having the tax certificate issued in the name of Louis H. Stewart, his brother, he made it appear that the transaction was not a payment by him of the taxes, but a bona fide purchase by his brother. The true state of facts appeared when the plaintiff in error testified as a witness in the case of Churchill v. Elliott. The discovery of the fraud practised on plaintiff below dated from that time, and the record of that case, with Stewart’s testimony therein, was received in evidence in this one for the purpose of showing when the right of action of defendant below was discovered. The plaintiff in error sold something which he did not own. The tax certificate, on its face, appeared to be a valid lien on the landj but, when the truth was disclosed, the lien had no foundation. It was the duty of Stewart to pay his taxeb, being the owner of the land, and what he did amounted to nothing more than a payment of them. The case was fairly tried, and a just conclusion arrived at in the court below, and its judgment will be affirmed.
Dostek, C.J., Johnston, Smith, Ellis, JJ. | [
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The opinion of the court was delivered by
Smith, J.:
On January 3, 1889, the director and clerk of school district No. 5 of Seward county executed and delivered to John W. Hixon & Co. four warrants on the school-district treasurer. They are identical in dates and amounts. The following is a copy of one of them :
“No. Office of School District Clerk.
January 3, 1889.
“Name of Treas. M. L. Trout.
“P. O. address Springfield, Kansas.
“Treasurer school district No. 5 of county of Seward, state of Kansas: Pay to John W. Hixon & Co. or order, on. or before July 1, 1889, the sum of two hundred dollars, with interest at twelve per cent, per annum from date till paid, for material and labor furnished on schoolhouse, out of any funds in your possession raised or appropriated for such purpose. *9nn Joseph Waggoner, District Clerk.
H. P. Larrabee, Director.”
The orders were presented for payment to the school-district treasurer on September 9, 1890, and were indorsed by him “Not paid for want of funds.” There has never been any money in the hands of the treasurer to pay these warrants. This action was commenced in the court below on March 22, 1895, by defendant in error, the assignee and holder of the warrants.
The sole question to be decided is whether the action was barred by the statute of limitations. If the statute began to run on July 1, 1889, when the orders were payable, then the time for the commencement of an action expired on July 1, 1894, over eight months before suit was begun. If, however, the time is to be counted from the date of presentation, the action was commenced less than five years from that time. If the failure to provide funds to meet the payment of the obligations prevents the district from interposing the defense it has set up, then the due dates of the warrants and the time of the demand for payment become immaterial.
It has been decided by this court that a city may anticipate the revenue of the year by issuing warrants payable at such time during the year as the taxes will probably be collected, and that such warrants are ■“simply drafts on the revenue then anticipated.” (City of Burrton v. Savings Bank, 28 Kan. 390.) We find no limitation on the power of school-district boards which prevents them from doing likewise. Under sections 6011 and 6012 of the General Statutes of 1901, warrants not paid for want of funds must be registered in the regular order of their presentation and must be paid in such order, and when sufficient money is collected the treasurer must set it apart to pay them in turn. Statutes of limitation give the defendant a right to resist the payment of a demand based upon some act of negligence or omission of the plaintiff. But, in the case at bar, the defendant would found its right to defeat the claim sued on by asserting its own negligence. It has never set the machinery of the law in motion to collect the money required to meet its obligations. It has remained since the debt was contracted in a continued state of insolvency created by its own act. "We need not do more than to quote the language of Mr. Justice Brewer, in Lincoln County v. Luning, 133 U. S. 529, 532, 10 Sup. Ct. 363, 364, 33 L. Ed. 766, 767:
“The coupons, which by the general limitation law would have been barred, were presented, as they fell due, to the treasurer for payment, and payment demanded and refused, because the interest fund was exhausted. Thereupon the treasurer registered them as presented, in accordance with the act of 1877, and from the time of their registration to the commencement of this suit there was no money in the treasury applicable to their payment. This act providing for registration and for payment in a particular order was a new provision for the payment of these bonds, which was accepted by the creditor, and created a new right upon which he might rely. It provided, as it were, a special trust fund, to which the coupon holder might, in the order of registration, look for payment, and for payment through which he might safely wait. It amounted to a promise on the part of the county to pay such coupons as were registered, in the order of their registration, as fast as money came into the interest fund; and such promise was by the creditor accepted; and when payment is provided for out of a particlar fund to be created by the act of the debtor, he cannot plead the statute of limitations until he shows that that fund has been provided.”
See, also, Underhill v. Trustees of the City of Sonora, 17 Cal. 172; Freehill v. Chamberlain, 65 id. 603, 4 Pac. 646. In the former case the court said :
“The legislative acts, then, recognize the debt, and make provision for its payment. This is enough to withdraw the case from the operation of the statute. It is equivalent to a trust deed by the city, setting apart property out of which the money due was to be paid at a given time, if not sooner paid, upon a claim acknowledged to be an outstanding debt; and we cannot conceive of any principle of law or justice which would hold the claim to be barred by the statute merely because the creditor waited after this for his money.”
In the other case it was held :
‘ ‘ Where a statute provides for the issuing of bonds of a city, with interest coupons payable as fast as money should come into the treasury from special sources designated by the act, the statute of limitations does not commence to run against the coupons until the money is received in the treasury in accordance with the terms of the act.”
This time warrant, as stated in City of Burrton v. Savings Bank, supra, being simply a draft on anticipated revenue, and there being no realization by the receipt of the expected fund by the school district, the latter ought not, in good conscience, to assert as an excuse its failure to receive sufficient money with which to pay when it had ample power, by the levy of taxes, to collect it.
This view of the case dispenses with the necessity for any discussion of the question whether the stat ute of limitations began to run on the warrants at the date they were made payable by their terms, or from the time of the demand made for their payment.
The judgment of the court below will be affirmed. | [
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Error from Elk district court. | [
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The opinion of the court was delivered by
Ellis, J.:
There is but one question in this case. If the oral authority given by Pollock to Fleming to write the name of a grantee in the blank left for that purpose when he should sell the land and the doing of such act by Fleming according to the letter and spirit of the power so conferred rendered such deed operative and valid as to Pollock, the holder of the. haked legal title, and as to Fleming, the equitable owner of the land, then title passed to Capen by the delivery of the deed to her. That an attachment creditor under our statute acquires by his writ no greater right in the property seized than the defendant in the attachment suit had at the time the writ was levied is not open to dispute. (N. W. Forwarding Co. v. Mahaffey, Slutz & Co., 36 Kan. 155, 12 Pac. 705.)
The fact that Capen paid for the land by releasing a preexisting debt against Fleming does not aid the cause of the bank, for it cannot be doubted that Fleming had a right to prefer his relatives over other cred itors, if he did so in good faith. This the counsel for the bank does not deny. We think that at the time of its delivery to the interpleader the deed to her conveyed all the title theretofore held by Pollock and f Fleming, and that neither of them could be heard to -^question its effectiveness. (Inhabitants of South Berwick v. Huntress, 53 Me. 89, 87 Am. Dec. 535; Drury v. Foster, 2 Wall. [U. S.] 24, 17 L. Ed. 780; Bridgeport Bank v. N. York & N. Haven R. R. Co., 30 Conn. 274; Swartz v. Ballon, 47 Iowa, 188, 29 Am. Rep. 470; State v. Young, 23 Minn. 551; Foster v. Moore, 79 Hun [N. Y.] 472; Woolley v. Constant, 4 Johns. [N. Y.] 54, 4 Am. Dec. 246; Cribben et al. v. Deal, 21 Ore. 211, 27 Pac. 1046; McCleary v. Wakefield, 76 Iowa, 529, 41 N. W. 210, 2 L. R. A. 529; The State v. Mathews, 44 Kan. 596, 25 Pac. 36, 10 L. R. A. 308; Chapman v. Veach, 32 id. 167, 4 Pac. 100; Field v. Stagg, 52 Mo. 534, 14 Am. Rep. 435; Duncan v. Hodges, 4 McCord [S. C.] 239, 17 Am. Dec. 734; Van Elta v. Evenson, impleaded, etc., 28 Wis. 33, 9 Am. Rep. 486.)
In this case the deed was complete before execution, except that the name of the grantee was not inserted therein. The question as to whether a deed would be valid if an owner of property should sign and acknowledge a blank form and orally authorize another to fill up all the blanks, and thereby convert a bare and meaningless paper into something purporting to be a conveyance of land, is not before us for adjudication. It is not claimed in this cause that the name of the interpleader was placed in said deed in violation of the desire and command of the grantor, for which reason we are not called upon to determine whether a failure to follow and carry out the will and direction of the maker in that respect would render the writing, when apparently complete and regular, void as an instrument of conveyance. Inasmuch as when Mrs., Capen received it she had no knowledge that her name had been inserted after it had been signed and acknowledged by Pollock, it is not necessary for us to inquire whether knowledge of 'such fact would have impaired her rights.
We are clear that under the facts in this case her name was lawfully entered in the proper blank in the deed, and that alone is the proposition here decided. It is urged by counsel for the bank that in the early case of Ayres v. Probasco, 14 Kan. 176, this court laid down a rule with which the one here followed conflicts. It is true that some of the language contained in the majority opinion in that case is contrary to the views herein expressed, but it will be observed that upon rehearing, at page 199, Mr. Justice Valentine, speaking for the majority of the court, said :
“It -was not really necessary in this case that we should have decided said fifth proposition of the syllabus, and hence what is said therein, and the corresponding portion of the original opinion, may be treated merely as dictum.”
The fifth paragraph of the syllabus above referred to contained all of the law laid down in that case which counsel contend is applicable to this. From that Mr. Justice Brewer dissented, and the other members of the court subsequently characterized the paragraph as dictum. Upon its facts, the case of Ayers v. Probasco can be easily distinguished from the one now under consideration.
The other errors complained of are not regarded as of sufficient import to justify a reversal of the case. The judgment of the court below will be affirmed.
Johnston, Cunningham, Greene, JJ., concurring. | [
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Per Curiam:
A change of venue was had in a civil case pending in Elk county. It was sent to Green wood county for trial. The latter county brought an action to recover from Elk county the jurors’ per diem fees, $422; for the attendance of the sheriff on the court, $19.50; for the court bailiff, $19,50; and for the stenographer, $60. Judgment was confessed for the stenographer’s fees. A recovery for the other items was denied in the court below.
We see no error in this. Costs incurred in criminal prosecutions by the state are by statute made payable by the county where the offense is committed., (Gen. Stat. 1901, § 5763.) We have been cited to no statute casting liability on Elk county for the items for which a recovery was denied. No costs were recoverable at common law; their allowance depends on the statute. (The State v. Campbell and Jones, 19 Kan. 481.)
The language used in the opinion in Shawnee Co. v. Wabaunsee Co., 4 Kan. 312, is hot applicable to the present controversy. That was a criminal case.
The judgment of the court below will be affirmed.
Doster, C.J., Johnston, Smith, Ellis, JJ. | [
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Error from Franklin district court. | [
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The opinion of the court was delivered by
Doster, O, J. :
This was an action of replevin of cattle and for damages for their detention. The defense was ihat the defendant was the sheriff of the county, and that he first took and detained the cattle under the live-stock quarantine laws of the state, by virtue of a complaint made to him that the animals were believed to be capable of communicating, or liable to impart, Texas fever, and that he subsequently continued the detention under an order of ¿the livestock sanitary commission, made in pursuance of the said quarantine laws. Judgment went against the plaintiff, to reverse which he has prosecuted error to this court.
The statute under which the defendant, the sheriff, assumed first to take and hold the cattle is section 7091, General Statutes of 1899, which reads as follows :
“It shall be the duty of any sheriff, under-sheriff, deputy sheriff or constable within this state, upon complaint made to him by any citizen of the state, or otherwise having notice or knowledge that there are within the county where such officer resides cattle believed to be capable of communicating or liable to im part the disease known as Texas, splenic or Spanish fever, to forthwith take charge and restrain such cattle- under such temporary quarantine regulations as will prevent the communication of such disease, and make immediate report thereof to the live-stock. sanitary commission ; and such officer shall keep said ' cattle in custody as aforesaid until released by order of said live-stock sanitary commission.
In assumed compliance with this statute, one McCunningham presented to the sheriff the following paper:
“U. S. Department op Agriculture.
Bureau op Animal Industry.
Local Oppice.
“Coffeyville, Kan., October 11, 1898.
“ To the Sheriff or any Deputy Sheriff of Labette County, Kansas:
“By the authority of the live-stock sanitary commission of Kansas, you are requested to quarantine the premises of B. F. Asbell, in township 34, range 21, Labette county, Kansas, together with all cattle thereon.' Yours truly, Dan. Me Cunningham,
Live-stock Agent in B. of A. I.1'
Upon receipt of this paper the sheriff seized and quarantined the plaintiff’s cattle, and in the action subsequently brought against him relied on it as a justification, so far as the seizure and the earlier period of detention of the animals were concerned.
The statute above quoted seems to authorize the quarantining of cattle by a sheriff upon complaint made to him by a citizen that such cattle are capable of communicating or liable to commu- . . tty nicate lever, and likewise seems to authorize such action if the officer otherwise has notice or knowledge of cattle capable of communicating or liable to communicate fever. In this case the sheriff justified on the paper, and not on his knowledge or on notice otherwise received ; hence we are concerned only with the validity of the communi cation on which he acted. In our judgment, the communication constituted no justification to him. The statute authorizes the sheriff to act only upon complaint made to him, and the paper quoted is not a complaint. A complaint is “a form of legal process which consists of a formal allegation or charge against a party, made or presented to the appropriate court or officer, as for a wrong done or a crime committed.” (State v. Dodge County, 20 Neb. 595, 31 N. W. 117.) The term “complaint” is not always limited to charges of crime or wrong, and it may be that, as used in some statutes, it comprehends oral as well as written allegations, but, whenever used, it means the making of a statement of fact as the basis for the taking of legal action. The communication to the sheriff in this case did not contain any statement of fact whatever. It did not inform that officer that the plaintiff’s cattle were capable of communicating or were liable to impart fever. It was a mere notification that, by the authority of the live-stock sanitary commission, he, the sheriff, was requested to quarantine the plaintiff’s cattle. This could not legally suffice to invoke the action of that officer. The statute is a very summary one. It authorizes the arbitrary seizure and detention of the citizen’s property, without trial of the rightfulness of such action, and provisions immediately following the one above quoted charge ■ upon the property impounded a lien for the expense of withholding it from the owner. The inflexible rule is that such statutes are to be strictly construed and the power conferred to be nowise exceeded. The authorities hereafter cited in support of the next proposition also support this.
The defendant, after holding the cattle in quarantine for several days, received, and thereafter acted under, the following paper as his authority for continuing the detention of the animals :
“John Bryden, Chairman, Eureka, Kan.
Taylor Riddle, Secretary, Marion, Kan.
J. B. Beal, Grrainfield, Kan.
STATE OP KANSAS.
OFFICE OF
Live-stock Sanitary Commission.
“Coffeyville, Kan., October 21, 1898.
“Whereas, The sheriff of Labette county did, on the 11th day of October, a. d. 1898, temporarily quarantine, because of the alleged infection of Texas fever, the cattle and premises of B. P. Asbell, situated in Richland township, the same being the east half of section 18 and northwest quarter section 17, township 34 south, of range 21 east, in Labette county, Kansas; and said sheriff having duly notified this commission of said quarantine and infection, and this commission having examined into the matter: now, therefore,
“To A. F. Edwards, Sheriff of said County, greeting: You are hereby ordered by this commission to hold in safe quarantine all the cattle and the premises of B. P. Asbell, here above mentioned, in Labette county, Kansas, and to allow no cattle to be taken from said premises. And you are further ordered to notify the said Asbell in writing of this quarantine, and also post notices thereof warning the said Asbell, and all others, not to violate this order, under the penalties of the law. - j. B. Beal,
Member Live-stock Sanitary Commission.”
Neither upon oral argument nor in printed brief was any specific statutory authority for the issuance of the above precept pointed out. There are, perhaps, three sections under which a claim of authority to issue it may be made. They are as follows :
“Whenever the live-stock sanitary commission shall determine that certain cattle within the state are capable of communicating or liable of imparting Texas, splenic or Spanish fever, they shall issue their order to the sheriff or any constable of the county in which said cattle are found, commanding him to take and keep suck cattle in his custody, subject to such quarantine regulations as they may prescribe.” (Gen. Stat. 1899, §7092; Gen.. Stat. 1901, §7421.)
. . It shall be the duty of any member of said commission, upon receipt by him of reliable information of the existence among the domestic animals of the state of any malignant disease, to go at once to the place where any such disease is alleged to exist and make a careful examination of the animals believed to be affected with any such disease and ascertain if possible what if any disease exists among the live-stock reported to he affected, and whether the same is contagious or infectious, or not; and if such disease is found to be of a malignant contagious or infectious character, he shall direct the temporary quarantine and sanitary regulations necessary to prevent the spread of any such disease.” (Gen. Stat. 1899, §7117; Gen. Stat. 1901, §7430.)
“ If the member of the commission examining the place where such disease is supposed to exist shall be of the opinion that the exigencies of the case require, he shall immediately convene the commission at such place as he may designate ; and if upon consideration of his report the commission shall be satisfied that any contagious or infectious disease exist of a malignant character, which seriously threatens the health of domestic animals, they shall proceed at once to the infected district, ascertain and determine the premises or grounds infected, and establish the quarantine, sanitary and police regulations necessary to circumscribe and exterminate such disease.” (Gen. Stat. 1899, §7118; Gen. Stat. 1901, §7431.)
"Without taking into account the fact that the above-quoted order to the sheriff was attested by only one member of the live-stock sanitary commission, but regarding it as the act of the whole body and not of the individual member, or assuming, as perhaps may be rightfully done under section 7117 (Gen. Stat. 1901, §7430), supra, that one member alone is competent-to act, the order yet lacked an essential recital to show the rightfulness of its issuance. It failed to recite that fact which must of necessity have been found to justify the action taken. It failed to recite that the plaintiff’s cattle were “capable of communicating or liable of imparting fever,” as must have been found under section 7092 (Gen. Stat. 1901, § 7421), supra. It failed to recite that such disease was found' to be of “a malignant, contagious or infectious-character,” as must have been found under section 7117 (Gen. Stat. 1901, § 7430), supra; and it failed to recite that “a contagious or infectious disease exist of a malignant character,’-’ as must have been, found under section 7118 (Gen. Stat. 1901, § 7431), supra.
The live-stock sanitary commission, although not a. court, is nevertheless invested with powers judicial in character. The duty of determining, by investigation of the facts, whether a man’s property shall be seized and withheld from him is essentially judicial. The power to make this determination is conferred on an inferior tribunal : one proceeding in a most summary manner, and not- according to the course of the common-law. The unquestioned rule in such cases is that rightfulness or regularity of action in acquiring jurisdiction will not be presumed, but all such must affirmatively appear on the face of the proceedings, else the record of such proceedings will not constitute a defense against collateral attack. (1 Bailey, Juris. §129, et seq.) In Rex v. Croke, 1 Cowp. 26, it was ruled by Lord Mansfield that “where, by statute, a specific authority is delegated to particular persons, affecting the property of individuals, it must be strictly pursued; and appear to be so upon the face of their proceedings.” In that case a land-condemnation proceeding was held to be invalid because the proper tribunal had hot first recorded an opinion that the land was necessary for the public purpose, or that an application had been first made to the tribunal to exercise its powers, both of which were statutory requirements.
In Missouri it was held :
“The method of procedure for ascertaining damages done the owner by taking material from his land for the construction of a railroad is a summary one, and must be strictly pursued, and every essential prerequisite called for by the statute must affirmatively appear on the face of the proceedings in order to give them validity. Thus the failure of parties to agree as to the value of the material taken is a jurisdictional fact, necessary to empower the justice to appoint householders to ascertain the damages, etc., as in the above section provided; and in suit upon the award, made by the appraisers, the failure of the record of the justice to recite such non-agreement is an omission fatal to recovery; and it is an omission, also, which parol evidence cannot supply.” (Cunningham et al. v. The Pacific R. R., 61 Mo. 33.)
In Mississippi, to an action of trespass for breaking and entering the plaintiff’s close, the defendant pleaded the existence of a public highway where the alleged trespass was committed. The court rejected the record of proceedings laying out the highway because, although the proper tribunal, the county court, had ordered it laid out, yet the^record failed to show that the road-viewers had reported in favor of its establishment. It was accordingly ruled :
“Where a court has no jurisdiction over the subject-matter, or where an inferior court has jurisdiction over the subject-matter, but is bound to adopt certain forms in its proceedings, from which it deviates, the proceedings, in either case, are coram non judice, and constitute no justification in an action of trespass. The county court is an inferior tribunal, and if it steps beyond the limits of its jurisdiction or power, its acts are absolutely void, and- may be so regarded in an action of trespass, though not arrested by appeal or certiorari. The defects of the proceedings of the county court cannot be supplied by parole testimony. Their proceedings must be recorded and can be proved only by the record.” (Samuel Stockett v. James Nicholson, Walk. [Miss.] 75.)
In California, the foundation of a claim of title to land was a sale made in pursuance of a default judgment rendered by a justice of the peace. In an ejectment, the record of the proceedings before the justice was rejected, because it did not affirmatively appear therefrom that the action was brought in the proper township. (Lowe v. Alexander, 15 Cal. 296.) In many other cases, both of direct and collateral attack, it has been held that when by statute a summary power to sequester the citizen’s propefty, or otherwise restrict his personal rights, is conferred on a court or body of special and limited jurisdiction, the power must be strictly- pursued, and the record must affirmatively show that all necessary steps to the acquisition of the jurisdiction were taken. (Proctor v. The State, 5 Harr. [Del.] 387; Martin v. McKinney, Sneed [Ky.] 321; City of Chicago v. R. I. R’y Co., 20 Ill. 286; Pettus, Administrator, v. McClannahan, 52 Ala. 55.)
In the case of courts of general jurisdiction, the general grant of power confers a competency of constitution to decide on the extent of their authority, and to exercise it to final judgment; therefore,'the rightfulness of the exercise of the authority in a particular case will be presumed from’ the grant without 'a record recital of the facts. On the other hand, courts of special jurisdiction, being limited to the exercise of the power specially conferred, must be, there 'fore, subject to supervisory examination, to determine from the record made by them whether the jurisdic-< tion allowed has been more than specially exercised— that is, has been exceeded.
The former holdings of this court have been in accord with the general rule as we have stated it. The case of Oliphant v. Comm’rs of Atchison Co., 18 Kan. 386, was a collateral attack on the proceedings of the •board of commissioners in establishing a highway. The record of the proceedings did not show that the petitioners for the highway were householders, which ■the statute requires they shall be. Among other ■things, it was said :
“There is no presumption in favor of tribunals of •limited and special jurisdiction of the existence of facts outside of those named in the record. A party asserting their existence must prove them, or the •case will stand as though they did not exist.
“A petition, signed by at least twelve householders, is a condition precedent to the exercise of any authority on the part of the commissioners under the roads- and-highways act. Its existence is a jurisdictional fact. If the record upon its face fails to show affirmatively the existence of this fact, the proceedings will, when attacked directly by petition in error, be held void. If attacked collaterally, as in this case, doubtless the fact that the petitioners were householders, .and residing in the vicinity of. the road, might be proved by evidence aliunde the record; (Willis v. Sproule, 13 Kan. 257, 264, and cases there cited ;) but if not thus proved, and the record does not disclose the fact, the proceedings must be held void.”
Whether in this case it would have' been competent for the defendant to prove aliunde the record the unrecited jurisdictional fact, to wit, a finding of the existence of disease among the plaintiff’s cattle, or a finding that they were capable of communicating or liable to communicate disease, we need not inquire. In Oliphant v. Comm’rs of Atchison Co., supra, such-character of proof seems to have been thought permissible. It is doubtful whether the question was before the court for decision in that case or in the earlier one to which, reference was made. We assume that the record in this case does not raise it because counsel have made no reference to it. The defendant below, the defendant in error here, rested on the papers héreinbefore quoted. Those papers are insufficient as bases upon which to predicate a. defense, because they failed to recite those facts which alone can justify the action taken.
• The constitutional validity of those provisions of the statute hereinbefore cited, which authorize the seizure of cattle upon the suspicion of their infected or diseased condition, and which authorize their detention in quarantine upon the same suspicion, and at the owner’s expense, and without the allowance of a trial to him, has been raised and discussed by counsel, and some cases bearing on the question have been cited to us. (Miller v. Horton, 152 Mass. 540, 26 N. E. 100, 10 L. R. A. 116, 23 Am. St. Rep. 850; Train v. Boston Disinfecting Co., 144 Mass. 523, 11 N. E. 929, 5 Am. Rep. 113; City of Salem v. Eastern Railroad Company, 98 Mass. 431, 96 Am. Dec. 650; Raymond v. Fish, 51 Conn. 80, 50 Am. Rep. 3; Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205.) The case being determinable for plaintiff in error on grounds-other than the claimed invalidity of the statute, we have not deemed it necessary to.give thought to that matter.
The judgment of the court below is reversed and a new trial ordered.
Cunningham, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Pollock, J.:
The first contention made by counsel for plaintiff in error is that the statute authorizing a levy of thirty-five hundredths of a mill per dollar on the assessed valuation of the property of the consolidated company within the county of Pratt, to pay delinquent state taxes, is unequal taxa- ,. , ,, „ ,, , , tion, and, therefore, unconstitutional and void. This precise question was before this court in Railway Co. v. Clark, 60 Kan. 831, 58 Pac. 561, and there decided adversely to the contention now made by counsel for plaintiff in error. Upon a reexamination of this question, the court feels itself bound by, and adheres to, the former decision of this question there made.
The second and important contention of error in this case arises upon the construction of sections 39 and 40, chapter 60, Laws of 1871 (Gen. Stat. 1901, §§ 979, 980).
Section 39 provides:
“The city council are authorized and required to levy annually taxes on all the taxable property within the city, in addition to other taxes, and in sufficient amount for the purpose of paying the interest and coupons as they become due on all bonds of the city now issued or hereafter to be issued by the city, which taxes shall be payable only in cash.”
Section 40 provides :
“At no time shall the levy of all the city taxes of the current year exceed four per cent, of the taxable property of the city, as shown by the assessment books of the preceding year.”
It is earnestly contended by counsel for plaintiff in in error that these sections are repugnant in their terms ; that section 40 is a limitation upon the power of a city of the third class to levy taxes ; that in no year can a levy for all purposes be made in excess of forty mills on the dollar, and that, in consequence, the levy of 155 mills was therefore excessive, and void for want of power.
Counsel for the defendant trust company as ear■nestly contends that these sections may be so con strued as to give effect to both; that section 40 is a general provision, and section 39 an exception to this general provision. It must be, and is, conceded-that, if such construction may be given as will support and uphold both sections, such construction should be adopted. Counsel for defendants in error further contends that, as the power of the city to levy forty mills is conceded, and as the same has been neither paid, nor tendered, by the railway company, a permanent injunction was properly refused.
In support of their respective contentions, counsel cite numerous authorities. However, in the view of the case taken by this court, the construction to be given the statutory pro- . , visions above quoted is no longer an open question in this case. Whatever weight might be given to the argument of counsel for plaintiff in error, timely made, is here foreclosed. It is a rule of universal application that, in an action between the same parties, or those in privity with them, on the same claim or demand, a judgment on the merits is conclusive, not only as to every matter actually litigated, but of every matter which might have been offered to sustain or defeat the claim or demand. (Townsdin v. Shrader, 39 Kan. 286, 18 Pac. 186; Sanford v. Oberlin College, 50 id. 342, 31 Pac. 1089; Hyatt v. Challiss, 59 id. 422, 53 Pac. 467; Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195; Dimock v. Revere Copper Company, 117 U. S. 559, 6 Sup. Ct. 855, 29 L. Ed. 994.)
It must be borne in mind that it was sufficiently pleaded, and admitted upon the trial of this case, as shown by the record, that the trust company, by proper proceedings in mandamus, obtained, by the consideration of the district court of Pratt county, a peremptory writ of mandamus, commanding the mayor and city council of the city of Saratoga, and their successors in office, to make a levy of 150 mills on all the taxable property in said city, with which to make payment of its judgments. The parties to that action were the trust company, defendant in error herein, on the one hand, and the public officers of said city, charged by law with the duty of making a levy in their representative capacities, on the other.
The precise question now here attempted to be raised, that is, the power of the officers of said city, under the law, to make a levy of 150 mills, was necessarily in issue in that proceeding, and the district court could have directed no levy to be made which the city and its officers had not the power to certify and cause to be made under the statute law of the state. The extent of this power under the statutes must have been the very question first presented to that court for its determination, and its decision thereon is binding and conclusive so long as that decision remains unreversed, unmodified, and unimpeached for fraud, and it binds not only the parties to the record in that proceeding, but all persons whom they in their official capacity represented.
The plaintiff in error in this case was a taxpayer in said city. As such taxpayer of the city, it was represented by the officers of the city, was in privity with them ; hence, the litigation, decigion ^ judgment ^ thftt proceeding is binding and conclusive on plaintiff in error and every other taxpayer within the city, on all questions that were, or might have been, litigated in such action, until such judgment is impeached for fraud or collusion. (Holt County v. National Life Ins. Co., 80 Fed. 686, 25 C. C. A. 469; Freem. Judg. §178; 2 Black, Judg. § 584; Clark v. Wolf, 29 Iowa, 197; Ashton v. City of Rochester, 133 N. Y. 187, 30 N. E. 965; Grand Island & N. W. R. Co. v. Baker, 45 Pac. [Wyo.] 494.)
It follows, as a necessary conclusion, that the identical question here presented for our determination is, by reason of the judgment and decree of the district court of Pratt county in the mandamus proceeding, conclusively determined ; that the successors in office of those parties defendant in that proceeding, in their representative capacities, are merely ministerial officers for the purpose of carrying into effect the judgment and command of the court in that case, and their action, taken in obedience to that decision, cannot be controlled or enjoined in this subsequent suit.
The remaining insistence of counsel for plaintiff in error is, that no tax was regularly levied in the city of Saratoga in the year 1894. This contention is based upon the assumption that the attempted election for choice of mayor and members of city council was defective and void, and conferred no power on the parties assuming to act to make a levy or to make it in manner and form as made. It is shown by the record that no proclamation calling the election was given. In the very nature of things none could be given, but all the qualified voters in the city at the time of the election are shown to have been present and to have participated in the same. The parties voted for assembled on the night of the election and canvassed their own vote and declared the result, subscribed their respective oaths of office, and passed the ordinance making the levy complained of, in obedience to the command of the district court contained in the peremptory writ of mandamus. This ordinance was not recorded and kept in the book of ordinances of the city, but upon a separate paper, the ordinance book not being in the possession of the newly-elected officers of the city. But, conceding these irregularities, does it render void the act of the officers acting in ministerial capacities under the command of the court so to act? Certainly not. Their rights to the offices have never been directly assailed. Their selection to office appears to have been fairly determined at an election held upon the day by law provided for the holding of such elections, and was participated in by all the qualified electors remaining in the' city, and appears to have been conducted as nearly in conformity with the provisions of the law in that respect as the exigencies of the case would admit. Their right to act is thus placed beyond dispute in this collateral proceeding, and could only be inquired into in a direct proceeding instituted for such purpose. (McCrary, Elect. § 316; Hadley v. Mayor, 33 N. Y. 603, 88 Am. Dec. 412; Hunter v. Chandler, 45 Mo. 452; The People v. Vail, 20 Wend. 12; People v. Jones, 20 Cal. 50; Taylor v. Taylor et al., 10 Minn. 107)
The tax so levied by ordinance, having been duly certified to the properly constituted authorities and regularly extended upon the tax-rolls of the county, constitutes a proper charge on the property. The fact that the ordinance levying this tax was not recorded in the regular ordinance book of the city cannot avail plaintiff in error in this suit. Proper proof of the passage of such ordinance was made, and that is sufficient. (City of Troy v. A. & N. Railroad Co., 11 Kan. 519; City of Solomon v. Hughes, 24 id. 211; K. C. Ft. S. & G. Rld. Co. v. Tontz, Treas., 29 id. 460.)
The power to make the levy of 135 mills on the assessed valuation of the property of the consolidated company in the former city of Saratoga, by the township trustee of Saratoga township and county board, under the provisions of section 979, General Statutes of 1901, at the next annual levy of taxes after the city had been dissolved as a body corporate, and the territory therein had been remitted to and become part of Saratoga township, from which the same had been created, is not seriously contested, and must be sustained.
It follows as a necessary consequence from what has preceded that the judgment refusing a perpetual injunction must be sustained.
It is so ordered.
Doster, G. J., Smith, J., concurring. | [
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