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Abbott, J.:
This is an appeal by Farm Bureau Mutual Insurance Company, Inc. (Farm Bureau) from an order in a garnishment proceeding whereby Farm Bureau was ordered to pay United States Fidelity & Guaranty Company (USF&G) and Sue Hokanson a judgment rendered against Debra Cookson.
This action arises out of a one-car accident that occurred on March 14, 1974. Sue Hokanson was driving a 1972 Chevrolet Blazer titled in her husband’s name. The Western Fire Insurance Company (Western) insured the 1972 Chevrolet Blazer. Debra Cookson was seated on the middle of the front seat. She owned a 1965 Mustang and was a named insured of Farm Bureau. The right front seat was occupied b.y Katherine Hawthorne who was insured by USF&G.
The accident occurred when Debra Cookson suddenly pulled on the steering wheel, causing the driver, Sue Hokanson, to lose control of the vehicle. The vehicle overturned and Katherine Hawthorne was injured. USF&G paid personal injury protection (PIP) benefits to Katherine Hawthorne under her policy, and pursuant to K.S.A. 40-3113(c) sued both the driver, Sue Hokanson, and the passenger who yanked the steering wheel, Debra Cookson, to recover the PIP benefits in the amount of $2,302.53 it had paid to Katherine Hawthorne.
Western, in defending its insured driver, Sue Hokanson, filed a cross-claim in her name against Debra Cookson for $2,559.60, the amount of property damage Western had paid to Hokanson.
Farm Bureau refused to defend Debra Cookson, who then employed private counsel. Judgment was entered by consent against Ms. Cookson in favor of USF&G in the sum of $2,302.53, the amount USF&G had paid Katherine Hawthorne in PIP benefits. Consent judgment was also entered against Ms. Cookson in favor of Sue Hokanson for the property damage to her car in the amount of $2,559.60. The claim of USF&G against Sue Hokanson was then dismissed with prejudice.
An order of garnishment was served on Farm Bureau. Farm Bureau answered denying coverage and further alleging that if its policy afforded Debra Cookson coverage it would be excess coverage over and above the primary coverage afforded Sue Hokanson by Western. Exception to Farm Bureau’s answer in garnishment was taken by USF&G and Hokanson (Western).
The trial judge found as follows:
“1. That when Debra Cookson grabbed the steering wheel as set out more fully in the depositions, she obtained use of the Hokanson vehicle as contemplated in Farm Bureau’s contract of insurance; and,
“2. That she did so without the permission of the insured or his spouse as required under Paragraph III, sub-paragraph A of Western’s contract of insurance.
“I therefore find that Debra Cookson’s policy of insurance with Farm Bureau provides coverage in this matter and is subject to the judgment entered against Debra Cookson.”
Farm Bureau appeals, contending the trial court erred in finding that Farm Bureau provided coverage to Debra Coolcson and that Western did not.
Both Western and Farm Bureau introduced their respective insurance policies into evidence and we have had an opportunity to examine them. We note at the outset that Farm Bureau’s insurance policy named Debra Cookson as a named insured. Under the terms of that policy she would be covered in “the use of any other automobile” despite the fact that she might be using that automobile without the permission of anyone authorized to give permission to her.
Farm Bureau contends that the actions of its insured do not amount to the “use” of the Hokanson vehicle within the meaning of its policy. It is Farm Bureau’s position that as its named insured had no care, custody, or dominion over the vehicle, she was not “using” it.
Basically, coverage clauses are interpreted broadly to afford the greatest possible protection to the insured, while exclusionary clauses are interpreted narrowly against the insurer. The word “use” in Farm Bureau’s policy is given a broad, general and comprehensive meaning effecting broad coverage in view of the fact it is found in coverage clauses. (United States Steel Corp. v. Transport Indent. Co., 241 Cal. App. 2d 461, 50 Cal. Rptr. 576 [1966]; United States Fidelity & Guaranty Co. v. Continental Ins. Co., 1 Kan. App. 2d 722, 573 P.2d 1106 [1977].)
The Kansas Supreme Court has had occasion to define the term “use” in an insurance context. In Esfeld Trucking, Inc. v. Metropolitan Insurance Co., 193 Kan. 7, 11, 392 P.2d 107 (1964), the Supreme Court discussed the term and stated that the court “must consider whether the injury sustained was a natural and reasonable incident or consequence of the use of the vehicle involved for the purposes shown by the declarations of the policy though not foreseen or expected.” In Alliance Mutual Casualty Co. v. Boston Insurance Co., 196 Kan. 323, 411 P.2d 616 (1966), the term “use” was said to be a broad catchall designed and construed to include all proper uses of the vehicle. One treatise has defined “use” as “[a]ny exercise of control over the vehicle constitutes a use, regardless of its purpose, extent, or duration.” (12 Couch, Insurance § 45:64, p. 153 [2d ed. 1964].)
Appellant argues that to allow Debra Cookson’s actions to be covered by automobile liability insurance protecting against bodily injury or property loss arising out of the use of an automobile would be to extend such coverage to a personal liability situation. In support of this proposition, Farm Bureau cites Potomac Insurance Company v. Ohio Casualty Insurance Company, 188 F. Supp. 218 (N.D. Cal. 1960). We cannot agree. The insured in Potomac was a passenger in the automobile involved in an accident. The passenger was sued by two other passengers who sought to hold him liable for their injuries on the theory that he had distracted the driver. A California federal district court held that the defendant was a mere guest, noting there was no evidence that he had exercised any authority or control over the driver or the manner in which he drove the automobile. Potomac is clearly distinguishable in view of the fact that in this case Debra Cookson actually took control of the automobile. When Debra Cookson grabbed the steering wheel she obtained the use of the vehicle. By grabbing the wheel and exerting a force on it, she obtained control of the vehicle, even though for only an instant. It is immaterial that she exercised control solely for the purpose of perpetrating a prank.
Unauthorized control previously has been held to constitute the use of a vehicle. In Bowman v. Preferred Risk Ins. Co., 348 Mich. 531, 83 N.W.2d 434 (1957), the Michigan Supreme Court held that one who entered an automobile without the permission or knowledge of its owner and attempted to move it a short distance in order to allow him to park his car was “using” the vehicle within the meaning of the policy when he released the handbrake, turned the steering wheel, and struck another vehicle due to the car’s defective brakes.
We believe that when a person takes control of a moving vehicle, even though for only an instant, that person has gained control over it and is operating it within the normal definition and understanding which ordinary laymen would give to an insurance policy.
Farm Bureau’s automobile liability insurance policy did not require the named insured to obtain permission to “use” an automobile belonging to a third party. Simply stated, the Farm Bureau policy would afford insurance protection to the named insured, even though the insured might be driving without the owner’s permission and even though the automobile had been stolen by the named insured. Western’s insurance policy provides coverage under a standard omnibus clause for any person or organization legally responsible for the use of the insured automobile “provided the actual use of the automobile is by the named insured or spouse or with the permission of either.” The trial judge thus determined that Debra Cookson was not driving the insured vehicle with either the express or implied permission of Western’s named insured or spouse and denied recovery under its policy.
Western takes the position that this court need only search the record for substantial competent evidence to support the findings of the trial court. Our scope of review is not so limited. The evidence before the trial court consisted wholly of depositions, an accident report, and two insurance policies. When the controlling facts are based upon written or documentary evidence of the kind before us, the trial court has no peculiar opportunity to evaluate the credibility of witnesses, and this court has as good an opportunity to examine and consider the evidence as did the trial court. (United States Fidelity & Guaranty Co. v. Continental Ins. Co., supra; Reznik v. McKee, Trustee, 216 Kan. 659, 534 P.2d 243 [1975].) Farm Bureau first asked this court to find that if its insured was “using” the vehicle within the meaning of the “use of other vehicle” coverage of its policy, then she must have been “using” the vehicle within the meaning of the omnibus clause of the Western policy. Again, public policy requires that the omnibus clause of an automobile liability insurance policy be liberally construed. (Alliance Mutual Cas. Co. v. Hartford Accident & Indemnity Co., 210 Kan. 769, 504 P.2d 161 [1972].) There being no substantial difference in the language in the two policies or in the manner in which the term “use” is employed, it would seem to us that if a person is using an automobile within the meaning of the Farm Bureau policy, then that person must also be using the automobile within the meaning of the Western policy.
Farm Bureau then argues that this court should adopt the “initial permission” rule. Under this rule, the person using the vehicle need have received permission only in the first instance, and any use of the vehicle while it remains in the permittee’s possession is with permission although that use is for a purpose not contemplated by the one originally giving permission. Followed to its logical conclusion, Farm Bureau contends that when Sue Hokanson, Western’s insured, invited Debra Cookson, Farm Bureau’s insured, to accompany her on the trip, she thereby gave her permission to Cookson to use the vehicle, and that as a result Cookson’s actions in grabbing the wheel were within the permission of the insured. Farm Bureau’s argument has not been followed in the past by the Kansas appellate courts.
Although the legislature has seen fit to require automobile insurance, and our courts have consistently held that the insuring clauses are to be construed liberally to protect the public, Kansas has not adopted Farm Bureau’s position. While the argument is forceful, and we might be inclined to adopt that position if we were free to do so, we are faced with the recent Supreme Court decision wherein the Kansas Supreme Court had an opportunity to apply the “initial permission” rule and did not do so. In Gangel v. Benson, 215 Kan. 118, 523 P.2d 330 (1974), the Supreme Court denied coverage to a second permittee who was operating a vehicle when the named insured had expressly prohibited the first permittee from allowing other persons to use or operate the vehicle. We point out that such a prohibition by the named insured may not prevent the application of an omnibus clause when the vehicle is being used for the benefit of the first permittee or the named insured, or if the first permittee has an equitable title or its equivalent and has unfettered control over the daily use of the car outside the surveillance of the named insured, or if the named insured is aware of past violations of instructions but allows the permittee to retain possession. (Jones v. Smith, 1 Kan. App. 2d 331, 564 P.2d 574 [1977].) Thus, Kansas does not follow the “initial permission” rule, nor does it follow the “strict” rule, but rather has adhered to a moderate view.
Applying the moderate view, the question becomes whether the deviation from the permission granted is “minor” or “material.” While Debra Cookson was granted permission to be a passenger in the vehicle, she materially deviated from her permitted use as a passenger when she took control of the operation of the vehicle from a passenger’s location by grabbing the steering wheel while the car was traveling at sixty miles per hour. She did not have permission of the named insured to take physical control, nor was she an insured under the. policy.
Farm Bureau calls our attention to Home Indemnity Company v. Lively, 353 F. Supp. 1191 (W.D. Okla. 1972) wherein the Federal District Court, on facts similar to our case, held that the passenger’s insurance was excess coverage insurance where the passenger threw a pop bottle from a moving vehicle, striking a pedestrian in the head and causing severe injuries. There the court found the occupancy was with the permission of the owner, and the passenger’s act of throwing out the bottle was within the scope of the owner’s permission. In Lively, the passenger was not exceeding the scope of the owner’s permission at the time of the accident. It is not unreasonable to assume that a passenger might throw an object out of a moving vehicle. It is unreasonable to assume that a passenger will grab a steering wheel and, without warning to the driver, give it a yank while the car is traveling at sixty miles per hour.
Farm Bureau argues that it should not be required to pay for the automobile since its collision or upset provision does not apply to any loss where there is other insurance that would apply thereto. Western’s policy paid for its insured’s vehicle, and it is Farm Bureau’s position that Sue Hokanson cannot now maintain a collision claim against Farm Bureau since she had coverage under her policy with Western which paid for her damage. Unfortunately for Farm Bureau, the claim is not made against the collision or upset provision, but is made as a property damage liability claim, and we find no language in the policy which would bar it on that basis. Coverage B of the Farm Bureau policy provides that Farm Bureau will “pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the ownership, maintenance or use of the automobile.” The property damage arose out of the use of a vehicle, and thus it is covered by the property damage section of the Farm Bureau automobile liability policy. If Farm Bureau had desired to limit a claim of this type, it easily could have provided for an exclusion similar to that found in its collision and upset provision.
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Meyer, J.:
The appellant, Gary Gammill (defendant), was taken into custody February 2, 1977, in Galena, Kansas, and subsequently transported to Crawford County and placed in detention in the Children’s Court Center in Pittsburg, Kansas. While going through intake procedures at the center, the Crawford County sheriff seized certain pubic hairs from the defendant by plucking them from his body and also took a wristwatch. On February 8, 1977, the defendant was ordered by the district court to be tried as an adult under authority of K.S.A. 38-808. Subsequent thereto, a complaint and information were filed charging the defendant with violations of K.S.A. 21-3502 and K.S.A. 21-3426, the crimes of rape and robbery, Class C felonies. Defendant was found guilty of both charges.
The defendant contends that the taking of pubic hair by plucking it from his body and the seizure of his wristwatch constituted error. He complains that the items were not seized pursuant to a valid search warrant or incident to a lawful arrest, and that the seizure was unreasonable and in violation of his federal and state constitutional rights.
For a period of six days, as noted above, the defendant was a juvenile and entitled to treatment as such. His parents were not notified at the time he was taken into custody nor were they present when the hair was extracted from defendant. A juvenile is entitled to have his parents present as soon after his detention as possible, and is not to be treated as a criminal defendant. The evidence discloses that some 20-25 hairs were “plucked” or “yanked” from the defendant’s body. Not only would a much fewer number have sufficed, the manner of extraction was a needless indignity visite|d upon the defendant. Thus, collection of the hair samples in the manner employed here, without the consent of defendant’s parents, and without his permission, cannot be justified as a seizure “incident to a lawful arrest.” Neither can it be claimed that the warrantless seizure was necessary because of exigent circumstances. Pubic hairs may be expected to remain where they are for a considerable period of time — certainly long enough to obtain a valid search warrant or court order. There is no reason, for example, that the sample could not have been taken after the defendant had been certified to be tried as an adult. Furthermore, provisions could have been made for a physician or medical technician to obtain the sample under circumstances which would afford the defendant the dignity to which every person is entitled under his presumption of innocence.
We are cognizant of the case law authorizing the taking of blood samples from a defendant without his consent and without a court order. Warrantless extraction of blood, however, is permitted because the defendant is suspected of having ingested drugs or alcohol. Any incriminating substance present in the defendant’s blood at the time of arrest might well dissipate before a court order could be obtained. As we have said above, no such need for haste appears in the instant case.
The following quote from Schmerber v. California, 384 U.S. 757, 16 L.Ed.2d 908, 86 S.Ct. 1826 (1966), sets forth the principle with which we are here concerned:
“Whatever the validity of these considerations in general, they have little applicability with respect to searches involving intrusions beyond the body’s surface. The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.
“Although the facts which established probable cause to arrest in this case also suggested the required relevance and likely success of a test of petitioner’s blood for alcohol, the question remains whether the arresting officer was permitted to draw these inferences himself, or was required instead to procure a warrant before proceeding with the test. Search warrants Eire ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned. The requirement that a warrant be obtained is a requirement that the inferences to support the search ‘be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.’ [Citations omitted.] The importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt is indisputable and great.” 384 U.S. at 769-770.
Courts have, of course, upheld seizure of pubic hair samples as evidence; however, in all such cases that we have seen, the hair samples were cut or snipped and not plucked out by the roots. For example, in Commonwealth v. Tarver, 369 Mass. 302, 345 N.E.2d 671 (1975), the court says:
“In concluding that the taking of the hair samples was not unreasonable within the meaning of the Fourth Amendment, we consider, in addition to the existence of probable cause, that the taking of the hair samples was not an unreasonable bodily intrusion, if it was a bodily intrusion at all.” 345 N.E.2d at 676.
We conclude that plucking out pubic hair, which removes the hair follicle from beneath the surface of the skin, is a bodily intrusion. We do not hold that procuring such a sample pursuant to a valid search warrant is improper. No great burden would have been placed on the sheriff either to obtain a search warrant or court order requesting that a doctor extract the sample, or to cut, rather than pluck, the hairs.
The seizure of the wristwatch, on the other hand, we deem to be proper. Anyone taken into custody, whether juvenile detention or temporary imprisonment under charge for a crime, is subject to an inventory search and recording of the property upon his person. We find no reason, under all the circumstances of this case, why seizure of the wristwatch was improper.
Defendant’s next contention is that there is insufficient evidence to support his conviction of robbery under K.S.A. 21-3426. The statute, in pertinent part, reads as follows:
“Robbery is the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force.”
The facts of this case support a reasonable inference that the complaining witness was under a threat of bodily harm to her person. The victim’s purse was on a table in the dining room. The dining room was between the bedroom where the victim lay and her only avenue of escape to the outside. There was also evidence that the defendant on several occasions opened the door to the bedroom to threaten the complainant again. However, because the purloined wallet was taken from the dining room table while the complainant was in the bedroom, we would ordinarily feel an instruction on theft should have been given to the jury, were it not for an additional fact. The evidence revealed that after the defendant had stolen the wallet from the victim’s purse, he returned, broke in the door, and took the purse from the immediate presence of the complaining witness. Whether the wallet was stolen from the victim’s presence and whether she was in fear of bodily harm when the wallet was taken becomes moot. Under these circumstances, we see no error in refusing to give an instruction on a lesser included offense of theft.
Defendant next alleges that the trial court erred in allowing the court reporter to read back a portion of the testimony of the prosecution’s expert witness in the jury room. Neither the defendant nor his attorney was present, as required by K.S.A. 22-3405 and the Sixth and Fourteenth Amendments to the Constitution of the United States.
The jury, after retiring for deliberation, requested that certain testimony be read back to them. The court held an in-chambers conference attended by the court reporter and the attorneys to consider whether the testimony should be read back to the jury. Neither plaintiff’s nor defendant’s attorney objected. The court thereupon sent the reporter, who entered the jury room alone, to read back the requested testimony. While the trial court has discretion to determine whether testimony should be read back to the jury, it is clear that such a “read-back” must be done in the courtroom, in the presence of the defendant. The defendant here was not personally present, even at the preceding conference in chambers. It is questionable whether the defendant’s attorney can waive such a right (that is, by failing to object) in the absence of the defendant’s personal presence; there is no question that he cannot make such a waiver without having at least discussed the matter first with his client. The pertinent rule is set forth in State v. Andrews, 218 Kan. 156, 161-162, 542 P.2d 325 (1975):
“It has long been established by this court that if the jury requests the trial court to have the testimony of any witness read to them, it is proper for the court to require the official court reporter to do so in the presence of the parties to the action.”
The United States Supreme Court held, in Illinois v. Allen, 397 U.S. 337, 25 L.Ed.2d 353, 90 S.Ct. 1057, reh. denied 398 U.S. 915, 26 L.Ed.2d 80, 90 S.Ct. 1684 (1970), that the Sixth Amendment guarantees the defendant the right to be present at every stage of his trial in the case.
“The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that: ‘In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .’ We have held that the Fourteenth Amendment makes the guarantees of this cause obligatory upon the States. Pointer v. Texas, 380 U.S. 400 (1965). One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial. Lewis v. United States, 146 U.S. 370 (1892).” 397 U.S. at 338.
Reading back any testimony to a sequestered jury is a part of the trial, and certainly is encompassed in the phrase “at every stage of his trial.”
Defendant also contends that the statements of the prosecutor in closing argument in characterizing the defendant as an “animal,” in commenting on testimony properly objected to and excluded by the court, and in commenting on the credibility of witnesses, prejudiced the due process rights of the defendant and denied him a fair trial.
The reference to defendant’s being an animal was definitely improper. The court had not yet submitted the case to the jury, and defendant was still entitled to a presumption of innocence. We do not feel, however, that the comment, standing alone, constitutes reversible error.
The following statement, however, also made in the state’s closing argument, is error of a significant nature.
“Mr. Loffswold complains that the State is unable to say with any certainty that the hair that belongs to Mr. Gammill and the unknown hair are the same. We tried, as you heard, over lengthy objections, to give you some sort of rule. We could not do so because we did not have the proper books here.”
Such a statement strongly implies there was substantial (proper) proof of the defendant’s guilt that the trial court would not allow into evidence. The jury is entitled to consider only that evidence which the trial court' permits to be introduced. The prosecutor’s remark undermined the authority and the credibility of the court and was impermissible.
The state’s attorney also made remarks which were tantamount to his endorsing the credibility of certain witnesses. This leaves the jury with the impression that the prosecutor has knowledge other than what was presented to them. Vouching for the credibility of witnesses is reversible error. State v. Majors, 182 Kan. 644, 323 P.2d 917 (1958); United States v. Ludwig, 508 F.2d 140 (10th Cir. 1974).
The defendant finally argues that the trial court erred in not granting a new trial because of the prosecution’s failure to disclose exculpatory evidence to the defendant. This allegation arises from the following: The alleged rape occurred on the night of December 10, 1976; in the early morning hours of December 11, 1976, the prosecutrix was examined by a doctor at the Girard Hospital. The complainant stated that she did not douche prior to the examination. The results of a microscopic examination of the victim’s perineal washings and vaginal aspirations indicated that no spermatozoa were present. Defendant claims that the examination results were not disclosed to him at or prior to the trial, and that he first learned of this information two days after the trial. He states that he examined all file material of both the county attorney and the sheriff pursuant to a discovery order, but found nothing pertaining to the complainant’s examination. Defendant alleges suppression of this evidence was deliberate and in bad faith; or, if not deliberate, at least the defense could have made advantageous use of the information.
We need not concern ourselves with whether this evidence was withheld deliberately or through inadvertence, because the deputy sheriff undisputedly took the victim to the hospital. The information is imputed to the prosecution, and the fact that it was not communicated to the defendant, regardless of intent, was improper. The state argues that the evidence was not exculpatory. As we view exculpatory evidence, it need not be evidence so strong that it would absolutely exonerate the defendant, but only strong enough to be of assistance in the defense. The state reasons further that the evidence was not of sufficient materiality to affect the ultimate question of guilt or innocence. To this we might agree, were it the only error appearing in this case. As we have noted above, however, it is not. Following State v. Kelly, 216 Kan. 31, 531 P.2d 60 (1975), we would not reverse on this issue standing alone, but consider that it is relevant in arriving at a complete determination herein.
We do not overlook defendant’s contention that because a proper chain of custody was not established, the court erred in admitting defendant’s wristwatch into evidence; however, we feel that defendant’s claim in this regard lacks merit.
Defendant’s final allegation of error is that the totality of the circumstances raised in the above issues substantially prejudiced defendant and denied him a fair trial. We agree.
In summation, the view of this court is that the following considerations, when taken collectively, are so great as to require a reversal of defendant’s conviction:
(1) removal of pubic hairs without defendant’s consent, without a search warrant when there was ample time to procure one, without defendant’s parents being present or afforded an opportunity to be present, and considering defendant’s age of 17 years;
(2) permitting the court reporter to read back particular testimony to the jury, behind closed doors in the jury room, and in the absence of either attorney or the court or the defendant;
(3) calling the defendant an “animal”;
(4) the prosecutor’s closing argument in stating to the jury that the state could have proved certain facts had it not been for the trial court’s overruling its objections and refusing to permit the evidence to be received;
(5) the prosecutor’s stating to the jury that he absolutely knew the truth of certain statements, thereby in effect giving weight and credence to certain facts not in evidence.
Under the totality of the circumstances, we find that the de fendant did not receive fair treatment and a fair trial, and hold that the case must be reversed and remanded for a new trial.
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Parks, J.:
This is an action brought pursuant to the Kansas Automobile Injury Reparations Act, K.S.A. 1975 Supp. 40-3101, et seq., commonly known as the Kansas No-Fault Insurance Act. Summary judgment for the defendant was entered on April 19, 1977. Plaintiff appeals.
As we turn to the factual background of this dispute, we should be mindful of the rules relating to the granting and appellate review of summary judgments. K.S.A. 60-256(c) provides for the entry of summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .”
An appellate court should read the record in the light most favorable to the party against whom summary judgment was entered. It should take such party’s allegations as true, and it should give him the benefit of the doubt when his assertions conflict with those of the movant. Factual inferences tending to show triable issues must be considered in the light most favorable to the existence of those issues. If there is a reasonable doubt as to the existence of fact, a motion for summary judgment will not lie. Moreover, pleadings and documentary evidence must be given a liberal construction in favor of the party against whom the motion is directed. Mildfelt v. Lair, 221 Kan. 557, 561 P.2d 805, and cases cited therein.
On May 30,1975, the plaintiff Sylvester Smith, Jr., Andy Smith, and Thomas Brown were passengers in a car driven by the defendant, Kevin Marshall. The defendant pulled over to the lefthand curb on a one-way street in Topeka, Kansas, to let the plaintiff out of the car. Plaintiff got out of the passenger side of the automobile and started toward his house, walking in front of the defendant’s vehicle and behind another car which was parked at the curb. While plaintiff was between the two cars, defendant attempted to put his car in reverse, but instead put it in neutral or drive. The car then rolled forward, pinning the plaintiff between the two cars and injuring his lower right leg.
The crucial issue is whether under the facts of this case there remain material questions of fact to be decided by the jury.
One of the questions before the trial court was whether the threshold requirements for maintaining a claim for pain and suffering have been satisfied; or more precisely, whether the scar on the plaintiff’s right leg is a permanent disfigurement within the meaning of K.S.A. 1975 Supp. 40-3117. The trial court ruled as a matter of law that it is not. We disagree and hold that it is a matter of fact to be determined by the trier of fact.
In resolving that question it was necessary to examine the following section of the Kansas Automobile Injury Reparations Act, which provides that:
“In any action for tort brought against the owner, operator . . . of a motor vehicle ... a plaintiff may recover damages in tort for pain, suffering, mental anguish, inconvenience and other non-pecuniary loss because of injury only in the event the injury requires medical treatment . . . having a reasonable value of five hundred dollars ($500) or more, or the injury consists in whole or in part of permanent disfigurement, a fracture to a weight-bearing bone, a compound . . . fracture, loss of a body member, permanent injury within reasonable medical probability, permanent loss of a bodily function or death. . . .” [K.S.A. 1975 Supp. 40-3117.]
The only condition prescribed by K.S.A. 1975 Supp. 40-3117 which is applicable in this case is that pertaining to permanent disfigurement.
In resisting the defendant’s motion for summary judgment, the plaintiff presented evidence as to the nature and extent of his injuries. A chiropractor, Dr. Counselman, testified that the plaintiff had in fact suffered permanent disfigurement and permanent injury. Counselman had examined the plaintiff approximately five days after the impact, at which time he discovered that the plaintiff’s bone and soft tissue were bruised. Moreover, at the defense counsel’s request, Dr. Counselman used the plaintiff’s leg as an exhibit and pointed out the scar to the court. His testimony revealed that the injured area was right on top of the bone and that “[i]f you hold it just right you can pull it and see a scar.”
Following this line of questioning, the trial judge ran his finger over the leg in the area which Dr. Counselman had described and from a visual and a touch observation found no scarring, i.e., “broken skin with a lesion over the scarring.” He further noted that the area was smooth but ascertainable as an innocuous discoloration of the right leg extending approximately one and one-fourth inches long and one-half inch in width.
By agreement of court and counsel, a photograph of plaintiff’s leg was taken and made a part of the record. This exhibit has been examined by this court.
An analogous situation arose in Florida where the plaintiff was injured in an automobile accident which resulted in a 4.5 centimeter trap-door scar on his forehead. The trial court granted summary judgment in favor of the defendant because the scar was not a “permanent disfigurement” as required by the threshold requirements of the Florida Automobile Reparations Reform Act. The applicable Florida statute then in effect (F.S. 627.737) was similar to K.S.A. 1975 Supp. 40-3117 and, like our statute, did not define the word “disfigurement.” In reversing the trial court the Florida District Court of Appeal said:
“We hold that a permanent scar may be a permanent disfigurement within the contemplation of F.S. 627.737. We do not imply that every scar is a disfigurement but when the existence of the scar is established, whether or not it is a disfigurement is a matter of fact to be determined by the trier of fact and may not be resolved, when properly placed in issue, by summary judgment.” [Gillman v. Gillman, 319 So. 2d 165, 166-167 (Fla. App. 1975).] [Emphasis supplied.]
Dr. Counselman’s testimony established the existence of the scar. Although the defendant’s counsel questioned the severity of the injury, he apparently conceded the scar’s existence by saying:
“And if I have ever seen a minor claim with regard to a claim of disfigurement, the scar in question, I think has to fall in the category of being a minor claim. Now the statute is . . . written ... in terms of . . . ‘permanent disfigurement.’ And permanent disfigurement, defined in my motion for Summary Judgment, is substantial disfigurement of a person. ... It isn’t any minor disfigurement. It is supposed to be a major disfigurement.”
Contrary to the no-fault statutes in other states, there is no requirement in our statute that the permanent disfigurement be “significant” (now in effect in Florida) or “serious” (Connecticut). The applicable threshold requirement of K.S.A. 1975 Supp. 40-3117 is simply permanent disfigurement. It being the function of this court to interpret statutes and not to rewrite legislation, we decline to view K.S.A. 1975 Supp. 40-3117 as requiring that the permanent disfigurement be anything other than “permanent” and a “disfigurement.” It is not our province to determine what the law should or should not be. Dougan, Administratrix v. McGrew, 187 Kan. 410, 415, 357 P.2d 319; State, ex rel., v. Mills, 171 Kan. 397, 401, 233 P.2d 720.
We adopt the Gillman decision as authority for vacating the summary judgment. Once the existence of a scar has been established, whether or not it is a permanent disfigurement is a matter of fact to be determined by the trier of fact on a case-by-case basis.
Judgment is reversed and the case is remanded for further proceedings. | [
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Spencer, J.:
Defendant was convicted of the unlawful possession of a firearm in violation of K.S.A. 21-4204(l)(b), which provides:
“(1) Unlawful possession of a firearm is:
“(b) Possession of a firearm with a barrel less than twelve (12) inches long by a person who, within five (5) years preceding such violation has been convicted of a felony under the laws of Kansas or any other jurisdiction or has been released from imprisonment for a felony.”
The possession requirement of this state has been discussed in State v. Phinis, 199 Kan. 472, 430 P.2d 251 (1967); State v. Runnels, 203 Kan. 513, 456 P.2d 16 (1969); State v. Knowles, 209 Kan. 676, 498 P.2d 40 (1972); State v. Neal, 215 Kan. 737, 529 P.2d 114 (1974); and State v. Ames, 222 Kan. 88, 563 P.2d 1034 (1977). In State v. Neal, it is stated:
“When taken together, Phinis and Runnels fashion the rule that the possession proscribed by the statute is not the innocent handling of the weapon but a willful or knowing possession with the intent to control the use and management thereof.” 215 Kan. at 740.
It is contended that certain comments made by the prosecuting attorney and by the trial judge were such as to require the granting of a new trial, and that the verdict of the jury was contrary to the evidence.
Defendant had stipulated that he had been convicted of a felony within the preceding five years. It was also an admitted fact that he had the weapon on his person within the home of his friend, Ida Myers; but it was claimed that the gun belonged to her and his was a mere innocent handling of it occasioned by her request that he make an appraisal of the gun before she offered it for sale. There was substantial evidence to the contrary, but the defendant’s testimony corroborated by the testimony of Ida Myers, if believed, was sufficient to support a finding that defendant did not willfully have the weapon in his possession with the requisite intent and power to control the use and management thereof.
During cross-examination of Ida Myers, the county attorney pursued a line of questioning to determine the name of the man she testified had given her the gun. It appears that Ida Myers had refused to identify that man at the preliminary hearing, although she did so at trial. When reminded of her testimony at the preliminary hearing, the following took place:
“Q. We asked you about that on the stand, though, in the preliminary; didn’t we?
“A. I know. But I didn’t know he had gotten a divorce. Remember, I told you he was married? I did say that. And I don’t like to get men in trouble.
“Q. But you couldn’t remember his name?
“A. Well, it was like this here, if I told you, you might have went up there; and if his wife had been at home, you might have got him in trouble. You see what I’m saying?”
The county attorney pursued identification of the man Ida Myers testified had given her the gun. An objection was made, after which the following occurred:
“MR. DALEY: Your Honor, we’re trying to identify a man and trying to get enough details. If he can be presented at this trial here either today or tomorrow, we would like to present him to find out if in fact he ever gave this lady a gun. She’s lied to us, evidently, once before.
“A. I didn’t lie, Your Honor.
“THE COURT: The objection will be overruled. Now, you may—
“MR. TUCKER: Well, I have another one. He stands there, and he says, ‘She’s lied to us once before,’ which is prejudicial to the jury and to my client. She has told no lies.
“MR. DALEY: She already said she did.
“MR. TUCKER: I will challenge the record on it.
“THE COURT: Well, gentlemen, I think we’ve all heard her testimony. We’ve heard what has been said here. I would suggest to the County Attorney that it might be best to refrain from—
“MR. DALEY: I apologize to the Court and to the jury.
“THE COURT: —from saying this, although it is a fair conclusion that the jury might draw and that the Court might draw from her testimony. So, if you will, simply proceed.”
Defendant argues that the testimony of Ida Myers was essential to corroborate his testimony, and by failing to admonish the jury to disregard the statements of the prosecutor, and by adding his own comment that “it is a fair conclusion that the jury might draw and that the Court might draw from her testimony,” the trial judge made it clear to the jury that he did not believe the testimony of this witness. Defendant asserts prejudicial error on the part of court and counsel sufficient to justify the granting of a new trial. We are compelled to agree.
Misconduct of the prosecutor as alleged here usually comes up in the context of closing argument to the jury rather than in response to an objection directed to the court within the hearing of the jury. Nevertheless, the controlling principles are the same. The duty of a prosecutor was noted in State v. Gauger, 200 Kan. 515, 520-521, 438 P.2d 455 (1968):
“It is the duty of a county attorney in a criminal prosecution to see that the state’s case is properly presented with earnestness and vigor, and to use every legitimate means to bring about a just conviction; but he should always keep in mind that he is an officer of the court. While he may indulge in oratory or may use picturesque language, as long as he introduces no facts not disclosed by the evidence, his liberty of argument must not degenerate into license to the extent the defendant’s right to a fair trial is prejudiced. The primary purpose of argument by counsel is to enlighten the jury so that it may render a correct verdict. Although counsel is allowed considerable latitude in discussing the evidence and drawing reasonable inferences therefrom, he may not introduce or comment on facts clearly outside the evidence. (State v. Majors, 182 Kan. 644, 323 P.2d 917; State v. Lopez, 182 Kan. 46, 318 P.2d 662; 53 Am. Jur., Trial § 463; 88 C J.S., Trial § 169.) Counsel may comment on the credibility of a witness where his remarks are based on facts appearing in the evidence . . . .”
We make note at this point that the statement of the prosecutor may well have amounted to unprofessional conduct in that it was an assertion of his personal opinion as to the credibility of the witness and a violation of Rule No. 501, Code of Professional Responsibility, DR 7-106(C)(4) (220 Kan. cxxii). Such a conten tion, however, was met by our Supreme Court in State v. McClain, 216 Kan. 602, 533 P.2d 1277 (1975), with the ruling that such a challenge should be determined upon prejudicial effect rather than professional propriety.
Although the record of the testimony at preliminary hearing was not in evidence, the testimony of Ida Myers, though not directly admitting of a lie, is replete with admissions that she had been less than truthful at the preliminary. As such, the comment by the county attorney may be considered to have been based on facts in evidence. In 75 Am. Jur. 2d, Trial § 305, p. 378, it is stated:
“[T]he mere characterization or denunciation of a witness as a perjurer, or of his testimony as perjured, in an argument to a jury, which amounted at most to an expression of counsel’s conclusion as to its reliability, has been held, where supported by or inferable from the evidence, not to constitute reversible error, particularly if the jury are adequately instructed with respect to their proper functions as triers of facts or as to what they are to consider as evidence.”
The comment by the trial judge becomes understandable in light of the test for determining the propriety of the prosecutor’s statement. His statement was to the effect that the statement made was one which reasonably coúld be inferred from the testimony, and, thus, was the explanation for his ruling on the objection. However, inquiry cannot stop here for it has been stated:
“[A] judge should exercise great care and caution to say nothing within the hearing of the jury which would give them an indication of what he thought about the truth or falsity of any part of the testimony.” State v. Boyd, 222 Kan. 155, 159, 563 P.2d 446 (1977).
In State v. Blake, 209 Kan. 196, 204, 495 P.2d 905 (1972), the court quoted from State v. Bean, 179 Kan. 373, Syl. 2, 295 P.2d 600 (1956):
“ ‘[T]he trial judge ... is bound to exercise extreme care to prevent giving to the jury the impression that he is biased against the defendant or that he does not consider the witness or the defendant worthy of belief, and he should not, by the form, manner, or extent of his questioning and remarks, indicate to the jury his opinion as to the defendant’s guilt.’ ”
and added:
“These admonitions are prompted by the truism that a jury has a natural tendency to look to the trial judge for guidance, and may find it even where it is not intended. The judge’s attitude and the result he supposedly desires may be inferred by the jury from a look, a lifted eyebrow, an inflection of the voice — in many cases without warrant in fact.” 209 Kan. at 205.
The prejudicial effect of the comment made by the trial judge is apparent, for the jury could then only assume that the trial judge agreed with the prosecutor that the witness was not to be believed.
Having so determined, it is neither necessary nor proper at this time to consider the second point on appeal.
Reversed and remanded with directions to grant the defendant a new trial. | [
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The opinion of the court was delivered by
Benson, J.:
The appellants ask for the reversal of a judgment correcting a mistake in a deed of conveyance made by the Osage Carbon Company to H. B. Miller.
The appellants contend that the cause of action is barred by lapse of time, that the mistake was not a mutual one, and that Clyde W. Miller is a bona fide purchaser of the land from H. B. Miller for value and without notice of the mistake, relying upon the terms of the deed as written.
Early in March, 1899, H. B. Miller and his brother, W. W. Miller, negotiated with the Osage company for the purchase of the east half of section 14, township 16, range 14, in Osage county, and about 1300 acres of other land, at the price of $10 per acre, the vendor reserving the coal and mineral on the half-section de scribed. This coal was then worth $25 per acre. It was agreed that one quarter in section 14 should be conveyed to each of the Millers, together with a part of the other land as divided between them. The deeds, were prepared in accordance with this agreement, each containing, however, a printed clause purporting to reserve all the coal and mineral upon all the land, but by another clause written in each deed following the covenants of warranty this reservation was expressly limited to the quarter in section 14 conveyed thereby. Before the deeds were delivered, upon the request of' the grantees, changes were made in both deeds so as to convey to each of the grantees the quarter in section 14 originally described in the deed to the other. While these changes were made in the descriptions in the deeds, by mutual mistake corresponding changes were not made in the reservation clauses. The deeds were then delivered and were recorded on May 1, 1899. Taxes were assessed on the mineral reserves on the quarter-section in controversy for the year 1905, and the years following to and including the year 1910, which were paid by the Osage company and its successors in the title thereto.' Taxes upon the surface of the land were paid by H. B. Miller.
In the year 1905, H. B. Miller offered this quarter-section for sale, with a reservation of the coal thereon. On receiving an offer for the land including the coal, he said he would try to procure a release of the coal reserve. Some time afterward he endeavored to obtain a quitclaim deed from the Cherokee company, then holding the title of the reserve, but the negotiations, failed. A letter from that company saying that it was unwilling to dispose of the mineral rights and declining to make the conveyance requested was received by H. B. Miller June 5, 1906, and was read by his son, Clyde W. Miller. In May or June, 1910, H. B. Miller, through his attorney, notified the Cherokee company that he claimed the coal measures underlying the southeast quarter of section 14, the land which had been conveyed to him by the Osage company. This was the first notice the plaintiffs, or either of them, ever received of any mistake in the deed. The defendants first discovered the mistake early in the year 1910. Just before this suit was brought the Jackson-Walker company, plaintiffs’ successor in the title to the coal reservations, undertook to sink a shaft for mining coal on the quarter conveyed to W. W. Miller, but were warned by his attorney to desist.
In the summer of 1906, Clyde W. Miller had a conversation with a representative of the Cherokee company with a view of purchasing the coal reserve in controversy, but without success. This was before he had read the letter above referred to. H. B. Miller held the possession of the land until March, 1910, when, for a consideration of $6000, he conveyed it, without reservation, by warranty deed to Clyde W. Miller, who has been in possession since.
It is argued by appellants that the statutory period allowed for the commencement of the action to correct the mistake began to run at the delivery of the deed, and that it was therefore barred by limitation before the suit was brought. Subdivision 6 of section 17 of the civil code, prescribing a limitation of five years in cases therein referred to, is cited as controlling. Decisions are cited from other states which appear to support the claim, but we need not go far afield for authorities, for the question has been decided by this court. In Duvall v. Simpson, 53 Kan. 291, 36 Pac. 330, it was held:
“While the lapse of time will bar equitable relief against a mistake made in describing land intended to be conveyed, the period of limitation will not begin to run until the discovery of the mistake, or until the time at which, by the exercise of reasonable diligence, it might have been discovered.” (Syl.)
The appellants insist that this decision is opposed to the terms of the statute and to a later decision in Railway Co. v. Grain Co., 68 Kan. 585, 75 Pac. 1051. The general expressions in the latter opinion relied upon by appellants can not be held to overrule the decision of the particular question in the Duvall case. The grounds of the decision are stated in the opinion, and need not be restated here. That decision has stood for nineteen years and the legislature has not seen fit to change the rule, and it will be adhered to.
It is argued that the record of the deed imparted notice of the mistake contained in it, and therefore that it must be held that the plaintiffs discovered the mistake by the constructive notice afforded by the record. The record certainly gave no better notice of the mistake than the original instrument. The argument was made in the Duvall case that the statute began to run at the delivery of the deed, but that view was not sustained. The conveyance in that case had been made more than five years before the suit was brought to correct the mistake.
The finding that the mistake was a mutual one is sustained by the evidence. The grantor intended to reserve the coal upon the land in section 14, conveyed by the deed. This was agreed to and understood by the grantee, as found by the court upon competent testimony. The clause as written reserved coal upon land not included in the conveyance, and was plainly a mistake, easily accounted for by the change made in the deed after it was prepared. Testimony is referred to tending to show that the grantee understood that there was to be no reservation, but any conflict in the evidence is settled by the finding.
The district court found that Clyde W. Miller at the time he received the conveyance had actual knowledge that the plaintiffs in this action claimed to own the coal reserve, and was a purchaser with notice of such claim. While complaint is made of the finding, it is sustained by evidence and can not be set aside here.
Upon the facts found by the district court, supported by competent evidence, the conclusions of law and judgment thereon accord with the well-settled principles of equity. The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff school district by vote of the inhabitants, at an election duly called, decided that the levy for school purposes for the ensuing year should be seven mills on the dollar or so much thereof as was necessary to raise $8000. The county commissioners and county clerk were notified of this action but refused to extend the levy on the tax rolls, and were proceeding to make a levy of four and one-half mills when this action was brought to compel compliance with the directions of the district. Four and one-half mills would produce about $6700 and to raise $8000 would require a levy of about five and one-tenth mills.
The sole question presented by the briefs and arguments concerns the effect of the limitation fixed by chapter 271 of the Laws of 1911, restricting levies to four and one-half mills. Up to 1909 the inhabitants qualified to vote at a school meeting, lawfully assembled, had the power to vote a tax for school purposes, the amount having been increased from two per cent in 1876 to two and a half per cent in 1907. (Laws 1907, ch. 318, § 1.) By section 30 of article 4 of chapter 122 of the Laws of 1876 this tax, properly certified, was required to be entered on the tax rolls by the county clerk.
In 1909, chapter 245 was enacted, limiting the levy of taxes in the several taxing districts of the state, section 24 expressly limiting the tax to be voted at an annual school-district meeting to three and one-half mills. At the same session chapter 214 of the Laws of 1909 was enacted authorizing the inhabitants at a school meeting, lawfully assembled, to vote a sum not exceeding the amount fixed by law, which should be certified by the clerk on or before the 25th day of July and levied by the county commissioners. Here the system was changed from a levy of a per cent by a district at this meeting to determining a sum, and the county commissioners were required to malee such levy as to produce practically this sum, the limit fixed by section 24 of chapter 245 of the Laws of 1909 being three and one-half mills. Chapter 245 took effect thirteen days before chapter 214 was in force. Chapter 214 amended the statute relating to the powers of electors at school meetings and added a section amending the former statute concerning the method of extending the levy on the tax rolls by the county officers. Up to the passage of chapter 245 of the Laws of 1909 whatever tax was or could be determined upon by a school district was controlled by a majority vote'at an annual or special meeting. But section 27 of chapter 245 (section 24 having restricted the authority of the voters at an annual meeting to three and one-half mills, which theretofore was twenty-five mills) provided that school districts by posting a notice in the manner provided by law for other elections or meetings might at an annual or special meeting, by a favorable thrée-fourths vote, empower the levying officers to make such increased levy as had been named in the notice, such increased levy to be only for the year voted upon. It will be seen, therefore, that these enactments left it within the power of an annual or special school-district meeting to authorize a levy of three and one-half mills by a majority vote, and empowered the district to hold an election for the express, purpose of increasing this levy to such extent as three-, fourths of the voters at such election might determine,, such increase to be for the one year only.
It is not strange that the same legislature which reduced the maximum from twenty-five to three and one-half mills should make this provision for exceeding the. latter limit by such election and majority. It must be remembered also that chapter 245 was concerned with fixing limits in all the taxing districts of the state and not wi¡fch the general powers of annual school-district meetings.
No doubt could arise that with the law as thus existing the plaintiff district would have the right to tax itself for the one year as determined upon at the election, which is said to have resulted in a vote unanimously in favor of the proposition. However, the legislature of 1911 enacted chapter 271 of the Laws of that year, which amended the second section of chapter 214 of the Laws of 1909, concerning the certifying and levying of the school-district tax, and provided that the county commissioners “shall, on or before the first Monday in August, annually, levy ... a percent-, age which will produce an amount equal to and not exceeding by more than five per cent the amount certified by the district clerk; provided, however, no levy shall exceed four and one-half mills.” The section thus amended provided that the sum fixed by the district should not be exceeded by more than one per cent, the amendment simply changing the former enactment so that such sum should not be exceeded by more than five per cent and providing that no levy should exceed four, and one-half mills. Being to quite an extent a reenactment of the law relating to the certification and levy, and having no apparent relation to the general limiting act of 1909, the legislature can not be held to Lave intended to amend or modify such act unless the wording compels such holding, for repeals by implica•.tion are not favored, and the general rule is that the /subject manifestly under consideration is the only one to which a given enactment applies.
It may be plausibly argued that by giving effect to both statutes the district might by a special election raise the limit from three and one-half to four and one-half mills. But it is more reasonable to conclude that by the later statute it was intended to cover the ordinary certification and levy arising annually, based on a majority, vote at the usual school-district meeting, without impairing the power of the district to exceed the limit upon the expression of a desire so to do by three-fourths of the voters at an election or meeting held for the purpose of taking the sense of the district on the question. , '
In chapter 245 the legislature had before it the matter of reducing and limiting the power of each taxing district in the state to impose a burden upon itself in the usual way, and was careful to make express provision for' each to go beyond the limit by submitting the question and receiving a favorable vote of three-fourths of the electors enough interested to cast their ballots. In passing the act. of 1911 the lawmakers were simply changing the modus operandi and power concerning the determination, certification and levying of the tax authorized by the usual school meeting, the title of the act being:
“An act relating to annual school levies, and amending section 7478 of the General Statutes of 1909, and repealing said original section.”
No mention was made and apparently no thought was had of the special election provision found in the general limitation act of 1909. It is our duty to up-' hold rather than strike down legislative enactments, and while those under consideration contain provisions which might be considered as repugnant it is our duty to harmonize, if possible, so as to give effect to each rule of action prescribed by the lawmaking power. By regarding the act of 1911 as affecting only the levy following the ordinary school-district meeting, at which, a majority controls, the special election provision of the previous act is left undisturbed and each statute is given effect according to what fairly appears to have been the legislative intention.
“It is a well-settled rule that, if both acts of the legislature can stand, it is our duty to give effect to both.” (Randall v. Butler County, 65 Kan. 20, 22, 68 Pac. 1083.)
“The general language of statutes will be limited to such persons and subjects as it is reasonable to presume the legislature intended it should apply.” (The State v. Smiley, 65 Kan. 240, syl. ¶ 1, 69 Pac. 199.)
“In order that a specific provision of a legislative act be repealed by the implication arising from the passage of a subsequent act, such subsequent act must contain that which was clearly intended to take the place of such specific provision.” (Gilbert v. Craddock, 67 Kan. 346, syl. ¶ 1, 72 Pac. 869.)
“The courts can not say that one statute repeals another statute by implication, or that one part of a section of a statute repeals another part of the same section, unless they are so repugnant to each other that under no circumstances can both be given force and effect.” (Newman v. Lake, 70 Kan. 848, syl. ¶ 3, 79 Pac. 675.)
“ Tf the provisions of the old act and of the new can be reconciled by any possible mode of interpretation or construction, if the old act and the new can both be given force and effect, according to their terms and under any circumstances, then it should never be held that one overturns and destroys the other, but both should be given full force and effect. (Stephens v. Ballou, 27 Kan. 594, 601.)’” (Newman v. Lake, 70 Kan. 848, 856, 79 Pac. 675.)
“When two statutes cover, in whole or in part, the same subject-matter, and are not absolutely irreconcilable, no purpose of repeal being clearly shown, the court, if possible, will give effect to both. . . . But in order to effect such repeal by implication it must appear that the subsequent statute covered the whole subject-matter of the former one, and was intended as a substitute for it. If the later statute does not cover the entire field of the first and fails to embrace within its terms a material portion of the first, it will not repeal so much of the first as is not included within its scope, but the two will be construed together, so far as the first still stands.” (36 Cyc. 1077, 1078.)
(See, also, Elliott v. Lochnane, 1 Kan. 126; Griffith v. Carter, 8 Kan. 565; The State v. Young, 17 Kan. 414; 1 Lewis’ Sutherland Statutory Construction, § 247; Endlich on Interpretation of Statutes, § 223.)
The peremptory writ is allowed. | [
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The opinion of the court was delivered by
Smith, J.:
The complaint in this case against the appellant was filed in the court of Topeka, Shawnee county. The complaint alleged that on the-day of September, 1911, in the county of Shawnee and state of Kansas- C. W. Hanchette was the manager of a certain store, particularly described, and as the manager thereof did open and conduct the store for retail, dispensing and compounding medicines or poisons, to wit, Western peroxide, or hydrogen peroxide, and that at said time the said C. W. Hanchette was not a registered pharmacist within the meaning of section 8095 of the General Statutes of 1909, and did not have at the time a registered pharmacist to conduct the store. A motion to quash the complaint, on the ground that it did not state facts sufficient to charge a public offense, was overrúled. Before the hearing the parties entered into the following stipulation:
“For the purposes of the trial of this case in this court and all superior courts, it is hereby stipulated by and between the plaintiff and the defendant in this case that the following may be taken and considered by the court as the facts in the case:
“First. That the defendant, C. W. Hanchette, is the general manager and conducts a certain store at Nos. 625 and 627 Kansas avenue, city of Topeka, Shawnee county, Kansas, commonly known as Wool worth’s Five and Ten Cent Store, and that said defendant was such manager and conducting said store at the time and place alleged in the amended complaint filed herein; that the said C. W. Hanchette is not a.registered pharmacist within the meaning of section 8095, General Statutes of 1909, and that said defendant did not have at the time alleged in said complaint in his employ a registered pharmacist to conduct said store; that said defendant kept for sale in said store a large number of articles of general merchandise, such as are generally kept for sale in what is known as a five and ten cent store; that said defendant, as manager, conducted said store for retailing and dispensing among other articles the article known as Western Peroxide, or Hydrogen Peroxide; that said Western Peroxide was displayed for sale upon a counter or shelf in said store, and that while the said defendant was such manager and conducting said store he, as such manager of said store, did sell at retail and permit to be sold and offered for sale at retail certain articles known as Western Peroxide, or Hydrogen Peroxide, at the time and place stated in said amended complaint, without being himself a registered pharmacist or a registered assistant pharmacist, or having in his employ a registered pharmacist or a registered assistant pharmacist within the meaning of section 8095, General Statutes 1909; that the said store, located at Nos. 625 and 627 Kansas avenue, in the city of Topeka, Shawnee county, Kansas, is within five miles of the location and place of-business of a registered pharmacist, and is located in a city of the first class and not a rural district.
“Second. It is admitted by the parties hereto that at the time and place and in the manner alleged in the amended complaint that the defendant herein, as the manager of said store, sold at retail the two bottles of Western Peroxide, or Hydrogen Peroxide, marked ‘1’ and 2/ and that at that time they bore the labels and directions now contained on said exhibits ‘1’ and ‘2.’
“Third. It is further stipulated that either party may at the trial offer further and additional testimony in support or upon the issues joined herein.”
The directions referred to in paragraph 2 of the stipulation are as follows:
“For Mosquito Bites and Stings of Insects, apply undiluted.
“For Wounds, etc., dilute with from 1 to 3 parts of water and apply.'
“For Pimples, Unsightly Skin, etc., nothing is as efficacious as the Western Peroxide. Dilute with from 1 to 3 parts of water, according to the virulence of the symptoms, and apply.
“Shaving. It forms a pleasing and refreshing antiseptic application, much more valuable than toilet waters or bay rum, quickly stopping the bleeding of cuts, and prevents barber’s itch.
“For Washing Mouth and Teeth, there is nothing-so pleasant and effectual as the Western Peroxide. Tartar can not exist where it is used, and the teeth and gums are rendered healthy and beautiful.
“Foul Breath- is impossible when used equal parts water as a mouth wash or internally.' It is strongly deodorant and imparts a refreshing fragrance to the mouth. Removes odor of smoking.”
It is contended on the authority of The State of Kansas v. Hardin, 1 Kan. 474, The State v. Prather, 79 Kan. 513, 100 Pac. 57, Laporte Carriage Co. v. Sullender, 165 Ind. 290, 75 N. E. 277, and State v. Chicago, R. I. & P. Ry. Co., 95 Ark. 114, 128 S. W. 555, that the-word “store” as used in the first sentence of section 8095, supra, means a store of the same class as a pharmacy. By analogy to the cases cited, there is much force to this contention. This proposition also received support from the purpose of the act as stated in the title, the first sentence of which is, “An act to prevent incompetent or unauthorized persons from engaging in the practice of pharmacy.” (Laws 1885, ch. 150.)
The purpose of the whole act, so far as can be determined by the title thereof, is to regulate pharmacies and Stores of that character. The store' in question, so far as appears from the evidence, bore no resemblance to a pharmacy wherein medicines or poisons are compounded, dispensed and sold unless the selling of hydrogen peroxide in sealed-up bottles constitutes, such resemblance. The character or effect of the medicine, if medicine it be, would be identically the same whether the bottle were handed out and the price received by the most expert pharmacist or by the veriest tyro. The transaction does not involve the practice of' pharmacy. At most it constitutes a retailing of the article and does not constitute the store a pharmacy or store of like class or kind to a pharmacy.
There is evidence in this case that Western peroxide, as it is called in this case, or hydrogen peroxide is a medicine'. Also, that articles usually found in grocery stores and lumber yards and sold in paint shops and all kinds of commercial stores have a medical use; that alcohol preparations to prevent the hands from being chapped are medicines; that water, zinc, tar, tmv pentine, copper, olive oil, lemon essence and resin have a medical use; that an article used as a pleasing and refreshing application after shaving is a medicine; that tooth washes are medicines so far as they have a medical effect; that the water one might use in washing his mouth is medicine so far as it makes any change in the tissues; that soda and some soaps are medicines; that bay rum and glycerine for the hands is a medicine, and also when applied as a tooth wash. Numerous other articles of common use, when used to soften the skin or to render it pleasant or to improve any physical condition, are said to be medicines.
This is true in the technical sense of the medical profession, but in the general and- popular use of the language few if any of these articles would be regarded ’as medicines. Yet under the evidence in this case and the construction of the statute contended for. by the state, it would be unlawful for appellant to retail or dispense any of these articles in his store. That such is the meaning of the statute seems too absurd to require comment.
Hydrogen peroxide is not claimed to be a poison and is shown to have no medical effect when taken into the stomach; büt is simply a detergent, a .cleanser, and as a medicinal agent it is shown to be used only to cleanse .and soothe the skin, to dissolve and remove impurities from wounds and ulcers, or impurities from the mouth, teeth and ears. This constitutes medicinal action in the- language of the medical profession and the preparation is therefore called a medicine. It is shown to be in quite common use for the purposes indicated, and in no instance is it shown to have had any poisonous or injurious effect in any way. It is used'by people unskilled in medicine without any prescription from a physician and is shown to have no other or different effect than water, except that it is more cleansing.
In determining what is and what is not an intoxicat ing liquor, in Intoxicating Liquor Cases, 25 Kan. 751, it was said:
“Whatever is generally and popularly known as intoxicating liquor, such as whisky, brandy, gin, etc., is within the prohibitions and regulations of the statute, and may be so declared as matter of law by the courts.
“Whatever, on the other hand, is generally and popularly known as medicine, an article for the toilet, or for culinary purposes, recognized, and the formula for its preparation prescribed in the United States dispensatory, or like standard authority, and not among the liquors ordinarily used as intoxicating beverages, such as tincture of gentian,- paregoric, bay rum, cologne, essence of lemon, etc., is without the statute and may be so declared as matter of law by the courts; and this, notwithstanding such articles contain alcohol, and in fact, and as charged, may produce intoxication.” (Syl. ¶¶5, 6.)
The question is raised in this case whether the section of statute under which the prosecution was had was intended to cover hydrogen peroxide, and the rule for determining the meaning of a statute is stated in the Intoxicating Liquor Cases, supra, as follows:
“While in order to determine the true scope and meaning of a statute, its letter is to be first examined and considered, yet courts should also have regard to the evil sought to be remedied; for that which is within the letter though not within the spirit of the statute is not in legal contemplation a part of it.” (Syl. ¶ 3.)
The object of the statute is not to debar one class of dealers from selling the article or to confer the right upon another class, but the object is to protect the people from the injurious effects which might occur from the ignorant and unskillful retailing, dispensing or compounding of medicines or poisons by persons unqualified for such service. From all the evidence in this case it appears that this preparation falls in the class of witch-hazel, Pond’s extract, vaseline, and many other like household remedies which, in the technical sense of the physician, have curative, alleviative and pleasant effects from their application and hence are called medicines, but in the common use of the language are not so designated.
That the legislature has power to regulate the sale •of hydrogen peroxide or of any other article of commerce, if the common use thereof is dangerous or •especially liable to injurious effects, is not questioned. We only decide that it does not appear that hydrogen peroxide falls within the purview of this statute.
The judgment is reversed and the case is remanded with instructions to discharge the appellant. | [
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Per Curiam:
The court is satisfied with the decision in this case (87 Kan. 391, 124 Pac. 420) and with the - opinion therein, but to be more explicit adds the following :
In an action for negligence, when the petition states a cause of action and the plaintiff, in the. opening statement to the jury, undertakes to detail all the facts upon which negligence is predicated, a motion for judgment against the plaintiff on the statement should be sustained if it affirmatively -appears that the facts stated do not justify any inference of negligence against the defendant; otherwise the motion should be overruled. The facts stated in this case do not affirmatively exculpate the defendant from the charge of negligence, but the question of negligence remains for the determination of the jury upon all the facts and circumstances which may be disclosed by the evidence. Therefore the motion should have been overruled.
We adhere to the decision heretofore rendered in the case. | [
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The opinion of the court was delivered by
West, J.:
Bohman owned a farm on which Lofsted contracted to build a house for $1600. The contractor bought his materials of Burbeck & Lucas, lumber dealers, who filed a subcontractor’s lien for $559.53. Bohman paid Lofsted $1015 on the contract and furnished material and labor amounting' to $57.40. The subcontractors sued the contractor and owner to foreclose their lien, Bohman and wife answering admitting the lien, denying the correctness of the account and alleging that only a portion of the materials charged for had been used in the construction of the house. Lofsted answered admitting the correctness of the subcontractors’ account, and in a second count alleged a fail ure of Bohman and wife to pay $585 of the contract price, for which he prayed judgment against them. They demurred to the second account, which demurrer was sustained. Lofsted dismissed that cause of action without prejudice and brought this action to recover the $585, praying that the same be adjudged a lien on the land. The defendants entered a general denial and a plea that the action should be dismissed and abated because of the pending suit to foreclose the subcontractors’ lien, and further claimed a set-off for $57.40 for labor and material, afterwards admitted as correct, and $800 damages for failure to construct the house according to contract. They asked that if the action be not abáted and dismissed the defendant Bohma'n have judgment against Lofsted for $340. The first trial resulted in a verdict in favor of the defendants. Upon a second trial, at the close of the evidence the defendants moved to abate the action, calling attention to the fact that the contractor had admitted that he claimed only 547.97, while by his answer in the lien suit he had admitted that there was still due the subcontractors $569.60.. The motion was overruled. The jury returned a verdict in favor of Lofsted for $275.60, for which sum judgment was rendered against Bohman, the court also finding that the obligation merged in such judgment was for improvements upon defendants’ homestead. A motion for new trial was overruled.
It is argued that this action was prematurely brought for the reason that the lien suit was still pending and undisposed of and that as Bohman had paid $1015 he could not be required to pay any further sum for material for which the men who furnished it were entitled to receive pay from Lofsted. The defendants also urge that the court erred in refusing to instruct the jury in substance that a contractor could not recover a stipulated price for erecting the building until he had substantially complied with his contract and surrendered it to the owner free from all just claims for material; that he must first pay for the material and discharge the premises from any and all liability for liens thereon. Complaint is also made of ah instruction given to the effect that if the jury found a substantial compliance with the building contract then the burden was on the defendants to show the amount of damages by reason of not having fully complied with the letter and spirit thereof; also, in sustaining an objection to the evidence of a carpenter as to his estimate of the difference in value between the building actually constructed and the one contracted for.
The provision of section 654 of the civil code that “until all such claims, costs and expenses are finally adjudicated, and defeated or satisfied, the owner shall be entitled to retain from the contractor the amount thereof, and such costs and expenses as he may be required to pay,” is relied on as an all-sufficient ground for abatement of this action. The section does not in terms, however, authorize abatement, although it is plainly intended to provide against double paymént. Section 651 provides that the owner affected by the lien shall not thereby become liable to any claimant for a greater sum than he agreed to pay the original contractor, but the risk of all payments to him shall be upon the owner until the expiration of sixty days from the time when the material or labor was last furnished, and that he may pay the subcontractor and receive credit on the amount due the contractor. Section 655 provides for the consolidation of actions brought to enforce liens, and for a stay to permit the filing of a lien if the building be still in course of construction, and section 658 directs the proceeds of a foreclosure sale to be paid pro rata if insufficient to pay all the claimants in full. It was certainly not intended that the owner should be subjected to a final judgment by the contractor for such portion of the contract price as he still owed the material men who had filed liens. Otherwise the owner could be held liable to the contractor for the entire contract price, to be a lien on the land, and also find his property subjected to a lien for a portion of the same price due the subcontractor. This action should have been stayed until the lien suit was determined, and then the owner should have been protected by so shaping the judgment in this case as to save him from double payment or liability. The entire matter should have been adjudicated in the first suit, when the court had all the parties before it and when all the claims could have been adjusted. The jury found a number of items of damage allowed the defendant by reason of the plaintiff’s failure to comply with the contract; also, that he made a bona fide effort to comply and employed competent and skilled workmen. Under such circumstances the rule is that the specific items of damage may be proved. It is only when the building so far departs from the one .contracted for that there is no substantial compliance with the contract that the one actually constructed and the one agreed to be erected are to be valued separately so that the defendant may be required only to pay whatever the former is shown to be actually worth. Here, according to the findings of the jury, the parties contracted in advance as to the value of the' building, and its construction in substantial conformity to the plan agreed upon left the defendant entitled to deduct only the damages caused by minor nonconformities. The rule will be found more fully stated in McCullough v. Hayde, 82 Kan. 734, 109 Pac. 176, and in McCune v. Ratcliff, ante, p. 653, 129 Pac. 1167.
We find no material error in the instructions given, or in the refusal of those offered by the defendants.
We are not advised as to the result of the lien suit and must treat this case as if that were still pending, as it was when the defendants sought to have this action abated.
The cause is remanded with directions to so modify the judgment as to protect the defendants and the property involved from liability to the plaintiff beyond the contract price as reduced by the jury in this case until the claims due the subcontractors shall have been satisfied.
The defendants might have avoided this condition of things by permitting the entire matter to be litigated in the lien suit, and therefore the costs in this court will be divided. | [
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The opinion of the court was delivered by
Burch, J.:
The action in the district court was commenced by Arrington to recover the value of a horse which he owned and which was injured in a collision with an automobile driven by Horner. The jury returned special findings and a general verdict favorable to the defendant. Judgment was rendered accordingly and the plaintiff appeals.
James Harper was driving a team of mules hitched to a loaded wagon, eastward on a public highway. The horse which was injured was a saddle horse and was tied with two or two and one-half feet of rein to the back band of the right-hand mule of Harper’s team. Behind Harper, Edgar Benson was driving a team of four mules hitched abreast to a loaded wagon. The defendant approached the two teams from the west. He turned to the right and when passing the led horse it suddenly s,wung out in front of the automobile which struck the horse’s right hind leg and inflicted an incurable injury. Details of the incident are disclosed in the following special findings of fact:
“3. When did the horse that was being led at the side of the team of mules first show signs of fright? Answer. When automobile was opposite the wagon.
“5. Would the horse have been.injured in the manner in which it was injured if said horse had not turned crosswise in the road? Answer. No.
“6. Could the said A. M. Horner, in charge of said automobile have' done anything to have prevented the injury after said horse first showed fright and turned across the road? Answer. No,
“8. What was the distance in feet between the north wheel of the automobile and the south wheel of the wagon at the point where the injury' occurred? Answer. Eight or nine feet.
“9. Did the driver of the front wagon, drawn by the team of mules, as the automobile approached, begin to turn to the north? Answer. No.
“10. Could the said driver of the front team of mules have turned said team further to the north and driven said team and wagon further to the left at the point where said automobile was passing? Answer. Y es.
“11. What was the condition of the highway on the north side of the road at the point where said automobile was about to pass said team and wagon ? Answer. Smooth.
“12. Did the said Harper see and know that said automobile was approaching? Answer. Yes.
“13. How far behind said wagon in which said Harper was riding was the said automobile when the said Harper first saw the same and knew it was approaching? Answer. Forty or fifty yards.
“14. Was there a bank or rise on the south side of the beaten track up which the automobile had to go in turning to the right, and at the point where the automobile was opposite the said horse that was injured? Answer. Yes.
“15. State the distance from the said bank or rise on the south side of the road to the north wheel of the automobile at the point where the automobile was opposite the said horse. Answer. About two feet.
“16. What was the condition of the highway, as to being smooth or rough on the south side of the highway, and where said automobile was traveling? Answer. It was rough.
“17. Was there anything to prevent the said Harper from turning to the north and thus placing more distance between the said team and saddle horse and the said automobile at the point of passing? Answer. No.
“19. For what distance could the said Harper see and know that said automobile was appoaching the said team and wagon controlled by him? Answer. About 80 rods.
“20. As Horner approached in the automobile did the rear four-horse team incline or turn to the north? Answer. He did.”
These findings cover all the material facts in the case except the rate of speed at which the defendant was driving. They show affirmatively that the defendant was not guilty of any negligence, leaving out of account the rate of speed. The testimony was that he was driving at a rate variously estimated at from six or eight to fifteen miles per hour. The statute provides that the driver- of an automobile shall not operate it on a rural highway at a speed greater than is reasonable and proper, having due regard for the traffic and use of the highway, or so as to endanger the life or limb of any person, or in excess of twenty miles per hour. (Gen. Stat. 1909, §§450, 451.)' Whether or not the speed maintained by the defendant was unreasonable or improper under .the circumstances, and was the proximate cause of the injury were, of course, questions for the jury, and presumably were determined in the defendant’s favor.
The principal errors assigned relate to instructions given. Section 6 of the act referred to reads as follows :
“Every person having control or charge of a motor vehicle or automobile shall, whenever upon any public street or highway and approaching any vehicle drawn by a horse or horses, or any horse upon which any person is riding op driving domestic animals, operate, manage or control such motor vehicle or automobile in such manner as to exercise every reasonable precaution to prevent the frightening of any such horse, or horses or domestic animals, and to .insure the safety and protection of any person riding or driving the same; and if such horse or horses or domestic animals appear restive and frightened, the person in control of such motor vehicle shall reduce the speed thereof, and if practicable turn to the right and give the road, and, if requested by signal or otherwise by the driver of such horse or horses or domestic animals, shall proceed no farther towards such animal or animals, but remain stationary so long as may be necessary to allow such horses or domestic animals to pass. This provision shall apply to automobiles or motor vehicles going either in the same or in the opposite direction.” (Gen. Stat. 1909, § 452.)
The effect of the court’s instructions to the jury was that under this statute the driver of an automobile must exercise the care and caution of a reasonably prudent person, taking into consideration all the elements of the situation, to prevent fright and to insure safety. This is a correct interpretation of the statute. The jury was also instructed that a like duty rests upon the driver of a horse or. team approached and that a failure to act accordingly constitutes contributory negligence. This, too, is a correct statement of the law.
The statute did not make the automobile driver an insurer. “Evéry reasonable precaution” is merely the precaution which a reasonably prudent man would take in view of the danger to be apprehended. The end to be attained is the end in view in all cases where reasonable precaution is called for, the avoidance of peril and the insurance of safety. Because of the appearance and attributes of a motor driven vehicle there is a manifest difference in the situation presented when one meets or passes a team and when two teams meet or pass. The prudence demanded of the automobile driver is by no means the same as if he, too, were driving a team. He must order his conduct in the light of the conditions created by the presence and operation of his peculiar kind of conveyance, and in doing so must observe every precaution which would occur to a reasonably prudent man occupying his place. When he has done this he has discharged his full duty under the statute, up to the point of obeying the specific injunctions to reduce speed, turn to the right, give the road, and remain stationary, under certain designated conditions. On the other hand, the driver of the team which is met or passed is likewise confronted with a different situation from the one he would occupy if the automobile were merely a horse drawn vehicle. He, toq, must take cognizance of the conditions and act with reference to them.
The court instructed the jury upon the duty to turn to the right when practicable, and stated that the driver of a horse or team approached by ari automobile who negligently or carelessly fails to turn to the right, when practicable, is guilty of contributory negligence. It is claimed that the instruction could not be applied to one in Harper’s situation since his turning to the right would only have accentuated the danger. This is true and for that reason the jury could not by any possibility have been misled by the instruction. .The purpose of the court was doubtless merely to complete an exposition of the correlative duties of drivers of the two kinds of vehicles. It may be observed that the statute makes it imperative for the driver of an automobile to turn to the right only when the team approached shows signs of restiveness and fright, and when practicable. In such cases, if reasonable prudence would suggest that the driver of the team should turn aside, his course would clearly be to the right, if practicable.
The jury was instructed that negligence in hitching the horse in such a way that he could not be handled or controlled would bar recovery. The proof was uncontradicted that the horse was led in the usual and customary manner and since the proof coincided with the common knowledge of the jury on the subject, the instruction affords no basis on which to predicate error.
The jury was instructed that negligence on the part of the.defendant must have been the proximate cause of the injury and that the injury was such as could have been anticipated as a result of such. negligence. It is claimed that the instruction is open to the interpretation that the defendant would not be negligent unless he should have foreseen the particular injury which occurred. The interpretation proposed is a forced one since the language of the instruction clearly goes no further than to require that the injury belong to the class of forseeable occurences.
The court instructed generally with reference to the duty of a driver on the public highway to look ahead and see whatever there may be in the line of his vision which should affect his driving. The instruction was then applied specifically to the defendant and in the same connection it was said that Harper, as the agent of the plaintiff, was bound to take due notice and act accordingly if he knew the defendant was approaching' from the rear. It is argued that the instruction required Harper to have eyes in the back of his head. It is clearly susceptible of no such meaning and in view of special findings numbered 12 and 13, based on Harper’s own testimony, was properly given.
The court gave the following instruction:
“In the ordinary walks of life, injury and damage often occur to persons and property, that can not be traced to the fault and neglect of anyone, and so constitute only a mere accident for which no one is responsible, and for which no one can be held liable, and the person or persons suffering loss or damage by mere accident are without remedy .and must bear the loss. So in this case, if you find that in the accident in question, Mr. Horner was guilty of no fault or wrong, and that the injury and damage sustained by Mr. Arrington was a mere accident, then he is without remedy and can not recover in this action, and you should so find.”
It is argued that the judgment should be reversed because the court inadvertently designated the occurrence in question as an “accident” instead of an “incident.” It is not likely that the verdict turned upon this distinction.
The instructions are subjected to some further criticism, and the evidence favorable to the plaintiff is marshaled to show that the verdict is not supported by the evidence. The court is satisfied that substantial justice has been done and the judgment of the district court, is therefore, affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
Curtis Stokley, William Williams and George Tindle were jointly charged with the crime of perjury. Separate trials were hot demanded and the trial resulted in the conviction of Stokley and Williams and the acquittal of Tindle. The convicted defendants appeal and allege error because the three defendants were confined to the same number of peremptory challenges of jurors as if there had been but one. The statute reads as follows:
“The defendant in every indictment or information shall be entitled to a peremptory-challenge of jurors in the following cases, as follows: . . . Third, in any other case punishable by imprisonment in the penitentiary, to the number of six and no more.” (Crim. Code, § 198.)
Statutes of this character are variously construed. It is held that each defendant has the right to the same number of challenges as if he were tried alone, that the defendants have jointly only the number of challenges allowed a single defendant, and that the greater or the lesser number shall be allowed, depending on whether or not separate trials have been demanded. (24 Cyc. 359.) The subject was fully considered in the case of The State v. Durein, 29 Kan. 688. The reasons for permitting peremptory challenges were stated, and it was said that in order to give full scope to such reasons it is essential that the right of challenge be regarded and enforced as the personal right of each defendant. The texts and decided cases holding that each of several defendants jointly tried is entitled to his full number of challenges were quoted and cited and the conclusion of the court was stated as follows:
“In criminal cases a defendant, though jointly tried, is not thereby deprived of his individual right to make the full number of peremptory challenges.” (p. 692.)
It is true that in - the Durein case, as the syllabus shows, the convicted defendant asked for a separate trial, which was. refused, but this fact was considered by the court as merely additional to the fundamental grounds upon which the decision was rested, the question for determination being stated in the opinion as follows:
“1. Is a defendant in a criminal action, when tried jointly with others, entitled to the same number of peremptory challenges he would be entitled to if tried-separately, or must he share his right of challenge with his codefendant?” (p. 690.)
In the case of The State v. Dreany, 65 Kan. 292, 69 Pac. 182, several defendants were jointly tried. Each defendant was allowed four challenges, the number appropriate to the character of the case. The question was as to the number the state should have, the statute providing that in all criminal trials the state may challenge peremptorily one-half the number of jurors allowed the defendant. (Crim. Code, § 199.) To decide this question it was necessary for the court to declare the number of challenges to which the defendants were entitled. The syllabus reads' as follows:
“Each defendant jointly tried on a criminal charge is entitled peremptorily to challenge the number of jurors permitted by statute in such case, but the number of peremptory challenges allowed the state is not thereby augmented, but remains the same whether the number of defendants on trial is one or many.” ' (S-yh §2.)
After six peremptory challenges had been exercised on the part of the defense, the attorney for the state requested that the defendants’ attorneys indicate, and that the record be made to show, the particular challenges of each defendant. The court said the record would show the fact, the rule having been settled that several joint defendants are entitled to the same number of challenges as if only one were on trial. An exception was taken and the defendants did not offer to challenge further. Several jurors were sworn whom the defendants had unsuccessfully challenged for cause.
It will be observed that counsel for the state did not take the position that each defendant had in fact joined in each challenge already made. Neither did the court take that position, but the ruling was that the law allowed the three defendants but six challenges altogether. This shows the understanding of the matter at the time, and the record, which is other-. wise indifferent, should be interpreted accordingly as disclosing that each defendant had not actually exercised six peremptory challenges. The exception to the court’s ruling cutting the defendants off from further peremptory challenge while a number of jurors were about to be sworn whose competency had been denied by challenge for cause shows that the defendants 'did not waive their statutory rights. It was not necessary to badger the court by proposing additional challenges.
Under the circumstances stated prejudicial error is made to appear. Substantially the same state of facts was presented in the case of The State v. Durein, 29 Kan. 688, already referred to, and the decision in that case has stood too long, both as a declaration of the law and as a guide to professional conduct, to be overruled.
The duly authenticated transcript of the record is allowed to be filed, and under all the circumstances the state is regarded as not contesting the fact that only six peremptory challenges were exercised by the defendants.
The judgment of the district court is reversed and the cause is remanded with direction to grant a new trial. | [
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Per Curiam:
Appellants were adjudged to be guilty of contempt of court in violating an injunction restraining them from keeping and maintaining a nuisance in the Planter’s hotel, in the city of Wichita. The objection that leading questions were asked furnishes no ground for reversal, and the remaining one that the evidence was insufficient to sustain the judgment can not be upheld. ' Under the governing rule, the evidence appears to be ample.
The judgment is affirmed. | [
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Per Curiam:
In the motion for rehearing in this case a remark made in the opinion is construed as a criticism of the abstract—that it was not sufficient to present the question contended for. This is a mistake.. The abstract is unobjectionable; it narrates the evidence and does not copy it from the record.
The contention was that the issue was res judicata,, having been previously decided in the United States, circuit court of Kansas. As said in .the opinion, the: evidence failed to show the four conditions necessary to make the matter res judicata, to wit: identity in. the things sued for, identity of the cause of action,, identity of the persons and parties to the action, and identity in the quality of the persons for or against whom the claim is made.
The motion for a rehearing is denied. | [
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The opinion of the court was delivered by
Mason, J.:
A writ of mandamus is sought to compel the county board of -canvassers to reconvene and make a new canvass of the votes cast for governor in several of the precincts of Bourbon county at the recent election. An alternative writ has been issued and the case has been heard upon a motion to quash.
It is contended that the county board has in good faith completed a canvass, acting upon its best judgment, and adjourned sine die, and that it can not be compelled to reconvene and change the result, even although it may have made a mistake.
The principle that a board of canvassers which has completed its work can not be called upon to act further in the matter applies only where it has done the work properly, so far as its own conduct is concerned. It can not after final adj ournment be compelled to reconvene for the purpose of giving effect to the eorrection of a subsequently discovered mistake made by some other officer of which it had no prior notice. But it can not escape its legal obligation to do a particular act by doing something else.
A canvassing board in ascertaining and registering the effect of the returns acts in a purely ministerial capacity and is subject to control by mandamus. (15 Cyc. 384; 26 Cyc. 277.) The power to compel a canvass implies the power to compel a correct one. A ministerial duty wrongly performed is not performed at all. The correction of an erroneous computation can of course be compelled by a court. The mistakes here complained of are substantially of that character. They consist of treating the face of the poll books and tally sheets as indicating a result which a proper consideration of the entire document shows beyond question to be wrong. Whatever might be the rule in a situation admitting of a substantial -difference of opinion, when a court can determine with certainty that the poll books and tally sheets show a certain number of votes to have been cast and counted for a particular candidate, it can require a board of canvassers to give proper effect to that determination.
The motion to quash is overruled. | [
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Per Curiam:
The plaintiff claims that he was appointed and that he duly qualified as a member of the board of directors of the Kansas state penitentiary for the full term beginning April 1, 1893, and ending April 1, 1896, and that on July 8, 1895, the governor made an order for his removal and then appointed M. M. Beck in his place and stead, but that said order of removal was illegal. The petition was filed July 22, 1895, and the defendant answered on August 23, 1895, briefly alleging the proceedings for removal, the order of his appointment, and stating that he duly qualified and forthwith entered upon his duties as a member of the board, and that he has ever since continued to act. as such. The plaintiff demurred to said answer on January 7, 1896, and on February 4, 1896, he filed a motion to advance the cause for hearing, and an order for its advancement was made to the May sitting of the court, when it was heard on the demurrer to the answer as upon the merits. At the time of the order of advancement the court was not informed that the term for which the plaintiff was appointed had so nearly expired, but if we should have advanced the case to the March sitting it is obvious' that under the usual procedure of the court no decision would have been, reached before April sitting, which would be after the. plaintiff’s term had expired. If we had then decided, or should now decide the case in favor of the plaintiff, it is evident that he would obtain no substantial right thereby; and the time of this court ought not to be occupied by the consideration of abstract questions of' law, however important and interesting they may be. As no substantial right is now involved, we will dismiss the case of our own motion, each party to pay his own costs. | [
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The opinion of the court was delivered by
Benson, J.:
This action is- to recover one-half of the commissions received by the appellee on the sale of Texas land in pursuance of an alleged agreement to divide commissions received by either party in that business.
The evidence of the appellant tends to prove that the parties, who reside at Gaylord, in this state, having been severally engaged in inducing persons to purchase Texas land, agreed that they would work to-, gether in that business and divide commissions on resulting sales, after deducting expenses. The appellee proceeded to Texas with a party who bought a section of land there. A firm of real-estate agents in Texas, through whom the sale was made, paid $640 to the appellee, in pursuance of a written agreement made after the contract of sale had been executed, but before the land had been paid for. This agreement recited the fact that the appellee had brought the purchasers to the Texas firm, in consideration of which they agreed to pay him the commission.
The appellee admits that he received the money, but offered evidence tending to prove that the appellant had no part in the business, that no joint venture had been undertaken nor agreement made to divide commissions.
The case was submitted to the jury upon this conflicting evidence and a verdict was returned for the defendant. The appellant alleges error in the instructions, precluding the jury from finding in his favor, however they might find upon the evidence concerning the existence of an agreement between the parties.
The following instruction'was given:
“If you believe from the greater weight of all the evidence that the plaintiff and the defendant agreed to work together for the sale of the land under the contract, if any, as Plaintiff claims, and while such contract, if any, was in force a sale of land contemplated by the contract,, if there was a contract, was made through the instrumentality of either the plaintiff or the defendant, or both of them, operating as the primary and procuring cause, each one would in such case be entitled to one-half of all the commission after deducting the expenses and so received from the sale of such land; but before the plaintiff can recover for any part of such commission, it must be shown by the greater weight of the evidence that the contract as alleged by Plaintiff, was entered into between the' parties, and. that the sale, if any, was brought about, or in some manner caused or induced by the efforts of the plaintiff or the defendant or both, operating as the primary and procuring cause thereof.”
In other instructions the jury were informed that the plaintiff could not recover in any event unless the jury found that the sale was caused by the appellee as the procuring cause.
The appellee accompanied the party making the purchase to Texas; the Texas firm conceded that he was entitled to the commission and paid it in pursuance of their agreement to do so. In this situation the question whether the appellee was the procuring cause is not open, and the commission received in these circumstances should be divided according to the agreement, if an agreement existed.
The instructions complained of were prejudicial, since they prevented a recovery even if the jury should find that an agreement existed as claimed by appellant, unless the jury should also find for the appellant upon an entirely immaterial matter. The argument of the appellee in this court is upon the question of fact concerning the existence of the alleged agreement, but that must be left tó a jury, properly instructed.
Because of erroneous instructions, the judgment is reversed with directions to grant a new trial. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action brought by the appellee, Alice Lehnen, against the appellants, E. J. Hines & Company, to recover damages for injuries sustained by her while she was a guest at the Mecca, the appellants’ hotel, at Coffeyville, Kan. She alleged and offered proof tending to show that she came as a .guest to appellants’ hotel on the evening of August 27, 1910, when she registered and was assigned to a room which she and her companion, Miss Edna Smith, occupied, and that at about two or three o’clock on the following morning, when she and her companion were asleep in the room, a knock was heard at her door, and upon arising she found Atwood, the clerk then in charge of the hotel, there asking to be admitted to the room, and that when admission was refused he forced the opening of the door and entered the room in an intoxicated condition, and that when she tried to reach the manager of the hotel by telephone to report the intrusion he became angry and called a policeman to arrest “the appellee and to eject her from the hotel, that she protested and declined to leave the hotel and insisted on finding the manager and invoking protection from him; that Atwood called appellee vile names, and when :she refused to leave the hotel struck her several blows on the face and knocked her against the wall. There were averments to the effect that she and Miss Smith were arrested in their night clothes, and that Atwood and the officer undertook to take them out of the hotel before they were dressed, and that when appellee insisted on dressing the officer refused to step outside of the room and remained there while they dressed themselves. During the controversy appellee says she went to the manager’s room and reported the invasion of her room and asked for protection, but that he did not respond for some time, and when he came to her room he declined to interfere in their behalf and directed the officer to take them out of the hotel to the jail. They were taken to the jail, which it is claimed was in an unsanitary condition, and incarcerated with negro women, where they were held for a day or more before they could secure a release. She alleged that as a consequence of the ill treatment and injuries she suffered damages in the sum of $10,000. The appellants alleged and claimed that the appellee and her companion were drinking intoxicating liquors and smoking cigarettes in the room and were making a boisterous noise likely to disturb the other guests of the hotel, and that Atwood, without authority from the appellants, undertook to quiet her, and failing to accomplish it called a policeman who on his own responsibility arrested the parties and placed them in jail. At the trial she recovered a judgment of $4000 against appellants, from which they appeal and assign numerous errors.
Although there is complaint that the allegations of the petition are indefinite, and also of the refusal of the court to grant a continuance of the case when it was amended two days before the trial by changing the name of the plaintiff from Alice Buries to Alice Lehnen, we find nothing substantial in either objection. The petition was sufficiently definite and the amendment as to the name was not so material as to require a continuance of the cause. The limitation on the cross- examination of appellee of which complaint is made is not a good ground for reversal of the judgment.
There may be some ground for complaint of the testimony of what happened at the Carl-Leon Hotel in Independence, but it appears that the greater part of it was finally stricken out by the court. Appellee and Miss Smith first went to the Carl-Leon Hotel, conducted by appellants at Independence, and in the course of the trial appellee was permitted to testify that after going to her room in that hotel a porter came into the room and inquired if they had noticed the white-haired gentleman in the lobby when they entered the hotel. Appellee replied that she had not and asked the reason for the inquiry. The porter replied that the person referred to was the proprietor of the hotel and was quite a ladies’ man and had his eyes on appellee and Miss Smith. Appellee stated that this inquiry gave her offense and she paid their bill and left the hotel, going to the Mecca at Coffeyville. In reply to a question whether Mr. Hines had not tried to induce them to return to the Carl-Leon that night she stated that Mr. Hines did not but his clerk did follow them to the station and asked them to come back, saying that Mr. Hines would not harm them. Some of the challenged testimony was received without objection and the only objection to a part of it was that it was hearsay, but in the end the principal, part of it was stricken out by the court. Under the circumstances the rulings are not deemed to be material errors and only such errors warrant a reversal.
Error was assigned on the refusal of the court to submit fifty-two special questions which appellants requested and which the court refused because the request came too late. There is a rule in force in that district, with which counsel was familiar, which provides that parties who desire the submission of special questions to the jury shall present them to the court as soon as the testimony is concluded. In this case the testimony was concluded at six o’clock on a certain day, and the judge then announced a meeting with counsel at eight P. M. of that day when he would submit to counsel for the parties the instructions he proposed to give to the jury. At that hour counsel met with the judge and the proposed instructions were examined and discussed, and" certain modifications were suggested which the court took under advisement until the following morning. There was no request for the submission of special questions during this time, nor even when the court convened at nine o’clock the next morning. At the convening of court rulings were made on requests for and objections to proposed instructions and then the charge was read to the jury. After the, court had instructed the jury and counsel were about to proceed with their argument appellants requested the submission of special questions of fact in writing, but the court refused to stop the proceedings for that purpose, holding that the request had not been made in good time.
It is competent for courts to make and enforce reasonable rules regulating the practice in cases pending before them. The rules must, of course, harmonize with statutory provisions, and the times fixed by statute within which steps are to be taken .can not be shortened by rules. The statute (Civ. Code, §294) does not expressly provide when the request for special findings shall be made, and -in the absence of such provision a rule is not unreasonable which requires those desiring special findings to make application for them before the argument is begun. In Wilcox v. Byington, 36 Kan. 212, 12 Pac. 826, a case tried without a jury, it was said that the general practice in that class of cases was to request findings just before or at the close of the argument. In Schuler v. Collins, 63 Kan. 372, 65 Pac. 662, it was held:
“The district courts have authority to make necessary and reasonable rules governing the transaction of business therein, and a rule requiring that parties who desire the court to state in writing its findings of fact, separately from its conclusions of law, shall request the same at the commencement of the trial is not unreasonable or illegal.” (Syl. ¶ 4.)
In the recent case of Marquis v. Ireland, 86 Kan. 416, 121 Pac. 486, which was tried by the court alone, it was said:
“It would seem that in fairness to the trial court the request ought to be made before the argument is begun, and indeed before the evidence is introduced, in order that attention may be given to this aspect of the matter as the evidence goes in.” (p. 419.)
It is quite important, it would seem, that the special interrogatories should be presented. early enough so that the court might have the opportunity to revise and the opposing party to examine them before the jury is charged or the argument by counsel is begun. 'Some of the questions submitted were important and might well have been submitted even at that late time, but that was a matter within the discretion of the court and its refusal to stop the proceedings at the time the request was made and enter upon the task of revising fifty-two special questions, thus unnecessarily delaying the trial, can not be regarded as an abuse of discretion.
The principal dispute between the parties is in regard to the duty of innkeepers towards their guests and their liability for the willful misconduct of their servants. These questions are raised by the demurrer to the petition of appellee and also by the rulings of the court in instructing the jury. It is insisted that the action of Atwood, the clerk of the hotel, in entering the room of appellee and in assaulting her was not taken in the performance of any duty which he owed to appellants, and that appellants can not be held as insurers of the safety of their guests as against the willful acts of Atwood who they claim was acting for himself alone and to serve his own purposes. It is conceded that appellants were proprietors of the hotel, that appellee was registered there as a guest and had been assigned to the room which she occupied, that Atwood was left in charge of .the hotel on the night in question, and that among‘other things he was authorized to “room guests” and keep order. It was well established by the evidence that while clothed with this authority he entered appellee’s ro.om, charged her with being disorderly and unworthy of hospitality, called her vile names, ordered her to leave the hotel, and that when she refused to leave he assaulted her, beat her, and then caused her .to be arrested and taken to jail. Appellants insist, however, that by the instructions they were virtually held to be insurers of the safety of the guest against the assault and willful misconduct of their servant while acting outside the scope of his employment. ' It is evident that the court did not try the case Upon that theory. In defining the duty of a hotel keeper the court in effect instructed the jury that when a person is received in a hotel, as a guest the law implies a contract between the proprietor and the guest that the proprietor, by himself and through his servants and agents, will exercise reasonable care for the safety and comfort of the guest, and that the guest on her part will act in a proper manner and refrain from any boisterous conduct and from doing anything calculated to disturb other guests.
Speaking of the implied obligation of the hotel keeper to protect guests against third persons as well as against the wrongs of servants it has been said, in Beale on Innkeepers and Hotels, § 172, that an injury inflicted by a servant negligently or intentionally is a breach of the duty of the hotel keeper, and it is added that:
“The innkeeper’s duty, the breach of which by his servant causes injury, is not the negative duty not to assault the guest, but the affirmative duty to protect him from assault. The servant, in assaulting the guest, is committing the tort himself; but he is breaking the obligation of protection which rests on the inn keeper, and which the servant has himself been employed to. carry out.”
The jury were likewise advised that when a guest is assigned to a room for her exclusive use it is hers for all proper purposes until she surrenders it, except that the proprietor and his servants shall have access to and may enter it at all reasonable times in order to keep the house in condition and so that he may perform his implied obligation to minister to the convenience and comfort of the guest. The jury were instructed, too, that under the contract “The guest has a right to insist upon respectful and decent treatment at the hands of the hotel keeper and his servants and employees; and this implies the obligation on the part of the hotel keeper and his servants and employees that they will not abuse or insult the guests, or indulge in any conduct or speech that may unnecessarily bring upon the guest physical discomfort, distress of mind, or imperil the guest’s safety.”
Special complaint is made of instruction No. 10. which, it is contended, leaves out of consideration the element of whether the clerk was acting within the scope of his employment. It reads:
“You are instructed that if you find and believe from the evidence in the case that the plaintiff on the night in question, while a guest of the hotel, ;was assaulted by the clerk, and beaten, and was by him or by defendants’ manager, or by both such clerk and manager, wrongfully caused to be arrested and forcibly taken from said hotel by the police officers, and placed in jail, it would be your duty iñ that case to find for the plaintiff, and assess her damages at such sum as will, in your judgment, under all the evidence, fairly compensate her for the physical pain and mental suffering directly and proximately due to such treatment.”
This instruction, however, is only a part of a lengthy charge, and is to be considered in connection with others that were given and in which the liability of appellants was-made to depend upon the qualification that the servant was acting within the scope of his employment.
In the first part of the sixth instruction it was said:
“A hotel keeper is responsible to a guest for the acts of his servants in charge of the hotel, whether such acts were expressly authorized by the proprietor or not; or even if he forbade and disapproved them, providing that the servant and employee was acting within his duties as such servant or employee.”
The court then defined the duty of the clerk who was left in charge of the hotel, using the following language:
“A night clerk left in charge of a hotel with authority to receive guests, assign them to -rooms, preserve order, and generally look after the hotel during the night, has the implied authority to eject guests from their rooms in order to preserve peace and order; and if the clerk undertakes to eject a guest from his or her room, and uses force, and violent language, and summons the police, and directs the police to make an arrest, and place the guest in jail, such action on the part of the night clerk will be held in law to be the act of the employer of such clerk, or the proprietor of the hotel, and for the right or wrong of which the hotel proprietor must be held responsible.”
This is a correct statement of the rule' as applied to a case where a hotel is left in charge of the clerk vested with the authority which it is conceded Atwood had. When he entered the room and undertook to eject appellee he was acting for the proprietors and within the apparent scope of his authority. To make the appellants responsible for- Atwood’s actions it is not necessary that they should have expressly authorized him to, do the particular acts of which complaint is made. It is enough that they entrusted him with authority to manage the business and that he was acting for them in respect to the business in which he was engaged when the wrong was committed. They can not be excused from liability because Atwood while conducting the business abused his authority or even disobeyed the express directions which they had given him. They placed him in authority as to the assignment and occupancy of the rooms and as to maintenance of order by the guests in the rooms, and they can not.escape liability where in exercising his authority he may have deviated from instructions and because of a loss of temper or lack of sense and discretion he inflicted an unjustifiable injury upon a guest.
It is argued that Crelly v. Telephone Co., 84 Kan. 19, 113 Pac. 386, is an authority against the rule applied in this case. There the one who committed the assault was acting outside the scope of his employment and the assault did not grow out of the service he" was employed to perform. In that case it was said:
“The general rule is that the master is responsible for the acts of his servants done in the execution of the master’s business and within the scope, of his employment. It is not enough to exempt the master that the act is willful or malicious or in excess of the authority expressly conferred. If the tortious act is done while the servant is acting in behalf of his master and within the scope of his employment the master will be responsible, although the act may be willful and wanton.’.’ (p. 21.) .
The parties have debated at considerable length whether hotel keepers are responsible to the extent that common carriers of passengers are for the injuries inflicted by their servants while not engaged in-rendering any service to the hotel keeper and while acting outside the scope of their employment. Clancy v. Barker, 71 Neb. 83, 98 N. W. 440, 103 N. W. 446, is an example of the cases placing hotel keepers and. common carriers on the same level of liability, while Clancy v. Barker, 131 Fed. 161, 66 C. C. A. 469, 69 L. R. A. 653, is an example of those holding to the opposite theory. It is unnecessary to determine that question in this case as the clerk was engaged in doing the proprietors’ business when the wrongs complained of were done, and this is so manifest that nice distinctions need not be drawn in fixing the line where the proprietors’ liability for Atwood’s acts begins and ends. Indeed, it is stated in appellants’ answer that Atwood was acting as night clerk and that one of his duties was to attend to the calls and wants of guests, and that in response to a call he went to appellee’s room to ascertain her wants and found her under the influence of intoxicating liquors, making a loud and boisterous noise likely to disturb the other guests of the hotel. The wrongs were committed While Atwood was performing this duty and attending to his masters’ business.
There may be assaults upon a guest by outsiders without responsibility by the proprietor, and it may also be that the duties of some servants may be such as that an assault by one of them upon a guest might not subject the proprietor to liability, but certainly he can not be regarded as exempt from liability where the assault is committed by a night clerk left in charge of the hotel and its guests. As was said in DeWolf v. Ford, 193 N. Y. 397, 86 N. E. 527:
“There may doubtless be many conditions under which a guest at an inn may be assaulted or insulted by another guest or by an outsider without subjecting the innkeeper to liability, but if it ever was thought to be the law that an innkeeper and his servants have the right to willfully assault, abuse or maltreat a :guest, we think the time has arrived when it may very properly and safely be changed to accord with a more .modern conception of the relation of innkeeper and guest.” (p. 406.)
There was, as has been stated, a charge that appellee was a womán addicted to the use of intoxicating liquors and cigarettes, and that she was under the influence of intoxicating liquors and cigarettes on the night of the assault and was acting in a way that would be offensive to other guests, but this charge has been negatived by the verdict of the j ury. It was competent, of course, for the hotel keeper to enforce rules for the maintenance of order within the hotel, and if appellee was- guilty of misconduct which was offensive to other guests or would bring the hotel into disrepute-he could cause the removal of the guest, using only such means and force as was reasonably necessary to-accomplish the purpose.
It was not improper to submit to the jury the matter of the arrest and imprisonment of appellee caused by Atwood and which appears to have had the sanction of St. Clair, the manager of the hotel. In Wheeler & Wilson Mfg. Co. v. Boyce, 36 Kan. 350, 13 Pac. 609, the company was held liable for the acts of its agent in causing the arrest and detention of another, done in the execution of the company’s business. In A. T. & S. F. Rld. Co. v. Henry, 55 Kan. 715, 41 Pac. 952, it was expressly ruled that a railroad company carrying passengers was liable for the illegal arrest and- imprisonment of a passenger caused by the conductor in charge of the train while acting in the line of his employment.
There is a claim, too, that the award of $4000 as damages is excessive, but the view taken by the jury as to the behavior and standing of appellee and considering the brutal manner in which she was treated we can not say that the award is so excessive as to indicate passion or prejudice of the jury.
Finding no material error the judgment of the district court is affirmed. | [
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Per Curiam:
At the close of the opinion in this case (Kansas City v. Serum Co., 87 Kan. 786, 125 Pac. 70), it was said:
“We have nothing to consider but the petition itself and we think its allegations taken as true show that the place complained of is so conducted as to be a nuisance and that the plaintiff is entitled to a perpetual injunction to prevent the continuance thereof; also to prevent the hauling of garbage or other refuse through the streets so as to cause offensive odors to emanate therefrom. The question, however, as to the location of defendants’ business at some other place was not before the court and is not for determination.
“The judgment is modified, and is affirmed so far as indicated in the foregoing paragraph.” (p. 791.)
In their petition for rehearing the defendants insist that that part of the order enjoining them from keep ing or maintaining more than ten hogs on the premises in question should be stricken out.
The language, “the place complained of is so conducted as to be a nuisance” (p. 791) necessarily has reference to the manner of conducting the place and not to the number of hogs there kept, and the judgment was modified accordingly, for the record shows no ground for complaint so long as the defendants, regardless of the number of hogs maintained, conduct the premises in question so that they do not constitute a nuisance.
The petition for rehearing is denied. | [
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The opinion of the court was delivered by
Mason, J.:
George M. Townsend sued the Missouri Pacific Eailway Company, alleging in substance that it employed him to furnish twenty-three men and teams to work upon its right of way, under a contract that the employment was to continue for nine months; that he was discharged at the end of twenty-eight days, and being unable to find other employment during the remainder of the period, suffered loss for which he asked compensation. In addition to the other defenses the company contended that its agent, with whom the plaintiff dealt, had no authority to make such a contract. Upon trial a verdict was returned for the defendant, upon which judgment was rendered, and the plaintiff appeals.
The plaintiff was employed by P. F. Gentine, who was known as a division engineer of the company, and as such had supervision over the maintenance of tracks and bridges within territory which included the place where the work was to be done. He testified that he had not in fact agreed to give the plaintiff employment for nine months, or for any definite period, and that he had no power to bind the company by such a contract; that each month a sum of money was appropriated to him and his authority was limited to the expenditure of that appropriation; that so far as that amount went he hired men and teams to do work without consulting any one, having absolute.control subject to the limitation stated. The plaintiff contends that he had no notice of such limitation, if it existed; that Gentine agreed to give him nine months’ work; that such agreement was within the apparent scope of the agent’s authority and was binding upon the company for that reason. His chief complaint is that the court failed to give proper instructions upon this feature of the case, and that the verdict for the defendant was the result of such failure. The instruction given bearing directly upon this subject read':
“If you find from, the evidence that the claimed contract sued on by the plaintiff herein was within the apparent scope of the authority of the said P. F. Gentine, Division Engineer, such finding is in no way binding upon the defendant company, unless you should also find that there had been previous transactions of a similar character in which the said P. F. Gentine exceeded his powers and which the defendant company ratified without question.”
This instruction was manifestly based upon the second paragraph of the syllabus in Kane v. Barstow, 42 Kan. 465, 22 Pac. 588, 16 Am. St. Rep. 490, which reads:
“The rule that a principal is bound by the acts of his agent which are within the apparent scope of the agent’s authority, is applicable only where there have been previous transactions of a similar character in which the agent exceeded his powers, but which the principal ratified without question, the other party being ignorant of the limitation of the agent’s authority, thereby leading him to believe that the agent had all the powers claimed.”
This statement has. heretofore been criticised as likely to be misunderstood. (Aultman v. Knoll, 71 Kan. 109, 79 Pac. 1074.) It can not be accepted as a sound declaration of a general proposition^ however well it may have served as a guide to a correct result as ap plied to the facts of that particular case. The ratification of acts previously done in excess of the original grant is but one of the methods by which the principal may be estopped to deny the authority of the agent. Where an agent acts within the apparent scope of his authority, one who in good faith relies upon such appearance may hold the principal responsible, if otherwise he would have been misled to his prejudice. A full collection of cases on the subject is found in 2 A. & E. Enc. L. & P. 954. There is a substantial agreement of judicial opinion as to the rule by which the matter is governed, although there is some diversity in its expression and application. It has been well stated in these words:
“Where a principal has by his voluntary act placed an agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform on behalf of his principal a particular act, such particular act having been performed, the principal is estopped, as against such innocent third person, from denying the agent’s authority to perform it.” (Johnston v. Milwaukee & Wyoming Investment Co., 46 Neb. 480, 490, 64 N. W. 1100.)
(See, also, 2 A. & E. Enc. L. & P. 959.)
Here the division engineer was entrusted with the control of the maintenance of the tracks and bridges within his territory. He alone employed and discharged workmen, and directed their operations. Whether a reasonably prudent man, familiar with the business, was justified in supposing that he had authority to make a contract of employment for nine months was a fair question for the determination of the jury. Such a contract was not necessarily unusual or extraordinary. It differs greatly in that respect from the one involved in Hornick v. U. P. Railroad Co., 85 Kan. 568, 118 Pac. 60, 38 L. R. A, n. s., 826, where a claim agent was alleged, in making a settlement with an injured employee, to have promised him employment for life. In the following cases contracts of employment for a definite period were upheld under circumstances having some analogy to those here present : Manross v. Oil Co., ante, p. 237; Gillis v. Duluth, North Shore & Southwestern R. Co., 34 Minn. 301, 25 N. W. 603; Drohan v. Merrill & Ring Lumber Co., 75 Minn. 251, 77 N. W. 957; Williams v. Getty, 31 Pa. St. 461, 72 Am. Dec. 757; World’s Columbian Exposition v. Richards, 57 Ill. App. 601; Decker v. Hassel, (N. Y.) 26 How. Pr. Rep. 528; and Cox v. Albany Brewing Company, 56 Hun, 489, 31 N. Y. St. Rep. 666, 10 N. Y. Supp. 213: In M. K. & T. Ry. Co. v. Faulkner, 88 Tex. 649, 32 S. W. 883, a vice president of a railroad company was held to have no power to employ a general passenger and ticket agent for a year, but it was said that there was no question of apparent authority in the case.
The court also gave an instruction reading as follows:
“Third parties dealing with the agent are put upon their- guard by the very fact, and do so at their own risk. They cannot rely upon the agent’s assumption of authority, but are to be regarded as dealing with the power before them, and must, at their peril, observe that the act done by the agent is legally identical with the -act authorized by the power, until such authority is established by other and competent evidence.”
This language, with the exception of the clause after the last comma, is taken from 1 A. & E. Encycl. of L. 987. In 2 A. & E. Enc. L. & P. 964, it is thus qualified:
“This is undoubtedly a correct statement of a general principle of the law of agency, but the rule is not to be applied without qualifications and under all circumstances. It is equally well settled that, having ascertained the general character or scope of the agency, the third person is authorized to rely upon the agent’s having such powers as naturally and properly belong to such character, and, in the absence of circumstances putting him upon inquiry, is not bound to inquire for secret qualifications or limitation^ of the apparent powers of the agent.”
Under the evidence in this case the instructions quoted amounted to a misdirection upon the vital matter in controversy. The defendant, however, maintains that any error in this regard was immaterial, because the jury found that no contract for a definite length of time was in fact made. The jury returned a-negative answer to the question, “Do you find that on or about April 1, 1909, the plaintiff made a contract with P. F. Gentine to furnish a certain number of teams for a certain length’of time?” Taken by itself this answer might seem to support the defendant’s contention. But a similar question was submitted in these words: “Did the plaintiff agree at the time of making of the alleged contract to furnish the defendant for the full term of nine .months, twenty-three teams every working day?” The jury answered: “No, from 20-25.” This seems to mean the same as though they had said: “No, but he did agree to furnish for nine months from twenty to twenty-five teams,” a finding which there was evidence to support. The plaintiff pleaded a contract for twenty-three teams, but his testimony was that he was to furnish from twenty to twenty-five. The jury, having made this distinction in answering one of the questions, must be deemed to have had it in mind in replying to the other. They found that no contract was made to furnish a certain number of teams for a certain time, apparently on the ground that, although a contract was made for a definite time, the number of teams was left uncertain.
It is unnecessary to pass upon the other assignments of error, as the questions presented seem not likely to arise again.
The judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
West, J.:
Section 1 of chapter 163 of the Laws of 1911 provides:
“That any husband who shall, without just cause, desert or neglect or refuse to provide for the support and maintenance of his wife in destitute or necessitous circumstances; . . . shall be guilty of a crime and, on conviction thereof, shall be punished by imprisonment in the Reformatory, or Penitentiary, at hard labor, not exceeding two years.”
On May 11, 1912, a complaint was sworn to before a justice of the peace of Stafford county charging:
“That on the-day of April, 1911, and from then continuously to the filing of this complaint, at the county of Stafford, state of Kansas, the said defendant, Robert E. Gillmore, being then and there the husband of one Rosamond Gillmore, did then and there unlawfully, willfully, feloniously and without just cause desert and neglect and refuse to provide for the support and maintenance of his said wife, she, the said Rosamond Gillmore, being then and there in destitute and necessitous circumstances.”
The defendant was arrested and filed a motion to quash, which was overruled, and after a preliminary hearing, the defendant was bound over to the district court for trial. On the 13th day of May an information was filed containing substantially the same charge as indicated, in response to which the defendant filed a paper unnamed setting out that he denied the jurisdiction of the court over his person and over the subject matter of the action, and that he entered his special appearance for the sole purpose of this plea; that he was arrested on the 11th day of May; that he left the state of Kansas in 1908, and had been a resident of Texas continuously for the past three years, and had not been in Kansas since 1909 until he came on May 6, 1912, to act as a witness in a case between his wife and. other parties; that he intended to return to Texas where he resided, and when about to take the train on the 10th of May he was arrested on a warrant issued by Justice Mace, from which arrest he was discharged on May 11; that when attempting to take the train on the date last mentioned he was again arrested on a warrant of Justice Swartz, before whom he entered his special appearance and moved to quash, which motion was overruled; that the justice proceeded with the preliminary examination and although there was no testimony showing or tending to show that the defendant had ever been in Kansas from April 1, 1911, until and including May 6, 1912, and although it was shown to the justice that the defendant was a resident of Texas and had been during the times named in the warrant, and no evidence showing that he had been in Kansas subsequent to March 29, 1911, when the act under which he was arrested took effect, he was nevertheless bound over; that he came to Stafford .county as a witness in the cause mentioned and for no other purpose and was endeavoring to return at the earliest possible moment at the close of the case in which he -came to testify; that he' believed he was illegally restrained of his liberty by the sheriff of Stafford county and that the laws of Kansas can have no extraterritorial effect and that he could not be guilty of violating the act in question, and that he believed if it were the intention of the legislature to apply the provisions of such act to nonresidents who were living .apart from their wives prior to its passage that such act is unconstitutional and ex post facto, and defendant believed he was exempt from arrest because he had come merely to be a witness. This was sworn to on belief only. To this.paper the state demurred, and after argument the court not only overruled the demurrer but discharged the defendant, and the state reserving the question for review, appeals and assigns error in the ruling of the trial court.
The defendant contends that the act is unconstitutional because section 4 provides that before trial, with the consent of defendant, or at the trial on entry of a plea of guilty, or after conviction, instead of sending the defendant to the penitentiary or reformatory, or’ in addition thereto, the court in its discretion may make an order subject to change from time to time directing the-payment of a certain sum periodically for a term not exceeding two years to the wife, guardian, curator or custodian of the minor child or children, or to an organization or individual approved by the court as trustee, and shall have power to release the defendant from custody on probation for a period' so fixed upon his giving a recognizance with or without surety in such sum as the court or judge may order and approve. Also; that it is unconstitutional because section 7 authorizes the warden or official in charge of the penitentiary or reformatory to pay over to the wife or to some one for the minor children, at the end of each week for their support, a sum equal to such- amount as may be allowed by law to such convict for each day’s hard labor performed by him. It is also contended that as the statutes of Kansas can have no extraterritorial effect, and as it is the .wife’s duty to reside at the husband’s domicile which was here shown to be in Texas, he could not default in her support until demand was made at that place; that if he owed a duty to support his wife it was a duty to support her in Texas and not in Kansas.
The provision requiring the warden to pay a sum equal to the daily wage of the convict, can hardly render the act unconstitutional as there is no law in existence for which the convict receives wages for his labor.
The fact that the court is authorized instead of putting the sentence into execution at once to parole and recognize the defendant on condition that he provide periodical support for his wife does not render the act void for diversion of a fine from the direction required by section 6 of article 6 of the constitution, which requires the proceeds of fines for the breach of any penal laws to be applied exclusively to the support of common schools. The payment required under this sort of order is the payment of a sum found by the court tó be reasonable for the support of a wife by virtue of which payment the defendant escapes the penalty of the law, and it can by no process of reasoning be rightfully considered a fine.
As to the paper filed by the defendant, we think it should be considered as an attempted plea to the jurisdiction of the court. It appears to have been so treated by both parties and by the trial court, and we know of no other designation which could with propriety be applied to it.
The general rule is not only that a plea to the jurisdiction must be certain, but that if it contain matters of defense merely, it may with propriety be overruled.
“Where an indictment is taken before a court that lias no cognizance of the offence, the defendant may plead to the jurisdiction, without answering at all to the crime alleged; . . . Such pleas are not com mon, the easier and simpler course being writ of error or arrest of judgment. The want of jurisdiction may also be taken advantage of under the general issue.” (Wharton’s Crim. Plead, and Prac., 9th ed., § 422.)
“By this plea, the defendant totally denies the authority of the court to try him; . . . But it seems that the defendant can not plead to an indictment before justices, that the offence was committed at some place beyond their jurisdiction, for this would amount to no more than the general issue.” (1 Bishop on Crim. Procedure, 3d ed., § 736.)
“This plea is seldom used, as the objection may be taken in other ways. This plea will be proper when the court before which the indictment is preferred has no cognizance of the particular crime, either because of the nature of the crime, or because it was not committed within the territorial jurisdiction of the court, or when the court has no jurisdiction of the defendant’s person. Objection to the jurisdiction may generally be taken advantage of under the plea of not guilty, or the general issue, and need not be specially pleaded, or it may be successfully raised by motion in arrest of judgment, or on appeal or writ of error, or by demurrer, when the want of jurisdiction appears on the face of the indictment or in the caption. A plea to the jurisdiction is therefore seldom resorted to. The plea, being dilatory, must be certain to every intent. The highest degree of certainty is required.” (Clark’s Criminal Procedure, § 130.)
While the question of jurisdiction may be raised at any time (Rice v. The State of Kansas, 3 Kan. 141, syl. ¶ 5, 161), still “it is proper for the district court to overrule a plea to the jurisdiction of the court, which substantially raises the question of the guilt or innocence of the accused.” (The City of Salina v. Cooper, 45 Kan. 12, syl. ¶ 2, 25 Pac. 233; The State v. Bailey, 57 Neb. 204, 77 N. W. 654.)
Section 162 of the criminal code provides that “no plea in abatement or other dilatory plea to an indictment or information shall be received by any court unless the party offering such, plea shall prove the truth thereof by affidavit or some other evidence.” The oath of the defendant that he merely believed the contents of the paper filed to be true did not amount, to an affidavit. (The State v. Gleason, 32 Kan. 245, 4 Pac. 363.) The demurrer challenged the sufficiency of the plea. Whatever of substance the paper ,conr tained was, if -anything, matter of defense and the demurrer was erroneously overruled.
Assuming, however, that the paper should have been considered as a properly drawn and verified plea to the jurisdiction it was insufficient, although this sort of pleading and practice is novel in our criminal law. The statute is disjunctive and the crime is committed either by desertion and leaving the wife destitute, or by neglect or refusal to provide for her support and maintenance when in destitute or necessitous circumstances. In State v. Dvoracek, 140 Iowa, 266, 118 N. W. 399, it was held that the venue may be laid in the county where the duty to support should be discharged. It was also said in the opinion concerning an act quite similar in terms:
“Analyzing this, it becomes apparent that any one of three acts stated disjunctively may subject a person to the penalty denounced. The act of abandoning his children had been consummated prior to the taking effect of the act, and this, doubtless, accounts for the omission to charge him therewith.” (p. 268.)
In The State v. Witham, 70 Wis. 473, 35 N. W. 934, the statute made it a misdemeanor- to abandon the wife, leaving her in a destitute condition, or, being of' sufficient ability, to refuse or neglect to provide for her, and it was held that such abandonment before the act took effect but continued down to the time of the-trial subjected the defendant to the penalty. It was said:
“By the act of abandonment, leaving his wife in a destitute condition, the husband incurs the penalty. He also incurs the penalty, when, being of sufficient ability, he refuses or neglects to provide for her support. In the present case, while the abandonment oc curred before the law took effect, still the willful refusal to provide for his wife continued to the time of trial. This rendered the defendant liable, under the .statute, for the penalty incurred or imposed for such neglect.” (p.'475.)
The wife was alléged to be in destitute circumstances in Stafford county, and the defendant was charged with there deserting and there neglecting and refusing to provide for her support and maintenance. The fact that when the act was passed he was in Texas could be no defense; that he had come voluntarily into Stafford county to appear as a witness in a case between other parties was no bar to his arrest for a violation of the criminal laws of Kansas. His plea that he believed that his domicile had been in Texas since 1908, or even such fact, if it were a fact, of itself, furnished ho reason why his wife should be left or permitted to remain in Kansas in destitute circumstances^ Had it been shown that she had wrongfully refused to follow hini to his domicile in Texas and thus in law .abandoned or deserted him, this might be a defense.
In Commonwealth v. Bailey, 1 Leg. Gaz. Rep. 87, both parties had their domicile in Delaware and the desertion was in Massachusetts, for which the husband was arrested in Pennsylvania, where it was. held that the court had no. j urisdiction. But in State v. McCullough, (Del.) 1 Pennewill, 274, 40 Atl. 237, it was ruled that it was sufficient that the husband be in the state and that he neglect without cause to support his wife, regardless of where he abandoned her. People v. Pettit et al., 74 N. Y. 320, was a case wherein it was shown that when the parties were living apart the husband gave a recognizance for her support. He then offered to take her to his father’s house, where they had formerly lived, and to support her there, but not elsewhere. She refused to go for the reason that she would not live in the house with his parents, and that it was unfiit because of his father’s drunkenness and abusiveness. It was held that the husband was .not guilty of failing to support her—on the theory that he had a right to choose the domicile. A violation of 'the statute as it was worded made the delinquent a disorderly person, and the court found no evidence of -disorder in the offer to support the wife at the domicile chosen by her husband. People v. Vitan, 10 N. Y. Supp. 909, is cited. There the parties were domiciled in Pennsylvania, where the wife left her husband and went to reside in New York. He afterwards came to live in another county in New York. While calling on .her he refused to live with or support her. The court held that this did not render him subject to punishment as a disorderly person on the ground that he had ^abandoned his wife in the county where he was living, and that knowing, after she had left him without legal -cause, that he was residing in another county she should have made her demand there. Had he first abandoned her without cause and left her destitute, a different question would have arisen. It was held in Burton’s Case, 109 Va. 800, 63 S. E. 464, that under a statute making it a misdemeanor to desert or willfully neglect to provide, the violation may be charged as having occurred at the time of desertion or at any time during its continuance. The court said:
“In order to establish the offense ... it must "be made to appear that without just cause he deserted •or willfully neglected to provide for the support of his wife or minor children, leaving them in destitute or necessitous circumstances. They may be in destitute circumstances at the time the desertion takes place, or 'they may become destitute as a consequence of the-desertion on the part of the husband and his willful neglect to provide for their support. The object of the •.statute was to compel the husband, if ’he were able to do so, to support his wife and children. It' is a continuing duty, and the breach of it may be -stated as "having occurred at the moment of the desertion or at .-any time during the continuance of the willful neglect to make provision for his wife or minor children whom, he has’ left at the moment of desertion, or who have since been rendered destitute or in necessitous circumstances.” (p. 804.)
State v. Scanner, 81 Ohio St. 393, 90 N. E. 1007, involved a statute making it an offense to neglect or refuse to provide when able for the wife or children living within the state, and it was held that a parent, might be guilty although residing in another state, as the venue is in the county where the child is when the complaint is made. The supreme court of Wisconsin decided in Spencer v. State, 132 Wis. 509, 112 N. W. 462, that a husband having the means was punishable for failure to support his wife who became destitute to his knowledge, although they were living separate by consent. . The theory of a continuing offense is fully recognized in State v. Stout, 139 Iowa, 557, 117 N. W. 958.
The defendant’s statement that he verily believed it was not the intention of the legislature to apply the provisions of the act to “non-residents who were living apart from their wives prior to the passage of said act” indicates the notion that mere living apart from a wife-relieves the husband from the duty to support, which is neither good law nor good morals. In his brief his counsel ask:
“When he came into Kansas for a temporary and lawful purpose, was he violating the law and committing a crime by failing and refusing to support his wife while here? If during the few days he was in Kansas, he had supported his wife, would he be innocent of the crime charged?”
As to the first question we reply that according to the information he was violating the law, and there was nothing shown in his plea to the contrary. As to the second query we feel confident that had he provided for his wife’s support during the few days he was here he would at least be in much better relation to the law than he now is. It is insisted that before he can be in default the wife must demand of him in Texas that he provide for her. This presupposes that the circumstances were and are such as to make it her duty to follow him to the other state, and as already suggested, he alleged nothing showing such duty on her part. Counsel say:
“He may admit that he deserted his wife in Kansas in 1908, the law not then being in effect. He can not be tried for desertion under this law even if he deserted her in Texas, in 1909.”
But he can be tried for failure to support her in the place where he deserted her unless he can show some legal excuse, which he has not done thus far.
It is suggested that the act is void because the punishment provided is unusual. Hard labor in the penitentiary or reformatory not exceeding two years, with the incidental provision for the enforcement of orders for support which if obeyed work a stay of execution is certainly not more unusual than the Wisconsin penalty of six months in jail on bread and water. Of that Justice Winslow said in the Spencer case (132 Wis. 509, 112 N. W. 462) :
“We are of opinion, however, that the clause in question may well be justified as providing an appropriate punishment for an aggravated case of abandonment or failure to support.” (p. 520.)
The penalty is severe, but evidently the legislature believed that this very feature would act as a deterrent to faithless husbands and pitiless fathers who might be tempted to leave wife and child without support or care. Its severity need trouble no one who possesses sufficient manhood and decency to entitle him to remain outside prison walls.
The ruling of the trial court is reversed with directions to proceed in accordance herewith. | [
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The opinion of the court was delivered by
Porter, J.:
This is an appeal from a conviction in the district court of Cloud county for a violation of the prohibitory law. The information was filed June 28, 1911, charging the appellant in the first five counts with illegal sales, in the sixth and seventh counts with taking orders for the sale of intoxicating liquors, and in the eighth count with keeping and maintaining a liquor nuisance. October 9, 1911, a jury was impaneled and the trial of the case begun, the trial lasting until the morning of October 11, during which time the state called and examined twelve witnesses. On the morning of October 11, owing to the serious illness of one of the county attorney’s children, on his application the further trial of the case was adjourned over until November 13, 19.11. The adjournment was made to that date because'the regular term of court commenced in Republic county on October 16. This was done over the objections of the appellant. When the adjournment was taken and the jury allowed to separate the court admonished them as follows:
“Gentlemen of the Jury, on account of severe illness in the-county attorney’s family, I am going to excuse you until 10:30 o’clock A. M. of the 13th day of November. Now during the time you are separated I want you to be very careful not to discuss this case with any one, do not allow the members of your family to talk to you about it, do not discuss it among yourselves, do not allow any one to talk to you about it, and in view of the peculiar circumstances I am going to ask you as you go about your business, should you hear any one discussing this case, to walk away, and do your best not to hear any talk that may arise over it, and should any one persist in talking or trying to talk to you about it, let me know.”
On November 13 the jury and parties returned as before, at which time the-appellant made formal objection to further proceeding with the trial.of the case before that jury. This objection was overruled and the trial was resumed; the state introduced four additional witnesses, and the appellant introduced testimony, including that of himself, in which he denied the charges against him. On November 16 the jury re turned a verdict finding the appellant guilty on the first and eighth counts of the information, and not guilty on the other six. A motion for a new trial was- overruled and judgment entered against the appellant on the verdict, sentencing him to imprisonment in the county jail of Cloud county for ninety days and to the payment- of a fine of $200 on the first count, and to imprisonment in the county jail for six months and to pay a fine of $200 on the eighth count of the information.
Three assignments of error are. relied upon for reversal: (1) It is claimed that the court failed to explain by proper instructions what is meant by a “partnership.” The court gave, among others, the following instruction:
“Some evidence has been offered to the effect, that a witness, Bone Dykes, and the defendant, Cornelius Tracy, were in partnership in the business of unlawfully selling intoxicating liquors; that the defendant Tracy furnished the financial credit on which said business was founded, stored the liquors belonging to said partnership in the place alleged in the eighth count of the information, assisted in caring for said liquors, and received his share of the profits of said-business.
“You are instructed that where a person acts in conjunction with another as a partner in the business of selling intoxicating liquors in violation of the law, the said person may be prosecuted and punished for said unlawful sales made by his said partner the same as though he had personally made said sales; and if said person kept and stored said intoxicating liquors for any of the unlawful purposes mentioned in Instruction No. 6, while his said partnér made unlawful sales from the intoxicating liquors so stored and kept, then the party so storing and keeping said liquors would be .guilty of maintaining a common nuisance.
“Therefore, if you find from the evidence beyond a reasonable doubt that the defendant was in partnership with the witness Bone Dykes in the unlawful sale of intoxicating liquors, and that the witness Bone Dykes made the sales, or any of them, as charged in the information, or if you find that the defendant either for himself or in conjunction with the witness Bone Dykes maintained a common nuisance at the place alleged in the information, then you would be justified in returning a verdict of guilty upon whichever count or counts you believed him to be guilty.”
We think the instructions fairly presented all the law respecting a partnership that was involved upon the facts in evidence, and that the jury were not left, in the dark as to what would constitute the appellant, and Dykes partners in the transactions referred to. There was no request for a more definite instruction..
(2) It is urged that the court erred in permitting the jurors to separate without admonishing them not to form or express' an opinion in the case until it was finally submitted to them. While the charge omits the statutory requirement, we would not feel warranted in holding the omission a sufficient ground for reversal, in view of the admonition which was given and in which the jurors were told to be very careful not to discuss, the casé with anyone or among themselves, and the previous admonitions which it is presumed from the record were given when the jurors were permitted to separate at other times during- the progress of the trial, and in view of the further fact that appellant and his counsel though present did not call the court’s attention to the omission.
(3) The claim of error which presents a question of more serious importance is that it was an abuse of judicial discretion to postpone the cause in the midst of the trial, permit the jurors to separate, and thirty-three days thereafter resume the trial over the-objection of appellant.
We are impressed with the force of the contention that there was such a departure from the orderly procedure which should be followed in the conduct of a criminal case as to require the judgment to be set aside and a new trial ordered. Permitting the jurors to separate after they had heard a substantial part of the. evidence for the state and, over the objections of appellant, resuming the trial thirty-three days after-wards could hardly be otherwise than prej udicial to his rights. It was long the almost universal practice not to permit the jurors to separate for any purpose until they had returned their verdict and been discharged. Many of us have recollections of seeing juries marched in charge of a sworn bailiff to and from the court house and the tavern. More liberal views as to what the furtherance of justice demands in court procedure and consideration for the convenience and comfort of jurors have quite generally caused the old practice in this respect to fall into' desuetude. In the trial of important criminal cases or in a civil cause it is always within the discretion of the court, upon its own initiative or upon a proper showing, whenever it is deemed necessary in the furtherance of justice, to order the j urors kept together until the verdict. There was mo attempt in the present case to show nor is it claimed that any improper influence was brought to bear upon any member of the jury during their separation. Nor do we think any presumption of improper influence should be indulged. Wholly aside from any probability of the verdict having been affected by outside influences, the lapse of thirty-three days between the introduction of the state’s evidence and that of appellant rendered it at least doubtful whether the jury could properly determine its weight. The state now contends that its case was naturally weakened by the lapse of time and that the postponement must have inured to the benefit of the appellant. On the other hand, he insists that the jurors, after hearing twelve witnesses for the state testify against him, could not, despite the admonition' of the court, refrain during all that period from recalling and giving thereto such weight as to leave in their minds such a settled belief in his guilt as would require the strongest kind of evidence to overcome. We think that a fair and impartial trial, which every person charged with a crime is entitled to, was denied appellant. After such an interval the j ury would be unlikely to recall the appearance and demeanor, of the witnesses for the state, while the impressions gathered from what the witnesses testified to might remain as' more or less settled convictions. A somewhat similar situation arose in Butler v. McMillen, Co. Clerk, 13 Kan. 385. That was a civil action involving the validity of a county-seat election. After the trial was begun and witnesses for both sides had been examined the case was continued because the term of court was about to end, and the trial was not resumed until one year afterwards. While the period of time which elapsed was much longer than in the present case, it was a trial by the court without a jury. The same question involved here having been raised, the procedure was held erroneous and a new trial was ordered. It was ruled in the syllabus: “A trial should be completed, so far at least as the introduction of testimony is concerned, at the term at which it is commenced.” (Syl. ¶ 1.) In the opinion Justice Brewer, speaking for the court, said:
“We think this objection of the defendant in error well taken. We do not understand that a case can be tried piecemeal in this way. Here two terms and a year’s time intervene between the term at which part of the testimony is heard and that at which the remainder is-introduced. If the case were tried before a jury, the impropriety would be more apparent, in view of the difficulty of securing the reattendance of the same triers; but the impropriety would not be more real, where a great length of time intervenes, as in this case. Undue weight will very likely be given to the testimony offered at one of the terms. The case is not presented to the consideration of the court in a symmetrical and well-proportioned' manner. Impressions settle into convictions, while the manner of witnesses, and much of the minutia which gave rise to those impressions, are forgotten. It frequently happens that the testimony on the one side, even when not contradicted, is explained or qualified by that on the other, and, when so explained or qualified, carries a very different, meaning from that which it conveys by itself alone. If this explanation or qualification is not heard for a year, it will often go but little ways towards changing the effect first produced on the mind.” (p. 390.)
In the case of In re Scrafford, Petitioner, &c., 21 Kan. 735, the petitioner sought release by habeas corpus after conviction of the crime of forgery. The trial, which had been commenced at one term of court in December, was in progress at the close of the term on Saturday. On that day the court directed the jury to return into court on Monday, which was the first day of the regular January, 1879, term, when the trial was resumed, the verdict of guilty being returned several days later and during the January term. The court held that at most there had been only a mistrial and therefore the writ was denied.
The judgmexit is reversed and the cause remanded for another trial. | [
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The opinion of the court was delivered by
Smith, J.;
The appellee brought this action in the
district court of Sedgwick county to recover on a promissory note for $1600 executed by appellant L. W. Thompson, and by H. L. Hale as surety, and caused a garnishee summons to issue to the Fourth National Bank of Wichita. L. S. Naftzger, president of the bank, answered that at the time of the service of the garnishee summons Thompson had deposited in the bank the sum of $1923.83; that the bank considered itself indebted to Thompson in that amount; that thereafter, about May 5, 1910, the money was claimed by the Streator Motor Car Company, which served notice upon the president of the bank that the Motor Car Company claimed all the money in the bank deposited in the name of L. W. Thompson as its money. The answer further offered to pay the money into court, and asked that the Streator Motor Car Company be made a party defendant and that the bank be discharged from further liability in the premises.
Thompson answered, in substance, that the note sued upon by appellee was without consideration; that he was not indebted thereon.
The Streator Motor Car Company interpleaded and alleged that on March 7, 1910, it consigned to Thompson an automobile of the value of $1951.12; that the car was to remain the property of the interpleader until sold, and when sold the money was to be forwarded to the company; that Thompson sold the car and received the money therefor and deposited it in the garnisheed bank in his own name; that the money so deposited was the money garnisheed and is the property of the interpleader.
A jury was impaneled to try the case. After the evidence was introduced, a motion was filed by the appellee for an instruction to the jury to bring a verdict for the plaintiff against the interpleader. The motion was sustained, verdict was returned in accordance with the instruction, and judgment was rendered that the money on deposit in the Fourth National Bank in the name of Thompson at the time the garnishee summons was served was the property of Thompson and subject to the garnishment, and that the money was not at that time and is not the property of the interpleader, the Streator Motor Car Company. From this judgment the appeal is taken.
The evidence showed without dispute that' the Streator Motor Car Company consigned an automobile to Thompson; that the automobile was to remain the property of the Motor Car Company until sold; that Thompson received.the car at Wichita; that Thompson sold the car to Alfred Miller for $2200 and received in payment therefor one check for $1525 and one for $675, both dated March 12, 1910, and payable to Thompson.
Thompson testified that he received the two checks from Miller, aggregating $2200, and put them in the Fourth National Bank for collection; that at the time the garnishment summons was served, April 28, 1910, the amount of his deposit was in the neighborhood of $2000, and that all of it was derived from the sale of the automobile to Miller.
On the other hand, there was evidence tending to show that the $1525 check, received by Thompson as proceeds of the sale of the automobile, had not been deposited in the Fourth National Bank; that the $675 check had been so deposited, but that after such sale and the deposit of the $675 check the account of Thompson in the bank had at times been increased and at times decreased, so much that at one time his account was overdrawn. It is contended that this shows that the proceeds of the sale of the automobile had been entirely dissipated before the garnishee summons was served; that, hence, the money found to Thompson’s credit at the time of the service of the garnishee summons could not have been the proceeds of the sale of the automobile but was derived from some other source.
This contention does not follow as a proposition of law, but at most presents an issue of fact. Neither does it follow that if Thompson had entirely expended the funds derived from the sale of the automobile, which he held as trustee, and thereafter substituted his own money in lieu thereof, the appellees having no interest in the money so substituted at the time of the garnishment, they acquired any right by such garnishment prior to the right of the Streator Motor Car Company thereto. On. the other hand, it has been frequently decided that a trustee in possession of funds belonging to another, who has used such funds for his own purposes, may restore the funds and substitute his own money in lieu thereof. (In re T. A. McIntyre & Co., 181 Fed. 960; Jeffray v. Towar, 63 N. J. Eq. 530, 53 Atl. 182.)
In the latter case it was said: “The trustee having admittedly in his hands at least this amount of the trust estate, which has never since been otherwise accounted for or identified, and having deposited the amount in the account which did contain the trust funds, it must, in the absence of proof that they did not arise from other sources, be presumed that they were either originally trust funds, or funds substituted by the trustee for trust funds taken” (p. 538), and “even where deposits in the trustee account are proved to have been made with the depositor’s personal funds, but the deposits were made to replace or restore trust funds for which he was accountable, the deposits become trust funds, by way of substitution, and the beneficiaries are entitled to hold them.” (p. 546.)
(See, also, Baker et al. v. New York Nat’l Ex. Bk., 100 N. Y. 31, 2 N. E. 452.)
There was an issue of fact upon which there was conflicting evidence as to whether the proceeds of the sale of the automobile had been deposited in the bank. The court erred in directing a verdict without submitting the facts to the jury with proper instructions, and also in rendering the judgment thereon.
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
Johnston, J.:
The question presented for our decision is, Has a court power to divide a judgment of conviction in a criminal case into sections and pronounce parts of it from time to time and at different terms of court?
In a prosecution for violations of the prohibitory liquor law George Beck was convicted on six counts. The verdict was returned February 28, 1898, and on the following day a motion for a new trial was overruled. At the same term of court, and on March 14, 1898, a motion in arrest of judgment was overruled as to one count and final judgment was pronounced, sentencing the defendant to imprisoninent for thirty days and to pay a fine of $100, as well as an attorney's fee of twenty-five dollars and the costs. On the same day it was ordered that the motion in arrest of judgment as to the other counts included in the verdict be continued until March 25, 1898. The defendant was at once imprisoned under the judgment and remained in prison until July 25, 1898, when he was released upon an order of the county commissioners, and a few days thereafter the governor granted a full pardon of the offense for which he was adjudged guilty. No steps were taken as to the other offenses embraced in the verdict at the term of court when judgment was rendered against the defendant, nor until December 7, 1900, nearly three years after judgment had been rendered and more than two years after the sentence of imprisonment had been executed and the pardon by the governor had been granted. At that time a bench warrant was issued, the defendant was again arrested, and brought before the court for further sentence and judgment. The court then overruled the motion in arrest of judgment as to the other counts, approved the verdict, and proceeded to pronounce another judgment sentencing the defendant to forty days’ imprisonment and f 100' fine on each of the five remaining counts.
The court was then wholly without authority to render an additional judgment or to impose other and additional punishment. Its power was exhausted when the final judgment of 1898 was rendered and executed. A judgment is the final determination of the issues submitted, and the criminal code contemplates that but one final judgment shall be rendered, however many distinct offenses may have been charged in the information or included in the verdict. (Crim. Code, §§ 241, 242, 248-250; Gen. Stat. 1901, §§ 5686, 5687, 5693-5695.) It was competent for the court temporarily to suspend judgment for the purpose of hearing motions for a new trial and in arrest of judgment, also to gain information that would enable the court to impose a just sentence on the defendant, to give the defendant an opportunity to perfect an appeal, or for other proper relief; but an indefinite suspension, or the holding of the sentence over the head of the defendant, to be executed from time to timé as the court may see fit, is wholly unauthorized. (In re Strickler, Petitioner, 51 Kan. 702, 33 Pac. 620.)
A final judgment in either a civil or criminal case is open for correction or revision until the end of the term at which it is rendered. During the term and while it remains unexecuted it is regarded to be within the breast of the court, subject to amendment, alteration, or a change or increase of the sentence ; but when the term ends every judgment regularly entered becomes final and passes beyond the revisory power and control of the court. (The State v. Hughes, 35 Kan. 633, 12 Pac. 28; Freem. Judg. §96; 17 A. & E. Encycl. of L., 2d ed., 816.) During the term and before the execution of the judgment had been entered upon, the court might have amended it and imposed penalties for each of the offenses included in the verdict; but when the term was allowed to pass, the case dropped from the docket, and the judgment rendered executed, the state practically abandoned the prosecution, and the court was without further power in the premises. Several distinct offenses of a like nature may be united in a single charge and separate and distinct punishments imposed, but when there is a conviction of two or more offenses the sentence and judgment must include all the penalties for that prosecution. (Crim. Code, § 250, Gen. Stat. 1901, § 5695.) In People v. Felker, 61 Mich. 110, 27 N. W. 869, it was held:
“That a judgment in a criminal case cannot be divided' up, and pronounced from time to time, by the court; that while, in the exercise of a sound discretion, the court may suspend sentence for a reasonable time to secure information of such matters as will enable it to impose a just and proper sentence, or to enable the respondent to present exceptions to a higher court, or sue out a writ of error, yet the sentence or judgment, when pronounced, must embrace the whole measure of the punishment imposed.”
In Commonwealth v. Foster, 122 Mass. 317, it was held, in a case where the defendant had been convicted upon an indictment containing several counts, and the judgment had been partly executed, that he could not at a subsequent term be sentenced anew upon another count in the same indictment, even if the first sentence was erroneous. It was there said:
“There could be only one judgment upon the indictment, and consequently a judgment and sentence upon one count definitively and conclusively disposed of the whole indictment, and operated as an acquittal upon, or discontinuance of, the other count.” (See, also, State v. Addy, 43 N. J. L. 113, 39 Am. Rep. 547; Nuckolls v. Irwin, 2 Neb. 60; Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872; United States v. Wilson, 46 Fed. 748; Weaver v. People, 33 Mich. 296; State v. Davis, 31 La. An. 249; Brown v. Rice, 57 Me. 55, 2 Am. Rep. 11; People v. Meservey, 76 Mich. 223, 42 N. W. 1133.)
If the practice which the trial court adopted is permissible, to what extent may it be extended? Could the court at the end of every three-year period cause the arrest of the defendant and the imposition of a penalty on each of the six counts, and thus continue to render final judgments on the defendant from time to time for a period of eighteen years, and where each judgment would be executed before the next one would be rendered? On which of these judgments rendered on a single verdict could an appeal have been taken? It is generally conceded that no more than one appeal can be taken from the result of a prosecution ; and if but one, must the defendant wait for an indefinite time and until the last judgment is rendered, and un til those first rendered have been executed? In our opinion, the judgment rendered in 1898 is to be deemed a final judgment and the end of the prosecution. The rendition of that judgment and its execution exhausted the power of the court in the case, and the attempt to bring the defendant before the court and impose additional penalties in the same prosecution was wholly without authority. The petitioner will, therefore, be discharged.
Cunningham, Greene, JJ., concurring. | [
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The opinion of the court was delivered by
Smith, J. :
This was an action in replevin brought by Benjamin F. Talbott against Mills and Matthews for the recovery of the possession of two mules. It appears that the animals were bought by one Homer Talbott, son of the defendant in error, and afterward were levied on under process of some kind, but in whose favor the process was issued does not appear, unless it may be implied from the testimony showing that Homer Talbott owed one Moore. Benjamin F. Talbott signed a note with his son, securing the purchase-price of the mules, and introduced testimony tending to show that there was an express oral agreement at the time that the mules were to be his (the father’s) until the note was paid. He recovered a judgment in the court below.
The briefs of counsel confine the discussion to the effect of section 4257 of the General Statutes of 1901, relating to oral conditional sales, as against the rights of creditors. We do not think such question is involved in the case. Plaintiff below introduced testimony showing the transaction, and the arrangement between himself and son by which title was to remain in the father until the note given for the purchase-price should be paid. Having rested, the defendants below demurred to the evidence. The demurrer being overruled, they offered no evidence in defense, but went to the jury on the testimony of the plaintiff.
The defendants below were not sued as officers. It was admitted, however, by counsel on the trial that Matthews was acting at the time of the levy as a deputy sheriff. There was no proof showing under what kind of process he made the levy. Whether he held an execution or writ of attachment does not appear. Had the process under which the officer levied been received in evidence, this would have been insufficient as against the plaintiff below without proceeding further,- and showing, if an execution, that the same was supported by a valid judgment, and, if a writ of attachment, that a debt existed. The rule is that where an officer seizing property under process is sued in trespass or replevin by a stranger to the writ, who claims title anterior to the levy, then the officer can only justify by showing a judgment, if he acted under an execution, and if under a writ of attachment-, that the parties at whose suit it issued were creditors of the party defendant named therein. (Crock. Sher. § 866; Cobb. Repl. § 1010; Thatcher v. Maack, 7 Ill. App. 635; 20 Encyc. Pl. & Pr. 153; Johnson v. Holloway, 82 Ill. 334.)
In James v. Van Duyn, 45 Wis. 512, 516, the opinion quotes the language of Chief Justice Dixon in Bogert v. Phelps, 14 Wis. 88, 93, as follows :
“In case of an action by the party against whom process issued, the process itself, being valid on its face, constitutes a complete justification. In case of suit by another claiming title to the property seized under such party, which title is contested on the ground of fraud, he must, in addition to showing that he acted under such process, show that he acted for a creditor. Where he acts under process of execution, this is done by producing the judgment on which it is issued. If it be mesne process, then the debt must, be proved by other competent evidence. This proof, however, is required, not because it affects the process, •or is in that respect necessary to protect the officer, but because it affects the title to the property in question. No one but a creditor can question the title of •the fraudulent vendee, and hence he must show that the relation of debtor and creditor exists between the party against whom the attachment or execution ran, and the person in whose behalf it was issued. It is a necessary link in the chain of evidence by which the fraud is to be established.”
In the present case the evidence was sufficient to show that, as between the plaintiff below and his son, the title and right of possession of the mules were in the former at the time the action was begun; and, until the officer showed that he was acting in behalf of a creditor in seizing the property, it was entirely immaterial that the oral conditional sale might be fraudulent and void in law as to creditors.
The judgment of the court below will be affirmed.
Doster, O. J., Ellis, Pollock, JJ., concurring. | [
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Per Curiam:
This was an action in ejectment, brought by J. B. Cook to recover possession of certain real estate claimed by the Missouri, Kansas & Texas Railway Company to form a part of its right of way and station grounds in the city of Chetopa, and by the railway company leased to plaintiff in error. The claim of defendant in error, defending as lessee of the railway company and on the strength of the railway company’s title, is precisely that made in and disallowed by this court in the case of M. K. & T. Rly. Co. v. Cook, 47 Kan. 216, 27 Pac. 847, affirmed by the-United States supreme court in 163 U. S. 491, 41 L. Ed. 239. These former decisions, while not involving the identical property in controversy in this case, do-involve the identical claim of right here sought to be relitigated, and must be held decisive of this action on the merits.
The only remaining question is the plea of the statute of limitations. Under the agreed statement of facts, we do not see how the statute of limitations can bar this action. The legal title originating in and emanating from the patentee from the govern ment drew'to the patentee and his successive grantees the right to possession and constructive possession of the property involved. Plaintiff in error received its lease from the railway company in January, 1895. This was the first act of the railway company, or its lessee, taken in opposition to the constructive possession and right to possession of defendant in error, and this action was commenced in August, 1898. Again,' this lease was made to, and actual possession taken by, plaintiff in error while the determination of the right of the railway company to occupy more than 100 feet of right of way or station grounds in the city of Chetopa, under- grant from the government and the location of its line of road, was pending and undetermined between the lessor of plaintiff in error and defendant in error herein.
It follows that the plea of the statute of limitations must be denied, and judgment affirmed.
Cunningham\ Greene, Pollock, JJ. | [
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The opinion of the court was delivered by
Pollock, J.:
This was a proceeding for injunction brought in the district court of Franklin county to restrain the building of a fence between the northeast quarter and northwest quarter of section 9, Lincoln township, in said county, upon a line between said quarter-sections established by the county surveyor of said county, under the provisions of chapter 89, Laws of 1891 (Gen. Stat. 1901, §§ 1797-1824.) From the agreed statement of facts in the record, it is found that in the year 1882 the owners of said quarter-sections'caused to be built between the same aline fence upon what was supposed to be the line of the government survey; that this fence was continually maintained until the fall of 1897, at which time defendant in error,, being then the owner of the northeast quarter, instituted proceedings under the statute to establish the true boundary line and corners of said quarter-section.
Upon due notice to plaintiff in error, the county surveyor proceeded to and did, under the statute, establish the western boundary line of said quarter-section between two and three leet west of the fence so erected. At the time of the location of this line, plaintiff in error was present and acqqiesced- in its location as made by the surveyor, at least to the extent of paying his proportionate share of the costs ■ and expenses incident thereto. No appeal was prose-'cut-ed from" such proceedings. Afterward, the fence-viewers of the township having duly assigned to defendant in error the duty of erecting and maintaining the north half of the fence on the line as established, defendant in error began the tearing down of. the old fence and the erection of the new on the line as located by the county surveyor, when this action was brought. Upon final hearing, a permanent injunction was refused. To reverse this judgment, plaintiff below prosecutes this proceeding in error.
The only question presented for our determination arises on the constitutionality of the act. (Laws 1891, ch. 89; Gen. Stat. 1901, §§1797-1824.) Plaintiff in error, having with full knowledge acquiesced in the location of the line and ratified the determination of the county surveyor, by paying his proportionate share of the expenses incident thereto and by failing to appeal from such proceedings, is now con■clusively estopped from questioning the correctness of the line as established, unless the law under which the county surveyor assumed to act is utterly null and ■void, and he is in position to question the validity of this legislation in this action.
The specific objection urged by counsel for plaintiff in error against the validity of the act is that, as plaintiff in error and his grantors have remained in the actual, peaceable possession of the strip of ground lying between the new line as located and.the fence as it stood upon the supposed government survey for a period of more than • fifteen years prior to the commencement of proceedings by defendant in error to ascertain the true boundary line, the owner of the northwest quarter became the owner of this strip of ground by adverse possession; and, as the act in ■question does not’ provide for the determination of the title to this strip of ground by jury trial, upon appeal, the plaintiff was surveyed out of his land. Hence, the act is unconstitutional and void.
With this contention we do not agree. As the act does not in express terms or by necessary implication deny the right of trial by jury upon appeal, as to controverted issues of fact, and as plaintiff in error acquiesced in the location of the line as established by the county surveyor, and waived his right of appeal, he thereby precluded himself from the right to demand a jury trial upon appeal, and is not now in position, and cannot now be heard, to assert the invalidity of the act because in contravention of the constitution. Again, section 5 of the bill of rights does not guarantee the right of trial by jury to all parties litigant.in all cases, but only guarantees the right in such cases as were properly triable by jury at common law before the adoption of the constitution. In chancery and in statutory proceedings the legislature has'ample power to dispense with trial by jury. (Kimball and others v. Connor, Stark and others, 3 Kan. 415; Ross v. Comm’rs of Crawford Co., 16 id. 411; C. B. U. P. Rld. Co. v. A. T. & S. F. Rld Co., 28 id. 453; Louisiana & Frankford Plank Road Co. v. Pickett, 25 Mo. 535.)
The form of proceedings in the establishment of corners and the location of boundary lines by the county surveyor, in accordance with the act in question, is purely statutory, and was employed by the parties to this controversy for the one purpose alone of determining the exact location of the boundary line between the two quarter-sections of land. That the plaintiff below owns all of the northwest quarter, and the defendant all of the northeast quarter, is admitted. Plaintiff below does not claim title by adverse possession or otherwise to any part of the northeast quarter. As was said by Rothrock, J., in Gates v. Brooks, 59 Iowa, 510, 6 N. W. 595, 13 N. W. 640, in passing on a similar proposition:
, “There is no question of title between the parties in any proper sense. A controversy arises only when the parties attempt to apply their respective deeds' to the face of the earth. The question is one of location. All the claim which defendants make to the land in controversy, so far as this proceeding is concerned,is conditional. They claim the land, in controversy if it is within section 15. We find, it is true, some intimation that they claim it absolutely by adverse possession. But with such claim we have nothing to do in this proceeding. Such a claim, if it is valid, is independent of the true location of the section line. We have to do with nothing except the conditional claim, which is dependent wholly upon the true location of the section line.”
Adverse possession may change the title to real property, but it cannot change the location of a quarter-section line. Had plaintiff claimed title to the strip of land in controversy by adverse possession, absolutely and unconditionally, without regard to location, and demanded a trial by jury to determine-this question of title, a different proposition would be presented. This he did not do. He claimed title to this strip of land only as a part of the northwest quarter. The condition upon which he claimed was, in the special statutory proceeding, determined against him. In this determination he acquiesced. The condition on which he claimed having failed, his claim must fail.
It follows that the act in question has not denied plaintiff in error the right of trial by jury in any case in which he was entitled to demand the same, and is not, for snch reason, in violation of the constitution. The judgment is affirmed.
Doster, O.J., Cunningham, J., concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
These cases were tried mainly upon the same testimony and involve substantially the same questions, the principal one being the right to set off one judgment against another after the lapse of considerable time and the intervention of the rights of others, and may properly be considered together.
In December, 1894, and at the same term of court, H. B. Schuler and Chester Collins each recovered a judgment against the other. The judgment of Schuler against Collins was declared to be a first lien on city property of the value of about $3000 as well as on the homestead of Collins, and the first-named property was ordered to be sold in satisfaction of the judgment. Schuler was dissatisfied with the judgment againt him and took the case up for review. He gave a supersedeas bond, with James Lorton and J. B.Lynn as sureties, and, as the judgment was not reversed, the sureties became liable for the amount of the same. An action was brought by Collins upon the supersedeas bond, and the sureties, among other defenses, set up the judgment Schuler had obtained againt Collins, and claimed it should have been credited upon the one for which they made themselves liable. The court decided that issue contrary to their contention, and this is one of the cases which has been brought before us.
The other case is one brought by Schuler on January 31, 1898, more than three years after the mutual judgments were rendered, in which he asked to have one judgment set off against the other, and also to enjoin the defendants from enforcing the Collins judgment against him or his property. In both cases J. C. Pollock intervened and set up an attorney’s lien on the judgment against Schuler, notice of which was given at the time judgment was rendered; and Louis Q. Jones, executor, likewise set up an assignment of the judgment in favor of Collins, made shortly after the judgment was rendered. The trial court found against Schuler, as well as against his sureties on the supersedeas bond, refusing to set off the judgments, and this is the principal ground of complaint here.
The existence of mutual judgments does not entitle a party to have one set off against the other arbitrarily as a matter'of right. Whether application for set-off is by motion or through a proceeding in equity, it is to be determined upon equitable considerations, and is only allowed when it will promote substantial justice. This was the 'ruling in Herman v. Miller, 17 Kan. 328, where it was said that “the exercise of that power is in a measure discretionary, and it will not be exercised in cases in which it would be inequitable so to do.” (See cases cited, and, also, Boyer v. Clark and McCandless, 3 Neb. 167; Lundberg v. Davidson, 68 Minn. 328, 71 N. W. 395, 72 N. W. 71; Pirie et al. v. Harkness, 3 S. Dak. 178, 52 N. W. 581; Hroch v. Aultman & Taylor Co., 3 id. 477, 54 N. W. 269; Barlett v. Pearson, 29 Me. 9; Freem. Judg. 427-467; Black, Judg. §§ 954, 1000.)
In the present case no steps were taken to set off one judgment against the other for more than three years after -the judgments were rendered, nor until long after Pollock and Jones had acquired their rights in the Collins judgment. Whether Schuler would claim a set-off against that judgment could not be known until he actively asserted the right, and before he did so the rights of the others had intervened.
The right of set-off may remain dormant. The holder of the judgment may actively assert such rights or he may waive them. If he was going to claim the right he should have promptly asserted it, and not delayed until the interests of third persons had become involved. Again, Schuler was given a lien upon real estate to satisfy liis judgment, and it was claimed and proof was offered to show that, instead of exhausting the security and obtaining satisfaction of the judgment from that source, he permitted the security to be wasted by taxes and by his negligence, and in this way he imperiled the homestead of Collins, upon which the Schuler judgment was also a lien. Evidently the trial court concluded that a set-off at that late day, under the existing circumstances, would be inequitable and unjust to Oollins and the intervening parties, and that conclusion meets with our approval.
Plaintiffs seem to rely upon Turner v. Crawford, 14 Kan. 499, and some language in the opinion gives countenance to their view; but how far the setting off of mutual judgments is controlled by equitable principles was-apparently not presented to nor considered by the court in that case. When the question did arise, the court, in line with most of the courts of the country, held that judgments would not be set off where to do so would be to infringe upon the rights of others, or where it would operate as an injustice. (Herman v. Miller, supra.) The statute gives the attorney a lien, and nothing in the statute indicates that it was intended to be subordinated to the right of set-off. The judgment which the attorney obtains for his client is in a certain sense the fruits of his labor, and the law gives him a lien substantially the same as it gives a mechanic a lien on the products of his labor. The attorney’s lien is not a matter of discretion. It is not to be given or withheld as may seem to be equitable to the court, but the statute gives it to him as a matter of right, and we fail to see why it should be subordinated to dormant rights existing between the parties to the litigation. We base the decision, however, on the broader ground that judgments are not set off against each other when it would be inequitable to do so, and there appears to be support in the testimony for the ruling of the trial court.
There is nothing substantial in the objection that the court refused to consolidate the cases, nor in the objections to the admission of testimony. The case was tried by the court without a jury, and no prejudice could have resulted from the reception of the testimony to which complaint is made.
Another objection is that the court refused to make special findings of fact and conclusions of law. The application was not made until the evidence had been introduced, and the court informed them that it came too late. Under the rules prescribed by the court, application for special findings should be made at the-time the trial was begun. We think it is competent for the court to make reasonable rules in respect to the disposition of business, and a rule that a request for special findings of fact and conclusions of law shall be made at the commencement of the trial does not appear to be unreasonable. No reason is shown why application was not made in accordance with the rule, nor any ground stated why the court should in this instance have departed from the rule.
Some other objections are made, but we find nothing substantial in any of them and see no reason for disturbing the-findings and decision of the court. The judgment in each of the cases will be affirmed.
Doster, C. J., Greene, J., concurring; Pollock, J., not sitting, having been of counsel. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action brought by H. O. Root to recover from the city of Topeka the sum of $2500, as compensation for legal services alleged to have been rendered for the city in the action of the State of Kansas, ex rel., v. The Topeka Water Company. The city contended that plaintiff was not employed by and performed no services for the city, and, therefore, that no liability could arise against the ■city'for any professional services which the plaintiff performed in that action. It was an action in quo warranto, brought in the name of the state, upon the relation of the county attorney of Shawnee county, Kansas, against the water company, to forfeit its franchise of being a corporation, and judgment was ultimately given in favor of the state. It appeared that plaintiff was not in fact employed by the city, but it is claimed on his behalf that services were performed with the knowledge of the city and for its benefit, and that there was such acquiescence in the employment as to operate as a ratification of the same, and render the city liable for the value of his services. The district court held otherwise and sustained a demurrer to the evidence.
It appears that for a time the plaintiff Root and the water company were engaged in a legal combat over a piece of land, and, during that time, he obtained permission of the county attorney to bring the action in which the services in question were rendered. There is testimony that, before the bringing of the action, the plaintiff suggested the matter to two members of the city council, who expressed a desire that a suit be brought to forfeit the franchises of the company, and one of them stated that he would bring the matter to the attention of the city council and have it appropriate money for a deposit in court as security for the costs of the proceeding. The pendency of the action was brought to the attention of the city council, and the city attorney was, on motion of a member, instructed to assist the plaintiff in the prosecution of the action. Later, the city attorney prepared an amended petition in that action and actively assisted in carrying it on, and, upon his suggestion, allowances were made by the city council to defray the expenses of taking depositions, as well as other expenses of the litigation. In an official statement to the public as to .the controversies between the city and the Topeka Water Company, a reference was made to the proceeding in question as well as to the part taken by the city in it, and to the fact that the action had resulted in the dissolution of the company. No resolution, however, was adopted nor action taken by the council employing the plaintiff or recognizing his services as an obligation to the city. Instead of employing him in behalf of the city, the council directed the city attorney to assist the plaintiff in his litigation with the water company.
It is clear that the council desired that the action brought by the plaintiff should be prosecuted, and it appears that- after the amended petition was filed the burden of the litigation was assumed, and the greater part of the work performed, by the city attorney. But we discover nothing in the testimony which gives the plaintiff a right of action against the city for the services performed by him. The fact that individual members of the council may have suggested or encouraged the bringing of the action gave plaintiff no official authority to act for the city. Their individual and unofficial acts or agreements are ineffectual and without binding force as against the city. They have no authority except as members of. the council acting together as an organized body, and its will must be expressed by ordinance, resolution, or in such other form as is prescribed by law.
It is contended that the action taken by the council in directing the city attorney to assist the plaintiff and in contributing toward the expense of the same operated as an official ratification of the unofficial acts of the individual members of the council. To sustain this contention, we are cited to Mound City v. Snoddy, 53 Kan. 126, 35 Pac. 1112, but that case is not an authority here. There the action was brought in the name of the city, at the request of the mayor. The city had knowledge that the mayor had procured the services of the attorney to be rendered in behalf of the city, and the fruits of the services rendered were actually appropriated by the city. Here the action was not in the name of the city, but in the name of the state. The testimony failed to show that the city council were informed or understood that plaintiff was acting for or in behalf of the city. The franchises sought to be forfeited in the action were not granted by the city, but were those granted by the state, in which the city had no direct interest and over which it had no control.
It may be doubted whether the city council had any legal right to appropriate funds of the city to carry on a litigation to which it was not a party and in which it had no direct concern, but, however that may be, the city appears not to have employed the plaintiff or otherwise to have rendered itself liable for tbe services performed by him.
The judgment of the district court will be affirmed.
Cunningham, Greene, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Greene, J. :
The defendant in error was the owner of forty-five shares of stock in the Bank of Andale, and the plaintiff in error was a depositor in said bank. On October 17, 1893, the bank suspended business, owing plaintiff in error. A receiver was appointed, and his final report was made on June 25, 1896. The plaintiff in error proved its claim before the receiver and received dividends thereon, the last being paid in August, 1896. On November 10, 1896, plaintiff in error commenced this action to recover from defendant in error on his statutory liability the indebted ness due it from the bank. The defendant, pleaded the three-year statute of limitations, to which the plaintiff filed a demurrer, which was overruled, and the plaintiff excepted. The parties then entered into an agreed statement of facts. The material and substantial parts, and all that is necessary for a complete understanding of the case and for the purpose of determining the question involved, are stated above. Upon this agreed statement, the court rendered judgment for defendant, and the plaintiff brings the case here.
The question involved is the application of the statute of limitations. .The plaintiff’s cause of action against the corporation matured when it suspended business, and this action not having been commenced for more than three years thereafter, it was barred as against the corporation at the time.
Section 2, article 12, of the constitution, provides that “dues from corporations shall be secured by individual liability of the stockholders to an additional amount equal to the stock owned by each stockholder, and such other means as shall be provided by law.” In this state no other means have been provided to secure the dues from a corporation. A stockholder’s liability to the creditors of a corporation is contractual ; it is separate and collateral to the liability of the corporation. While a stockholder is not in all respects a surety for the debts of the corporation, still he stands in the relation of a surety, and in determining the question involved in this case we shall so treat him. In Morawetz on Private Corporations, § 883, it is said :
“The special individual liability of the members of a corporation is not intended to be the primary source for the payment of the corporate debts. The fund subscribed by the shareholders at the formation of their company is expected to be the company’s sole working capital and the means of satisfying its creditors. Any additional individual liability assumed by the corporators is intended merely as a secondary security for creditors, in case the capital supplied for carrying on the company’s business should be lost in speculation.”
To the same effect are the following cases: Brown v. Hitchcock, 36 Ohio St. 667; Wright et al. v. McCormack et al., 17 id. 86; Hawthorne v. Calef, 2 Wall. 10, 17 L. Ed. 776.
Section 1310 of the General Statutes of 1901 reads :
“A corporation is dissolved — first, by the expiration of the time limited in its charter ; second, by a judgment of dissolution rendered by a court of competent jurisdiction ; but any such corporation shall be deemed to be dissolved for the purpose of enabling any creditors of such corporation to prosecute suits against the stockholders thereof to enforce their individual liability, if it be shown that such corporation has suspended business for more than one year.”
According to the agreed statement of facts, the Bank of Andale suspended business October 17, 1893. Therefore, under the above provision of the statute, the plaintiff in error might have commenced its action against the defendant in error at any time thereafter after the expiration of one year.
The stockholder standing in the relation of surety to the corporation, his liability must cease when the liability of the corporation no longer exists. Manifestly, and in conformity to well-recognized legal principles, no action can be maintained against a surety unless the liability of the principal exists at the time the action is commenced. (See Monographic Notes to Leeds Lumber Co. v. Haworth, 98 Iowa, 463, 60 Am. St. Rep. 207, 67 N. W. 383.) Conceding, but not decid ing, that the statute of limitations did not begin to run against the stockholder until one year after the bank had suspended business, and that thereafter the plaintiff had three years in which to bring its action against the stockholder, it could not recover in such action unless it had a valid and subsisting demand against the corporation enforceable at law, and this demand it would have to establish before it could recover a judgment against the stockholder. The liability of a stockholder is only such as the statute creates, and, under the statute, he is only liable for the debts of the corporation which are at the time enforceable against the corporation. The plaintiff in error had no claim that could be enforced against the corporation when it commenced its action against the stockholder ; therefore the stockholder is not liable.
The judgment of the court below is affirmed.
Johnston, Cunningham, JJ., concurring. | [
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The opinion of the court was delivered by
Pollock, J.:
The sole question for our determinaupon this record is, Does the promissory note in question constitute a valid demand against the estate of the deceased ?
Leroy Neale, the attorney, was the agent of the deceased for the purpose of making the deposit of papers in the bank, and for the purpose of instructing the bank as to the disposition of the same. There his agency terminated.. The bank was the agent of both plaintiff in error and deceased. The scope of this agency was distinctly defined and limited by the written, instructions delivered to the bank. Upon the happening of either of two contingencies — the presentation of the original papers made by D. C. Marvin, properly released, or the presentation of indemnity agreed on by both parties — the promissory note in question was to be delivered to plaintiff in error. Before the happening of either contingency, H. C. Marvin died.
The claim made against the estate is founded upon this promissory note. Before the note would become the binding obligation of the deceased, or against his estate, there must have been made a valid delivery. It is conceded such delivery was not made. The bank had no interest in the transaction except to carry out the written instructions of the parties as an accommodation. It is elementary that an agency not coupled with an interest in the subject-matter of the agency is revoked by the death of the principal. In this case the bank had no power to deliver the note after the death of H. O. Marvin, even in the event of the happening of the condition upon which delivery was contingent. Nor did the executors have the right or power to accept the indemnifying bond and make that a valid claim against the estate which was not such when the estate came into their hands, by delivery of the promissory note.
What the nature and character of the indemnity to be agreed upon by both parties, in the event of the failure to find the mislaid note and mortgage, would have been is not ascertained, and, from the very nature of the case, after the death of both H. C. Marvin and his agent, Leroy Neale, is incapable of ascertainment. However, in view of the fact that the debt for which H. C. Marvin was substituting his personal obligation was the debt of another — not his own, and in view of the further fact that no consideration for the making of the note in question moved to H. C. Marvin, it was his legal right, and the right of his representative, to stand on the strict terms of his agreement and refuse delivery until its conditions were performed. (Ware v. Allen, 128 U. S. 590, 9 Sup. Ct. 174.)
It follows that the judgment must be affirmed.
Dosteb, C. J., Smith, J., concurring. | [
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Error from Sumner district court. | [
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Error from Sumner district'court. | [
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The opinion of the court was delivered by
Smith, J.:
In an action brought by the defendant in error against the Greenwood County Cooperative Exchange Association, a corporation, on an account for goods sold and delivered, a writ of attachment was sued out at the commencement of the suit and levied on personal property in the possession .of the assignee for the benefit of the creditors of said corporation. The deed of assignment was executed and delivered on July 15, and the writ of attachment levied on July 30, 1896. The grounds for the attachment, as stated in the affidavit, were two : (1) That the defendant corporation had assigned, removed and disposed of its property, or a part thereof, with intent to hinder and delay its creditors ; (2) that it fraudulently contracted the debt and incurred the obligation and liability for which the suit was brought.
Upon the hearing of a motion filed by the assignee to discharge the attached property, it appeared that at a meeting of the directors of the association held on July 14, 1896, it was decided to draw the business of the company to a close. A resolution was passed authorizing a mortgage to be executed in favor of the First National Bank to secure a note of the association indorsed by the directors. At an adjourned meeting,, held on the following day, the directors ordered that an assignment be made for the benefit of creditors. Pursuant to this action, a chattel mortgage was executed on July 14 to secure a note to the bank for $350. The bank officers, however, refused to accept the mortgage, giving as a reason that the note held by the bank was amply secured by individual indorsement. The mortgage, however, was filed for record. The deed of assignment purported to transfer all the property of the corporation, for the purpose of paying the debts of the concern ratably and without preference, except that it was subject to the chattel mortgage mentioned. It was shown on the hearing that the balance of the account sued on was contracted for goods obtained on representations which led the seller to believe that the concern was solvent, when in fact the contrary was true, and that had defendant in error known of the true financial condition of the association he would not have parted with his merchandise. On these facts, the court below overruled the motion of the assignee to discharge the attached property, and ordered the same sold in satisfaction of the claim.
We are quite clear that the court erred in its ruling ■on the motion. If the execution of the mortgage and deed of assignment be taken together as a part of the same transaction, the mortgage alone falls and the validity of the assignment is not affected. (Marshall v. Van De Mark, 57 Kan. 304, 46 Pac. 308.) If the mortgage was fraudulent as against creditors, the assignee could maintain an action to set it aside. (Chapin v. Jenkins, 50 Kan. 385, 31 Pac. 1084; Walton v. Eby, 53 id. 257, 36 Pac. 332.) In this case the mortgage became no lien on the property by reason of its non-acceptance by the mortgagee. No rights were asserted under it, and there is no claim that the debt which the directors attempted to secure by it was not valid and just.
The fact that the debt sued for was fraudulently contracted furnished no ground for the seizure of property covered by the deed of assignment. There was no fraud shown which inhered in the assignment itself or had relation thereto. The false statements on which defendant in error relied when he sold the goods were made more than two months prior to the execution of the assignment. If the seller had rescinded the contract and sought to reclaim his goods from the assignee, a different question would arise. The fraudulent contracting of a debt or obligation is but one pf the grounds for attachment contained in the statute. There are ten other. If the mere fact that the defendant’s property was subject to attachment would authorize its seizure after it had been assigned for the benefit of creditors, it follows that no assignment for the benefit of creditors made by a non resident could be upheld, nor where the assignor had absconded with intention to defraud his creditors, or left the county of his residence to avoid the service of summons, nor where any other act of his justified an attachment under the statute. (Batten v. Richards, Garnishee, etc., 70 Wis. 272, 35 N. W. 542; Wilson v. Berg, 88 Pa. St. 167; Batten v. Smith and another, 62 Wis. 92, 22 N. W. 342.)
The judgment of the court below will be reversed, with directions to proceed further in accordance with, this opinion.
Johnston, Greene, Ellis, JJ., concurring. | [
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Error from Leavenworth district court. | [
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Error from Chautauqua district court. | [
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The opinion of the court was delivered by
Greene, J. :
The plaintiff "in error brought this action in the district court of Harper county, Kansas, on a promissory note signed by O. O. Fowler, Matilda Fowler, Orion Fowler, and C. R. Fowler, to recover a personal judgment against said defendants and a foreclosure of a mortgage executed by O. O. Fowler and Matilda Fowler. This note and mortgage were given to one E. F. Clark, and by Clark indorsed to plaintiff in error. Personal service was had on Orion Fowler. On the 1st day of September, 1896, at the September, 1896, term of court, the plaintiff recovered a personal judgment against Orion Fowler for $754.54 and costs, and a decree foreclosing the mortgage. A journal entry of judgment was signed by the judge on the day the judgment was rendered and spread upon the journal. An order of sale was issued on the 19th day of March, 1897, under which the mortgaged property was sold, and on the 1st day of May, 1897, the sale was confirmed and deed ordered. At that time the defendant, Orion Fowler, appeared, by his attorney, and objected to the awarding of an execution for a deficiency judgment against him, and also objected to the allowance or issuance of a writ of assistance. Upon the hearing, the court overruled the application for a writ of assistance until demand should be made and refused and until further application therefor should be made ; and also refused to pass on the application for an execution for the deficiency judgment until further application should be made in writing and notice thereof given.
Afterward the plaintiff in error filed his motion for a writ of assistance and also for an execution for the deficiency judgment, and on the 30th of July, 1897, the defendant in error filed a motion in said court, asking that the personal judgment be set aside and vacated, alleging the following reasons: (1) Mistake of the clerk and irregularity in obtaining the personal judgment; (2) that no personal judgment was rendered ; (3) that no finding was made of any sum due the plaintiff. These matters were heard on the 7th day of September, 1897.
Upon the hearing of the motion to set aside the personal judgment, the clerk of the district court and one J. A. Houston were sworn and examined. The testimony of the clerk, summarized, was that the trial docket of that term, which he identified, contained no entry of a personal judgment in this case; that the judgment and decree signed by the judge was prepared and signed on the day that trial was had. The journal entry of judgment was also offered in evidence as part of the examination of the clerk. The testimony of Houston, in effect, was that he was attorney for Fowler and was in court on the day of the rendition of the judgment. His recollection was that no personal judgment was rendered against Fowler. All of this evidence was objected to by plaintiff in error, on the ground that it was not the best evidence.
The defendant in error has filed no brief and we are at a loss to know upon what theory the court below vacated the judgment. The evidence introduced on the motion clearly shows that a judgment was rendered against the defendant in error, and that the court signed the journal entry of judgment. There does not appear to have been any mistake of the clerk, and we fail to find in the record any irregularity on the part of plaintiff in error. The action was on a promissory note, and the defendant in error was present in the court at the time the judgment was rendered and offered no defense.
The provisions of the statute under which defendant in error proceeded are found in sections 568-572 of the civil code (Gen. Stat. 1901, §§5054-5058). Upon the hearing of the motion, there was no showing that the defendant in error had any defense to the action; it is not claimed that he had. Under such circumstances, there can be no excuse for vacating the judgment. Before a court should vacate a judgment for any of the causes alleged in the motion under consideration, there should be some showing that the party applying has a defense to the action; and if he has not such defense, the court should not set aside or vacate the judgment. (Meixell v. Kirkpatrick, 25 Kan. 19.)
Complaint is also made that the court below refused to award an execution against the defendant in error for the balance due on the judgment. The plaintiff in an action to recover a personal judgment and the foreclosure of a mortgage is entitled to an execution for any deficiency judgment, after having exhausted the mortgaged property, just as he would be in any other action, and the court below erred in refusing to permit such execution to issue.
The order of the court below vacating the personal judgment against the defendant in error is reversed, as well as the order refusing execution for the remainder of the personal judgment, and the .cause is remanded for further proceedings.
Johnston, Cunningham, JJ., concurring. | [
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Appeal from Reno district court. | [
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The opinion of the court was delivered by
Pollock, J. :
Plaintiff in error, a judgment creditor of defendant in error S. E. Jocelyn, in the sum of $973 and interest thereon, and $111.97, costs of action, garnished defendant in error the Fourth National Bank of Wichita, Kansas. The bank filed the statutory affidavit, denying all liability as garnishee. Plaintiff gave notice of its election to take issue on this answer of the garnishee. Thereafter, the city of Wichita gave notice of its intention to interplead in the garnishment proceeding, and filed its interplea, alleging that the garnishee was the depository of the funds of the city; that, at the date of the service of the garnishment summons, Jocelyn was the president of the police board of the city; that Jocelyn, as president of the police board, had money on deposit in the bank ; that the money on deposit was the property of the city and not the property of Jocelyn ; and demanded that the garnishment proceedings be dismissed, and the garnishee ordered to pay over to the city treasurer the funds so deposited. To this claim the bank answered, admitting money on hand at the time the summons in garnishment was served, deposited by Jocelyn, specifying no amount; alleging the same to have been deposited by Jocelyn, acting on behalf of the police board of the city, and in his name as president of the police board; neither admitting nor denying the funds so deposited to be the property of the city, but asking that proof of such fact be made by the city, that it might be protected. Plaintiff filed its answer to the city’s claim denying the fund deposited by Jocelyn to be the property of the city; also, specifically setting forth the.source from which, it alleged, Jocelyn procured the money so deposited. This-portion of the answer, however, was stricken out, upon motion.
At the trial the cashier produced the books of the bank, showing that on the day of the service of summons in garnishment there was on deposit therein the sum of $1286.81 to the credit of “Jocelyn, S.E., Tr.” ; that the account had been running from the 16th day of February ; that the money had been deposited by Jocelyn in the name of “Jocelyn, S. E., Pt. P. Board,” which was interpreted to mean, “S. E. Jocelyn, president police board.” The trial resulted in a judgment in favor of the garnishee against plaintiff for costs, aa between the plaintiff and garnishee, and against the city for all costs made by it after the filing of the interplea. Plaintiff below brings error.
Section 200e of the code (Gen. Stat. 1901, §4639) provides:
“Unless the garnishee shall make the affidavit provided for in section 5 (the affidavit filed by the garnishee in this case), . . . he shall, within twenty days from the service of the garnishee summons, file an affidavit in which he shall state .
“Fifth, If he shall disclose any indebtedness or the possession of any property to which the defendant and other person as well makes claim, he may set forth the names and residences of such other claimants, and, so far as known, the nature of their claims.”
The bank had on deposit on the date of the service of the summons in garnishment the sum of $1286.81, deposited therein by Jocelyn; hence, it was its duty to make disclosure of this fact. Also, if it had notice, from the manner in which the deposit was made, or from any other source, that any third person claimed the funds so deposited, or any part thereof, then it was obligatory upon the bank to disclose the name and address of such claimant, and, so far as known, the nature of such claim. Upon such answer of disclosure being made by the garnishee, section 200Z of the code (Gen. Stat. 1901, §4646) provides:
“When the answer of the garnishee shall disclose that any other person than the defendant claims the indebtedness or property in his hands, and the name and residence of such claimant, the court may, on motion, order tha,t such claimant be interpleaded as defendant to the garnishee action; and that notice thereof, setting forth the facts, with a copy of such order, in such form as the court shall direct, be served upon him; and that after such service shall have been made, the garnishee may pay or deliver to the officer or the clerk such indebtedness or property, and have a receipt therefor, which shall be a complete discharge from all liability to any party for the amount so paid or property so delivered.”
The above provisions are not alone for the information of the plaintiff but for the benefit and protection of the garnishee as well, and it was incumbent upon the bank to comply with the terms and conditions of the statute by its answer, that it might relieve itself from liability to the plaintiff, orto third parties, to its knowledge making claim to the fund, by having the latter interpleaded that they might assert their claims, and that payment of the fund into court might relieve the garnishee from liability. (John R. Davis Lumber Co. v. The First National Bank of Milwaukee, 87 Wis. 435, 58 N.W. 743.) The bank, however, by its answer, made no disclosure either of liability to the defendant or to the defendant and third parties, but assumed the responsibility of being held liable to respond to the plaintiff in the garnishment proceedings with out protection from the claim of any third party, of which claim it had knowledge, in the event the trial upon the issue joined should disclose any liability to defendant. (Muse, Spivey & Co. v. Lehman, 30 Kan. 514, 1 Pac. 804; Daggett v. Flanagan et al., 78 Ind. 253; Leahey v. Dugdale’s Adm’r, 41 Mo. 517; Woodlawn v. Purvis, 108 Ala. 511, 18 South. 530.)
The city of Wichita, on its own motion, came in, and by interpleader claimed the fund. This claim was denied, and the judgment against it is final and conclusive as to all parties. The bank has the fund. It received it from the defendant debtor. This fund was on deposit at the date of the service of the garnishment summons. By the receipt and deposit of this money, the relation of debtor and creditor was established between the bank and Jocelyn, notwithstanding the method of making the deposit and the name employed for that purpose. That this relation continued and the bank remained liable to Jocelyn, or his creditor in garnishment, until it had notice of the claim of some third party, and that it cannot claim the fund itself, or withhold it from the plaintiff in this garnishment proceeding, without answer asserting a prior right in itself, or making disclosure of some claimant to the fund, and the nature of such claim, is well settled. Mr. Shinn, in his work on Attachment, volume 2, section 580, says :
“Although money be deposited in the name of one as agent or any other fiduciary capacity named, such designation will be considered to be only descriptio personae when no other person is known to be the real owner and no claim is made to the account by any one other than the depositor. ’ ’ (Ingersoll v. First etc. Bank, 10 Minn. 396, [Gil. 315]; Cohen v. St. Louis Perpetual Ins. Co., 11 Mo. 374; Gregg v. Farmers & Merchants’ Bank, 80 Mo. 251; Simmons v. Almy, 100 Mass. 239.)
Counsel for the bank cite and rely upon the case of Morrill & Janes v. Raymond, 28 Kan. 416, 12 Am. Rep. 167. That case did not arise under our present garnishment law, and in that case both the plaintiff and the garnishee knew that the fund garnished as the property of Orth was not his property, but w;as the property of I. N. Speer & Co., and the garnishee in that proceeding so answered. That case has no application to the facts in the case at bar.
The only other possible claimant to the fund suggested by the record is the police board of the city of Wichita. As to this board, it is- sufficient to say that the answer of the garnishee made no disclosure as to any claim made by the board to the fund. The defendant Jocelyn was president of this board; he knew of the pendency of the garnishment proceedings. Yet the board did not assert any claim to the fund, file any interplea, or attempt to make any showing why the garnishee should not be held liable. Nor did the defendant debtor interpose any defense to the liability of the garnishee, although, under the provisions of the statute, he might have made any defense to the liability of the garnishee which the garnishee might have interposed in its behalf. In this state of the record, it is well settled that a judgment maintaining the garnishee liable to the plaintiff, and a compliance therewith by payment, would afford the garnishee ample protection from any claim the board might make. (Randall v. Way, 111 Mass. 506; Dodd v. Brott, 1 Minn. 270 [Gil. 205], 66 Am. Dec. 541.
Again, it is not apparent that any authority existed in the police board of the city to become the collector, depositor or custodian of any public funds, or that the board, as a body, had authority to engage in any private business involving monetary transactions.
Upon the undisputed facts in the record, we perceive no reason why a judgment maintaining the garnishee liable in this proceeding, and the payment and satisfaction thereof by the garnishee, will not afford ample protection from the claims of all parties to the record and third parties. This is all the garnishee can demand. But in the event that such judgment, and satisfaction thereof, might, for any reason, fail to afford full and complete protection to the garnishee, the burden must rest with the garnishee. The failure of such judgment to afford protection could be predicated upon no other ground than that the garnishee, knowing of a third party claimant to the fund, elected neither to disclose such fact in its answer as garnishee, nor to make proof of the fact in support of such disclosure on the trial, but submitted itself to the'jurisdiction of the court, content to rest its rights upon its affidavit denying all liability as garnishee, and thus assuming for itself to decide the ownership of the fund in controversy.
It follows that the judgment discharging the garnishee from liability to the plaintiff must be reversed, and the case remanded for further proceedings in a.c-_ cor dance with this opinion.
Cunningham, Pollock, JJ., concurring. | [
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Error from Reno district court. | [
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Error from Barber district court. | [
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Error from Anderson district court. | [
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The opinion of the court was delivered by
Geeene, J. :
The defendant was convicted in the district court of Mitchell county, Kansas, of the violation of the prohibitory law. The information, after, specifically describing the building and the lot upon which it was situated, in Cawker City, .charged that the defendant, in the first story of said building known as “Everson’s drug-store,” on said premises, did—
“On the 19th day of April, A. d. 1900, then and there own and keep a place where spirituous, malt, vinous, fermented and other intoxicating liquors were sold, bartered and given away in violation of law, and did then and there permit persons to resort thereto for the purpose of drinking intoxicating liquors as a beverage, and did then and there keep intoxicating liquors for sale, barter and delivery in violation of law, to the common nuisance of the people of said county and state, and contrary to the statute in such cases made and provided, and against the peace and dignity of he state of Kansas.”
On the trial, and after the jury had been sworn to answer questions, and after the challenges had been exhausted, both peremptory and for cause, but before the jury were sworn to try the cause, the defendant challenged the array, on the ground that the jury so impaneled had not been drawn and selected from those assessed on the tax-rolls for the preceding year, and were not taxpayers in the county of Mitchell, and introduced evidence tending to support that claim. The court, after hearing the evidence and argument, overruled the challenge and the jury were sworn.
Upon the trial, the defendant objected to the introduction! of certain bottles and barrels and their contents, which were seized by the officer at the time he arrested the defendant, and were found in the possession of the defendant in the drug-store kept and maintained by him in the property described in the information. ITe complains of that and of the refusal of the court to permit him to introduce certain testimony, and especially a written reward that had been offered for the arrest and conviction of any person violating the prohibitory law in Cawker City. He also complains that the court refused to give certain instructions which were submitted and asked by him to be given.
We think the first objection urged cannot be sustained. In The State v. Wright, 45 Kan. 136, 25 Pac. 631, this court held :
“All challenges to the array upon the ground that the jury was not selected, drawn, or summoned according to law, must precede those made to poll for favor, undue influence, or prejudice, and should a defendant, after a lengthy examination of the individual members of the jury, challenge to the poll for favor, undue influence, or prejudice, he will be held to have waived his right of challenge to the array.”
The second contention of defendant is equally untenable. The theory of defendant is that the sheriff had no authority to seize these articles, and because he had no authority to take the articles they could not be used as evidence. This court has recently decided this question adversely to the contention of defendant. (The State v. Miller, ante, p. 62, 64 Pac. 1033.)
The only purpose for- which defendant offered in evidence the proclamation offering a reward was to show the interest of certain witnesses ; these witnesses were on the stand and testified to the interest they had in the prosecution, and the excluding of this additional item of evidence was not prejudicial.
The last contention of defendant is that the court refused to give six certain instructions. We have examined these instructions and those given by the court, and are of the opinion that there was no error committed; and, in fact, we are of the opinion that the instructions given were as favorable to the defendant as they should be under the law.
The judgment of the court below will be affirmed.
Johnston, Cunningham, JJ., concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
The theory upon which the court found for Goodley Bros, upon the above statement of facts evidently was’ that, because Goodley Bros, had engaged Willis to thrash 1000 acres of wheat, they had a right to recover any damages which any one. had suffered because of Willis’s failure to perform his cpntract, and that, as Joseph Goodley had suffered damages, Goodly Bros, had a right in this action to show that fact and recover such damages. We feel confi dent that the court erred in taking this view of the law under these facts. Although Goodley Bros, procured Willis to thrash 1000 acres of wheat, or, as they say in a letter written to Reeves & Co., about -lOOfi acres, they had no right, as matter of law, to recover for these damages done to another. They had no right of action against Willis ; he had completed their job to their satisfaction. That the job which Willis undertook to do for Joseph Goodley was a separate one from Goodley Bros, is clearly shown by the fact that Joseph Goodley undertook to pay to Reeves & Co-, the sum of $550, when Willis had satisfactorily done his thrashing. For the failure to do this, Joseph Goodley would have his right of action against Willis ; he alone was damaged. It does not appear that Goodley Bros, were in any manner whatever interested with Joseph Goodley or in his affairs. • Surely they cannot recover damages when they have sustained no loss of any kind or nature whatsoever by reason of Willis’s quitting Joseph Goodley’s work at the time he did.
The court finds that Joseph Goodley accepted the contract which Goodley Bros, had made with Willis for the thrashing of 1000 acres of wheat to the extent of the number of acres of which he owned, but this fact would not change the result. By such acceptance the contract became that of Joseph Goodley, and its breach would not entitle Goodley Brothers to recover. Joseph Goodley, so far as the case shows, seems entirely satisfied; at least, he makes no claim for damages. Another cannot do it for him.
The judgment of the court below will be reversed, with instructions to enter judgment in favor of the plaintiff in error.
Gbeene, Pollock, JJ., concurring. | [
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Error from Wilson district court. | [
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Error from Montgomery district court. | [
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Per Curiam:
This was an action upon a promissory-note and to foreclose a mortgage securing the same. Judgment was entered against the plaintiffs in error. In order to bring the errors complained of into the record, it was necessary for them to file a motion for a new trial, which they did, but the overruling of the same is not assigned in their petition in error as one of the errors complained of. By this omission all of the errors occurring at the trial are waived. (Binns v. Adams, 54 Kan. 615, 38 Pac. 792.) We may not consider, therefore, any errors except such as would have come to us by a transcript of the papers in the case.
It is urged that the petition fails to state any cause of action, and that, therefore, the judgment rendered thereon was erroneous. The petition shows that the note and mortgage sued on were given by the plaintiffs in error to the Showalter Mortgage Company, and were by it transferred and assigned to J. W. Wheeler ; that upon the death of Wheeler administration was had upon his estate in the state of Massachusetts; that the executrix of the estate delivered the note and mortgage to the defendant in error as one of the heirs of the estate, and that she holds by virtue of such delivery and inheritance and not by indorsement or assignment. Plaintiffs in error contend that under no possible contingencies may she, or any one holding a chose in action by title derived from an executor, bring an action and recover thereunder. We think this contention is without merit. It may well be concluded from the language of the petition that the Wheeler estate had been fully settled, and that upon the distribution of the assets of the estate this note and mortgage became the property of the defendant in error. If it were so, she would certainly have aright to maintain the action. Indeed, she would probably have a right to maintain the same even though the estate were not fully settled, if, in the due course of administration, either by order of the probate court or by will, she had become the owner of the note and mortgage. The petition is not very definite as to the capacity in which she does hold this paper, but we cannot say, when it is assailed in the manner in which it is in this action, that it wholly fails to state a cause of action in behalf of the plaintiff.
The judgment will be affirmed.
Cunningham, Geeene, Pollock, JJ. | [
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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 Sumner county against the plaintiff in error and the R. j Waddell Investment Company, to cancel a certain mortgage on, and quiet the title to, certain real estate in the- city of Wellington. The Waddell Investment Company filed a disclaimer. The bank filed an answer and cross-petition, alleging that one T. Y. Stewart and wife executed to the Waddell Investment Company a note for the sum of f1500, and a mortgage on the real estate securing the same, which had been assigned to it as trustee, and praying judgment and a foreclosure. When the mortgage and notes were executed, Stewart was required to, and 'did, procure a policy of insurance on said property in the sum of $1500, which was delivered to the investment company, as collateral security. Stewart and wife sold and conveyed the property to one Viols, and, at the time of making said transfer, they requested one Murrill, who was the agent of the investment company at Wellington, Kan., to procure from the investment company the policy of insurance that Stewart might assign it to Viols. This was done, and Stewart indorsed the assignment to Viols, arid requested Murrill, as the agent of the investment company, to write a blank consent to said assignment upon said policy, and forward it to the investment company and request it to procure the consent of the insurance company to said assignment. This request was also granted.
On October 20, 1891, Viols sold the property to defendant in error W. A. Renn, and a like request was made of Murrill, wlio still continued to be the agent of the investment company, to procure the policy, that Viols might indorse an assignment to defendant in error. The policy was returned to Murrill by the investment company for said purpose, and Viols indorsed a written assignment on the back of said policy to defendant in error, and requested Murrill to write upon the said policy the consent of the insurance company to the assignment, and forward it to the Wad-dell Investment Company, notifying it of the sale of said property, and the assignment of the policy, and request it. to secure the consent of the insurance company to the assignment of the policjr by indorsement on it. The policy was returned by Murrill to the investment company, with a letter calling its attention to the fact that said real estate had been sold and the policy assigned, and asked it to forward the policy to the insurance company and have its consent to the assignment indorsed upon the policy. The policy and letter were received by the company about the 21st of 'October, 1891, but it neglected to request the insurance company to indorse its consent to such assignment. This property was partially destroyed by fire October 8, 1892.
The policy contained the following conditions :
“Provided that, in case the mortgagor or owner neglects or refuses to pay any premium due under this policy, then on demand the mortgagee or trustee shall pay the same. Provided, also, that the mortgagee or • trustee shall notify the company of any change of pwnership or increase of hazard which shall come to his or their knowledge, and shall have permission for such change of ownership or increase of hazard duly indorsed on this policy.”
The policy also provided :
“This entire policy, and every part thereof, shall become void unless consent in writing is indorsed by the company thereon in each of the following cases: 1st. If the insured is not the unconditional owner of the property, or if any change shall take place in the title.”
The following mortgage clause was attached to the policy: 1
“Loss, if any, payable to the R. J. Waddell Investment Company, Ottawa, Kan., mortgagee or trustee, as hereinafter provided-.”
The insured property was damaged by fire to the amount of $414.56. The defendant in error notified the insurance company of such fire, and made proof of loss, as required by the conditions of the policy. The company denied liability because it • had not con sented to the assignment of the policy. On the 1st day of July, 1894, the defendant in error paid to the First National Bank of Ottawa, Kansas, for the purpose of satisfying said mortgage, the entire amount due at that time, less the amount of damages which he claimed he had sustained on account of the fire.
The claim of the bank is that, as trustee, it is the owner and holder of said note and mortgage, together with other notes and mortgages, to secure the payment of certain debenture bonds issued by the Wad-dell Investment Company, in the sum of $100,000, and that there was a balance due it on the note • in question, on July 1, 1894, of $411.56, and interest from that date at the rate of ten per cent. It is contended by plaintiff in error that it is the bona fide holder of the note, and that it did not receive the insurance policy and knew nothing about it, and is, therefore, not liable for the negligence of the Waddell Investment Company, if such negligence should be found to exist. It appears from the evidence that the Waddell Investment Company issued $100,000 debenture bonds, and made the bank its trustee, the note and mortgage in question being among the notes and mortgages deposited as collateral security.
From the testimony of Mr. Skinner, who was the vice-president and general manager of the bank, the facts are clearly deducible that the policy in question, with others of like kind, was left in the hands of the Waddell Investment Company, to be looked after and renewed, if necessary. This constituted the Waddell Investment Company the agent of the bank. Before the note and mortgage were pledged by the Waddell Investment Company, it was unquestionably its duty, by reason of its agreement, upon being notified that the property mortgaged had been sold and the policy assigned to the grantee, to secure the insurance company’s consent in writing to such assignment. When the Waddell Investment Company pledged the note and mortgage in question to the bank, as trustee, thip obligation became incumbent on the bank, and, having left the policy with- the Waddell Investment Company to perform this duty for it, the omission of the latter was negligence, and such negligence is attributable to the bank.
It is also contended that such demand cannot be set up as a counterclaim because such consent must tie obtained prior to a transfer of title, and that, in this instance, the request therefor was not made to the Waddell Investment Company until twenty days after the transfer, and that the burden of pi’OOf ÍS Upon plaintiff below to show that the insurance company would have consented to the assignment of the policy. We cannot agree with this contention. There is nothing in the policy to indicate that this is correct. In fact, in the transaction of this particular class of business, the consent is never asked until after the property has been transferred, and this is .the correct interpretation of this provision of the policy.
The last contention is that the insurance company in which this policy was held was not authorized, at the time the policy was assigned, to do business in Kansas, and that by section 3381 of the General Statutes of 1901, it is made an offense for any person in Kansas to receive or forward applications for insurance in any such company or companies, and, therefore, the Waddell Investment Company and the bank are relieved from the conditions imposed upon them in the policy. This was not an application for insur anee, nor was it the aiding of a foreign insurance company in transacting business in Kansas. This contention, if correct, would relieve all insurance companies which were authorized to do business in Kansas when a policy was taken out, but which afterward quit the state, from all liability, in case the person holding such policy should sell the insured property.' Such a result was not contemplated by the legislature in passing the statute, nor will it bear such construction.
There are numerous other alleged errors and complaints, all of which we have examined, but find nothing therein worthy of further consideration. We think the loss was a proper counterclaim.
The judgment of the court below is affirmed.
Doster, C. J., Johnston, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Doster, C. J. :
This case has been twice argued, prior and subsequently to the increase of membership of the court under the recently adopted constitutional amendment, and we have given to it* much earnest thought. The case is a novel one, and its peculiar features have been given a complexity of appearance by the false light in which they first exhibited themselves. The question involved is really little more than one of mere practice. It is : Can a party plaintiff enjoin a voluntary unincorporated association from fining or expelling one of its members for his violation of a by-law of the association prohibiting him from trading on the market with the plaintiff, or from trading with others who do trade with him ? In other words : Can a party aggrieved at the action of a voluntary association, which action, so far as direct effect is concerned, expends itself wholly on the members of the association, interfere in its internal management and discipline to prevent such action toward such members because of the indirect injurious effect it has on him, the aggrieved party? This question is not as much discussed by counsel as some others, but in our judgment it lies at the beginning point of all inquiry into the controversy, and therefore must receive first attention.
The facts of the case are that two voluntary unincorporated trading associations exist at Kansas City. One of them is called the “Traders’ Live-stock Exchange,” the other the “Farmers’ Live-stock Association.” For convenience of designation we will speak of both of them as “associations.” They were organized for the mutual benefit of their members, but as associations they do no business whatever. The members of each compete with one another as though nowise connected in their organization. The Traders’ association adopted and enforced two by-laws, or rules, reading as follows:
“Rule 10. This exchange will not x’ecognize any yard trader unless he is a member of this exchange.”
“Rule 15. All persons convicted of any violation of any of these rules shall be subject to fine, suspension, or expulsion, as recommended by the executive board.”
The effect of the above rules was detrimental to th© members of the Farmers’ association, because, as construed and enforced, they operated to deter members of the Traders’ association from doing business on the market with them, the members of the Farmers’ association, or doing business on such market with others who did business with the members of the latter association.
The memers of the Farmers’ association thereupon instituted an action of injunction, in their individual names, against the members of the Traders’ association, in their individual names, to restrain them from the enforcement of the above-quoted by-laws, or any other like coercive rules, the effect of which might be to deter themselves or others from doing business on the market with the members of the Farmers’ association. In the petition for the injunction allegations were made that the purpose of the adoption and the effect of the enforcement of the rules were to close the cattle market of Kansas City to the members of the Farmers’ association, and to monopolize it in the hands of the members of the Traders’ association; and allegations were also made that the adoption and enforcement of the rules had produced, as to the members of the Farmers’ association, in their business on the market, what is called a “boycott.”
A trial of the case was had, findings of fact and conclusions of law were made, and a judgment of perpetual injunction rendered, as prayed for by plaintiffs. These findings, conclusions and judgment were as follows :
“CONCLUSIONS ok fact.
“1. The Kansas City stock yards is a public market, where live stock is sold to the person paying the agreed price therefor.
“2. That the cattle business of said stock-yards is generally done by two classes of dealers in live stock, namely “commission men” and “yard traders.
“3. That the said commission men buy and sell cattle at said yards for others and charge a commission therefor, and do not buy or sell any cattle on their own account for profit.
“4. That said yard traders buy and sell cattle at said yards on their own account for profit, and do not buy or sell any cattle for others on commission.
“5. The said commission men belong to an association composed exclusively of commission men.
“6. That there are eighty concerns engaged at said yards in buying and selling cattle for others on commission.
“7. That said yard traders do not buy or sell fat cattle but deal wholly in other classes of cattle.
“8. That about one hundred and eighty of said yard traders belong to the Traders’ Live-stock Exchange.
“9. That the said Traders’ Live-stock Exchange is an organization having for its officers a president, vice-president, secretary, and treasurer.
“10. That said Traders’ Live-stock Exchange has an executive committee consisting of eight members, who are appointed by the president with the approval of the exchange.
“11. That at the preliminary organization of said exchange the membership fee was fifty cents, which was raised to ten dollars at the permanent organization. Subsequently the membership fee was raised to $250, and afterwards to $500, which is now the amount charged each person who now becomes a member of said exchange.
“12. The membership fee in said exchange was not raised at any time because of any financial necessity therefor, but to deter irresponsible yard traders from making application for membership in said -exchange, and to make the membership more va-lu.able, in order that the penalty of expulsion for nonobservance of rules of the exchange would be more •severe, and a better compliance with the rules be thus •obtained, and to limit the membership of said exchange.
“13. That the defendants are members of said Traders’ Live-stock Exchange.
“14. That the members of said Traders’ Live-stock Exchange do ninety per centum of the business done ■by. the said yard traders at said stock yards.
“15. That said Traders’ Live-stock Exchange was organized for the mutual benefit of its members, and as an organization does not deal in cattle or do any -other business for profit.
“16. That it is the settled purpose of said Traders’ Live-stock Exchange, as an organization, to compel its members to cease and refuse to do any business with commission men who deal with a yard trader who is not a member of said Traders’ Livestock Exchange.
“17. That in pursuance of that purpose members ■of said Traders’ Live-stock Exchange are notified by their executive board (which is the governing body of the said exchange) not to deal with a commission concern that has been found dealing with a yard trader who is not a member of said Traders’ Livestock Exchange.
“18. That a member of said Traders’ Live-stock Exchange who does not obey said notice after having received it, but continues to deal with an offending commission concern is fined by said executive board and if he does not pay his fine he is expelled from said exchange.
“ 19. That it is. also the settled purpose of said Traders’ Live-stock Exchange, as an organization, to compel its members to cease and refuse to deal or to have cattle business connection with any yard trader who is not a member of said Traders’ Live-stock Exchange.
“20. That in pursuance of that purpose members of said Traders’ Live-stock Exchange, when found dealing with such yard traders, have been and will be fined by the executive board of the said exchange.
“21. That said Traders’ Exchange, in pursuance of its settled purpose, has, through its executive board, fined its members for trading with commission men who dealt with yard traders who were not members of said exchange.
“22. That the result of the members of said Traders’ Live-stock Exchange ceasing to do business with such commission concerns as had dealt with yard traders who were not members of said exchange was to withdraw from such commission concerns ninety per centum of their yard traders’ business.
“23. That in eveiy instance where the members of said Traders’ Live-stock Exchange ceased to do business with a commission firm, as above stated, the members of said exchange resumed business with said commission firm upon said commission firm ceasing to deal with yard traders who were not members of said Traders’ Live-stock Exchange.
“24. That the yard traders who were not members of the Traders’ Live-stock Exchange were materially injured in their business by not being able to freely deal with the commission men doing business at the stock-yards and other yard traders who were members of said Traders’ Live-stock Exchange and who would have dealt with them but for said action of said executive board.
“conclusions op law.
“1. The members of the Traders’ Live-stock Exchange could, either individually or collectively, voluntarily cease doing business with any commission man or yard trader, for any reason whatsoever, without incurring any legal liability therefor.
“2. The action of the executive committee of the Traders’ Live-stock Exchange in compelling members of said exchange, through fines, to cease doing business with either commission men or yard traders with whom they wcfuld otherwise have done business was illegal.
“3. The settled purpose of said Traders’ Live-stock Exchange to compel its members, or any of them, against their will, to cease and refuse to do business with commission men or yard traders, for whatsoever cause, is a combination to do injurious acts by way of restraint, coercion, and intimidation, and is therefore an unlawful purpose.
“4. That the defendant will be perpetually enjoined from, either directly or indirectly, by fine or expulsion from the Traders’ Live-stock Exchange,, or otherwise, restraining, coercing and intimidating any one or more of its members from dealing with or having business connection with any commission man or yard trader at the Kansas City stock-yards who is doing or desires to do business with the plaintiffs or any of them.
“ JUDGMENT.
“It is therefore ordered that the defendants, and each of them, members of the Traders’ Live-stock Exchange, be and they are perpetually enjoined and restrained from, either directly or indirectly, by fine or expulsion, or by threats of fine or expulsion, of the members of the Traders’ Live-stock Exchange, restraining, coercing or intimidating any one or more of the members of the said Traders’ Live-stock Exchange from dealing with or having business connection with any commission, man or yard trader at the Kansas City stock-yards who is doing or desires to do cattle business of any kind or character with plaintiffs.”
To reverse the above judgment error has been prosecuted to this court.
The argument of the case was largely on the laws relating to what are called “trusts” and “monopolies,” and those prohibiting what is called “boycotting,” but the plaintiffs in error, the defendants below, as their initial proposition, make the claim that the defendants in error, the plaintiffs below, have not shown that interest in the subject-matter of the controversy which entitled them to sue. This claim we are constrained to think well taken. Let the fact be recalled, and stated again, that the plaintiffs below do not complain of any conduct of the defendants belo'w directly operating upon or affecting them, but they complain of that which directly expends its force upon the defendants themselves, and which only reaches to the plaintiffs in an indirect way and as a secondary consequence.
It is a, settled doctrine of the law that injuries remotely and indirectly attributable to an- originating cause cannot be made the subject of a legal action. A direct and necessary connection must be traced backward along a line of sequences in order to establish the occurrence of effect from cause. This is most frequently instanced in the case of claims for damages for personal injuries for the violation of contracts, but the rule is general and applies as well to actions for preventive or other equitable relief as to actions at law for compensation. Suppose some member of the plaintiff association had sued the defendant association for damages for maliciously causing him to be “boycotted” in his business, and only proved the adoption and enforcement of the obnoxious by-laws above quoted — that and nothing more, could a recovery be had? Certainly not. In such case it would have been necessary to prove an actual loss of trade— prove that the public, or some one or more of it, who otherwise would have dealt with the plaintiff, failed, as a direct result of the wrongful act, to do so. Now, in this case, does it follow as a conclusion of fact which the law draws from the premises, that the members of the defendant association would trade with the members of the plaintiff association but for the constraint of the by-laws in question? Does it follow in the order of causation that if the by-laws should be repealed a channel of trade would be opened up between plaintiffs and defendants, as the removal of an obstruction from a stream would start the flow of its water? "Certainly not. It might do so, but the law does not know as a fact that it would have that effect; and the law is therefore powerless to grant the relief asked, because it cannot render its judgments on a mere conjecture of their efficacy. When one is engaged in business and a number of persons conspire to slander, and do slander, the merchantable quality of his goods, or conspire to seduce, and do seduce, his employees to leave his service, or conspire to repel, and do repel, his customers by obstructing the passage to his doors, the law perceives the connection between act and consequence, and it gives relief, preventive or compensatory, as it may be able ; but it is not possible for it to perceive the same character of connection in the case of a number of persons who merely agree, under penalties,'not to have dealings with another, because it does not follow as a consequence that the non-enforcement of the penalties, or even the abrogation of the agreement, would restore the injured person to favor.
Nor can the law, lacking ability to perceive a causal connection between the enforcement, of the by-laws in question in this case and the claimed injurious consequence, open up an avenue of proof by which the injury may be shown. How can the plaintiffs prove that the defendants would trade with them, were the latter not fearful of fine or expulsion from, their association? They might prove that upon the removal of the restrictive influences the defendants would trade generally on the market; but how can they prove that, among the hundreds of dealers on the market and the hundreds of daily transactions they have among themselves, an appreciable share of the denied trade would fall to them?
The defendants are not under contract to trade with plaintiffs, nor is it claimed that the making of a contract is desired by any of the parties, and that the enforcement of the by-laws operates to prevent the agreement. This is not the case of a union or association of persons intimidating its members from engaging in a specific service offered by an employer, and standing ready and open to be entered. In such cases, on a showing of continuing damage caused by inability to secure employees, preventive relief has been afforded. In this case, however, every element of injury lying at the base of plaintiffs’ claim is indirect, remote, and conjectural, and our judgment therefore is that the relief asked cannot be allowed.
A great array of decisions has been marshaled before us, but nearly all of them bear on the question whether the defendant association is a monopoly, or whether its acts tend to monopoly. They also bear on the question whether the acts of the defendant association are in pursuance of a conspiracy to boycott the plaintiffs’ in business. It was not difficult to make a showing of applicability of these decisions, because at first glance it would seem that the case required a consideration of the law relating to the subjects of boycotting and monopoly — one and, perhaps, both; but upon most careful reflection we are constrained to think that only the narrower question of interest of the plaintiffs in the subject-matter of the action' is involved. There are no authorities bear ing directly on the precise subject. The point involved is therefore one of first impression.
The case most nearly similar to it is Russell v. New York Produce Exchange, 58 N. Y. Supp. 842. There the plaintiffs, who were not members of the exchange, sought to enjoin it from posting a notice declaring them guilty of certain charges, and-also from prohibiting 'its members from representing and acting for them on the floor of the exchange. The relief asked was denied for reasons of a nature similar to those advanced by us in this case. Another decision somewhat supportive of the claim of lack of interest to maintain the action is Bohn Manuf’g Co. v. Hollis, 54 Minn. 223, 55 N. W. 1119, 21 L. R. A. 337, 40 Am. St. Rep. 319. A case inclining somewhat toward the opposite view is Boutwell v. Marr, 71 Vt. 1, 42 Atl. 607, 43 L. R. A. 803, 76 Am. St. Rep. 746; but in reality none is sufficiently like the present one in point of fact to be especially helpful.
Nor do any of the statutes of this state aid the contention of the defendants in error, the plaintiffs below. We have many statutory provisions condemnatory of what are called “trusts” and “monopolies,” but none of them gives a right of action in equity to individuals who do not on general equitable principles already possess it. For instance, section 2 of chapter 158, Laws of 1891, contains the following provision :
“And it shall be.unlawful for any person or persons or corporation or corporations doing business in this state to be or become a member of any society, association or corporation whose by-laws provide for and fix the minimum commission for the selling of live stock for others, or whose by-laws prohibit its members from purchasing live stock from persons who are not members of such society, association, or corporation,” etc. (Gen. Stat. 1901, §2440.)
This statute would seem to interdict membership in the defendant association, as long as it maintains the obnoxious by-laws in question, but it is entirely penal in character, as will be observed by its further reading. Its provisions are enforceable only by criminal prosecution. Equity does not give a private right of action to an individual for the doing of a wrongful act, merely because the statute has denounced the act as a crime. The enactment of a statute for the suppression of a public wrong does not vest in the individual a right of action to suppress it. If beforehand he had a right of action, the statute, when enacted, may illustrate or enlarge or strengthen it, but it does not give it, wholly and alone. Our conclusion is that the plaintiffs below have not shown any interest in the subject-matter of the action, nor do the findings of the court show that they possess any interest in it.
The judgment of the court below is therefore reversed, with directions to enter judgment on the findings in favor of the defendants. | [
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Error from Cowley district court. | [
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Error from Labette district court. | [
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The opinion of the court was delivered by
Cunningham, J.:
The plaintiff in error was acreditor of the Citizens’ Bank of Mound City, of which the defendant in error was a stockholder to the amount of $1500. After the bank had suspended business for more than a year the plaintiff brought an action against the defendant to charge him on his statutory liability. He filed his petition and caused summons to be issued and placed in the hands of the sheriff for service. The defendant, upon ascertaining these facts, gave his note to another creditor of the bank in the full amount of his liability and pleaded the same as a defense to the plaintiff’s claim. The trial court held that the giving of the note was a discharge of defendant’s liability. From this ruling plaintiff brings the' case to this court.
The first question for decision is whether a stockholder, after the commencement of an action against him and the issuing of summons in such action, but before service of the summons, can discharge himself from liability to the suing creditor by payment, to the amount of his double liability, to another creditor of the indebted corporation, he knowing that action had been commenced and summons issued.
In the case of Campbell v. Reese, 8 Kan. App. 518, 56 Pac. 543, the court of appeals held in a similar case, growing out of a suit against a stockholder of the same bank, where payments were made after the petition had been filed and summons issued, but before service of defendant, that in the absence of actual notice the notice imparted by the record is not sufficient to bind defendant. It is contended that the defendant in this case, having actual notice of the commencement of the suit, was bound to the suing creditor. Upon this point we do not sustain the contention of the plaintiff in error. If the doctrine of Us pendens can be pleaded at all, which we do not decide, it can only be after service of summons on the defendant. The mere fact that the defendant had knowledge that the petition had been filed and summons issued would be of no significance or binding force. The summons might never be served. The information which he had received was unofficial and unauthorized.
The court is not wholly agreed as to when a stockholder would become bound to a plaintiff in such an action — whether he would be bound even by the service of summons ; but it is agreed that it would take, at least, service of summons, and we so decide without saying that such service would bind the defendant.
The court of appeals, in the case cited, held that the giving of a promissory note which was accepted by the creditor as payment, without suspicion of bad faith, discharged the statutory liability of the stockholder. We are agreed that this statement of the law is correct; that while the giving of the note does not as a general proposition discharge the debt, yet the giving and acceptance of the note in the discharge of the stockholder’s liability would relieve the stockholder from answering to other creditors. The record in this case discloses enough to establish the fact that the note was so given, and the court below so found and held.
Finding no error in the record, we direct that the judgment of the court below be affirmed.
Johnston, Greene, Ellis, JJ., concurring. | [
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Error from Reno district court. | [
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The opinion of the court was delivered by
Johnston, J. :
This was an action of replevin brought to recover the possession of a cider-press, of which a conditional sale had been made by the Hydraulic Press Manufacturing Company to J. H. Whetstone in July, 1895. Among other things, the contract provided that the cider-press should remain the property of the company and subject to its order until payment in full was made, and that the company was entitled to receive one-half of the earnings of the machine until it was paid for in full. The answer of Whetstone admitted the execution of the contract, and the evidence of the plaintiff tended to show that, although more than three years had elapsed ■since the sale, only a small part of the purchase-price had been paid when this action was begun. His letters and statements, of which testimony was given in ■behalf of the plaintiff, showed that he was in default; that only about $150 of the debt had been paid, and that the machine was so much worn that there was little hope that payment could ever be made from its earnings.
The trial court overruled plaintiff’s demurrer to the answer of the defendant, which admitted that the plaintiff held the title to the press, and that the defendant held the possession of the same subject to the plaintiff’s order. The court also sustained a demurrer to the plaintiffs evidence, which, without question, made a prima facie case in favor of the plaintiff. In these rulings there was error.
The contract expressly provided that the ownership of the machine was to remain in the seller until fully paid for, and, while possession was to be given to the buyer, it was' plainly stipulated that until payment was made and title acquired by the buyer possession was to be held subject to the seller’s order. The title, therefore, remained in the company, and all rights and control incident to title, except as expressly restricted by the contract itself, and, as we have seen, the only restriction as to possession was that it was to be held by the buyer at the option of the seller.
It is urged that the provision of the contract, to the effect that the company should receive one-half of the earnings of the machine, implies a right in the defendant to retain and use it, and that such right is inconsistent with the claim that possession was to be held subject to the will and order of the company. That provision, however, does not, either in its terms or implications, negative the specific agreement of the parties that while the title remained in the company possession should be held by Whetstone subject to its order. Instead of providing that possession might be resumed if payment were not promptly made, or when the sellers deemed themselves insecure, as is frequently stipulated in such contracts, the parties here practically agreed that possession might be retained at the option of the company until full payment of the debt was made. The contract was conditional. It gave an option to the plaintiff, and, having the option by express terms, it was entitled to retake the possession if for any reason the defendant’s conduct was unsatisfactory. But if the contract admitted of the interpretation that possession could not be retaken unless the defendant was in default, we would have no hesitation in saying that the plaintiff established the prima facie right of action by the proof to which the demurrer was sustained. Under the facts pleaded and proved, the plaintiff had a right to the possession of the machine, but how much should be credited on the debt due to the plaintiff, by reason of the return of the machine, cannot be determined at this time.
The judgment will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
Dosthr, C.J., Smith, 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 principal question in this case was whether Gustave Schwartz acted as the agent of defendant Bever in making the purchases which constituted the basis of the action, or whether such, purchases were made upon his own account and credit. If the plaintiffs chose to make Schwartz their-debtor and to sell their goods upon his credit, the- mere fact that they were to be used in betterments upon the premises of the defendant Bever would not entitle them to a lien thereon. (Manufacturing Co. v. Best, ante, p. 187, 65 Pac. 239.) In substance, the ■court below so instructed the jury. As to the matter of agency, the following instruction was given :
“The burden of proof is upon the plaintiffs in this case t.o establish the fact of the purchase of material as alleged, and also to establish the fact of an agency upon the part of Gustave Schwartz, if you find that he made the purchase for the defendant Bever; that is, if you should believe from the evidence that the defendant himself did not make the purchase of this material, but that it was purchased by Gustave Schwartz, then, before you can find against the defendant in this case, you must believe from the evidence that defendant Schwartz, when he made this purchase, was acting for the defendant Bever, and as his agent in making this purchase. In determining the question ■of agency between the parties that is raised in this case, you may take into consideration all the evidence in the case, and all the circumstances which, in your judgment, throw any light on this question.”
It is true that the jury were not very fully advised as to the rules of agency applicable to the case at bar, but as no requests were made in relation thereto by the plaintiffs they cannot be heard to complain at the meagerness of the instructions actually given. The general finding of the jury being against the plaintiffs, and the evidence being sufficient to sustain it, we are compelled to treat such finding as a determination in the court below that the plaintiffs sold the material to Schwartz upon his individual credit, and not to him as agent for the defendant Bever.
The defendants in1 error insist that the lien was defective in that it was not shown to have been filed in the office of the clerk of the district court. We have treated the case as though it had been properly filed but that such fact does not appear because of a mere omission in the record.
The plaintiffs in error also urge that they are entitled to a lien because confessedly the material supplied by them was used in betterments on the premises of defendant Bever. The argument, although made with force and ingenuity, is without weight. They must secure a lien under the statute or not at all.
The judgment of the district court is affirmed.
Smith, (Cunningham, JJ., concurring. | [
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The opinion of the court was delivered by
Pollock, J. :
Two contentions are made by counsel for plaintiff in error to work a reversal of the judgment below: (1) That the taking of the quitclaim deed by the bank operated to merge the mortgage held by it in the legal'title so taken, and thus gave priority to the mortgage of plaintiff in error; (2) that the agreement made by the bank to receive the conveyance of the mortgaged premises and release mortgagors from any deficiency judgment that might remain after exhausting the mortgaged premises operated in equity to create the mortgage of plaintiff in error a paramount lien on the pretnises.
As to the first of these contentions, the doctrine is firmly held by this court that where the - holder of a lien acquires the legal title to the property upon which the lien rests, with the intention that such lien shall not be merged in 0 the legal title, such intention will prevail as against junior encumbrancers. (Bowling v. Garrett, 49 Kan. 504, 31 Pac. 135; Rand v. Ft. S. W. & W. Rly. Co., 50 id. 114, 31 Pac. 683.) This is also the settled law in other jurisdictions. (The Delaware Railroad Construction Co. v. The Davenport & St. Paul R. Co., 46 Iowa, 406; Richardson v. Hockenhull et al., 85 Ill. 124; Brooks v. Rice, 56 Cal. 428; Hanlon v. Doherty et al., 109 Ind. 37, 9 N. E. 782; Belknap v. Dennison, 61 Vt. 520, 17 Atl. 738; Coburn v. Stephens, 137 Ind. 683, 36 N. E. 132.) The trial court found that it was not the intention of the bank that its mortgage should merge in the legal title taken, as follows:
“But that the taking of said deed by said plaintiff should not affect in any way the right of the plaintiff to foreclose its said mortgage or trust deed, or to obtain judgment upon the note sued on by the plaintiff herein, or its right to proceed in any way against any of the other defendants herein upon said note and mortgage or trust deed.”
Not only the express finding of the trial court, from the evidence upon this proposition, is opposed to the contention of merger urged by counsel for plaintiff in error, but it would seem from the authorities that, in the absence of such a finding, it would be conclusively presumed that the intention of the bank was that its mortgage should not merge in the legal title, where the effect of such merger would be to give a junior encumbrancer a paramount lien on the property. Mr. Jones, in his work on Mortgages, section 873, says:
“Even when the parties have undertaken to discharge the mortgage upon the uniting of the estates of the mortgagor and mortgagee in the latter, it will still be upheld as a source of title whenever it is for his interest, by reason of some intervening title or other cause, that it should not be regarded 'as merged. .It is presumed, as matter of law, that the party must have intended to keep on foot his mortgage title, when it was essential to his security against an intervening title, or for other purposes of security; and this presumption applies although the parties, through ignorance of such intervening title, or through inadvertence, have actually discharged the mortgage and canceled the notes.”
The text is approved in Stantons v. Thompson, 49 N. H. 272; Hanlon v. Doherty, 109 Ind. 37, 9 N. E. 782; Lowman v. Lowman et al., 118 Ill. 582, 9 N. E. 245; Coburn v. Stephens, 137 Ind. 683, 36 N. E. 132.
The second contention of counsel for plaintiff in error is not the defense pleaded in her supplemental answer, but is predicated upon the theory that, by the acceptance of the conveyance upon the agreement made by the bank with the Pollards that ^ woui¿ not hold them for the payment of any deficiency judgment that might remain after exhausting the mortgaged premises by sale under the decree, as found by the trial court, plaintiff in error was deprived of a substantial right and a portion of the security pledged for the payment of her note. This contention, in other words, is that, in the absence of the agreement found to exist between . the bank and the Pollards, it was the privilege of plaintiff in error to pay off and discharge the prior lien held by the bank, and thus, by operation of law, become subrogated to all the rights of the bank, not only as against the mortgaged property, but also to all rights held by the bank to a personal judgment against the mortgagors; and that because of the • agreement of the bank made with the Pollards, she was deprived of a valuable right which, in equity, entitled her to a first lien on the premises. In support of this contention, counsel cites the cases of Coyle v. Davis et al., 20 Wis. 564, and Sexton and another v. Pickett and others, 24 id. 346.
Assuming, while not so deciding, the general rule to be as claimed by counsel, is plaintiff in error in a position to avail herself of the same in this case? We think not. It must be conceded that it was the right of plaintiff in error, a junior lien-holder, to pay off the prior mortgage existing upon the premises pledged to secure her obligation, and upon such payment, in equity, to be subrogated to all the rights of the bank against both the property and the makers of the obligation by her discharged. But the right of subrogation, and, as well, the right to make payment of a prior lien upon which the claim of subrogation may be predicated, like all other rights, may be waived or abandoned. (Potts v. Plaisted, 30 Mich. 149; Frost v. Yonkers Savings Bank, 70 N. Y. 553, 26 Am. Rep. 627.) Conceding this right to have existed in this case, although afforded ample opportunity so to do, plaintiff in error neither made nor tendered payment of the prior lien, but, on the contrary, by her answer and cro.ss-petition, expressly denied the validity of the prior encumbrance, pleaded payment, satisfaction, discharge and release of record of the same, and in her supplemental answer setting forth the taking of the quitclaim deed, and the agreement between the parties upon which the same was secured, alleged and relied on an absolute and unconditional release and discharge of the Pollards from all personal liability to the bank and a merger of the prior lien held by the bank in the legal title taken, which contention has been heretofore denied.
Hence, it must be held in this case that plaintiff in error, by her acts and conduct, waived the defense of which she now here seeks for the first time to avail herself, and also, by her pleadings upon which the •case went to trial, assumed a position inconsistent with the claim of right made in this court.
A further contention is made by counsel for plaintiff in error, that the judgment rendered’ is excessive in the amount "of $98.76, arising by reason of error in the computation of interest; that judgment should have been rendered for only $1941.60, whereas judgment was rendered for the sum of $2040.36. This contention is well founded, and the judgment will be modified by deducting from the same as rendered the sum of $98.78 ; and, as modified, the judgment will be affirmed.
Dostek, C.J., Smith, J., concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This is a proceeding brought to review a judgment rendered against J. F. Glick and in favor of Hattie H. Lowe and others by the district court of Coffey county. The jurisdiction of this court is attacked by the defendants in error upon the ground that they have never been legally summoned or otherwise properly brought into court within the statutory period for the commencement of such proceedings.
The summons in error was fatally defective, as it did not indicate, in either the heading or body of the writ, who were the defendants in error. It was directed to the sheriff, and commanded him “to notify J. Jay Buck and J. G. Hutchison, attorneys for defendants in error” ; but the persons for whom they were attorneys were not shown by the summons. The summons so issued followed the prsscipe filed by the plaintiff in error in this respect, as it did not name the defendants in error. The summons was never served on the defendants in error and no appearance was made by them, or at least none was made within a year after judgment was rendered. As the summons in error is the process by which jurisdiction of the defendants is obtained, it is important that the substantial requirements of the statute be observed. The code provides that the summons in error shall issue and be served as in the commencement of an action. (Civil Code, § 544; Gen. Stat. 1901, § 5028.) In the commencement of an action it is provided that a summons shall be issued, directed to the sheriff, commanding him “to notify the defendant or defendants named therein.” It is sometimes held that if the name given in the writ is defective, but idem'sonans with the defendant’s real name, the variance will be deemed to be immaterial; but where no defendant is named in the writ, no jurisdiction is acquired over any one.
While the case was pending in the court of appeals a written stipulation was filed by the parties for the continuance of the case, and it is contended that this should be treated as an entry of appearance which vested the court with jurisdiction of the defendants. The stipulation, however, was not filed until nearly four years after the judgment sought to be reviewed had been rendered. To obtain a review, it is necessary that the proceedings be brought within one year after the rendition of judgment, and whatever might have been the effect of the stipulation if it had been filed within a year, it cannot give jurisdiction after the lapse of the period within which a review may be had. The effect of an entry of appearance after the lapse of the year was considered in the opinion per curiam in Mitts v. Smith, reported in 60 Pac. 822. It was there said:
“In these cases, when the year had elapsed, there was nothing on file which the court had power to review, and no agreement or action of the parties could thereafter supply a proper record or vest the court with jurisdiction of subject-matter or parties. If no proceeding had been instituted until after the lapse of-a year, the voluntary appearance and application of all the parties or any agreement that they might make and present would not confer jurisdiction to review the proceedings, and no more can the entry of appearance or stipulation of the parties, made after the year, make valid that which was invalid, nor give jurisdiction not previously possessed.”
It follows that the motion to dismiss must be sustained.
Cunningham, Greene, Ellis, JJ., concurring. | [
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Error from Montgomery district court. | [
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Per Curiam:
Edward M. Lawson died after having executed a will, in which he devised to his wife, Elizabeth, a life-estate in their homestead, which stood in his name, and a life-interest in his personal property, with remainder to their children, Perry and Mary. The widow remarried and afterward died, leaving as survivors her second husband and her children by the former marriage. The husband claimed an interest in the land and brought partition. The grounds of his claim were that the statute gave his wife one-half the property of the former husband; that she could not be deprived of such share except by consent to the will or an election to take under it, and that she had neither consented nor elected. Judgment went against him in the court below, and he prosecutes error.
In Reville v. Dubach, 60 Kan. 572, 57 Pac. 522, it was held that the election of a widow to take under the will of her deceased husband need not be made under the statutory forms, but might be evidenced by acts in pais. What acts and declarations on the part of the widow would constitute sufficient evidence of an election were not enumerated, but it was held that certain acts and declarations constituted some evidence of an election, and should have been received and considered as such. In the present case the acts and declarations held to be sufficient evidence of an election to take under the will were of the general character of those which in Reville v. Dubach, supra, were held to be competent as evidence of the election. In this case the husband, when drafting his will, was about to insert a clause limiting the wife to an estate in the land while she remained his widow; but she requested that it be enlarged to a full life-estate, which was accordingly done, and in that form she expressed herself as satisfied with the provision made. She was nominated in the will as an executor, in conjunction with one of the neighbors. After the death of her husband she took the will to the probate judge’s office and in writing proposed it for probate. She renounced her right to serve as executrix, but asked that her coexecutor be made the sole executor. Several times thereafter she stated to neighbors that she knew the provisions made for her in the will and expressed herself as satisfied with them. She continuously resided on the land from the death of her first husband until her own death, nearly twenty years afterward.
It is claimed that some of her acts and declarations were inadmissible as evidence because occurring 'or made after a homestead right of occupancy of the land had become vested in her second husband. We think they were-in continuation of previous acts and declarations of the same general character, occurring or made before the homestead right accrued, and threw light on her previously existing tstate of mind. Her consent to the will, orally made at the time it was written, of course, was not binding, but the fact of such consent was admissible in evidence as tending to show her subsequent attitude of mind toward the will. All that was lacking satisfactorily .to prove an election in pais was evidence of the widow’s knowledge of her rights under the statute. We do not think, however, that it was necessary to make express-proof of that fact. Knowledge on her part was infer-able from her acts and from her declarations of satisfaction with the provisions made for her, and from her twenty years' failure to dissent from them. It was fair to infer that during that long period she learned what her rights were under the law.
None of the evidence admitted on the trial was erroneously received. From it the court below determined there was an election, intelligently made, to take under the will. We approve such determination, and the judgment is therefore affirmed.
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The opinion of the court was delivered by
Cunningham, J.:
The plaintiff in error in this action seeks to enjoin the collection of all taxes levied for school purposes in school district No. 79, Marion county, Kansas, in excess of two per cent, on the taxable property owned by it in said district.
A “graded-school district No. 79” had been organized, identical in boundaries and inhabitants with school district No. 79, such organization being authorized by’ sections 6242 — 6251 of the General Statutes of 1901, -which provide generally for the organization of union or graded schools. It is contended by plaintiff in error that, while the inhabitants of one or more school districts may form a union, or graded district and create the machinery to run the same, to maintain any and all schools therein the total levy “for the various school purposes” cannot exceed two per cent, on the taxable property in any, one district annually.
It is contended by the defendants in error that the law, conferring as it does upon the various members of the graded-school-district board all the powers of like officers of ordinary district boards, and creating a separate entity for the purpose of managing a sepa-rate school, with authority to levy taxes, gives the power to such graded-school district to make within its bounds an additional levy not to exceed two per cent.; that is, that it may levy as much as the original school district may, and this in addition to what the original district levies, and not that the total of both levies must be the limit fixed in section 6127, G-eneral Statutes of 1901. The court below took this view of the question. In this we do not agree. We think that the entire levy may not exceed two per cent., and are strengthened in this conclusion by the language of section 6244, which says that a union district shall be entitled to “ an equitable share of the school funds,” and also by that in section 6246, “the district treasurer shall apportion the amount of school money due the union district, and pay the same over to the treasurer of the union district.” The law fixes the time for holding the annual meetings of the union or graded-school districts in June, while the annual meetings of school districts occur in July.
All these provisions taken together indicate that it was the purpose of the legislature that while the first meeting — that of the graded district — could suggest the levy desired for graded-school purposes, the last one only possessed the power to vote the tax, which for “the various'school purposes” could not in any one year exceed two per cent. ; or at least, there must be such harmony in the action, of both bodies that the aggregate levy may not exceed the limit found in section 6127.
We may say that the question is not one entirely free from doubt, but we cannot believe that the legislature would have left it in that condition had its purpose been to confer the right so largely to increase the burden of taxation. The authority to levy taxes is an extraordinary one. It is never left to implication, unless it be a necessary implication. Its warrant must be clearly found in the act of the legislature. Any other rule might lead to great wrong and oppression, and when there is a reasonable doubt as to its existence the right must be denied. Therefore, to say that the right is in doubt is to deny its existence. (Cool. Tax. 200, and cases there cited; Dill. Mun. Corp., 4th ed., § 763; Burnes and others v. The Mayor and City Council of Atchison and others, 2 Kan. 454.)
The levies sought to be enjoined are those for the years 1894 and 1895, and our conclusion is that the judgment of the district court must be reversed, with direction to make the injunction perpettfal, restraining all of the defendants from collecting that part of the school taxes in excess of two per cent.
Johnston, (íurjíisk, J J., concurring. | [
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Error from Cowley district court. | [
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The opinion of the court was delivered by
Greene, J.:
In December, 1895, the plaintiffs in this action sold to J. L. Bolles a certain ice-hoisting machine, for the recovery of which this action was brought. At the time of the purchase of the machinery, Bolles executed his note for the payment of the purchase-price, and by a letter agreed that the title should remain in plaintiffs until the money was paid in full. In January, 1897, to secure this debt, Bolles and wife executed to plaintiffs their chattel mortgage on the machinery. This mortgage was filed for record January 6, 1897. Afterward Bolles, in consideration of the delivery to him of his note, and in satisfaction of the indebtedness, delivered the property in controversy to plaintiffs in error, and in a few days thereafter one Bruno Hobbs, the agent of the plaintiffs, undertook to take possession thereof, but was informed that one of the defendants, Bower-sock, claimed possession of said property. Afterward a written demand was made of the defendant by plaintiffs in error for the possession of the property ;in question, which was refused, and this action was then brought. This case was tried by a jury. After the plaintiffs below had introduced their evidence, the defendants demurred thereto, which demurrer was sustained and judgment rendered in favor of defendants below for the possession of the property and costs.
The only question brought to this court for review is whether the court erred in sustaining this demurrer. The rule is well established in this state that where a plaintiff introduces evidence fairly tending to establish every essential fact necessary to a recovery it is error for the court to sustain a demurrer thereto. In this, as in every other case, “a demurrer to evidence admits every fact and conclusion which the evidence most favorable to the other party tends to prove.” (Christie v. Barnes, 38 Kan. 317, 6 Pac. 599.)
The evidence offered by plaintiffs tended to prove, and, in considering the demurrer, did prove that plaintiffs in error manufactured the machinery in question, sold it to Bolles, the latter executing his note therefor, and by way of a letter agreed that the title should remain in plaintiffs in error until it was fully paid for. It proved that Bolles afterward executed a mortgage on the property to plaintiffs in error, and after that, and in consideration of surrendering to him his note and canceling his indebtedness to them, he agreed to surrender and deliver this property to plaintiffs in error ; that with his consent plaintiffs in error undertook to take possession, and were resisted by defendants in error; that demand was made for possession and refused. There is nothing in the evidence to show that any other person is, or claimed to be, the owner of this property. It appears that the defendants are in possession, but the evidence does not tend to show any ownership, or by what right, if any, they claim possession.
Counsel for defendants in error also argue the question of fixtures to real estate in many of its phases, but we have been unable to apply these principles to the case before us, for the reason that there is no evidence in the record showing that defendants in error are the owners of the real estate upon which the machinery is located.
It is contended by counsel for defendants in error that mere possession of personal property is some evi dence of title. While this is true, it is so slight that it takes very little testimony to disprove it.
The judgment is therefore reversed and the cause remanded.
Cunningham, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Doster, C. J, :
This was an action of injunction to restrain the collection of taxes on real estate. It was brought by defendants in error against plaintiff in error, as county treasurer, and also against the city of Empire. The board of county commissioners was not made a party. Subsequently defendants in error, plaintiffs in the court below, dismissed the action as to the city, leaving it to stand against the county treasurer alone. A demurrer to the petition on the single ground of the insufficiency of the facts alleged to constitute a cause of action was filed and overruled. The defendant, the county treasurer, elected to stand on his demurrer, whereupon a judgment of permanent injunction was rendered against him. From the order overruling the demurrer and from the order of final judgment in injunction error has been prosecuted to this court. However, no objection to the judgment was made in the court below, nor objection made in any form to the defect of parties. Notwithstanding this omission, the judgment must be reversed for the lack of that necessary party defendant upon whom, to be effectual, it must- operate.
The case of Jeffries-Ba Som v. Nation, ante, p. 247, 65 Pac. 226, was an action against the county treasurer and sheriff to enjoin the collection of personal-property taxes. It was held that the proceeding could not be maintained, because of the lack of the board of commissioners as a party defendant. In the opinion it was said, with a citation to many authorities:
“While the treasurer and sheriff are proper parties to the suit, yet they are mere nominal parties. The board of county Commissioners of the county is the real party in interest. It has long been the settled law of this state that a permanent injunction will not be granted until all whose legal rights are to be directly affected are made parties to the action.”
However, in that case and perhaps in all others, the defect of parties was specifically pointed out in the court below by demurrer or otherwise. In this case it was not so done. The objection is made for the first time in this court. Nevertheless, we are of the opinion that the lack in the court below of a party defendant so necessary to the rendition of a judgment enjoining the collection of taxes as is the board of county commissioners is a defect which would deprive a judgment of affirmance, should it be rendered, of any operative effect, and will therefore justify us in refusing to render such a judgment in this case, even though the demurrer to the petition on the ground alleged was rightly overruled. A judgment can operate only on the parties properly before the court, and if an indispensable party is not before the court so as to be bound by the judgment, it would be as futile for a reviewing tribunal to affirm it as it was for the trial court to render it.
To the board of county commissioners in general is committed .all of the interests of the county and many of the interests of its political subdivisions. The duty to levy all county taxes and many of the taxes of such subdivisions is imposed upon that tribunal. A county is the political instrumentality through which taxes are collected and disbursed, while, as stated in Carpenter, Treas., v. Hindman, 32 Kan. 601, 5 Pac. 165, the treasurer “is simply the agent of the county to receive the taxes levied and pay the money received to the persons or parties entitled to it.”
In Gilmore v. Fox, 10 Kan. 509, an injunction to restrain the county treasurer and county clerk from collecting a special assessment on town lots to pay for street improvements was asked. The city which made the assessment was not joined as defendant. The court said:
‘ ‘ The county clerk and county treasurer were, under the statutes, and under the allegations of the plaintiffs’ petition, proper parties to the action; but still they were, merely nominal parties. They could be but little affected by any judgment that might be rendered against them. It could make but little difference to them whether said taxes or assessments were collected or not. They would get no portion of the same when collected, except their fees for collecting and disbursing the same. The city of Emporia is the real party in interest. It was the city of Emporia that levied said taxes, and they will belong to the city of Emporia when collected. The city has already acknowledged its responsibility to the persons who made the improvements, and if responsible it is bound to see that they are paid for their work. If the city cannot collect these special assessments it must resort to general taxation to raise the amount. But before it can properly be determined that the city cannot collect these special assessments the city must have its day in court. No judgment could be rendered against Gilmore and Spicer without seriously affecting and prejudicing the rights of the city of Emporia. A judgment could not be rendered against Gilmore and Spicer and the rights of the city of Emporia be at the same time saved. A judgment enjoining them from collecting the tax is virtually and substantially a judgment against the city of Emporia.”
It may be inaccurate to speak of a county treasurer as a merely nominal party to tax injunction proceedings as was done in Gilmore v. Fox, supra, and in Jeffries-Ba Som v. Nation, supra. It is quite proper to join him as a party in such actions, bec'ause he is the agent of the county or city and is charged with the duty of collecting the taxes. ' He is not, however, so exclusively interested in their collection that he can be made the sole defendant in an action to determine their validity.
The county or city, the political entity beneficially interested in the taxes, and therefore interested in showing them to be valid, should be made a party. Such being the case, the rule is quite plain. That rule is the one which prevailed in the equity practice before the adoption of the code and which has not been changed by the code. It was quite well stated and explained by the supreme court of Alabama, which held that “the omission of one who is an indispensable party to the bill is a defect that will reverse the decree on appeal or writ of error, although the objection is taken for the first time in this court.” (McMaken et al. v. McMaken, 18 Ala. 576.) In Oregon it was ruled:
‘ ‘ While the record before us discloses the fact that there are other parties whose rights will be materially affected by a decree in this case, their name or names nowhere appear in this record, and we do not feel authorized to remand this case to the court below for the purpose of having them made parties. Nor does it matter that the parties to this suit make no objection on account of a want of parties. Where that fact appears, the court will, on its own motion, refuse to proceed further in the case.” (Beasley v. Shively, 20 Ore. 508, 26 Pac. 846.)
The demurrer to the petition is not passed on, but the judgment of the court below is reversed, with directions for such proceedings as may be properly taken.
Johnston, Greene, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
This was an action brought by the plaintiff in error, as plaintiff below, upon a note given by the defendants in error to Smedley Darling-ton, and to foreclose a mortgage on real estate given to secure the same. The note was dated March 1, 1893, and became due March 1, 1898. It was made payable, principal and interest, at the office of Smed ley Darlington, West Chester, Pa. The mortgage was duly assigned in writing to the plaintiff on the 18th day of August, 1897, which assignment was on that day properly acknowledged. This assignment was filed for record in the office of the register of deeds of the proper county on the 21st day of August, 1897. Plaintiff had become the owner of the note by assignment from the payee some time before the formal assignment of the mortgage was executed; the assignment of the mortgage and record thereof having been made for the purpose of complying with the statute relative to the assignment of mortgages enacted in 1897. The note and mortgage were negotiated,, and the business transacted, by one Henry J. Butler, of Fort Scott, Kan. At the time that the defendant Charles Heekenlaible applied to him to obtain a loan, he executed a paper purporting to appoint said Henry J. Butler his agent for the purpose of obtaining such loan, and among other provisions contained therein was the following :
“And I do hereby constitute and appoint Henry J. Butler my attorney irrevocably, for me, and in my name, place, and stead, to procure this loan from any person, persons, or corporation, and to forward to the holders of the notes for principal and interest the interest money as the same may become due from time to time, and the principal, whenever it may from any cause become due and payable ; hereby ratifying and confirming all that my said attorney may do in the premises as fully as if done by myself.”
All of the interest coupons were paid by the defendants up to and including the one that fell due September 1,1897, to Henry J. Butler, the defendants knowing that such payments would have to be remitted to' the office of Smedley Darlington, in West Chester, Pa., before they could obtain their interest coupons, and knowing that the note and mortgage were held by some person. living in the East. From the time that plaintiff became the owner pf the note and mortgage he continuously had the same in his possession, the course of business being that he would take the coupons for the interest as they became due to the office of Smedley Darlington, in West Chester, Pa., obtain his interest-, and surrender the coupons therefor, which were then transmitted to Henry J. Butler, at Fort Scott, and by him delivered to the defendants. The plaintiff never knew anything of this course of business, not even knowing of the existence of Henry J. Butler. On September 16, 1897, the defendant Charles Heckenlaible went to the office of Henry J. Butler, in Fort Scott, and paid to him the interest which had fallen due on September 1, 1897, and also gave to him $200 to be applied upon the principal of the note, taking his receipt therefor, which receipt recited that the money was given for a partial release of the mortgage, and that it was given on condition that he should be able to procure a release from the holder of the mortgage. This payment of $200 was retained* by Butler, and was never paid on the note.
The defendants claimed the right to make this payment to Butler because they had no actual knowledge of the transfer of the note and mortgage from Smedley Darlington to the plaintiff, and because the course of business had been such between them and Henry J. Butler relative to this matter as would warrant them in the belief that the latter was the agent of Smedley Darlington to receive not only the interest but payments of principal as well, and evidence was introduced at - the trial to prove this course of business.
The' note falling due the 1st day of March, 1898, and remaining unpaid, the foreclosure action was commenced. The defendants tendered to plaintiff’s attorney all that was due on the note, after having given credit for $200, and claimed that no judgment should be rendered against them. The court found for the defendants, and the plaintiff brings error.
On these facts, we must hold that the court erred in its judgment, and this is so for at least two reasons. First, under the mortgage-assignment act of 1897, we think that the record of the assignment of this mortgage, which was made twenty-five days before the payment of the $200,. carried notice to the defendants that the note and mortgage had been duly assigned to the plaintiff, and that they could not safely pay the same, or any part thereof, to Smedley Darlington or his agent. This assignment fully complied with the requirements of the law. It showed who was then the owner of the note and mortgage and gave his post-office address. We grant that portions of this act seem to indicate that it was enacted as a protection to the mortgagor in making payments to the payee of the note when he — the payor — had no notice of its transfer, but we cannot grant that it stops with this. While it provides that the payor may safely pay to the payee mentioned in the note, unless the assignment does appear of record, we think the act must also be construed to mean that such payor cannot safely pay to the original payee if an assignment, as provided by the act, has been recorded. It would be an assumption of a purpose on the part ■of the legislature to do gross wrong if it intended to protect the payor in the payment of a note to the original payee when no assignment was of record, and not also to protect the latter when the assignment was of record. The provision for the protec tion of the payor, if the assignment was not of record, carries with it necessarily the converse, to wit, that he must pay to the assignee when the record shows the assignment of such note and mortgage ; and the payor must take knowledge of the fact of the assignment when it appears of record, and of the matters appearing therein.
Even if this act of 1897 does not warrant the conclusion, we think the general provisions of the act relative to conveyances do. An assignment of a real-estate mortgage is an instrument whereby real estate may be affected, as contemplated by section 19 of the latter act (Gen. Stat. 1901, §1221), so that when acknowledged and recorded it imparts notice to all persons of the contents thereof. As a matter of law, when this payment was made by defendants to Butler they knew that Darlington had assigned the note to the plaintiff, and that they could not safely pay to Darlington’s agent.
There was no offer upon the trial to show that Henry J. Butler was or ever had been in any manner the agent of the plaintiff. The evidence went to show that Butler had been acting only as the agent of Smedley Darlington. The claim is made that because the note in question is a non-negotiable one, therefore, under the law-merchant, the fact of its assignment by Darlington to the plaintiff must be brought home to the defendants in order to defeat any payment made by them to Butler. Without passing on the question whether the note is or is not non-negotiable, we hold that the assignment act of 1897 applies as well to non-negotiable, as to negotiable, notes. It follows, therefore, that as the assignment to the plaintiff was of record at the time the defendants made this payment to Butler, and'because Butler was not shown to be in any manner the agent of the plaintiff, the payment was made by the defendants at their own risk, and, as it never actually reached the hand of <the plaintiff, the defendants were not entitled to a credit on their note therefor.
By the clause quoted from the application for a , loan made to Butler, as before stated, it will be seen that the defendants had made Butler their agent for the purpose of forwarding to the holder of the note moneys to be paid thereon, either' principal or interest. We think that all of the evidence introduced by .the defendants going to show that Butler was the agent of Darlington is as consistent with the theory that he was the agent of the defendants as with the theory that he was the agent of Darlington, and, in the light of the quoted provision in the defendants’ agreement, we must hold that the evidence does not even show that he was the agent of Darlington for this purpose, but rather that of the defendants. In ^his connection, it must also be remembered that this payment was made for application on the principal, before the principal was due, and that the receipt given by Butler therefor indicates that it was received as a partial payment and release on the condition that a release could be procured from the holder of the mortgage, which fairly shows that Butler at the time was not pretending that he had authority to accept the money in absolute part payment of the note.
We are persuaded that the court below erred in rendering judgment for the defendants. Its judgment is therefore reversed, .and the case remanded for further proceedings in accordance with this opinion.
Dostjíb, C.J., Pollock, J., concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
The appellant was convicted in .the district court of Elk county on eight counts of an information charging him with a violation of the prohibitory law. The first count set forth the offense as follows :
“The said defendant, Frank Shinn, having procured from the probate judge of Elk county, Kansas, a permit to sell intoxicating liquors in a certain building situate . . . , which said permit was then and there in full force and effect, did then and there unlawfully barter and sell to one George W. Pringle, a person in the habit of becoming intoxicated, one half-pint of whisky, the said defendant, Frank Shinn, then and there having good rerson to believe and knowing full well that said George W. Pringle was a person in the habit of becoming intoxicated. ...”
The second count, after alleging that appellant held a permit to sell intoxicating liquors in the manner as set forth in the first count, further charged that on a given date he sold to one George W. Pringle “one half-pint of whisky when he, the said Frank Shinn, had good reason to believe that the purchaser desired the same to use as a beverage.” The third and sixth counts, like the first,-alleged sales to persons in the habit of becoming intoxicated. The other counts, like the second, charged sales to persons who, the appellant had good reason to believe, desired to use the liquors as a beverage.
First. The. appellant moved the court below to quash ■ the information and each and every count thereof, for the reason that none of them stated that the defendant was a druggist, pharmacist, or an assistant pharmacist, and claimed that, as the section under which the information is drawn, the same being section 2459 of the statutes of 1901, provides that’no one but a druggist, pharmacist or an assistant pharmacist can be punished, it was necessary to allege in the information that the person who held the permit was one of the persons mentioned in such section; that to charge that the appellant held a permit did not sufficiently show that he was one of the persons who might be prosecuted under the provisions of said section. ¥e are compelled to disagree with appellant’s attorney upon this point. Under the statute, no one but a druggist, pharmacist or an assistant pharmacist can hold a permit, and charging that the appellant held such a permit was in effect charging that he was a person who, under the law, might lawfully hold such a permit. At least, we fail to see how the defendant could raise the question. If he held what only a druggist could lawfully hold, he must either be such druggist or by a fraud upon the probate judge have procured such permit, in which case he would not be heard to deny the fact charged.
Second. The motion to quash was directed to each and every count of the information separately, and appellant claims that, as to the first, third and sixth counts this motion should have been sustained, for the reason that these counts charge only that the person was in the habit of becoming intoxicated *at the time the information was filed. We do not think that this is a fair interpretation of the language of these counts, but that they fairly charge that the person was at the time of the sales complained of in the habit of becoming intoxicated.
Third. As to the second, fourth, fifth, seventh and eighth counts, which charge a violation of the law by sales to purchasers whom the appellant “had good reason to believe desired the same to use as a beverag6)’> appellant claims that the motion should have been sustained because the same did not contain any allegations that the pur-, chaser did not desire the liquors purchased for the named purposes and did not use the same for such purposes. In this contention we are constrained to hold with the appellant. The section of the statute under which the information is drawn seems, by a strict construction of the language used, to make it an offense for a druggist holding a permit to sell to any person whom he has reason to believe desires the liquors to use as a beverage, without regard to the purpose for which in fact the purchase is made ; but taking all of the provisions of the law together and considering its scope, reason, and purpose, we ■cannot say that the offense rests alone upon the druggist’s belief, and if the purchaser does, as a matter of fact, desire the liquors for use in any of the lawful methods, and so uses them, then it would be no offense to sell to him, even though the druggist believed that the purchaser’s purpose was to use them ■unlawfully.
As a general rule, in charging a statutory offense, it is sufficient to set forth the same in the language of the statute, yet this is not a universal or invariable rule. Elements of a statutory offense may be found in considerations arising from the general scope and purpose of the statute taken as a whole, and which, as a matter of course, was in the mind of the legislature when enacting the specific language of the law. These elements must be taken into consideration and be given place in the charging part of an information or indictment under such statute. In The State v. Gavigan, 36 Kan. 327, 13 Pac. 556, the court used this language:
“Where the statute simply designates the offense, and does not in express terms name its elements, the information must sometimes be expanded beyond the statutory terms.”
The act sought to be prohibited, and which is made criminal, is the selling of intoxicating liquors to one who wishes to use them as a beverage, the druggist at the time of the sale having good reason to believe that the purchaser desired them for such use, and not for the lawful use for which he was pretending to purchase them. Literally to interpret the language of the statute would make the druggist liable when selling liquor for a perfectly legitimate purpose, if he,, when making such sale, had reason to believe that the purchaser did not desire the liquors for such purpose ; that is, the druggist would become a criminal because of a belief which he entertained, or had. good reason to entertain, as to the proposed use of the purchaser of the liquors, when, as a matter of fact, the purchase was for an entirely legitimate purpose. It seems quite clear that the statute proceeds on the assumption that the purpose of the purchaser must be one to violate the law, and then grafts on that assumption the provision that the druggist must have good reason to believe that such purchaser desires it for such illegal use in order to complete the criminal act as to the druggist.
It cannot well be said that the belief entertained by the druggist would make him a criminal, when, as a matter of fact, the sale which he was making was perfectly lawful. So to construe the law would be likely to make of the most careful and conscientious of druggists the greatest criminals, for it is that class that are most alive with suspicion and most active with questions. The mere entertainment by the druggist of the belief that the liquors were to be used unlawfully would not make him a criminal if, as a matter of fact, they were being purchased for a lawful use. (Commonwealth v. Joslin, 158 Mass. 482, 33 N. E. 653, 21 L. R. A. 449.) It follows that the motion to quash should have been sustained as to these counts and that the conviction on them must -be set aside.
Fourth. It is next contended that the evidence was not sufficient to warrant the conviction of the appellant under the counts charging him with having-made sales to persons alleged to habeen in the habit of becoming intoxicated, and that the instruction of the court to the jury on this point was erroneous. This contention of the appellant is clearly presented by quoting an instruction which he asked' the court to give, the same being a's follows :
“Before you can convict the defendant of selling intoxicating liquor to a person alleged to be in the habit of becoming intoxicated, you must be satisfied from the evidence, beyond a reasonable doubt, that at the time of making such sale of intoxicating liquor, such person was in the habit of becoming intoxicated that is, that such person frequently drank to excess and became intoxicated whenever the temptation was presented and an opportunity was afforded him; that the practice of drinking until he became intoxicated was indulged in so frequently as to become a fixed habit with him.”
This instruction was given by the court, except that it omitted that portion printed .in italics. The attorney for appellant contends that the word “habit” in this connection must be construed to mean such a condition of mind or body caused by the customary and frequent repetition of a given act as. to become such an invariable rule or law of action in the person affected thereby as to make the act concerning which the habit appertains to become an. involuntary one, so that it would be repeated when ever the temptation was presented or the opportunity afforded. This contention is supported by an elaborate argument, and although the argument made is a plausible one we think it specious. “Habit of becoming intoxicated,” as used in the statute, means to become commonly or frequently intoxicated, and it is not necessarily applied to one who has so surrendered to habit that he must become intoxicated upon every occasion when opportunity shall be offered. In order for one to acquire the habit of becoming intoxicated, it is not necessary for him to drink to excess “whenever temptation was presented and an opportunity was afforded him” ; and we conclude, therefore, that the court was correct in striking out of the instruction asked as above the words it did, and that the evidence, going as it did to the extent indicated in this instruction, warranted the verdict of guilty upon the named counts so far as this matter is concerned.
Some minor objections are urged by appellant’s counsel which we have carefully examined, but find no reversible error therein. From the foregoing discussion, we conclude that the conviction of the appellant on the first, third and sixth counts of the information was correct and must be affirmed; that on the other counts his conviction was erroneous, and as to these the judgment of the court below will be reversed. The case is remanded for further proceedings in accordance with this opinion.
Dostbr, C.J., Pollock, J., concurring. | [
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Error from Cowley district court. | [
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Per Curiam:
This is an action in injunction brought' by the several plaintiffs against the city of Paola, J. W. Tatham, as city clerk, John F. Donahoe, as mayor, and Geo. W. Seaver, as treasurer of Miami county, to restrain the collection of a special assessment made on the separate property of each of the plaintiffs for the purpose of paying for macadamizing one of the streets of said city of Paola. The defendants demurred to the petition and the demurrer was sustained, and a' judgment rendered against plaintiffs for costs. The cause comes to this court on a case-made, attached to which is a certificate from the judge of the district court trying the cause certifying that it involves the tax law of the state and presents a constitutional question.
It appears, from the allegations in the petition and the statement of counsel for plaintiffs in error in their brief, that the city, in determining the necessity for such macadamizing, and in its appraisement and assessment, has in all particulars complied exactly with the statute ; but it is alleged that the statute, .or the portion thereof which confers on cities of the second class the power to make improvements and to levy and collect a special assessment for such purpose upon the abutting property, is in violation of the constitution of the United States.
Counsel have not referred us ■ to any special provision of that instrument which has been violated by this act of the legislature of Kansas, and we know of no section thereof which has been thus violated. The argument made by counsel is that other persons, whose property is adjacent to.that of plaintiffs, have more valuable improvements, and the .street thus macadamized would be of greater benefit to them than' it would be to Ms clients, some of whom, at least, have very little improvement upon their lots, and for that reason the levy is not equal. In reading the statute, however, it will be observed that, in making the appraisement and levying the assessment, the improvement on the property is not taken into consideration, but is excluded by the statute.
We are unable to tell from the petition whether this street has bfeen macadamized and the expenses therefor assessed by the city council against the property and certified by the clerk to the county treasurer, or what steps have been taken, except that the city council determined that such street ought to be macadamized and have had the property appraised and the cost apportioned to each lot. As stated by counsel in their brief, the city has followed the statute exactly.
. We think the contention of counsel on this proposition cannot be sustained. The statute provides for an equal assessment and levy of such expense on abutting property, regardless of improvements. We know of no reason why this law is unconstitutional, and, as counsel have pointed out none, and since the city council followed the statute, we assume that the court below ruled correctly in sustaining the demurrer. 1
The judgment will be affirmed.
Cunningham, ü-hhícnh, Lollock, JJ. | [
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The opinion of the court was delivered by
Greene, J.:
The appellant was complained of under section 80 of the crimes-and-punishment act (Gen. Stat. 1901, § 2071) :
“Every person who shall steal, take, and carry away any money or personal property or effects of another, under the value of twenty dollars (not being the subject of grand larceny, without regard to value) shall be deemed guilty of petty larceny, and on conviction shall be punished by imprisonment in the county jail not exceeding one year, or by fine not exceeding one hundred dollars, or by both such fine and imprisonment.”
The complaint charged:
“That on or about the 21st day of March, 1900, in the county of Harper, in the state of Kansas, Edward Bellamy did then and there unlawfully take, steal and carry away certain personal property and effects of the affiant, to wit, about forty pounds of barb-wire, of the value of two dollars, contrary to the statutes in such cases made and provided and against the peace and dignity of the state of Kansas.”
On the trial, the proof was that the property so taken and carried away was a strand of barb-wire, and at the time it was so taken was securely fastened to posts that were firmly set in the ground ; that it was one of several strands, and, before being so detached, was a part of a barb-wire fence that had been standing for several years.
The evidence also showed that the detaching of the wire and the asportation were one continuous act. When the state rested, defendant demurred to the evidence, and also filed a motion to discharge and one for a verdict on the evidence, all of which were separately overruled, and appellant excepted. He then introduced testimony, but it did not disprove the offense established by the state. The jury returned a verdict of “guilty, as charged in the complaint.” The defendant filed his motion for a new trial, which was overruled, and he appeals.
This conviction was under section 87 of the crimes- and-punishment act (Gen. Stat. 1901, §2080):
“If any person shall sever from the soil of another any produce growing thereon, or shall sever from any building, or from any gate, fence or other railing or inclosure, or any part thereof, or any material of which it is composed, and shall take and convert the same to his own use, with the intent to steal the same, he shall be deemed guilty of larceny in the same manner and of the same degree as if the articles so taken had been severed at some different or previous time.”
Is this information sufficient to admit the testimony offered and to sustain the conviction? Counsel for ap pellant have ably argued that it is not. The contention of the state is that section 87 only prescribes a rule of evidence by which simple larceny may be proved. With this contention we do not agree. The offense established by the evidence, under section 87, is not included in the general charge of petty larceny. It is not one of the grades of that offense. This section creates a different and distinct offense, although called larceny, and differs materially from simple larceny in one very essential particular. It is not necessary in the prosecution for a simple larceny to prove that the defendant converted the property stolen to his own use. If he stole and carried it away, with the intent to deprive the owner of the use of his property, he is guilty. This is not sufficient to sustain a conviction under section 87. Under that section it must be shown that the appellant detached the property and converted it to his own use, with the intent to steal it. The law presumes every one innocent; therefore one charged with a crime is presumed to know nothing concerning it except what is charged in the written complaint lodged against him, and he has a right to demand that the nature and cause of the accusation thus charged be clearly and specifically set out, that he maybe fully informed thereof. (The State v. Behee, 17 Kan. 404; The State v. Brooks, 33 id. 714, 7 Pac. 591.) Mr. Wharton, in his work on Criminal Law, volume I, section 364, says:
“Where the words of the statute are descriptive of the offense, the indictment should follow the language and expressly charge the described offense of the defendant, or it will be defective. In such case the defendant must be specially brought within all the material words of the statute; and nothing can be taken by intendment.”
Mr. Bishop, in his work on Statutory Crimes, in section 415, in speaking of larceny of things fixed to the realty, uses this language : “Still, in these cases, the indictment must follow any descriptive words which the statute may contain.” In the same section he gives the following examples illustrative of the force of this rule :
“Thus, it was in England provided by Stat. 2 and 3 Viet., c. 58, § 10, that, ‘if any person, etc., shall take, etc., the ore, etc., being in such mine,’ etc., he ‘shall be deemed, etc., guilty of felony, and, being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny ’; and it was ruled that the words ‘being in such mine’ should in some way be covered by the allegation. Therefore, where the indictment simply charged that the defendants, persons employed in a mine, at a place named, did steal ore, the property of the adventurers in the said mine, then and there being found, it was insufficient, as not showing the property to have been in the mine when stolen. (Reg. v. Trevenner, 2 Moody and R. 476. And see Archb. Crim. Pl. and Ev., 13th ed., 300, 301.) In like manner, when Stat. 4 Geo. 2, c. 32, made it punishable in any one to ‘steal, rip, cut or break with intent to steal, any lead, etc., being fixed to any dwelling-house,’ the words ‘being fixed to any dwelling-house,’ were important, and it was necessary they should be covered by the allegation.”
When the statute specifies certain acts, which if done in a particular way will constitute a crime, the pleader must bring his indictment fairly within the statute ; he must describe the offense either in the descriptive language of the statute, or in such language of his own as will, by a fair interpretation thereof, include the descriptive language used in the statute. It is always safer to follow the statute. No attempt was made in this case to do either.
The judgment of the court below will be reversed.
Johnston, Cunningham, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
William Herbert was prosecuted on a charge of burglariously entering the residence of Simon Gilson in the night-time with the intent to ravish Helen Louisa Gilson. He was convicted, and now insists that the evidence does not sufficiently connect him with the crime nor sustain the conviction, The testimony tends to show that Miss Gilson and her mother were sleeping in separate rooms in the second story of the house ; that about midnight Miss Gilson was awakened, and in the moonlight saw a man at her bedside ; that he tried to turn down the bedclothes and made an assault upon her; that she resisted vigorously, when he struck her with a club, which stunned and severely wounded her; that the mother, hearing the struggle, came to the assistance of her daughter; that the burglar struck the- mother several times, breaking her cheek-bone and some of her fingers, and then renewed the assault upon the daughter, who, although seriously wounded, with the assistance of her mother, repelled the attack and defeated his purpose. The burglar then demanded money, and, having secured a pocketbook and a watch, he left the house. While he was in the house there was no artificial light, and for that reason neither mother nor daughter observed his features, and they were unable to say whether he was a white or black man. They testified, however, that they recognized his form and clothes, and also identified him as the one who was in the room by his voice. This testimony, in connection with statements made by him after the offense was committed, and of his presence in the vicinity of the Gilson home on that night, are sufficient to uphold the verdict.
Considerable complaint is made of the identifying testimony given by the witnesses named. Miss Gil-son testified, over objection, that the defendant was the man who made the assault. In view of her means of information, which have already been stated, the testimony was competent. She was subject to cross-examination as to her means of knowledge, and the weight to be given her testimony was for the jury. The light which came through the windows was sufficient to enable her to see the figure, movements and clothing of the burglar; and a still better means of identification was his voice, which she subsequently recognized. This is the principal and most reliable identifying evidence of crimes committed in the darkness or on persons who are blind; and in such cases the rule is that a witness may testify that he recognized the accused by his voice. Here the matter of identity did not rest on the voice alone, but was founded on other personal appearances and peculiarities ; and the circumstances and character of the assault would, in the nature of things, make a lasting impression on her, and give her a clear conception of identity. (Commonwealth v. Hayes, 138 Mass. 185; The People v. Willett, 92 N. Y. 29; The State v. Kepper, 65 Iowa, 745, 23 N. W. 304; Price v. The State, 35 Tex. Crim. R. 501, 34 S. W. 622; Givens v. The State, 35 id. 563, 34 S. W. 626; Underh. Crim. Ev. § 56.)
E. F. Caldwell, the postmaster at Lawrence, testified in regard to statements made to him by the defendant, and it is contended that they were privileged and should have been excluded. Caldwell is an attorney, and several years before had acted in that capacity for the defendant. He was not employed by the defendant at this time, nor does it appear that there was an anticipated employment; indeed, the testimony of the defendant makes it clear that he had employed other counsel, in whose ability he had greater confidence, and that he expected that the attorney now employed would accomplish an acquittal, which Caldwell had previously failed to do. To make the communications between them privileged, the relation of attorney and client must exist, and this the testimony fails to establish. It is true that he was a former client of the witness, but that relation had long since ceased, and it does not appear that there was any artifice used in drawing out the statements, or that the defendant was seeking professional advice. There was no suggestion of a retainer or the payment of a fee, nor was there any suggestion of employment. While the payment of a retainer or fee is the best evidence that the relation of attorney and client exists, such payment is not absolutely essential. If an attorney is consulted, in his professional capacity, and he allows the consultation to proceed, and acts as adviser, the fact that no compensation was paid, or that the consultation was ended and the relation broken, would not remove the seal of secrecy from the communications made. Here, however, it was manifest that the defendant talked with the witness as a neigh bor and friend, and was only endeavoring to learn from Mm what public opinion was as to his connection with the offense. The court ruled correctly in admitting the evidence.
The testimony of John Rathbone is complained of, but the ground of objection not having been stated to the district court, it cannot be made a basis of an assignment of error. Other objections to testimony are noted, but we find nothing in them that is material or which requires comment.
It is finally contended that the entrance to the house was really through an open window, and did not constitute a “breaking” within the meaning of the statute. It appears that there was a wire screen in the window, and upon that the window rested; that the screen was removed and thrown to the ground, and through the opening thus made an entrance was effected. The removal of the screen, so fastened, was sufficient to constitute a burglarious “breaking.” (The State v. Powell, 61 Kan. 81, 58 Pac. 968; The State v. Moon, 62 id. 801, 64 Pac. 609.)
The judgment of the district court will be affirmed.
Smith, Greene, Ellis, JJ., concurring. | [
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■The opinion of the court was delivered by
Greene, J.:
Zalmon Kincaid, Robert Kincaid and Joseph Kincaid were engaged in the banking business at Pleasanton, Kan., under the firm name of Hood & Kincaid. Kincaid & Bro. was a trading partnership ■composed of Zalmon Kincaid and Robert Kincaid, and ■doing business at Mound City. There seems to have been another firm doing business as Kincaid & Co., but there is no evidence as to who composed this firm, ■and it is probable that it was fictitious.
Van Buskirk & Son were indebted to Hood & Kincaid to the amount of $1650, and in some smaller amount to Kincaid & Bro., the exact amount not being disclosed by the evidence. Van Buskirk & Son failed, and afterward deeded their homestead to Robert Kincaid, who was a member of Hood & Kincaid and also Kincaid & Bro., in satisfaction of the debts they owed Hood & Kincaid and Kincaid & Bro. Notes to the amount of $1650, held by Hood & Kincaid against Van Buskirk & Son, were delivered to Robert Kincaid .and by him to Van Buskirk & Son. In lieu of these notes, Robert Kincaid or Kincaid & Bro. executed to •Hood & Kincaid a note or notes in the sum of $1650, to take the place, on the books of the bank, of the notes of Van Buskirk & Son. From the evidence, this'was not intended to be an actual obligation. It ■was understood that when this real estate could be .sold $1650 of the proceeds should be paid to Hood & Kincaid; that the notes executed to Hood & Kincaid at the time the property was deeded to Robert Kincaid should be delivered to Kincaid & Bro. or to Robert Kincaid, and that the remainder of the proceeds should go to liquidate the indebtedness of Van Buskirk & Son to Kincaid & Bro.
It was afterward thought advisable to trade the Van Buskirk property to one Swift for the real estate in-question. This was done, and the title thereto taken in the name of Robert Kincaid. Soon after the execution and delivery of this deed, and before it was recorded, Robert Kincaid got the Swifts to execute a deed to Joseph Kincaid, and Robert destroyed the deed executed to himself. This latter deed, when executed, was forwarded by Robert Kincaid to Joseph Kincaid in the following letter :
“Mound City, Kan., September 3, 1891.
“Mr. J. Kincaid: (Swift house. $1650.)
“I had this deeded to you. It is a good house and now rents for $9 per month, to a good man, I think. The man; Mr. Wilbur, moved into it May 1, 1891. I have never collected any rent, but he can pay it at any time. The property cost $2500. I traded the Van Buskirk property, and he (Swift) gave me $725-to boot. This we got from Van Buskirk when he busted up. Most of it was H. & K., and the balance K. & Bro. Go over to the bank and take up K. & Bro. stock notes to the amount, and figure interest to May 1, 1891, as this is when the rents commenced. This property is clear property, and if any property sells in this town it will.- ... K. & Bro.”
The evidence shows that Joseph Kincaid delivered this deed to the bank, but did not demand or receive the Kincaid & Bro. notes as directed. This was the condition of the title to this land, a-nd of the business and transactions relating thereto, at .the time Hood &. Kincaid failed and made an assignment to one of the defendants in error.
On August 5, 1893, the plaintiff in error, Rhodes, commenced an attachment action against Zalmon Kincaid and Robert Kincaid, partners as Kincaid & Bro., and attached the real estate in controversy, in which action he recovered judgment and preserved his attachment lien, and on August 7,1895, he caused the real estate to be sold thereuuder, and on November 2, 1895, on motion of Spears, the sale was set aside.
On June 26, 1894, the defendant in error Spears commenced his action in the district court of Linn county against Robert Kincaid, Zalmon Kincaid, partners as Kincaid & Bro., and also against Robert Kincaid,. Zalmon Kincaid, and Joseph Kincaid, partners as Kincaid & Co., upon certain notes executed by Kincaid & Bro. and Kincaid & Go., and also attached the real estate in controversy, in which action he recovered a judgment and an order to sell the attached property. The following was the judgment of the court:
“Now, on this 8th day of October, 1894, this causé «duly came on for trial; and the plaintiff appeared by his attorneys, Mathews & Mathews, the defendants failing to appear in person or by attorney for them, or either of them ; and the court, being first duly advised in the premises, does find, adjudge and decree the said defendants, Robert Kincaid, Zalmon Kincaid, and Joseph Kincaid, and each of them, to be indebted to the said plaintiff, Daniel Spears, in the sum of $537.78, and interest at the rate of ten per cent, from the date of this judgment, and cost of this action. The court further decrees and preserves the attachment of real estate described as follows, to wit: Lot ©leven (11), and west one-half of lot twelve (12), in block twenty-two (22), in the city of Mound City, Linn county, Kansas. The court further orders that said real estate be sold in ten days, as the property of Joseph Kincaid, and the proceeds thereof applied on this judgment.”
Under this judgment an order of sale was issued and the property sold, and purchased by Spears. After the sale and before the confirmation, Morse, as receiver of Hood. & Kincaid, commenced an action against Spears to quiet the title to said real estate in him, as the receiver of Hood & Kincaid, and to set aside the proceedings had by Spears with reference to the real estate, and secured a temporary injunction restraining Spears from having the sale confirmed until the final determination of that litigation. To this Spears filed a general answer, presenting an issue on all facts set out in the petition. Upon the trial Spears’s contention was maintained by the court, Morse was defeated, judgment rendered for Spears, and the temporary injunction dissolved. A sheriff’s deed was executed and delivered to Spears.
It is contended by plaintiff in error that the Van Buskirk property was deeded by Van Buskirk & Son to Robert Kincaid in trust for Kincaid & Bro. The evidence does not support this contention. The evidence is that it was deeded to Robert Kincaid in trust for Hood & Kincaid and for Kincaid & Bro. ; that Van Buskirk & Son owed Hood & Kincaid $1650 and Kincaid & Bro. a small amount, and that this property was deeded to Robert Kincaid in payment of both debts. Afterward, and before any attachment proceedings were commenced, that property was traded by Robert Kincaid for the Swift property, which is now in controversy, and $750 in cash. From the evidence, it seems that Kincaid & Bro. got and kept the $750. The Swift property was first deeded to Robert; afterward that deed was destroyed and Swift made another deed to' Joseph Kincaid, but this property was held for the same purpose for which the Van Buskirk property was held,runless Kincaid & Bro. got the amount of the Van Buskirk indebtedness to them, by the cash payment of $750, which Robert "received in that trade. We think the destruction of the deed by Robert Kincaid did not destroy his title to the property; nor did the deed from Swift to Joseph Kincaid vest any property in Joseph. The Swifts had no title. When the deed to the Swift property was taken it would seem that Kincaid & Bro. did not consider that they had any further interest in that property. Robert forwarded the deed to Joseph, with instructions to turn it over to Hood & Kincaid, and take up what was, called the stock notes given by Kincaid & Bro. to Hood & Kincaid to represent the Van Buskirk notes on the books of Hood & Kincaid.
There is no evidence in the record as to the amount of the indebtedness of Van Buskirk & Son to Kincaid & Bro., nor is there any evidence that they did not receive payment in full of that indebtedness. It was incumbent upon plaintiff in error to show that Kincaid & Bro. still retained some interest in that real estate, and to do that it was necessary for him to show the amount of the indebtedness of Van Buskirk & Son to Kincaid & Bro. and that it had not been settled. Upon these questions the court found against the plaintiff in error, and there is some evidence to sustain *that finding ; therefore this court will not disturb it.
The defendant in error Morse files his cross-petition in error in this case, claiming that the judgment of the court below is not supported by the evidence. The record shows that the defendant in error Spears sued Kincaid & Bro. and Kincaid & Co. and attached this real estate as the property of one or both of these firms. In this action he recovered a personal judgment against the members of said firms and against the firms, and an order to sell the attached property as the property of the defendants in that action and apply the proceeds to the payment of his judgment. An order of sale was issued and the property sold, and purchased by Spears, and.the sale was confirmed. While the record was in this condition, and before Spears received a deed from the sheriff, Morse, as receiver of Hood & Kincaid, commenced an action in the district court of Linn county against Spears to set aside his pretended attachment and judgment lien and his claim to the real estate, and to quiet the title thereto in Morse, as x’eceiver of Hood & Kincaid, and also asked for a temporary injunction restraining Spears from securing a sheriff’s deed to the property during the pendency of that litigation. To the petition Spears filed a general answer, setting out his attachment action, his judgment, order of sale, and-confirmation, and denying any right of Morse as such receiver to said real estate.
A final trial was had and a general judgment in favor of Spears and against Morse, as receiver of Hood & Kincaid. In the present action, Spears pleads that judgment as a final adjudication of the rights as between himself and Morse to the property in question. We think, this judgment must be accepted as final and conclusive upon Morse as receiver of Hood & Kincaid. It is, however, suggested that the court below in that action only dissolved or set aside the temporary restraining order. The record does not so show, but it does show that it went to trial on its merits and a final judgment was rendered for Spears.
It is also objected that the judgment upon which Spears sold the real estate in question was not sufficiently formal. We have examined the record and find that no objections were made to its admission in evidence on the trial of this case, on that or any other grounds. We have also examined this judgment, and, while it is informal, it contains the essentials.
Mr. Freeman, in his work on Judgments, section 50, says:
“I think, however, that from the cases this general statement may be safely made: That whatever appears upon its face to be intended as the entry of a judgment will be regarded as sufficiently formal if it shows (1) the relief granted, and (2) that the grant was made by the court in whose records the entry is written. In specifying the relief granted, the parties against and to whom it is given must, of course, be sufficiently identified.”
There is evidence in the record supporting the findings and judgment of the court below. The judgment will be affirmed.
Johnston, Cunningham, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action of replevin brought by McCray to recover thirty head of cattle, based upon an agistor’s lien. It was brought against H. C. Jackson, the owner of the pasture in which the cattle grazed during the summer and fall of 1896, Henry Waldo, the owner of the animals, the railway company, in whose pens they were confined for shipment at the time the action was brought, and W. O. Way-mire, cashier of the Madison Bank.
In a written contract made in April, 1896, McCray agreed to pasture for Waldo 1125 head of cattle during the pasturing season of that year, and was to receive, as compensation therefor, the sum of $1.75 per head. The cattle were to be kept in what is desig nated as the “ Jackson pastures,” in Greenwood and Chase counties; The contract contained the following provision:
“Both parties hereto also agree that from the first money that shall become due under the terms of this agreement, as hereinbefore specified, to said second party [McCray] by said first party [Waldo] , the sum of $1075 shall be paid H. C. Jackson, the owner of the land mentioned ; such payment being credited as if paid by the first party to the second party of this agreement.”
The terms of this agreement were approved by Jackson in writing at the bottom of the contract.
It appeared upon the trial that during September and October, 1896, McOray voluntarily delivered to Waldo all of the cattle received by him under the contract except the thirty head of steers in controversy herein and one more ; and this was done without exacting from Waldo any part of the amount due for the pasturage. The cattle in controversy were worth, at the time this action was commenced, about thirty dollars per head. A considerable part of the cattle received by McCray for pasturing were delivered by McCray to Waldo against instructions by Jackson that possession should not be' surrendered until his claim for pasturage was paid.
On September 25, 1896, Jackson assigned to the Madison Bank, by an order on Waldo, in writing, the $1075 due him for pasturage under the written contract herein referred to, and a few days later Waldo agreed, in writing, to pay that amount to the Madison Bank out of the first money coming to J. D. McCray under the contract for pasturing. On October 15 following, Waldo gave written authority to Waymire, cashier of the Madison Bank, to collect and dispose of any and all of the cattle in controversy, directing him to pay out of the proceeds $804.50 of the amount due H. C. Jackson and J. D. McCray under the provisions of the contract between McCray and himself, dated April 17, 1896.
We are well satisfied that, under the foregoing facts, the plaintiff below ought not to recover. Counsel for plaintiff in error contend that the $1075, which was to be paid to Jackson out of the first money to become due under the terms of the written contract, was not a debt of McCray’s, and that the same did not rest upon his part of the contract for payment. They state the case thus:
“Waldo at any time could have tendered McCray his part of the pasturage and recovered all the cattle, and McCray was only required to keep enough cattle to secure his portion of the pasturage. He had no obligation to Jackson to keep any more. Jackson chose to take Waldo instead of McCray as his debtor for the pasture that he rented to McCray. He or his assignee had a right to the $1075 as against Waldo, but not as against McCray.”
By the terms of the agreement between Jackson and McCray, above quoted, both Waldo and McCray recognized the existence of an agistor’s claim in Jackson to the amount of $1075. He was the owner of the pasture. By the wrongful acts of McCray, his lien was ■divested by the removal of the cattle until but thirty-one head remained, and these were taken possession of by the former and held until Jackson, acting under the direction of Waldo, took possession, without McCray’s consent, and delivered thirty head of them to Waymire, cashier of the Madison Bank. By the conduct of McCray, there was nothing left except the thirty head of cattle in controversy, to which the agistor’s lien of Jackson and himself attached at the time this action was brought.
If the judgment below be affirmed, McCray would hold these cattle or the proceeds subject to the prior claim of Jackson; for by the contract McCray is es-topped from disputing the prior right of Jackson to such proceeds. This being true, a denial of the right of recovery to McCray avoids a multiplicity of suits and accomplishes an equitable and just result, agreeable to the contract made by the parties themselves. It would be a breach of the agreement to permit McCray to recover the proceeds of these cattle in this action, for, a redelivery bond having been given, his recovery would be in money, and then say that such proceeds could be withheld by him from application to the payment of Jackson’s claim. The contract reads that the first money to become due shall be paid to Jackson. To permit McCray to recover would be to apply the first money paid for pasturing the cattle in violation of the terms of the contract. Furthermore, we think the contract is to be construed that, as between Jackson and McCray, there was an assignment by the latter to the former of the proceeds to the amount of $1075, the. payment of which was precedent to McCray’s claim.
With this view of the case, the judgment of the court below will be reversed and a new trial ordered.
Doster, C. J., Pollock, J., concurring. | [
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Per Curiam:
This is a proceeding brought by the state, on the relation of the county attorney of Cherokee county, to oust the Galena Water Company from exercising the functions and powers of a- corporation under the laws of the state. The failure of defendant to make and file with the city clerk a sworn report, as required by section 5, chapter 82, Laws of 1897 (Gen. Stat. 1901, §657), is made the basis, of the proceeding brought against it. Section 6 of the act imposes a penalty on the officers of a corporation of a fine of not less than $500 nor more than $1000 for neglect or refusal to make the statement required by section 5, and provides further that the corporation shall forfeit its right to collect its charges for water furnished to the municipality, by ■ such failure or neglect. Nowhere in the law is the penalty of forfeiture of corporate franchises inflicted for neglect of the duty mentioned. In Leavenworth v. Water Co., 62 Kan. 643, 64 Pac. 66, this court held that the making of the report may bb compelled by mandamus. Such remedy exists in addition to the fine and the forfeiture of its right to collect water-rents, provided for in section 6 of the act.
There are adequate and available remedies other than the forfeiture of corporate franchises. This being so, it has been 'frequently decided by this court that a proceeding like the present will not lie. (The State, ex rel., v. Wilson, 30 Kan. 661, 2 Pac. 828; Tarbox v. Sughrue, 86 id. 225, 12 Pac. 935; Weston v. Lane, 40 id. 479, 20 Pac. 260, 10 Am. St. Rep. 224; City of Topeka v. Water Co., 58 id. 349, 49 Pac. 79.)
The demurrer to the petition will be sustained.
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The opinion of the court was delivered by
Pollock, J.:
This action was brought by H. J. Woolacott against O. E. Case and George L. McNeal to recover the contract price of a shipment of wine made by plaintiff from Los Angeles, Cal., to defendants at Wichita, Kan. A demurrer to the petition was sustained, and, plaintiff electing to stand by his pleading, judgment was entered against him for costs, and he brings error.
The petition alleges, in substance, that plaintiff sold and delivered to defendants, free on board cars of the Southern Pacific Railway Company at the city of Los Angeles, Cal., about December 16, 1893, pure California wines of the value of $1704.76; that plaintiff received from said railway company a bill of lading showing thereon the following words : “J. W. Woolacott, notify C. E. Case.” Plaintiff alleges these words to mean that in the common course of business the goods were to be delivered by the connecting carrier at Wichita to C. E. Case upon presentment of the bill of lading by the said C. E. Case. The petition further alleges that prior to the shipment it was agreed between the parties that the bill of lading and four notes equal in amount, evidencing the purchase-price of the wine, due in 30, 60, 90 and 120 days from date, should be forwarded to the Wichita National Bank, Wichita, Kan.; that said notes should be executed by defendants Case and McNeal, the bill of lading delivered, and the notes returned to plaintiff at Los Angeles, all of which was done. This action is based upon the notes so given.
Whether the sale and delivery of the wine, under the allegations of this petition, was a sale and delivery in California or in Kansas, as we view this case, we find it unnecessary to decide. In the absence of proof, this court will presume the laws of California to be the same as the laws of this state. This presumption extends to the statutory as well as the common law. (Cavallaro v. Texas & Pacific Ry. Co., 110 Cal. 348, 42 Pac. 918; Chapman v. Brewer, 43 Neb. 890, 62 N. W. 320; Meuer v. Chi. M. & St. P. Ry. Co., 5 S. Dak. 568, 59 N. W. 945, 25 L. R. A. 81.)
The question for our determination is whether the laws of this state preclude plaintiff from a recovery, upon the facte alleged in his petition. Every presumption is in favor of the validity of a contract. It will never be presumed that an act done is in violation of the law. The contrary presumption will be indulged in, and its invalidity must be shown. Intoxicating liquors may be sold in this state for medical, mechanical, scientific and sacramental purposes. As the sale alleged might, under certain restrictions, have been made under the law, it will be presumed to have been so made until the contrary appears. Mr. Black, in his work on Intoxicating Liquors, section 250, says:
“In an action to recover the price of liquors sold, it is not incumbent upon the plaintiff, as a part of his case, to -prove that he was duly authorized to make the sale, or that the sale was made in conformity to the restrictions of the law. Illegality, in such a case, is matter of defense. And if the defendant would escape liability on this ground the burden is on him to allege and prove that the sale was contrary to law.”
This is an action founded on promissory notes. These notes import a consideration. Mr. Black, at section 257, says:
“Where a plaintiff’s cause of action is upon a promissory note, the burden is upon the defendant to show by proof the illegality of the contract, that constituting his defense to the action. If, under the statute, all sales of liquor within the state are illegal, he will establish his defense by merely proving that the consideration of the note was the price of liquors sold in the state. But where the statute contains exceptions, as authorizing sales by persons holding licenses or permits, or allowing manufacturers to sell for exportation only, then' the burden is upon the defendant to satisfy the jury, by direct or circumstantial evidence, that the plaintiff is not within the excepted classes or that the sale was not made for the excepted purposes.” (Craig v. Proctor, 6 R. I. 547; Brigham v. Potter, 14 Gray [Mass.] 522.)
As this sale of wine might, under certain conditions and restrictions, have been lawfully made under the laws of this state, and as it is presumed that the laws of California are the same as those of this state, it follows that the sale, wherever made, will be presumed to have been made in compliance with the restrictions imposed by law.
The judgment must be reversed, with instructions to overrule the demurrer.
Doster, C.J., Smith, Ellis, JJ., concurring. | [
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Error from court of appeals, northern department. | [
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Per Curiam:
This action was brought in the district
•court of Franklin county by Belle Saville, one of the heirs at law of Maria Saville and L. W. Saville, against Bessie Saville and others, as heirs of said' Maria and L. W. Saville, to partition certain real -estate belonging to said estate. There seems to have been no dispute between the parties as to their re-^ spective interests. It was admitted that plaintiff in' error Bessie Saville inherited seven-twelfths of the, real estate, and that the remaining five-twelfths belonged to the other heirs, as alleged in the petition; for partition. The question litigated was whether Bessie Saville had ousted her cotenants, and was,¡ therefore, chargeable with the full rental value of said property from the date of ouster until judgment was 'rendered in this action.
The cause proceeded to trial upon the petition, and commissioners .were appointed, to partition the real estate according to the respective interests of the parties, or, in case a partition could not be had without manifest injury, then to appraise the property and make a return of their proceeding into court. It was found that the real estate could not be partitioned. It was then appraised and an order issued to the sheriff to sell the, same in accordance with the provisions of the statute. Under this order, the sheriff sold the real estate and made a return of his order, under which the sale was confirmed and deeds ordered executed to the purchasers. At the time the commissioners were appointed the court appointed C. B. Mason referee, with an order to make findings and report to the court the amount of taxes paid and rents collected by the different parties. Under this order the referee made some twenty-five different findings of fact, which generally seem to have been outside of the order of reference, one of which is:
“That Bessie Saville, the plaintiff in error, through her guardian, J. C. Cooper, on January, 1890, ousted the other heirs from the real estate and took exclusive possession for his ward, Bessie Saville, and thereafter, through her guardian, retained said real estate, renting and .collecting rents and making repairs.”
This report was returned into court and, without objection,-was confirmed. Afterward, and on April 5, 1899, the court again referred the question of rents and profits to the referee, and ordered that he make his estimate on the basis of annual balances from July, 1890, reckoning interest on balances at the rate of six per cent, per annum for such periods. It appears from the record that this order was made on the theory that Bessie Saville had ousted her cotenant,, and, therefore, was chargeable with the actual rental value of the property from the date of the ouster, and the reference was for the purpose of ascertaining what that rental value was and striking the annual balance. This is as nearly the object of such reference as can be ascertained from the very unsatisfactory record brought to this court.
The plaintiff below,' Belle Saville, and the defendants Roy Saville and W. H. Martin, on the 5th day of April, 1899, asked permission of the court so to amend the plaintiff’s petition as to allege an ouster by Bessie Saville against Belle Saville and the other heirs. This was permitted by the court, over the objection of defendant Bessie Saville. Bessie Saville was a minor, and in the action F. A. Waddle was appointed guardian ad litem, and he appeared for her. In .her answer to the petition, she alleges a tax sale of the lots in controversy to J. O. Cooper, her guardian; that upon his death one J. C. Stephens was appointed guardian for her, and, after the death of Cooper, said J. C. Stephens took actual possession of this real estate, under and by virtue of said tax deed issued to her former guardian, J. O. Cooper, and that she has ever since held such possession, and had paid the taxes and assessments levied against the land. Upon the final hearing, the court charged to the account of Bessie Saville the full amount of the rental value of the property, and also found and rendered a judgment against her for a balance over and above her interest in the real estate to the amount of .about $200.
Upon the amendment of the petition above referred to, and the rendition of judgment herein, the plaintiff in error demanded a new trial as a matter of right, as in case of ejectment. This was refused by the court. A motion for a new trial was regularly made, which was overruled by the court, to which Bessie Saville excepted, and undertakes to prosecute this proceeding in error.
From this record, it appears that Bessie Saville has been most unfortunate. Her interest in the estate seems to have been frittered away by her guardian, and when she got into litigation she was not more fortunate. It is doubtful if the taking exclusive possession of the real estate by her guardian, under a tax deed, would constitute an ouster on the part of Bessie Saville, or if she could be charged with the wrongful or illegal acts of her guardian. But when she was brought into court and required to answer the petition of plaintiff below, which did not plead an ouster, or any facts under which an ouster could be proved, her guardian ad litem answered in the case, pleading an ouster for her, setting up the fact that she had taken exclusive possession of the real estate under a claim or title through a tax deed, and had ever since remained in possession. This allegation was sufficient for the court to find that Bessie Saville had actually ousted her cotenants, and was therefore chargeable with the actual rental value of the property.
It is charged by the plaintiff in error that the court erred in refusing to grant her a new trial, as a matter of right, upon the amendment of plaintiff’s petition, alleging an ouster. The contention that this changed the nature of the cause of action from a partition to one in ejectment cannot be sustained. There seems to be no ground whatever for this contention. There was no judgment in ejectment rendered, nor was this the purpose of the amendment. Prior to the time the pe-1 tition was amended this real estate had been sold, the sale confirmed, and deeds made.
We receive very little assistance from counsel for plaintiff in error in determining the rights of the' parties in this litigation. In his brief there are no specifications of error, as required by the rules of this -court. He says ‘ ‘ all the errors were pointed out by our motion for a new trial.” In turning to this motion for a new trial, we find that it is based upon twenty-three different grounds. This is too indefinite to assist the court in examining the record and in ascertaining whether error has been committed. We have examined this record for the purpose of ascertaining if there existed any grounds for reversal, but find none.
In addition to this, as has been said, Bessie Saville is a minor. F. A. Waddle was her guardian ad litem; he is not the plaintiff in error, but error is prosecuted by Bessie Saville and by J. P. Stephens, guardian of Bessie Saville. Stephens was guardian of Bessie Saville and her property, but not her guardian ad litem, and she could only appear in this court by her guardian ad litem.
The judgment of the court below is affirmed.
Cunningham, Gkeene, Pollock, JJ. | [
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The opinion of the court was delivered by
Pollock, J.:
Appellants were arrested and tried on the charge of grand larceny in the stealing of a saddle, convicted of petit larceny, and now appeal to this court. The sole claim of error relied on for reversal by appellants arises on the instructions of the court to the jury and the refusal to charge as requested by defendants.
It is contended by counsel for appellants that the taking of the saddle stands admitted in the record. The defense relied on is that it was taken in jest, for a temporary purpose, with the design of returning it to the owner, and that the trial court erred in not charging the jury, as requested by appellants, on this theory of the defense. There would seem, from the the briefs filed on behalf of the state, to be no contention as to the right of appellants to the charge requested, except on the one ground urged, that the taking of the saddle does not stand admitted in the record, but was denied by appellants on the trial, and, as a consequence, there was no testimony on which to base such a charge.
An examination of the testimony found in the record shows that the appellants admitted upon the. trial the taking of the saddle from the horse of the owner, Moran, and the placing of the same upon a horse ridden by one of the appellants, and that the conflict in the testimony arises on the proposition as to whether the saddle was left by appellants at the place where Moran’s horse was hitched, as claimed by them, or whether it was taken a short distance from this place and only returned by appellants when charged with the theft, as testified to by witnesses for the state. However, the original taking is admitted. The carrying away, or the attempt to carry the saddle away, is the disputed point in the testimony.
The guilt or innocence of appellants depends on the presence or absence of a felonious intent in their minds at any time while in the possession of the saddle to deprive the owner permanently of his property and convert it to their own use. As was said by Chief Justice Horton, in In re Mutchler, Petitioner, 55 Kan. 164, 40 Pac. 283 :
“A felonious intent means to deprive the owner, not temporarily, but permanently, of his own property, without color of right or excuse for the act, and to convert it to the taker’s use without the consent of the owner.” (See, also, Schultz v. The State, 30 Tex. App. 94, 16 S. W. 756; Mitchell et al. v. The Territory of Oklahoma, 7 Okla. 527, 54 Pac. 782; People v. Brown, 105 Cal. 66, 38 Pac. 518.)
For the failure of the trial court to instruct upon this theory of the defense, its judgment must be reversed.
Poster, C. J., Cunningham, J., concurring. | [
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Error from Reno district court. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action by the executors and legatees of the estates of M. L. Eobinson, deceased, and of M. L. Eead, deceased, to quiet title to a tract of land in Cowley county as against Gladys M. Hargis, H. C. Hargis, and James McDermott, or to be subrogated to the rights and interests of the Mutual Benefit Life Insurance Company, the original holder of a mortgage for $800 on the land.
On January 1, 1884, Sabrina Merydith was the owner of the land, and, with her husband, executed a mortgage thereon to the insurance company for $800, payable five years after date. On February 2, 1887, the land was conveyed by the Merydiths to M. L. Eobinson and M. L. Eead. Eobinson died in 1887, and Eead died in 1891. Before the death of Eead, and in 1889, George W. Eobinson, acting as the agent of the executors and legatees of M. L. Eobinson, deceased, and of M. L. Eead, paid off the $800 mortgage of the' insurance company, and obtained a cancelation of the same and a discharge of the mortgage lien. Before that time, and in 1886, O. M. Stewart obtained a judgment for $720 against the Merydiths, who were then the owners of the land, and, also, against F. H. Servis and Peter Thompson, who were •sureties for the debt for which the judgment was rendered. Afterward, Servis, the surety, paid to Stewart the amount of the judgment and obtained an assignment of the same to his attorney, James McDermott. M. L. Robinson, who was then living, acted as the •agent of Stewart in receiving payment from Servis and in delivering to him the assignment of the judgment.
When George W. Robinson paid off the mortgage of the insurance company he had no actual knowledge of the Stewart judgment. It was kept alive by the issuance of executions from time to time, and upon one issued in 1893, at the instance of H. C. Hargis, who was acting as attorney for James McDermott, the assignee of the judgment, the land was sold to Gladys M. Hargis for $1200. The judgment with interest then amounted to more than the purchase-price of the land, and only the costs of the execution sale, to wit, $56.40, was paid into court. The sale was confirmed by the court and a deed issued to the purchaser in November, 1893, and she has been in possession of the land since that time. Upon the facts of the case, the court held that the plaintiffs were not entitled to have their title' quieted as against Gladys M. Hargis, but also held that they were entitled to be subrogated to the rights of the mortgagee under the mortgage made by the Merydiths to the insurance company. The defendants in the court below contended that the right of subrogation did not exist and bring the case here for review.
Under the findings of the court, Gladys M. Hargis ■acquired a good title to the land in controversy through the execution sale and the sheriff’s deed, and the only question remaining is whether the plaintiffs below were entitled to be subrogated to the rights of the mortgagee. The Stewart judgment was a valid lien on the Merydith land when Robinson and Read purchased it, and also when the mortgage debt was paid. It cannot be said that the purchasers were without knowledge of the judgment, as the uncontradicted testimony was that M. L. Robinson not only had personal knowledge of its existence, but that he also knew of the assignment of the same to McDermott. Besidesj the judgment,was a matter of record, and all subsequent purchasers are deemed to have had notice of it and to have taken the land subject to the lien of the judgment. If it were granted that the actual knowledge of Robinson was chargeable to his heirs, successors, and associates, the fact remains that if the other parties to the transaction of purchasing the land and paying the mortgage debt of the insurance company had examined the record they would have learned of the existence of a valid judgment lien, and they could have retained out of the purchase of the land a sum sufficient to have paid off the judgment lien. There was no direct assumption of liens by Robinson and Read, but they are deemed to have taken it subject to valid liens that were of record, and they cannot plead ignorance of liens which an examination of the records would have revealed. Ordinary care required an examination of the records, and where persons neglect to avail- themselves of the appointed means of information, they .are not in a good position to appeal for equitable relief, as equity does not encourage or reward negligence.
If we should ignore the actual notice which was had of the judgment, and should assume that the payment and cancelation of the mortgage were to prevent a sale of the land and protect the title which the parties acquired from the Meredyths, we would still be unable to apply the doctrine of subrogation. It is a doctrine which is founded in pure equity and benevolence, only to be applied where it will promote justice, and is never enforced at the expense of innocent parties who have acquired intervening rights. When Gladys M. Hargis purchased the land at the execution sale the record showed that the mortgage had been paid and canceled and the lien of the same discharged. She appears to have been a bona fide purchaser, and, while the sum of money paid by her was not large, there was so much of an investment and such a change of position that it would have been inequitable to enforce subrogation in favor of parties so negligent in the protection of their own rights. This court has made a liberal application of the doctrine of subrogation, but it has never enforced it as against those holding intervening rights and liens, nor where it would lire judicially affect the rights of innocent parties. (Richards v. Griffith, 92 Cal. 493, 28 Pac. 484, 27 Am. St. Rep. 156; Persons v. Shaeffer, 65 id. 79, 3 Pac. 94; Gerdine v. Menage, 41 Minn. 417, 43 N. W. 91; Ahern v. Freeman, 46 id. 156, 48 N. W. 677, 24 Am. St. Rep. 206; Bunn v. Lindsay, 95 Mo. 250, 7 S. W. 473, 6 Am. St. Rep. 48.)
We think the court ruled incorrectly in holding that the defendants in error were entitled to be subrogated to the rights of the Mutual Benefit Life Insurance Company and, therefore, the judgment will be reversed and the cause remanded, with instructions t& enter judgment in favor of the plaintiffs in error.
Doster, C. J., Smith, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Doster, O. J.:
This was an action of mandamus to compel the canvass of a vote for mayor and the issuance of a certificate of election. The peremptory writ was allowed by the court below, and from the order of allowance this proceeding in error has been instituted. Albert Parker and J. W. P. Hughes were candidates for the office of mayor of the city of Topeka at the biennial election of 1901. The city council, as the canvassing board, declared Hughes elected by a majority of nine votes. In making this canvass, the council took into account not only the declared result of the election, as certified by the judges and clerks of the various voting precincts, but also the tallies, or markings, made by the election clerks of the various precincts, as the ballots were taken out and counted. There were discrepancies in two precincts between the result as certified by judges and clerks and the count as shown by the clerks’ tallies. In one of these precincts the tallies showed less votes for Parker than the number certified for him by the election officers; in the other the tallies showed a greater number of votes for each candidate than the number certified by the election officers ; but the aggregate count of the tallies in the two precincts showed a majority in favor of Hughes, while the result as certified by the election officers showed a majority for Parker.
A material question, therefore, is whether the canvassing board should have been governed by the certified result, or whether it was at liberty to examine and count the tally-marks as well. It is contended by the plaintiff in error _ _ _ . - _ that the latter may be done, while the defendant in error contends that the result of the vote, as determined and certified by the judges and clerks of election, is controlling. This latter view was taken by the court below, but a majority of us are constrained to think it erroneous.
In Rice v. County Board of Canvassers, 50 Kan. 149, 32 Pac. 134, the same question was presented and considered, but not decided, in view of other features of the case. Some of the language of the opinion in that case indicates the view that the tally markings are a part of the legal returns made to the canvassing board, and, therefore, should be considered by it. However, the election in question in that case was held under the general election law for state, district and county officers, and not for city officers, as was the case of the election now under consideration. The general election law for state, district and'county officers (Gen. Stat. 1901, §§2584-2586) provides for the keeping and return of tally-sheets of such elections. In the case cited, it was noted that the decisions as to whether the tally-marks may be examined by the board of canvassers were at variance, but that the weight of authority was in favor of allowing them to be considered in verifying election returns, and also in favor of giving them controlling force in case of a discrepancy between them and the certified result. In our judgment this is the better rule, because the tally- marks are made concurrently with the count of th§ vote, and are, therefore, the original and primary evidence of such vote, the certificates of totals being compiled secondarily. Therefore, if the statutes governing elections in cities provide for the making of a tally-sheet and its return to the board of canvassers, the action of the canvassers in the present case should be upheld. Elections in cities of the first class are regulated in greater part by chapter 206, Laws of 1889 (Gen. Stat. 1901, §§700-716). In connection with' this statute, a provision of chapter 37, Laws of -1881 (Gen. Stat. 1901, §§717, et seq.), is to be considered. None of the provisions of the “Australian-ballot law” seems to have application to the case. We think that all the statutory provisions material to be noted are as follows:
• “The city council shall be the board of canvassers, and shall meet on the first Friday after the election, to canvass the vote, and the returns of the election shall be made to the city clerk before that time, and by him presented to the board of canvassers. The persons receiving the highest number of votes for the various offices to be filled shall be declared elected, and shall receive a certificate of election under the seal of the city, signed by the mayor and clerk.” (Laws 1881, ch. 37, §82; Gen. Stat. 1901, §829.)
“The judges and clerks of election in every precinct, as soon as the ballots have been counted and tallied and the clerks have ascertained the number tallied for each candidate, shall make out and certify a summary statement of the number of votes cast therein, and the number counted and tallied for each candidate, and dispatch the same by a special messenger sworn for that purpose, and in a sealed envelope, to the commissioner of elections at his office. The judges of election shall also, as soon as the result has been ascertained, announce it to the commissioner of elections from the nearest police or fire station, or from a telegraph or telephone station if nearest to them. At the request of any of the persons designated to witness the counting of the ballots, the judges and clerks of election shall also sign and deliver to him a certificate containing the same statements as required to be made to the commissioner of elections."- (Laws 1889, ch. 206, §10; Gen. Stat. 1901, § 709.)
“The board of elections shall convene in session at their office at seven o’clock p. m. on the day of every election in such cities, and remain in session continuously until the statements giving the result of the election, as required above, shall have been received from every precinct in such city by the commissioner of elections and laid before said board. The board shall have power to employ messengers, to use the telephone and telegraph, direct the police force of the city, and use any other lawful means to secure prompt and correct reports from the election judges as above required." (Laws 1889, ch. 206, §11; Gen. Stat. 1901, § 710.)
It will be observed that none of the sections above quoted provides in terms for the keeping of a tally-sheet by the clerks of the election, and it will be observed that none of them provides for the transmission of the election returns from the election officers to the board of canvassers, and it is conceded by counsel on both sides that there -are no statutory provisions which in terms direct how, or by whom, returns of city elections shall be laid before the board of canvassers. It is, however, conceded by counsel on both sides that the election returns in question did properly get before the board of canvassers; and we are, therefore, relieved from a consideration of the regularity of the proceedings in that respect; but the question, What are election returns in a city of the first class ? still remains. We are constrained to think that, under section 10, above quoted, the keeping of a tally-sheet at a city election is a legal requirement, and, being such, that it constitutes a part of the election returns. The section declares that “the judges and clerks of election in every precinct, as soon as the ballots have been counted and tallied, and the clerks have ascertained the number tallied for each candidate,” etc. This language implies, of necessity, that tallies are to be kept and a tally-sheet made up by the clerks. The general election law — the law governing all other elections — provides for tally-sheets and for their transmission to the board of canvassers as a part of the official returns of the election. The statute above quoted presupposes the necessary and legally required use of the same kind of tally-sheets for the same purpose. It cannot, with reason, be said that the use of a tally-sheet at a city election is a mere convenience — is a mere matter of clerical memoranda — while the law requires it at all other elections for purposes of an official record.
It is contended, .however, that sections 10 and 11 above quoted provide what shall constitute the returns of a city election, and that they make no provision for the return of a tally-sheet. -Those sections do not seem to provide for the making out by the clerks and judges of the election of anything'but a “summary statement of the number of votes cast therein, and the number counted and tallied for each candidate,” but we do not regard such summary statement as being the election return. It is not the election return, because there is no provision for laying it before the board of canvassers. Another body, called the board of elections, is appointed to receive the “summary statement.” This board of elections, the'composition of which is provided for by other sections, is required to convene at seven o’clock on the day of election and to remain in session continuously until all the summary statements, giving the results of the election from the various voting precincts, shall have been delivered to it. The delivery of these summary statements to the board of elections is required to be made immediately after the canvass of the vote in the various precincts, and to be dispatched by a special messenger, sworn for that purpose. The statute is silent as to what the board of elections shall do with the summary statements when received by it. No provision is made for sending them by the board of elections to the board of canvassers as the official returns of the election. Provision is made for their filing with the board of elections, but the statute goes no further.
An examination of sections 10 and 11, above quoted, leads, we think, to the conclusion that they were simply designed to provide checks and hindrances to the tampering with election returns or the perpetration of fraud after the election. They provide for the immediate making out, and certification by the election officers, of a summary statement of the number of votes. They provide for an immediate dispatch of such statements by a sworn messenger, in a sealed envelope, to the commissioner of elections. They provide for an official announcement of the result of the election earlier than the sending of the summary statements. That announcement is to be made from the nearest police, fire, telegraph or telephone station, and they also provide for the furnishing to interested persons of a copy of the summary statement forwarded to the election board. They provide for an immediate session of such board to receive the election returns forwarded in the several ways above mentioned, and they provide for a continuous session of the board until all the statements have been received, and the board is authorized to employ messengers and to use the telephone and telegraph, direct the police force, and use any other lawful means necessary to secure prompt and correct reports from the election judges. All of these provisions look to the early ascertainment and early announcement of the result, and the making up of safeguards and checks against the fraudulent tampering with election returns, rather than to the making of returns to the canvassing board, or to the making of them in the form required for use by the canvassing board.
But, if the summary statements made to the board of elections be not the returns on which the canvass is made, from whom, or in what way, then, does the canvassing board receive the returns on which it acts? We think the statute, exproprio vigore, directs the transmission of the returns by the election officers to the board of canvassers. An election is held. Officers to conduct it and to tabulate and declare the vote are provided. Other officers are provided to canvass that vote. Does it need a statute declaring that the first set of officers shall transmit their official data to the last set of officers? Is not their duty to do so implied, of necessity, from the nature of the several acts to be performed? We think it is, and that the election returns were rightly transmitted from the judges and clerks to the city clerk as the clerk of the board of canvassers; we think that section 10, above quoted, provides for the making up of a tally-sheet as a part of the official election returns; we think that such tally-sheet may be used to verify and correct the declared result of the judges and clerks ; and we think that the summary statements provided by sections 10 ■and 11 are in the nature of checks and safeguards against fraudulent practices, and that they do not •constitute the returns of the election on which the canvass of the vote is to be made.
The case was determined by the court below after an inspection by itself of the tally-sheets and certified totals, together with some explanatory evidence. The •court made findings, of which the following are material to be noticed:
“10. Upon the tally-sheets returned from the election precincts and which were placed in the hands of •said city clerk there appeared to be entered and marked the number of tallies as shown in the following schedule, to wit:
“In the first precinct of the second ward,
Opposite the name of J. W. F. Hughes,.....127
Opposite the name of Albert Parker,.......327
“In the third precinct of the third ward,
Opposite the name of J. W. F. Hughes,.....646
Opposite the name of Albert Parker,.......222
“But on account of the condition of said tally-sheets the court is unable to make a definite finding as to the exact number of tally-marks which were in fact made upon said tally-sheets, as intended to be counted for each candidate for mayor.
“11. In the tally-sheet described herein which was kept at the first precinct of the second ward, the name of Albert Parker, as a candidate for mayor, appears, with the names of other candidates for various offices, in a certain place upon said sheet. Immediately opposite the name of Albert Parker, and 'in the first square thereafter, there are three perpendicular marks and one diagonal or tally-mark. Upon and over the name of Albert Parker and said other candidates for various offices in the place deferred to there is drawn a heavy cross-mark, showing that it was the intention of the clerk making said tally-sheet to erase or obliterate that part of the tally-sheet. 'But the court is unable to say whether the votes indicated by the four tally-marks, standing opposite to the name of Parker, thus erased and obliterated, were carried into any other part of said tally-sheet where the name of Parker and said other candidates for various offices are entered.
“This tally-sheet is reasonably well kept and is not ambiguous or unintelligible, so far as the pen work thereon is concerned, and is as well kept as could be expected, in view of the haste and the conditions surrounding the counting of the votes and the making of the returns.
“12. The tally-sheet described herein and which was kept at the third precinct of the third ward was made and prepared by a person inexperienced in the use of the pen and wholly unaccustomed to the performance of clerical work, and is badly blurred and blotted, and' the tally-marks overlapped, retraced, or joined together in such a way as to make it very difficult to determine exactly how many.tally-marks were in fact made thereon. But the court is of the opinion that the number of tally-marks actually made thereon is as set out in finding No. 10:
“12-A. In some of the -squares ruled up.on said tally-sheets, as described in finding No. 9, there are only two tally-marks ; in others, three tally-marks ; in others, four tally-marks ; in others, five tally-marks ; and in others, six tally-marks.”
From these findings, it appears that the tally-marks are uncertain, ambiguous, and difficult to understand. Such being the case, our judgment is that the court’s findings failed to show a case for the exercise of that judicial discretion jg an essentiai element of the law of mandamus. If, on account of the condition of the tally-sheets, ’the court was, to quote the language of one of the findings, “unable to make a definite finding as to the exact number of tally-marks which were in fact made on the said tally-sheets, as intended to be counted for each candidate for mayor,” it would appear then that the plaintiff below, the defendant in error here, did not show that clear legal right to the extraordinary writ of mandamus which, the law requires.
“The writ of mandamus being justly regarded as one of the highest writs known to our system of jurisprudence, it issues only where there is a clear and specific legal right to be enforced, or a duty which ought to be and can be performed, and where there is no other specific and adequate legal remedy. The right which it sought to protect must therefore be clearly established, and the writ is never granted in doubtful cases.” (High, Extr. Leg. Rem, §9.)
That the plaintiff’s showing of legal right was not clear, and, therefore, that the writ should not have been allowed to him, is said in view of the ruling just made that the tally-marks may be examined, and, in cases of discrepancy, may control the certificate of totals. In that view of the case, the board of canvassers was as well qualified to examine the tallies and declare a result therefrom as was the court below, and, unless the tally-marks clearly showed that the board of canvassers was in .error, and that the plaintiff was entitled to the writ because the tallies showed he had received the greater number of votes, the discretion of the court below to award the writ should have been differently exercised ; and, more than that, from the tally-sheets incorporated in the record, it appears that, taking the footings in all cases where there can be any doubt as to what the tally-sheets show, and admitting them to prevail, we find that a clear error is made in one such sheet in the addition-of the tallies to such extent that the result of the election, as found by the compilation of the footings, is changed. However, it is due to the court to. say that, while it made findings of fact from which the inference may be drawn that it took into account the tally-marks, its judgment seems to have been rested upon the legal proposition that the tally-marks constituted no part of the election returns, and that the certificates of totals could alone be examined to determine the result. This, we think, was error.
Objection is made in this court to our right to review the case, because some of the members of the city council, made defendants in the court below, have refused to join as plaintiffs in error to this court. In fact, as the defendants in error claim, a minority only of the defendants in the court below join in the prosecution of the proceeding in error. It is true that a board of election canvassers acts as an entity. The canvass J is the act of the board and not the separate or separable act of the individuals composing it. However, it by no means follows that an individual member of the political entity who has been commanded t'o make a canvass — who has been commanded to take part in a canvass — may not appeal in his individual right from the order made on him. The duty to make the canvass, although a duty performed by the board as an entity, is nevertheless a duty which is laid upon the conscience and judgment of each individual member composing the board. It would be intolerable to refuse to an individual member of such board who has been commanded to take part, along with his fellows, in the canvass of a vote, or.in its canvass according to some legal rule laid down to him, the right to appeal from the order which his conscience would not permit him to obey, or which, in his judgment, was erroneous.
The judgment of the court below is reversed, with directions to deny the peremptory writ.
Johnston, Cunningham, Greene, Ellis, JJ., concurring.
Smith, Pollock, JJ., dissenting from first paragraph of syllabus and corresponding portion of opinion. | [
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The opinion of the court was delivered by
Greene, J.:
The plaintiffs in error, the Smith - McCord Dry-goods Company, the Hargadine-McKittrick Dry-goods Company, Phelps, Dodge & Palmer, Rothschild Bros., L. Beard & Co., and Harding & Co., commenced this action in the district court of Osage county against defendants in error, F. E. Burke and John T. Hoover, to recover the possession of a certain stock of merchandise located at Burlingame, Kan., alleging special ownership therein under mortgages.
It appears from the petition that on the 29th day of January, 1898, the defendant Burke executed his mortgage on the stock of goods in question to the Smith-McCord Dry-goods Company and the Hargadine-McKittrick Dry-goods Company jointly. This mortgage states that it is subject to a prior mortgage to the Burlingame Bank and to R. P. Smith & Sons Company. Afterward, and on the 1st day'of February, 1898, Burke executed another mortgage on said stock of goods in favor of the other plaintiffs herein, Phelps, Dodge & Palmer, Rothschild Bros., L. Beard & Co., and Harding & Co., jointly. This mortgage recites that it is subject to the two prior mortgages.
Upon application of Burke, the court required the plaintiffs to amend their petition by setting up a certain written contract entered into between Burke and the R. P. Smith & Sons Company, the Burlingame Bank, as-first mortgagees, the Smith-McCord Dry Goods Company and the Hargadine-McKittrick Dry Goods Company, as second mortgagees, contemporaneous with the execution of said mortgage. In compliance with said order, plaintiffs made the following amendment:
“That at the time of executing said mortgage, exhibit ‘A,’ R. P. Smith & Sons Co., the Burlingame Bank, and said Smith & McCord Dry-goods Co. and Hargadine-McKittrick Dry-goods Co., made an agreement in writing with said Burke, wherein it was provided that he should be allowed $150 per month for himself and two clerks, so long as said stock is being foreclosed at retail under the management of said Burke, which agreement is in words and figures following, to wit:
“ ‘Whereas, P. E. Burke now employs two clerks in his store at Burlingame, Kan., and has this day given a chattel mortgage to us on his stock at Burlingame, Kan. :
“ ‘Now, therefore, we agree to allow out of the proceeds of said store, on account of said clerk hire and his own exclusive time and management given to said store, $150 per month, as long as said stock is being foreclosed at retail; said stock to be sold at retail only under the management of said Burke.
(Signed) R. P. Smith & Sons Co.,
Burlingame Bank,
First Mortgagees.
Smith-McCord Dry-goods Co.,
Hargadine-McKittrick Dry-goods Co.,
Second Mortgagees.’ ”
After this amendment was made the defendants each filed separate demurrers to the petition, alleging all the statutory grounds. These demurrers were sustained by the court, and, the plaintiffs electing to stand upon their petition, judgment was rendered against them, and they prosecute error to this court.
The first contention is that the court below erred in requiring the plaintiffs to plead this contract. In this we think the court made a mistake. The facts contained in this amendment were matters of defense, and, if pleaded, should have been pleaded by the defendants. A court should never require a plaintff to plead matters purely defensive in their nature. While this amendment is fatal to the petition as to the SmithMcCord Dry-goods Company and the Hargadine-McKittrick Dry-goods Company, we are inclined to think that this ruling is not reversible error, because it is not prejudicial to the rights of the particular plaintiffs. The contract was contemporaneous with the execution of the mortgage under which these particular plaintiffs claim, and should be considered and construed with the mortgage in this case as one transaction. The order of the court requiring the plaintiffs to plead this contract did not deprive them of the right to plead facts which would have shown that it was no longer obligatory upon them; they could have thus avoided the damaging force of this contract. There was, however, no attempt on the part of the plaintiffs to do this. Their petition, so amended, conceded the existence and validity of this' contract. It could not, therefore, have been prejudicial to their rights to have it appear in the pleadings any more than to have it appear on the trial by way of defense.
The remaining question to be considered is whether the petition as amended stated a cause of action in favor of the plaintiffs, or any of them, against the defendants. It was stated in the petition that the mortgage executed to the Burlingame Bank and the R. P. Smith & Sons Company was a prior mortgage on the goods-in question, and it was nowhere alleged that said mortgage had been paid or satisfied, or in any way released. By the contract between the R. P. Smith & Sons Company and the Burlingame Bank, first mortgagees, and the Smith-McCord Dry-goods Company and the Hargardine-McKittrick Dry-goods Company, second mortgagees, and Burke, the latter was to remain in possession of the mortgaged stock as the joint agent- of these mortgagees, they being tenants in common'of the property. It is clear, therefore, that the Smith-McCord Dry-goods Company and the Hagardine-McKittrick Dry-goods Company cannot maintain replevin. To sustain replevin the plaintiffs must, at least as against the defendants, be entitled to the possession of the property sought to be recovered. This can never be the case between joint tenants, tenants in common, or coparceners; until there is a severance, no one of the owners can by law sustain a claim to the exclusive possession of the property. (Ladd v. Billings, 15 Mass. 14; Kimball v. Thompson, 4 Cush. 441, 50 Am. Dec. 799.) One tenant in common cannot maintain replevin against his cotenant for the possession of the joint property. (Reinheimer v. Hemingway, 35 Pa. 432; Kindy v. Green, 32 Mich. 310; Wells, Repl. §152.)
The petition disclosing that the Smith-McCord Dry-goods Company and the Hargadine-McKitt-rick Dry-goods Company, the Burlingame Bank, and the R. P. Smith & Sons Company, were tenants in common of this property, and that Burke was in possession for all, no one of them can maintain replevin until there is a severance. The petition,-therefore, as to these plaintiffs, does not state- a cause of action and the demurrer was properly sustained. '■
As to the other plaintiffs in error, Phelps, Dodge & Palmer, Rothschild Bros., L. Beard & Co., and Hard ing & Co., we think the petition does not state a cause of action. The mortgage under which they claim recites that it is subject to the two mortgages before referred to. The petition shows' that the several prior mortgagees are in the joint possession of said property under their mortgages, by their agent, defendant in error Burke, and it does not show any wrongful acts on the part of said tenants in common, or any of them ; nor that their debts have been satisfied ; nor that they are exercising any unlawful or unauthorized control over the property ; but, so far as the petition states, they are doing just what these plaintiffs agreed they might do when they took their mortgage. As to them the demurrer was properly sustained.
The judgment of the court below is affirmed.
Cunningham, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Greene, J.:
This action was commenced in the court below by plaintiffs in error to recover from the defendant in error upon two separate attachment, bonds. The first cause of action states that on March 25, 1889, T. R. Rice & Co. commenced an action in attachment against the plaintiffs in error, and filed their bond with defendant in error as surety. An order of attachment was issued and levied on the property of the plaintiffs. On April 3, 1889, the attachment was dissolved by the district court. The plaintiffs below excepted and were allowed thirty days to file proceedings in the supreme court, but no further stay was had.
The second cause of action was upon another attachment bond executed in another action commenced by the same parties against the same defendants, with the defendant in error as surety thereon. This attachment was also dissolved by the district court on the 3Lst day of April, 1889, and an order was made staying the discharge of the property for thirty days. No other stay was had in that action. The petition also alleged, as to the second cause of action, that in 1891 the plaintiffs in error commenced an action on the bond set out in its second cause of action, which action, it was alleged, failed otherwise than on its merits, and, as to the defendant in error, was dismissed without prejudice on June 11, 1894. The present action was commenced on the 18th day of June, 1894. The defendant answered, pleading as a third defense the three-year statute of limitations. To this defense the plaintiffs in error filed a demurrer, which was overruled, and to this order they excepted and bring the case to this court.
As to the first cause of action, it is immaterial whether the three- or five-year statute of limitations applies, or whether the cause of action accrued at the time the wrong was committed or at the time final judgment was rendered in the district court dissolving the attachment. In either case, the right of action upon the bond set out as the foundation of the first cause of action was barred when this action was commenced. More than five years had elapsed from the date that the district court dissolved the attachment and discharged the property before the plaintiffs in error commenced this action. The defense of the statute of limitations was well pleaded as to the first cause of action, and the court properly overruled the demurrer -thereto, or, rather, the demurrer should have been carried back and sustained as to this cause of action.
One of the allegations in the petition in the second cause of action is: “That in 1891 the plaintiffs in error commenced an action on the second cause of action set out in the petition, which action, on June 11, 1894, failed otherwise than upon its merits, and was dismissed as to the defendant in error without prejudice.” This allegation seems to have been accepted by the parties as a sufficient statement of the fact to bring the pleading within the exception of the statute, and we shall so treat it. If the remedy as to this cause was not barred at the time of the commencement of the action which failed, the plaintiffs in error had one year from June 11, 1894, to commence their action again. It was commenced June 18, 1894 ; consequently within the year.
It is ably argued by counsel for defendant in error: (1) That this action was upon an attachment bond, therefore an action upon a liability created by the statute other than a forfeiture or penalty, and would be barred within three years from the time the cause of action accrued; (2) that the petition states a cause of action for taking, detaining and injuring personal property, which was barred under the two-year-statute of limitations; that the wrongs charged in plaintiff’s petition were a trespass upon real estate and the taking and detaining of personal property, and the cause of action, if any, accrued at the date of such taking, and the statute would run from that time. In support of this position, we are referred to Ryus v. Gruble, 31 Kan. 767, 3 Pac. 518, and Comm’rs of Graham Co. v. Van Slyck, 52 id. 622, 35 Pac. 299. Special emphasis is put upon the decision in the former case. That was an action upon a sheriff’s bond to recover damages for selling personal property under a void execution. The court said: “The wrongs charged in the plaintiff’s petition as the foundation for Ms present action are a trespass upon real property and the taking, detaining and selling of personal property.” 'Our statute provides “that an action for taking, detaining or injuring personal property” must be brought within two years. It is universally held that an action upon an official bond matures at the time of the breach, and the breach in this bond being the wrongful seizure of personal property, the two-year statute was properly applied.
The case of Comm’rs of Graham Co. v. Van Slyck, supra, was an action upon the official bond of the county clerk. The breach alleged was that the defendant had neglected to turn over certain moneys in his possession which belonged to the county. This was purely a statutory duty, and, under the rule that an action upon an official bond matures at the time of the breach, the three-year statute of limitations, within which an action upon a liability created by the statute other than a forfeiture or penalty must be 'brought, was properly applied.
The present action, however, does not fall within the principle of either of the.above-cited cases. This is not an action for the taking, detaining or selling personal property, nor is it an action upon a statutory liability, but upon a written obligation given in a special proceeding. The wrong complained of is the obtaining of an order of attachment. The conditions of the bond are that the plaintiffs shall pay to the defendants the damages which the defendants may sustain by reason of such attachment if the order be wrongfully obtained. The obligation of defendant in error upon the bond is purely contractual; it is not remote or ultimate, but immediate, arising from the instrument executed by the parties wbo are sought to be charged in favor of those to whom it was given and who now seek to enforce it.
The plaintiff’s cause of action matured when the district court determined that the order of attachment ’ was wrongfully issued, and thereafter the plaintiffs in error had five years within which to commence their action. An action on the bond could not have been maintained until after it was determined that the order of attachment was wrongfully obtained. Mr. Drake, in his work on Attachment, section 162a, says : "Where the bond is to pay all damages sustained ‘by reason of the attachment, if the order is wrongfully obtained,’ no action will lie on it until the attachment shall have been discharged, and such final disposition of it must be alleged.”
In Eckman v. Hammond, 43 N. W. (Neb.) 397, which was an action on an attachment bond, the court, in the opinion, used the following language :
"We think the law is pretty well settled that when an attachment proceeding is instituted against a party upon whom service of summons is made, and who appears, or might have appeared, in the action, in order to maintain an action upon an attachment bond, it is necessary that he allege in his petition, and prove upon the trial, that the attachment has been discharged.”
In Nolle v. Thompson, &c., 60 Ky. 121, it was said in the syllabus: "It is well settled that no action will lie on an attachment bond, or for maliciously suing out an attachment, until the attachment shall have been discharged, and such final disposition of it must be alleged.”
We are of the opinion that the trial court erred in overruling the demurrer to the third defense to plaintiff’s second cause of action. The cause is reversed, with instructions to sustain the defendant’s demurrer to plaintiff’s first cause of action, and to sustain plaintiff’s demurrer to the third defense to his second cause of action.
Johnston, Cunningham, JJ., concurring; | [
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The opinion of the court was delivered by
Smith, J.:
The first assignment of error relates to the admission of the stub-books showing the shares of stock issued to the defendant below. It is claimed that the entries on these books were written by another person than the witness who produced them, and hence copies were not properly admitted in evidence- This objection is not available to plaintiff in error, for the reason that after his demurrer to the evidence was overruled he gave testimony in his own behalf admitting that the stock had been issued to him as alleged in plaintiff’s petition. If he had stood on his demurrer, we might have considered the question presented. (Simpson v. Kimberlin, 12 Kan. 579; Drumm v. Cessnum, 61 id. 467, 59 Pac. 1078.)
Counsel further contend that under the pleadings the assignment of the stock by Pine to another before the 1st day of February, 1892, is admitted. This claim is without substance. Pine’s answer avers that he duly sold, assigned and transferred a]j his right, title and interest in all of said shares of stock in the Western Farm Mortgage Trust Company before the 1st day of February, 1892, and that the same was done in the regular course of business, in good faith, for a valuable consideration. It is not alleged that said assignment or transfer was in writing, and hence the allegations concerning it were disputed by the unverified reply. (Pattie v. Wilson, 25 Kan. 326.) The defendant further alleged in his answer:
“That at the time of the transfer of said shares so held by defendant a due and regular transfer was made of said shares upon the books of said Western Farm Mortgage Trust Company, as is provided and required by law.”
In reply to this the plaintiff below averred that it had no knowledge of any pretended transfer of said stock, but if the same was made it was without consideration, to an insolvent person, for the express purpose of avoiding the payment of the claim of the plaintiff and other creditors. We do not think the averment that a due and regular transfer of said shares so made on the books of the mortgage trust company amounts to an allegation of the execution of a written instrument. An entry made on the books of a corporation is not,-in our judgment, to be considered as the execution of a written instrument, within the meaning of section 108 of chapter 95 of the General Statutes of 1897 (Gen. Stat. 1901, §4542). If it were so held, then all entries in the books of a bank or other corporation or of a merchant set out in a pleading must be taken as true, unless denied under oath.
Counsel for plaintiff in error make the claim that, under section 1302 of the General Statutes of 1901, no action can be brought to charge a stock-, , , , , ,. , _ , holder except m the court where the x ^ judgment against the corporation was rendered. This view is erroneous. Such a construction of the statute would defeat every action brought in a foreign state to charge a stockholder resident there after a judgment had been taken against the insolvent corporation in Kansas. Further, if the stockholder were a non-resident of the county in which the judgment was rendered against the corporation, and had no property within the jurisdiction of the court, the remedy by action would be unavailable to the judgment creditor. (Howell v. Manglesdorf, 33 Kan. 194, 5 Pac. 759; Fidelity, Insurance, Trust & S. D. Co. v. Mechanics’ Sav. Bank, 38 C. C. A. 193, 97 Fed. 297.)
It is insisted that, because the plaintiff in error assigned his certificates of stock in the Kansas corporation to Wilber on a consideration found to be valuable by the trial court, and notified the officerg ^}ie corporation of the fact, from that time Pine ceased to be liable to creditors, although the transfer was not in fact entered on the books of the company. It will be noted that before the officers of the trust company received any notice of the assignment of the stock they had issued new certificates in the Colorado company to Pine in lieu of the stock held by him in the Kansas corporation. He returned these certificates, with the request that the Colorado company issue to Wilber new certificates of stock in that company instead of to himself. There' seems to have been a lack of effectual effort on the part of Pine to secure the transfer of his stock on the books of the Kansas company. When new certificates were issued to Wilber in the Colorado company the plaiütiff in error appeared to be satisfied that his connection with the Kansas concern had terminated. We think, from the evidence in the case and the findings, that, except as between himself and Wilber, .the plaintiff in error did not change his status as a stockholder in the Kansas company. In Plumb v. Bank of Enterprise, 48 Kan. 484, 486, 29 Pac. 699, it was said:
“The registration of stock required by statute is in part for the benefit of the public, and to provide creditors with a record of those who are individually liable in case the corporation becomes unable to meet its obligations. Under our constitution and statutes, the individual liability stands as a sort of surety for the corporate liability, and creditors of the corporation are supposed-to contract with reference to the individual responsibility of the stockholders. The general rule is, that the books of the corporation furnish evh deuce as to what persons are entitled to the rights and privileges of stockholders, and as to whom creditors may look for payment in the event of the insolvency of the corporation. Creditors of a corporation are presumed to have relied upon the books ; and, where a stockholder sells his stock, but permits his name to stand upon the books of the corporation as one of its stockholders, he is in no condition to claim exemption from individual liability! If he has attempted in good faith to have the transfer recorded, and, having done all in his power to that end, fails, other conditions would arise; but where he negligently permits the stock to stand upon the books in his own name, and fails to do that which is necessary to transfer the legal title of the stock in accordance with the statute, he is not released from individual liability by the mere assignment and delivery of the certificates.” (Citing cases.) (See, also, 3 Thomp. § 3284; Ottumwa Screen Co. v. Stodghill, 103 Iowa, 437, 72 N. W. 669.)
The court below, upon application of the defendant in error, refused to allow interest on the amount' of the stockholder’s liability, and the bank has filed a cross-petition in error by which it seeks to reverse such ruling. While the courts are not unanimous in their views on this question, yet we think the weight of authority sustains the right of the judgment creditor to receive interest on the amount due from the stockholder from the date of the commencement of the action in which he is sought to be charged. In this state the liability of the stockholder is held to be contractual. ( Woodworth v. Bowles, 61 Kan. 569, 60 Pac. 331.) A stockholder may discharge himself from liability by paying to the creditor an amount equal to the face value of the shares before any action is brought. (Munson v. Warren, ante, p. 162, 65 Pac. 222.) Here the stockholder withheld from the bank, from the time of the commencement of the action, the sum of $2000 legally due it. In Burr v. Wilcox, 22 N. Y. 551, 557, the court said :
“The creditor has a right to select among the stockholders the individual against whom he will proceed ; and until .he has made his selection, no particular stockholder is liable, and hence no interest can be allowed for any previous time. But from the time of the commencement of a suit for a debt exceeding the amount of the principal of the defendant’s stock, I see no reason why interest should not be allowed. It has then become a fixed liability for a specific amount, and ought, upon general principles, to carry interest.”
The same conclusion was reached in an able opinion by Judge Taft, in the superior court of Cincinnati. (Wehrman v. Reakirt et al., 1 C. S. C. R. 230. See, also, Mason v. Alexander, 44 Ohio St. 318, 7 N. E. 435.) Mr. Thompson, in his work on Corporations, states the rule to be that if the statute makes the stockholder liable to his creditors, each for his proportion. of the corporate debts, then no interest will be allowed, because no stockholder can tell how much he has to pay, or to whom, until it is ascertained by a suit in equity. The author further says :
“But if the creditor is kept out of his money through the refusal of the stockholder to pay when demand is made upon him, he ought to receive interest during the time he has been thus wrongfully delayed, although such interest, together with the principal, make a sum in excess of the amount for which the stockholder otherwise would have been liable. Upon this principle, it has been ruled that interest will run against the stockholder from the date of the commencement of the suit against him, although it results in charging him with a sum in excess of that for which he was individually liable.” (Vol. 3, §3133.)
The present action was commenced on January 27, 1894. We think the plaintiff below was entitled to interest from that time at the legal rate.
The judgment of the court below will be modified, with directions to increase the amount of the judgment by adding thereto legal interest from January 27, 1894, to the time >vhen the judgment was rendered.
Cunningham, Ellis, JJ., concurring. | [
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Error from Sedgwick district court. | [
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Error from Lyon district court. | [
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Appeals from Leavenworth district court. | [
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The opinion of the court was delivered by
Smith, J.:
The first assignment of error is that the evidence in regard to the shipments of beer ordered and received did not tend to prove any of the specific sales charged, and therefore should have been excluded. The State v. Schoenthaler, 63 Kan. 148, 65 Pac. 235, is cited in support of this contention. The accumulation of a large amount of intoxicating liquors—so large as to rebut any presumption that the liquors are for personal use, and entirely unexplained—affords ground for the inference that such accumulation is in preparation for a sale or sales. This is the gist of the Schoenthaler case, swpra. Such inference is proper on the trial of a charge of unlawful sales as well as upon a charge of maintaining a nuisance. It is circumstantial evidence, not of a specific sale, but, unexplained, of preparation to engage in the business of selling the liquors.
To sustain a conviction upon any charge in this case there must be evidence of a specific sale at the time and place charged, but circumstantial evidence tending to establish guilt may be considered as in other cases.
Assignments-of error from 11 to 21, inclusive, relate to the admission in evidence of exhibits Nos. 5 to 12, inclusive. These exhibits purport on their face to be statements of the amount of beer bought by one joe Nepote of John Dollar and Company, a firm composed of the appellants. A part of these statements are also receipted, as paid in full, by H. Kruger, one of the appellants. Before the introduction of these exhibits, a witness had testified that he found the exhibits in the place of business of Joe Nepote, who had testified that they represented purchases of beer which he had bought of John Dollar and .Company, as indicated by the exhibits, and that he had paid the appellants for the same. The statements were properly admitted as corroborative evidence. Similar statements, purporting to be receipts for payments for beer made by Mrs. Kolorich to the firm composed of the appellants, she having testified to numerous purchases of beer from the appellants, were properly admitted.
The case of The State v. Ford, 76 Kan. 424, 91 Pac. 1066, is cited as sustaining the contention of the appellants but the cases are dissimilar. If these exhibits had been introduced without the evidence of Joe Nepote the situation would be similar to the Ford case, but, introduced in .connection with the evidence of Joe Nepote, we think the evidence tends to show numerous sales from the appellants to Joe Nepote within the time as charged in the information. It is true that Joe Nepote testified that for some of the sales represented by these exhibits, if not all of them, he paid the sum stated at Minden, Mo., or near there, but under the evidence and circumstances of the case the jury may not have credited this statement. It appears immaterial anyway. Nepote testified that he did not pay the bills as the beer was delivered but paid up every week or two. If beer was sold to him on credit in Crawford county, Kansas, the sale was complete upon delivery thereof, and it makes no difference when or where the' bill was paid.
The internal revenue receipts or stamps are also competent as circumstantial evidence to show that one is preparing to engage in the business of selling liquors. There seems to be evidence of sales at the several dates the state elected to rely upon.
It is contended that there is no evidence that the alleged sales were made in Crawford county. Formal proof was not made in these words, but there was evidence that certain of the sales were made at Joe Nepote’s place in Frontenac, and that others of the sales were made at Mrs. Kolorich’s, and that her place is between Franklin and Curranville. There is specific evidence that Yale is in Crawford county, and the evidence of the distance shown between Frontenac and Yale, and between Mrs. Kolorich’s place and Yale, Franklin and Curranville, is sufficient to identify the places of sale as within the county. At any rate, aided by the evidence of the distance and direction of these places from Yale, the court takes judicial notice that they are all located in Crawford county, Kansas. (Wood v. Fowler, 26 Kan. 682; K. C. Ft. S. & G. Rld. Co. v. Burge, 40 Kan. 736, 21 Pac. 589; The State v. Brooks, 8 Kan. App. 344, 56 Pac. 1127; The State v. Stockman, 71 Kan. 852, 80 Pac. 1134; Monford v. The State, 35 Tex. Cr. Rep. 237, 33 S. W. 351; Equitable Life Ins. Co. v. Gleason, 56 Iowa, 47, 8 N. W. 790.)
We have examined the claims of error in overruling the motion for a new trial as well as in the giving and refusal of instructions. The overruling of the motion for a new trial presupposes a finding of fact by the court that the jury did not consider. improper state ments or evidence in arriving at the verdict. Such finding has support in the evidence and, although there is. evidence to the contrary, the usual rule is, in such situation, to sustain the finding. There seems to have been a fair trial, and although the penalties are great the severity thereof results only from the great numbers, of misdemeanors of which the appellants were each found guilty—the lowest penalty authorized by law being adjudged in each case.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
In a suit which involved other matters the appellee, Calhoun, filed his answer and cross petition on December- 31, 1904, against Ed. Anderson, and sought to have a deed absolute in form executed by him to Anderson on December 15, 1902, declared to be a mortgage, and for a decree permitting him to redeem. The court submitted to a jury in an advisory capacity the question .whether the parties intended the deed as a mortgage and as security for an indebtedness. The jury answered in the affirmative. Independently of the verdict, the court came to the same conclusion which appears to be fully supported by the evidence.
Complaint is made that the court admitted secondary evidence as primary evidence. The question arose in this way. Both parties admitted that some kind of writing was executed by Anderson at the time the deed was delivered. They differed as to the nature of this writing which wg.s not and, it appears, could not be produced. Anderson claimed it was an agency contract making Calhoun his agent to resell the 400 acres described in the deed. Soon after the original was made it was left at a bank in Wichita and became lost or mislaid. Thereafter, and probably as long as two years from the time the original was executed, Calhoun made from memory what he testified was substantially a copy of the contract and it was received in evidence. The appellant is mistaken in his contention that it was offered or received as original or primary evidence. It was secondary evidence made admissible by proof that it was the best evidence obtainable. (Deitz v. Regnier, 27 Kan. 94, 107.) The jury and the court appear to have believed it to be true.. It purported to be a contract of defeasance, which taken in connection with the deed absolute on its face, made the transaction a mortgage. Appellee might have testified to his recollection of the contents of the original. The court and jury understood that the writing did not purport to be an exact copy made from the original or authenticated by comparison, but that it showed what the witness recollected as to the terms, of the original.
In the accounting between the parties Calhoun claimed credit for the rental value of the land. Anderson wanted to allow only what he claimed to have received from the sale of crops. As a matter of law he was chargeable with the reasonable value of the use of the land. While the amount which he actually received as rents would be some evidence of the reasonable value, it is quite obvious that it would not be conclusive against the mortgagor. The mortgagee in possession must account for the rents and profits and is chargeable with the reasonable valúe of the use and occupation of the premises. (Dyer v. Brown, 82 Ill. App. 17; Peugh v. Davis, 96 U. S. 332, 339.)
Anderson, the appellant, contends that the oral contract was that Calhoun was to pay ten per cent interest. The court allowed the mortgagee six per cent, following the case of Wenger v. Taylor, 39 Kan. 754, 18 Pac. 911, where it was held that the statute relating to interest (Gen. Stat. 1909, § 4345) permits a higher than the legal rate only where a written contract stipulates for a higher rate. That decision has stood since 1888. In the meantime the legislature has lowered the rate of interest, but has not seen fit to alter the rule.
There was no application of the proceeds of the rent directed to be made by the mortgagor, so that the rule adopted by the trial court that interest should be computed for the whole period without annual rests is correct. It appears that the amount of rents as found by the court never equaled the interest. Of course, if the mortgagee is entitled to interest on his debt the mortgagor should receive interest on the rents. (20 A. & E. Encycl. of L., 1011, 1012, and cases cited.)
There is a cross-appeal in which objection is made to an allowance of $480 to Anderson as compensation for the collection of rents. The allowance was ten per cent of the gross charge for rents. The rule that a mortgagee in possession is not entitled to compensation for personal services in the management of the property is not inflexible even in those states where the rule obtains. (Turner v. Johnson, 95 Mo. 481, 7 S. W. 570, 6 Am. St. Rep. 62.) In many jurisdictions commissions are allowed. (11 A. & E. Encycl. of L., 241, and cases cited in note.) In this case the court made what we think was a liberál allowance against the mortgagee for rents for the whole period, especially in view of the lack of evidence tending to show negligence or want of care in handling the property, and the court saw fit to lessen the hardship by allowing appellee compensation for collecting the rents. The allowance under all the circumstances was not inequitable and therefore will not be disturbed.
Another point raised by the cross-appeal is the refusal of the court to credit appellee with usurious interest which he claimed was exacted from him, and to credit him with an additional amount by way of forfeiture. In a recent case (Live Stock Co. v. Trading Co., 87 Kan. 221, 123 Pac. 733) it was ruled in the syllabus that:
“Where a party asks a court to declare a deed to be in effect a mortgage, he may be required, as a condition to receiving such equitable relief, to forego the ad vantage of any statutory penalties for the exaction of usury, and to submit to a charge of the principal of the debt and legal interest.” (Syl. ¶ 5.)
Complaint is made of the rejection of certain evidence, but there is no showing that it was presented to the trial court in the form of affidavits in support of the motion for a new trial (Civ. Code, § 307), and therefore it will not be considered.
We find no error in the manner in which the court rendered the accounting. The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Carey McLain obtained a judgment in a circuit court of Missouri against M. V. B. Parker, both being residents of Kansas. He then sued upon the judgment in this state. While the action was pending he died, and it was revived in the name of his executrix. The defendant contended (1) that the Missouri judgment was void because the court rendering' it had no jurisdiction of his person or of the subject matter, (2) that it was but a part of a decree which required the performance of other acts than the mere payment of money, and therefore would not support an action in this state, and (3) that the executor had no authority to maintain the action, that an administrator having been appointed in Missouri, the Kansas action could be revived only in his name, and that the Missouri judgment was extinguished by the failure to revive it within a year from McLain’s death. The trial court ruled against the first two contentions, but sustained the third, and rendered judgment for the defendant accordingly. The executrix appeals.
The contention that the Missouri court had no jurisdiction of the defendant’s person is based upon testimony to this effect: Before the action was begun McLain’s attorney told Parker that it would be brought in Johnson county, Kansas, where both parties resided; if it had not been for this statement Parker would not have gone to Missouri; a short time after-wards he was served with summons in Kansas City, Mo. There was no evidence that his trip to Kansas City was in any way induced by the plaintiff. We do not think the mere statement that the action was to be brought in Kansas can be regarded as an agreement that it should not be brought elsewhere, or as a sufficient foundation for the claim that the defendant was inveigled into another jurisdiction.
The contention that the Missouri court was without jurisdiction of the subject matter is based upon the fact that as a preliminary to the recovery of a judgment against the defendant the plaintiff was required to execute to him deeds to property not situated in the county where the action was brought, while a Missouri statute requires “suits for the possession of real estate or whereby title thereto may be affected” to be brought in the county in which at least some part of it is situated. The question presented concerns the construction of the Missouri statute. Upon appeal to the supreme court of that state the judgment was affirmed, and this must be regarded as an authoritative interpretation in favor of the jurisdiction exercised.
The Missouri judgment was based upon a petition declaring upon several distinct transactions, each-pleaded as constituting a separate cause of action. In each instance the plaintiff asked to have the court annul on account of fraud a contract which he had made with the defendant for the purchase of real- estate, two tracts being situated in Missouri (but not in the county where the action was brought) and the rest in Arkansas or New Mexico. As a condition to recovery upon each transaction the court required the plaintiff to- execute and deposit with the clerk a deed to . the property involved, naming the defendant as the grantee. The plaintiff complied with this condition before the judgment was rendered. He was given an absolute and unconditional judgment for the recovery of a specific sum of money upon each count, but the decree included a provision that upon the satisfaction of each item of such judgment the corresponding deed should be delivered to the defendant.
It is said that an action can not be brought upon the decree of a foreign court ordering a payment of money, if it also requires the performance of some other act. (23 Cyc. 1504, 1560; 13 A. & E. Encycl. of L. 1008; 2 Black on Judgments, 2d ed., §§ 869, 962; 2 Freeman on Judgments, 4th ed., § 434.) The application of this rule is illustrated, and the limit upon its operation is shown in Du Bois v. Seymour, 81 C. C. A. 590, 152 Fed. 600, where it was said:
“Final decrees of courts of equity have the same conclusive effect as to questions of fact determined by them as judgments at law. If a final decree adjudges a fixed and certain sum to be due and owing from the defendant to the complainant, and nothing more, an action at law may be maintained on it for the recovery of the sum so adjudged to be due and owing; but the decree must be an unconditional one. The specific sum of money adjudged to be due must be payable, in all events. If there be a condition annexed to the decree which renders it uncertain whether payment shall ever be obligatory, the decree is not a record on which the common-law action of debt, or any other action at law instituted for the purpose of recovering a debt, can be founded.” (p. 593.)
Here the court rendered an ordinary, money judgment, collectible upon execution. Its enforcement was not made to depend upon any act to be subsequently performed. When it was paid or satisfied the defendant was entitled to receive the deeds from the clerk, but the plaintiff had nothing more to do with them. There may be difficulty in stating the theoretical condition of the title to the real estate resulting from this arrangement. It is not necessary to formulate an accurate definition. Practical problems are suggested as likely to result from .the fact that the record title remains in the plaintiff, but their solution need not be undertaken until they arise. The existence of security for the judgment does not prevent an action upon it. If the defendant owned real estate in the county where it was rendered the result would be a lien which would be released upon its payment, but this would not preclude its collection by proceedings elsewhere. It is by its terms payable at all events; it is collectible upon execution; and it is capable of supporting a new action in another state.
We think that upon the death of the plaintiff in the action brought in Kansas a revivor was properly had in the name of the executrix. The original decree, like other personal judgments for the payment of money, is to be regarded in two- aspects: as a conclusive determination of the fact of the indebtedness, and as a basis for its collection by execution. In the latter as pect, the ancillary administrator appointed in Missouri may have been its legal owner, and the person entitled to its control. But the action brought upon it in McLain’s lifetime was essentially one to recover upon the original claim, the judgment being invoked as a conclusive determination of its validity. The right to the maintenance of the action already brought passed to the executrix. She was entitled to receive the proceeds of the judgment, even if it should be collected by the Missouri administrator, subject to the claims of any creditors in that state. (18 Cyc. 1285.) The defendant is not exposed to any greater risk of unnecessary annoyance than if the judgment in Kansas and that in Missouri stood in the name of the same individual. He will, of course, in either case be protected against liability for a double satisfaction. No possible unfairness or injustice can result to him from this feature of the proceedings. Moreover, ’ the defendant explicitly consented to the revivor in the name of the executrix, and in view of that fact can not be heard to question her capacity to maintain the action-.
The defendant maintains that the judgment in the Missouri circuit court, not having been revived within a year after the death of the plaintiff, has become a nullity for all purposes. In Kansas a revivor is necessary to preserve the vitality of a judgment upon the death of the plaintiff, and can only be made within a year. (Mawhinney v. Doane, 40 Kan. 681, 20 Pac. 488.) The law of Missouri appears to be otherwise (23 Cyc. 1439; Simmons v. Heman, 17 Mo. App. 444), although evidence to that effect was not introduced. But even assuming that the Missouri judgment has lost its vitality by reason of the failure to revive it within a year from the appointment of an administrator in that state, it is still evidence of the validity of the claim on which it is based. (Douglass v. Loftus, Adm’x, 85 Kan. 720, 119 Pac. 74.) The judgment was in full force when the action was begun in Kansas upon it; this action was revived in due time after the death of the plaintiff, and the right of recovery was preserved, even although during its pendency the right to issue execution upon the original judgment,was permanently lost. The principle is similar to that applied in the case last cited and in Kothman v. Skaggs, 29 Kan. 5, and Steffins v. Gurney, 61 Kan. 292, 59 Pac. 725.
The defendant maintains that the existence of the judgment against him was not sufficiently proved because the transcript introduced in evidence included only a copy of the judgment itself, and not of the pleadings or other proceedings. The purpose being only to establish the fact of the judgment, this was sufficient. (23 Cyc. 1574; 13 A. & E. Encycl. of L. 1045, 1046.) The decree, however, contained recitals showing in considerable detail the character of the action in which it was rendered.
It appears that while the action upon the Missouri judgment was revived in the name of the executrix on May 6, 1907, the petition was not amended so as to set out her appointment and qualification until January 4, 1911. The defendant urges that'the statute of limitations was not interrupted by the order of revivor, that no action was pending in behalf of the executrix .until the amendment of the petition, and that in the meantime the statute of limitations had run. Where a plaintiff dies and the action is revived in the name of a successor the petition should be amended so as to allege the interest of the new party in issuable form (C. B. V. P. Rld. Co. v. Andrews, Adm’r, 34 Kan. 563, 9 Pac. 213), but the mere order of revivor is sufficient to prevent the running of the statute (Railroad Co. v. Menager, 59 Kan. 687, 54 Pac. 1043).
The judgment is reversed and the cause remanded with directions to render judgment for the plaintiff. | [
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